Municipal & Local Govt law

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Update: From the July 13 WaPo: As Wal-Mart threatens to walk, what’s next for a dying shopping center? (“The Skyland Shopping Center in Southeast Washington is amost dead. Shops are shuttered and windows broken.” Gee, we wonder why?). See also Gideon Kanner’s thoughts on the story at “Another Kelo Case in the Marking?”

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You remember the Skyland redevelopment project in Washington, D.C., don’t you? That’s the one we’ve covered before, which has resulted in boocoo court decisions, most of them unfavorable to the small property owners whose businesses were considered “blighting factors” to the surrounding area, and thus stood in the way of a redevelopment project coveted by the city fathers and mothers. See DeSilva v. District of Columbia, No. 10-CV-1069 (Feb. 24, 2011); Rumber v. District of Columbia, 487 F.3d 941 (D.C. Cir. 2007); Franco v. National Capital Revitalization Comm’n, 930 A.2d…

Continue Reading If This Wasn’t So Depressing (And Predictable), It Might Be Funny

We’ve been offline for a few days, but wanted to pick up this decision in an important case we’ve been following about the valuation of protective dunes on the Jersey Shore, and general and special benefits.

In Borough of Harvey Cedars v. Karan, No. 070512 (July 8, 2013), the New Jersey Supreme Court held that a jury is entitled to determine whether the diminution in value caused by construction of barrier dunes on private property, which block the view of the owners and thus must be compensated, can be offset by claimed special benefits by the dunes to the property. The Borough asserted that the dunes resulted in special protection to the property, and enhanced its value. The intermediate appellate court held that the Borough’s evidence was not admissible, but the Supreme Court reversed.

As reported by the New York Times:

They are “waiting for the good old…

Continue Reading New Jersey: Dunes That Protect Everyone Get Paid For By A Few

Another date to save on your calendar: the 2014 Conference of the International Academic Association on Planning, Law, and Property Rights will be held from February 11-14, 2014 in Haifa, Israel, at Technion-Israel Institute of Technology. The Conference will include the usual presentations, plus day-long workshops, and excursions. You don’t need to be a PLPR member (although joining is free), nor do you have to be an “academic.”

We attended the 2013 PLPR Conference in Portland, and it was well worth it. The message of PLPR is “Planning matters. Law matters. Property matters,” and the 2013 Conference delivered, with presentations on those topics with an emphasis on international practices.

The 2014 event is chaired by Professor Rachelle Alterman, who, among other accomplishments, edited Takings International (2010), a book our ABA Section published that is a comparative study of how what we call regulatory takings are treated worldwide.

Continue Reading 2014 Planning, Law, And Property Rights Conference – Haifa

Generally, we don’t plug seminars that might compete with our own, but in this case, we made an exception because the faculty for this one consists of three people we could just not go without hearing from.

On Thursday, July 11, 2013, Law Seminars International is sponsoring “Koontz v. St. Johns River Water Management District – Implications for Property Owners and Local Government,” featuring our Owners’ Counsel of America colleagues Michael Berger and Amy Brigham Boulris, and our favorite foil, lawprof John Echeverria, as they “assess the implications of this important decision and provide practical guidance for both defending and pursuing regulatory takings claims.”

Here’s what we suggest: participate in their program on July 11, then tune into ours (which features both Koontz and Horne) the following day. Continue Reading Koontz Teleconference – July 11, 2013

Here’s some of the stories and commentary we’ve been reading about the Supreme Court’s decision in Koontz v. St. Johns River Water Management District, No. 11-1147 (June 25, 2013:

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Continue Reading Koontz Round-Up

We’ve commented on the various plans (mostly backed by a private venture capital outfit out of San Francisco) to have local municipalities seize underwater-but-performing morrtgages by eminent domain (see here and here, for example). Apparently the brainchild of Cornell lawprof Robert Hockett and sold as a “no lose” situation (see “Paying Paul and Robbing No One: An Eminent Domain Solution for Underwater Mortgage Debt“), the city of North Las Vegas was the first municipality to bite.

