December 2012

There have been five amicus briefs filed supporting the Water Management District’s arguments in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012). That’s the case in which the Supreme Court is considering whether the “essential nexus” and “rough proportionality” standards of Nollan and Dolan are applicable only to exactions for land, or whether they are generally-applicable tests for all exactions.

The property owner’s brief on the merits is available here. The Water Management District’s merits brief is posted here.

The amicus briefs just filed focus on the argument that a government demand for money is not an “exaction” that even triggers takings analysis, and if it is, the multifactor Penn Central test governs, not the Nollan–Dolan test.

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Continue Reading Gov’t Amicus Briefs In Koontz: A Demand For Money Is Not An Exaction (And Even If It Is, Penn Central Is The Test)

Confirming yet again that the shopping mall is the focus of California culture, the California Supreme Court in Ralphs Grocery Co. v. United Food and Commerical Workers Union Local 8, No. S185544 (Dec. 27, 2012), held that a privately-owned walkway fronting a warehouse-type grocery store is a venue for the airing of grievances, even though it is not a “public forum” for speech under the California Constitution’s free speech provision. Thus, a labor union’s members have no constitutional rights to picket there. However, the court also held that the Moscone Act — a state statute prohibiting courts from issuing injunctions in labor disputes except in limited circumstances — protected union members’ (and no one else’s) rights to picket on this private property.

In other words, the grocery store owner has a right to exclude others from this property, but that right is trumped by the Moscone Act.

If…

Continue Reading Cal Supremes Revisit Pruneyard, But Ignore The Takings Problem

Our friend Paul Schwind has been keeping us up to date on the progress, vel non, of the federal legal challenge to the Honolulu rail project. Paul’s most recent update was on the remedy hearing, and today he provides us with a breakdown of yesterday’s short ruling on the remedy the court is imposing for the violations of section 4(f) of the Transportation Act Next step the Ninth Circuit?

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Honolulu Rail Remedy – Phasers On Minimal

by Paul J. Schwind*

The multi-billion dollar Honolulu rail project has been onlyminimally stunned by the U.S. District Court for the District of Hawaii for itsfailure to adequately study the project’s possible effects on Chinatown and MotherWaldron Park (an old urban park/playground), and for its failure to articulatethe reasons why a tunnel under Beretania Street (a major city arterial) wasrejected.

Yesterday, the court issued its Judgment and Partial Injunction in Honolulutraffic.comv.

Continue Reading Guest Post: Honolulu Rail Remedy – Phasers On Minimal

Cover_42_3_ The Summer 2012 issue of the Urban Lawyer, the law review published quarterly by the ABA’s Section of State and Local Government Law and UMKC law school is now available on-line, and includes my short article on the latest developments in public use in eminent domain law.

To download your copy, click here. The article covers the “common carrier” issue from Texas, necessity in private takings, several procedural issues including appealability of a determination that a taking is (or isn’t) for public use, and First Amendment spin-off issues related to eminent domain. (Recent Developments in Eminent Domain: Public Use,  44 Urb. Law. 705 (2012)).

If you are not already a Section member, please consider it – the included subscription to the Urban Lawyer is one of the most worthwhile benefits. Continue Reading New Article – Recent Developments in Eminent Domain: Public Use

For those of you following along with the politcal musical chairs following the death last week of Hawaii’s senior U.S. Senator Daniel Inouye, today Hawaii Governor Neil Abercrombie appointed his Lieutenant Governor, Brian Schatz, as the the temporary Senator to occupy the seat pending the selection by the voters in 2014 of a permanent replacement to serve out Senator Inouye’s term. 

This leaves the office of Hawaii Lieutenant Governor vacant, so what’s next?

The Hawaii Constitution does not establish rules of succession, and provides only that “[w]hen the office of lieutenant governor isvacant … such powers and dutiesshall devolve upon such officers in such order of succession as may be providedby law.” See Haw. Const. art. V, § 4.

Section 26-2 of the Hawaii Revised Statutes sets out the order, and the next person in line is the President of the Hawaii Senate:

(a)  When the office of…

Continue Reading Succession Rules In Hawaii

LgoIt’s time for the annual ALI-CLE (fka ALI-ABA) eminent domain conferences, to be held January 24-26, 2013 in Miami Beach, Florida.

In the “advanced” course, Eminent Domain and Land Valuation Litigation, we’ll be covering topics such as “Condemning Underwater Mortgages,” “An Engineer’s Role in Damage,” “How To Develop and Implement a Business Plan for an Eminent Domain Practice,” and “Condemnor Beware: What Activities Will Make You Liable for Pre-Condemnation Damages.” Along with Pacific Legal Foundation’s Jim Burling and Cornell lawprof Robert Hockett, I’ll be speaking on the panel about underwater mortgages. More details on the agenda and the faculty here.

The companion course, Condemnation 101: How to Prepare an Eminent Domain Case, covers the basics of eminent domain law, and although designed as an overview of condemnation law for the beginner or general practitioner, it’s a great refresher course for the seasoned eminent domain lawyer. More…

Continue Reading Upcoming ALI-CLE Eminent Domain Conferences

Here’s the respondent’s brief in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012). That’s the case in which the Supreme Court is considering whether the “essential nexus” and “rough proportionality” standards of Nollan and Dolan are applicable only to exactions for land, or whether they are generally-applicable tests for all exactions.

The respondent’s brief argues that the Water District did not demand an exaction, but merely “suggested a range of ways [the] applicant may [have] become eligible for a development permit.” Br. at 40. The brief argues that because the District could have denied the permit outright, it was fine for it to “suggest” ways that the property owner could convince it to issue the permit, without needing to show that there was some relationship between the suggested mitigation measures and the justification supporting the denial. Thus this was not merely the…

Continue Reading Brief For The Respondent In Koontz: “Mere Obligation To Spend Money Is Not A Taking”