February 2011

Anyone who is a regular reader of this blog knows Mike Berger. If you don’t immediately recognize his name just check the reports of decisions because you certainly know his cases, which include: Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency (2002), City of Monterey v. Del Monte Dunes at Monterey, Ltd. (1999), Preseault v. ICC (1990), and First English Evangelical Lutheran Church v. County of Los Angeles (1987) in the U.S. Supreme Court, and countless cases in the Federal and California Reports. A frequent speaker and law review author, Mike has been representing property owners in eminent domain, regulatory takings, and inverse condemnation cases for decades.  I have considered Mike a guide who helped me start down the land use law path ever since I read his article “Happy Birthday, Constitution: The Supreme Court Establishes New Ground Rules for Land-Use Planning,” 20 Urban Lawyer 735 (1988).…

Continue Reading “You Mean After You Call Mike Berger?” Appellate Lawyer Honored By Owners’ Counsel

In a recent op-ed, Tennessee attorney Jeremy Hopkins

Al-Qaida, the Klan and property activists? (Jan. 20, 2011) 

A Virginia Department of Emergency Management’s training manual (“Terrorism & Security Awareness Orientation for State Employees”) has labeled “property rights activists” as terrorists.

The manual contains a list of “Terrorist Organizations,” and includes Hamas, al-Qaida, and Hezbollah; street gangs; racist, separatist, and hate groups; and, shockingly, “property rights activists.” They were listed as terrorists because they “undermine confidence in the government” and “influence government or social policy.”

After members of the public became aware of the manual and a legal organization sent a letter to the governor, Virginia replaced “property rights activists” with “property rights extremists: anti-eminent domain.” So, Virginia’s current manual still lists citizens who oppose the government’s use of eminent domain as terrorists.

While the use of eminent domain in accordance with constitutional standards is appropriate, the manual’s characterization of…

Continue Reading Property Rights As Constitutional Rights, Civil Rights

The Washington Supreme Court held that a state statute allowing relocation benefits to property owners displaced by an exercise of eminent domain does not impliedly allow the property owner to recover prejudment interest on the award:

This case involves whether interest is allowable as part of an award of relocation assistance benefits under the relocation assistance—real property acquisition policy (Relocation Act), chapter 8.26 RCW. Division Three of the Court of Appeals held that Union Elevator was entitled to interest on its award of relocation assistance benefits because the Relocation Act impliedly waived the State’s immunity from interest as part of the broad range of financial assistance available under the act. We hold that the Relocation Act cannot reasonably be construed to waive sovereign immunity for interest on relocation assistance awards and reverse the Court of Appeals.

Union Elevator & Warehouse Co. v. State of Washington DOT, No. 83771-6, slip…

Continue Reading Washington S Ct: Eminent Domain May Cause Relocation, But Relocation Benefits Statute Cannot Be Read Together With Eminent Domain Statute

Michael Galinsky, Suki Hawley, and David Beilinson, the makers of “Battle of Brooklyn,” a documentary about the controversial Atlantic Yards project, screened a rough cut of their film last night at the American Law Institute-American Bar Association’s eminent domain law conference. It’s an inside look at one property owner at the business end of eminent domain.

This morning, I had a chance to sit down briefly with Michael in the lobby of the Hyatt Coral Gables and talk about what brought this film about. 

(24 minutes)

Stream the podcast above, or download it here (33mb mp3).

Here’s a summary of “Battle of Brooklyn” —

The film is the only intimate look at the very public and passionate fight waged by owners and residents facing condemnation of their property to make way for the controversial Atlantic Yards Project, a massive plan to build 16 skyscrapers and a basketball…

Continue Reading Interview With The Filmmaker: Michael Galinsky On “Battle of Brooklyn”

AliabaAt today’s ALI-ABA annual conference on eminent domain law in Coral Gables, Florida, Tony Della Pelle (NJ Condemnation Law blog) and I (in a session moderated by Nancy Myrland) presented “The ‘Social’ Lawyer: New Media Strategies for Marketing Your Eminent Domain Practice,” about how eminent domain attorneys can use social media for business development or simply to keep up on the latest cases. For those of you who were with us in person or on the webcast, here are some of our favorite law blogs. And, if you couldn’t join us, you really should consider it next year since the conference features stellar faculty, all experts in the field of condemnation and eminent domain law.

