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BK 2022

There’s still space for you to join us — preferably in-person, but remotely if that is not possible for you — at the 19th Annual Brigham-Kanner Property Rights Conference, September 29-30, 2022, at the William and Mary Law School in Williamsburg.

The American Law Institute was kind enough to post a notice about the Conference and the ALI members who are on the speaking faculty here.

Registration for the Conference is ongoing, and you can sign up here. Here is the full agenda. (We’ll be speaking on Panel #2, “Reshaping the Framework Protecting Property Under the Roberts Court.”

In our opinion, the Conference is the best of its kind, and brings together legal scholars and the practicing bar to talk dirt law. So please come join us.Continue Reading Registration Underway – 19th Annual Brigham-Kanner Property Rights Conference (Sep 29-30, 2022)

You’ll definitely want to check out the U.S. Court of Appeals for the Third Circuit’s opinion in Makrilov v. City of Jersey City, No. 21-1786 (Aug. 16, 2022).

Not because it reaches any earth-shattering conclusions — the opinion unsurprisingly concluded that the city’s restricting (but not eliminating) short-term rentals (less than thirty days) was not a taking — but primarily because of the interesting concurring opinion.

So here’s the story. At one time, the city thought that renting residential property for less than thirty days was a good thing, believing that short-term renting “incentivize[d] investment and development in Jersey City.” Slip op. at 3. The city even adopted an ordinance affirmatively legalizing STRs as permitted accessory uses in residential zones. A property owner didn’t even need to obtain a permit, as long as the operation was small-scale (the owner did not have more than five units it rented).

But…

Continue Reading Penn Central May Be A “Fuzzy” Test, But What Is A Court Doing Weighing The Factors?

Check out the U.S. Court of Appeals for the Second Circuit’s opinion in Village Green of Sayville, LLC v. Town of Islip, No. 19-3353 (Aug. 5, 2022), a case in which the court held the Town reached a final decision denying Village Green’s request to develop a 64-unit apartment complex on Long Island.

Final decision ripeness under the surviving part of Williamson County, you say? So this is a takings case, right? No, not quite. The claims asserted by the developer  included a takings claim (although it seems to have played a more minor role) and the claims were mostly about the Town allegedly discriminating against affordable housing and the people who build and live in affordable housing. See slip op. at 11.

But as you know, many courts — including the Second Circuit — apply Williamson County’s final decision ripeness requirements to anything vaguely land usey.

Continue Reading CA2: Land Use Challenge (Not Takings) Is Ripe – Govt Gave Its Final “No”

Is there a more appropriate place at which to study property rights and dirt law than William and Mary Law School? After all, it is a stone’s throw from Jamestown, the place where there’s a good argument the concept of property law and property rights first took hold in the New World. As noted by author David Price in “Love and Hate in Jamestown – John Smith, Pocahontas, and the Start of a New Nation” –

The introduction of private property for the common citizen had a salubrious effect on the owners’ sense of initiative, as John Rolfe would observe. By the end of 1619, he reported, the “ancient” (or longtime) colonists had chosen their allotments, “which giveth all great content, for now knowing their owne lande, they strive and are prepared to build houses and to cleare their grounds ready to plant, which giveth ……

Continue Reading Ye Olde Law 608: Eminent Domain & Property Rights, S5E1 @ William & Mary Law

IRWA

The International Right of Way Association‘s Real Estate Law Committee produces twice-a-year reports “which contain summaries of eminent domain decisions and legislation within the United States.”

And what is really nice is that they make the report available. 

We’re posting it here because we’re one of the co-authors. Hat tip to our co-authors Brad Kuhn, Jillian Friess Leivas, and Ajay Gajaria.

The report is short, and doesn’t contain a lot of fluff. Just what you wanted.Continue Reading IRWA’s Summary Of Major Eminent Domain Cases & Legislation (Jan-May 2022)

Screenshot 2022-07-07 at 13-44-38 The Brigham-Kanner Property Rights Conference

By now, you know that the 19th Brigham-Kanner Property Rights Conference is set for September 29-30, 2022, at the William and Mary Law School in Williamsburg, Virginia (register here – space is limited – fee ranges from free to $195 – a bargain!). And you know that our colleague Jim Burling is this year’s B-K Prize winner.

