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ALI-CLE Eminent Domain & Land Valuation Litigation Conference - Jan 23-25, 2020, Nashville

Berman International - Philippines Supreme Court: Takings Must Undergo "Painstaking" Judicial Scrutiny

Reading through the opinion of the Supreme Court of the Philippines in City of Manila v. Roces Prieto, No. 221366 (Aug. 29, 2019), there is a lot there that will look familiar to U.S. lawyers, specifically U.S. eminent domain lawyers.

Viz.: It is up before the Court on a petition for certiorari, there was an effort to voluntarily acquire the properties, an "expropriation" lawsuit gets filed when that didn't work, and the City deposited estimated compensation and sought a writ of immediate possession from the trial court. That court balked because the deposit amount didn't comply with the requirements of the statute, but once the City fixed that problem, the court allowed immediate possession. Sounds very familiar. 

The takings were in furtherance of something called the Land-for-the-Landless program, which this article describes as a process by which "[t]hrough expropriation, the city government buys private properties that are then distributed to qualified applicants." Also sounds familiar, somewhat like the Hawaii Land Reform Act which our Supreme Court upheld in Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), and the takings for redevelopment in Berman v. Parker, 348 U.S. 26 (1954).

Well, in this case, it wasn't just the landless who wanted land, the landed wanted to keep theirs. Although the trial court allowed the taking and issued a writ of possession, the appeals court held that the expropriation was not supported by the factual record the statute requires:

the records lack[] any evidence to support petitioner's claim that an on-site development program is the most practicable and advantageous for the beneficiaries, to justify the nonapplicability of the list of priorities in land acquisition under Section 9 of R.A. No. 7279.

Slip op. at 4. 

The statute requires that the expropriated land be "blighted," meaning that structures are "dilapidated, obsolete and unsantiary," but the City didn't do more than assert the lands to be taken were in such condition. Instead, because the City made "bare and unsupported assertions" of blight, the court invalidated the taking. Slip op. at 4. 

The Supreme Court took up the case. As background, the law of the Republic of the Philippines regarding expropriation looks a lot like US law (at least US law in theory):

In resolving expropriation cases, this Court has always been reminded that the exercise of the power of eminent domain necessarily involves a derogation of fundamental right. "The exercise of the power of eminent domain drastically affects a landowner's right to private property, which is as much a constitutionally-protected right necessary for the preservation and enhancement of personal dignity and intimately connected with the rights to life and liberty."

Slip op. at 6 (footnote omitted). Again, sounds very familiar.

But here's where the Court took a different turn. Instead of the conceivable basis (well-nigh conclusive) standard of judicial review, the Court held that because the power to deprive someone of their property involuntarily is a drastic power, "Therefore, the exercise of such power must undergo painstaking scrutiny." Slip op. at 6 (emphasis added) (footnote omitted).

And that's not all: "Such scrutiny is especially necessary when eminent domain is
exercised by a local government considering that it merely has a delegated
power of eminent domain." Id. 

Now that's a long way from the way we do things here, at least in our Supreme Court. 

The Philippines Supreme Court affirmed the court of appeals ("The petition is bereft of merit."), concluding that the enabling statute for the Land-for-the-Landless program imposed several requirements, including a provision that mandates that private property can only be taken as a last resort after other available properties and modes of acquisition are exhausted. The trial court took a "facile approach" and "took hook, line, and sinker" the City's "assertion that an on-site development is the most practicable and advantageous to the beneficiaries, allowing the resort to the acquisition of private lands despite the same being last in the list of priorities[.]" Slip op. at 8. The city's "bare allegations and unsupported generalizations do not suffice, considering the drastic effect of the exercise of such power to constitutionally-protected rights."

The courts, the Court held, "have a duty to judiciously scrutinize and determine whether the local government's exercise of the delegated power of eminent domain is in accordance with the delegating law." Slip op. at 6 (footnote omitted). If only US courts would take the same approach. Boy howdy!

Yes, this is a case about the requirements of a statute, and doesn't directly deal with the issue in cases like Berman and Midkiff where there was a direct challenge to to power to take. But read the entire opinion. The Philippines Supreme Court viewed the statute through a property rights lens, not the usual judicial deference where US courts mostly accept whatever the condemnor says -- hook, line, and sinker -- even where a statue may be involved. 

City of Manila v. Roces Prieto, No. 221366 (S. Ct. Philippines Aug. 29, 2019) 

Here's The Agenda And Faculty For The 2020 ALI-CLE Eminent Domain And Land Valuation Litigation Conference, Nashville, Jan 23-25, 2020

You overwhelmingly asked for Nashville, and we're bringing it to you!

Get ready, and hold your place now: here's the list of programs and speakers for the 36th Annual ALI-CLE Eminent Domain and Land Valuation Litigation Conference, to be held at the Downtown Nashville Hilton, January 23,- 25, 2020. Two-and-a-half days with top-notch national faculty (lawyers from both sides, judges, legal scholars, appraisers, relocation experts, and others).  

Early registration and group rates are available now. 

Here are just some of the programs:

• Featured Presentation: Property Rights as Civil Rights: Seeking Justice Though the Fourth and Fifth Amendments. Hon. Jonathan Apgar, Jamila Johnson, Alan Ackerman. Moderator: Leslie Fields.
• Making Sense of the New Rules After Knick v. Township of Scott: Where Do I Go, What Do I Do? David Breemer, Smitha Chintamaneni, Professor Bethany Berger. Moderator: Professor Steven Eagle.
• When A River Runs Thought It: Water Rights and Takings. Nancie Marzulla, Hertha Lund, and Charles McFarland. 
• Passive Takings by Government Inaction. Professor Christopher Serkin.
• Show, Don't Tell: The Dos and Don'ts of Demonstrative Evidence. John Murphy, Jeffrey Hamill.
• Is Close Enough Good Enough? Establishing the Date of Valuation in Direct and Inverse Cases. Neil Olson, Bill Ryan.
• Creative Approaches to Solving Difficult Appraisal Problems, Edward Burg, Bob Grace, MAI, Michael Rikon. Moderator: Joseph Waldo. 
• All You Need is Love: New Frontiers in Alternative Dispute Resolution in Eminent Domain. Cortney Young, Dwight Merriam.
• Road Warriors: Building and Trying an Eminent Domain Case From Your Laptop. Paul Henry, Jody McSpadden.
• Special Benefits: The Givings Clause? Heather Cunningham, Randy Smith.
• How To Try and Settle Pipeline Cases. Thomas Peebles, Melissa Glassman.
• Going Where No Court Has Gone Before: The Tension Between the Courts and Appraisal Methodology. Kevin Walsh, Kannon Conway. 
• Responding to Project Changes: Valuing a Taking When Government Action Changes or is Ongoing. Meghan Largent, W. Andrew Gowder. 
• Responding to the Abuse of Motions in Limine. Anthony Della Pelle, Williams James (invited)

There's also an Ethics program. For that, we are doing something a little different this year, with a special don't-miss presentation, "Surviving the Daily Fistfight: Finding Your Resilience When Every Day is a Battle" with Clint Schumacher, Christian Torgrimson, and Michael Ryan. 

And for those new to the field, or old hands who would like a refresher course, there's the "101" track on Thursday, going through an eminent domain case from A to Z. 

And this isn't the complete list, and there's more on relocation, regulatory takings from both sides of the case, effective strategies to determine unity of lands, fixtures, national updates for eminent domain and regulatory takings, and the "open mike" National Forum (where practitioners from around the nation share their issues and cases).

Look for the complete brochure shortly on the Conference web page on the ALI-CLE site.

And of course, there's Nashville. We're right around the corner from all that the town has to offer. Music City, USA. Hot chicken. The Grand Ole Opry. Country Music Hall of Fame. The Hermitage. 

So make your flight and hotel reservations now. Don't miss out. The attendance at the last several conferences has been record-setting, and the conference block at the hotel has sold out.

Join us - old friends and new colleagues! 

Get Ready: The 2020 ALI-CLE Eminent Domain And Land Valuation Litigation Conference Agenda Coming Soon

The final agenda and faculty list will soon be officially published, but we wanted to give you a preview of what is in store at the ALI-CLE Eminent Domain and Land Valuation Litigation Conference, January 23-25, 2020, at the Nashville Hilton (downtown, just a few steps away from everything that Nashville has to offer). 

Don't miss out: in recent years, we've been at-or-near capacity, and the conference hotel has even sold out a couple of times. Visit the ALI-CLE website to register and hold your space. 

Here are some of the things we'll be discussing: 

• Making Sense of the New Rules After Knick v. Township of Scott: Where Do I Go, What Do I Do?
• The Missing Link in Valuing Fixtures
• When a River Runs Through it: Water Rights and Takings
• Responding to Project Changes: Valuation When Government Action is Ongoing
• Property Rights as Civil Rights: Seeking Justice Through The Fifth Amendment
• Special Benefits: The Givings Clause?
• How To Try and Settle Pipeline Cases
• And, of course Ethics. 

Many of our expert faculty are returning, but we're also featuring many new presenters who have never been on our dais before. And a mix of perspectives and backgrounds: property owners' counsel, condemning agency lawyers, public interest, judges, and legal scholars. Plus a chance to meet your colleagues from across the country. Make connections, and see old friends. 

Early bird registration underway here. See you there. 

Tuesday Takings Round-Up: Alien Takings; Zombies; Kelo, Philippines-Style; Kafka

Here's what we are reading this Tuesday:

• Could Eminent Domain Be The Zombie Mall Slayer? (Barista's note: any time we see use of the eminent domain power bandied about as the solution to problems other than the lack of roads and post offices, we get nervous.)
• RTC: Eminent domain can be delegated to private entities - Kelo isn't just a U.S. thing. A story from the Republic of the Philippines.
• How the Storm Area 51 phenomenon could be an alien benefit to family that once owned the land - we're not saying it was aliens...but it was aliens. A story of the "Area 51" taking, where the owners are represented by our colleague Autumn Waters.
• Georgia colleagues Christian Torgrimson and Daniel Peterson write about Knick: The Eminent Domain Consequences of a U.S. Supreme Court Ruling.
• From the "be careful what you sue for" department: Maui County’s appeal is not to ‘gut’ the Clean Water Act (Maui's mayor responds to claims that the County's present refusal to settle the CWA lawsuit brought by the plaintiffs now being considered by SCOTUS is a betrayal of principles.)
• Judge Attacks “Kafkaesque Regime” That Lets Pipeline Companies Seize Land With Eminent Domain - more on Judge Millett's concurring opinion in which she points out the bizarre situation property owners find themselves in in Natural Gas Act Takings. Our take on the issue here.
• U.S. Supreme Court Seems Poised To Erode Separation of Powers - retired Chief Judge of the New York Court of Appeals Sol Wachtler writes about his view of the border wall.
• In a Bankruptcy Sale, 'Takings' Claims Kick in Early - about the recent Federal Circuit opinion holding that a takings claim accrues for purposes of the commencement of the statute of limitations even before a property owner is actually injured.

Check them out.

New Land Use Law Blog To Follow: Merriam's Corner ("Life, Liberty, and the Pursuit of Land Use")

Land users and dirt lawyers know Dwight Merriam. (And if you don't, you are not really a land user, are you?)

He's won landmark cases (has even beaten Yours Truly in one of those cases way back in the day). Written tons of articles and books. Edits Rathkopf. Contributes to Nichols. Mentored multiple generations of land use lawyers (me included). All while serving his country in the U.S. Navy. 

Here's your chance to tap directly into the source. Dwight has (finally) started a blog, Merriam's Corner, about the topics we all love. 

So sign up and follow. Listen in as Dwight thinks out loud for our benefit.

Welcome to the blog world, Mr. Merriam.  

Capt Henry Orders You To Boldly Go To The 2020 ALI-CLE Eminent Domain And Land Valuation Litigation Conference, Nashville, Jan. 23-25, 2020

Recently, we requested crowdsourcing of this year's "come to the ALI-CLE Eminent Domain Conference video." Instead of doing the video ourselves, we asked folks to "please send a short clip of you and/or your colleagues telling us why you think the Eminent Domain and Land Valuation Litigation Conference is the place to be in January. Humor welcome, but not required."

Our friend and colleague, St. Louis' Paul Henry, has answered the call, admirably. Paul, as you may remember, is famous for his presentation a couple of years ago at the Conference about "Everything About Eminent Domain I Need To Know I Learned From Star Trek." Which he gave in a Starfleet captain's uniform. Brave man. Readers know that we dig Star Trek. But we are not that brave, so bravo, Paul.  

See if you don't agree that Paul has now raised the video bar. 

For the rest of you: the challenge has been thrown down, so its time to step up. Send yours, now. 

Get Ready - ALI-CLE Eminent Domain And Land Valuation Litigation Conference, Nashville Jan. 23-25, 2020

Details soon. In the meantime, get your earlier registration discount.

