Municipal & Local Govt law

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Ducks

Here’s what we’re reading on this blustery Friday:

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Continue Reading Friday Links: Duck Gets Eminent Domain Power, A Small Piece Of New York City … And More

The Texas Supreme Court has agreed to review Texas v. Clear Channel Outdoor, Inc., a decision in which the Court of Appeals held that the owner of billboards was entitled to compensation when the land on which the billboards were located was condemned.  

Texas needed to widen the freeway, and condemned the land on which the billboards were located. It refused to pay just compensation on the grounds that the billboards were personal property and not “realty,” and thus the owner could simply move them. The State issued a removal order. In response, the owner filed an inverse condemnation action to recover just compensation for the billboard takings.

The court concluded the billboards are not moveable property, but are fixed to the ground, and that the state should have condemned and paid for them. It also overruled the state’s objection to the method of determining just compensation, which …

Continue Reading Texas Supreme Court To Consider: Are Billboards Movable Property?

Here’s a new cert petition, filed yesterday, that poses two interesting issues, the first of federalism, the other of exactions.

This is a rails-to-trails case in which the federal government asserts that the easements imposed on private property for a public park in New York City after the railway was abandoned did not result in a taking because the owners signed agreements with the city giving up their rights in exchange for development rights on other parcels. Included within this agreement — to which the federal government was not a party — was a covenant not to sue the city or the federal government. When the owners sought compensation in the Court of Federal Claims, the CFC dismissed because the federal government was the third-party beneficiary of the city-owner agreement. 

This is a question of New York law, and according to the petition, no New York court has ever…

Continue Reading New Cert Petition: In Rails-To-Trails Case, Fed Circuit Should Have Punted State Law Contracts Question To State Court

A couple of years ago, we posted the complaint (actually, a petition for mandate) alleging a big regulatory takings claim against the County of San Luis Obispo based on the County’s denial of a permit to drill for oil. A very big claim. $6.24 billion big. See “Wow, That’s A Lot of Just Compensation.”

We always wondered what happened to that lawsuit. Now, thanks to our colleagues at the California Eminent Domain Report, we know. 

In “How Untimely Service Can Be Deadly To Your Takings Claim,” Ben Rubin reports that in an unpublished decision, the California Court of Appeal affirmed the dismissal of the complaint for failure to timely serve it on the County. The plaintiffs filed the complaint on time, they just didn’t serve it. Read Mr. Rubin’s write up for the details, but here are the highlights:

  • The County’s denial of the

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Continue Reading Cal App: OK For County To Mislead By Omission In Due Process Notice

Civil Beat has a piece by Ian Lind (“Hawaii Monitor: Why Has Florida Company Picked a Fight Over Aerial Advertising?“) that has more on that story we first posted about here (“Hawaii Under Attack From The Air!“). He writes:

Local attorney and blogger, Robert Thomas (InverseCondemnation.com), has commented that the prior court cases have “pretty definitively” determined that Honolulu’s ban on airborne advertising is neither preempted by federal law, nor a violation of Free Speech rights. I certainly hope he’s right.

In our original post, we linked to the two Ninth Circuit decisions Ian mentions.

All we have so far is questions. Is there room for the aerial bannerist to navigate over Honolulu? Does the ban survive strict scrutiny (which is usually fatal scrutiny) as the Ninth Circuit twice concluded? Have Honolulu residents really called 911 to report the plane as the mayor…

Continue Reading More On That Pesky Banner-Towing Airplane

We usually don’t pay a whole lot of attention to unpublished opinions. Not that they are not interesting mind you, but if the court itself, for whatever reason doesn’t believe the case is worthy of publication, then who are we to say otherwise? But occasionally, we read one that has something worth sharing. Like this case, for example.

In Dagres v. County of Hawaii Planning Dep’t, No. CAAP-11- 0000071 (June 30, 2014), the Hawaii Intermediate Court of Appeals gave us one of those blogworthy tidbits, a short (one page) discussion of the appellant’s judicial takings claim. We don’t see many of those, so we had to follow up. 

The case involved three buildings near the shoreline on the Big Island. The owner wanted to fix them up, and the Planning Department concluded that two of the buildings were exempt from the requirement to obtain a Special Management Area use…

Continue Reading A Hint Of Judicial Takings From The HAWICA

When the one side or the other in the public debate complains about “judicial activism,” they’re usually talking about judges legislating from the bench — finding new rights, reading words into statutes that aren’t there, and the like. But that species of judicial activism doesn’t bother us all that much since we rarely see it, and even when we do, we understand that when accomplished incrementally, it is an integral and generally accepted feature of the common law process. Professor Steven Eagle has compared the common law’s gradual evolution to a big ship making a slow turn, and we think that’s an evocative and apt description. Judges in such a system sometimes do things like that, so that kind of judicial activism doesn’t truly get under our skin. 

No, the “judicial activsm” that bothers us is what the Second Circuit did in the the latest chapter in an issue we’ve been following…

Continue Reading Circuit Split Alert: Second Circuit Says Williamson County Ripeness Applies To Due Process

To those of you who joined us at the ABA’s Land Use, Planning, and Development Forum, thank you. Here are links to some of the topics I mentioned: 

Those of you who couldn’t make it can get the recording on CD or mp3 here in a couple of weeks, once it is produced.  

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Alabama: Recovering Compensation When The Govt Floods Your Land With Contaminated Water Is

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Continue Reading Links From Today’s Land Use, Planning, And Development Forum

Here’s more on a post in May in which we suggested you should get your hands on a copy of Professor Gideon Kanner’s latest article, Detroit and the Decline of Urban America, 2013 Mich. St. L. Rev. 1547 (2014). He writes about the role of eminent domain as one of the six factors contributing to urban flight and depopulation of major cities such as Detroit. Unfortunately, we could only post a reference to the article, but not the article itself.

Now we can. Here it is. It is a quick and enlightening read.

Related articles
Why We Fight: An Interview With Gideon Kanner, “A Fierce Advocate for Just Compensation”
New Article Of Note: The Role Of Eminent Domain Abuse In Detroit’s Downfall
Use Eminent Domain To “Redevelop” A Sports Franchise, And Take It From An Undeserving Owner?
Professor Kanner On Justice Ginsburg’s Eminent Domain Illiteracy
Gideon’s Trumpet Continues to Sound

Continue Reading Kanner: Detroit and the Decline of Urban America

No, it’s not Pearl Harbor. But from some of the reactions we’re seeing, you might think the Imperial Japanese Navy was once again anchored off of our fair shores. 

But thankfully no, it’s only aerial advertising, one small airplane towing a sign. But the airplane’s sorties have been generating attention like you wouldn’t believe. 

Hawaii has always been protective of its scenery, with an out-and-out prohibition on billboards, and two federal courts concluding pretty definitively (in our view) that the City and County of Honolulu’s prohibition on airborne signs and advertising is not preempted by federal law, and does not violate Free Speech rights. See this Ninth Circuit decision (cert denied, by the way), and this earlier case, also from the Ninth. 

Not so fast, says one company, which seems intent on pushing back. According to this story (“State and Local Officials Up Ante Against Sky…

Continue Reading Hawaii Under Attack From The Air!