Municipal & Local Govt law

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Just over a month ago, the U.S Court of Appeals for the Fourth Circuit held that a federal takings case could actually proceed in federal court. Well yesterday, the same court issued a similar opinion in a related case, Town of Nags Head v. Toloczko, No. 12-1537 (Aug. 27, 2013).

We won’t go into detail because this post, by J. David Breemer at Pacific Legal Foundation (who also is counsel for the prevailing property owners) sets it all out very well.  But the decision involves abstention (Federal Courts law school flashback), Williamson County, and  beaches and public trust, so it’s well worth a read on its own.

If that doesn’t grab you, then nothing will!

Town of Nags Head v. Toloczko, No. 12-1537 (4th Cir. Aug. 27, 2013)


Continue Reading 4th Cir (Again): Federal Takings Claim Should Be Heard In Federal Court

Word comes that the California Supreme Court has denied review of the Court of Appeal decision in Lockaway Storage v. County of Alameda, No. A30874 (1st Dist. May 9, 2013). The court also rejected a request to “depublish” the First District’s opinion. Congratulations are again in order for colleague Tim Kassouni, who represents the property owners. 

Lockaway is the case in which the First District upheld the trial court’s finding of a Penn Central taking, affirming that the County of Alameda is liable for a temporary regulatory taking, and awarding the property owners nearly three-quarters of a million in attorney fees. This means the only avenue left open is a cert petition to the U.S. Supreme Court. If the County does so, it will probably have as much luck as the private property bar with convincing the Court to take a Penn Central case.

Here’s the (now-denied) Petition …

Continue Reading Cal Supremes Deny Review In Property Owner Penn Central Victory

Check this out: according to a story in yesterday’s San Francisco Chronicle (“Pricey homes in Richmond’s eminent domain plan“), someone has figured out exactly which properties in Richmond, California are going to get “helped” by Mortgage Resolution Partners and the city in their plan to take underwater mortgages by eminent domain.

Seems like some of these properties are not exactly blighted (remember, the public use hook being used by MRP/Richmond is that the underwater properties create blight and are the source of the ills the city suffers). According to the story, included within the targeted properties are “at least two homes purchased for over $1 million as well as other high-end properties – a revelation that appears to undermine the city’s argument that the plan would combat blight.”

Oops.

MRP’s response? “We don’t discriminate against anyone in this program” said Steven Gluckstern, chairman. Seems like both the rich…

Continue Reading Berman. Poletown. Kelo. Richmond. When Will They Ever Learn?

Your mission Dan, should you decide to accept it, is to review the competing op-eds about Mortgage Resolution Partners-backed plan for municipalities to take underwater mortgages by eminent domain, and decide which ones are good, and which ones are full of it. 

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Continue Reading Mortgage Taking Tuesday – Mission: Impossible?

Please join us this upcoming Monday, August 19, 2013 from 1:00 – 2:30 p.m. Pacific Time for a telebriefing, “Regulatory Takings Claims in California – Implications of Recent Decisions and Advice for Practitioners and Government Agencies.”

Brad Kuhn (Nossaman, California Eminent Domain Report) is the program Chair and will serve as moderator, and Timothy Kassourni (Kassouni Law) will give us more details on his recent big win in a case under the Penn Central test. I’ll be talking Koontz and the Ninth Circuit’s latest foray into regulatory takings challenges to rent control.

It promises to be a fast-paced and informative hour, and there’s much here for the non-California practitioner. More information here (from Brad’s blog), and registration information is posted here. Continue Reading Telebriefing: Regulatory Takings Claims In California

EM Hauulaeminent_domain_abuse

Here’s the Complaint, filed yesterday in U.S. District Court in Honolulu in which a windward Oahu property owner challenges the City and County of Honolulu’s removal of her protest signs on her property. 

