Municipal & Local Govt law

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Here are two cases about a topic that’s been getting a lot of traction lately in legal circles: how to deal with the so-called sharing economy. You know, things like Uber, Lyft, Air BnB, and … DogVacay. [Sidebar: that last one reminds of us Jack Handey’s faux sponsor of SNL‘s “Unfrozen Caveman Lawyer” series, “Dog Assassin” (“When you can’t bear to put him to sleep, maybe it’s time to call … Dog Assassin.”)].

This is such a developing area right now that our section of the ABA (State and Local Government Law) has formed a Sharing Economy Committee to try to discover what the rules are and should be. Ping me if you want to be a part of this group — all are welcome

Uber, Air BnB, and DogVacay aren’t taxis, or hotels, or dog walking services, they say. But they…

Continue Reading Peak Posner At The 7th Circuit: Cab Companies Were Chumps To Rely On A Govt Monopoly To Protect Them From Competition

We all know that the Supreme Court’s 5-4 decision in Kelo is lousy. See “Kelo at 10: Still Stinks, And A Decade Has Not Lessened The Odor.”

Or at least most of us know that. But other than crying in our beer, or trying to get the case overruled (efforts continue!), what is there to do, given that the decision remains “good law?”

Well, here’s some suggestions from our Owners’ Counsel of America and ABA State and Local colleague Dwight Merriam, to soon be published in the Connecticut Law Review, “Time to Make Lemonade from the Lemons of the Kelo Case,” 48 Conn. L. Rev. ___ (forthcoming 2016). 

Intrigued? Here’s the abstract:

The decision in Kelo v. New London only addressed the constitutionality of the eminent domain process used to take Susette Kelo’s home. Given the four corners of the case…

Continue Reading New Law Review Article: “Time to Make Lemonade from the Lemons of the Kelo Case”

We were getting ready to dig into the California Court of  Appeal’s opinion in 616 Croft Ave., LLC v. City of West Hollywood, No. B266660 (Sep. 23, 2016), when our ABA State and Local Government Law colleague Bryan Wenter wrote up the case on his firm’s land use blog, saving us the trouble.

The opinion is, in his words, “the first reported appellate decision to rely upon the broad holding of the California Supreme Court’s blockbuster 2015 affordable housing case, California Building Industry Assn. v. City of San Jose, and it boldly highlight the far reaching implications of that ruling.” As Bryan writes, “it also underscores the ongoing need for the United States Supreme Court to finally address whether the heightened scrutiny of the Nollan, Dolan, and Koontz Fifth Amendment takings cases applies to legislatively imposed permit conditions.”

Go read Bryan’s summary and excellent analysis…

Continue Reading Cal App: In-Lieu Housing Fee Isn’t An “Exaction,” And Isn’t A Taking

Are you like us and cannot type, write, or say “statue” without it coming out “statute?” That’s an affliction we’ve had since law school days, and one we’re probably never going to shake.  

As lawyers, we’ve all no doubt seen plenty of crappy statutes in our careers.

But, at the risk of being offensive, here’s an actual s**t statue, located in the City of Chicago. Created by an artist tired of dog owners allowing their Fidos to do their business on the artist’s front steps, he protested in the only way he knew how: by reproducing the offending items in bronze, larger than life, with water flowing out of the top.

Crass but apparently effective: evidence of actual dog doo was nowhere to be found during our recent visit.  

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The artist.

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Another angle on his work. 

Continue Reading NSFW (Maybe): A Chicago Statue

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Tomorrow, Thursday, October 6, 2016, at 10:00 a.m. at Aliiolani Hale, the Hawaii Supreme Court will hear oral arguments in a case we’ve been following (we filed an amicus brief in the case, supporting the property owner on the first Question Presented), County of Kauai v. Hanalei River Holdings, Ltd., No. SCWC-14-0000828. 

