January 2015

Here’s the latest in a case we’ve been following, the property owner’s cert petition, filed last week, in which a U.S. District Court invalidated a Florida county’s “Right of Way Preservation Ordinance” which allows it to land bank for a future road corridors by means of an exaction. The court concluded the ordinance is “both coercive and confiscatory in nature and constitutionally offensive in both content and operation,” and struck it down under Nollan/Dolan. 

The transportation corridor protrudes into Hillcrest’s undeveloped commercially-zoned property. Hillcrest wanted to build a shopping center and it submitted a plan to the Review Committee, which rejected the application because it did not account for the corridor. Hillcrest submitted a second plan which was rejected, and a third plan which was eventually approved, which required Hillcrest to dedicate the right of way to the county. Hillcrest reserved its right to object …

Continue Reading New Cert Petition: Must A Plaintiff Challenging An Ordinance For Facial Invalidity File Suit Before Her As-Applied Claim Has Ripened?

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This could be your view, winging your way to San Francisco in a couple of weeks, to join us for the 2015 ALI-CLE Eminent Domain and Land Valuation Litigation Conference (and the concurrent Condemnation 101 program), at the Hotel Nikko, February 5-7, 2015. 

There’s still a few spaces left, and time to register. We’re the co-Planning Chair of the Eminent Domain and Land Valuation Litigation program along with Joe Waldo, and we’ve assembled an exciting agenda, presented by a faculty comprised of the nation’s best-of-the-best in our field of law.

Winter in San Francisco is the one time of the year when you are likely to not be fogged in, and in addition to the 2 and a half days of programming, there are networking and social events so you can get to know your colleagues and the faculty better.

Please come and join us, if you…

Continue Reading Still Time To Join Us For The 2015 ALI-CLE Eminent Domain Programs In San Francisco

It’s always a safe bet to predict that the Supreme Court will deny review in a case, and if that’s what you had guessed for Kurtz v. Verizon New York, Inc., No. 14-439 (cert. petition filed Oct. 14, 2014), today’s order list would prove you right. 

That’s the case in which the Second Circuit threw out a complaint on Williamson County ripeness grounds, which, were the claim a takings claim, isn’t all that certworthy. The odd thing was, the court concluded that a procedural due process claim was not ripe under Williamson County‘s exhaustion of state remedies prong. Say what?

We submitted an amicus brief in the case, because the Second Circuit’s ripeness mission creep wasn’t warranted: Williamson County‘s rationale, is built on a takings-specific rationale and has no application to a due process claim, and our brief called for the Court to both reverse the Second Circuit…

Continue Reading Cert Denied In Kurtz: Williamson County Lives! (For Now)

Perhaps lost in all of today’s excitement surrounding the Supreme Court agreeing to review the same-sex marriage cases, is today’s cert grant in Horne v. USDA, No. 14-275, the California raisin case. That’s the case in which on remand from SCOTUS, the Ninth Circuit held that “the world’s most outdated law” was not a taking. 

So fire up your raisin puns, and get ready for another takings decision from the Supreme Court. 

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Continue Reading California Raisins Redux: SCOTUS Grants Cert In Horne II

The people of Margate City, New Jersey, voted to say “no thank you” to building dunes on the beach to limit damage in the event of another hurricane like Sandy were to hit.

But the State of New Jersey decided to do it anyway, and issued an administrative order “taking” an easement. Problem is, the State didn’t bother to actually go through the trouble of condemning the easement. Instead, “Bob Martin, Commissioner of the New Jersey Department of Environmental Protection,” declared:

1. The New Jersey Department of Environmental Protection Office of Floor [we assume that was meant to be “Flood”] Hazard Risk Reduction Measures hereby immediately enters upon and takes real property interest(s).

Just like that.

The City didn’t appreciate having its beach summarily taken, and filed a complaint in federal court against the Corps of Engineers and the state, and even got a TRO temporarily halting …

Continue Reading Summary Takings, Eminent Domain, And Due Process At The Jersey Shore

It’s been accepted for such a long time that it’s become one of those things that “everyone knows we’ve always done it that way,” but most probably don’t quite know why that is so: if you have to sue the United States for a regulatory taking or inverse condemnation, you go to the Court of Federal Claims.

In the CFC, just compensation determined isn’t determined by a jury, nor is your case presided over by an Article III judge. In other words, your case is wholly decided by a judge with a 10-year appointment who technically is an employee of the Executive branch, instead of your peers and a guy or gal with life tenure, who is independent and in the Judicial branch. 

Comes now a complaint, filed in the United States District Court for the Western District of Michigan earlier this week, that one would normally expect…

Continue Reading Right To Compensation Self-Executing: Property Owners Entitled To Jury & Article III Judge In Federal Inverse Cases

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Ben Kudo and David Callies, leading off

Professor Richard Epstein began the Hawaii Land Use Law Conference with the keynote presentation on “Stealth Takings: Exactions, Impact Fees, and More,” which was his usual comprehensive and non-stop takedown of takings law. 

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Our panel on Impact Fees and Exactions After Koontz followed, and here are the promised links and other materials which I mentioned:

Later today, I will also post up a recording of my short backgrounder on the exaction issue, to give you a flavor of the panel discussion (the Hawaii State Bar Assocation…

Continue Reading 2015 Hawaii Land Use Law Conference

Following up on our earlier post about anti-eminent domain signs are the below, courtesy Dwight Merriam, of the Kelo neighborhood in New London, Connecticut, during the time of the strife. See also the book Dwight edited for the ABA about the case. 

The signs have long since been removed. Along with the properties themselves. 

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Continue Reading Speaking Of Eminent Domain Protest Signs…

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In a 2-1 decision, the U.S. Court of Appeals for the Fourth Circuit concluded that Norfolk, Virginia’s sign ordinance did not violate the First Amendment, when it was applied to bar the anti-eminent domain banner shown above.  

Central Radio Co. Inc. v. City of Norfolk, No. 13-1996 (4th Cir. Jan. 13, 2015), arose from a situation that also resulted in a property-owner favorable ruling from the Virginia Supreme Court in 2013. See PKO Ventures, LLC v. Norfolk Redevelopment and Housing Authority, 747 S.E.2d 826 (Va. Sep. 12, 2013) (a case won by our Owners’ Counsel colleagues at Waldo & Lyle). The city’s redevelopment authority planned on taking property to transfer it to Old Dominion University, but the Supreme Court shut it down, holding that the agency did not have the authority to take non-blighted property. See our write up of that decision here. 

While it was…

Continue Reading 4th Cir OK’s City’s Sign Ordinance: You Can “Whisper” Your Anti-Eminent Domain Message, But You Can’t “Shout” It

Here’s the final program and faculty list for the 2015 Hawaii Land Use Conference, coming up Thursday and Friday, January 15-16, 2015, in downtown Honolulu.

This is the bi-annual gathering of Hawaii’s land use mavens, and this year’s program has two very special presenters. Storied lawprof Richard Epstein (perhaps more than a “mere mortal”) will be presenting the keynote talk on “Stealth Takings: Exactions, Impact Fees and More,” and our ABA colleague Patty Salkin, Dean of the Touro Law School, will get us our Ethics CLE credits with her usual exciting program on ethics topics. (As someone who has attended more than few of her presentations, we can report that it is worth the price of admission alone, and even though “ethics CLE” and “exciting” are words we usually do not associate with each other, Dean Salkin’s presentation is the exception.)

Our panel on “…

Continue Reading Still Time To Join Us For The 2015 Hawaii Land Use Conference (Jan. 15-16)