Yesterday, chapter 2: someone named “Gregory P. Smith” filed suit in federal court seeking to invalidate the plan. The complaint seeks declaratory and injunctive relief for violations of the Public Use Clauses of the U.S. and the Nevada Constitutions, the Due Process Clauses, the Contracts Clause, the Commerce Clause, and Nevada eminent domain statutes.

Who is Smith, and how does he have standing? We’re not sure, because…

Continue Reading It Begins: Plan To Seize Underwater Mortgages Challenged In Federal Court

Some things are constant: the speed of light, the sun rises in the east. And Professor John Echeverria, the well-known environmental lawprof, has never met a taking he’s liked.

Even if that means disagreeing in one takings case with Justice Ginsburg writing for a unanimous Supreme Court, the unanimous Court in another takings case, or, as in his op-ed in today’s New York Times, “A Legal Blow to Sustainable Development,” it means arguing that the Court’s ruling in Koontz v. St. Johns Water Management District, No. 11-1147 (June 25, 2013) says what it doesn’t necessarily say.

The op-ed merits careful reading.

First, he argues that “[t]he district made clear that it was willing to grant the permit if Mr. Koontz agreed to reduce the size of the development or spend money on any of a variety of wetlands-restoration projects designed to offset the project’s…

Continue Reading Surprise! Environmental Lawprof Dislikes Koontz

Well, the hammer finally dropped and the Supreme Court today issued its opinion in Koontz v. St Johns River Water Management District, No. 11-1447 (June 25, 2013). The opinion comes out on the next-to-last day of the Term presumably because — unlike the earlier two takings cases — Koontz was not unanimous, but was what one colleague referred to as a “classic” split in the Justices: the Chief, Kennedy, Scalia, and Thomas joining the opinion authored by Justice Alito, with the Court’s liberal wing siding at least partially with the government.

So before tomorrow’s rulings on the same-sex marriage issue suck all the air out of the room, here are our thoughts on Koontz:

  • All nine Justices agree that a property owner need not accept a permit which is subject to conditions she believes are unconstitutional in order to challenge it. This is a remarkable shift in tone

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Continue Reading Exactions: Supreme Court Right On The Money

Today, the Supreme Court issued its opinion in Koontz v. St Johns River Water Mgmt District, No. 11-1447 (cert. granted Oct. 5, 2012), holding that the nexus and proportionality standards apply to government demands for money as well as land, and that a property owner need not accept the permit in order to challenge it.

Opinion here. This is the third and final takings case the Court considered this term, which asked whether the “essential nexus” and “rough proportionality” standards of Nollan and Dolan are applicable only to exactions for land, or whether they are generally-applicable tests for all exactions.

Disclosure: we filed an amicus brief in the case, in support of Mr. Koontz.

Here’s our thoughts on the oral arguments. More, once we have a chance to digest the opinions in detail.

Koontz v. St. Johns River Water Management District, No. 1101447 (June 25, 2013)

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Continue Reading SCOTUS On Exactions: Nollan/Dolan Apply

Mostly mising from all the anticipation over the Supreme Court’s “blockbuster” cases on same sex marriage, voting rights, and affirmative action, is the Court’s third takings decision of the term, Koontz v. St. Johns River Water Management District. Professor Ilya Somin primes the pump in this post, “Still Waiting for the Koontz Decision,” which includes links to other prognostications, including an interesting (possible) insight from lawprof Josh Blackman.

We’re also in the final planning stages for the July 12, 2013 ABA webinar on Koontz and Horne, “Supreme Court Takings: A First Look at Koontz and Horne.” Make plans and join us for a discussion of these cases by our panel of expert scholars (Professors David Callies [Hawaii] and Michael McConnell [Stanford, also arguing counsel in Horne]), and practitioners (my State and Local Government Law Section colleagues Andy Gowder and Michael Kamprath). Continue Reading Waiting For Koontz