The rub? She’s protesting the City’s condemnation of her property back in 2010. Her complaint alleges that the city “neither owns, manages nor maintains” the property, and that the owner continues to pay both property taxes and for the maintenance of the land. It also alleges there are other signs on nearby property with other messages that have not been touched. This seems similar to other cases in which property owners claim that the government is retaliating against them for their anti-eminent domain messages.

The complaint alleges that a few months ago, the City went on the property and posted a “removal notice” under the City’s newly-adopted “Bill 54,” an ordinance allowing the City to seize…

Continue Reading New Federal Court Complaint Challenges Honolulu Grabbing Anti-Eminent Domain Signs Under “Stored Property” Ordinance

Here is a deeper look at the two lawsuits filed lastweek in U.S. District Court in San Francisco against the City ofRichmond, California, for the city’s Mortgage Resolution Partners-backed plan to condemn underwater mortgages, specifically those held by out-of-state securitizedbonds, residential mortgage-backed securitization (RMBS) trusts. The first Complaint was brought by Wells Fargo and a number of mortgage holders onbehalf of their trusts (“Wells Fargo” suit). The other, filed concurrently, was brought Wednesday bythe Bank of New York Mellon for its trusts(“Bank of NYM suit”).

My Damon Key colleague Bethany C.K. Ace has digested the complaints and provides us with her thoughts on the cases below. She joined me and Mark M. Murakami as the co-author of Recent Developments in Eminent Domain: Public Use, which is forthcoming in the next edition of the Urban Lawyer.

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More On The Two Federal Lawsuits Challenging The Underwater Mortgage Taking Scheme…

Continue Reading Guest Post: More On The Two Federal Lawsuits Challenging The Underwater Mortgage Taking Scheme

Update: More thoughts from Rick Rayl and Brad Kuhn (California Eminent Domain Report) here.

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Here’s a decision at the intersection of eminent domain valuation and unconstitutional exactions from the California Court of Appeal (Fourth District). In City of Perris v. Stamper, No. E053395 (Aug. 9, 2013) the court held that in a condemnation action, “issues surrounding the dedication requirement are essential to the determination of ‘just compensation’ and therefore must be “ascertained by a jury.'” Slip op. at 1.

First, some background. The city condemned a portion of Stamper’s industrially-zoned vacant land in order to realign and widen an adjacent road. Its deposit was based on the use of the land for agricultural purposes. But wait you say, the land was zoned industrial and even though it was vacant, when calculating compensaton, land is valued at its highest and best use. But get a load…

Continue Reading Cal App: Nollan/Dolan Issues Impacting Eminent Domain Valuation Are Decided By The Jury

Whoa, that was fast: in a case argued on August 2, 2013, and decided on August 9, 2013 (that’s one week from orals to opinion, folks), the U.S. Court of Appeals for the Sixth Circuit in Village of Maineville v. Salt Run, LLC, No. 12-4379 (Aug. 9, 2013), held that the property owner/plaintiff forfeited* its argument that a facial takings challenge to municipal impact fees is not subject to Williamson County‘s state procedures requirement because the argument was not raised in the District Court.

You know the drill: Williamson County tells us that a property owner cannot raise a federal takings claim in federal court unless it has first sought and been denied compensation via available state procedures. “And they agree that Salt Run has not invoked this procedure.” Slip op. at 5.

In the normal course, that would be the end of the case. Having failed to…

Continue Reading 6th Cir: Takings Plaintiff Forfeited Argument That Facial Challenges Not Subject To Williamson County’s State Procedures Requirement

Today’s the first day of the ABA Annual Meeting in San Francisco, so we haven’t had time to do more than scan the Complaint for Declaratory and Injunctive Relief, filed yesterday in San Francisco federal court, challenging the plans of Mortgage Resolution Partners and the City of Richmond, California to take underwater mortgages by eminent domain.

We’ll have more, but here are two initial reports:

Complaint for Declaratory and Injunctive Relief, The Bank of New York Mellon v. City of Richmond, No. 13-36…


Continue Reading The Other Shoe Drops: Banks Sue Richmond, California Over Mortgage Eminent Domain Scheme