July 2013

A coalition of law professors including property law scholars Richard Epstein, James Ely, and Ilya Somin, along with the Cato Institute have filed an amicus brief supporting the cert petition in Mariner’s Cove Townhomes Ass’n v. United States, No. 12-1453 (cert. petition filed June 12, 2013).

That’s the case in which the Fifth Circuit held that the association’s right to collect maintenance fees, recognized as property under Louisiana law, was 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.

The Cato/lawprofs’ brief argues:

By adopting the minority view in the split among the circuits and the States, the Fifth Circuit’s…

Continue Reading Lawprofs’ Amicus Brief: Townhome Association’s Right To Collect Assessments Is A Compensable Property Interest

This really was a “blockbuster” Term for the Supreme Court and takings law: no less than three cases (and four, maybe five, if you expand it slightly to include property-owner favorable cases such as Lozman and last term’s Sackett), and as Gideon Kanner noted recently, the CLE sessions are flying fast and furiously.

Here’s another one, with a great angle: our ABA colleague Ed Thomas, President of the Natural Hazard Mitigation Association and the guy who knows just about everything there is to know about disaster preparedness, disaster response, and property rights, is speaking tonight (Tuesday, July 16, 2013, 7:00 pm MT) along with BYU lawprof Lisa Grow Sun, about the Supreme Court’s takings cases:

This session will explore the legal landscape for community development and hazard mitigation/climate adaptation. Specifically, there has been tremendous press coverage of many U.S. Supreme Court decisions this term. One…

Continue Reading Today’s Free Webinar – Mitigation Options Affected by the Supreme Court in 2013: Koontz and Other Game Changers

Here’s one not to miss, not only because it’s free, but because it features our PLF colleague Paul Beard II, arguing and prevailing counsel in Koontz v. St. Johns River Water Mgm’t Dist., No. 11-1447 (June 25, 2013): on Wednesday, July 17, 2013, from 2:00 – 3:30 pm ET, Greenberg Traurig and PLF are sponsoring a live chat:

In Koontz, one of the most important Takings Clause cases in recent years, the U.S. Supreme Court held that the doctrine of  unconstitutional conditions established in the Nollan and Dolan cases applies to all land use permit applications – even if the excessive condition leads to a permit denial, and even if the condition involves the payment of money rather than dedication of real property. This extension of Nollan/Dolan principles has far reaching implications for real estate, environmental, and other federal and state permitting actions. The significance and implications…

Continue Reading Upcoming Live Chat: Koontz – How Far Has Nollan/Dolan Been Extended

Late last year, we posted the Complaint in a federal court lawsuit originating on Kauai. In that case, the owner of a property that has been designated for resort development for 35 years asserted that the adoption of a Charter amendment by the County’s voters and a follow-on ordinance adopted by the County Council that together created a new land use classification (“transient accommodation unit”), and severely limit the number of TAU’s was an attempt to restrict the number of visitors and part-time residents.

The Complaint contains three major allegations: (1) the measures are arbitrary and capricious and violate substantive due process as an attempt to limit visitors, (2) they violate the Hawaii Zoning Enabling Act (Haw. Rev. Stat. § 46-4, the state statute delegating zoning authority to the counties in certain areas for all you land use nerds), which prohibits adopting of zoning ordinances by initiative, and…

Continue Reading Hawaii Federal Court: Kauai Charter Amendment Limiting Vacation Rentals Is A Prohibited “Zoning Initiative”

On Wednesday, July 17, 2013, from 4:00 – 5:30 pm ET, I will be a panelist in the American Planning Association’s above-titled teleconference.  The session was put together by our ABA and OCA colleague Dwight Merriam, and in additon to Dwight and me, includes Professors David Callies (U. Hawaii) and Carol Brown (U. Richmond), John Baker, an attorney with Greene Espell in Minneapolis, and our ABA colleage and fellow U. Hawaii alum Julie Tappendorf.

Here’s the description of the program:

The U.S. Supreme Court ended its term with a decision that will change planning and regulation — but by how much, and will the change be for better or worse? Koontz v. St. Johns River Water Management District is the most important planning law case in nearly a decade, and already there is widespread disagreement about what it means.

A diverse panel of land use lawyers will examine…

Continue Reading Upcoming Teleconference: Lessons from Koontz – Game Changer or Just a Little Rule Refinement?

