November 2014

We’ve been over this territory before:

And now, in an effort to convince New York City to go down the lets-take-underwater-mortgages-by-eminent-domain path, Cornell lawprof Robert Hockett, whose brainchild this is, has published “‘We Don’t Follow, We Lead’: How New York City Will Save Mortgage Loans by Condemning Them” (Nov. 29, 2014) in the Yale Law Journal Forum. From the piece’s Introduction:

Many cities across the nation have begun to consider exercising their eminent…

Continue Reading Yet Another Effort To Justify Taking Mortgages By Eminent Domain

Here’s another one of those police power vs. takings cases, again involving governmental liability for destroying property supposedly in order to save it. We think the Alaska Supreme Court’s decision in Brewer v. Alaska, No. 14-916 (Nov. 28, 2014) got the analysis right, and properly shifted the focus in these cases from the government’s police power reasons for taking the actions which it did, to whether those actions were within the scope of the necessity doctrine.

Like others, Brewer involved landowners suing the government for setting fires on their land to stop or prevent wildfires (such as this case from the Federal Circuit). In Brewer, the land was designated for “aggressive initial attack” in the event of a fire. In 2009, the “Railbelt Complex” wildfire approached the properties, at which point, the state set fire to vegetation around the owners’ homes to deprive the fire of fuel. When the…

Continue Reading Alaska: Police Power Not A Blanket Exception To Takings Liability – State May Be Liable For Backfires

Here’s the Brief in Opposition filed by the city Kentner v. City of Sanibel, No. 14-404, the case asking the Supreme Court to review an 11th Circuit decision in which the court concluded that riparian rights, although recognized by Florida as property rights, are not “fundamental rights” protected by the Due Process Clause. The court concluded that the City’s ban on the construction of docks and piers (except, apparently, city-owned docks and piers) was not subject to due process review because the plaintiffs’ riparian rights are not fundamental rights because they are merely “state-created” rights. 

The property owners filed a cert petition, and we joined an amicus brief in support. Quite naturally, the BIO doesn’t agree with our view of the issues, and phrases the Questions Presented this way:  

(1) Whether a riparian landowner’s “qualified” right to construct a dock on adjoining state-owned submerged lands is a “fundamental&rdquo…

Continue Reading BIO In Riparian Rights Due Process Case

The Hawaii Supreme Court has issued a lengthy opinion in a case we’ve been following, DW Aina Lea Development, LLC v. Bridge Aina Lea, LLC, No. SCAP-13-0000091 (Nov. 25, 2014). 

The litigation is a series of two lawsuits that originated in state court in the Third Circuit (Big Island), one an original jurisdiction civil rights lawsuit, the other an administrative appeal, the latter being the case in which the Supreme Court just ruled.

The essence of the plaintiff’s allegations is that the State Land Use Commission wrongfully amended the land use boundaries from “urban” back to to “agriculture.” Many years earlier, the LUC had amended the boundary to urban on the condition that the owner provide a certain number of affordable units by 2006. In 2008, the developer had not fully done so and the LUC ordered it to show cause why the land classification should not revert to…

Continue Reading HAWSCT: Land Use Comm’n Can’t Rescind A Re-zoning Via Truncated Procedures

Check out this story from today’s Greensboro/Winston-Salem (NC) News-Record, “DOT’s long road to nowhere angers property owners” about the practice in North Carolina of using “protected corridors” to designate property under the state’s Transportation Corridor Official Map Act for future highway use, but then not condemning and paying for the land (while preventing the owners from making any use of it). 

We posted about the NC Supreme Court’s decision in one of those cases, where the court concluded that the property owners could not litigate it as a class action, but must do so in individual cases (800 of them!). Another post on the Map Act cases here (“Lines On A Map” Or Inverse Condemnation: How Long Can A Taking Be Only ‘Planned’ But Not Executed?“). 

The News-Record story is a good read, and a quick summary; recommended reading. It doesn’t hurt that the…

Continue Reading N.C.’s Map Act: Clouding Use By Condemnation On The “Long Road to Nowhere”

The use of eminent domain for energy transmission corridors has become a hot topic lately. See, for example, the following posts:

The current center of the controversial issue is the TransCanada Keystone XL pipeline, and there’s been a lot of dis- and mis-information generated. Even Jon Stewart got in on the act.

So it was with relief that we have a new article by our Owners’ Counsel of America colleague William Blake, a partner in the Lincoln office of Nebraska law…

Continue Reading A Clear-Eyed Explanation Of The TransCanada Keystone XL Pipeline Eminent Domain Issue

There’s still time to register for tomorrow’s American Planning Association (Planning and Law Division)’s webinar, Fair Housing, Affordable Housing, and Local Planning and Zoning: Understanding the Obligations and Reducing Your Community’s Legal Risk. Here’s the description:

The Planning and Law Division of the American Planning Association is pleased to host the upcoming webcast Fair Housing, Affordable Housing, and Local Planning and Zoning: Understanding the Obligations and Reducing Your Community’s Legal Risk on Tuesday, November 25th from 2:00 to 3:30 PM EST. Registration is $20 for PLD members, $40 for nonmembers, and $45 for webinar registration plus a Planning and Law Division membership. Presented by Don Elliot of Clarion Associates and Brian Connolly of Otten, Johnson, Robinson, Neff & Ragonetti, this webcast explores the connection between local land use regulation and the federal Fair Housing Act.  

Register here. Continue Reading Upcoming APA Webinar On Affordable Housing

Here’s the audio of the recording of the ABA talk we did last week on the Starr International v. USA takings case, “Taking AIG Without Compensation: The $40 Billion Question,” now ongoing in the Court of Federal Claims. The materials and links referred to in the talk are available here. If streaming doesn’t work for you, download the mp3 here.

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Links From Today’s ABA Talk On The AIG Bailout Takings Case
Testimony to end in AIG lawsuit

Continue Reading Audio Of ABA Talk On Starr International v. United States Trial: Taking AIG Without Compensation – The $40 Billion Question

For those of you who couldn’t join us at the William & Mary Law School last month for the Brigham-Kanner Property Rights Conference (see our report here), the law school has made videos of the four panel presentations available here. 

They’re high quality videos, so be prepared for big downloads, but the presentations are worth it. While they are all good, our favorite was the impromptu discussion/debate during the third panel, “Balancing Private Property and Community Rights,” featuring panelists Kames Burling (Pacific Legal Foundation), Professors Richard Epstein (NYU), Steven Eagle (Geo. Mason), Mark Poirer (Seton Hall), and James Stern (William & Mary). 

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2014 Brigham-Kanner Property Rights Conference Report: Honoring Michael Berger

Continue Reading Brigham-Kanner Property Rights Conference – Panel Videos Now Available

Alderwoods

In reading State of Oregon v. Alderwoods (Oregon), Inc., No. A146317 (Sep. 17, 2014), we learned two things we didn’t know before: that the Oregon Court of Appeals can sit “en banc,” and also that it can affirm by an equally-divided court. Eight judges considered the case, and since the split was 4-4, the court affirmed per curiam, with several of the judges filing separate opinions.

As we detailed in our earlier post on the case,

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The court of appeals’ opinions, 

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Petition to the Review the Decision of the Court of Appeals, State of Oregon Dep’t of Transportation v…

State of Oregon v. Alderwoods (Oregon), Inc., No. A146317 (Or. App. Sep. 17, 2014) (en banc) 

Continue Reading Oregon Supreme Court Asked To Rule Whether Highway Access Is Property Right