But now you know who is speaking at the Conference, and the topics: here’s the full agenda. The list of speakers is too long to list here but check out these topics:

  • Panel 1: The Importance of Property Rights: A Tribute to James S. Burling
  • Panel 2: Reshaping the Framework Protecting Property Under the Roberts Court (that’s the panel we’re speaking on)
  • Roundtable: Emerging Issues in Takings and Property Rights Litigation
  • Panel 3: Choosing A Property Regime
  • Panel 4: Property Rights in Times of Scarcity and Crisis

Who can …

Continue Reading Here’s The Full Speaker And Topic List For The Brigham-Kanner Property Rights Conference (Sep 29-30, 2022)

Screenshot 2022-05-13 at 14-45-41 The Impact of Knick on Regulatory Takings and Those Pesky Lucas Exceptions - Property

Check this out: Pepperdine lawprof Shelley Saxer has a piece in Jotwell, “The Impact of Knick on Regulatory Takings and Those Pesky Lucas Exceptions,” a review of U. Hawaii lawprof David Callies’ book, “Regulatory Takings After Knick.”

The review is short and to the point, so we suggest you read it. But here’s a teaser:

This small but mighty book offers a concise history and understanding of takings jurisprudence as it stood before and after the Knick decision. It brings clarity to a convoluted chronicle of takings litigation and presents specific situations where litigants have asserted a total taking claim and the defense has relied on the various exceptions to Lucas.

Don’t miss it.Continue Reading Lawprof Saxer On Jotwell: “The Impact of Knick on Regulatory Takings and Those Pesky Lucas Exceptions”

Anyone who reads this blog regularly knows Tiburon, California, even if you’ve never stepped foot there. Yes, that Tiburon. Well, the beat goes on: the Agins litigation wasn’t the only time that the town and its residents combined forces to try and draw up the drawbridge and prevent the building of more homes in this very exclusive and chichi Marin County waterfront and hilltop community with commanding multi-million dollar views of San Francisco and the Bay. 

For the latest example, read the California Court of Appeal’s opinion in Tiburon Open Space Committee v. County of Marin, No. A159860 (May 12, 2022). It’s 110 pages, but don’t let that discourage you (it’s not necessary to dig into the details, unless you are a true California Environmental Quality Act nerd). The facts alone are hair-raising. But on the other hand, the story may be an old story to…

Continue Reading “Something is very wrong with this picture.” Cal Ct App Calls Out CEQA (“fearsome weapon”), Tiburon’s “official hostility,” And “combined animus of two levels of local government”

Screenshot 2022-05-02 at 11-51-57 Display event - 2022 Hawaii Land Use Law Conference (LIVE)

It’s back! After a hiatus on the in-person program, the bi-annual Hawaii Land Use Conference is back in-person (see here for a sample of one of our prior presentations at this conference).

May 25 and 26, 2022, downtown Honolulu.

The full agenda and speaker list has not yet been published, but here’s a summary of the program:

Sponsored by the Hawaii State Bar Association and the Real Property and Financial Services Section. Coordinated by David Callies and Benjamin Kudo, his 2-day conference is a must attend for any attorney or professional whose practice involves land use and development. Distinguished land-use practitioners, scholars, planners, and regulators from Hawaii and the Mainland will discuss timely and relevant issues, including:

• Takings 

• Transit Oriented Development (TOD) 

• Seawalls and Shoreline Access 

• Climate Change 

• Affordable/Workforce Housing 

• Ethical Considerations for Real Property Practitioners and Other Professionals

We’ll be speaking during…

Continue Reading Hawaii Land Use Law Conference, May 25-26, 2022, Honolulu – Join Us!

FedCtsTakingsArticlepage1

A new article on takings from U. Virginia Law School profs Ann Woolhandler and Julia Mahoney in the Notre Dame Law Review, “Federal Courts and Takings Litigation.” Get the pdf here.

Rather than try and summarize the piece, we’re just going to cut-and-paste the highlights from the article’s Introduction:

While Knick clearly expands the lower federal court role in takings claims, many questions remain. We do not know how federal courts will respond to the increase in claims—whether they will embrace a robust federal role in land use cases, or use various abstention doctrines to rein them in. While pro-regulatory and pro-property rights scholars have predictably taken sharply contrasting positions as to the appropriate federal court role post-Knick, this Article will recommend a middle-of-the-road approach, based partly on history and partly on an assessment of where the lower federal courts may most usefully contribute to the…

Continue Reading New Article: Woolhandler & Mahoney, Federal Courts and Takings Litigation, 97 Notre Dame L. Rev. 679 (2022)