The case is a taking by the County of several parcels on the north short of Kauai, but the main issue in the case — do parcels need to physically touch in order for the jury to consider them part of a larger economic parcel — goes well beyond this one case. The Honolulu rail project, probably the biggest eminent domain project in Hawaii’s history, is underway, and the larger parcel issue could arise is more than a few cases there. What we thought was settled doctrine in Hawaii law was thrown into question by the…

Continue Reading Oct 6, 2016: HAWSCT Oral Argument In Eminent Domain Case: Do Parcels Need To Touch To Be Part Of A “Larger Parcel”

Here’s the latest in a case we’ve been following, and which earlier resulted in a very good decision from the North Carolina Supreme Court. 

In Kirby v. North Carolina Dep’t of Transportation, No 56PA14-2 (June 10, 2016), the N.C. Supreme Court held that the “Map Act,” a statute by which the DOT designated vast swaths of property for future highway acquisition, was a taking because the act prohibited development of designated properties in the interim. The court concluded that “[t]hese restraints, coupled with their indefinite nature, constitute a taking of plaintiffs’ elemental property rights by eminent domain.” The court remanded the case for a parcel-by-parcel determination of just compensation.

Here’s the trial court’s Order on remand, granting in part the plaintiffs’ motion for partial judgment on the pleadings on inverse condemnation liability, and ordering the NCDOT to “file plats, make deposits with the required statutory interest, and, if any plaintiff…

Continue Reading NC Map Act: DOT Ordered To Pay For Designating Property For Future Highway Use (But Then Not Taking It)

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 ALI2017

We’ve teased some of the details on the 2017 ALI-CLE Eminent Domain and Land Valuation Litigation and Condemnation 101 Conference, to be held at the Westin San Diego, January 26-28, 2017, but here are the details you’ve been waiting for.

This is the “big one,” our annual 3-day festival of all things eminent domain, property, takings, inverse condemnation, and just compensation. Truly national in scope, this is the 34th annual edition, and the one conference you must attend. Our 2016 conference in Austin was one of the best in years, and we’re on the way to replicating it in 2017, with a great venue in an exciting city. 

Look for the web and printed brochures to show up in your mailboxes, but in the meantime, here are some of the highlights (we’ll post more in the next few days):

  • Relocation, relocation, relocation: we are featuring two sessions on this

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Continue Reading Details: ALI-CLE Eminent Domain And Land Valuation Conference – San Diego, January 26-28, 2017

There’s a lot of pages in the Pennsylvania Supreme Court’s opinion (and two concurring opinions) in Robinson Township v. Commonwealth of Pennsylvania, No. J-34A-2016 (Sep. 28, 2016), and the good stuff from the headline starts on page 78. But to understand the case, you need a bit of background.

Pennsylvania has been one of the hotbeds of property owner objections to natural gas (including the related fracking extraction method) and other pipeline projects, and this case was a lawsuit by several townships and municipal officials challenging a state statute which made fracking and eminent domain easier for the gas companies. The townships asserted this went beyond what the state legislature had the power to allow, because it was “special legislation” designed to help a particular industry, and not applicable to all, and allowed an unconstitutional taking of private property for private use. The court held the statute was special…

Continue Reading Pennsylvania Supreme Court: Delegation Of Eminent Domain Power To Pipeline Companies Violates Fifth Amendment’s Public Use Clause

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During. Good crowd.

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Before. Note the power strips on the tables.
Well played, Caesar’s, well played.

To supplement your written materials, here are the decisions and other materials which we spoke about this morning at the CLE International Eminent Domain seminar:

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Continue Reading Links And Notes From Today’s Las Vegas Eminent Domain Seminar

This one is kind of Colorado specific, but there are lessons here for the rest of us.

In Colorado Dep’t of Transportation v. Amerco Real Estate Co., No. 16SA75 (Sep. 26, 2016), the Colorado Supreme Court prohibited the DOT from taking Amerco’s land (leased to U-Haul) for a highway project because the transportation commission had not first determined via the process required by statute that the taking would serve the public interest.

U-Haul argued these statutes required the commission to adopt a resolution — based on a report by the chief engineer — to establish that the taking of this specific property would be in the public interest, and that it wasn’t sufficient that these things were done for the project in general. The DOT asserted that an earlier resolution by the transportation commission gave the DOT all the power it needed, because it had delegated the power to acquire…

Continue Reading When Statute Requires Commission Approve Taking, DOT Can’t Do It