inversecondemnation.com

2023 Year-End Clean Up

As 2023 comes to a close, here are a few of the decisions that we wanted to blog about, but didn't have the time.

• Bruce v. Ogden City Corp., No. 22-4114 (10th Cir. Dec. 1, 2023): city demolishing a building that was damaged by fire was not a Lucas taking because the owner still has use of the land (even though the building is gone). And no Penn Central taking because... Penn Central.
  
• Moriarity v. Indiana, No. 22A-PL-2899 (Ind. Ct. App. Nov. 15, 2023): State ordering removal of illegal dam was not a taking under U.S. or Indiana Constitution. The owners don't have a property right to build an illegal dam. Thus, the "background principles" exception to Lucas rules the day. And no Penn Central taking because the owners never had any investment-backed expectations they could build this dam.
• Lafayette Bollinger Dev., LLC v. Town of Moraga, No. A163636 (Cal. Ct. App. July 19, 2023): No Penn Central taking because city might have allowed a smaller project.
  
• Estancias de Cerro Mar, Inc. v. Puerto Rico Aqueduct and Sewer Auth., No. 20-1644 (D.P.R. Nov. 17, 2023): the complaint plausibly alleged a categorical regulatory taking, and did not need to be pleaded under Penn Central. The complaint alleged that the plaintiff possessed a private property interest, and that the Authority's actions took that interest.
• Moskovic v. City of New Buffalo, No. 23-1165 (6th Cir. Dec. 14, 2023): city's moratorium on short-term vacation rental permits, and eventual permanent ban was not a taking or a deprivation of substantive due process because property owners have no protected interest under Michigan law in renting their properties. 
• First Floor Living LLC v. City of Cleveland, No. 22-3216 (6th Cir. Sep. 28, 2023): even though the plaintiff purchased the property to rehabilitate and redevelop it, the city declared them public nuisances and ordered their destruction. The district court correctly entered summary judgment in the city's favor on the plaintiff's due process claim because the owner received sufficient notice.
• 835 Hinesburg Road, LLC v. City of South Burlington, No. 23-218 (2d Cir. Nov. 8, 2023): takings claim not ripe when city applied restrictions that it intended to adopt and denied owner's preliminary development application [disclosure: this case is one of ours].
• In re City of New York (Coney Island Plan - Stage I), No. 517650/2016 (Kings County, N.Y. Nov. 1, 2023): compensation for city's taking of mostly-vacant land to be measured by the "three unities" test. The zoning in place at the time of the taking was part of "the project," so the pre project zoning is used to measure the value of the taking.

On to 2024!

Cases And Links From Today's ABA State & Local Govt Law Land Use Presentation

Here are the cases that Michael Berger and I discussed in today's presentation to the ABA State and Local Government Law Section's Land Use group. It was good seeing everyone, even virtually:

• Sheetz v. County of El Dorado - are legislatively-imposed exactions subject to the nexus and proportionality requirements of Nollan/Dolan? (SCOTUS)
• Devillier v. Texas - must the government consent to be sued for just compensation? (SCOTUS)
• Watson Memorial Spiritual Temple of Christ v. Korban - the payment of a final just compensation judgment is ministerial, and may be compelled by a writ of mandamus (Louisiana Court of Appeal)
• The New York Rent Control cases - two still pending (SCOTUS)
• Gearing v. City of Half Moon Bay - abstaining from adjudicating a regulatory takings case under Pullman abstention (Ninth Circuit; cert. denied)
• Ateres Bais Yaakov Academy of Rockland v. Town of Clarkstown - RLUIPA claim is ripe; court rejected the "land use is local" trope (2d Cir.)
• Catholic Healthcare Int'l, Inc. v. Genoa Township - RLUIPA claim ripe because Township had taken a "definitive position" on what uses were allowed and not allowed on plaintiff's property, even though there remained a possibility that the Township might allow the use (6th Cir.)
• Yes in My Backyard v. City of Los Angeles - the general plan is law, and controls over zoning (Cal. Super. Ct.)
• Idaho Power Co. v. Bean - some precondemnation entries are takings (Or. Cir. Ct.)
• Town of Apex v. Rubin - after a taking is invalidated for lack of public use, what if the condemning agency just takes it anyway? (N.C. S. Ct. review granted)

Check em out.

And if you are not a member of the ABA State and Local Government Law Section, you should be. Come, join us!

Professor Ely: Regulatory Takings Didn't Begin With Pennsylvania Coal v. Mahon

A must-read from Professor James Ely, "to protect all the essential elements of ownership:" Late Nineteenth Century Emergence of the Regulatory Takings Doctrine, 13 Brigham-Kanner Prop. Rts. J. ___ (forthcoming 2024).

Professor Ely, who presented this paper at the recent Brigham-Kanner Property Rights Conference, lays out the case that the regulatory takings doctrine didn't suddenly spring from the mind of Justice Holmes in Pennsylvania Coal Co. v. Mahon, but "the doctrine of regulatory takings began to take shape in the last decades of the nineteenth century[.]"

Here's the abstract:

This article examines the gradual emergence of the regulatory takings doctrine in the years between the end of the Civil War and the decision in Pennsylvania Coal v Mahon (1922). It is often asserted that the takings clause of the 5th Amendment, and its state counterparts, were understood to cover only appropriation of title and physical invasion, and had no application to regulations of property until the opinion by Holmes in Pennsylvania Coal. This article challenges that reading of the historical record. It concludes that the doctrine of regulatory takings began to take shape in the last decades of the nineteenth century and that the Pennsylvania Coal decision was not the innovation that is so often pictured.

