June 2013

We’ve commented on the various plans (mostly backed by a private venture capital outfit out of San Francisco) to have local municipalities seize underwater-but-performing morrtgages by eminent domain (see here and here, for example). Apparently the brainchild of Cornell lawprof Robert Hockett and sold as a “no lose” situation (see “Paying Paul and Robbing No One: An Eminent Domain Solution for Underwater Mortgage Debt“), the city of North Las Vegas was the first municipality to bite.

Yesterday, chapter 2: someone named “Gregory P. Smith” filed suit in federal court seeking to invalidate the plan. The complaint seeks declaratory and injunctive relief for violations of the Public Use Clauses of the U.S. and the Nevada Constitutions, the Due Process Clauses, the Contracts Clause, the Commerce Clause, and Nevada eminent domain statutes.

Who is Smith, and how does he have standing? We’re not sure, because…

Continue Reading It Begins: Plan To Seize Underwater Mortgages Challenged In Federal Court

Some things are constant: the speed of light, the sun rises in the east. And Professor John Echeverria, the well-known environmental lawprof, has never met a taking he’s liked.

Even if that means disagreeing in one takings case with Justice Ginsburg writing for a unanimous Supreme Court, the unanimous Court in another takings case, or, as in his op-ed in today’s New York Times, “A Legal Blow to Sustainable Development,” it means arguing that the Court’s ruling in Koontz v. St. Johns Water Management District, No. 11-1147 (June 25, 2013) says what it doesn’t necessarily say.

The op-ed merits careful reading.

First, he argues that “[t]he district made clear that it was willing to grant the permit if Mr. Koontz agreed to reduce the size of the development or spend money on any of a variety of wetlands-restoration projects designed to offset the project’s…

Continue Reading Surprise! Environmental Lawprof Dislikes Koontz

Well, the hammer finally dropped and the Supreme Court today issued its opinion in Koontz v. St Johns River Water Management District, No. 11-1447 (June 25, 2013). The opinion comes out on the next-to-last day of the Term presumably because — unlike the earlier two takings cases — Koontz was not unanimous, but was what one colleague referred to as a “classic” split in the Justices: the Chief, Kennedy, Scalia, and Thomas joining the opinion authored by Justice Alito, with the Court’s liberal wing siding at least partially with the government.

So before tomorrow’s rulings on the same-sex marriage issue suck all the air out of the room, here are our thoughts on Koontz:

  • All nine Justices agree that a property owner need not accept a permit which is subject to conditions she believes are unconstitutional in order to challenge it. This is a remarkable shift in tone

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Continue Reading Exactions: Supreme Court Right On The Money

Today, the Supreme Court issued its opinion in Koontz v. St Johns River Water Mgmt District, No. 11-1447 (cert. granted Oct. 5, 2012), holding that the nexus and proportionality standards apply to government demands for money as well as land, and that a property owner need not accept the permit in order to challenge it.

Opinion here. This is the third and final takings case the Court considered this term, which asked 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.

Disclosure: we filed an amicus brief in the case, in support of Mr. Koontz.

Here’s our thoughts on the oral arguments. More, once we have a chance to digest the opinions in detail.

Koontz v. St. Johns River Water Management District, No. 1101447 (June 25, 2013)

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Continue Reading SCOTUS On Exactions: Nollan/Dolan Apply

Mostly mising from all the anticipation over the Supreme Court’s “blockbuster” cases on same sex marriage, voting rights, and affirmative action, is the Court’s third takings decision of the term, Koontz v. St. Johns River Water Management District. Professor Ilya Somin primes the pump in this post, “Still Waiting for the Koontz Decision,” which includes links to other prognostications, including an interesting (possible) insight from lawprof Josh Blackman.

We’re also in the final planning stages for the July 12, 2013 ABA webinar on Koontz and Horne, “Supreme Court Takings: A First Look at Koontz and Horne.” Make plans and join us for a discussion of these cases by our panel of expert scholars (Professors David Callies [Hawaii] and Michael McConnell [Stanford, also arguing counsel in Horne]), and practitioners (my State and Local Government Law Section colleagues Andy Gowder and Michael Kamprath). Continue Reading Waiting For Koontz

Remember the case in which the Fifth Circuit held that a townhome association’s right to collect maintenance fees — recognized as property under state law — is not “compensable property” in an eminent domain action? In United States v. 0.073 Acres of Land, 705 F.3d 540 (5th Cir. 2013), the court held concluded that the “consequential loss rule” governed, and thus the property interest, although taken, was not compensable because the right to collect assessments was like a business loss and a frustrated contract.

