Municipal & Local Govt law

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Here’s the latest in a case we’ve been following, involving what Colorado calls “bad faith” condemnations. 

In this order, the Colorado Supreme Court has declined to review the Court of Appeals’ conclusion that a taking ostensibly to preserve open space and a buffer zone between two municipalities, was an invalid exercise of the eminent domain power because the true reason for the taking was to prevent the condemnee-municipality from luring a big-box retailer, King Sooper, to its territory and away from the condemnor’s. 

So even though the case has ended with a whimper and not a bang, this does mean that the Court of Appeals’ hard look at the actual motives of the condemnor — and not merely its stated purpose — is the way to do things. The court examined the factual record, and not just the stated reasons for the taking, and tested whether the condemnor’s …

Continue Reading Colorado Supreme Court Denies Cert In “Improper Motive” Condemnation

Those of you interested in the ongoing debate about vacation rentals (aka TVR’s) (in Honolulu, the minimum period a property owner can rent in a residential district under the zoning code is 31 days, unless the owner possesses a nonconforming use permit) should read the Hawaii Intermediate Court of Appeals’ published opinion in Dao v. Zoning Board of Appeals, No. CAAP-15-565 (Jan. 31, 2019).

You should read the opinion even though it contains a whole lot of detail, because it not only details the applicable law, but also how the City and County of Honolulu Department of Planning and Permitting goes about investigating and prosecuting violations of the ordinance. Let’s just say that the court wasn’t too impressed with the Department’s methods.

The property owner, Mr. Dao, was cited multiple times for renting to tenants for less than the required 31 days. Neighbors dropped dime (this is the source…

Continue Reading Hawaii App: Slipshod Investigation By Planning Department Cannot Support Vacation Rental Citation

The “Flint water crisis,” which, as the opinion of the Michigan Court of Appeals in Gulla v. State of Michigan, No. 340017 (Jan. 24, 2019), noted, is “the contamination of
plaintiffs’ water supply and their exposure to toxic and hazardous substances,” is all over the front pages. Which means it also spawned lawsuits.

The plaintiffs raised several claims across several cases, alleging (among other claims) inverse condemnation. In one series of cases, the defendants sought dismissal, arguing that the facts as alleged would not support takings liability. In the other, the court denied the defendants summary judgment. The court of appeals consolidated the appeals.

This is an unpublished opinion, so there’s not a whole lot of controversy or deep analysis by the court. But it is still worth reading because the court considered (and rejected) the defendants’ immunity argument. And the opinion gives a good rundown of Michigan takings…

Continue Reading Mich App: Flint Water Plaintiffs Stated An Inverse Condemnation Claim

With the opinion in the Knick v. Township of Scott case to drop as soon as Tuesday (we’re guessing the opinion will be by Chief Justice Roberts, by the way), hold on. We’re about to get super nerdy here. Impossibly nerdy. Yes, we’re revisiting the Star Trek analogies. We’ve been down this road before, even going so far as to have a colleague (who is perhaps even further down the rabbit hole than we are) present a takings CLE in his Starfleet uniform. 

The bottom line is this (and if you are not into Trek, you can stop right here): to us the key question which the Court is grappling with is whether a state’s judiciary is part of the state’s compensation system. If the majority of the justices conclude that it is, then don’t expect an out-and-out overruling of Williamson County, only a modest trim…

Continue Reading Shaka, When The Walls Fell: Knick Is Going To Be About Federalism, Not Takings

Psweather

If you didn’t register to attend the 36th Annual ALI-CLE Eminent Domain and Land Valuation Litigation Conference later this week in Palm Springs, California, well then, shame on you!

According to the National Weather Service, while you and the rest of the country is freezing, we’ll be enjoying the balmy desert climes, and discussing the topics we love: eminent domain, redevelopment, relocation, regulatory takings, trial and appeal strategies, doctrinal changes on the horizon, hot topics (border wall, pipelines, wildfires, and flooding), and others. 

Featuring a national faculty (many new to the ALI-CLE dais), and attendees from the entire spectrum of practice, academia, and the bench. 

If you are not joining us, be sure to follow along on the blog (we will post updates daily), and on Twitter (@invcondemnation, @ALI_CLE #EminentDomain2019). And plan on joining us in 2020, when we’ll be in a new city (by…

Continue Reading ALI-CLE Palm Springs (72º, Sunny) Here We Come

Pay special attention to Justice Breyer’s questioning of Ms. Knick’s counsel, Dave Breemer. Yes, oral argument is the Court’s time to do with as it wishes, but was Justice Breyer actually trying to get at anything, or just running out the clock with a questions that didn’t seem to have any point. Does he really think that lawyers for municipal governments actually have the type of conversations that he was alluding to? Really? 

Also, if you can’t stream the above, go to the Supreme Court’s audio page for the Knick case and download the sound file directly.  Continue Reading Knick Oral (Re)Argument Recording Available

There’s been a lot written after the Supreme Court heard (re)arguments earlier this week in Knick v. Township of Scott, No. 17-647, most of it helpful in understanding what issues the Justices are considering, and how each of them might break on the ultimate question: should Williamson County be overruled, and should property owners who allege that a local government has taken their property be able to press their claim for just compensation in a federal court? 

Here’s what we’re reading on the subject:

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Continue Reading Knick Post-Argument Round Up

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As Professor Gideon Kanner likes to remind us, eminent domain has been characterized as “the dark corner of the law.” We thought back to that phrase when we joined the queue outside of the Supreme Court this very dark (and very cold) morning, for the rehearing in the Knick v. Township of Scott case, this time with a full Court (Justice RBG was not present in the courtroom today, but will take part in the case).  

We soon got in the building, got warm, and got seated along with fellow takings geeks and the general public. 

We’ll have a detailed write-up once the written transcript is released, but for now, here are our initial thoughts. 

  • It was pretty clear right from the outset that the months intervening between October’s argument and now — and the various supplemental briefs and replies that have been filed — have not cleared things

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Continue Reading Knick Argument Redux: Dark Corners, And A Lack Of Clear Consensus (Chief Justice Remains The Lynchpin)

It wasn’t going to be too hard to figure out what the U.S. Court of Appeals for the Sixth Circuit was going to do in Lumbard v. City of Ann Arbor, No. 18-1258 (Jan. 10, 2018). After all, the case involved a federal takings claim in federal court, which the district court dismissed because the plaintiff had already litigated her state takings claims in state court.

Yes, the plaintiff tried to make an England reservation in the earlier state court litigation to inform everyone that she was expressly not also litigating her federal takings claim. But ever since San Remo, you know what that means: diddly squat. Later, when the plaintiff came to federal court and asserted her federal takings claim, that court concluded full faith and credit, blah blah blah. 

The Sixth Circuit in just a few more words, affirmed. A short opinion (7 pages) with nothing…

Continue Reading SCOTUS Shortlister Judge Kethledge Has Read The Knick Briefs: “[T]he Takings Clause does not say that private property shall not ‘be taken for public use, without just compensation, and without a remedy in state court.’”