The Supreme Court heard relatively few takings cases in the late nineteenth century and provided little guidance as to the evolution of the regulatory takings doctrine. Although in Pumpelly v Green Bay Company (1872) the Court declared that an interference with the common use of property could be the equivalent of a taking, it subsequently retreated to the view that 5th Amendment was confined to appropriation of title or physical takings. Consequently, state courts took the head in fashioning the contours of takings jurisprudence.

State courts played a crucial role in two respects. First, they increasingly understood private property in terms of various attributes, such as the right to use, exclusively possess, and dispose of, a thing rather than the thing itself. In 1888 eminent treatise writer John Lewis famously characterized property as “a bundle of rights.” This redefinition of property profoundly changed and enlarged the notion of a taking. A number of state courts began to treat property as a cluster of rights each of which was entitled to constitutional protection. For example, during the late nineteenth century some state courts invalidated land use regulations as a taking even though neither the title or physical possession of the owner was challenged. Second, there was renewed emphasis on the protective function of the federal and state constitutional guarantees as security for individual rights against the government.

Two prominent jurists helped to formulate the regulatory takings doctrine in the closing years of the nineteenth century. In 1891 Justice David J. Brewer maintained that regulations which destroyed the use of property effectively deprived the owner of his property. Justice Holmes, while on the Supreme Judicial Court of Massachusetts, equated physical appropriation and regulations which stripped an owner of his rights. He suggested that there could be a taking of property without any physical interference.

Although some state courts continued to adhere to the narrow physical concept of a taking, a substantial number of jurisdictions ruled that restrictions on use could amount to a taking. In short, Pennsylvania Coal merely brought to fruition developments which had been germinating in the state courts and among commentators for decades.

Get your copy from SSRN here.

Listen: Gideon Kanner's Oral Arguments, Agins v. City of Tiburon (Apr. 15, 1980)

The place hasn't changed that much since 1980, has it?

As you know, the legendary Gideon Kanner left us in November. The tributes continue to be published. You've no doubt seen our remembrance of Professor K, as well as this one from Southern California Appellate News, this memorial from Loyola Law, our colleague Charles McFarland's thoughts, and Professor Kanner's colleagues at the Owners Counsel of America.

Or maybe you've read his final law journal article, or listened to his final media appearance on the Bound by Oath podcast.

But one of the ways we're remembering Gideon is by listening to the recording of his U.S. Supreme Court oral arguments in Agins v. City of Tiburon, 447 U.S. 255 (1980) (stream it above, or listen at Oyez here). Professor Kanner at his full-throated best!

Argued in the spring of 1980 and decided two months later, Agins involved the downzoning of land in a chi-chi part of the San Francisco Bay Area. Gideon may not have won that case, and one-half of the Agins test (a regulation is a taking if it fails to substantially advance a legitimate state interest) was clipped in Lingle v. Chevron U.S.A., but we think the court of history has borne out his arguments pretty well. See Lucas and First English if you have any doubts.

Agins v. City of Tiburon, 447 U.S. 255 (1980)

Hawaii Federal Court: Honolulu Can't Increase Minimum Rental Term To 90 Days Without Accommodating Existing Uses

Here's the latest in a case we've been following.

In this Order, the U.S. District Court for the District of Hawaii made permanent its earlier ruling that Honolulu's ordinance which expanded the minimum rental term to 90 days because it did not account for those owners who were already legally renting their properties for 30 days. The state Zoning Enabling Act requires zoning ordinances account for preexisting uses.

We covered the issues and the court's preliminary injunction ruling here, and won't go over those again. About the only difference between that one and this one is that the court rejects the City's "several new legal arguments[,]" including Pullman abstention, and the claim that this isn't a zoning ordinance covered by the ZEA, but rather a "rental regulation." See slip op. at 10.

The City’s attempt to reframe the issue first presented during preliminary injunction proceedings more than a year ago is unavailing. In Yee, the Supreme Court explained that the ordinance at issue “regulate[d] petitioners’ use of their land by regulating the relationship between landlord and tenant.” Yee, 503 U.S. at 528 (emphasis added). It did not create the land use versus landlord-tenant distinction that the City now imagines.

Slip op. at 15.

Check it out. Kudos to our former law partner and land use lawyer extraordinaire Greg Kugle for the compelling win. 

Order Granting in Part and Denying in Part Pltf's Motion for Summary Judgment, Hawaii Legal Short-Term Rent...

Hawaii Five-80: More Land Use (Law 580) At The University Of Hawaii

Starting in January, we'll be helping our friend and former law partner Mark M. Murakami with the venerated and oh-so-important Land Use course (Law 580) at the University of Hawaii's Law School.

We're temporarily stepping into some mighty big slippers (this is Hawaii, so we don't always wear shoes), as this is the course that our mentor Professor David Callies taught for decades. And is there a better venue in which to teach and study land use law and regulation, and its limits? After all, Hawaii may be the most heavily-regulated land on the planet, and is a focal point for every issue you can think of, from zoning to environmental restrictions to takings to public trust to subdivision to admin law to ... well, you get the drift.

We'll cover those topics, as well as the fundamentals. And we have a few surprises up our sleeves -- some impressive guest lecturers, explorations of dirt law careers, and maybe a field trip or two.

We'll bring you the highlights here, as they happen. Is there a bit of pressure on us to get it right? You bet. But are we looking forward to it (not just an opportunity to head back to the 808, but because this is a great subject)? You bet.

"Groping in a Fog" - Bound by Oath Podcast, S3 E2: Regulatory Takings - Penn Coal And Penn Central ... Unplugged!

