Municipal & Local Govt law

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Today, on behalf of the Cato Institute and a coalition of Western-state public policy and research foundations, we filed this amicus brief in supporting the City of Tombstone‘s cert petition in City of Tombstone v. United States, No. 12-1069 (cert. petition filed Feb. 27, 2013).

In that case, in 2011 a forest fire in the Coronado National Forest and later monsoon rains damaged the city’s sources of municipal water. The city and the State of Arizona declared a State of Emergency, but the U.S. Forest Service limited repair efforts by requiring the city to apply for a special permit and placing limitations on its use of equipment. Because it alleged the loss of water from these sources limited its ability to repond to fires, Tombstone sought a preliminary injunction prohibiting the Service from impeding its repair efforts. The District Court denied the injunction, and the Ninth Circuit…

Continue Reading Amici Brief: The Tenth Amendment, The Property Clause, And The “Town Too Tough To Die”

Our colleague Mark M. Murakami has published the first in a series of posts on his blog about legal issues surrounding the multi-billion dollar Honolulu rail project, “Honolulu Rail and the Uniform Relocation Act.”

Because the HART rail project will involve federal funds, federal laws and regulations provide property owners (and their tenants) with additional statutory and regulatory protections above what is required by the Fifth Amendment, the Hawaii Constitution or Hawaii Revised Statutes Chapter 101.  This is the first post in a series about Honolulu Rail.

Title 42, Chapter 61 of the U.S. Code is entitled:  “The Uniform Relocation Assistance and Real Property Acquisition Policies for Federal and Federally Asssisted Programs” and provides the statutory authority for the regulations which provide the details of the various benefits of the Uniform Relocation Act program.  

Yes, his blog is Hawaiioceanlaw.com, but maritime and admiralty law is just one…

Continue Reading Honolulu Rail And Federal Relocation Benefits

If this article — Christie tells beachfront owners to sign easement for dunes or face ridicule — accurately relays the entire context of the situation, then something is seriously off here.

The article quotes New Jersey Governor Chris Christie as declaring that if shoreline property owners do not voluntarily surrender easements and allow the construction of sand dunes on their land (presumably without compensation) very soon, then he’s going to “call them out” and publicly name them:

“We’re going to start calling these folks out in the next few weeks if they haven’t signed the easements to let us build the dunes because they need to be called out and they need to be told that there is something more important than their own self interests,” he said during a town hall-style event in Middlesex Borough.

He followed that up with his reasoning:

“I’m not going to put up with…

Continue Reading Tail Gunner Christie: What’s Next, The Pillory And The Stock?

Hat tip to Dean Patty Salkin’s Law of the Land blog for bringing this case to our attention. We don’t have much to add to her comprehensive write up of the Georgia Supreme Court’s opinion in City of Suwanee v. Settles Bridge Farm, LLC, No. S12A1599 (Feb. 18, 2013), a case holding that a regulatory takings case was not ripe because the property owner had not exhausted available administrative remedies. But we do have one thought that she didn’t cover, so bear with us while we set the stage.

Settles Bridge obtained city approvals for a residential subdivision. Shortly thereafter, however, it sold the property to Notre Dame Academy, which, under the existing residential zoning could build a school on the site as a matter of right, and “Settles Bridge abandoned its subdivision plan.” Upon learning of the sale, the city first adopted a building permit moratorium, and followed…

Continue Reading ‘SUP, Georgia? Takings Case Not Ripe Because Property Owner Hasn’t Applied For A Permit It Doesn’t Want

Here’s the Brief in Opposition which responds to the cert petition in Ilagan v. Ungacta, No. 12-723 (cert. petition filed Dec. 7, 2012).

In that case, an Agana, Guam property owner is alleging that a taking of his residential property so that his neighbor (the former mayor of Agana) could have a driveway for his lot, violated the Public Use Clause. Of course, the taking was not justified by private necessity but as part of the “Agana Plan,” an economic development plan adopted following World War II to reconfigure irregular lot lines in the city. The Guam trial court invalidated the taking, but the Guam Supreme Court unanimously reversed, holding that under Kelo v. City of New London, 545 U.S. 469 (2005), the taking was for a public use.

