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Mark your calendars: on August 21, 2013, The Seminar Group is putting on the 2d Annual Eminent Domain and Condemnation Law Conference, in Honolulu (Hilton Waikiki Beach). Our Damon Key partner Mark M. Murakami is the Planning Chair, and the rest of the faculty is pretty good, too. 

We’ll be speaking at two of the sessions: “Honolulu Rail Litigation Update – EIS and Acquisitions,” and “The Evolving Process of Eminent Domain – Condemnation Update; Recent Court Decisions of Interest.”

These topics will also be covered:

  • Contractor Licensing Update
  • Planning Update – Development Near the Right of Way
  • Uniform Relocation Act Benefits
  • Rail Development and Property Valuation
  • Ethics in Eminent Domain: Obligations of Condemnor’s and Condemnee’s Counsel

More information here. Download the brochure here, or below.

Hope you can join us for another great program.

2d Annual Eminent Domain & Condemnation in Hawaii – Aug 21, 2013 – Honolulu Continue Reading Eminent Domain And Condemnation Law Conference (Honolulu, Aug. 21, 2013)

A lot of interesting law review articles published lately, and here’s the latest: William Baude, Rethinking the Federal Eminent Domain Power, 122 Yale L.J. 1738 (2013). As the title suggests, the author argues that for 75 years, the original view was that the federal government lacked eminent domain power, because it was not expressly granted and it “was too great of a power to be granted only by implication.” While this view has not prevailed, he argues this history should be reexamined. Here’s the summary:

It is black-letter law that the federal government has the power to take land through eminent domain. This modern understanding, however, is a complete departure from the Constitution’s historical meaning.

From the Founding until the Civil War, the federal government was thought to have an eminent domain power only within the District of Columbia and the territories—but not within states.  Politicians and judges…

Continue Reading One More Law Review Article: “Rethinking the Federal Eminent Domain Power”

Watch Eminent Domain Case: How Can You Take My House? on PBS. See more from Constitution USA with Peter Sagal.

Here’s a video snippet focusing on eminent domain and the Kelo decision, from PBS’s ongoing series on the U.S. Constitution. It’s a somewhat generic view of the issue complete with silly sound effects and graphics, but it does touch on the concept of property rights, and there’s a tour of the former Fort Trumbull neighborhood in New London, currently an overgrown field.

The money quote is from former property owner Michael Cristofaro: “How could those justices in black robes steal our property rights from us? I feel like the Constitution failed me.”

Professor Gideon Kanner adds his thoughts on the video here. Continue Reading PBS’s Constitution USA On Eminent Domain

If you haven’t figured out by now, we like takings claims. We really do. But here’s one where we think the Third Circuit reached the right result when it concluded that there was no compensable taking. National Amusements, Inc. v. Borough of Palmyra, No. 12-1630 (May 9, 2013).

Why? Because when there may be an unexploded artillery shell on the property, and as a result the government seals off the property and temporarily closes the business conducted thereon, we don’t think the Takings Clause requires compensation, that’s why. The property owner thought otherwise, and in response to the Borough’s order to shut down after someone discovered that a flea market site was also former WWII-era muntions magazine and testing area, and that there was still some of that stuff left over, it objected:

The gist of the Complaint is that Palmyra overstated the danger posed by the unexploded munitions…

Continue Reading Third Circuit: Closing A Business To Remove Unexploded Munitions Is Not A Taking

We generally don’t cover unpublished decisions, but since we’re adding this case to our “to watch” list, we’re making an exception. In 62-64 Main Street, LLC v. Mayor and Council of the City of Hackensack, No. A-3257-11T4 (N.J. Super. May 3, 2013), the Appellate Division of the New Jersey Superior Court held that “the trial judge and the City misapplied our Supreme Court’s decision in Gallenthin Realty Development, Inc. v. Borough of Paulsboro, 191 N.J. 344 (2007),” when it concluded that the taking of property for redevelopment was supported by a blight finding. The appellate court concluded that the city had not made a factual showing that the properties it wishes to take are in an actual state of “deterioration or stagnation that negatively affects surrounding areas.”

