April 2018

Here’s what we’re reading today:

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Continue Reading Monday Readings: South Africa Takings, Redevelopment, Metes and Bounds, And More

Thanks to colleague Chris Kramer, we’ll be speaking later this week (Friday, May 4, 2018) in Phoenix at the 22nd Condemnation Summit at the Arizona Biltmore.

Our session will cover “Condemnation Trends: Nationwide & Arizona.” The rest of the day’s agenda looks mighty good too, with session on valuation of easements, paying for transportation infrastructure, airport takings, and a presentation by Justice Lopez of the Arizona Supreme Court. Well worth the very affordable $129 registration cost.

Sign up here.

See you there!Continue Reading Arizona Takings: Condemnation Summit XXII

The Minnesota Attorney General settled a civil claim with tobacco companies that the companies had violated state consumer protection laws. Later, several Minnesota consumers brought a claim in state court alleging the State’s failure to pay these plaintiffs a portion of the proceeds from the earlier settlement was an inverse condemnation of their property, raising both state and federal takings claims. 

The Minnesota Court of Appeals concluded these claims were time barred, and held there was no taking, and the Minnesota Supreme Court denied discretionary review.  Next, some of the same consumers filed a federal § 1983 claim in U.S. District Court, asserting a federal takings claim. The District Court dismissed, concluding this was the same claim which the plaintiff had raised, and lost, in Minnesota courts.

In Foster v. Minnesota, No. 17-1177 (Apr. 20, 2018), the Eighth Circuit affirmed. Applying the Full Faith and Credit statute (28 U.S.C. §…

Continue Reading 8th Cir: Federal Takings Claim That State Failed To Share Tobacco Settlement Proceeds Was Already Litigated In State Court

Eminentdomainromanc

Tired of that dry, stuffy legal text on eminent domain law?

If so, you are in luck because author Tessa Berkley has the solution, her latest novel, “Eminent Domain” ($1.99 on Amazonfair market value). Here’s the synopsis:

When two brothers are sent to the opposite coasts, each man must decide between the dream of a lifetime, a chance to run the company, stepping out from their father’s shadow or living their own lives.

Asa Kingston journey to the Eastern Shore of Virginia is what he considers a fool’s errand. In an attempt to take over the company from his estranged brother, he is required to purchase the property known as Pinnacle Point. The owner, an elderly woman, should be easy to manipulate but he didn’t count on running in to her beautifully brilliant granddaughter, Mallory.

Pinnacle Point is the only home Mallory Bennett has ever known. When…

Continue Reading Eminent Domain: He Came To Claim Her Land. Instead, She Stole His Heart

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Here’s the not unexpected decision from the U.S. Court of Appeals for the Ninth Circuit in a case we’ve been following (sort of). It should never have gotten this far, even as the “plaintiffs” raise the specter of a cert petition.

We say again: the federal courts seem to have time for this brand of nonsense, but when it comes to land use and takings cases, they won’t be “super zoning boards of appeals,” and almost always refuse to give them the time of day. At least PETA didn’t make a takings claim and further hose up the law. 

Once again, Dr. Zaius could not be reached for comment.

Rock on, Naruto.

Naruto v. Slater, No. 16-15469 (9th Cir. Apr. 23, 2018)

Continue Reading 9th Cir: “Ape Shall Not Sue Ape!” Court Has Time For Silly Monkey Selfie Case, But Not For Takings

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Some of the Land Use Institute faculty, including (front row left), Planning Chair Frank Schnidman and Planning Co-Chair Patty Salkin

Last Friday at the 32nd Annual Land Use Institute in Detroit, I was honored to moderate a freewheeling discussion by a panel of takings experts, Professor Steven Eagle, Minnesota lawyer Howard Roston, and Michigan’s own Alan Ackerman on “Takings, Eminent Domain, and Vested Rights.”

Here are the cases and other materials we discussed, as well as a few others which we did not have time to cover (but wish we could have):

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Continue Reading Cases And Materials From The Takings And Eminent Domain Session At The Land Use Institute

Do we really need to tell you how a rent control regulatory takings claim fared in the Ninth Circuit? We didn’t think so.

In Colony Cove Properties, LLC v. City of Carson, No. 16-562655 (Apr. 23, 2018), a three-judge panel reversed a district court jury verdict which concluded that the City was liable for a Penn Central regulatory taking for the mobilehome Rent Board’s setting of a rent increase artificially low. The total award to the park owner, including damages for lost rental income, attorneys’ fees, and interest, was over $9 million. 

As we wrote in this post, the city and its amici predictably went ballistic and argued that the upholding the verdict threatened the very existence of mobilehome rent control. The court concluded that as a matter of law, the owner failed each of the three Penn Central factors.

First, the owner did not prove that the…

Continue Reading 9th Cir: City Rent Board Determining Owner “Made Enough” Profit Isn’t A Penn Central Taking

MRGO

When you a federal takings plaintiff in the Federal Circuit and you pull Judge Timothy Dyk on your panel, your heart sinks. More so when he aggressively questions you in oral argument. And when you see he has written the opinion, you know it’s game over at this level.

Because we can’t remember a single case in which he’s ever held for a property owner in a regulatory takings or inverse case. He just doesn’t like property owners and their takings claims, apparently. His last big decision on flood takings, Arkansas Game and Fish, adopted a per se rule that any flooding which the owner could not prove was “permanent” is categorically immune from takings liability. His opinion for the Federal Circuit was reversed unanimously by the Supreme Court, in an opinion by Justice Ginsburg, which alone should tell you something. 

Well, Judge Dyk is at it again…

Continue Reading MR-GO, Katrina Flooding: Inverse Condemnation And Schlimmbesserung At The Federal Circuit

Here are the cases and materials I either discussed, or planned to discuss (but ran out of time), in this morning’s session at the 32nd Annual Land Use Institute:

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Continue Reading Land Use Institute – Cases And Links From Today’s Session On Federal Laws And Local Land Use Decision Making: Water

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We’re in Detroit the rest of the week at the Mercy Law School for the venerable Land Use Institute, now in its 32nd iteration.

Planning Chair Frank Schnidman has assembled a great faculty including out Detroit colleague Alan Ackerman (above, talking about takings liability for flooding), and we’ll be spending the time talking inverse condemnation, public trust, planning law, homelessness, autonomous vehicles, affordable housing, RULIPA, and similar topics. We’ll be presenting on “Eminent Domain, Vested Rights, and Regulatory Takings,” “Client Representation: Developer, Government, and Citizens Groups,” and “Federal Laws Affecting Local Land Use Decision Making.” 

If you are here with us in Detroit, stop by and say hello. If you aren’t here, shame on you! This is one of the best and most affordable tuition deals in CLE.

But all kidding aside, if you are not in Detroit now, be sure to calendar these…

Continue Reading Land Use Institute – Detroit