We've been eagerly waiting for the new season of the Institute for Justice's podcast series, "Bound by Oath" to drop. Not only because it's a great series - produced by John Ross, it is more like an audio documentary than a typical podcast - but also because John was kind enough to ask us to participate again (our last appearance was in Season 1, where we guested on the episode about the origins of the "incorporation" doctrine).

This season is all about property rights, and episode 2 is all about regulatory takings. Pennsylvania Coal Co. v. Mahon, and Penn Central Transp. Co. v. New York City, to be exact.

So just over a year ago, John and I headed up to anthracite coal country in Pennsylvania. We wanted to be on site on the exact 100th anniversary of the Supreme Court issuing the Mahon decision. Why? It just seemed appropriate. And as true takings nerds, we couldn't resist the chance to be in the room where it happened. Kind of a "John and Robert's Excellent (Takings) Adventure."

And as you dirt lawyers know, nothing substitutes for a site visit. 

In addition to John, me, and two Pittston lawyers who now own and used to own the former Mahon property, also weighing in is Professor William Fischel, who shares the insights about the Mahon case he learned while researching his book "Regulatory Takings" (1995)

And not content to cover the case that is seen as the first modern regulatory takings decision (the case is often wrongly assumed to be where the regulatory takings doctrine got its start), this episode also gives an in-depth treatment to the other well-known takings case with "Penn" in its name: Penn Central.

For that one, John goes to the source, Professor Gideon Kanner in what might be his final interview. Professor Kanner, of course, authored the seminal law journal article about the case, so he was a natural for this part of the episode. See Kanner, Making Laws and Sausages: A Quarter-Century Retrospective of Penn Central Transportation Co. v. City of New York, 13 Wm. & Mary Bill of Rts. J. 679 (2005). Don't miss out on this part of the episode, or you will miss some of the classic "Kannerisms" the good Professor issues.

Professor Kanner is also responsible for the episode's title, from his reaction to the three factors the Court seemingly created from whole cloth in Penn Central:

John: The Court said, there would be quote “no settled formula” for determining when a taking requiring just compensation had occurred. But there are three factors to consider. It didn’t say how much weight courts are supposed to give each factor or what evidence litigants could use to satisfy them.

Gideon Kanner: So it was another one of these impossible-to-meet criteria. There were three factors. There's no rule, but three factors, such as the impact on the owner, the nature of the government activity. So we all looked at each other: What the hell does that mean? All it did was confuse the law. The Court was groping in a fog.

This is a not-to-be-missed episode.

Here's the description from IJ:

In 1922, Scranton, Pennsylvania was said to be on the verge of collapsing into the vast coal mines beneath the city; residents, buildings, and streets alike were being swallowed up by “suddenly yawning chasms.” State legislators responded by unanimously passing a law meant to save the region, where about a million people lived, from total desolation. But when the law reached the Supreme Court, the justices struck it down, ruling that it would be an unconstitutional “regulatory taking” to force coal companies to leave their coal in the ground. On this episode, we go to nearby Pittston, Pennsylvania to find out what happened to the house at the center of the case. Did it—or Scranton—fall into the pits? After that, we trace the major developments in regulatory takings doctrine, which protect against regulations that go “too far.” But we wind up in a bit of a fog. Plus! This episode will have an unsolved murder—and some Supreme Court trivia: did you know a future Supreme Court justice argued the case on behalf of Scranton (at least in state court)?

Click here for transcript.

In case you are aching for some visuals to go with your listening, here you go.

The (former) Mahon home on a snowy Pittston day.
No signs of subsidence at all.

 

The view from lawyer Mahon's office.

We paid our respects to Mr. and Mrs. Mahon.
The episode also has a murder mystery,
something you don't see everyday in takings cases.

Grand Central Terminal,
preserved in aspic (for free).


That airspace.

Check the episode out here, and be sure to subscribe so you don't miss future eps.

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (Dec. 11, 1922)

Yule Log III, Director's Commentary

But seriously, have a very happy and restful holiday.

        - Your friends at inversecondemnation.com

Our (Last-Minute) 2023 Holiday Dirt Lawyer Gift Guide

Too busy writing those briefs and writs, and haven't found the time to hit your local store or the interwebs and fulfill your seasonal duties? Or maybe you just have gifter's block about an appropriate present for the dirt lawyer in your life this holiday season.

Well, you could go the Charlie Brown route and give your kindred a bag of rocks, or the old reliable origami boulders (see below). But you are better than that and want to be a good gifter, no?

So here are our modest suggestions for some last-minute gifts to show your loved ones how much you really care. (Suggest your own in the comments below.)

* * * *

A Lump of Genuine Pennsylvania Coal. First up is the classic lump of coal. But in our case a lump of Pennsylvania Coal (I see what you did there). Anthracite, not bituminous, of course.

 

Usually, finding a lump of coal in one's stocking results in a long face, but there's not a dirt lawyer out there who would be unhappy receiving this one.

But let's say you don't live in the Wyoming Valley of Pennsylvania, and thus do not have ready access to coal-in-the-wild. Well, you are in luck: the Pennsylvania Anthracite Heritage Museum in Scranton has a store, and you can have it shipped. If it is too late for that, there's always a rock and some glossy black paint from your local hardware store.

* * * *

SCOTUS origami boulders.  Next up is another classic, handcrafted with love from old print-outs of important takings cases. Recycle a few pages and rescue them from the blue bin and you are in business! No Martha Stewart skills necessary. Crumple and go!

