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Last Night, I Shook Hands With Mr. Jefferson's Ghost

Like most "paranormal caught on camera" shots,
this one is grainy. But you can just make Mr. Jefferson out.

Colonial Williamsburg is adjacent to the William & Mary Law School, so from time-to-time, we'll take a walk over just to soak up the atmosphere. The vibe picks up in the autumn season, when the leaves are turning and there's a slight chill in the air. We try to time these visits for the evenings, because the atmo is particularly intense. 

And so it was yesterday afternoon and into the evening, as we were walking about CW that we happened to run into Thomas Jefferson, Esq., an up-and-coming Williamsburg lawyer, who was kind enough to spend a bit of time chatting. At the end of an educational and enjoyable conversation, we shook hands and went about our business.

A paranormal encounter with the spirit of Mr. Jefferson, author of the Declaration of Independence and the Virginia Statute of Religious Freedom? Had your blogger perhaps indulged in too much at the nearby meadery? Who ya gonna call, Ghostbusters? 

No, not quite. But very close. We know we used a clickbaity title to get you to read this post, but we're not being entirely accurate. We did not actually meet up with the otherworldly essence of Thomas J, or the ghost of lawyers past. 

But we came about as near as you can without actually holding a seance.

Every year, the W&M Legal History Society asks the fellow who portrays Mr. Jefferson at CW to speak to law students and lawprofs, and offer his thoughts about the legal profession, the study of law, his practice, and his life.

Not only does he do so with admirable candor (and even at times humor), he has always been willing  to respond to some very difficult questions about his life, his philosophy and politics ... and his personal conduct.

TJeff recounted studying law at William and Mary in
the building behind him, now the Governor's Palace.

The Society was kind enough to allow me to join them again, and we gathered at the home of Jefferson's mentor-in-law, George Wythe. After some questions and answers there, we walked a short distance to what is now known as the Governor's Palace in the heart of CW, but back in Jefferson's day was the building in which he studied law under Mr. Wythe's tutelage.

He discussed what he considers it his crowning achievement (our words, not his; he tends to avoid "crown" puns) -- the the Declaration of Independence, the Lockean theories behind it.

Locke wrote about life, liberty, and property, so why did Mr. Jefferson replace that last part with "the pursuit of Happiness?" What were you thinking? Using pursuit of happiness, he explained, was his way of suggesting that the purpose of government isn't limited to securing the right to property, but to something larger. Of course, acquiring and possessing property is a large part of happiness, but isn't all of it. It ties back to the notion that all men are created equal, he noted, because it includes people without property.

Jefferson also spoke about other issues, such as republicanism vs democracy, public virtue, the study of law, and even about his favorite violin piece. 

Mr. Jefferson remembering final exams
at William & Mary Law School. That darn curve!

To his credit, he was candid about his own faults and responded frankly to some pointed inquires from the law students. He acknowledged that he was hardly perfect, or even good. But he did point out that he was considered a class traitor at the time by his Virginia and southern peers for even suggesting that slavery should be abolished (as proposed by his draft Virginia Constitution, authored at the same time as the Declaration but never adopted), and for including a section in the draft Declaration (also stricken from the final version) pointing the finger at His Britannic Majesty for saddling the colonies with with what he described as a "cruel war against human nature itself," that violated the "most sacred rights of life & liberty in the persons of a distant people who never offended."

Pointing out as well a case from his Williamsburg law practice ("which I argued over in that building" he noted, pointing to the actual courthouse in which the Virginia General Court, the highest court in the Colony sat), Howell v. Netherland (1770).

There, Jefferson argued for more freedom not less, in case involving the legal indentured servitude of the grandchild of a mixed-race couple. He pointed out that his mentor Wythe represented the master (small town barrister practice often means you take the case as it comes, with your friends taking the other party), and that Jefferson lost the case.

All of the above, Jefferson suggested, should count for something when history judges me. We shall see, Sir.

Note: the fellow portraying Jefferson is outstanding, and looks and acts and speaks in a manner of what we imagine Jefferson to have been like, right down to acknowledging that he was not a great orator and expressed himself better in writing.

He never once broke character, and played his part so well that at times we had to remind ourselves that he is portraying Thomas Jefferson, and was not the actual Thomas Jefferson standing before us. It is funny how your mind can break down reality, sometimes. I guess this is why we enjoy plays and movies. After the students departed, I shook his hand to thank him for devoting his time to educating William and Mary law students that laws are made my decidedly imperfect people trying to create a "more perfect" union. 

