February 2017

Drone technology — those pesky little flying machines that invade your privacy — has opened up a new dimension that previously was available only to real-life pilots and those with airplanes or helicopters. 

As with most new things, there’s bound to be rules, even if those rules may be playing catch-up to reality. On Monday, March 13, 2017 (12:30pm ET), a American Planning Association Planning and Law Division webinar aims to answer the questions you might have about how the ability to easily view ourselves and our property from low-altitude orbit is being dealt with by the law:

The educational objective of this course is to discuss the implications of emerging drone technology on city and town planning. Featuring specialists in the fields of law, urban design, and policymaking, this webinar will examine federal and local legislation pertaining to unmanned aerial vehicles (UAVs). Drone operations raise several concerns for the…

Continue Reading Upcoming Webinar – Drone Technology: Implications on Policymaking and Design of the Built Environment

We’ve been meaning to post People ex rel. Dept’ of Transportation v. Presidio Performing Arts Foundation, No. A145278 (Nov. 3, 2016) for a while (as you might be able to tell by the date of the opinion), thinking that one of our left coast colleagues more familiar with the workings of California’s goodwill-in-eminent-domain rules would analyze it and tell us what to think. But so far, we haven’t seen anything from them, so we’ll take a short stab at it.

Caltrans has been fixing up the southern approaches to the Golden Gate Bridge, and anyone who has ever driven that stretch of road knows two things: (1) Doyle Drive was hairy — nicknamed “blood alley” because it required Steve McQueen-level driving skills just to make your way to the Bridge, and (2) it runs through the Presidio of San Francisco, the former Army post, now converted to public…

Continue Reading Cal App: Increasing A Nonprofit’s Losses May Result In A Business Goodwill Claim

Scopellitti’s properties were apparently falling apart, as they were subject to a list of code violations, so the city issued citations, and went through the proscribed nuisance abatement procedures. Scopellitti, it seems, pretty much ignored the violations and eventually the city demolished the properties, an action upheld by the city’s administrative process. Next step, an inverse condemnation action in U.S. District Court. 

These cases are hard enough when you have good facts to back you up, and even harder when you’ve got facts like these. So it shouldn’t be a surprise, should it, that the District Court eventually granted summary judgment, and in Scopellitti v. City of Tampa, No. 15-15394 (Jan. 24, 2017), the Eleventh Circuit affirmed? The dismissal and affirmation wasn’t on substantive grounds, but an application of Williamson County‘s state compensation requirement, since Scopellitti had not sought compensation through a Florida state court inverse condemnation action. 

Scopellitti …

Continue Reading 11th Cir: Junky Inverse Condemnation Case Not Ripe

Here’s the recording of Hawaii Supreme Court oral arguments from last month in a case we first were following, and then later became involved in as counsel.

As we previewed here, the question which the court is reviewing is whether an appeal in a voter registration challenge case is timely brought when it is mailed by the appellant, or when received by the Board of Registration Appeals. Under the statute, challengers have ten days in which to “bring” an appeal, and the Intermediate Court of Appeals concluded that means to be timely brought, the appeal papers must be delivered to the Board within that time, not merely deposited in the mail.

If election or administrative law, or the timing of bringing appeals is your thing, you might want to listen along.  Continue Reading Hawaii Supreme Court Oral Arguments: When Is Election Law Admin Appeal “Brought?”

The Sixth Circuit’s majority opinion in Wayside Church v. Van Buren County, No. 15-2463 (Feb. 10, 2017) isn’t all that exciting — after all, it was a takings case brought in federal court, and you know what that means: Williamson County — but do give it a read. The facts are somewhat unusual, even if the court’s ultimate conclusion is not.

It involved the intricacies of Michigan’s General Property Tax Act, a statute which allows municipalities to the foreclose on properties that are delinquent in paying property taxes. The municipalities are allowed to auction off the properties and keep the money, even if the auction proceeds exceed the delinquent taxes. That’s what happened here.

Wayside didn’t pay its property taxes, the County foreclosed, obtained fee simple title, and auctioned the property. The sales price of $206,000 exceeded the minimum bid price, which had been calculated by adding up the back…

Continue Reading 6th Circuit: Michigan Statute Allows Recovery Of Money, So Takings Claim Not Ripe For Federal Court

Here’s an article, recently published by the Urban Lawyer (the law review produced by our ABA section, the Section of State and Local Government Law), with our take on the most interesting and important eminent domain and takings rulings from the past year. 

Many of the cases discussed will be familiar to regular readers, but here it is in one place, and in print. 

Recent Developments in Eminent Domain, 48 Urb. Lawyer 939 (2016)

Related articles
New Article: “Eminent Domain in The Aftermath of Hurricane Katrina”
New Law Review Article Worth Reading: “Through a Glass Clearly: Predicting the Future in Land Use Takings Law”

Continue Reading New Article: Recent Developments In Eminent Domain

This year, the University of Hawaii Law Review is devoting one of its issues to a symposium on issues related to the sharing economy. 

On Friday, February 17, 2017, the law review is sponsoring a series of presentations from 9:00 am – 4:30 pm at the law school (lunch included if you RSVP ahead of time), followed by a reception in downtown Honolulu.

Presenters include national experts such as Professor Stephen Miller (who is also the founding Chair of the ABA State and Local Government Law Section’s Sharing Economy Committee), Christina Sandefur of the Goldwater Institute, local players such as Michael Formby, the Director of Transportation Services for the City and County of Honolulu and Greg Kugle of my law firm, and industry insiders such as Timothy Burr Jr., Senior Public Policy Manager for Lyft. 

The day will see presentations on Housing, Transportation, and Discrimination, as…

Continue Reading U. Hawaii Law Review Sharing Economy Symposium (Feb. 17, 2017)

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We’ve spent a good portion of the last two weeks at conferences discussing the regulatory takings case now pending at the U.S. Supreme Court, Murr v. Wisconsin, No. 15-214.

The biggest question most had was why the Court had not scheduled oral arguments. There was a lot of speculation and gossip about the Chief Justice perhaps holding off on OA because the Court was one Justice short. Recall that cert was granted, but shortly thereafter Justice Scalia died, leading to speculation that there was not a clear five-Justice consensus for how to analyze the issues on the eight-Justice Court. But no concrete answers.  

Well, maybe they heard all the chatter over at 1 First Street NE, because on Friday, the Court issued this argument calendar, and lo and behold, look what’s on calendar for Monday, March 20, 2017.

The questions remain unanswered: Will the Court have …

Continue Reading Supreme Court (Finally) Sets Arguments In Reg Takings Denominator Case (Murr v. Wisconsin)

Bush’s trees had leafy spurge. “Hey,” said the Weed and Pest Control District, “we’ve got this herbicide stuff. How about we spray your trees free of charge? That will get rid of the leafy spurge.”

“Sure,” responded Bush.

Problem was the herbicide not only killed the leafy spurge. It (allegedly) killed some of the trees. The District’s investigation determined the spraying wasn’t negligent, but that the District hadn’t followed the herbicide label warnings. 

Bush filed a claim with the District, but received no response. Tired of waiting, it filed an inverse condemnation action in state court. 

The Wyoming Supreme Court agreed with the trial court that the inverse case wasn’t ripe.

In Bush Land Dev. Co. v. Crook County Weed & Pest Control Dist., No. S-16-0149 (Feb. 3, 2017), the court concluded Bush had an obligation to exhaust administrative remedies. A Wyoming statute, you see, provides that…

Continue Reading Wyoming: Property Owner Claiming Inverse Condemnation For Spraying/Killing His Trees Must Exhaust Admin Remedy First