Also good for the procrastinators, since you don't need an open store to show your recipient how much you care.

There's creative origami ... and not so creative origami.

* * * *

Bundle o' Sticks. The heck with the metaphor, give 'em the real thing.

Yet another classic, sure to put a smile on your dirt lawyer's face: the Bundle of Sticks.

Show 'em how much you appreciate their expertise and skill with this "insiders" gift. No one else will get it, but they will.

Best of all is that these are out there for the taking (no just compensation required), just waiting for you to pick them up. Go on, you know you want to.

* * * *

Eminent Domaine wines. Next up is an old standby; an oft-repeat guest on our holiday list because there's no way that your condemnation lawyer won't love this one.

Of course, we are referring to wines from Oregon's Eminent Domaine vintner. 

From their web site: "The name, Eminent Domaine, is a reflection of our experience with the legal term, eminent domain, our dedication to the Oregon wine industry and our love of the wines produced in our region. In 2002 the City of Portland cited eminent domain as reason for claiming an office building we owned downtown. We began negotiations, as we agreed with the intent of the law, which states that the property would be used for the public good in exchange for a price based on fair market value. However, when both qualifiers came into question, a lengthy legal process ensued. Despite having a more favorable outcome from arbitration, the compensation was low and the property was used for undisclosed purposes. Having been brought up on a small farm in Hillsboro Oregon, Jeff Meader always wanted to go back to the land. Already entrenched in Oregon’s wine industry and looking to the future, it was a natural progression to re-invest in a small piece of land in the coveted Ribbon Ridge AVA. In 2009, we set about planting the 7-acre parcel with selected Pinot Noir clones and harvested our first estate fruit in 2011."

Hurry down the chimney, Santa!

* * * *

A film buff on your list? Already gave 'em The Castle, Little Pink House, and Battle For Brooklyn?

Well fear not, may we suggest "Eminent Domain" (1990).

It does not quite sound like a property-related movie, however: "The film is based on the true story of a senior member of the Polish Politburo (played by Donald Sutherland) and his wife (played by Anne Archer) who are both abruptly banished from the party. While they struggle to figure out why, having unusual encounters with people they do not know in the process, things start to take a darker turn when the wife is sent to a mental asylum and their 15-year-old daughter is kidnapped."

 

But hey, the title wouldn't lie, would it? And even if it is a poorly-reviewed 1990s spy flick, who cares? Your kin's bookshelf will look better with a box spine that says "Eminent Domain."

 

Available on VHS here. 

 

* * * *

Want to go literal (or maybe really, really meta)?  How about an actual bag of dirt?

That's right, for a mere $15 USD, you can get a bag of Readi-SOIL RSAPVB-8 All Purpose Vegetable Blend Total Organic Soil Remedy. Straight from Tractor Supply Company.

As described by the seller, "a naturally perfect blend of our own, site-managed worm castings combined with distinctly homorganic deep woods peat moss, resulting in the perfect planting soil."

What dirt lawyer could not love actual dirt? Beats a bag of rocks, Charlie Brown!

Happy holidays, everyone.

A Lump of Genuine Pennsylvania Coal. First up is the classic lump of coal. But in our case a lump of Pennsylvania Coal (I see what you did there). Anthracite, not bituminous, of course.

 

Usually, finding a lump of coal in one's stocking results in a long face, but there's not a dirt lawyer out there who would be unhappy receiving this one.

There's creative origami ... and not so creative origami.

* * * *

Bundle o' Sticks. The heck with the metaphor, give 'em the real thing.

Yet another classic, sure to put a smile on your dirt lawyer's face: the Bundle of Sticks.

Show 'em how much you appreciate their expertise and skill with this "insiders" gift. No one else will get it, but they will.

Best of all is that these are out there for the taking (no just compensation required), just waiting for you to pick them up. Go on, you know you want to.

* * * *

Eminent Domaine wines. Next up is an old standby; an oft-repeat guest on our holiday list because there's no way that your condemnation lawyer won't love this one.

Of course, we are referring to wines from Oregon's Eminent Domaine vintner. 

From their web site: "The name, Eminent Domaine, is a reflection of our experience with the legal term, eminent domain, our dedication to the Oregon wine industry and our love of the wines produced in our region. In 2002 the City of Portland cited eminent domain as reason for claiming an office building we owned downtown. We began negotiations, as we agreed with the intent of the law, which states that the property would be used for the public good in exchange for a price based on fair market value. However, when both qualifiers came into question, a lengthy legal process ensued. Despite having a more favorable outcome from arbitration, the compensation was low and the property was used for undisclosed purposes. Having been brought up on a small farm in Hillsboro Oregon, Jeff Meader always wanted to go back to the land. Already entrenched in Oregon’s wine industry and looking to the future, it was a natural progression to re-invest in a small piece of land in the coveted Ribbon Ridge AVA. In 2009, we set about planting the 7-acre parcel with selected Pinot Noir clones and harvested our first estate fruit in 2011."

Hurry down the chimney, Santa!

* * * *

A film buff on your list? Already gave 'em The Castle, Little Pink House, and Battle For Brooklyn?

Well fear not, may we suggest "Eminent Domain" (1990).

It does not quite sound like a property-related movie, however: "The film is based on the true story of a senior member of the Polish Politburo (played by Donald Sutherland) and his wife (played by Anne Archer) who are both abruptly banished from the party. While they struggle to figure out why, having unusual encounters with people they do not know in the process, things start to take a darker turn when the wife is sent to a mental asylum and their 15-year-old daughter is kidnapped."