Disclosure: we represent the Owners’ Counsel of America, which has joined an amici brief supporting the property owner/petitioner…

Continue Reading BIO In Eminent Domain Pretext Case: Redevelopment Plan Established “Order Out Of Chaos”

Update: we removed the embedded video that was posted above, since CBS kept replacing it with other clips. Here’s a direct link to the video.

As our readers know, we follow with keen interest events in the People’s Republic of China (does anyone call it that, anymore?), especially those issues related to property and a budding system of private rights. Here’s the latest from CBS’s venerable 60 Minutes, about the housing and real estate markets there. If true, it’s scary stuff, especially when you consider we live in a global economy, with so much of our goods supplied by the PRC.

China has been nothing short of a financial miracle. In just 30 years, this state-controlled economy became the world’s second largest, deftly managed by government policies and decrees.

One sector the authorities concentrated on was real estate and construction. But that may have created the largest housing…

Continue Reading 60 Minutes On China’s (Possible) Housing Bubble

The other shoe has dropped, and in “Environmental Lawyers Off Target With Criticism Of Callies,” U. Hawaii lawprof David Callies responds to and rebuts an earlier op-ed by the Director of the Sierra Club and an Earthjustice lawyer which criticized Professor Callies’ recently-published law review article (and follow-up interview) detailing the stunning success rates certain parties such as the Sierra Club and Earthjustice enjoyed in the Hawaii Supreme Court from 1993-2010.

In that article, Callies labeled the record of the court on property issues “appalling” (80% overall success rate, 65% of cases reversing the Intermediate Court of Appeals). As Callies said in an earlier presentation, “Ninety percent of the time, government and the private sector are wrong? Give me a break.” (Remember, this is the court that held “western concepts” of property law such as exclusivity “is not universally applicable in Hawaii.”)

The responsive…

Continue Reading Enviro Lawyers Off Target With Criticism Of Callies, Says Callies

This one is not about takings, but this cert petition does relate to land and water, and come on, when the case involves Tombstone, Arizona calling out the federal government to a showdown — not at High Noon, but in the High Court — do you think we could have passed up the opportunity to post it? No way, hombre.

Here are the Questions Presented. It’s one of those QP’s with a short introduction which lays out the facts, so we won’t repeat them here:

Most fundamentally, this petition asks whether a state has any right to exist under the Tenth Amendment. Under the authority of a State of Emergency declared by the Governor of Arizona, the historic City of Tombstone sought to freely restore its municipal water supply infrastructure inholdings, located within Arizona’s Coronado National Forest, after they were destroyed by a natural disaster. Even though the City faced…

Continue Reading New Cert Petition: Tombstone v. United States

As we noted here, the City of Los Angeles has filed a cert petition asking the Supreme Court to review Lavan v. City of Los Angeles, 693 F.3d 1022 (9th Cir. 2012). In that case, a 2-1 Ninth Circuit panel held that the city could not presume that property owned by homeless people in the Skid Row area was abandoned, and enjoined the city from seizing and destroying it when the owner was “momentarily away” from it. L.A.’s petition details the conditions on the area that purportedly resulted from the Ninth Circuit’s injunction, and it sounds pretty bad (see pages 16 through 22).

The petition also argues that, like the vermin that has swept Skid Row, the panel majority’s ruling has “swept” around the Ninth Circuit from the Venice area of L.A., to Fresno, and “across the Pacific Ocean to Hawaii.” The Hawaii section of the petition points out…

Continue Reading New Cert Petition: Ninth Circuit Homeless Property Ruling Created Public Health Hazard

In Midwest Materials, Inc. v. Wilson, No. 84A04-1205-MI-258 (Feb. 27, 2013), the Indiana Court of Appeals held that Midwest did not suffer a taking for the loss of its property during the time a requirement that it provide water service to neighboring residences as a condition of a “special exception” needed to build a “molecular methane gas processing unit” on its own property was in force. The trial court eventually struck down the condition, and Midwest then alleged it suffered a temporary taking under Indiana law (only) for the time in which the permit condition was in effect.

On the inverse condemnation claim, the trial court held that Midwest had not been deprived of use of its property, and the Court of Appeals affirmed under Indiana’s version of the multi-factor Penn Central test. “The trial court did not err when it concluded that the seventeen-month period from the time…

Continue Reading Indiana App: No Temporary Taking In Seventeen-Month Loss Of Use