Cases And Links From Today's Eminent Domain And Pipelines Conference (Houston)

I am grateful that planning chairs Justin Hodge and Jeremy Baker invited me to their conference. A room full of experts. Here are the links to the cases and other items I spoke about:

• Knick v. Township of Scott: initial thoughts on what might be a dawning "golden age" of property cases
• Knick, Entirely in Memes
• Givens v. Mountain Valley Pipeline, LLC (SCOTUS considering whether private pipeline condemnor can use a Rule 65 preliminary injunction to get quick-take by another name)
• Cert Denied In Immediate-Possession-By-Injunction Case (But There's One More In The Pipeline)
• Bump Stocks and Takings
• Is Seizing Prescription Drugs for Use as Evidence a Taking?
• Barboan: Eminent Domain and the Taking of Indian Property
• Colorado (Carousel Farms): A Lot Of Private Benefit Today Does Not Overcome Smattering Of Possible Public Future Benefit
• Protip for Megaproject - How to Not Name Your Project
• All Your Race Are Belong To Us: Baltimore Is Taking The Preakness Stakes (We're Serious)
• Ninth Circuit Denies En Banc Review In Case Upholding "Core" and "Fundamental" Property Rights, But Two Trump Judges Dissent
• Say What? Montana Supreme Court: Gov't Occupying Property Under Claim Of Right Is Only A Tort, Not A Taking; Tort vs "taking" - Montana, California (wildfire liability)
• Frozen: "Necessity" In Eminent Domain Can Mean Mere Convenience (Or Anything Else The Condemnor Says)
• New Cert Petition: Fifth Amendment Requires California To Spread The Cost Of Wildfire Inverse Condemnations To Ratepayers
• How Is "The Public" Defined When It Comes To Special Damages?
• Ninth Circuit: Inverse Condemnation Plaintiff Must "Share The Pain" - City Can Shed Obligation To Pay Just Compensation In Bankruptcy, Which Is "Purely A Monetary Claim"
• How Is "The Public" Defined When It Comes To Special Damages?
• We Are The World: Iowa SCT Finds Dakota Access Pipeline Will Promote The Public Convenience For Iowa, Even If Iowans Don't Get Any Of The Pipeline's Oil
• Are Pipelines For The Public's Benefit? If So, What Public?
• "Doggone stinky" government action, but no property right in use of land
• Ninth Circuit: "fundamental" attributes of property may be immune from state law changes
• Property rights in a "clean and healthy environment" - Hawaii vs. DC Cir (Pennsylvania law)
• PruneYard Undone: California's Union Easement - Which Invites Labor Organizers To Enter Private Property - Isn't A Physical Taking
• Oregon App: Physical Inverse Condemnation Claim Is Ripe From The Moment Of Occupation
• 11th Cir: City Inviting Public To Access Beach Across Private Land Is Inverse Condemnation
• Federal Circuit: Restoration Of Foreign Govt's Sovereign Immunity For Terrorist Acts Isn't A Physical Taking Of Victim's Money Judgment

And finally, this. Our single Powerpoint slide today.  Because there are some days you just feel like the odd person out. 

Colorado: A Lot Of Private Benefit Today Does Not Overcome Smattering Of Possible Public Future Benefit

The Colorado Supreme Court issued an opinion in a case we've been following on public use in eminent domain. in which it reframed the Questions Presented.

In Carousel Farms v. Woodcrest Homes, No. 2018SC30 (June 10, 2019), the court reversed the court of appeals' conclusion that a taking lacked a public purpose because even though the public might use the roads and sewers which the utility district (formed for the specific purpose of taking the property which the private-benefitted developer could not acquire by negotiation) said it would install in the future did not outweigh the overwhelming private benefit in the present. In the Court of Appeals' words, "[w]hen the primary purpose of a condemnation is to advance private interests, even if there will be an eventual public benefit, the condemnation is not for a public purpose." 

The Supreme Court turned that analysis upside down, concluding that a possible future public use of the property taken is enough to make the "essential" purpose of the taking public, overcoming even a lot of private benefit today:

Here, the taking is essentially for public benefit. Parcel C will be used for public right of ways, storm drainage, and sewer improvements. It is difficult to argue that those functions don’t essentially benefit the public. It is true that Century will also benefit from the taking, but, as we already explained, that doesn’t somehow change the essential benefit from public to private. If a utility company can condemn a large strip of land to supply power to a private, for-profit corporation because residents might use the power line in the future, then the District may condemn Parcel C for planned improvements that will benefit the community. See Shaklee, 784 P.2d at 318–19.

Slip op. at 16-17. 

The Supreme Court viewed it through a long-term lens, to be measured by future possible benefits to the public, not merely the initial private-benefit use. Rejecting the court of appeals view, the court held:

¶29 The division reasoned that the eventual dedication of the land to a public purpose is insufficient because the “taking itself” wasn’t for a public purpose. Carousel Farms, ¶ 35. That is, the first benefit to be received (even if a minor one) is satisfying the contractual obligations between the District and Parker, which isn’t a public benefit in any sense. Id. at ¶¶ 35–37. Thus, the argument goes, because that first benefit itself isn’t public, the entire taking doesn’t pass constitutional muster. Id.

¶30. This analysis fails for two reasons. First, the test is, and has been since 1906, whether the taking is “essentially for public benefit.” See Tanner, 83 P. at 465; accord Buck v. Dist. Court, 608 P.2d 350, 351 (Colo. 1980). A taking may have some sort of antecedent benefit that isn’t public, so long as the essential benefit is ultimately public. Presumably, developers and towns frequently enter into agreements before land is condemned. How else would towns garner the political support to complete parks or other public works projects? The town likely would need to hire a developer and sign a contract before it exercised its eminent domain power and spent taxpayers’ dollars on the condemnation. But the division’s reasoning would have all agreements of this sort fail, because the first benefit or purpose is to satisfy that contractual obligation, even though the essential benefit is ultimately building parks or other public works for the town.

¶31 Second, it relies on flawed precedent on takings and public benefit. The division cites another division’s opinion in American Family Mutual for the proposition that the taking itself must be for a public purpose, and, in turn, American Family Mutual cites Trinity Broadcasting for the same notion. See Carousel Farms, ¶ 35 (citing Am. Family Mut. Ins. Co. v. Am. Nat’l Prop. and Cas. Co., 2015 COA 135, ¶ 30, 370 P.3d 319, 327); American Family Mutual, ¶ 30, 370 P.3d at 327 (citing Trinity Broad. of Denver, Inc. v. City of Westminster, 848 P.2d 916, 921 (Colo. 1993)). But Trinity Broadcasting made no such declaration.

Slip op. at 17-17 (footnotes omitted).

The court recognized that "review of potentially improper takings can often be problematic because courts don't know ex ante whether the land will be used as claimed[.]" Slip op. at 17. No kidding. But the court got over the ex ante problem by asserting "here we know from the start how the District will utilize Parcel C." Id. But that's just an assertion from the condemnor, not some kind of hard-and-fast promise, right? If a court can't hold the taker to its assertions later, shouldn't the public use or purpose or benefit from the taking be measured in the present, when a court can test the assertion? What this decision means is that any competent condemnor should be able to overcome a claim of overwhelming private benefit by including a future promise of public benefit or use (unless the condemnor employs, in Justice Scalia's words, a "stupid staff"). 

Finally, the court rejected application of Colorado's post-Kelo "no economic development" statute, concluding that the statute does not apply when a public entity takes property and keeps it for itself. See slip op. at 24-25 ("The plain language of section 38-1-101(1)(b)(I) only limits transfer of condemned land to a private entity. Because there was no transfer and no private entity involved here, that section is inapplicable.").

The court's bottom line, in our view, was that these guys were holdouts, so of course this was a public use and benefit to get them out of the way. See slip op. at 21 ("Moreover, eminent domain was partly designed to overcome the “holdout” problem that occurred here. ... The District exercised the power of eminent domain to prevent a holdout owner from thwarting the assembly of adjacent properties that would benefit the public.").

Count us as not convinced. 

Carousel Farms vs. Woodcrest Homes, No. 2018SC30 (Colo. June 10, 2019)

 

33rd Annual Land Use Institute: Baltimore April 11-12, 2019

Come join us at the 33rd Annual Land Use Institute, in Baltimore, Maryland, April 11-12, 2019.

As the brochure notes:

This Annual Land Use Institute program is designed for attorneys, professional planners, and government officials involved in land use planning, zoning, permitting, property development, conservation and environmental protection, and related litigation. It not only addresses and analyzes the state-of-the-art efforts by government to manage land use and development, but also presents the key issues faced by property owners and developers in obtaining necessary governmental approvals. In addition, the entire approach of the program is to provide practice pointers that give immediate “take home value” by focusing on topics relevant to the average practice of the attendee.

The keynote will be delivered by Dennis Archer, former mayor of Detroit (and former Justice of the Michigan Supreme Court, and former President of the ABA), speaking about "Detroit’s New GM Plant from Mayor Coleman Young to Mayor Michael Duggan." 

We're on the faculty as well, speaking about the "Nuts and Bolts of Bringing and Defending a Takings Case." We'll also be moderating a panel of experts on the latest developments in RLUIPA law. 

Come join us at the Royal Sonesta Harbor Court Hotel and the University of Baltimore Law School. Registration is open here. 

ABA 33rd Annual Land Use Institute Brochure 4-2019

Webinar Today - Low Income Populations: Underrepresented Socially, Overrepresented as Victims of Natural Disasters

Later today (starting at 1pm ET), our colleague Edward Thomas is chairing an ABA-produced webinar on "Low Income Populations: Underrepresented Socially, Overrepresented as Victims of Natural Disasters: Using the Law to Solve a Serious Problem."

As in other areas of life, when natural disasters strike, it is often the owners of modest means who are the hardest hit. Floods, wildfires, sea level rise, you name it. And Ed has been there: he's a former FEMA guy, and currently the President of the Natural Hazard Mitigation Association who understands that property rights have to be respected in these situations. 

Find out more information about the program and register here. 

Colorado Supreme Court Denies Cert In "Improper Motive" Condemnation

Here's the latest in a case we've been following, involving what Colorado calls "bad faith" condemnations. 

In this order, the Colorado Supreme Court has declined to review the Court of Appeals' conclusion that a taking ostensibly to preserve open space and a buffer zone between two municipalities, was an invalid exercise of the eminent domain power because the true reason for the taking was to prevent the condemnee-municipality from luring a big-box retailer, King Sooper, to its territory and away from the condemnor's. 

So even though the case has ended with a whimper and not a bang, this does mean that the Court of Appeals' hard look at the actual motives of the condemnor -- and not merely its stated purpose -- is the way to do things. The court examined the factual record, and not just the stated reasons for the taking, and tested whether the condemnor's claim that it needed a buffer zone could not be satisfied by means other than taking the property from Erie. And finally, that even some public benefit will not save a taking if the condemnor's motive is bad.  

Order, City of Lafayettee v. Town of Erie Urban Renewal Authority, No. 2018SC538 (Colo. Feb. 11, 2019)

Wish You Were Here: Links From Day 1, 2019 ALI-CLE Eminent Domain And Land Valuation Litigation Conference

Here is our annual "proof of life" photo, taken from the dais during the opening session, to prove that all 250 of us were in the room for the ALI-CLE Eminent Domain Conference, and not out on a Palm Springs golf course (it is 72º and sunny, so a golf course would not be a bad place to be).  

Here are the links from our talk this morning (along with Amy Boulris) about the latest issues to watch in eminent domain:

• NJ Appellate Division: "take now, decide later" will not support redevelopment necessity. Unless there's "linkage." 
• Louisiana Court of Appeals with two points for condemnors: (1) don't name your project the "Megaproject," and (2) don't let your Executive Director testify that but for the Megaproject needing the property, the local government would not have condemned it. If you do, don't be surprised the court views the taking with a jaundiced eye.
• Quick takes by Rule 65 preliminary injunctions: Third Circuit joins the growing circuit split on whether private condemnors under the federal Natural Gas Act can acquire early possession of property, even though Congress in the NDA did not delegate the condemnors the Quick Take power. Our amicus brief which details why we think this is wrong. 
• In these federal takings, does state or federal law provide the rule of decision on compensation (and damages)?
• Violet Dock Port: for "unique" property, the Louisiana Supreme Court concludes that fair market value isn't the only measure of just compensation. Replacement cost evidence is admissible.
• "Property" rights in a clean and pure environment. The Hawaii Supreme Court concludes the state constitution's provision gives right to a due process property right. But the D.C. Circuit concludes that Pennsylvania's similar constitutional provision does not give rise to an enforceable right, because you can't exclude others from a clean environment.
• The Uniform Relocation Act and the Pirate's Code: (the URA is merely "guidelines," and does not give rise to a private right of action by a property owner). 
• Who gets paid: owner at time the court issues order of possession, or the owner at the time the condemnor actually possessed? If you said the former, you'd agree with the Nevada Supreme Court. 

Here are some other cases we didn't have time to cover, but which you may find of interest:

• Ninth Circuit (2-1) concludes that inverse condemnation judgment which has not been reduced to judgment can be discharged in bankruptcy. 
• Virginia Supreme Court: the term "and" really means "or" in Virginia's precondemnation entry statute. 
• Iowa Supreme Court considering whether the PUC's determination of public convenience also determines whether a taking is for public use. 

Below is a "reverse" view of the opening session, taken from the audience's perspective. Great crowd, a record number (again). 

Finally, if you are here attending, please stop me and say hello. 

ALI-CLE Palm Springs (72º, Sunny) Here We Come

If you didn't register to attend the 36th Annual ALI-CLE Eminent Domain and Land Valuation Litigation Conference later this week in Palm Springs, California, well then, shame on you!

According to the National Weather Service, while you and the rest of the country is freezing, we'll be enjoying the balmy desert climes, and discussing the topics we love: eminent domain, redevelopment, relocation, regulatory takings, trial and appeal strategies, doctrinal changes on the horizon, hot topics (border wall, pipelines, wildfires, and flooding), and others. 

Featuring a national faculty (many new to the ALI-CLE dais), and attendees from the entire spectrum of practice, academia, and the bench. 

If you are not joining us, be sure to follow along on the blog (we will post updates daily), and on Twitter (@invcondemnation, @ALI_CLE #EminentDomain2019). And plan on joining us in 2020, when we'll be in a new city (by popular demand!). And if you have topics or speakers to propose, start thinking about those as well. 

Hot (Eminent Domain) Topics, Cool Jazz

Don't Miss the 2019 Eminent Domain Litigation Conference from American Law Institute CLE on Vimeo.

Check out this sound blurb, produced by the good media folks at ALI-CLE, about the upcoming Eminent Domain and Land Valuation Litigation Conference. (And no, we didn't record this in a jazz club; although I wish we had.)