 

But hey, the title wouldn't lie, would it? And even if it is a poorly-reviewed 1990s spy flick, who cares? Your kin's bookshelf will look better with a box spine that says "Eminent Domain."

 

Available on VHS here. 

 

* * * *

Want to go literal (or maybe really, really meta)?  How about an actual bag of dirt?

That's right, for a mere $15 USD, you can get a bag of Readi-SOIL RSAPVB-8 All Purpose Vegetable Blend Total Organic Soil Remedy. Straight from Tractor Supply Company.

As described by the seller, "a naturally perfect blend of our own, site-managed worm castings combined with distinctly homorganic deep woods peat moss, resulting in the perfect planting soil."

What dirt lawyer could not love actual dirt? Beats a bag of rocks, Charlie Brown!

Happy holidays, everyone.

From their web site: "The name, Eminent Domaine, is a reflection of our experience with the legal term, eminent domain, our dedication to the Oregon wine industry and our love of the wines produced in our region. In 2002 the City of Portland cited eminent domain as reason for claiming an office building we owned downtown. We began negotiations, as we agreed with the intent of the law, which states that the property would be used for the public good in exchange for a price based on fair market value. However, when both qualifiers came into question, a lengthy legal process ensued. Despite having a more favorable outcome from arbitration, the compensation was low and the property was used for undisclosed purposes. Having been brought up on a small farm in Hillsboro Oregon, Jeff Meader always wanted to go back to the land. Already entrenched in Oregon’s wine industry and looking to the future, it was a natural progression to re-invest in a small piece of land in the coveted Ribbon Ridge AVA. In 2009, we set about planting the 7-acre parcel with selected Pinot Noir clones and harvested our first estate fruit in 2011."

Hurry down the chimney, Santa!

* * * *

A film buff on your list? Already gave 'em The Castle, Little Pink House, and Battle For Brooklyn?

Well fear not, may we suggest "Eminent Domain" (1990).

It does not quite sound like a property-related movie, however: "The film is based on the true story of a senior member of the Polish Politburo (played by Donald Sutherland) and his wife (played by Anne Archer) who are both abruptly banished from the party. While they struggle to figure out why, having unusual encounters with people they do not know in the process, things start to take a darker turn when the wife is sent to a mental asylum and their 15-year-old daughter is kidnapped."

 

But hey, the title wouldn't lie, would it? And even if it is a poorly-reviewed 1990s spy flick, who cares? Your kin's bookshelf will look better with a box spine that says "Eminent Domain."

 

Available on VHS here. 

 

* * * *

Want to go literal (or maybe really, really meta)?  How about an actual bag of dirt?

That's right, for a mere $15 USD, you can get a bag of Readi-SOIL RSAPVB-8 All Purpose Vegetable Blend Total Organic Soil Remedy. Straight from Tractor Supply Company.

As described by the seller, "a naturally perfect blend of our own, site-managed worm castings combined with distinctly homorganic deep woods peat moss, resulting in the perfect planting soil."

What dirt lawyer could not love actual dirt? Beats a bag of rocks, Charlie Brown!

Happy holidays, everyone.

* * * *

* * * *

It does not quite sound like a property-related movie, however: "The film is based on the true story of a senior member of the Polish Politburo (played by Donald Sutherland) and his wife (played by Anne Archer) who are both abruptly banished from the party. While they struggle to figure out why, having unusual encounters with people they do not know in the process, things start to take a darker turn when the wife is sent to a mental asylum and their 15-year-old daughter is kidnapped."

 

But hey, the title wouldn't lie, would it? And even if it is a poorly-reviewed 1990s spy flick, who cares? Your kin's bookshelf will look better with a box spine that says "Eminent Domain."

 

Available on VHS here. 

 

* * * *

Want to go literal (or maybe really, really meta)?  How about an actual bag of dirt?

 

* * * *

Want to go literal (or maybe really, really meta)?  How about an actual bag of dirt?

Fieri Facias: You Take, You Pay - Providing Just Compensation After A Taking Is A Ministerial Duty

You might not think that the principle of law the Louisiana Court of Appeal (Fourth Circuit) enunciated in Watson Memorial Spiritual Temple of Christ v. Korban, No. 2023-CA-0293 (Dec. 13, 2023) is really in need of enunciating: if the government takes property, the property owner is entitled to just compensation. Entitled, as in the condemnor must pay.

But apparently, that principle isn't all that obvious. At least in Louisiana. As readers of this blog understand, you can get a final judgment for inverse condemnation from a Louisiana court, but the defendant/taker retains the discretion whether to actually pay it, and the usual judgment-enforcement procedures are not available. In short, the "requirement" to pay just compensation is more of a suggestion than an actual requirement.

That's what happened here. Property owners obtained just compensation judgments against the Sewerage and Water Board of New Orleans. The judgment withstood the SWB's appeals. You'd think that would be the end of it, and the SWB would do its duty.

But the Louisiana Constitution says that civil judgments can only be paid if the legislature or the political subdivision has appropriated the funds. And SWB didn't appropriate the funds to satisfy the owners' just compensation judgment. After waiting, the owners filed a federal action asserting the SWB had taken private property without just compensation.

When the federal courts were presented with the issue, they held that the property owners were merely trying to enforce the state court inverse condemnation judgment, and not their self-executing right to just compensation. And even though the state court judgment is an inverse condemnation judgment for just compensation, that makes no difference because federal courts are not in the business of enforcing state court judgments. Thus, the courts held, there's nothing that can be done to force a taker to, you know, actually pay compensation. You just have to rely on the good graces of the takers.  