So yeah, maybe I kind of did shake hands with Mr. Jefferson last night.

 

CA2: If You Want To Be A Land Use Player, You Gotta Play (And That Means Keep On Trying - Without Hitching Rides)!

This is one we've been meaning to post for a while, but something else always seemed to intervene.

In BMG Monroe I, LLC v. Village of Monroe, No. 22-1047 (Feb. 16, 2024), the U.S. Court of Appeals for the Second Circuit affirmed the dismissal of a statutory and constitutional challenge to the Village's .

The court did so on the basis of the surviving part of the Williamson County ripeness requirement, that the government has taken a definitive position on whether it will allow some development of the plaintiff's land under the challenged regulations.

BMG wanted to build 181 homes, so it developed plans for a mix of uses across several parcels, and development of related infrastructure like roads and a community center. This "did not conform to the zoning codes of the Village and Town." Slip op. at 4. The Village and Town were ok with the proposal, however, provided BMG "satisfied certain conditions" such as the look and feel of the buildings, and other architectural style points. Slip op. at 6. Conditional use approvals followed. Eventually, all looked good and the Village and Town granted conditional final approvals.

But when BMG submitted applications for the building permits on several of its lots, the building inspector balked, asserting the architecture and design were off and not what the conditions required. Permits denied. BMG chased administrative appeals to the Zoning Board of Appeals for some -- but not all -- of the lots. The ZBA eventually denied the filed appeals, concluding that indeed, the construction plans were not in conformity with the conditions on those lots.

Having exhausted its administrative remedies on some but not all of the lots, BMG sued. There wasn't a takings claim (BMG's claims included section 1983, Fair Housing Act, and equal protection), but the district court nonetheless applied Williamson County to dismiss the complaint as unripe.

The Second Circuit affirmed. BMG had not received the Village's "final decision" denying development. But wait, you say...I thought that you said that BMG lost the ZBA appeal? That's usually enough, isn't it? Yes, it did do that, but it didn't chase an appeal on all of the lots. Thus, "BMG's failure to obtain a decision from the ZBA 'leaves undetermined the permitted use of the property in question[.]'" Slip op. at 12 (citations omitted). 

BMG responded: the reason we didn't chase a ZBA appeal on those other lots was that doing so would have been futile. And we did get final approvals and ZBA denials on the other parcels in the group, so isn't that enough? No, according to the Second Circuit, rejecting the argument that "[i]n essence, BMG argues that its otherwise-unripe claims relating to Lots 1, 2, and 3 can hitch a ride on the ripeness of its claims relating to Lots 45 and 46." Slip op. at 13. 

And it didn't matter anyway because even those lots on which BMG chased and lost its ZBA appeals are not ripe because (you guessed it), BMG didn't also seek a variance. Slip op. at 14. Apparently, the Second Circuit sees a variance as some kind of super appeal after ZBA denial. And didn't BMG already get a "variance" (also known as a conditional  use permit)?

But that wasn't enough:

We conclude that after the ZBA affirmed the Village Planning Board’s finding that BMG’s construction plans did not comply with previously agreed-upon conditions, BMG was then required to “submit[] at least one meaningful application for a variance” to the Village Planning Board or ZBA to see whether it could apply clustering techniques in the multi-family district while using the new rear elevation, roof pitch, and siding materials.5 See id. Put simply, the SEQRA Findings provided the terms BMG had to abide by in order to depart from the normally applicable land-use restrictions in the Town and Village. As a result, if BMG wished to alter those conditions, it first had to seek another variance before proceeding to federal court. Cf. Southview Assocs., Ltd. v. Bongartz, 980 F.2d 84, 98–99 (2d Cir. 1992) (holding that, even where “the Board ha[d] denied[] . . . one application,” developer still faced burden of establishing that “submission of another application would be futile” (emphasis added)).

Slip op. at 17.

And finally, didn't Pakdel change the ripeness/futility standards? Not at all, according to the Second Circuit. See slip op. at 19. The more things change, the more they stay the same, no?

What's that old adage? If at first you don't succeed, try and try again? We know that in land use, that means as long as the government says it is willing to "clarify" or "change" its decision (something it almost always asserts it is able and willing to do), a court will very likely never hold it to task. Planning authorities know this, and as a consequence are hardwired to almost never say no, and only "no, but..." or "maybe." 

