July 2009

AMTRAK

Years ago, during a brief foray in the army, we employed a pretty simple job description: shoot, move, and communicate. This same axiom is an apt summary of our core mission as lawyers: win the case, go where the action is, and keep in contact — both with clients and the public.

The old job summary resurfaced this week as I was yet again on the road, this time to the ABA Annual Meeting in Chicago. This trip, however, deviated from the norm. Rather than fly, I decided to travel Old School: Amtrak’s California Zephyr from San Francisco to Chicago. It had been awhile since I’d been on a long-distance train trek and I was no longer sure what to expect, especially since the world does not pause while I take two and a half days to cover the same distance as a four-hour flight.

It turned out…

Continue Reading “Shoot, Move & Communicate” En Route To The ABA Annual Meeting

In Cloverleaf Realty of New York, Inc. v. Town of Wawayanda, No. 07-3405-cv (July 15, 2009), the Second Circuit held that a dismissal by a state court on statute of limitations ground does not preclude the plaintiff from bringing the same claim in a federal court which has a longer statute of limitations.

Needing to fund water and sewer improvements, the town approved an improvement district which included Cloverleaf’s two parcels. The taxes were assessed ad valorem (on the assessed values of the properties). Notice of the hearing regarding objections was published in the newspaper. After Cloverleaf paid the taxes under protest, it brought an action in New York state court seeking to declare the town’s assessments of Cloverleaf’s property illegal on two grounds. First, that the assessments should have been made on a “benefit basis” — taxation based on each parcel’s proportional share of the benefits — and…

Continue Reading PING: Immigration Adviser in BarkingURL: http://bleacherreport.com/users/1955859-hamza-terkildsenIP: 217.27.150.230BLOG NAME: Immigration Adviser in BarkingDATE: 02/04/2013 12:32:30 AMinversecondemnation.com: Second Circuit: State Court Statute Of Limitations Dismissal No Bar To Federal Claim

When considering a redevelopment authority’s condemnation of what is assumed by all litigants to be a valuable leasehold interest, how does a court determine the lessee is owed nothing, and conclude that nothing is “just” compensation (and indeed, the lessee must pay back the compensation it was previously paid, plus interest)?

Eminent domain mavens already know the answer: the “undivided fee” rule. You know, the doctrine that holds the whole is lesser than the sum of its parts.

The undivided fee rule is a legal fiction requiring a trial courtto ignore reality — when property is heldby more than one interest, valuation is determined as if a single ownerpossessed everything, and the condemnor is not required to compensate eachseparate interest in the property. For example, ifa condemned building is being leased to tenants, compensation ismeasured by the value of the undivided fee simple absolute value of thebuilding, not…

Continue Reading Wisconsin Supreme Court: The Whole Is Lesser Than The Sum Of Its Parts

Mr. Thomas, along with his colleagues in Damon Key’s Land Use Group, is one of the preeminent land use lawyers in Hawaii.

He focuses on issues involving appeals, regulatory takings, eminent domain, water rights, land use (zoning and planning), shoreline issues, navigational servitudes, and voting rights.

He has tried cases and appeals in all levels of Hawaii courts and administrative agencies including county planning commissions, county zoning boards of appeals, and the State Board of Land and Natural Resources.  He has also tried cases and appeals in California and the federal courts, including the Court of Federal Claims.

Mr. Thomas received his LLM, with honors, from Columbia Law School where he was a Harlan Fiske Stone Scholar, and his JD from the University of Hawaii School of Law where served as editor of the Law Review. 

Robert has been selected by his peers to be included in

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Continue Reading Robert H. Thomas

In a notable case worth following, the Hawaii Intermediate Court of Appeals is considering a new appeal involving whether a per se regulatory takings claim is ripe under Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), and whether in order to ripen a takings claim, a property owner is obligated to seek a legislative change to the regulations applicable to the property.

In Leone v. County of Maui, No.29696, the trial court refused to consider a property owner’s claim that state law and local regulations resulted in a regulatory taking of beachfront property on the south shore of Maui. The Opening Brief filed by the property owner is available here.

