December 2010

Cutting_edge_2010

The ABA has announced the forthcoming publication of a new book by the State and Local Government Law Section: At the Cutting Edge 2010: Land Use Law from The Urban Lawyer, edited by my colleague Dwight H. Merriam, and which is “[a]n essential resource for practitioners, planning professionals and students, this book provides information and insight into timely issues impacting land use law.”

It’s not available just yet, but is scheduled for publication on December 31, and is available for pre-order here (the usual discounts for ABA/Section members, and for law student members, apply).

I contributed a chapter, Recent Developments in Challenging the Right to Take in Eminent Domain. I received my advance copy today, and it’s a handy little volume that has the latest developments in the law relating to (among other subjects):

  • Cellular telecommunications facilities
  • Exactions and impact fees
  • Trends in green buildings laws
  • Ethical

…
Continue Reading New Book: At The Cutting Edge 2010: Land Use Law From The Urban Lawyer

11.LULHI On January 13 and 14, 2011, I’ll be leading two sessions in the fifth Hawaii Land Use Law conference. This one only comes around every two years, so this is your chance to get updated on the hottest topics by a stellar faculty.

My sessions will cover Coastal Issues (which includes shoreline boundary, takings, and the U.S. Supreme Court’s Stop the Beach Renourishment case), and Water Issues (which will cover instream flow standards, public trust and private rights, and the Maui Water cases).

The keynote speaker will be Professor Gideon Kanner, who will present “Taking a Critical Look at 30 Years of the Supreme Court’s Takings Jurisprudence.” That alone will be worth the admission price.

Also of note: the seminar includes 3.25 Hawaii MCPE ethics credits, so you can fulfill your 2011 requirements in one sitting (you can attend the ethics portion for only $195). Members of the HSBA…

Continue Reading January 13-14, 2011: Fifth Hawaii Land Use Conference

This just in: the en banc Ninth Circuit, in an opinion by Judge Kleinfeld (the dissenter from the panel opinion) has concluded that the City of Goleta’s mobile home rent control ordinance is not a regulatory taking. In Guggenheim v. City of Goleta, No. 06-56306 (Dec. 22, 2010), the majority “assumed without deciding” that the case was ripe under Williamson County, but that the property owners did not establish a regulatory taking under Penn Central. We covered the en banc oral arguments here, and our resource page on the case is here.

There’s a lot of opinion to churn through, but the core of the majority opinion is based on the notion that the Guggenheims did not have “investment-backed expectations.” Imposing what can only be called a bizarre economic and appraisal theory, the majority concluded:

Whatever unfairness to the mobile home park owner might have…

Continue Reading En Banc 9th Circuit Decides Guggenheim: Mobile Home Rent Control Ordinance Is Not A Regulatory Taking

We’re going to wrap up 2010 with a post on our favorite topic, inverse condemnation. While the Ninth Circuit ended the year badly by making hash of both Penn Central and Palazzolo in a rent control case, other federal courts of appeals aren’t so predictably off-key. The Federal Circuit, which hears appeals from the U.S. Court of Federal Claims (the court with jurisdiction to hear most claims against the federal government for just compensation), is one in which a property owner has a decent shot at getting a court that understands the issues. 

The Federal Circuit has a “bright-line rule” that the six year statute of limitations begins to run on a physical takings claim in a rail-to-trail case when a property owner’s state law reversionary interest is blocked. Caldwell v. United States, 391 F.3d 1226 (Fed. Cir. 2005) and Barclay v. United States, 443 F.3d 1368…

Continue Reading Federal Circuit: Physical Taking Is Complete When Statute Of Limitations Begins To Run

In County of Sonoma v. Superior Court, No. A128734 (Dec. 15, 2010), the California Court of Appeal, First District concluded that an equal protection challenge to the requirement in Sonoma County’s zoning code that medical marijuana dispensaries obtain a permit to operate must have been brought within 90 days of the enactment of the requirement. The court concluded that a challenge brought only after the County ordered a dispensary to stop operations was filed too late.

Since 1996, California law law has permitted “seriously ill Californians” to have access to medicinal marijuana “when recommended by a physician.” Slip op. at 2 n.2. Before 2007, the County’s zoning ordinance did not address marijuana dispensaries, which were therefore technically prohibited. In 2007, the County made dispensaries a permitted use within certain zoning districts, and required them to obtain a Use Permit.

In 2008, a dispensary that had been operating since 2003…

Continue Reading Cal Ct App: Facial Equal Protection Challenge To Zoning Ordinance Cannot Tag Along With Invalid As-Applied Challenge, Man

The Vermont Law Review has published an article authored by me and my Damon Key colleagues (and fellow law bloggers) Mark M. Murakami and Tred Eyerly. The article is an essay with our thoughts about the U.S. Supreme Court’s decision in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (June 17, 2010).

That’s the “judicial takings” case involving accretion rights and Florida’s “renourished” beaches. Disclosure: we filed an amicus brief supporting the property owners in the case. We argue in the article that despite eight Justices concluding the Florida Supreme Court’s decision in the case was not a judicial taking, the doctrine remains viable. The article suggests a roadmap for how future cases can be analyzed.

Download the pdf here, or get it below.

Of Woodchucks and Prune Yards: A View of Judicial Takings From the Trenches, 35 Vt. L. Rev. …

Continue Reading New Article – Of Woodchucks and Prune Yards: A View of Judicial Takings From the Trenches

I’m an alum of Columbia University (LLM, 1995), so I’m on the list to receive the semi-regular emails sent out by the law school and the alumni association, informing me about a recent faculty hire, or containing the latest plea to enhance the endowment.

So today, I get this from University president Lee Bollinger, about the expansion of the Morningside Heights campus. That “17-acre campus” mentioned is the one that is at the heart of the eminent domain case that only yesterday, the U.S. Supreme Court allowed to go forward:

Dear Members of the Columbia Community:

One hundred and fifteen years ago, in 1895, President Seth Low presided over a small ceremony on the new 17-acre campus known as Morningside Heights to lay the cornerstone of Low Library. He already had presciently observed that it might even take a century to build the last building. This past Friday, December…

Continue Reading Amazing: A Summary Of Columbia Expansion That Doesn’t Mention “Eminent Domain”

The Court has denied certiorari in Tuck-It-Away, Inc. v. New York State Urban Dev. Corp., No. 10-402 (cert. petition filed Sep. 21, 2010), the case about the New York State Urban Development Corporation’s attempt to take property for a new Columbia campus.

More abou the case here. Here’s the order, if you are interested.Continue Reading U.S. Supreme Court Declines Review Of Columbia Eminent Domain Case

Aliaba

Thursday-Saturday, February 17-19, 2011, come join us for the 28th annual presentation of the advanced-level ALI-ABA Course of Study, Eminent Domain and Land Valuation Litigation, and the sixth annual presentation of the basic-level ALI-ABA Course of Study, Condemnation 101: Making the Complex Simple in Eminent Domain, both at the Hyatt Regency in Coral Gables (Miami), Florida. Both courses also are offered via live webcast, available either in their entirety or in segments.

Update: Register online between December 12 and December 31, 2010, and you can get a 30% tuition break. Simply enter coupon code DECS30 when you check out to receive your discount (this includes ALI-ABA’s, live and online courses, telephone seminars, webcasts and on-demand CLE, coursebooks, DVDs, mp3s, subscriptions to periodicals, books, and all online content, including forms). This offer may not be combined with other ALI-ABA discounts, group rates or bundled products. This discount is only available for new…

Continue Reading Mark Your Calendars – Feb. 17-19, 2011: Annual ALI-ABA Condemnation Law Programs