There's still time to register, and come and join us in Palm Springs. 

NJ Appellate Division On Land Banking: "Take Now, Decide Later What To Do With It" Isn't Good Enough

Here's the decision in a case we've been following from afar in which our colleagues Anthony Della Pelle and Robert McNamara are on the side of property owners, Borough of Glassboro v. Grossman, No. A-4556-17T2 (Jan. 7, 2019). 

This is redevelopment, New Jersey style. We ask that you read the opinion (it isn't terribly long, and it is worthy of your perusal in its entirety), but here's the bottom line:

[W]e hold that if a landowner within the redevelopment area contests the necessity of a condemnation pursuant to N.J.S.A. 40A:12A-8(c), the statute logically requires the condemning authority to articulate a definitive need to acquire the parcel for an identified redevelopment project. That articulated need must be more specific than the mere "stockpiling" of real estate that might, hypothetically, be useful for a redevelopment project in the future. In addition, the condemning authority in such a contested case must present to the court at least some evidence – consisting of facts, expert opinion, or both – that provides reasonable substantiation of the need. To hold otherwise and allow the condemning authority merely to proclaim a need, without having any obligation to substantiate its existence, would improperly read the term "necessary" out of the Legislature's enactment.

Slip op. at 2-3.

If you think that sounds kind of familiar, you'd be right. The opinion cites one of our favorite cases, City of Stockton v. Marina Towers, 88 Cal. Rptr. 3d 909 (Ct. App. 2009), in which the court held that a "take first, decide later" what to do with the condemned land was not a valid public purpose supporting a taking. 

Here, the Appellate Division rejected the Borough's argument "that it can satisfy the necessity requirement of [the statute] by simply declaring that it wishes to stockpile a parcel for some possible future need in the redevelopment area." The court concluded that "[t]hat sort of inchoate or speculative justification -- aptly described by defendants as 'land banking' or 'land assemblage' -- does not suffice to establish necessity under the statute." Slip op. at 19-20. 

To do that, the condemnor "must do more than recite that a parcel it seeks to condemn has some unexplained necessity to the overall redevelopment area or the redevelopment plan. Instead, there must be particular redevelopment project identified and tied to the proposed acquisition...Our point is that there must be an explained linkage between the property to be acquired and the identified project." Slip. op. at 22. 

We understand that condemnors are kind of used to getting their way, even -- or especially -- in court. But come on, the standards for public use and public purpose (and "necessity") are not really high, are they?

Is it that difficult to have an actual use in mind for land that is being taken at the time the land is being taken? 

Linkage!  

Borough of Glassboro v. Grossman, No. A-4556-17T2 (N.J. Super. App. Div. Jan. 7, 2019)

Space Remaining Is Limited - Register Now For ALI-CLE Eminent Domain And Land Valuation Litigation Conference (Palm Springs, Jan. 24-26, 2019)

We're almost there, but we still have room remaining. At the 2018 Conference in Charleston, we both sold out the registrations and the conference hotel, so we planned ahead for the upcoming 2019 Conference in Palm Springs at the Renaissance Palm Springs Resort. 

Register here. You will also be able to download the print brochure (above), or find out more details about the agenda and faculty on line. As always, we have assembled a great faculty -- many of them new speakers -- on the hottest topics in eminent domain and takings law: pipelines, jury presentations, challenging the take, an update on the most important decisions of 2018, pre-condemnation planning (from both the condemnor and property owner perspective), the border wall, and relocation. 

And of course, ethics and the "101" track for those new to the field, or experienced lawyers who would like a refresher on the basics. And these featured presentations:

• JFK: The Assassination, the Zapruder Film, and Just Compensation - Judge Andrew Edison and Justin Hodge
• Keynote Address - Property Rights: Foundation for a Free Society – President W. Taylor Reveley (College of William and Mary, Emeritus)
• Tips and Traps for the New Eminent Domain Lawyer –Andrew Brigham, Thor Hearne, Justin Hodge, Mikaela Rivera, Jack Sperber, and Joseph Suntum
• Earth, Wind, (Water), and Fire: A Report From te Front Lines of the Flood and Wildfire Inverse Cases –Thor Hearne, Professor Shelley Saxer, and Edwin Smith
• Responding to Misconceptions and Urban Legends About Eminent Domain in Popular Media – Andrew Gowder, Mark Murakami and Kelly Sheeran

As always, there are sponsored receptions and other networking events so you can meet your colleagues from across the nation. 

We have already exceeded the conference room block at the Renaissance (which means there are still rooms available at the conference hotel, just not at the discounted conference rate). But fear not: ALI has secured three overflow room blocks at nearby hotels (our Conference is in downtown Palm Springs), so there are many options for lodging remaining. ALI has also booked the very largest conference facilities, so registrations is still ongoing, and we likely will not sell out like in Charleston. 

But you never know. This program is growing in popularity and attendance, with each year exceeding the last. So don't delay, make your hotel booking now, and register to come join us in January. 

Link's From Today's Eminent Domain Conference (Scottsdale)

A very good and active crowd for today's Eminent Domain Conference (CLE International) in Scottsdale, Arizona. It was good to visit with some old friends, and also to get to meet some new colleagues.

Our talk focused on national trends, and this year's most interesting condemnation and takings cases. Here's the links to the cases I mentioned that are not in the written materials:

• Texas Court of Appeals: "Rail Construction Cutting Off Access Can Be Inverse Condemnation - Even When There's Been No Taking."
• Garretson: Arizona Supreme Court on access. Oregon goes the other way: "Cutting Off Direct Highway Access Is OK, Provided Property Isn't Totally Landlocked."
• California: "Increasing A Nonprofit's Losses May Result In A Business Goodwill Claim."
• The Colorado public use cases: public use vs. public purpose: Lafayette and Carousel Farms.
• Louisiana: Violet Dock Port - public use approved, but replacement cost should be considered in the just comp calculus.
• "Before" really means before: Post-Kelo statutes: how effective? (Georgia)
• Tribal immunity: land only partially owned by a tribe is off limits to eminent domain. 
• Highest and Best Use could include "conceptual plans" (Florida)

PS - the pic above isn't me -- I was too wrapped up in the presentation to snap one -- but is of the speaker who took the lectern right afterwards. Great stuff.

Audio: Our Interview With Author Howard Mansfield - "The Habit of Turning The World Upside Down - Our Belief in Property and the Cost of That Belief"

Earlier this week, we spoke to Howard Mansfield, author of the recently-published book "The Habit of Turning the World Upside Down - Our Belief in Property and the Cost of That Belief."

His book is about property, property rights, and how these ideas are processed by the American psyche. But instead of the usual scholarly (and very often dry) treatment of these topics that we might expect – especially those of us in the legal and academic world – Mr. Mansfield takes a slightly different approach. He relates stories of how property fits in with the culture – the different and often competing narratives that are attached to the notion of property – and the often-contradictory way in which we in the United States view the idea of ownership and possession.

Listen to our interview above (Sound Cloud stream), or if that does not work for you, stream it below or simply download the mp3 here.

A great read, and a perfect gift for those on your holiday lists.

Prof. Gideon Kanner: "Bye, bye General Motors Poletown Plant"

Following the announcement that GM will be closing its Detroit-area Hamtramck assembly plant (originally a Cadillac plant), comes the reminder that it wasn't supposed to be that way. This was the area, after all, condemned for "economic development" in the infamous Poletown case. 

But as the Detroit Free Press reported in "GM's Hamtramck plant closing reopens old controversy in Detroit," "[m]aybe the naysayers were right all along." Yes, the Michigan Supreme Court righted the ship later, in County of Wayne v. Hathcock, 684 N.W.2d 765 (Mich. 2004), but that came too late to save the Poletown property owners.

For some commentary from someone who was there, check out Professor Gideon Kanner's most recent post, "Bye, bye General Motors Poletown Plant," where he writes, "This caper cost the taxpayers some $200 million and it spared GM having to pay its full tax share. It was supposed to produce thousands of jobs. But it didn’t. By the time the dispatch about closing this plant came from the Detroit Free Press, there were only 1500 employees at that plant instead the 5000 that were promised."

A sad, and mostly predictable, end. 

Check out his post here. 

ALI-CLE Eminent Domain And Land Valuation Litigation Palm Springs Brochure Is Out

Get ready. In this and upcoming posts, we're going to be featuring the items on our agenda for the upcoming ALI-CLE Eminent Domain and Land Valuation Litigation Conference, January 24-26, 2019, in sunny Palm Springs, California. 

ALI-CLE has released the brochure, which those of you on the mailing list should have received -- or will be receiving -- in your brick-and-mortar inboxes. If not, download it here. Looking it over, you will see that we have assembled a great faculty with expertise in the range of issues that are driving our branch of the law, locally and nationally.

And, as always, one of the best aspects of this conference is the collegiality. Our attendees and faculty find that one of the most beneficial parts of the conference is to meet your colleagues from across the country, and talk shop about the issues we love.  

Of course we will hit the eminent domain, takings, and compensation issues that are in courtrooms and headlines nationwide. But we will also have sessions on practice, theory, and ethics:  

• Property Rights: Foundation for a Free Society - with our Keynote Presenter, W. Taylor Reveley, III, President Emeritus, The College of William and Mary, John Stewart Bryan Professor of Jurisprudence (and Dean Emeritus), William and Mary Law School.
• JFK: The Assassination, the Zapruder Film, and Just Compensation - The Honorable Andrew M. Edison
• Run for the Border: Fence and Wall Condemnations 
• Issues in Eminent Domain That Invite Ethical Mistakes: Staying on the Straight and Narrow
• Earth, Wind, (Water), and Fire: A Report From the Front Lines of the Flood and Wildfire Inverse Cases
• Responding to Misconceptions and Urban Legends About Eminent Domain in Popular Media

Registration is ongoing. We sold out the room last year, so be sure to sign up now. Don't wait, and plan on joining us in Palm Springs in January. 

2019 Brochure, ALI-CLE Eminent Domain and Land Valuation Litigation Conference (CA007), Palm Springs, 

2018 Brigham-Kanner Property Rights Conference Report: Emerging Issues

Last week, the 15th Annual Brigham-Kanner Property Rights Conference saw the gathering of legal scholars, judges, lawyers, and law students at the William and Mary Law School to award the B-K Property Rights Prize to Cardozo lawprof Stewart Sterk, followed by a day-long conference focusing on Professor Sterk's work and the latest developments in property rights law.

Professor Sterk joins the pantheon of property law scholars (and a judge and a practitioner) who have been awarded the Prize. Pretty impressive:

As always, the program starts off with a candlelight dinner and award presentation in the historic Wren Building, definitely a highlight of the Conference. More about the Conference here. 

And there's nothing like spending the following day addressing some of the most pressing issues in our area, along with the brightest minds in the business (below is the final panel of the day, with Professor John Echeverria of Vermont Law School, Jim Burling of Pacific Legal Foundation, Professor Tim Mulvaney of Texas A & M Law, and Professor James Stern of William and Mary Law). What I really like about the Conference is that it isn't a "mutual admiration society," but that there is true disagreement and debate, all done in a spirit of civility and friendship. 

I spoke on the noontime panel about "Other Emerging Issues in Constitutional Protection of Property" along with Professor James Ely, and colleague Christina Martin (who earlier in the week was second-chairing the Knick arguments). The entire program was videotaped, and I'll post the sessions when they become available. But in the meantime, here's a summary of my remarks on the Emerging Issues panel.

* * * *

Emerging Issues in Property

Good afternoon, my name is Robert Thomas, and I'm a civil rights lawyer. A human rights lawyer. Because, as we all know, private property is a civil right -- importantly, for today's discussion -- a federal civil right.

And that is context which frames the subject of my portion of our panel today about "emerging issues" in property. I'll be focusing on recent trends in the courts, and then try to fit these cases into my internal "matrix,” in which property rights are on a continuum. From "property" rights, to private property rights, ranging from the "baseline" (also otherwise known as "common law," "natural law," "fundamental principles," Lockean, "normative" (and what would an academic conference be without at least a single use of the term "normative?), "Restatement," whatever you want to call it), to state-recognized and state-created property rights.

Fundamental Federal Property Rights

To me, the former is the most fascinating of the emerging issues, especially the Ninth Circuit decision which Professor Brady mentioned, in which the court concluded that the interest on state retirement accounts is not subject to a state court's redefining it out of existence, because interest is a "core" and "traditional" property right that the state could not disavow or define away. This was a very Blackstonian approach, one recognized by Justice Thurgood Marshall in his concurring opinion in PruneYard Shopping Center v. Robins, where he wrote:

I do not understand the Court to suggest that rights of property are to be defined solely by state law, or that there is no federal constitutional barrier to the abrogation of common law rights by Congress or a state government. The constitutional terms "life, liberty, and property" do not derive their meaning solely from the provisions of positive law. They have a normative dimension as well, establishing a sphere of private autonomy which government is bound to respect.

PruneYard, 447 U.S. 74, 93-94 (Marshall, J., concurring) (emphasis added). We have also seen more recently -- although less expressly -- in Murr v. Wisconsin, 137 S. Ct. 1933 (2017), where eight Justices rejected Wisconsin's argument that the state could define and redefine what counts as "property" with a totally free hand. After all, the majority in that case imposed a federal common law multi-factor test for the takings "denominator" (in reality, defining the property at issue). The dissenters also rejected Wisconsin's argument that it alone defined the parcel, concluding that even though state metes and bounds is the starting point in the parcel analysis, it isn't the only thing to look at.

In short are there "background principles of federal law" in the concept of property? (Like Justice Marshall, I think so.)

Thus, the fixation of the Supreme Court on an owner's expectations should mean little in the equation, and it seems to me like judges' judges expectations count for a whole lot more.

That's the first emerging issue, and the most important in my view.