Until the Supreme Court wakes up to this dynamic, nothing is likely to change.

BMG Monroe I, LLC v. Village of Monroe, No. 22-1047 (2d Cir. Feb. 16, 2024)

Aloha To Another Semester Of U. Hawaii Land Use

There are some rewards for working late in the 808

Yesterday was the last day of instruction for the Spring 2024 semester at the University of Hawaii Law School. Did these last few months ever go by fast. 

A big thank you to Professor Mark M. Murakami, with whom I guest-lectured at the Old School (both of us earned our JD's at the Law School) over the semester, on such topics as Euclid, vested rights and development agreements, and of course limitations on the police power such as takings.

Although our students have another couple of weeks to finish up with their final papers, we can say with certainty that the future of Hawaii land use law is in good hands. We had some very intriguing and educational discussions over the past few months. 

Law of the Splintered Paddle

      
Old School chalkboards remain in some of the classrooms.
(A plus.)


Speaking of Old School, the original signage from
the Law School's original location is up in the front office.

Flora abounds on the U. Hawaii campus, as you might expect.
Not a bad place to learn the law. Or to teach the law.

We say a fond "aloha" to our new colleagues

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

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

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

Check em out.

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

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

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

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

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

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

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

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

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

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

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

Id.

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

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

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

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

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

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

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

CA6: "The distric court's ripeness determination, in turn, was plainly mistaken"

Before you get too excited by the U.S. Court of Appeals for the Sixth Circuit's opinion in Catholic Healthcare Int'l, Inc. v. Genoa Twp., No. 22-2139 (Sep. 11, 2023), a spoiler up front: this may be a good ripeness decision, but this isn't a takings case.

But you takings mavens may still want to take a quick look over the opinion for how the court deals with a ripeness argument in a case where the plaintiffs assert the Township violated their rights by denying (twice) its requests for a land use special permit.

The story is about a walking path created by Catholic Healthcare that contains fourteen "Stations of the Cross" "depicting the "story of Christ's last day." Slip op. at 1. The Township insisted that Catholic Healthcare obtain a special use permit, because the Township believed that the trail use is the equivalent of a church.

So Catholic Healthcare sought a special use permit, and twice the Township said no. The Township required removal of the trail. Catholic Health sued, asserting RLUIPA and constitutional claims, and sought a preliminary injunction allowing it to restore the trail. The district court dismissed, concluding among other things, that the RLUIPA claim was not ripe.

The Sixth Circuit rejected that conclusion. Relying on Pakdel, the court concluded that the Township had adopted a "definitive position" on how its land use regulations apply to the plaintiffs' uses and land:

The district court’s ripeness determination, in turn, was plainly mistaken. A claim is unripe when “it rests upon contingent future events that may not occur as anticipated or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300 (1998). In land-use cases, the necessary event is simply that the government has adopted a “definitive position” as to “how the regulations at issue apply to the particular land in question.” Pakdel v. City & County of San Fran., 141 S. Ct. 2226, 2230 (2021) (cleaned up). That has manifestly happened here: the Township has uniformly insisted that the plaintiffs obtain a special land-use permit for their religious displays; the Township Board has twice refused to grant them one, even when presented with an application limited almost entirely to those displays; and the Zoning Board of Appeals denied relief. Moreover, those events have “inflicted an actual, concrete injury” on plaintiffs, id., because the Township has actually forced them to remove the religious displays from their property.

Slip op. at 7. The district court held the claim was not ripe because in addition to receiving two permit application denials from the Township, Catholic Health had not also complied with the Township's administrative processes.

The court noted that "[t]he district court's mistake was to conflate ripeness (sometimes called 'finality' in this context) and exhaustion" when the district court held that the Township had not taken a final position until Catholic Healthcare had gone past the permit denial(s) and chased further administrative procedures. Slip op. at 8.

The Sixth Circuit held that one "no" is enough, and you don't really need a truly final decision (in other words, a decision that comes at the end of an administrative review process), but a court only need understand that the government is "committed to a position." Id. (quoting Pakdel, 141 S. Ct. at 2230). That this position might change later is of no consequence.

The opinion also made note of a good point - the ripeness requirement in these kind of cases (also takings cases) is there not to run the property owner through a maze of hurdles, but to ensure that the injury to the plaintiff is concrete enough. As the court held, "this case comes to us after Genoa Township has taken a definitive position, again and again, to the plaintiffs' concrete injury. Their claim is ripe." Slip op. at 8.