The case involves an undeveloped 1/2 acre beachfront parcel, one of 11 similarly-situated lots. The zoning on the property is “Hotel-Multifamily,” which permits residential use. The Community Plan (Maui County’s…

Continue Reading Must A Property Owner Seek A Change In The Law In Order To Ripen A Takings Claim?

“Would that John Adams could rise from his grave tospeak for the VFW, and for property rights in twenty-firstcentury America. I believe he would observe that, if the VFW’sproperty can be taken without compensation, no property issecure.”

So says the dissenting Justice in City of Milwaukee Post No. 2874 Veterans of Foreign Wars of the United States v. Redevelopment Authority of the City of Milwaukee, No. 2006AP2866 (July 17, 2009), a case in which a sharply divided court (4-3-1) held that under the “unit rule,” the VFW’s property was worthless and the VFW was not entitled to the $300,000 just compensation award.

More detail to follow after a chance to digest the various opinions.

Update: our complete summary of the opinion is posted here.Continue Reading Wisconsin Supreme Court: Property Valueless, So Lessee Not Entitled To Compensation

We’ve been loosely following the Senate Judiciary Committee’s hearings on the nomination of Judge Sonia Sotamayor as an Associate Justice of the Supreme Court, and reading selected testimony and commentary on the subject. We say “loosely” since confirmation hearings are more political theater and an opportunity for each side to educate the public about its vision of judicial review and constitutional law, than about actually vetting the nominee.

Here’s a sampling, followed by some thoughts:

  • She’s Lying by Paul Campos – “Even some liberals are frustrated by Sonia Sotomayor’s carefully plotted answers this week. The Daily Beast’s Paul Campos on how she’s denying the truth about our legal system.”
  • Written testimony of Lawprof Ilya Somin (Geo. Mason University) – “As President  Barack Obama has written, ‘[o]ur Constitution places the ownership of private property at the very heart of our system of liberty.’ The protection of property rights was one of

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Continue Reading Do Judges “Make” Law? The Sotomayor Nomination And The Beachfront Takings Case

What do you call an appeal in which the Supreme Court doesn’t address any of your five questions presented?

If you are the petitioner’s attorneys in Save Diamond Head Waters LLC v. Hans Hedemann Surf, Inc., No. 27804 (July 13, 2009), you’d call it “victory.”

In that case — which was being considered by the Hawaii Supreme Court on secondary cert review — the petitioners asserted the Intermediate Court of Appeals “gravely erred” (see Haw. Rev. Stat. § 602-59(b)(1)) when it held the Director of the Honolulu Department of Planning and Permitting was within his authority when he concluded a surf school’s use of a space in a hotel lobby would be a valid nonconforming use if the school adhered to certain conditions imposed by the Director.

Usually, cases about nonconforming uses aren’t exactly the most interesting to read. Commonly known as “grandfathering,” and…

Continue Reading HAWSCT On Nonconforming Uses: You Can’t Change What You Didn’t Establish

Little-pink-houseThe National Constitution Center regularly posts “We The People Stories,” podcasts of “nationally recognized leaders debating and discussing the Constitution.”

The latest is about Kelo and eminent domain, and is well worth a listen.

Here’s the summary:

A conversation about Kelo v. City of New London four years after the Supreme Court’s highly controversial 5-4 decision involving the use of eminent domain to transfer land from one private owner to another to further economic development. Since the 2005 decision, 40 states have passed legislation limiting the state government’s power of eminent domain for economic development. In practice, however, solutions have proven elusive. Guests include investigative journalist Jeff Benedict, author of Little Pink House: A True Story of Defiance and Courage, and attorneys Brian Blaesser and Scott Bullock. Veteran Supreme Court correspondent Lyle Denniston moderates. Program recorded on 06/10/2009.

The mp3 is posted here. More on Little Pink Continue Reading National Constitution Center Podcast On Kelo