State-Created or State-Recognized Property Rights

The second is that if there's a federal baseline, what about when a state recognizes more rights (not less) as "property?"

Before we get into that, a sidebar observation that I am not certain is all that important, but may be worth exploring. Is there anything to be made of the fact that the Fifth Amendment is the only provision in the constitution that refers to "private" property? The others such as the Due Process clauses of the Fifth and the Fourteenth Amendments, for example, only refer to "property” without the modifier "private."

Here's one recent example where the difference may make a difference.

In In re Maui Electric Co., Hawaii Supreme Court held that the Hawaii Constitution's provision guaranteeing a right to a "clean and healthful environment" is "property." But the District of Columbia Circuit held the opposite in a FERC case reviewing Pennsylvania's similar "clean air and pure water” constitutional provision, concluding it recognized "property," but that's not really "property." You can't sell it, you can't exclude others from it, nor is there any value you can place on it. Thus, to the court, it was not truly property, because it did not fall within the "traditional" concept of property. Thus, it was not due process property. Federal baselines anyone?

The provisions in the Hawaii and Pennsylvania constitutions guaranteeing a clean environment are state-created entitlements like the state job in Board of Regents v. Roth -- something someone has a "legitimate claim of entitlement" to. Like Kaiser Aetna's right to exclude the public from the pre-development fishpond. Cultural rights in the Hawaii telescope case referred to by Professor Callies earlier today, and the procedural rights in the Tenth Circuit's M.A.K. v. Glendale case, where the court concluded that the city's blight designation did not have a direct impact on property in the land (it was merely a designation), but the lack of notice of the blight designation did on the property owner's right to timely appeal the blight designation, the due process property being the state procedures themselves.

A Right to Have the State Protect Property?

The next emerging issue is whether there is a fundamental or baseline property right -- or a state-created property right -- to have the government act to protect your property? Professor Mulvaney has explored this in his recent work on Non-Enforcement Takings, and in the courts we see this played out in several recent interesting cases:

• The Federal Circuit's decision in the Mississippi River-Gulf Outlet case, in which the Court of Federal Claims held after trial that the United States had taken property belonging to Saint Bernard Parish because the Corps of Engineers constructed -- and then failed to maintain -- MRGO, such that when Hurricane Katrina hit, the channel amplified the storm's effects by serving as a bowling alley for the hurricane's force, with Saint Bernard Parish and the Ninth Ward as the pins. The CFC awarded a very large compensation verdict and the government appealed to the Federal Circuit. That court (any guess which judge?) reversed, concluding that as a matter of law, the federal government could never be liable for a taking caused by its inaction, thus adopting a categorical rule in a flood case even though the Supreme Court in Arkansas Game told the lower courts that it wasn't fond of categorical rules.

• We see a state court version of this going the other way in Maryland, where the court held that a local government's failure to enforce it septic tank regulations was the cause of flooding you-know-what onto a nearby campground. That was a taking, even though based on government inaction. This goes back to the distinction between takings and inverse condemnation on one hand, and government's tort liability for negligence on the other.

• We've seen that vibe playing out in the state court litigations in California resulting from last year's devastating wildfires in northern and Southern California and the resulting inverse condemnation claims.

• Finally, this issue has also arisen in lawsuits where taxicab medallion owners have sued local governments for not enforcing those same medallion regulations against ridesharing companies.

To me, these are the most critical "what is property" and what does it mean issues that we should be following.

Two Other Issues

Two other burgeoning issues ripe for clarification:

First, Just Compensation. It has been more than thirty years since the Supreme Court has given us a just compensation case, and it is not because the law of just compensation is remarkably clear.

Two competing threads in compensation law still have yet to be resolved. Whether the purpose of the Just Compensation Clause is to make an owner whole -- indemnity, the "the full and perfect equivalent of the property taken" -- or is it simply to pay for the fair market value of the land alone? We know what the answer should be (the former), but the courts just don't seem to want to get it.

Second, business losses associated with a taking. Same for the fees and costs the owner incurs in defense of her property rights, especially when the government has low-balled valuation. 

One Last Thing: What The Hell is a "Taking?"

And I cannot leave the podium without asking the most fundamental question the Supreme Court has not resolved: what the hell is a taking? It's been nearly 100 years since the Court told us that an exercise of a power other than the eminent domain power can result in a taking, but it still is not sure what a cause of action looks like, most recently evidenced earlier this week in the Knick oral arguments, where it appeared that only two or three of the Justices even understand what an inverse condemnation or regulatory takings lawsuit means, and what property owners who raise these claims want. Most of the questions to counsel on Wednesday were scary because they reflected the Justices' wrong -- and in some cases, bizarre -- assumptions.

I don't see the Justices comparing apples and oranges, but rather they believe they are eating oranges when in fact they have tangerines. Thus, the biggest issue I see is that the majority of Supreme Court does not understand eminent domain law fundamentals. Lacking that analytical foundation, they end up operating under a set of often-wrong assumptions. Assuming, for example, that the inverse condemnation and regulatory takings tangerines are just like the eminent domain oranges they are used to biting into. I do not have a lot of confidence in the Court's ability to lead us out of the doctrinal wilderness -- or at least not make it worse -- after last Wednesday's Knick arguments.

But enough of doom and gloom -- please allow me to end on a more positive note: hearty congratulations to Professor Sterk for a well-earned Brigham-Kanner Property Rights Prize. Welcome to the pantheon of greats, Professor Sterk!

Join Us For The 36th Annual ALI-CLE Eminent Domain & Land Valuation Litigation Conference In Palm Springs (Jan 24-26, 2019)

Our colleague and co-planning chair Joe Waldo was in town yesterday, so we walked through historic Williamsburg, Virginia (cradle of the Constitution and the Bill of Rights), to invite you to join us for the 36th Annual ALI-CLE Eminent Domain & Land Valuation Litigation Conference (January 24-26, 2019, in Palm Springs, California).

As we wrote in this post, the Conference will feature the nation's best eminent domain faculty, presenting on the topics we love.

Register now here. Early registration and group discounts available. The 2018 Conference in Charleston sold out, so be sure to sign up now so you don't miss out. 

ALI-CLE 2019 Eminent Domain And Land Valuation Litigation Conference, Palm Springs Agenda - Register Now!

You've known for a while that Palm Springs, California, specifically the Renaissance Palm Springs Hotel (a resort facility, but right in town, so you will have many options for "off campus" activities like art museums, the aerial tram, golf, and whatever suits your fancy, and close-in to the Palm Springs Airport), is the venue for our 2019 ALI-CLE Eminent Domain and Land Valuation Litigation, January 24 through 26, 2019.

Of course, you also knew that the programming would be the usual spread of topical and cutting-edge topics, presented by some of the nation's experts. But we didn't give you the details. So here are some of the programs we're having: 

• Keynote Address: "Property Rights: Foundation for a Free Society" - Taylor Revley, most recently the past President of the College of William and Mary, and also former law school Dean (as well as a long-time leader of one of Virginia's most prominent private firms) will deliver the keynote. We're very lucky to have secured his participation, and his talk will focus on both the practical and the theoretical.
• Relocation: we're doing two separate panels on relocation issues. This is a growing area that many of us unfortunately overlook. No longer -- here's your chance to find out the latest: "How to Work Through a Complicated Relocation, From A to Z: Making it Happen" and "Mass Relocation and Navigating Cultural Conflicts: Displacement of Immigrant and Refugee Communities."
• "Knick of Time: A First Look at the Supreme Court's Revisit of Ripeness: Are Takings State or Federal?" We look at the arguments and the Court's opinion in the case that may upend Williamson County ripeness in regulatory and inverse cases against local governments (which may be issued by January).
• "Earth, Wind, (Water) and Fire: A Report From the Front Lines of the Flood and Wildfire Inverse Cases." Flood, wildfire, and other inverse cases present big issues, nationwide. 
• Loss of Access and Damages: How to Prove Just Compensation"
• "Palazzolo, Preexisting Regulations, and Reasonable Likelihood of a Regulatory Takings Judgment as Elements of Just Compensation." Hear directly from the source how you can present the case when preexisting regulations are claimed to depress the market value of land. 
• "Eminent Domain and Property Rights in the Popular Media: How to Respond to Misconceptions and Urban Legends."  Eminent domain and takings stories in the media and social platforms are rife with misinformation. How do you correct the record? 
• Two programs on the hot pipeline issue: the first focuses on challenges to the power to take and environmental and regulatory challenges, while the second is about "Compensation Pitfalls: How to Avoid Problems."
• "Run for the Border: Fence and Wall Condemnations." The idea of building a barrier along the southern border has burst on the headlines - what do you as a takings lawyer need to know?
• "Fight the Power: The Impact and the Valuation of Power Lines in Partial Takings" - takings for energy corridors continue to dominate; find out how this might affect value from lawyers, engineers, and scholars. 

And more (including an Ethics session for those of you who need the MCLE credits).  And the usual 101 track, for those new to the practice, or for experienced lawyers looking for a refresher.

As planning chairs, we've made a special effort to include on the faculty speakers from different backgrounds: property owner lawyers, condemning agency lawyers, right of way professionals, academics, engineers, relocation experts, and appraisers. We think you will like the line up.  

The full agenda, along with the speakers, will be published shortly by ALI-CLE. We'll announce it here, when ready. 

But don't wait, register now here. Early registration and group discounts available. 

Also: we have settled on the 2020 venue, and will make the announcement in Palm Springs. You asked for this venue, and we're bringing it to you!

Earlier this year, we had a fantastic conference in Charleston. Sold out. Attendees reported having a great time, and learning a lot. Our aim is to build and grow the Conference, and you joining us in Palm Springs is another step in that direction.

Ping me if you have questions. 

Links And Materials From Today's Transportation Research Board Session

Here are the cases and other items I either spoke about or mentioned at today's Transportation Research Board's 57th Annual Workshop on Transportation Law in Cambridge, Massachusetts:

• The Colorado public use cases: public use vs. public purpose: Lafayette and Carousel Farms
• On the Supreme Court docket: Violet Dock Port (SCOTUS, Louisiana)
• The Louisiana Supreme Court's ruling on valuation of a unique property (replacement cost vs fair market value)
• "New" property vs. "old" property - environmental rights as "property" (CADC, Hawaii)
• Tribal immunity from eminent domain (CA10, cert denied)
• Public can use the electricity produced, not the land taken (but that's good       enough) (SD)
• Utility takings: Claremont (Cal), Missoula (Montana)
• Post-Kelo statutes: how effective? (Georgia)
• The relationship between condemnation and inverse: Stimson (NC)
• Inverse vs. tort, part II: MR/GO and Katrina flooding (CAFED)
• Maryland: government inaction could result in inverse liability (Maryland)
• Objecting to eminent domain is a political opinion (CA9)
• Highest and Best Use could include "conceptual plans" (Florida)
• Causing a nonprofit to lose even more money is considered compensable "goodwill" under California law (California)
• Billboard valuation - loss of income isn't compensable, but there is more that one way to still get it (NC)
• Larger parcel, quick take deposit (Hawaii)
• Here's the amicus brief we filed in the above case, which cites Baetjer v. United States, 143 F.2d 391, 395 (1st Cir.) (condemnation on island of Vieques caused severance damages to parcels on Puerto Rico), cert. denied, 323 U.S. 772 (1944).
• Federal Relocation Act, inverse condemnation, and attorney fees  (West Virginia)
• The larger parcel in inverse cases (aka the "denominator" issue) (SCOTUS)
• Bye bye, Williamson County? (SCOTUS)
• Palazzolo applied (NY)
• Judicial Takings Redux - Martin's Beach (SCOTUS)

Thanks to my fellow speakers -- Bernadette Duran-Brown and Laura Curry -- and to the organizers of the Conference for asking me to be here. 

SCOTUS Amici Brief: Kelo Revisited - Louisiana Case Is An Opportunity To Clarify Eminent Domain Pretext

Here's the amici brief we're filing in an important Public Use case we've been following.

In St. Bernard Port, Harbor & Terminal District v. Violet Dock Port, Inc., No. 2017-C-0434 (Jan. 30, 2017), the Louisiana Supreme Court upheld the taking by the St. Bernard Port, Harbor, and Terminal District of a Mississippi River docking facility downriver from New Orleans. The Port took the entire VDP facility, made no change in how the property was used, and eventually turned over operation of the facility to a "hand-picked" private operator. The owner challenged the power to take, as well as the compensation awarded. We filed an amicus brief on the issue of compensation, arguing that just compensation isn't limited to fair market value, but the jury must be allowed to consider replacement cost for a unique property like VDP's facility. 

The Louisiana Supreme Court held that the Port has the power to take the docking facility so that the Port could operate the facility.The court also rejected the owner's argument that the real purpose was to take over VDP's valuable Navy contracts and to halt competition. The court held the record suggested the real reason for the taking was because the Port was at capacity and "sought to expand its cargo operations." But the court agreed with the owner (and our brief) that the compensation awarded was not enough, and send the case back down for more.

But VDP doesn't want compensation, it wants to keep its property, so it filed a cert petition asking the U.S. Supreme Court to review the Public Use arguments. Our amicus brief addresses when a reviewing court should take a harder look at the condemnor's stated reasons for a taking. 

Rather than restate the brief, here's the Summary of Argument:

In a nation seemingly besieged by a vortex of divisive issues, you only need to glance at a newspaper to understand that eminent domain is one of the most contentious. Takings for pipelines. Protesters sitting in trees. Blight designations supporting condemnations for a new plant for a multinational electronics manufacturer. There is even an “Eminent Domaine” winery. But unlike many other hot-button issues, the focus on eminent domain has an easily-identifiable point source: this Court’s decision in Kelo v. City of New London, 545 U.S. 469 (2005).

