August 2013

The U.S. Court of Appeals for the Eleventh Circuit, in Temple B’Nai Zion, Inc v. City of Sunny Isles, No. 12-12094 (Aug. 29, 2013), held that the Williamson County ripeness doctrine did not prevent the Temple from bringing its RLUIPA (and related) claims in federal court. 

The right result for sure. But wait, you say, isn’t Williamson County a ripeness rule for takings claims? After all, it supposedly is based in the language of the Fifth Amendment (the taking isn’t unconstitutional until just compensation has not been paid, and there’s been no “taking” until the government has made a final decision)? No matter, several courts have extended the Williamson County doctrine beyond takings claims, requiring plaintiffs in free speech, due process, and religious land use cases to exhaust administrative remedies before they come to federal court.

The Eleventh Circuit rejected the defense, but not because Williamson County simply doesn’t…

Continue Reading 11th Cir: RLUIPA Case Not Unripe Under Williamson County

According to this story in the San Francisco Chronicle, “Eminent domain plan may have spooked investors,” Richmond, California’s plan to take underwater mortgages by eminent domain “Wall Street spurned its efforts to refinance its highly rated municipal bonds [A-minus rating], an unusual snub that cost the city nearly $4 million in lost savings.”

“Paying Paul and robbing no one”, indeed. Continue Reading Well, Who Didn’t See This Coming?

Just over a month ago, the U.S Court of Appeals for the Fourth Circuit held that a federal takings case could actually proceed in federal court. Well yesterday, the same court issued a similar opinion in a related case, Town of Nags Head v. Toloczko, No. 12-1537 (Aug. 27, 2013).

We won’t go into detail because this post, by J. David Breemer at Pacific Legal Foundation (who also is counsel for the prevailing property owners) sets it all out very well.  But the decision involves abstention (Federal Courts law school flashback), Williamson County, and  beaches and public trust, so it’s well worth a read on its own.

If that doesn’t grab you, then nothing will!

Town of Nags Head v. Toloczko, No. 12-1537 (4th Cir. Aug. 27, 2013)


Continue Reading 4th Cir (Again): Federal Takings Claim Should Be Heard In Federal Court

Word comes that the California Supreme Court has denied review of the Court of Appeal decision in Lockaway Storage v. County of Alameda, No. A30874 (1st Dist. May 9, 2013). The court also rejected a request to “depublish” the First District’s opinion. Congratulations are again in order for colleague Tim Kassouni, who represents the property owners. 

Lockaway is the case in which the First District upheld the trial court’s finding of a Penn Central taking, affirming that the County of Alameda is liable for a temporary regulatory taking, and awarding the property owners nearly three-quarters of a million in attorney fees. This means the only avenue left open is a cert petition to the U.S. Supreme Court. If the County does so, it will probably have as much luck as the private property bar with convincing the Court to take a Penn Central case.

Here’s the (now-denied) Petition …

Continue Reading Cal Supremes Deny Review In Property Owner Penn Central Victory

Here’s the latest in one of the federal lawsuits by the mortgage holders challenging Mortgage Resolution Partners and Richmond, California’s scheme to seize underwater mortgages by eminent domain.

On August 8, 2013, the plaintiffs filed a motion for a preliminary injunction (scheduled to be heard in San Francisco on September 13, 2013), which asks the District Court to stop MRP/Richmond from “taking any further action to implement their program to seize residential mortgage loans through eminent domain (the “Richmond Seizure Program”) with respect to any mortgage loans held in residential mortgage-backed securitization trusts for which Plaintiffs serve as trustees …”  The supporting memorandum of law fleshes out the claims made in the Complaint (summarized here), arguing that the seizure program allows MRP to “hand-select[]” which mortgages to take, that it tries to take property located outside the physical boundaries of Richmond, that any taking would be for private…

Continue Reading Preliminary Injunction Briefs In Richmond Underwater Mortgage Takings Challenge

In Rockies Express Pipeline LLC v. 4.895 Acres of Land, No. 12-3069 (Aug. 15, 2013), the condemnor was a gas pipeline company delegated the power of eminent domain under a federal certificate of public convenience and necessity, and the property owners were the owners of several coal mines.

They disagreed about the danger posed to a surface pipeline by coal mining. The pipeline company thought there wasn’t a problem, the coal companies thought otherwise. They  believed that once the pipeline was operational, the agencies that regulated coal mining would either delay or deny the required coal extraction permits and ultimately drive them out of business, even though under Ohio law the coal companies had a right to subside the surface. So the coal companies accelerated their coal mining, and eventually sought to recover from the condemnor pipeline company the costs associated with doing so.

Applying Ohio law (condemnations under…

Continue Reading 6th Cir: Coal Company Did Not Show It Was “Reasonably Foreseeable” That Coal Regulators Would Deny Mining Permits To Prevent Danger To Gas Pipeline

13.EMDHI

Here are links to the cases and other materials (and more) we spoke about at today’s conference on Eminent Domain and Condemnation in Hawaii:

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Continue Reading Materials From Today’s Eminent Domain In Hawaii Conference

Check this out: according to a story in yesterday’s San Francisco Chronicle (“Pricey homes in Richmond’s eminent domain plan“), someone has figured out exactly which properties in Richmond, California are going to get “helped” by Mortgage Resolution Partners and the city in their plan to take underwater mortgages by eminent domain.

Seems like some of these properties are not exactly blighted (remember, the public use hook being used by MRP/Richmond is that the underwater properties create blight and are the source of the ills the city suffers). According to the story, included within the targeted properties are “at least two homes purchased for over $1 million as well as other high-end properties – a revelation that appears to undermine the city’s argument that the plan would combat blight.”

Oops.

MRP’s response? “We don’t discriminate against anyone in this program” said Steven Gluckstern, chairman. Seems like both the rich…

Continue Reading Berman. Poletown. Kelo. Richmond. When Will They Ever Learn?

Your mission Dan, should you decide to accept it, is to review the competing op-eds about Mortgage Resolution Partners-backed plan for municipalities to take underwater mortgages by eminent domain, and decide which ones are good, and which ones are full of it. 

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Continue Reading Mortgage Taking Tuesday – Mission: Impossible?

Please join us this upcoming Monday, August 19, 2013 from 1:00 – 2:30 p.m. Pacific Time for a telebriefing, “Regulatory Takings Claims in California – Implications of Recent Decisions and Advice for Practitioners and Government Agencies.”

Brad Kuhn (Nossaman, California Eminent Domain Report) is the program Chair and will serve as moderator, and Timothy Kassourni (Kassouni Law) will give us more details on his recent big win in a case under the Penn Central test. I’ll be talking Koontz and the Ninth Circuit’s latest foray into regulatory takings challenges to rent control.

It promises to be a fast-paced and informative hour, and there’s much here for the non-California practitioner. More information here (from Brad’s blog), and registration information is posted here. Continue Reading Telebriefing: Regulatory Takings Claims In California