We think there are two good lessons to take from this one:

1. A reminder that ripeness does not require exhaustion. This isn't so much the "final decision" rule, but the "definitive position" rule. The Court meant what it said in Pakdel when it cautioned that the ripeness requirement is "relatively modest," and does not require exhaustion and crossing off all alternatives to get to a government's "yes." All it requires is a single "no."

2. The ripeness requirement is there so that courts can have confidence that the plaintiff has really been injured, which itself is a relatively modest requirement.

We suggest keeping those two things in mind in your next ripeness argument.

Catholic Healthcare, Int'l, Inc. v. Genoa Twp., No. 22-2139 (6th Cir. Sep. 11, 2023)

ALI-CLE's Eminent Domain & Land Valuation Litigation Conference (Feb 1-3, 2024, New Orleans): Why Attend? Here's Why.

Why is it, you ask, that the ALI-CLE Eminent Domain & Land Valuation Litigation Conference (scheduled next February 1-3, 2024, in New Orleans) is an event that seems to be growing in popularity and attendance. In recent years, we have standing room only in the Conference halls, and have sold out the hotel block. After all, this is a pretty niche area of law. So what gives?

When we were in Austin earlier this year, we thought it might be nice to try and answer that question. We asked Conference participants why they come, year-after-year (and in Austin, despite massive travel disruptions). Yes, it is the various venues (Nashville, Austin, Scottsdale, Palm Springs, to name a few recent locations), and yes, it is the excellent and useful programming.

But as we suspected it is more than that. As the above video notes, the consistent response from our participants about why the attend is the participants. The faculty and other attendees, the vendors. The collegiality, the chance to renew long-standing friendships, and especially the chance to make new friends and colleagues who share our passion for this area of law. The welcoming environment, and our desire to have lawyers and other professionals new to this area of law or new to the Bar feel at home and welcomed.

I can personally attest to that one, having been welcomed to a Conference long ago by Toby Brigham, who although he was one of the Chairs of the event, made it a point to notice that I was a new attendee, and to introduce me around to the "old hands."

We have also made a big effort in the last few years to include a range of professionals from various perspectives, including lawyers, legal academics, jurists, appraisers and MAIs, planners, right of way and relocation experts, and jury and trial consultants. Family members also welcome (there are a lot of "adjacent" social and networking events, and families are welcome as long as they don't mind a lot of "shop talk"). Our program is a mix of practical and substantive sessions.

We also have a special track on the first day of the Conference designed as a crash course in Eminent Domain law ("Condemnation 101"), which is a good place for an overview and introduction to the practice, or as a refresher course for those with more time under your belt.

In short, we try and make the Conference not just a place to learn the latest in eminent domain and related topics, but somewhere you can return to each year, and feel welcome.

So if you have not attended before, give us a try! We'd love to see you in New Orleans in just a few months. Registration and hotel reservation now open. Sign up now, and don't miss out.

Tomorrow Is Hawaii's Secular Good Friday Holiday - How So?

Even if the world were open tomorrow, the doors to most Hawaii state, county, and city offices would still be locked. Because Friday, April 7 is the day that Hawaii celebrates Good Friday.

Yes, Good Friday is an an official state-sanctioned holiday in the 808 area code, so we're reposting our annual recounting of how it came to be that the State commemorates the date of the crucifixion, and how that squares with the Establishment Clause of the First Amendment. 

Turns out that we don't really commemorate today as the crucifixion date, and it is just coincidence that the official State "spring holiday" occurs on the same day. (And this being Hawaii, in the end it's really a public worker union thing like a lot of things.)

Good Friday is a legal holiday in the State of Hawaii pursuant to Haw. Rev. Stat. § 8-1. [Barista's note: here's a case we argued a couple of years ago in which the difference between a state holiday and a federal holiday made a difference in the way a voter's appeal time was calculated.] The day of the crucifixion was originally made a holiday in 1941 by the Territorial Legislature. The statute was recodified upon statehood in 1959, and the holiday has been confirmed via Haw. Rev. Stat. § 89-1, the law that makes the establishment of public holidays -- among many other things -- a product of what the statute calls "joint decision-making" process between the government and the government employee unions (also known as collective bargaining -- and here it was you thought that elected representatives made laws).