In Kelo, this Court’s majority approved the taking of non-blighted family-owned homes, concluding that seizing property from one private owner and turning it over to another private owner for purposes of economic development was generally consistent with the Public Use Clause as long as it was accomplished within the confines of a transparent and objective overall development plan. Thus, the public purpose of the development plan of which the taking is a part (and not the public use of the specific taking being challenged) is the measure of constitutional validity. See id. at 480 (“The disposition of this case therefore turns on the question whether the City’s development plan serves a ‘public purpose.’”).

The reaction was swift. See Ilya Somin, The Grasping Hand: “Kelo v. City of New London” and the Limits of Eminent Domain (2015). The majority ruling resulted in a “massive and unprecedented political reaction . . . [which] attracted intense and widespread hostility.” Ilya Somin, The political and judicial reaction to Kelo, Washington Post, (June 4, 2015). Forty-five states and the federal government “enacted legislation intended to curb economic development takings; this is probably the broadest legislative reaction ever generated by any Supreme Court ruling.” Ilya Somin, The Judicial Reaction to Kelo, 4 Albany Gov’t L. Rev. 1, 2 (2011) (footnotes omitted). The ripple effect of Kelo was felt across “partisan, ideological, racial, and gender” lines. Id. The public’s reaction was no less intense. The decision resulted in mass-market books. See Jeff Benedict, Little Pink House: A True Story of Defiance and Courage (2009); Carla T. Main, Bulldozed: “Kelo,” Eminent Domain and the American Lust for Land (2007). Susette Kelo’s story was even dramatized in a feature film. See Little Pink House (Korchula Productions, 2017).

But this legislative and public reaction has resulted in only limited protections for property owners on the target end of abusive takings, because state laws are often riddled with exceptions adopted to favor special interest groups, and in application, property owners such as Petitioner continue on an uneven playing field. See Harvey M. Jacobs and Ellen M. Bassett, All Sound, No Fury? The Impacts of State-Based Kelo Laws, 63 Planning & Envtl. L. 3, 7 (2011) (“But among a set of supporters and advocates of these state laws there appears to be a broad consensus that there has been little substantive impact from them. Overall, the laws are characterized as more symbolic than substantive in nature and content.”). Highly deferential judicial review continues to limit the proper role of the judiciary as a check on the legitimacy of the exercise of eminent domain authority.

Kelo recognized that an exercise of eminent domain “under the mere pretext of a public purpose, when its actual purpose [is] to bestow a private benefit,” would be unconstitutional. Id. at 478. Kelo left unresolved the question of when a taking—ostensibly for public use—will instead confer private benefit because it was not “executed pursuant to a ‘carefully considered’ development plan, there was “evidence of an illegitimate purpose,” and the result is “to benefit a particular class of identifiable individuals.” Id. The Court did not further address the question because “[s]uch a one-to-one transfer of property, executed outside the confines of an integrated development plan, [was] not presented in [that] case. While such an unusual exercise of government power would certainly raise a suspicion that a private purpose was afoot, the hypothetical cases posited by petitioners can be confronted if and when they arise.” Id. at 487 (footnotes omitted).

This is that case. The Port’s taking of a fully-functioning docking facility and turning it over to a previously identified competitor to operate was not part of a publicly beneficial plan, and this case includes all of the factors identified by Kelo as indicators of pretext: a known private beneficiary driving the process; no integrated or independent development plan; little public benefit from the taking; and an exercise of eminent domain so unusual that it shows the actual character of the taking was not public use or purpose. Because of these factors, the Public Use Clause required that the courts consider the case with less than the usual deference and should have viewed the taking with heightened scrutiny.

Amici make three points in this brief. First, meaningful judicial review under the Public Use Clause is essential because the political process does not adequately protect property owners from abusive takings. The record in this case aptly illustrates how favored private players can capture the process, even while the condemnor’s stated purposes for the taking remain neutral. Second, Public Use Clause objections should be considered by applying the same analysis that the courts use where other constitutional rights are claimed to be denied by facially neutral government action. Finally, we set out the analytical and evidentiary framework which should have governed this case.

This Court is uniquely positioned to calm the waters on the question of when a taking of property “for the purpose of conferring a private benefit on a particular private party” passes Public Use Clause muster. Id. at 477.  This case presents an excellent vehicle to do so.

Br. at 3-7 (footnotes omitted). 

Stay tuned as always. Or follow along on the Court's docket. 

Brief of Amici Curiae Owners' Counsel of America and Institute for Justice in Support of Petitioner, Violet... 

Arrested Eminent Domain Protester Still Can Sue City For First Amendment Violations

This one is more for our muni law friends, but today's post also has two eminent domain angles. 

Anyone who has been to a city council meeting knows at least one fellow like this, considered a pain-in-the-butt by officials. A gadfly, who testifies on seemingly every issue. This is Fane Lozman, eminent domain protester (among other things). Familiar to readers as the Houseboat Guy. Or, more accurately, the "Floating Home" Guy who took the City of Riviera Beach, Florida to the U.S. Supreme Court once before, on the arcane issue of whether his floating home was a houseboat subject to admiralty jurisdiction. The Court held it wasn't, and wasn't. 

The houseboat affair wasn't the end of it for Mr. Lozman, who already was "an outspoken critic of the City's plan to use its eminent domain power to seize homes along the waterfront for private development," according to the latest (second) U.S. Supreme Court opinion in his favor. (That's the first eminent domain angle, if only a minor one.) He remained a constant presence at city council meetings, until one day, he got arrested after he refused to stop speaking, "this time about the arrest of a former official from the City of West Palm Beach." Slip op. at 3.

He sued, but lost his retaliation claim. Eventually the Supreme Court agreed to review this question: "whether the existence of probable cause defeats a First Amendment claim for retaliatory arrest under §1983." Slip op. at 5.

Even though Lozman conceded there was probable cause for the arrest for not leaving the podium after his allotted time expired and he refused to yield the microphone, the Court (Justice Kennedy and everyone else except Justice Thomas), concluded he has a claim, and the existence of probable cause to arrest him did not absolutely cut off his ability to sue for retaliation. Because he wasn't suing the officer who arrested him (but the City itself) and therefore had to prove that retaliating against him was official municipal policy, "there is a compelling need for adequate avenues of redress." And here's your second eminent domain hook, a proving pretext angle. 

The Court held that "[a]n official retaliatory policy is a particularly troubling and potent form of retaliation, for a policy can be long term and pervasive, unlike an ad hoc, on-the-spot decision by an individual officer. Slip op. at 11. Sound familiar, those trying to prove that an official statement supporting the reasons for a taking isn't really what is going on? As the Court noted, "An official policy can also be difficult to dislodge." Id.  For sure.

Unfortunately there wasn't much more about how to go about doing that, but at least it is some recognition from eight Justices that people in these situations face a difficult task. Hopefully they will keep that in mind when they next consider the pretext issue. 

The Court sent the case back down to the Eleventh Circuit to consider, among other things, a list of "factors" (this is Justice Kennedy, after all). See slip op. at 12-13.  

Check it out for more. 

Lozman v. City of Riviera Beach, No. 17-21 (U.S. June 18, 2018) 

This Is How You Do It: Colorado App Looks Behind The Curtain, Invalidates Spite Taking For Improper Motive

Here's a very important decision eminent domain decision we've been waiting to drop.

As the caption might indicate, the Colorado Court of Appeals' opinion in City of Lafayette v. Town of Erie, No. 17CA0595 (June 14, 2018), isn't your usual "condemnor vs private property owner" case. The question was whether one municipality -- a home rule city -- could take land from a neighboring statutory city. Framed that way, the issue seemed like one more to warm the cockles of municipal law junkies than takings mavens.

But no, this one should be read by every condemnation lawyer. Because it details a subject we've been thinking about a lot lately: how to ferret out an improper motive in a taking in which the condemnor's stated purpose appears to be public. Read on. 

As noted above, this dispute was between two Colorado municipalities. Essentially a border dispute where the towns were merging together in the exurbs along the corridor of Highway 287. The Lafayette side of the corridor had plenty of development: a big Walmart, fast food restaurants, an auto repair shop, and a King Soopers supermarket, along with a residential development. 

Erie wanted to get in on the development of the Highway 287 corridor. It formed an urban renewal authority, and purchased two vacant parcels (together, now called Nine Mile Corner). A few years later, Erie annexed Nine Mile from the renewal agency. 

Turns out (surprise, surprise, surprise!) that the Nine Mile parcel was blighted. Time for urban renewal and development! And just who might the new tenant of the saved-from-blight property be? King Soopers, the same supermarket with an outlet just down Highway 287 in Lafayette. King Soopers wanted to ... sooper size ... as it was, in the court's words, developing "a larger store prototype." Erie's Nine Mile property looked mighty good. 

Lafayette, it seems, wanted to keep its King Soopers ("and its corresponding tax revenue," as the court put it). If you want the parcel next to the Walmart, let us know, KS. Apparently, no deal. 

Things moved fast. Just a couple of months after Lafayette found out about King Soopers maybe moving next door to the Nine Mile parcel in Erie, the Lafayette city council approved the taking of the land:

for the public purpose of open space and benefits associated with open space, as well as preservation of Lafayette's local and unique character, and buffering of Lafayette from development activities in neighboring communities.

Now hold on, Erie said, Nine Mile is in our town, not Lafayette's, and it can't grab land we own (that's our AO).

When Lafayette's offer to buy the land was refused, it filed an eminent domain lawsuit. Erie objected, arguing the condemnation lacked a public purpose. After a two day hearing, the trial court agreed, this purpose of this taking was to stop Erie from developing the parcel:

The articulated need of acquiring open space for the purpose of creating a community buffer between Lafayette and Erie is inconsistent with Lafayette’s actions in development the Hwy. 287 corridor. Instead, Lafayette’s actions are more closely aligned with a previously articulated goal to ensure that Erie does engage in commercial development on Nine Mile Corner.

The court of appeals affirmed. The court sideskipped the muni law issue of whether property owned by a statutory city can be taken by a home rule city. Apparently both cities assumed Lafayette could reach outside its borders and take, as long as it had the right reasons. The court noted that a Colorado home rule municipality can, generally speaking, take land outside of its borders, even property already devoted to public use, as long as the the taking is for a public purpose. 

But the court focused on Lafayette's actual motive for the taking, concluding that the taking was motivated by Lafayette's desire to keep King Sooper from opening a larger store prototype just over the border in Erie. And interestingly, the court also found that Lafayette's stated necessity was pretextual. (Yes, necessity.)

The court concluded Lafayette had an improper motive "to interfere with Erie's proposed commercial development." Slip op. at 15. No deal, even where the advanced public purpose (buffer zone) is, on its face, a public use:

The stated public purpose of an open space buffer is valid, but blocking Erie’s planned development— planning that predated Lafayette’s condemnation petition — is not lawful.

Slip op. at 15 (citing R.I. Econ. Dev. Corp. v. Parking Co., L.P., 892 A.2d 87 (R.I. 2006)).

Interestingly, the court looked at the factual record (not just the stated reasons for the taking), and tested whether Lafayette's claim that it needed a buffer zone would not be satisfied by means other than taking Nine Mile Corner. For example, "Lafayette presented no evidence showing why the setback incorporated in Erie's development plans would be insufficient to serve as a community buffer."). Slip op. at 17-18. 

The taking was pretextual. The court concluded:

Because Erie, as the property owner, met its burden of showing bad faith, see Goltra, 66 P.3d at 174, the district court properly examined Lafayette’s finding of necessity to determine, with record support, that the taking to establish an open space community buffer was pretextual and was not a lawful public purpose. See Glenelk Ass’n, 260 P.3d at 1120. The court also indicated that Lafayette’s public officials were highly motivated to keep King Soopers — and the corresponding tax revenue — within Lafayette. Accordingly, the record amply supports the district court’s findings.

Slip op. at 18.  

Here are your takeaway points:

• Courts don't have to just accept whatever the condemnor says its reasons are for the taking. Slip op. at 13-14 ("Lafayette's argument hinges on its belief that because the Lafayette city council determine this condemnation was necessary, the district court cannot look behind that determination to see if it was motivated by bad faith. This is incorrect."). 
• If there's an allegation of bad faith (improper motive), the court gets to take a hard look. Slip op. at 12 ("Without judicial review of condemnation actions, there would be no end to one entity subverting another entity's condemnation action by initiating one of its own.").
• Some public benefit resulting from the taking won't necessarily save it. Slip op. at 12. Motive, not the percent of public benefit, is what counts here. 
• The way to see whether the stated public purpose is indeed public, the court looks to the record. Slip op. at 14 (citing City & Cty. of Denver v. Block 173 Assocs., 814 P.2d 824, 828-29 (Colo. 1991)).   
• Similarly, a condemnor's statement of the necessity of the taking is subject to review for bad faith/improper motive. Slip op. at 13. But only bad faith. Without an allegation of improper motive, a court cannot reweigh the need for the taking. Id. ("Thus, if bad faith is at issue, courts may look behind an entity's stated condemnation purpose and finding of necessity."). 
• The trial court did the right thing to test Erie's claim on bad faith by conducting a hearing to consider the evidence. Slip op. at 14.
• When the condemnation isn't sui generis, but there's a factual record of stuff that happened before the condemnor decided to take, the reviewing court should dive into that record. Drafting a neutral resolution of taking isn't going to insulate the condemnor from this sort of review. Slip op. at 15-16. 
• When the trial court makes these type of factual findings about the condemnor's motive, the appellate court will defer. Slip op. at 15. 

To us, the Colorado Court of Appeals got it right. Motive, not stated reason, is what matters. The fact that a taking motivated by stinky reasons might also have some public benefit, or that there were good motives mixed in with the bad, isn't enough. It doesn't matter, for example, that a taking may be for a public road, if the taking was motivated by other, nonpublic reasons. 