Under the Gallenthin decision, New Jersey courts — unlike the courts in many other states — are not mere rubber…

Continue Reading NJ App: No Blight Proven In Redevelopment Taking

Here’s the opinion of the California Court of Appeal (1st District) in an appeal we’ve been following, Lockaway Storage v. County of Alameda, No. A30874 (May 9, 2013), affirming that the County of Alameda is liable for a temporary regulatory taking under Penn Central, and awarding the property owners nearly three-quarters of a million in attorney fees.

The entire opinion is worth reviewing, but here’s the short story. Lockaway purchased agriculturally-zoned land in the East Bay area for use as a boat and RV storage facility, an alternate conditional use in ag-zoned land. For over a decade, the property had been used as such pursuant to a series of Conditional Use Permits. In 2000, however, the voters of the county approved an initiative which prohibited the development of storage facilties, unless approved by public vote. The ordinance contained a provision allowing “minimum development” if the prohibition would deprive…

Continue Reading Cal App Affirms Penn Central Temporary Regulatory Taking

A short one from the Texas Court of Appeals (Third District), involving inverse condemnation. In City of Austin v. GHI Investments, LLC, No. 03-12-00198CV (Tex. App. Apr. 30, 2013), the court held that flooding resulting from the city’s approval of drainage designs that were part of a road widening and bike lane project, stated a claim for inverse condemnation. The trial court refused the city’s motion to dismiss and on an interlocutory appeal, the court of appeals affirmed.

Texas municipalities, like many of their parallel entities in other states, enjoy a limited immunity from tort lawsuits, but that immunity has been waived under the Texas Constitution’s takings clause (and its parallels). That, of course, includes inverse condemnation, and “[t]o plead a valid inverse condemnation claim and establish waiver of immunity under the takings clause, a plaintiff must allege that the governmental agency (1) intentionally performed certain acts in the…

Continue Reading Tex App: Low Threshold For “Intent” In Inverse Condemnation Pleading

Here’s the latest decision from the Hawaii Supreme Court applying the “private attorney general” doctrine, which allows a prevailing party to recover fees and costs in certain limited circumstances. In Kaleikini v. Yoshioka, No. SCAP-11-0000611 (May 2, 2013), the court awarded attorneys’ fees and costs incurred on appeal to the plaintiffs who prevailed in the case challenging the archaeological review for the $4+ billion Honolulu rail project. In its earlier opinion, the court held that the review could not be segmented, and that the city should not have started construction on any part of the project until archaeological review for the entire project had been completed.

Highlights:

  • Ask the appellate court only for those fees and costs you incur in that court; if you want fees incurred in the trial court, seek them there.
  • The going rate for highly skilled and experienced attorneys in Honolulu is darned reasonable

…
Continue Reading HAWSCT’s Latest On The “Private Attorney General” Fee-Shifting Doctrine

Cle-logoFor those of you attending the Virginia Eminent Domain Conference, here’s the expanded papers on “Tough Takings Questions: Regulatory Takings, Zoning Issues and Judicial Takings” and Public Use issues.

Use the password provided at the conference to open the pdf’s. It’s the same p/w for both. If you forgot the password, email me.

For those who did not attend, sorry folks, there are some benefits to coming to a conference! Y’all are going to have to wait for a bit — after a decent interval to allow the attendees to get their money’s worth, we’ll remove the password.

For more about the cases and books we discussed yesterday during my presentation on “Virginia’s Place in National Eminent Domain Trends, check these out:

  • Lingle v. Chevron, U.S.A., Inc., 544 U.S. 528 (2005) (gas station rent control, and the demise of the “substantially advance” test as a takings test).

     
    Continue Reading Materials From Today’s Virginia Eminent Domain Conference

    A short one from the U.S. Court of Appeals for the Fifth Circuit. In RBII, L.P. v. City of San Antonio, No. 11-50626 (Apr. 23, 2013), the court overturned a jury verdict that the city violated the due process and Fourth Amendment rights of a property owner when the city demolished its building without first providing notice that it was going to do so.

    The city believed a structure owned by the plaintiff was dilapidated and a danger, and needed to be demolished immediately. The city undertook environmental review, exhausted its internal procedures for demolition, notified the Historic Preservation office, turned off the utilities, and checked the permit register to see if any repairs were made. It accomplished this all in about two weeks. But it didn’t notify the property owner before it took down the structure.

    The owner filed suit in state court, and the city removed it…

    Continue Reading Fifth Circuit: City Not Required To Give Notice Prior To Demolishing Building If It Merely Believed There Was An Emergency