The Establishment Clause, which has been incorporated against the states by the Due Drocess clause of the 14th Amendment, prohibits the government from establishing an official religion (the so-called wall of separation between church and state), and in 1987, several Hawaii taxpayers challenged the designation of Good Friday as a public holiday because it was plainly -- they claimed -- a religious, not secular observance.

The Hawaii federal court held otherwise in Cammack v. Waihee, 673 F. Supp. 1524 (D. Haw. 1987), concluding among other things that the Legislature made Good Friday a holiday to ensure that public workers have more days off, not to make sure they were religious: 

[T]he Good Friday holiday was primarily proposed to increase the frequency of legal holidays. It is also noteworthy to point out, as does the State in this case, that the legislative report seems to acknowledge that Good Friday is not an entirely religious day. The 1939 report characterizes Good Friday as  in theory at least a day of solemn religious observances, apparently reflecting the legislature's sentiment that Good Friday had lost much of its religious nature and had become a holiday similar in nature to Thanksgiving or Christmas which have been secularized to some extent over the centuries. Indeed, this court is also of the opinion that Good Friday has attained a secular character; for the majority of Americans Good Friday has become more an integral part of a traditional three day secular celebration of Spring which begins on Good Friday and continues through Easter Sunday than a solemn observance of Jesus Christ's crucifixion.

This court concludes that the secular purpose behind the establishment of the Good Friday is manifest. The legislature does not offend the First Amendment by enacting a statute intended to ensure that the people of Hawaii have an adequate number of leave days. This court further concludes that any ancillary sectarian purpose which the legislature may have had in establishing Good Friday as a holiday is not fatal to the Hawaii Rev. Stat. § 8-1, since  a clearly secular purpose  for the statute exists and since Good Friday, like Christmas, has become secularized to some extent over the centuries.

An examination of the effects of Hawaii Rev. Stat. § 8-1 leads this court to the conclusion that the legislature's intended purpose in declaring Good Friday to be a legal holiday has been fulfilled. While the plaintiffs argue that the effect of the Good Friday statute is to give Christian sects the imprimatur of State approval, an analysis of the effects of the statute compels this court to find that the secular effects of the statute significantly predominate over the sectarian effects of the statute.

The Ninth Circuit affirmed. See Cammack v. Waihee, 932 F.2d 765 (9th Cir. 1991). The majority of the three-judge panel noted that many people in Hawaii use the Good Friday holiday to go shopping, and held "[i]t is of no constitutional moment that Hawaii selected a day of traditional Christian worship, rather than a neutral date, for its spring holiday once it identified the need."

The court concluded that the presence of a plausible secular purpose for enacting the law made the holiday's religious nature effectively irrelevant; to violate the Establishment Clause, the legislature must have intended the Good Friday holiday to only serve a religious purpose: 

We conclude that the Hawaii statute has a legitimate, sincere secular purpose, specifically to provide Hawaiians with another holiday, and thus is not motivated wholly by an impermissible purpose. There is nothing impermissible about considering for holiday status days on which many people choose to be absent from work for religious reasons. That the state legislature was able to accomplish its secular purpose and at the same time accommodate the widespread religious practices of its citizenry is hardly a reason to invalidate the statute.

(citation omitted).

One judge dissented, arguing that a day off for Good Friday was not in any sense secular, and was a government endorsement of religion: 

The holly and the ivy, jingling bells, red-nosed reindeer, and frosty snowmen this is not. What this case is about is Hawaii's endorsement, by means of a state holiday, of a day thoroughly infused with religious significance alone. Because I believe that such a state establishment of religion violates both the purpose and effects prongs of Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). I respectfully dissent.

(Yeah, Lemon is now in the dustbin of legal history, but the new establishment test wouldn't likely change the outcome, would it?)

The dissenting judge argued that the court's duty is to seek out whether the legislature had a primarily religious purpose, rather than whether it had any legitimate secular purpose.

So even though you don't physically go shopping these days (thanks, interwebs), you might go to the beach today or simply want to take it easy. But if you do use that time to go to church -- either in person or virtually -- it is "of no constitutional moment." Because it is plausible, isn't it, that the State had a secular purpose when it officially sanctified "a religious holiday observed primarily by Christians commemorating the crucifixion of Jesus Christ and his death at Calvary?" 

As the Church Lady would say, "how conveeeeenient."