One final note: you often hear about what we call "spite takings." So-and-so is a bad guy, so let's take his property. These have always stuck us as silly proposals, subject to invalidation for the reasons the Colorado court articulated. 

Sidebar: the opinion includes the color map and the property image, above. We wish more courts did this.

City of Lafayette v. Town of Erie, No. 17 CA0595 (Colo. App. June 14, 2018) 

10th Cir: When City Declares Property Blighted And Subject To Condemnation, It Must Tell The Property Owner

You might not think that the conclusion which the U.S. Court of Appeals for the Tenth Circuit reached in M.A.K. Investment Group, LLC v. City of Glendale, No. 16-1492 (May 14, 2018) would be all that controversial: when private property is declared by a municipality to be "blighted" and subject to redevelopment (and eminent domain), the municipality needs to tell the owner about it, even if the taking may occur somewhere down the road. But apparently it was not obvious, for it took years of litigation to figure it out.

Colorado's urban renewal statute permits local governments to designate private property as blighted (by looking at eleven factors), take it any time within the next seven years, and transfer the land to a new private owner. An owner has a very short time window -- 30 days -- to challenge the blight determination by filing a lawsuit in a Colorado trial court. The statute's notice provision:

As for notice, the statute requires a city to notify property owners in two instances: (1) when the city begins a study regarding blight involving their properties, and (2) when the city will hold a hearing regarding its intention to acquire property for public or private redevelopment. See § 31-25-107(1)(b), (3)(b).

But when it comes to the results of these blight hearings, the notice requirement depends on whether the city found the property at issue blighted or not. Strangely enough, Colorado’s statute requires a city to mail notice to those whose property it does not find blighted, but does not require a city to notify those whose property it does find blighted. See § 31-25-107(1)(b). The statute also takes care to note that “[n]otwithstanding any other provision of law, any determination made by the governing body . . . shall be deemed a legislative determination and shall not be deemed a quasi-judicial determination.” § 31-25-105.5(2)(c).

Slip op. at 5-6. 

MAK's property was included in Glendale's "Riverwalk" redevelopment project. The City told MAK it was studying whether the property was blighted, and would hold a public hearing "to approve the Riverwalk Urban Renewal Plan." But the City did not tell MAK that the hearing "related to the possibility of future condemnation proceedings" against MAK. Slip op. at 6. At the hearing, the City found that the property was blighted. But the City didn't tell MAK about that finding, nor did it tell it that this opened the 30-day repose period for MAK to challenge the blight determination. By the time MAK found out several months later, it was too late, baby.

MAK sued in federal court under § 1983, asserting the Urban Renewal statute violated its due process and equal protection rights. The District Court dismissed the complaint.

The Tenth Circuit reversed. We're going to focus on the due process claims, because those were the most interesting. MAK made two distinct challenges. First, that the statute did not provide adequate notice to MAK that its property was blighted. Second, that the City had an obligation to provide MAK with notice of the 30-day repose period, and because the statute did not require it to do so, the statute is unconstitutional.  

The court first identified MAK's property interest. The City argued that the statute did not jeopardize MAK's property, because a blight determination only subjected MAK's land to possible future condemnation, and didn't actually take the land. The court concluded, however, that MAK's property interest was the (statutory) right to judicial review. Ah, a government-created "entitlement," aka New Property. Slip op. at 10 ("This state-created cause of action constitutes a protected property interest."). Id. at 11 ("M.A.K. had a property interest in its statutory cause of action to challenge the blight determination process for abuse of discretion.") (footnote omitted).

Having concluded MAK owns due process property, the court addressed its two lack-of-notice claims, that the property was determined to be blighted, and that this opened the 30-day challenge window. The court concluded that the City was required to have told MAK about the blight finding, but was not required to inform it of the 30-day challenge period. Slip op. at 16 ("Applying this intuitive rule, we conclude due process required Glendale to provide M.A.K. with direct notice of the adverse blight determination. In contemporary terms this means notice had to be mailed, emailed, or personally served."). 

Without notice, MAK "was left unaware of the potentially looming condemnation action," id., and had no idea it could have and should have challenged the finding. 

When in the absence of notice, property owners are likely to lose a property right—in a cause of action or otherwise—the Mullane rule applies. At that point, the state must take reasonable steps to provide enough notice for reasonable persons to realize they must investigate possible remedies.

Slip op. at 17. The court rejected the City's argument that MAK and other property owners have a duty to keep up on things, and even if MAK could have been more diligent, that alone did not relieve the City of the duty to give an owner notice that the City has made a determination that may affect the owner's rights. Read the opinion from pages 18 through 29 for the court's analysis of each of the City's related arguments. 

The court had a different view of the City's duty to tell the owner specifically about the 30-day repose window and its ability to challenge that decision in court. Slip op. at 29. The court held the government's due process obligation to provide ends after it tells the property owner about its decision, and it is up to the owner to figure out what it might do next. Slip op. at 29-30. Property owners have a duty to keep themselves informed about avenues of relief:

The right to seek review within thirty days is publicly accessible in a statute. Had M.A.K. been notified of the blight determination, it could have turned to "public sources to learn about the remedial procedures available to [it]."

Slip op. at 30-31.

In sum, Glendale needed to tell MAK of Glendale's blight determination, but it didn't need to tell MAK what it could do to challenge that decision. That responsibility falls on MAK. 

While we appreciate this analysis, we think the better rule would have concluded that the City owed MAK notice of both the city's decision and MAK's avenues of relief. The court recognized that its ruling created a circuit split with the Second Circuit's decision in Brody v. Village of Port Chester, 434 F.3d 121 (2d Cir.2005) -- which held that due process requires both notice of the government act, and the avenue of review -- (and, by the way, with the Hawaii Supreme Court's ruling in Kellberg v. Yuen, 131 Haw. 513, 319 P.3d 432 (2014), which adopted the same rule as Brody).

Brody and Kellberg concluded (rightly, we think, since we represented the owner in the latter case) that the burden on government to inform an owner of the government's own process for review is so minimal that it it really is no burden at all. Also, these are the government's own procedures, and this isn't a game of hide the ball, littered with traps for the unwary owner.

Government should be transparent when it does things that could end up depriving someone of their property, including the ways for the owner to contest the finding. Like the statutes and rules in Brody and Kellberg, Colorado's urban renewal law is dense text, 37-single-spaced pages, and probably not so easily understandable that the "average landowner" would realize it has a very short window in which to react (and in a very specific way).

M.A.K. Inv. Group, LLC v. City of Glendale, No. 16-1492 (10th Cir. May 14, 2018) 

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

Here's what we're reading today:

• The latest in that 15-minute jury verdict in a federal court regulatory takings case: the owner is now seeking attorneys' fees. Here's the motion. More on the case here ("State loses land-use lawsuit and must pay $1"). 
• "A Dangerous Development in Cape Town" (via City Journal) - "When the South African parliament passed a motion, by 241 votes to 83, to change the nation’s constitution to allow white-owned land to be expropriated without compensation, the Guardian, Britain’s equivalent of the Washington Post, was coy about reporting it. Even now, it has not mentioned the measure on its website, except indirectly." 
• David Crosby (of the law firm Crosby, Stills & Nash (and sometimes Young)) writes "Don't bring back redevelopment to California" in the San Francisco Chronicle - "When I learned that Kelo’s court fight would be turned into a movie, my son, James Raymond, and I offered to write a song for the film. “Home Free” expresses what every American should feel when they cross their threshold; we are in a place where each of us is shielded from the cares of the world. "
• Lawprof Molly Brady writes about "The Forgotten History of Metes and Bounds" in a forthcoming edition of the Yale Law Journal - "Using new archival research from the American colonial period, this Article reconstructs the forgotten history of metes and bounds within recording practice. Importantly, the benefits of metes and bounds were greater—and the associated costs lower—than ahistorical examination of these records would indicate."
• "Grow grass in your yard, or else," orders a Missouri court. "Blooming Ridiculous: Federal Judge Rules Property Rights Not 'Fundamental,' Okays Twenty-Year Prison Sentences for Growing Harmless Flowers" (via the Freedom Center of Missouri) -  According to the court's order, "Here, Plaintiffs have failed to identify a fundamental right that is restricted by the Turf Grass Ordinance. In their briefing, Plaintiffs characterize the allegedly fundamental right as a property right, the right to use private property in a harmless, lawful manner of the owner's choosing, and the owner's right to exclude unwanted persons and things from private property. However, these descriptions are too general and not in accord with the Supreme Court's 'tradition of carefully formulating the interest at stake in substantive-due-process-cases.' Indeed, if the Court were to recognize such broad property rights as fundamental, many, if not all, zoning laws would become subject to heightened judicial scrutiny."

Arizona Takings: Condemnation Summit XXII

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!

Land Use Institute - Detroit

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 two dates:

• 2018 Land Use Institute: April 11-12, 2019, Baltimore, MD (Royal Sonesta Harbor Court Hotel)
• 2020 Land Use Institute: April 23-24, 2020, Tampa, FL (Le Meridien Tampa)

Reserve the dates!

Wisconsin: "Special Benefits" In Eminent Domain Means "Uncommon Advantage," But Only Regarding Market Value

When the city condemned a portion of CED's property back in 2012 for a highway project (replacing an intersection with a roundabout), the city's appraiser testified that the taking did not confer any "special benefits" to CED's remainder parcel. Eventually, CED and the city settled the case and the city paid agreed-upon compensation and severance damages. 

Flash forward a few years, and to help fund the roundabout project, the city adopted a special assessment and tagged CED and other nearby landowners. Based on its street frontage, the city charged CED a total of $40k, asserting that CED's parcel had specially benefited from the improvement project by, among other things, "a substantial increase in accessibility, which includes safer, lower cost, and short travel time for customer, deliveries and employees. These special benefits are different in kind that those enjoyed by the public for through traffic." The city acknowledged there were also community ("general") benefits brought about by the project, but argued that the presence of specific benefits to CED's parcel allowed it to make the assessment. 

CED appealed, asserting the project conferred only community benefits, pointing out that hey, during the condemnation, the city asserted the project did not confer any special benefits to CED's parcel, and arguing that the term "special benefits" has the same meaning in both Wisconsin's eminent domain code and special assessment statute:

because the City conceded "special benefits" did not accrue to CED's property during the Wis. Stat. ch. 32 eminent domain action, the City forfeited the opportunity to assert "special benefits" during the later special assessment appeal.

CED also submitted evidence in the form of an appraiser who testified that the project did not confer any benefits, special or general, to CED's parcel. The city, by contrast,  asserted the term "special benefit" has one meaning for purposes of eminent domain, and a different meaning when used in the special assessment statute. The trial court granted the city summary judgment because CED could not overcome the presumption of validity for assessments. The court of appeals agreed that the special assessment was reasonable as a matter of law. 

In CED Properties, LLC v. City of Oshkosh, No. 2016AP 474 (Apr. 3, 2018), the Wisconsin Supreme Court held that the term "special benefit" means the same thing in the eminent domain code as it does in the special assessment statute. But (and this is a finer point), this doesn't mean the term is used the same in both statutes:

CED and the City disagree on whether the term "special benefits" has the same meaning in both Wis. Stat. ch. 32 and ch. 66. CED argues that if it has the same meaning, then the City cannot take the position that no special benefits exist in a ch. 32 action but later assert special benefits exist in a ch. 66 action. We hold the term "special benefits" has the same meaning in both statutes, but that it is used differently in each context. Accordingly, the City is not barred from imposing a special assessment on CED's property to pay for improvements, provided the City establishes the improvements were local, conferred special benefits on CED's property, and were fair, equitable, and in proportion to the benefits accruing to the property. These issues involve questions of fact for the trier of fact to resolve.

Slip op. at 12. 

Generally, "'[s]pecial benefits' means "an uncommon advantage.'" Slip op. at 14. But in eminent domain, this advantage is linked to the market value of the property; in the special assessment statute, it is not linked. Thus, the court concluded:

We conclude that "special benefits" has the same meaning in each statute, but the failure to raise the issue of special benefits in an eminent domain action does not necessarily preclude a municipality from levying and collecting "special benefits" via a subsequent special assessment. Notably, in an eminent domain action, only special benefits accruing to the property that affect its market value because of the planned improvement are required to be considered and used to offset the value of the property taken. Wis. Stat. § 32.09(3). In contrast, special assessments upon property may be levied and collected for special benefits conferred on the property by the improvement, regardless of the impact on the property's market value; Wis. Stat. § 66.0703 is silent on the subject.

Slip op. at 19. 

So the city was not automatically precluded from claiming that a parcel is specially benefited by a project just because the city had claimed that it had not been benefited in an earlier condemnation.

But it did not mean the city's assessment here met all the requirements of imposing an assessment in the statute. The court held the city's earlier assertion that CED's parcel was not specially benefited should not have been ignored, and remanded the case to consider that fact, and others.

In other words, the city's earlier position, and CED's appraiser's affidavit contradicted the city's proffered evidence on special benefits, and revealed a dispute about a genuine issue of material fact, thus making summary judgment inappropriate. Slip op. at 31.   

CED Properties, LLC v. City of Oshkosh, No. 2016AP474 (Wis. April 3, 2018) 

There's Still Time To Join Us In Detroit: 32d Annual Land Use Institute

Space is filling up, but there's still time to join us later this month in Detroit for the 32nd Annual Land Use Institute (April-19-20). 

We'll let program Planning Chair Frank Schnidman explain all the reasons why, and we'll add only these points: (1) it's a very good program that won't take much of your time (fly in for the Thursday afternoon program, stay a night, fly home on Friday evening); (2) Detroit is the place to be these days; and (3) it's one of the best deals in CLE credits, with tuition as low as $400.

2018 Land Use Institute Brochure Detroit 5 2018

The Paper Chase Is On!

This fall, I'll be teaching a new course at the William and Mary Law School in Williamsburg, Virginia.