These are the essential blogs in our area of practice:

  • Gideon’s Trumpet – this blog, published by Gideon Kanner, is the equivalent of a nonstop eminent domain conference, since Gideon shares his

…
Continue Reading Eminent Domain & Property Law Blogs From Today’s ALI-ABA Session

This just in: the U.S. Court of Appeals for the Federal Circuit has issued an opinion in Klamath Irrigation District v. United States, No. 2007-5115 (Feb. 17, 2010), a case we’ve been watching.

I’m at the ALI-ABA conference on eminent domain in Coral Gables, Florida, so won’t have the chance to digest and summarize the rather longish opinions (34 page majority, 8 page concurring) for a few days, but I wanted to get it out so blog readers could review it while I’m tied up teaching at the conference.

The Federal Circuit vacated the Court of Federal Claims’ dismissal of the plaintiffs’ takings and breach of contract claims. It sent the case back to the CFC to allow the plaintiffs the opportunity to prove they possess water rights under Oregon law. The CFC had concluded that they did not, but on appeal, since whether an owner possesses Fifth Amendment…

Continue Reading Federal Circuit: Water Rights, Once Proven, Are Fifth Amendment “Property”

There are some cases where, after reading the majority and dissenting opinions, you understand that the judges are on the same page but just have a differing view of the law. However, there are opinions where there seems to be a severe disconnect between the majority and dissent because they address different arguments and advance completely different “narratives” (to use the current parlance).

We don’t know if that’s what led the Texas Supreme Court to accept review of Texas Rice Land Partners, Ltd. v. Denbury Green Pipeline-Texas LLC, No. 09-09-002-CV (Tex. Ct. App. Sep. 24, 2009) last week, since the issue as recounted by the court of appeals’ majority opinion dealt with the seemingly straightforward question of whether a carbon dioxide pipeline operator qualified as a common carrier because it completed the statutory steps, and consequently could exercise the power of eminent domain. The dissenting opinion disagreed, but not…

Continue Reading https://www.inversecondemnation.com/2011/02/texas-supreme-court-to-hear-case-on-common-carrier-status-and-private-takings.html

The makers of “Battle of Brooklyn,” a documentary about the controversial Atlantic Yards project, will present preview screengs of their film later this week at the upcoming American Law Institute-American Bar Association’s eminent domain law conference (Eminent Domain and Land Valuation Litigation, and Condemnation 101: Making the Complex Simple in Eminent Domain,) in Coral Gables, Florida. Here’s a summary:

The film is a close-range look at the fight to stop condemnation waged by property owners and residents living in the footprint of the Atlantic Yards Project, a massive real estate development proposal to build 16 skyscrapers and a basketball arena for the New Jersey Nets in the heart of  Brooklyn. 

Daniel Goldstein’s apartment sits at what would be center court of the new arena.  He is dragged into the fight because he simply can’t believe that the government should use the power of Eminent Domain to take his property and hand it…

Continue Reading Preview Of Eminent Domain Doc “Battle of Brooklyn”

The U.S. Supreme Court has agreed to decide a case about whether state laws which require elected officials to recuse themselves from considering matters on which they appear to have conflicts of interest, impermissibly infringe upon the officials’ First Amendment rights.

This issue has wide-ranging importance to the players in the land use arena since the Court’s ruling has the potential of invalidating (or subjecting to serious challenge) state and local regulations nationwide which govern conduct of members of city and county councils and boards of supervisors, planning commissions, zoning boards of appeals, and similar state and local government bodies. 

In Comm’n on Ethics of the State of Nevada v. Carrigan, No. 10-568 (cert. granted Jan 7, 2011), the Nevada Supreme Court invalidated a Nevada law which required a Sparks, Nevada city councilmember to recuse himself from considering an application to develop a hotel/casino because the developer’s “consultant” was…

Continue Reading U.S. Supreme Court To Decide Whether A Councilmember With A Conflict Of Interest Has a First Amendment Right To Vote Anyway