Regulatory takings

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We’ve spent a good portion of the last two weeks at conferences discussing the regulatory takings case now pending at the U.S. Supreme Court, Murr v. Wisconsin, No. 15-214.

The biggest question most had was why the Court had not scheduled oral arguments. There was a lot of speculation and gossip about the Chief Justice perhaps holding off on OA because the Court was one Justice short. Recall that cert was granted, but shortly thereafter Justice Scalia died, leading to speculation that there was not a clear five-Justice consensus for how to analyze the issues on the eight-Justice Court. But no concrete answers.  

Well, maybe they heard all the chatter over at 1 First Street NE, because on Friday, the Court issued this argument calendar, and lo and behold, look what’s on calendar for Monday, March 20, 2017.

The questions remain unanswered: Will the Court have …

Continue Reading Supreme Court (Finally) Sets Arguments In Reg Takings Denominator Case (Murr v. Wisconsin)

When we previewed the 2017 ALI-CLE Eminent Domain & Land Valuation Litigation Conference while we were getting buried in the snow a couple of weeks ago, we promised there would be better weather in San Diego than much of the country was then experiencing. As you can see, we delivered.

We — and by “we” I mean the faculty, the ALI-CLE staff, and the record number of attendees who came to San Diego — also delivered on a really great conference. See our posts on several of the presentations here, here, here, and here for a flavor.

We also announced that the date and location for the 2018 Conference has been set, and the hotel and site have been booked:

2018 ALI-CLE
Eminent Domain & Land Valuation Litigation Conference
Francis Marion Hotel
Charleston, South Carolina
January 25-27, 2018

Stay tuned for details. Send your ideas for…

Continue Reading 2017 ALI-CLE Eminent Domain Conference Wrap, 2018 Venue Announcement

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Our final day was anchored, as usual, by Pacific Legal Foundation’s Jim Burling, and property rights guru and advocate Michael Berger. Jim was his usual riveting self, and Michael supplied the insight to cases which only he can.

In case you are wondering, the above is the view from the dais, and no, I didn’t bring a Spam calendar with me, it was a gift from a thoughtful New Jersey colleague who knows that Hawaii people love Spam. I will reserve comment on whether I love Spam, and simply say thank you for the calendar. 

We finished the day strong with the National Forum, where audience members took the mic and shared their cases, issues, and results with the rest of us. 

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Continue Reading Links & Materials From Day 3 Of ALI-CLE Eminent Domain And Land Valuation Litigation Conference, San Diego

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Today, in addition to listening to sessions on Ethics, jury presentations, and expert witnesses, we presented (along with Dave Breemer of Pacific Legal Foundation) a session on “Takings and the Police Power.” Here are the links to the cases and articles I discussed in my portion of the presentation: 

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Continue Reading Links & Materials From Day 2 Of ALI-CLE Eminent Domain And Land Valuation Litigation Conference, San Diego

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Yeah, at the ALI-CLE Eminent Domain and Land Valuation Litigation Conference now ongoing in San Diego, we talk severance damages, relocation benefits, highest and best use, pipelines, energy corridors, temporary construction easements, and blah, blah, blah.

But what really matters is when our St. Louis colleague Paul Henry (the bravest man we know) presents “Everything About Eminent Domain I Need To Know I Learned From Star Trek.” 

In a Starfleet uniform.

To a room full of the nation’s best eminent domain lawyers.

As one of the Planning Chairs, we told Paul that he could present this topic, but only if he did it in uniform. Well played, Captain!Continue Reading Star Trek: 2017 ALI-CLE Eminent Domain And Land Valuation Litigation Conference, San Diego

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Here are the links and references to the cases we spoke about today at our opening session on the national trends in eminent domain law at the 2017 ALI-CLE Eminent Domain and Land Valuation Litigation Conference in San Diego. 

We again have a record attendance, and a good number of new attendees. If you aren’t here now, we’re sorry you didn’t make it. But fear not: ALI-CLE has already set the date and location for the 2018 Conference: save the date on your calendars now — January 25-27, 2018, Charleston, South Carolina, at the Francis Marion Hotel. 

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Continue Reading Day 1, 2017 ALI-CLE Eminent Domain And Land Valuation Litigation Conference, San Diego

HSBA 2017 Land Use Conference

To supplement your written materials for the 2017 Hawaii Land Use Conference, here are the decisions and other materials which we spoke about this morning at the 2017 Hawaii Land Use Conference:  

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Continue Reading Notes And Links From Today’s Hawaii Land Use Conference Session On Reg Takings

The Sixth Circuit’s opinion in Lilly Investments v. City of Rochester, No. 15-2289 (Jan. 5, 2017) is not slated for publication, but its worth a read anyhow because it involves Williamson County ripeness, and the “final decision” rule. Here’s how the court summarized the case:

This case concerns Louis Leonor’s efforts to open a dental clinic in Rochester, Michigan. The clinic stands nearly complete, but in May 2013 Rochester issued a stop-work order preventing Leonor from finishing and operating the clinic, prompted by an expert’s finding that the clinic does not comply with the conditions of a city permit. That same expert found compliance a few months later after Leonor made corrective changes. Nonetheless, Rochester refused to lift the stop-work order or take an up-down vote on the project unless Leonor waived any legal claims and paid a $40,000 fee. Unwilling to comply with those conditions, Leonor filed a complaint…

Continue Reading 6th Circuit: City’s “War Of Attrition” Meant Regulatory Takings Claim Ripe For Federal Review

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After the Hawaii Supreme Court decided GATRI v. Blane, 962 P.2d 367 (Haw. 1998) one big question remained.

In GATRI, the court held that in the coastal zone, a county Community Plan (also known as a “General Plan” in some counties) is a binding land use regulation, and thus has the force and effect of law. (Outside the coastal zone, the CP/GP’s don’t actually control any land uses, and are general statements of long-term planning goals. The zoning, and the zoning alone, regulates the uses of land.)

But the state legislature in the Coastal Zone Management Act mandated a different result in the coastal zone and there, the planning also controls land use, as the court held in GATRI. Thus, in order to develop property in the coastal zone in accordance with the applicable zoning, the applicable CP/GP must also permit the use. This is know as “plan-zone consistency,” and…

Continue Reading Hawaii Supreme Court Oral Arguments In Lucas “Economically Beneficial Use” Taking Case

You take the uptown subway, the 1 train, destination the Bronx — the IRT for those of you who still refer to New York City’s subway lines that way — and exit at the 103rd Street Station, just before you cross the unofficial border to Harlem. Walking north on Broadway for a couple of blocks, turning on West 105th Street west towards the Hudson, crossing West End Avenue. 

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This is the formerly rural part of the city now known as the Upper West Side, then known as Bloomingdale. The Dutch, who originally named it that back when this was all New Amsterdam, didn’t spell it that way, of course. They wrote Bloemendael, because it reminded them of a flower growing area in Holland. Not too many flowers to be found here these days, unless you continue on towards Riverside Park. 

A quarter of a block down on your right…

Continue Reading Takings Pilgrimage, Upper West Side Edition