Here's the description of Property Rights: Law and Theory (Law 608) from the course catalog:

Property rights and property theory have been essential components of Anglo-American law for centuries, and the protection of the right of private property ownership is one of the foundations on which the U.S. Constitution, the Bill of Rights, and the post-Civil War Amendments are built. In more recent times, however, property law has taken on a new role, and has been viewed differently than in the past, especially in light of the development of environmental law and the evolving concept of public trust.

Property Rights Law and Theory will focus on the history, policy, and, to some extent, the politics of property law, property rights, and related legal topics. We will examine how the right of private property was developed in common and constitutional law, the relationship of property rights to other civil rights, the role of federal and state courts in protection of property rights, how private property squares with environmental law, and the proper “place” of property rights in the modern administrative state. Included in this will be a healthy dose of practical lawyering and analysis, including the study of recent (and ongoing) on-point U.S. Supreme Court cases.

As a colleague wrote, tongue firmly in cheek: "Not since John Marshall, Thomas Jefferson and George Wythe to name but a few studied in the Wren Building have property rights been taken so seriously at America’s first law school and second oldest college!" 

But seriously, this should be a lot of fun. I hope we get a good turnout. If any students at W&M are reading this, be sure to register. We'll learn stuff. 

As for the pic above, it's John Marshall's shoe on the statue of Marshall and Wythe which stands outside the front entrance to the law school. Why is his shoe untied? A free prize for anyone who can tell me the answer. 

April 19-20, 2018: Land Use Institute, Detroit (Printable Brochure)

Here's the printable brochure with the details on the 32nd Annual Land Use Institute in Detroit, April 19-20, 2018. We've plugged the program before so we won't do so again, except to say that you really should attend because (1) it's a very good program that won't take much of your time (fly in for the Thursday afternoon program, stay a night, fly home on Friday evening); (2) Detroit is the place to be these days; and (3) it's one of the best deals in CLE credits, with tuition as low as $400.

2018 Land Use Institute Brochure Detroit 5 2018

32nd Annual Land Use Institute: Detroit, April 19-20, 2018

Mark your calendars, plan to come: Detroit, April 19-20, 2018. For what is perhaps the best deal in CLE (tuition as low as $400), the 32d Annual Land Use Institute, sponsored by our section of the ABA, the Section of State and Local Government Law.

The venue is the Detroit Mercy School of Law, and the conference hotel is the historic Westin Book Cadillac in downtown Detroit. The Land Use Institute is being held in conjunction with the Section's Spring State and Local Law Conference. Register for one conference, and you are free to move between sessions (no additional registration fees).

Planning Chairs Frank Schnidman and Dean Patrica Salkin have assembled an excellent faculty and program for the two days. Topics include: "Nuts and Bolts of Land Use Practice: Vested Rights and Regulatory Takings," "Public-Private Partnerships," "Climate Change and Resilient Development," "Client Representation: Developer, Government and Citizen Groups," "Housing Supply and Affordability: Planning Alternatives and Legal Consequences," and "Community Benefits Agreements, Environmental Justice and Access to Housing." The Annual Richard Babcock Keynote Address will be by Wendie Kellington, "The Role of Planning and Law in Solving Homelessness." Complete agenda is posted here.

Other featured speakers: Dennis Archer, former Detroit Mayor (and Past President of the American Bar Association); Neisen Kasdin, former Mayor of the City of Miami Beach; Jared Fleischer, Quicken Loans; and Maurice D. Cox, Director, Planning & Development, City of Detroit. And, as always, a renown national faculty of land use law practitioners, scholars, jurists, and public officials. 

Come and join us in the reborn City of Detroit, where there's a lot to do and see.

Anti-Eminent Domain Protester Persecuted Because Of His Political Opinions

Mr. Song's tale is harrowing: His property targeted for redevelopment. Offered compensation, but he believed that local regulations required payment of at least 45% more. When he attempted to negotiate, local officials said no deal. So he organized a protest at which he and his neighbors held signs that said things like “opposed to forced demolition.” They also "chanted slogans like 'give me my fair compensation,' 'please do what is just,' and 'return to me what is mine.'"

For his troubles, he eventually was arrested, charged with "interfering with official duties." (This tale, as you may have already deduced, takes place in the People's Republic of China.)

During the three days Song was jailed, police tortured and beat him, and encouraged his cell mates to do the same. Song was forced to spend an entire night in a squatting position. The police also interrogated him about his alleged crime. When asked why he had gathered the crowd of protestors, Song maintained that the compensation the government had offered was not fair and was inconsistent with government regulation.

When Mr. Song did not knuckle under, "police beat him with a baton and electric baton until he passed out. Song suffered multiple injuries from the beatings, to the point that he was unable to walk." His family eventually bailed him out. He came to the United States on a visitor visa and sought asylum. 

The Ninth Circuit's opinion in Song v. Sessions, No. 14-71113 (Feb. 15, 2018) dealt with whether Mr. Song's actions fleeing his homeland were because he was being persecuted for his political views, or whether they were "motivated by a desire for increased compensation for his property," as the Board of Immigration Appeals concluded. The court noted that everyone agreed Mr. Song had been persecuted. But under federal law, a claim for asylum must be based on a person's actual or imputed political opinions.

The court first concluded that it didn't matter what Mr. Song's actual motivations here were, because it was enough that the local officials who persecuted him attributed a political opinion to him:

From the government’s perspective, Song was the leader of a large group of local residents protesting the government’s eminent domain policy. Song organized over one hundred people to block the entrance of a government building. He identified himself as a leader of the protest and told a government employee that the protestors were there specifically because they were subject to the government’s eminent domain policy. He refused to disperse the crowd until the residents’ concerns about the forced demolition of their building were heard. The Chinese government was familiar with such protests; the 2010 Human Rights Report confirms that forced relocation protests were “common” and that there was “widespread” animosity toward forced demolitions. It was in this context that government officials approached Song.

Slip op. at 10. The officials had acknowledged this when they accused Mr. Song "of holding anti-government views in response to Song’s assertion that the compensation he was offered was not consistent with government regulation." Slip op. at 11. 

The court concluded that this was an actual or imputed political opinion: "[a]ccordingly, we find that the record compels the conclusion that the government imputed an anti-eminent domain opinion to Song, and persecuted him for that opinion.being 'anti-government.'" Slip op. at 12.  Political opinions are not just beliefs about electoral politics or formal ideology or action, but includes claims for more compensation when property is being expropriated, and the natural actions which flow from that:

The record makes clear that Song not only sought additional compensation for himself, but also staged a public protest of more than one hundred neighbors and a sit-in refusal to vacate his building, accompanied by a statement that he would die for the cause, in opposition to the demolition. The IJ and BIA narrowly focused on Song’s “desire for increased compensation for his property” without taking into account the full spectrum of Song’s actions.

Slip op. at 12. 

Denial of asylum vacated, case sent back for consideration of whether Mr. Song met the other elements of the claim. 

This case highlights two points. First, property rights are civil rights, and standing up for your property rights is a political stance. Think about that any time you hear people criticizing those who object to the taking of their property by accusing them of merely trying to leverage more compensation. There is often a lot more going on in these cases than just merely money. This apparently wasn't Mr. Song's home, it was a "building in which Song had owned a commercial unit since 1997." Slip op. at 4. But the climate in which he operated was charged:  

Forced demolition was the leading cause of social unrest and public discontent in China in 2010. Affected residents often were not paid market value for their property, and sometimes received even less compensation than the government initially promised. Nearly 70% of respondents in one study reported that they had encountered problems with demolition and relocation, either relating to compensation or forced eviction. Government officials frequently colluded with property developers to pay those subjected to forced eviction as little as possible. Yet few legal remedies were available to displaced residents, local officials sometimes retaliated against those who tried to protest.

Slip op. at 4-5 (footnote omitted). We suspect that the deprivation of his dignity, and not money, was his biggest beef.

Second, even though the PRC has made some gains in the property rights arena (as we noted in a series of posts during and after the 2011 Brigham-Kanner Property Rights Conference held in Beijing, such as this post, this post, and this post), the idea of "property rights" in a officially socialist country remains anathema. It may claim to support property rights and private ownership, but the reality seems far different. As the above quote from the opinion notes, this stuff is the source of hundreds if not thousands of similar protests each year, most of which go unreported and never make even the back pages of western media. But if the plot line of "Wolf Warrior 2," China's biggest moneymaking movie of all time -- in which the Rambo-ish main character is drummed out of the People's Liberation Army because he supported a village objecting to eminent domain -- can be driven by this issue, you know this is a much bigger thing than we realize.   

Song v. Sessions, No. 14-71113 (9th Cir. Feb. 15, 2018)

Louisiana Supreme Court: Port Can Take Docking Facility To Run It Itself, But Fell Short Of Fully And Fairly Compensating Owner

Here's an important case we've been following out of Louisiana. 

The case is an appeal to the Louisiana Supreme Court in an expropriation case from a quick-take of a Mississippi River docking facility downriver from New Orleans. The Port took the entire VDP facility, made no change in how the property was used, and eventually turned over operation of the facility to a "hand-picked" private operator.

In St. Bernard Port, Harbor & Terminal District v. Violet Dock Port, Inc., No. 2017-C-0434 (Jan. 30, 2017), the Louisiana Supreme Court upheld the taking  of VDP's property by the Port so that the Port could run it itself. The owner challenged the power to take, as well as the compensation awarded. The Supreme Court held that the Port has the power to take the docking facility so that the Port could operate the facility: 

Consistent with the authority given to public ports to expropriate property, the trial court made a factual determination that the Port's purpose for expropriation was to "build and operate a terminal to accommodate transport of liquid and solid bulk commodities into national and international commerce to and from St. Bernard." This purpose falls squarely within the constitutional definition of "public purpose" for public ports.

Slip op. at 10. The court interpreted the "business enterprise clause" of the Louisiana Constitution, concluding that the Port's expropriation was not for the purpose of operating VDP's facilities or "halting competition with a government enterprise." Id.  Or at least the trial court was not "manifestly erroneous" when it concluded the clause didn't apply as a factual matter. The court also rejected the owner's argument that the real purpose was to take over VDP's valuable Navy contracts and to halt competition. Not so, held the court, the record suggested the real reason for the taking was because the Port was at capacity and "sought to expand its cargo operations."

As the Church Lady would say, "how convenient!" 

But on the issue of just compensation, the court agreed with the owner that it was undercompensated. The owner argued that because its property is unique, the lower courts' sole reliance on fair market value as the only applicable valuation standard was wrong, and that evidence of replacement cost should have been admitted. (We helped write the Owners' Counsel amicus brief which focused on the just compensation issues, arguing that replacement cost, not fair market value, was the correct measure of compensation.)

The Louisiana Constitution provides not only for just compensation, but also require the owner be compensated for "the full extent of loss." The court focused on the trial court's decision to accept the Port's expert's testimony:

Here, we find the trial court used the incorrect standard for evaluating experts' valuation testimony. Explaining why it accepted the Port's expert testimony rather than Violet's, the court stated: "It is the opinion of this Court that it does not have the discretion to 'split the baby' and arrive at a valuation somewhere in between" the two expert opinions. This is erroneous. A trier of fact is not required to make a binary choice and accept one side's testimony in its entirety, but is instead empowered to weigh strengths and weaknesses of expert testimony. To the extent the trial court held otherwise, this is legal error. ... Further this error was prejudicial to Violet insofar as the trial court set just compensation in the exact amount put forward by the Port's experts.

Slip op. at 15. 

Congratulations for our Owners' Counsel colleague Randy Smith for a win on the compensation issue. Something tells us he isn't quite done with the public use question and that we may see more. 

Here's a media report on the decision: "St. Bernard's seizure of private port didn't violate law, but price was too low, high court says."

St. Bernard Port, Harbor & Terminal District v. Violet Dock Port, Inc., No. 2017-C-0434 (La. Jan. 30, 2018)... 

ALI-CLE Eminent Domain Conference: Cases And Links From 2017 National Eminent Domain Update

Here are the cases and materials we discussed on today's lead off session on 2017's developments and trends in eminent domain law at the ALI-CLE Eminent Domain and Land Valuation Litigation Conference.

Above, our annual "proof of life" photo from the lectern showing that yes, indeed, we were all here in the room in Charleston (with record attendance, standing room only!):

• Colorado: Taking for public infrastructure use is not for a taking for a public purpose.
• Getting creative in right-to-take challenges in Texas: The Lazy W. Update from Texas lawyer Jeff Mead (Locke Lord): the case was briefed on appeal, but settled in the summer of 2017.
• Hawaii Supreme Court on looking behind the curtain in public use challenges: County of Hawaii v. C & J Coupe Family Ltd. P'ship.
• Proving pretext in public use challenges: lessons from First Amendment litigation: Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993).
• Georgia Supreme Court on the Pirate's Code and the "strict construction" maxim: the Georgia Property Owner's Bill of Rights are not mere "guidelines.".
• Latest Chapter in the NC Map Act Cases: State Does Not Have Sovereign Immunity From Takings: "sovereign immunity must be juxtaposed with the contrary sovereignty of the individual, whose natural rights preceded government and were enumerated in the federal Bill of Rights."
• Hawaii Supreme Court on the "larger parcel" and "conditional deposit" issues (the parcels need not touch).
• Here's the amicus brief we filed in the above case, which cites Baetjer v. United States, 143 F.2d 391, 395 (1st Cir.) (condemnation on island of Vieques caused severance damages to parcels on Puerto Rico), cert. denied, 323 U.S. 772 (1944).