That doesn't seem like what the constitution envisioned. So the property owners/condemnees went back to Louisiana's courts and sought a writ of mandamus and a writ of fieri facias, arguing that the duty to provide compensation for a taking is a ministerial, nondiscretionary duty, and thus a court can order a recalcitrant condemnor to pay up. 

The court of appeal framed the issue this way; "[t]his case presents a res nova issue of law: whether payment of an inverse condemnation judgment against a political subdivision is a ministerial duty." Slip op. at 8. And the court held "[w]e find that it is." Id.

Relying on a Louisiana statute that contains language mandating that compensation "shall" be paid within a certain time of the judgment, the court concluded that the duty to pay up is not discretionary (as the SWB argued), but rather a ministerial obligation. This is a "constitutional takings claim involving the mandatory duty to pay just
compensation for deprivation of property rights." Slip op. at 11.

So there you have it. The court reinstated the claims and sent the case back for the lower court to issue the writs.

Although we still continue to believe that we got it right in the federal case and that a local government's failure to pay adjudicated compensation is itself a violation of the Takings Clause and the Fourteenth Amendment, we're glad that the property owners here have met with success.

Will the SWB finally do the right thing and pay up? Or will it appeal, and continue to delay? Stay tuned.

Watson Memorial Spiritual Temple of Christ v. Korban, No. 2023-CA-0293 (La. Ct. App. Dec. 13, 2023)

"Super-Zoning Board" No More - CA2 Busts The "Land Use Is Local" Trope: Town ZBA Doing Nothing On Variance Application Ripened Constitutional Claim

You remember that longstanding trope: that matters of land use are "local" issues, and thus in civil rights claims involving a state or local government interfering with the right of property federal courts should avoid adjudication until the government has had every chance to do the right thing (even where it is patently obvious that it has no intention of doing so)? This trope most often shows up as a part of a ripeness dismissal, where the court says "too soon," because, well, if given enough time and opportunity, the government might render adjudication unnecessary.

Well, in Ateres Bais Yaakov Academy of Rockland v. Town of Clarkstown, No. 22-1741 (Dec. 8, 2023), the U.S. Court of Appeals for the Second Circuit held a land use case ripe, and in the process blew up this overripe trope. Whoa!

But before you takings mavens get too excited, this is a RLUIPA claim. But that doesn't mean the applicable principles are not relevant. Indeed, this one is worth reading because the court navigates the rocky shoals of Article III ripeness in land use cases, and concluded that "federal courts have an obligation to adjudicate cases that invoke our jurisdiction, and we do not close our doors to litigants properly seeking federal review simply because their grievances touch on local zoning matters.: Slip op. at 17.

Before you get too excited again, this warning: the qualifiers "properly" and "simply" carry a lot of the work here, and the court doesn't conclude that if you make a constitutional challenge to a zoning or land use decision, your case is ripe and you are heading straight to the front of the line.

Here are the quick facts. The Academy wanted to build an Orthodox Jewish school. It entered into a purchase agreement to buy some land and lined up financing. It alleged that in response, "segments of the local community" formed to oppose the school, with one Town supervisor announcing "the the Town would 'strongly enforce' applicable zoning and building-code regulations of the property." Slip op. at 7.

Next up: a lot of the typical maneuvering during the zoning approval process, including the Town's fire inspector kiboshing a building permit application on the basis that the property lacked the minimum frontage required, and that a building permit could not be issued until the school obtained a variance from that requirement. Slip op. at 9-10. The school appealed to the Zoning Board of Appeals, asserting that the school met the frontage requirement. In response, the inspector asserted that the appeal papers were incomplete because the school had not submitted a property survey in support.

Survey? Where does it say we need a survey (said the school)? It claimed that "nothing in the Town Code or ZBA rules required such a survey, and the requirement served no practical purpose." Slip op. at 10. [Barista's note: this is typical, and local planning officials often reject applications and claim they cannot be processed because they are not complete, and when pressed about where the requirement to submit the allegedly "missing" information comes from have no answer or merely say "this is how we do things here - everyone knows that."]

But the school played ball and made and submitted a survey.

[But o]nce the survey had been completed, on May 7, [the school] requested a hearing date for its appeal to the ZBA. However, the ZBA failed to respond to this request, and the project came to a standstill. Subsequently, Investors Bank revoked its commitment to provide financing.

Id.

The ZBA's do-nothing approach continued, even in the face of the school pressing it repeatedly, at one point pointing out the failure of the financing as a reason it was considering the application revoked. Slip op. at 11. Then, to add insult to injury, {o]n October 3, the Town announced that it was purchasing the property for itself." Slip op. at 11-12.

Next up, federal court section 1983 and RLUIPA lawsuit. The district court dismissed; the federal claims were not ripe because -- you guessed it -- the ZBA had not yet decided. Slip op. at 13 ("the Zoning Board of Appeals, the municipal entity responsible for the administration of the zoning laws, never issued a final decision on the merits of [the school]'s application"). The claim was not ready, and thus failed the "case and controversy" requirement of Article III.

The Second Circuit reversed. As noted above, the court rejected the Town's argument that this, at heart, was a local zoning matter and that federal judges should therefore butt out. In holding the claims ripe, the court noted Pakdel's dictum that the ripeness requirement is "relatively modest" and that nothing more than "de facto" finality is needed. Slip op. at 18.

Applying those rules, the court concluded that the ZBA "reached a decision that was sufficiently final for ripeness purposes." Id. By "choosing not to adjudicate [the school]'s appeal[,]' the ZBA made a de facto decision. The complaint also plausibly alleged that the ZBA "declined to respond to at least five letters urging it to schedule a hearing." Id. And to cap it off, a Town official (its lawyer) "wrote to [the school] that the ZBA 'will not entertain any appeal by [the school] with respect to the [property].'" Id. 

