In Land in California: The Story of Mission Lands, Ranchos, Squatters, Mining Claims, Railroad Grants, Land Scrip, Homesteads (1979)
available here (U.C. Press) and here (Amazon.com).
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Upcoming ALI-CLE Eminent Domain Conferences
It’s time for the annual ALI-CLE (fka ALI-ABA) eminent domain conferences, to be held January 24-26, 2013 in Miami Beach, Florida.
In the “advanced” course, Eminent Domain and Land Valuation Litigation, we’ll be covering topics such as “Condemning Underwater Mortgages,” “An Engineer’s Role in Damage,” “How To Develop and Implement a Business Plan for an Eminent Domain Practice,” and “Condemnor Beware: What Activities Will Make You Liable for Pre-Condemnation Damages.” Along with Pacific Legal Foundation’s Jim Burling and Cornell lawprof Robert Hockett, I’ll be speaking on the panel about underwater mortgages. More details on the agenda and the faculty here.
The companion course, Condemnation 101: How to Prepare an Eminent Domain Case, covers the basics of eminent domain law, and although designed as an overview of condemnation law for the beginner or general practitioner, it’s a great refresher course for the seasoned eminent domain lawyer. More
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Brief For The Respondent In Koontz: “Mere Obligation To Spend Money Is Not A Taking”
Here’s the respondent’s brief in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012). That’s the case in which the Supreme Court is considering 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.
The respondent’s brief argues that the Water District did not demand an exaction, but merely “suggested a range of ways [the] applicant may [have] become eligible for a development permit.” Br. at 40. The brief argues that because the District could have denied the permit outright, it was fine for it to “suggest” ways that the property owner could convince it to issue the permit, without needing to show that there was some relationship between the suggested mitigation measures and the justification supporting the denial. Thus this was not merely the
Two Hawaii Supreme Court Cases To Watch
The Hawaii Supreme Court recently accepted cert in two cases worth watching. Our colleage Rebecca Copeland has summaried both and posted the relevant documents over at Record on Appeal.
- Blake v. County of Kauai Planning Comm’n, No. SCWC-11-0000342. This case asks whether a lawsuit challenging the approval of a final subdivision is “ripe” even though there may be further agency action.
- Kanahele v. Maui County Council, No. SCWC-29649. It looks like the court will be wading into the nuances of Hawaii’s “Sunshine Law,” and what it means for public hearing notices.
HAWICA: In Election Cases, Time Deadlines Matter
Here’s the latest election law case from the Hawaii appellate courts. In Kawauchi v. David, No. CAAP-10-0000066 (Dec. 13, 2012), the Hawaii Intermediate Court of Appeals held that the time deadlines in Haw. Rev. Stat. § 12-8 are mandatory, and that a constitutional challege to the Hawaii County Charter was not timely decided. The ruling emphasizes that in election cases under Hawaii law, the often-short repose periods must be followed precisely, even by courts, and even if the delay is the result of an understandable error. Failure to adhere to these deadlines will deprive a trial court of jurisdiction.
The case involved a challenge to the charter’s requirement that a candidate for public office be a resident of the district in which she intends to run for at least 90 days before the primary election. Section 12-8 establishes the procedures for challenging nomination papers and contains a 30-day repose
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HAWSCT Rejects County’s Argument That Property Owner Must Change The Law To Ripen Takings Claim
That was quick. As we predicted (and urged), the Hawaii Supreme Court today without comment rejected the County of Maui’s application for a writ of certiorari, which asked the court to review the Intermediate Court of Appeals decision in in Leone v. County of Maui, No 29692 (June 22, 2012) (Supreme Court order here).
[Practice sidebar: Hawaii has one intermediate appellate court (so we don’t have lower court “splits,” and under Hawaii appellate procedure, the Supreme Court may “accept” or “reject” an “application” for cert based on whether the ICA “gravely erred.”]
In Leone, the ICA held that property owners alleging a Lucas regulatory taking are not required to seek an amendment to the Community Plan (in Maui County, the CP is like a General Plan in other jurisdictions) in order to ripen their takings claims. A CP amendment is a legislative act, and plaintiffs are
One More Top Side Amicus Brief In Koontz
We always like reading amicus briefs filed by the Center for Constitutional Jurisprudence because they tend to focus on the history of whatever issue they are addressing, and the brief they (along with the Atlantic Legal Foundation and the Reason Foundation) filed in in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012) fits the bill. Check it out.
This looks like the final amicus brief supporting the property owner/petitioner. Now we wait for the respondent’s brief (and amici). Stay tuned.Continue Reading One More Top Side Amicus Brief In Koontz
Friday Round-Up: Flood Takings, Pearl Harbor, Organic Farming
Here’s what we’re reading today:
- We know you probably read Professor Gideon Kanner’s blog daily, but in case you missed his thoughts about the U.S. Supreme Court’s opinion in Arkansas Game and Fish Comm’n v. United States, No. 11-597 (Dec. 4, 2012), please read them here. Today’s must-read.
- Today is Pearl Harbor day, so we are linking to our in-person report from last year’s remembrance ceremony.
- Check out the cert petition in Johnson v. Paynesville Farmers Union Cooperative Oil Co., No. 12678 (Nov. 29, 2012). The question presented is somewhat opaque and we don’t think there’s much chance that it will grab the Court’s attention, but it does involve an interesting issue about pesticide drift and organic certification. The petition challenges the Minnesota Supreme Court’s dismissal of an organic farmer’s nuisance and negligence per se claims because federal regulations do not regulate pesticide drift. Here’s the Court’s
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Condemnation Of Underwater Mortgages Not Off The Table Yet
Gideon Kanner recently asked “Whatever Happened to Condemnation of Underwater Mortgages?”
Watch this November 23, 2012 interview with the chairman of Mortgage Resolution Partners for the views from the outfit that proposed the idea of using eminent domain to take underwater mortgages. He says the idea is “not dead at all … but it’s a fair characterization to say it’s moving slowly.” When asked whether there is any jurisdiction in which it will defintely happen, he responded that there are places where MRP is “actively working” with government, and he is “highly confident” that it will happen.
In a classic case of burying the lede, be sure to pay attention at the 5:15 mark where he notes that “this is about economics … they own a piece of paper, it has a value. You might argue about what that value is or isn’t, but they [the bondholders]
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More Amicus Briefs In Koontz: Nollan/Dolan Apply To All Exactions
Here they are, more amicus curiae briefs in n Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012).
That’s the case asking 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. We filed our amicus brief yesterday (posted here).
- Brief of Amici Curiae Association of Florida Community Developers, the Florida Land Council, the Florida Farm Bureau, and the Florida Fruit and Vegetable Association in Support of the Petitioner – “By drawing the line as it did, the Florida Supreme Court invited state-sanctioned mischief.Amici now remain at the mercy of savvy but cash strapped agencies and local governments that maywell escape the Nollan/Dolan doctrine by simply recasting land dedications as impact fees or by changing the timing of an exaction, forcing applicants to submit to
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