Other cases in your materials but that we didn't cover in the presentation (but are still worth reviewing):

• Colorado App Clarifies State Constitution's "Damaging" Clause: Forcing A Neighbor To Provide Lateral Support Is Compensable.
• NC: Evidence Of Rental Income From A Billboard Is Admissible In Just Comp Trial.
• Virginia's "Buyback" Statute Requires Owner Pay Premium After Condemnor Devalues Property.
• Fla App: Highest And Best Use Doesn't Require Owner Have More Than "Conceptual Plans."
• Oregon Supreme Court on "Fees on Fees."
• We've Always Done it This Way: Brott v. United States and Article III judges and juries in federal inverse condemnation cases.
• The Staten Island case: owner proved it was reasonably likely that it would have proven a taking for preexisting wetlands regulations (and won a Penn Central case!).
• Maui beachfront case (would you pay $1 for the land?): Leone v. County of Maui and denial of "use," or denial of "value." Hawaii Adds To Lower Court Regulatory Takings Split: Is Leaving Land Vacant On The Hope It Is Worth More In The Future "Economically Beneficial Use"?
• Issues to watch: Inverse condemnation for wildfires and flooding.

Here's another view of the above picture, taken from the audience perspective (thanks to Tony Della Pelle for sending the pic our way). 

Also, here are materials which other speakers discussed:

• Restatement (SCOTUS) of Property: What Happened to Use in Murr v. Wisconsin? (our draft article with thoughts on Murr and the "three unities" test)
• Fla App: Highest And Best Use Doesn't Require Owner Have More Than "Conceptual Plans (the Sunny Isles Beach case)
• Idaho: You Aren't Special, Just Because You Had Your Property Taken
• Cal App: Increasing A Nonprofit's Losses May Result In A Business Goodwill Claim

Finally, as we mentioned above, this year we have record attendance. Thank you to all who are here in Charleston with us.

ALI-CLE Eminent Domain & Land Valuation Conference - In-Person Registration SOLD OUT (But You Can Still Join By Live Webcast)

Our upcoming American Law Institute-CLE Eminent Domain and Land Valuation Litigation Conference in Charleston, South Carolina has SOLD OUT our in-person registrations. 

We will have a record attendance (with over 100 first-time attendees) and the conference hotel has informed us that we can fit no more people in the meeting rooms. We cannot remember this happening before, but it tells us that we will have an energizing and exciting conference. 

Thank you to all of you who signed up and are coming or joining in online for the webcast -- we'll see you soon at the "four corners of the law."

And if you delayed too long in registering, please don't despair. You can still attend from home or the office because ALI has set up a live webcast of the sessions. Go here for more on how to sign up to attend by webcast.

And stay tuned: for 2019, we've already picked the venue (hint: west coast), and we are at a site which can accommodate as many attendees as can join us. We will make the formal announcement of the dates and location of the 2019 Conference in Charleston next week.

After we do, please make your plans and don't delay and risk getting left out! 

Tuesday Round-Up

Here are the things we are reading today:

• Hawaii has record-low unemployment and it’s not a frozen hellscape. Why are people leaving? (We think we know the answer.) From the Washington Post.
• Study: Ferry not feasible (via West Hawaii Today). Sorry folks, the Superferry is gone, and it ain't coming back.
• Once A Gas Station, Always A Gas Station? D.C. Sued Over Law Blocking Redevelopment - from WAMU radio. DC forces gas stations to stay in business.
• California lawmakers seek to stop ‘negligent’ utilities from hiking rates after disasters - from the Santa Rosa Press Democrat. If these are takings, then shouldn't we all be paying?
• East Harlem dry cleaner says city’s forcing him out of business after eminent domain dispute (via the New York Daily News). Same old story in NYC: nonblighted property declared blighted and subject to condemnation, courts helpless to do anything about it.
• Year in review: The Honolulu rail project: "The past year was an eventful one for Honolulu’s beleaguered rail project, with rail officials and lawmakers facing a $3 billion funding shortfall, a Federal Transit Administration deadline and a special session at the state Legislature to determine a funding mechanism for the project." (Pacific Business News)
• How Lincoln Center Was Built (It Wasn’t Pretty) (from the New York Times). (Hint: it was the same way that the New York Times was built.)

ALI-CLE Eminent Domain & Land Valuation Conference - There's Still Time To Join Us In Charleston

35th Annual Advanced Course

Eminent Domain and
Land Valuation Litigation

Live Program | Video Webcast | Video Webcast Segments

Thursday - Saturday, January 25 - 27, 2018
Francis Marion Hotel | Charleston, SC

Do not miss this popular conference! Intended for all eminent domain and land use practitioners, both experienced and those new to the practice. You can even customize the unique curriculum to work for you: freely go between the Advanced and 101 tracks, with additional tracks for Practice and Substantive law.

With a faculty of national experts who offer both condemnor and property owner perspectives, this is the big program, and the one you don't want to miss.

Recognized and experienced professionals representing the diverse stakeholders in these cases will discuss the issues hitting your desk today or in the future, including:

• Overlap of condemnation and regulatory takings: Murr and other blurred lines
• Takings and damaging by flood - case selection and other issues
• Identifying compensable damages in pipeline cases, and maximizing the potential recovery
• Condemnation of easements for railroad crossings and utilities
• Lucas 25 years later: property rights and global warming

Bonus feature: a screening of Little Pink House, the recently-completed feature film about the Kelo case.

And don’t forget about the ample networking opportunities. Connect with like-minded professionals and our top-rate faculty at a reception, luncheon, and fun social activities in the evenings.

Register today for this program in Charleston, SC – or register to attend via webcast. Register two or more from your organization and save.

Links And Materials From Today's Las Vegas Eminent Domain Conference

This photo of the view from the lectern at the start of the day
proves we really were in the room and not distracted by all the distractions
possible in Las Vegas

Here are the materials and cases which I spoke about earlier today at the CLE International Eminent Domain Conference in Las Vegas. I had the lead off session on updates, and my talk focused on cases that I didn't cover in the written materials:

• Colorado: Taking for public infrastructure use is not for a taking for a public purpose.
• Getting creative in right-to-take challenges in Texas: The Lazy W.
• Hawaii Supreme Court on looking behind the curtain in public use challenge: County of Hawaii v. C & J Coupe Family Ltd. P'ship.
• Proving pretext in public use challenges: lessons from First Amendment litigation: Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993).
• Georgia Supreme Court on the Pirate's Code and the "strict construction" maxim.
• NC: Evidence Of Rental Income From A Billboard Is Admissible In Just Comp Trial.
• Hawaii Supreme Court on the "larger parcel" and "conditional deposit" issues (the parcels need not touch).
• Here's the amicus brief we filed in the above case, which cites Baetjer v. United States, 143 F.2d 391, 395 (1st Cir.) (condemnation on island of Vieques caused severance damages to parcels on Puerto Rico), cert. denied, 323 U.S. 772 (1944).
• Colorado App Clarifies State Constitution's "Damaging" Clause: Forcing A Neighbor To Provide Lateral Support Is Compensable.
• Virginia's "Buyback" Statute Requires Owner Pay Premium After Condemnor Devalues Property.
• Fla App: Highest And Best Use Doesn't Require Owner Have More Than "Conceptual Plans."
• Oregon Supreme Court on "Fees on Fees."
• We've Always Done it This Way: Brott v. United States and Article III judges and juries in federal inverse condemnation cases.
• The Staten Island case: owner proved it was reasonably likely that it would have proven a taking for preexisting wetlands regulations (and won a Penn Central case!).
• Maui beachfront case (would you pay $1 for the land?): Leone v. County of Maui and denial of "use," or denial of "value." Hawaii Adds To Lower Court Regulatory Takings Split: Is Leaving Land Vacant On The Hope It Is Worth More In The Future "Economically Beneficial Use"?
• Issues to watch: Inverse condemnation for wildfires and flooding.

My thanks to Autumn Waters and Darius Dynkowski for asking me to present this session.

The view in the other direction
(courtesy of fellow faculty member Anthony Della Pelle)

5th Annual Hawaii Land Use Litigation Update - Hawaii State Bar Association

For those of you who want to listen only,
stream the audio below, or download the mp3 here.  

Every year, our partners (and land use and property law mavens) Greg Kugle and Mark M. Murakami present a one-hour tour-de-force update on litigation essentials in their field of practice to the Hawaii State Bar Association's Real Property and Financial Services Section. 

Links to the cases they discussed today (and more) are in the handout and below. 

Watch, listen, and learn.  

2017 Litigation Update - Hawaii State Bar Association Real Property & Financial Services Section 11-17-2017... 

2018 ALI-CLE Eminent Domain Conference: Early-Bird Registration Discount Now Posted

It's not too early to reserve your spot at the 35th Annual ALI-CLE Eminent Domain and Land Valuation Litigation Conference, to be held at the Francis Marion Hotel in historic downtown Charleston, South Carolina, January 25-27, 2018. 

We're finalizing the Conference details, but can report that the program will, as usual, feature expert presenters from across the nation, and both an in-depth update on the subjects we love, and a "101" track for those new to the field or who would appreciate a refresher. Check out some of the topics:

• Takings and Damaging by Flood: Case Selection Advice For Savvy Practitioners
• Quarterbacking the Case: Blocking Defenses, Controlling the Witnesses, and Converting for Verdicts
• We've Been Working on the Railroad: Utility Crossing Disputes
• Protecting Your Record,and Anticipating Appeals
• Lucas 25 Years Later: Property Rights in the Age of Global Warming
• Building and Growing Your Eminent Domain Practice With Social Media (and the Ethical Issues that Social Media Raises)
• Alternative Dispute Resolution in Condemnation: An Eminently Agreeable Solution
• Project Influence: How to Educate the Bench
• Should We Re-Think Regulatory Takings Law? The Takings Clause, Privileges and Immunities, and Due Process

And more. We've put together two-and-a-half days of programming, social events, and networking opportunities to get to know your colleagues. All in a city that is eminently walkable, and full of interesting history.  Here's a summary of the 2017 San Diego Conference. 

The Conference has been very well attended for the past several years, and the hotel has quickly sold out. So make your reservations now. Plus, an early-registration tuition discount is available if you register for the Conference how. Go here for more information. 

Come join us in Charleston in January. 

2018 ALI-CLE Eminent Domain & Land Valuation Litigation (Charleston, SC) Early-Bird Discount Registration Open

ALI-CLE has posted up the early bird registration page for the 2018 edition of the Eminent Domain and Land Valuation Litigation Conference, to be held January 25-27, 2018 in an exciting new venue, Charleston, South Carolina. 

We are putting the agenda and faculty together for the Conference (which, as always, will include the Condemnation 101 track for those new to eminent domain practice, or who could use a refresher course). There's a lot going on in our field, and we will put out the details and ALI will update the site once we finalize everything.  

There's a benefit to early registration: this year's conference in San Diego was at capacity, and signing up now will both reserve your spot, and get a discounted registration fee. 

Upcoming Free Takings Talk (Friday, June 16, 2017). But There's A Catch...

Mark your calendars for this Friday, June 16, 2017, at 2:00 p.m. Eastern Time for a free talk we'll be giving, "Regulatory Takings: Emerging Issues." 

Yes, it's free, but there's a catch: this talk is sponsored by the ABA Section of State and Local Government Law's Land Use Committee, and you have to be a Section member (or be willing to join us). One of the benefits of being a member is that you can sign on to these bi-monthly calls and learn about the latest developments in the broad range of topics the Committee covers. Ping me if you want to sign up.  

And what's the deal with the graphic above? Well, starting in August 2017, I'll be taking over as Chair of the Section (assuming my ABA colleagues do not come to their senses before then), and the big focus of the Chair is to lead the planning for the Section's two big yearly in-person conferences. For 2017-18, we'll be meeting in Savannah in October, and Detroit in the Spring. More on these conferences here. We've already secured the dates and venues, and the agenda and faculty planning is well underway. I invite you to come join us -- for my reasons why I am active in the ABA, go here.  

Rickrolling Rail

Honolulu Civil Beat has an interesting editorial today about the Honolulu rail project, the 20-station, 21-mile elevated steel-on-steel project now being built at a cost that was first projected at about $3.8 billion, and at last count is somewhere in the $8 - $11 billion range.

The editorial, "Honolulu Rail: City Needs To Get It Together Or Give It Up," posits that the "perpetually beleaguered rail project is still at least $2 billion short," and "the absence of any decisive leadership ... leav[es] taxpayers on 'a never ending hook.'" The City, the piece argues, needs to get its act together, because the people, "are by no means past the point of no return," and substantially modifying, or even killing the project and rebooting should not be ruled out.  

In our opinion, none of that will happen. Now that we are past the recent election -- yet another quasi-referendum on the rail project in which the anti-rail mayoral candidate was soundly defeated -- city officials feel they have been given the green light to get the project finished, whatever the eventual cost might be. The candid statement by New York City Mayor Michael Bloomberg about public officials' approach to projects in which a municipality's "prestige" become wrapped up is very applicable here: "Nobody's gonna remember how long it took. They're only gonna look and see that it was done."

Honolulu's mayor echoed this vibe:

“It’s like H-3, highly controversial; no one even talks about it today. And I believe rail will be much the same thing because people don’t believe it’s gonna work, no one’s gonna ride it and those kinds of things. But there isn’t a rail system built, as far as I know, anywhere in the country or the world that isn’t heavily used once it’s built and everyone says we should take it to more places.”

That new or increased taxes may be needed isn't going to be a serious impediment, now that the only real check on such exercises has been taken off the table by the voters. There may be objections by editorial boards, and political theater from officials, but in the end, the project will get built, no matter what it costs. They've just got to figure out how we (and by "we," we mean us, the taxpayers) pays for it.

As Sir Rick Astley famously noted, never gonna give you up! 

Related articles

Pacific Business News Details The Rail's Impact On Honolulu Property

Hawaii Business Magazine Asks: "How Much Will Rail Cost Us In the End?" Our Answer: As Much As It Takes

How Are They (I Mean *We*) Going To Pay For Honolulu's Rail?