"This letter made the ZBA's position pellucid[.]" Slip op. at 19. Dismissal reversed, and case remanded for more on the merits.

That is all well and good, but we issue a caution in cases like this, where the government has done some pretty outrageous things: it shouldn't take this much to get a court to agree that a case is ripe. As the Supreme Court reminded in Pakdel, this is a relatively modest requirement with only de facto finality required. Just because cases  like this one in which the government is going way overboard are well-within the ripeness requirement, does not mean that "lesser" government foot-dragging is okay.

Ateres Bais Yaakov Academy of Rockland v. Town of Clarkstown, No. 22-1741 (2d Cir. Dec. 8, 2023)

Professor Kanner's Final Article: "Eminent Domain Projects That Didn't Work Out," 12 Brigham-Kanner Prop. Rts. J. 171 (2023)

Here it is -- Professor Gideon Kanner's final law journal article, published shortly before his passing:

Gideon Kanner, Eminent Domain Projects That Didn't Work Out, 12 Brigham-Kanner Prop. Rts. J. 171 (2023).

Appropriately, we think, published in William and Mary Law School's Brigham-Kanner Property Rights Journal, named in part in Gideon's honor.

This isn't a typical law journal article, but an essay collecting Professor Kanner's thoughts, comments, and (best of all) opinions on, well, eminent domain (and redevelopment) projects that didn't work out.

In Gideon's own words, from the Introduction:

But whether you favor widespread use of eminent domain or not, and whether the projects created by its use are sound or not, it is deplorable that the power of eminent domain has been often deployed to the detriment of racial and politically powerless minorities. Typically, redevelopment projects tend to displace middle class and poor people from their homes and businesses but provides parsimonious compensation that falls short of indemnity. The displaced people are limited by the courts to recovery of “fair market value” of their real property, which fails to include compensation for a variety of economic losses inevitably inflicted when people are involuntarily displaced. To add insult to injury, while talking glibly about indemnity, courts do not provide it and have not explained the reasons for this state of affairs. Too often they rely on factually unsupported lamentations—“fearful guesstimates” as one commentator put it—that full, realistic  compensation would be too expensive or even cause an “embargo” on public works, as the California Supreme Court once asserted.

What follows is a sampling of cases that failed to live up to their planners’ projections, including but not limited to redevelopment projects. The latter are particularly egregious because the linchpin of their success is a process of generating private gains for the private parties chosen to participate in those projects, while undercompensating the displaced populations of the areas targeted for redevelopment. Thus, the benefits, if any, of such projects are attained, if at all, on the back of condemnees, in violation of the principle that such costs should be fairly spread on members of the society that benefits from them and disproportionally imposed on people in the path of those projects.

Thank you to the editors of the Brigham-Kanner Property Rights Journal for publishing it, in its unfiltered form.

Disclosure: I helped edit the piece, and Gideon even asked if it was worthy of publication (as if!). He described it as his "last" article collecting his collective thoughts. Yes, I responded, let's work on this and get it out for everyone to read (although I was secretly hoping that was not his final work). One of our University of Hawaii Law School Land Use students, Pono Arias, even volunteered his time and efforts as Gideon's Research Assistant and tracked down citations, made helpful edits and suggestions, and got the piece ready to go. We're grateful for Pono's work on this, as was Professor Kanner.

So here it is, Professor Kanner's last publication. When you read it, I am sure that - like me - you will hear it in your head in Gideon's voice.

And that's a good thing.

Gideon Kanner, Eminent Domain Projects That Didn't Work Out, 12 Brigham-Kanner Property Rts. J. 171 (2023)...

Farewell To A Giant - Gideon Kanner (1930-2023)

Aloha, Gideon

This is one of those posts I wish I didn't have to write.

I'm sad to report that our teacher, mentor, and friend Professor Gideon Kanner passed away on Wednesday, November 22, 2023, in his 93d year.

Appellate advocacy, eminent domain, and land use legend. Holocaust survivor. Prolific author and speaker. Argued Agins v. Tiburon at the Supreme Court. Educated generations of dirt lawyers at Loyola LA Law School. And even more through various professional legal education programs at Practicing Law Institute, American Law Institute-American Bar Association (ALI-ABA), and ALI-CLE, among others. One of the two lawyers for whom the Brigham-Kanner Property Rights Project at William and Mary Law School is named.

A person with sharp moral and intellectual clarity. Someone who never, ever -- ever -- gave up or gave in. We could go on and on, but we shall keep it short, because his legacy is secure. 

Many people knew or learned from Gideon, but not everyone understood where he came from. Here's some of that from the LA Daily Journal note about his passing, recently published:

Kanner was born in Poland in 1930, just as the Nazis were coming to power next door in Germany. Kanner's father and uncle were business partners when Hitler invaded Poland in 1939, and the brothers took different approaches to the occupation that led to a tragic outcome.

"His father's family fled, and his uncle's family was killed in the camps. Gideon's family spent much of the war hidden behind a false wall in a peasant's cottage. His older brother Joseph eventually left that sanctuary and essentially walked to Palestine, where he joined the British army," [Michael] Berger said. "After the war, the entire family made its way to New Jersey, where they were reunited and delighted to learn they had all survived."

A high school debate coach taught Gideon Kanner to speak perfect English so he could be understood. An engineering class at Cooper Union School for the Advancement of Science and Art in New York sparked an interest in rocketry. Kanner had a career in the industry that included a stint at Rocketdyne, where he worked on designs that were used to take astronauts to the moon.