Well, the townhome association has filed a cert petition, which asks the Supreme Court to review this Question Presented:

The Fifth Amendment to the United States Constitution provides that no private property shall be taken for public use without just compensation. U.S. Const. amend. V. In the present case, the United States condemned 14 of 58 properties comprising Mariner’s Cove Townhomes Association, Inc. All…

Continue Reading New Cert Petition: Is The Right To Collect Assessments A Compensable Property Interest?

Mark your calendars: On August 14-16, 2013, ALI-CLE is putting on the annual Land Use Institute. It’s in San Francisco, which is very convenient for those who may be attending the ABA Annual Meeting the week earlier. A good excuse to stay longer.

The Land Use Institute, now in its 29th year, is designed for attorneys, professional planners, public officials, developers, and academics who are involved in land use planning, zoning, permitting, property development, environmental protection, and related litigation. This cutting-edge program, comprising 16 hours of instruction, including one hour of ethics, and taught by preeminent practitioners, academics, and government officials, has well-earned its role as the most comprehensive land use continuing education program available.

Not only does the program provide critical reviews and analyses of the most important new cases, nationwide trends, state-specific concerns, and both routine and complex procedural issues, but it also offers outstanding networking opportunities…

Continue Reading Upcoming ALI-CLE Conference: Land Use Institute – Planning, Regulation, Litigation, Eminent Domain, and Compensation

Ian Lind has more on the federal lawsuit by the Hawaii Democratic Party that seeks to invalidate Hawaii’s “open primary” system. Start here at his blog (“Dem lawsuit: Bold strategy or self-inflicted injury?“), then continue to the full story at Honolulu Civil Beat (“Hawaii Monitor: Primary Politics“).

Hawaii adopted the open primary system in the 1978 constitutional convention:

The 1978 Con-Con couldn’t help being colored by the overarching political issues and debates of the day, including concerns over the kinds of government secrecy and manipulation revealed by the Watergate scandal, and Congressional investigations of government spying on citizens, which included Army spying on civilian activists in Hawaii.

The move to protect information about political affiliations was playing out against what at the time was recent political history of a president with an “enemies list” and targeted attacks against his political opponents. Both openness and personal privacy…

Continue Reading More On The Democratic Party’s “Open Primary” Challenge

This is a long one from the California Court of Appeal, Fourth District (58 pages, with an 11-page dissent), so we’re not going to go into detail. But if a local government’s conflict with an all-powerful state agency, shoreline and coastal law, or how the concept of governmental “pretext” is treated in areas outside of eminent domain law is your cup of tea, then be sure to check out City of Dana Point v. California Coastal Comm’n, No. D060260 (June 17, 2013).

Property owner created 125 lots on an oceanfront slope. On the inland side of the development is a public park built by the developer, and a public beach is on the seaside, donated by the developer. (That’s “mauka” and “makai” respectively for you Hawaii people.) Public access trails run through the development, linking the park and the beach. The city adopted an ordinance requiring the installation of…

Continue Reading Cal App Tackles Pretext … But Not Eminent Domain Pretext

image from www.osborneink.com

A slight detour into our other favorite area of law, election law and voting rights. Yesterday, the Democratic Party of Hawaii (finally, after years of hemming and hawing) pulled the trigger on a federal court lawsuit seeking to invalidate Hawaii’s “open primary” laws (Haw. Const. art II, § 4, Haw. Rev. Stat. ch. 12), asserting they violate the Party’s First Amendment freedom of association.

Here are the Complaint and the Motion for Partial Summary Judgment and Preliminary Injunction, filed yesterday.

Here’s more on the story from the Honolulu Star-Advertiser (subscription may be necessary for full content). Or, try this story from Civil Beat (although it’s just a republishing of the Party’s press release). 

Complaint, Democratic Party of Hawaii v Nago, No. CV13-00301 JMS KSC (D. Haw. 6-17-2013)

Plaintiff’s Motion for Partial Summary Judgment and Preliminary Injunction, Democratic Party of Hawaii v N…


Continue Reading Members Only: Hawaii Democratic Party Seeks Closed Primary