Update: From the July 13 WaPo: As Wal-Mart threatens to walk, what’s next for a dying shopping center? (“The Skyland Shopping Center in Southeast Washington is amost dead. Shops are shuttered and windows broken.” Gee, we wonder why?). See also Gideon Kanner’s thoughts on the story at “Another Kelo Case in the Marking?”

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You remember the Skyland redevelopment project in Washington, D.C., don’t you? That’s the one we’ve covered before, which has resulted in boocoo court decisions, most of them unfavorable to the small property owners whose businesses were considered “blighting factors” to the surrounding area, and thus stood in the way of a redevelopment project coveted by the city fathers and mothers. See DeSilva v. District of Columbia, No. 10-CV-1069 (Feb. 24, 2011); Rumber v. District of Columbia, 487 F.3d 941 (D.C. Cir. 2007); Franco v. National Capital Revitalization Comm’n, 930 A.2d…

Continue Reading If This Wasn’t So Depressing (And Predictable), It Might Be Funny

It’s easy to report when you win a case, not so easy when you … don’t (at least not yet).

That’s the result in this stage of the Hawaii reapportionment case, as yesterday, a three-judge U.S. District Court denied the plaintiffs’ motion for summary judgment and entered summary judgment for the state defendants. We represent the plaintiffs by the way. Here’s the court’s Opinion and Order Denying Plaintiffs’ Motion for Summary Judgment and Granting Defendants’ Motion for Summary Judgment.

We won’t comment on the case, but we can repeat what we told the papers:

We always believed that the issues in this case merited resolution by the U.S. Supreme Court. We were hoping that a favorable decision from the Hawaii District Court would save us from taking it further, but alas no. While we have not finished reviewing the Hawaii District Court’s rationale in detail, everything we’ve…

Continue Reading Three-Judge District Court: No Equal Protection Violations In Excluding Military From Reapportionment Population, Or in 44% Deviation

We’ve been offline for a few days, but wanted to pick up this decision in an important case we’ve been following about the valuation of protective dunes on the Jersey Shore, and general and special benefits.

In Borough of Harvey Cedars v. Karan, No. 070512 (July 8, 2013), the New Jersey Supreme Court held that a jury is entitled to determine whether the diminution in value caused by construction of barrier dunes on private property, which block the view of the owners and thus must be compensated, can be offset by claimed special benefits by the dunes to the property. The Borough asserted that the dunes resulted in special protection to the property, and enhanced its value. The intermediate appellate court held that the Borough’s evidence was not admissible, but the Supreme Court reversed.

As reported by the New York Times:

They are “waiting for the good old…

Continue Reading New Jersey: Dunes That Protect Everyone Get Paid For By A Few

Another date to save on your calendar: the 2014 Conference of the International Academic Association on Planning, Law, and Property Rights will be held from February 11-14, 2014 in Haifa, Israel, at Technion-Israel Institute of Technology. The Conference will include the usual presentations, plus day-long workshops, and excursions. You don’t need to be a PLPR member (although joining is free), nor do you have to be an “academic.”

We attended the 2013 PLPR Conference in Portland, and it was well worth it. The message of PLPR is “Planning matters. Law matters. Property matters,” and the 2013 Conference delivered, with presentations on those topics with an emphasis on international practices.

The 2014 event is chaired by Professor Rachelle Alterman, who, among other accomplishments, edited Takings International (2010), a book our ABA Section published that is a comparative study of how what we call regulatory takings are treated worldwide.

Continue Reading 2014 Planning, Law, And Property Rights Conference – Haifa

Here’s one we’ve been meaning to post for a few days because it involves the nuts-and-bolts of eminent domain and inverse condemnation work — the calculation of just compensation and damages, and another victory for colleague Thor Hearne.

In a rails-to-trails taking case our of Florida, McCann Holdings, Ltd. v. United States, No. 07-4261 (June 27, 2013), the Court of Federal Claims awarded $3.1 milllion for the taking, which the government claimed was valued at only $825,000. 

We won’t walk through the entire case, but the court’s Opinion and Order is a very good roadmap for how to calculate severance damages in a partial taking of an easement.

Here’s more about the decision from the local paper.

McCann Holdings, Ltd. v. United States, No. 07-4261L (Fed. Cl. Jun 27, 2013)


Continue Reading CFC Provides Roadmap For Proving Damages And Just Compensation