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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

There’s still time to register for one or more upcoming CLE programs sponsored by the ABA Section of State and Local Government Law:

I’ll be part of the “Hot Topics in Land Use” panel, speaking about recent developments in regulatory takings. These are replays of the in-person programs we put on at the recent Spring Meeting in Asheville, NC.

Register for all three programs and receive a 20% discount. Continue Reading Upcoming CLE Trifecta: Hot Topics In Land Use Law, Heirs Property, Urban Ag (July 15, 2014)

Here is the recording of last month’s Hawaii Supreme Court oral arguments in Bridge Aina Lea Dev., LLC v. Bridge Aina Lea, No. CAAP-13-0000091.

This is the state court half of the case. The federal court half is pending in the Ninth Circuit, which, after oral arguments earlier in June, decided to hold off on deciding the appeal until after the Hawaii Supreme Court issued its decision in this case. 

Both cases started off in state court in the Third Circuit (Big Island), one an original jurisdiction civil rights lawsuit, the other an administrative appeal from a decision of the State Land Use Commission. The essence of the plaintiff’s allegations is that the LUC wrongfully amended the land use boundaries from urban to agriculture. Many years earlier, the LUC had amended the boundary to urban on the condition that the owner provide a certain number of affordable…

Continue Reading HAWSCT Oral Arguments In In Bridge Aina Lea: LUC Reclassifications And Orders To Show Cause

We don’t need to tell all you non-New Yorkers that the New York Court of Appeals is the state’s highest appeals court, do we? We watched enough Law and Order to know that what most everywhere else calls a “supreme court” is the “Court of Appeals” in the Empire State.

With that out of the way, we get to today’s case, a 5-2 decision by the New York Court of Appeals in two cases where “fracking” is the issue. Or, more accurately, two municipalities which used their zoning power to ban the practice. The court allowed them to do so, holding that New York’s Oil, Gas and Solution Mining Law, which “supersede[s] all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries,” does not preempt the municipalities’ home rule zoning power. 

Wait a minute, you say, isn’t a ban on fracking a…

Continue Reading New York: Municipal Ban On Fracking Is Zoning, Is Not Preempted By State Law

Here’s a follow up to last week’s story on the “sit-lie” and “don’t use the bathroom in public” ordinances now being considered by the Honolulu City Council (see “As Judge Kozinski Said, It’s A Sidewalk, Not A Sideseat Or A Sidebed“). 

Today’s Star-Advertiser reports in “Sit-lie ban sought for all Oahu” that the scope of the ban may be expanded from Waikiki, and that the prohibition on urinating and defecating in public in Waikiki is also being proposed to include the entire City and County. In other words, island-wide. The sit-lie ban is also being considered as an all-day thing, not just the limited hours in the initial bill.

While limiting the hours and geographic scope of the sit-lie ban would seem to tacitly encourage this behavior in the off-hours and in other parts of town, the Seattle ordinance on which these things are…

Continue Reading Prohibiting Sitting Or Laying Down On Oahu’s Sidewalks 24/7 Makes Law More Susceptible To Challenge

Check this out: Vermont lawprof John Echeverria has launched a blog about “Takings Litigation.” Which, given the predilections of the author (organizer of the anti-takings conference, and recently presented with the Koontz Catatonia Award), probably should be called “Takings Defense” or the “No Takings Blog,” but who are we to say? 

Samples of recent posts:

  • “Just when you thought the Koontz litigation couldn’t get any worse (see my article, Koontz: the Very Worst Takings Decision Ever?), the Florida Court of Appeals has issued a decision in the Koontz case on remand.”
  • “Importantly, the decision [Sherman v. Town of Chester] does not cast doubt on the general rule that when a litigant initially files a takings claim in federal court, the government defendant can raise Williamson County and insist that the takings claim be litigated in state court.”
  • “One thing seems clear about this case [

…
Continue Reading New Takings Blog – “Takings Litigation”

Earlier, we posted the recording of the Ninth Circuit’s recent oral arguments in Bridge Aina Lea, LLC v. Chock, Nos. 12-15971, 12-16076, a case in which the court is considering whether State of Hawaii Land Use Commissioners have immunity from civil rights lawsuits, among other issues. The essence of the plaintiff’s allegations is that the State Land Use Commission wrongfully amended the land use boundaries from urban to agriculture. The State argued the District Court should have found the commissioners immune from suit, while the plaintiff cross-appealed, asserting the court, after abstaining, should have remanded the case to the state court where it was originally filed.

Two days after arguments were submitted, the Ninth Circuit panel unsubmitted the case and said that it would hold off on a decision pending a ruling from the Hawaii Supreme Court in the parallel state litigation (an appeal that will be argued later this…

Continue Reading Bridge Aina Lea 9th Cir Oral Argument Report: Hawaii Land Use Commission’s Immunity For Reclassification

Remember that decision by a U.S. District Court in Tampa, Florida last year that we crowed about? The court held that a county’s “Right of Way Preservation Ordinance” which allows it to land bank for future road corridors by means of an exaction is “both coercive and confiscatory in nature and constitutionally offensive in both content and operation.” 

A property owner brought a substantive due process claim, and the court first rejected the county’s argument that the substantive due process claim was not ripe under Williamson County because Hillcrest had not pursued a waiver or variance. It also concluded the Right of Way Preservation Ordinance violated the Takings Clause because it shifts the burden to disprove rough proportionality to the property owner and empowers the county to obtain land in excess of what it would otherwise get in the absence of the ordinance. The court enjoined enforcement of the…

Continue Reading 11th Circuit: Facial Challenge To Ordinance Must Be Brought When Ordinance Adopted

Here’s what we’re reading today:

  • Eminent Domain, Ultra Vires, and Adverse Possession Walk Into a Bar… – from SCOV Law, a blog about the decisions of the Vermont Supreme Court: “Get ready to dust off your nineteenth-century-property-law hats, folks, cause this case is chock-full of neglected old cases about rail beds, public trails, adverse possession, eminent domain, and railroad corporations venturing outside the realm of their existential purpose.”
  • Writ to Watch: Ruggles v. Yagong – from Rebecca Copeland at Record on Appeal, about a case which the Hawaii Supreme Court recently agreed to review. The issue is whether an ordinance adopted by the voters of the County of Hawaii (the Big Island) is preempted by state law. The initiative ordinance made it the official policy of the County to make enforcement of personal use of marijuana the lowest priority for the police and prosecutors. Oh my. The trial court

…
Continue Reading Wednesday’s Reading List: Vermont Eminent Domain, The Big Island’s Weed Ordinance, And Quo Warranto

Our thanks to Jacob Cremer for the heads-up on the Florida Court of Appeals’ decision in Ocean Palm Golf Club Partnership v. City of Flagler Beach, No. 5D12-4274 (May 30, 2014). Jacob did not post any analysis (undertstandable because his law firm is involved in the case) so we’ll add our two cents.  

Here’s the BLUF: the city’s refusal to change the zoning on a 9-hole golf course and a surrounding parcel to allow residential development did not deprive the parcels of their value, and were not a taking. 

Here’s the longer story. The case involved two parcels, one the golf course, and the other, a vacant parcel. At one time, they were a single parcel owned by a single owner, but by the time of the litigation, they had been subdivided and separately owned by two separate but related entities. Back in the day, the city…

Continue Reading Fla App: Because A Golf Course That Eventually Went Broke (And Was Later Bought By The City) Was “Profitable,” City Not Liable For A Taking