Mass SJC: Families Have No Common Law Property Right To Have Predecessors' Remains Remain In Cemetery

The Massachusetts Supreme Judicial Court's recent opinion in Church of the Holy Spirit of Wayland v. Heinrich, No. SJC-13326 (Mar. 14, 2023) isn't our usual takings-and-related fare, but it is straight-up Dirt Law and a bit land-usey so we're posting it. Besides, it is just what you need to perk up your ears midweek. 

The church, like a lot of churches, has a place where the dearly departed are interred. But this is not your typical cemetery or graveyard, but a "'Memorial Garden,' also referred to as a 'Churchyard[,]' [where] [p]arishoners could arrange for cremated remains (cremains" to be interred in the Churchyard by purchasing a certificate from the church." Slip op. at 3. Those certificates included a provision that subjected the purchaser to church regulation of the Churchyard "now or hereafter in force." Id.

Over the years, the problems besetting the church were more of the worldly variety: declining membership, financial difficulties. In 2015, it voted to close. The church itself was to be sold, and the offering included the Churchyard. Another church (St. Mark Coptic Orthodox Church of Boston) was thinking of buying, but objected, "largely because the Coptic Church's religious beliefs do not permit cremation." Slip op. at 4.

Eventually, the Church of the Holy Spirit agreed to disinter and relocated the cremains as a condition of the sale to St. Mark Coptic. The sale was completed, and St. Mark resold the property to another Coptic church (which had the same objection to the cremains remaining). 

The Holy Spirit church contacted the families of the 49 individuals whose cremains remained in the Churchyard. How about relocating and reinterring elsewhere at church expense, or we return the cremains to you? Most agreed. But a few did not. When no compromise could be reached, the church amended the Churchyard regulations to provide that if the church closed, the interred cremains could be relocated or returned to the families. The church then sued, seeking a declaratory judgment that the amended regulations allowed it to remove the cremains over any objections. 

The objecting family members counterclaimed. Not only was this a breach of contract, Massachusetts common law limits the power of the church to mess around with interred remains, and the family members "urge us to recognize that certain trust-like property rights are held by all families of those interred, rights that the church may not regulate out of existence by contract." Slip op. at 9.

After all, don't we call what's left of the dearly departed "remains" for a reason?

No, held the Mass SJC. The court surveyed its prior decisions, it held that the rights of the families are circumscribed by contract (the certificates, by which the families agree to be regulated by the church). Slip op. at 12 ("Review of our limited cases addressing burial rights reveals no common-law rights of the kind asserted by the families.") (footnote omitted). The court rejected a rule from Tennessee (Hines v. State, 126 Tenn. 1 (1911)), which recognized a type of trust, concluding the rule is "a poor fit for the case at bar." Slip op. at 13 (footnote omitted).

So there's no common-law right to have these remains remain. But the court was quick to caution that its rule is limited to the facts of this case, and "that in other circumstances a different result might obtain." Slip op. at 15. This is, after all, a "sensitive, difficult" topic, with a large human element.

Church of the Holy Spirit of Wayland v. Heinrich, No. SJC-13326 (Mass. Mar. 14, 2023)

Hawaii 5-80: Land Use Law At The University Of Hawaii

Starting in January, we'll be teaching the venerated, and oh-so-important Land Use course (Law 580) at the University of Hawaii's Law School.

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

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

Is there a bit of pressure on us to get it right? You bet. But are we looking forward to it (not just an opportunity to head back to the 808, but because this is a great subject)? You bet.

The Circle Is Now Complete: A Sampling Of Final Paper Topics From William and Mary Law's Eminent Domain & Property Rights, And Land Use Courses

If you ever get the opportunity to teach in a law school -- either as a full-time legal scholar, or part-time as an expert adjunct practitioner -- take it if you can. You might think you know a lot about a particular subject, but there's nothing like spending time at the lectern in a law classroom in front of sharp and eager lawyers-in-training to sharpen your thoughts, and get you to truly understand a subject.

And folks calling you "professor" can evoke a smile.

But if there's one downside to the law school experience from the teacher's side of the lectern, it's grading. Especially at a law school like William and Mary that has a pretty strict mandatory curve. In upper-division courses that we handle like Eminent Domain and Property Rights Law and Land Use -- where we're dealing with some very high-level stuff and the quality of the students is uniformly high -- that makes for some hard choices at this time of year. Despite these challenges, we've wrapped up grading for the Fall 2021 Semester, and have submitted the official scores.

Although I cannot share with you the students' final papers in these classes, I don't think they would mind if I give you a sampling of the topics and titles, just so you can see how the next generation of lawyers is thinking about property, property rights, takings, land use, and environmental law (inter alia). 