While working as an engineer, Kanner began taking night classes at the Detroit College of Law. Then, he moved to Los Angeles and enrolled in the law school at the University of Southern California, from which he graduated in 1961.

After he got his bar card, he and a friend started a real property litigation practice under the shingle Fadem and Kanner.

And all that before he began his teaching career.

Although I did not attend Loyola and was never privileged to sit in his classroom, I owe my career to Gideon. In one of life's weird twists, the very first case I worked on as a young lawyer in a private law firm was a land use and regulatory takings case. But my law school education did not include formal training in property law beyond the first year required Real Property course, and I had no clue at all about land use law, or especially about the then-developing concept of regulatory takings. So I went down to the law library and copied every article on eminent domain, takings, and land use by this apparently well-known professor, Gideon Kanner. On the bus ride home each evening, I would pore over those articles. Thus, in one view, I am "self-taught." But in reality, I had Gideon whispering (maybe yelling would be more appropriate?) in my ear, showing me the way.

One of the proudest days of my professional life is when he wrote me, years later, and asked my thoughts about some issue. Gideon Kanner asking me? Wow.

An adopted son of Hawaii, Gideon was, with his family, a frequent visitor. I loved it when instead of saying "thank you" to me for something, he'd write "mahalo." A real local touch. 

Rather than write more, I'll take the liberty of reprinting some of the thoughts that have been circulating about Gideon this past week. Here's a sampling:

"...an inspiration..."

"One of a kind."

"...a man and lawyer whose life and career fills volumes..."

"...a giant who would never hesitate to help you..."

"The appellate world has lost a legend. A founder and the first president of the California Academy of Appellate Lawyers, he led an amazing life: Holocaust survivor, actual rocket scientist, law professor, eminent domain guru, persistent advocate, fierce advocate, appellate maven, colorful writer ...(and here), blogger, inspiration, raconteur, gadfly, curmudgeon. Those are just a few ways to describe this remarkable mensch."

"Gideon will live on in so many ways."

"...my gratitude for the great work of a great man.."

"The Dean of eminent domain."

"Gideon’s trumpet may be silenced, but the voice of our friend Gideon Kanner will echo for many generations."

"Gideon ... was academically brilliant but also carried the deeply heartfelt conviction to defend liberty in the trenches of the courts as though it could be lost if even one generation took it for granted. That sense of urgency was never absent from his lectures and writing..."

"If there is such a thing in our eminent domain world, Gideon Kanner was a celebrity....He ... had a humorous, caustic cynicism and irreverence for government action and was a terrific, patient teacher....Thank you, Gideon. May your memory be for a blessing."

"His oratory skills are legendary, with many regarding him as one of the finest appellate advocates to come before the California Supreme Court and U.S. Supreme Court....As one would imagine, Gideon’s achievements have been honored by countless awards and acknowledgments. On the international scene, Gideon consulted with the Japanese Construction Ministry to reform Japan’s expropriation laws, co-organized the International Colloquium on Comparative Expropriation Law at Oxford University, England, and was a visiting professor at the University of Aberdeen, Scotland."

"...a great human being..."

"Gideon felt the pain of those who were abused and was quick to call out the abusers."

"Gideon not only thought outside of the box before that phrase even existed, he laughed at the box and delighted in tearing it down."

"In California it is hard to write a brief without citing a case that was Gideon's."

"I can truly say that I became a better lawyer after meeting and interacting with Gideon."

I don't think there is a better professional legacy than the love of your colleagues. I am better for having known him.

Aloha, Professor.

Update: be sure to read Professor Kanner's final article, "Eminent Domain Projects That Didn't Work Out," just published.

We (Re)Join Clint Schumacher's Eminent Domain Podcast: Three Impactful Issues, And The 41st ALI-CLE Conference (New Orleans, Feb 1-3, 2024)

A big thank you to Clint Schumacher and his Eminent Domain Podcast for having us on the program (this is the sixth time, not that we're counting). We joined Clint to chat about three breaking issues in eminent domain (highlighted by the intriguing cases we discuss), as well as to preview the upcoming 41st ALI-CLE Eminent Domain Conference, February 1-3, 2024, in New Orleans.

As Clint describes it:

Robert Thomas of Pacific Legal Foundation joins us for a review of three impactful cases that eminent domain practitioners should watch as they work their way through the courts. We also get a preview of the 2024 ALI-CLE Eminent Domain and Land Valuation Litigation Conference that will be held in New Orleans this coming February.

Click here for information and registration for the ALI-CLE conference.

Please share your thoughts on the show or this episode with me. I’m on X @J_Clint. If you have thoughts about future show guests or ideas for episodes, please let me know.

Stream it above or at your favorite service, or directly from the Eminent Domain Podcast's home.

One note before we leave you to your business: Clint has been producing and hosting this podcast for a while now (127 episodes is nothing to sneeze at in the broadcast world), and week-in and week-out, his audience can count on a new episode with fascinating and relevant content, often featuring the biggest players in the field. It may all seem seamless, but as someone who produces content I can say from experience that it can be a grind: selecting and inviting guests, scheduling, editing, post-production, monitoring and the like -- and then on to the next episode. It's work. All in addition to Clint's work for his clients and his community service (not to mention family). He has some help -- many of you know Claire McGehee who assists him) -- but his team isn't some huge production company. It's just them.

So when you next see or chat with Clint, be sure to let him know how much you (and we listeners) appreciate what he and Claire do.