Check this out: the International Right of Way Association’s Real Estate Law Committee produces twice-a-year reports “which contain summaries of eminent domain decisions and legislation within the United States.” (This is the “international” right of way association, so that last qualifier is important.)
And what is really nice is that they make the report available
After a two-year absence in which we went remote, in the last week of last month (our usual spot on the calendar, between the playoffs and Super Bowl), we once again met in-person for the American Law Institute-CLE Eminent Domain and Land Valuation Litigation Conference.
Approximately 200 lawyers, judges, legal scholars, appraisers, law students
Before we go further into the Ninth Circuit’s opinion in Ballinger v. City of Oakland, No. 19-16-550 (Feb. 2, 2022), this disclosure: this is a case in which our law firm represents the property owners. So take that into account as you read our take on the case.
The Ballingers own a home
If you ever get the opportunity to teach in a law school — either as a full-time legal scholar, or part-time as an expert adjunct practitioner — take it if you can. You might think you know a lot about a particular subject, but there’s nothing like spending time at the lectern in a law
A short trial court decision. But because it deals with an interesting question, we’re posting it.
Check it out: in this order, the U.S. District Court for the District of Minnesota denied the city’s motion to dismiss in a case alleging, inter alia, a Fifth Amendment taking.
The property owners’ complaint alleged that
Here’s a must-read from the Texas Court of Appeals (Second District).
In City of Grapevine v. Muns, No. 02-19-00257 (Dec. 23, 2021),
Before 2018, the city’s 1982 zoning ordinance authorized “single-family detached dwellings” and didn’t say anything about short-term renting (short-term being defined as less than 30 days). The ordinance didn’t expressly authorize it
Check this out, the latest episode of Clint Schumacher’s Eminent Domain Podcast, where his guest is Judge Andrew Edison (who may be familiar to many of you for his ALI-CLE presentation a couple of years ago about the eminent domain angle in the JFK assassination film).
Today, the topic is Robert Moses, NYC
Back in February, we were honored to be part of the University of Hawaii Law Review’s symposium “25 Years of PASH,” a retrospective of one of the Hawaii Supreme Court’s most famous (or infamous) decisions, Pub. Access Shoreline Haw. v. Haw. Cnty. Plan. Comm’n, 79 Haw. 425, 903 P.2d 1246 (1993), cert. denied
Like a lot of things in Gary, Indiana, the Housing Authority was “troubled.” So troubled, the feds took it over. The Housing Authority received big money from the feds, and was required to agree to an annual contribution agreement, by which the Authority ok’d a HUD takeover in the even of the Authority’s substantial
Be sure to check out the latest article from takings scholars and Nestor Davidson and Tim Mulvaney, “Takings Localism,” 121 Colum. L. Rev. 215 (2021) (pdf here).
Here’s the abstract:
Conflicts over “sanctuary” cities, minimum wage laws, and gender-neutral bathrooms have brought the problematic landscape of contemporary state preemption of local governance to national attention. This Article contends that more covert, although equally robust, state interference can be found in property, with significant consequences for our understanding of takings law.
Takings jurisprudence looks to the states to mediate most tensions between individual property rights and community needs, as the takings federalism literature recognizes. Takings challenges, however, often involve local governments. If the doctrine privileges the democratic process to resolve most takings claims, then, that critical process is a largely local one.
Despite the centrality of local democracy to takings, state legislatures have restricted local authority on property issues in a range of ways. States have expanded compensatory liability for owners facing local regulations, imposed procedural constraints on local authority, and limited the exercise of foundational local powers. Seen in its entirety, this state intervention—like contemporary “new preemption”—is acontextual and unduly rigid, cutting at the heart of the devolutionary principles underlying takings jurisprudence.
This unbalanced state role requires a recalibration of decisionmaking power between state and local government to foster intersystemic dialogue and reflection. States certainly play a crucial role in defining and protecting property interests, but they must justify choices to constrain local discretion when state and local values conflict. The extant state statutory regime dispenses with this justificatory task via a formalistic disregard for the contextualization that legitimates vertical allocations of authority. A corrective to decades of imbalance in state ordering of local authority would thus properly recognize “takings localism.”
Free up local governments, or tie their hands…which is better? After reading this, you decide.
Continue Reading New Article: “Takings Localism” (Tim Mulvaney & Nestor Davidson)