Check out these titles:

• The Many Saints of Land Use Law
• The Past, Present, and Future of Richmond Affordable Housing
• What's on the Menu? - The Future of Outdoor Dining and the Tension Between Land Use and Public Health
• Could Monetary Compensation Fully Indemnify Property Owners for Idiosyncratic Values in Takings Cases?
• The Lingering Effects of the Dawes Act on Tribal Land Use
• The Dawn of Debt and Everything Else: An Examination of the Works of Michael Graeber and the Role of Eminent Domain and Property Rights
• Inflation for Land Use Control
• Agritourism in Wine Country: Analysis of Accessory Uses in Napa Valley
• Judicial Exaction of Euclidean Deference Under Koontz
• A Review of Richard Rothstein’s The Color of Law: A Forgotten History of How Our Government Segregated America
• What’s on the Inside Counts: Why Historical Preservation Regulations Should be Allowed to Regulate Interior Landmarks and the Issue of Public Access
• Through the Buchanan Lens: Reframing Virginia Land Use Laws
• The Case for Equal Application of RLUIPA’s Equal Terms Provision
• The Government Giveth, and the Government Taketh Away: Retroactive Application of Inter Partes Review Under the Takings Clause
• The Right to Share: Is Virginia Beach’s Regulation of Short Term Rentals a Taking under the Takings Clause of the Fifth Amendment?
• The laws of nature do not recognize property rights, complicating the Commonwealth of Virginia’s adaptation to climate change
• Looking at Viniculture Through the Glass of Historic Preservation Law, or
  A Brief Wine Advocate
• Is the New York State Canal Corporation the Onceler of Upstate New York?: An Analysis of Town of Pittsford v. Power Authority of New York
• Law and Ownership as Evolving Stories: A Review of Mine!
• Incentive Zoning in New York
• The Tide is High but Norfolk's Holding on: An Analysis of Norfolk's Climate Change Adaptation Strategies and a Review of the Potential Claims in Response
• Flipping the Play: How Localities Can Use the Power of Eminent Domain to Seize Sports Franchises and Finally Stick it to Bob Irsay
• Land Use Control – Is it Important to the Average Joe?
• Re-Evaluating Bennis and Civil Forfeitures Under the Takings Clause
• The Guardian of Every Other Right - A Constitutional History of Property Rights and a Discussion on Tariffs, Redistributionism, and Capitalist Liberty
• Pipelines and Eminent Domain: A Constitutional and Environmental Analysis of Energy Takings
• Paradise Stolen: An Ethical Reexamination of Property Deprivation and the Plight of the Atakapa-Ishak Peoples of Louisiana’s Grand Bayou Indian Village
• A Flood of Pollutants: The Promises and Perils of a Regulatory-Takings Approach to the Right to a Clean Environment

And this is only a sampling.

I don't know about you, but I feel pretty good about this. I will be encouraging several of them to consider beefing up their papers and submitting them for publication.

Join Us: Tuesday, Nov. 10, 2020 (3pm ET, 12n PT) For Free (!) Webinar: "Shutdowns, Closures, Moratoria, and Bans"

Join us next Tuesday, November 10, 2020 at 3pm ET (12 noon Pacific) for the free webinar "Shutdowns, Closures, Moratoria, and Bans," produced by Pacific Legal Foundation and Owners' Counsel of America.

Along with my colleagues Leslie Fields (Executive Director, OCA), and Jim Burling (PLF), I'll be talking about the legal foundations for objections, some of the cases that have made their way to decision, and what the future might look like. To register (did I mention it was free?) go here.

Here's the program description:

Governors and state legislatures across the country have implemented an array of policies in an attempt to contain the virus and its socioeconomic impacts. Many of these policies broadened the scope of government power while placing a heavy burden on property owners and businesses already struggling with the pandemic.

Join representatives from Pacific Legal Foundation and Owners’ Counsel of America as they explore COVID-related policies and the legal challenges to them, including:

• The constitutionality of emergency eviction moratoria and lockdown orders restricting property and business owners
• The rights and legal status of property and business owners impacted by emergency orders
• Past, current, and upcoming litigation challenging these orders

We want to hear from you! Come prepared with your questions for our panelists. This is a public event. Please pass along this invitation to any colleagues that may be interested in this program.

As noted, in addition to presentations, we've reserved a lot of time for comments and questions, so bring those with you on Tuesday.

See you then, online!

Ninth Circuit, Over Dissent, Denies Injunction For Church COVID Restrictions

This one doesn't involve a takings claim, but since we're tracking the cases involving coronavirus-related shut down orders and restrictions, we thought we would post this here too.

In Harvest Rock Church, Inc. v. Newsom, No. 20-55907 (Oct. 1, 2020), a panel of the Ninth Circuit rejected a church's request for an injunction pending appeal of the District Court's denial of a preliminary injunction. The church is challenging the California governor's order that have the effect of restricting religious services even though the orders apparently do not expressly target religious services:

The evidence that was before the district court does not support Harvest Rock’s arguments that the Orders accord comparable secular activity more favorable treatment than religious activity. The Orders apply the same restrictions to worship services as they do to other indoor congregate events, such as lectures and movie theaters. Some congregate activities are completely prohibited in every county, such as attending concerts and spectating sporting events. The dissent states that the restrictions applicable to places of worship ‘do not apply broadly to all activities that might appear to be conducted in a manner similar to religious services,’ but does not provide support for this point. By our read the restrictions on theaters and higher education are virtually identical.

Slip op. at 3.

One Ninth Circuit judge wasn't on board with this view. Judge O'Scannlain dissented, concluding that "[t]he Constitution allows a State to impose certain calculated, neutral restrictions—even against churches and religious believers—necessary to combat emergent threats to public health. But the Constitution, emphatically, does not allow a State to pursue such measures against religious practices more aggressively than it does against comparable secular activities." Dissent at 1-2. The judge would have held that "California's COVID-19 regulations patently disfavor religious practice when compared to analogous secular activities." Dissent at 4. 

The majority's analysis is short and the dissent's is a lot more detailed, so we suggest you read the entire thing to understand we're thinking that this one isn't over yet.

Harvest Rock Church, Inc. v. Newsom, No. 20-55907 (9th Cir. Oct. 1, 2020)

Breaking: News About The 2021 ALI-CLE Eminent Domain & Land Valuation Litigation Conference (Jan. 28-29, 2021)

News just in: we've just received confirmation that the Conference will not be in-person in Scottsdale in January 2021, and we're going online.

Not a big surprise, but still a bit disappointing, and it's a shame that the circumstances won’t allow us to meet in-person to talk shop and to renew our friendships like we do every year. 

But rest assured we're making lemonade out of these lemons, and we'd appreciate everyone holding the dates on your calendars to join your colleagues from across the nation for the online Conference. And no, we're not going to do two-and-a-half-days remotely, we're paring down the agenda and will be focusing on hot topics, and great presenters. The remote format has some advantages, and we’re taking advantage of the circumstances to plan a conference more interactive and a bit different than usual.

This will also be a great program for first-time Conference participants. If you haven't taken the dive and joined us in the past because you could not spend the time away or the costs of attending in-person kept you away, this will be your chance to see what we're all about and get a taste of what you've been missing, so you can join us when we reconvene in-person in 2022. 

Stay tuned for more details, to be released shortly! 

July 22, 2020: "Emergency and Police Power: Property Claims in Times of Crisis" (ABA Webinar)

Please plan on joining us on Wednesday, July 22, 2020, at 1pm ET (10am PT) for a long-form program on "Emergency and Police Power: Property Claims in Times of Crisis."

Our speakers are Professors Craig Konnoth (Colorado) and John Nolon (Pace), and one of the lawyers on the forefront of the nationwide legal challenges, Harmeet Dhillon (San Francisco). I'll be moderating, along with Professor Sarah Adams-Schoen (Oregon).

Here's the program description:

On the eve of the centennial of Pennsylvania Coal Co. v. Mahon (US 1922), this panel will revisit the question: How far can the police power be stretched to protect the public against dangers? The panel will evaluate the scope of state and local authority to respond to emergencies and the implications for private property rights—asking, how far is too far? What is the scope of implied limitations on private property rights in times of crisis? When does the diminution of existing property rights require compensation? Can local governments respond to a crisis without delegated authority or in defiance of state mandates? What rights do property owners/landlords/tenants have to privately respond in times of crisis.

The panel will delve into the timely and enduring question of how far the police power stretches to protect the public against dangers—asking, how far is too far? Can local governments respond to a crisis without delegated authority or in defiance of state mandates? What rights do people have to privately respond in times of crisis?

Register here. We hope you can join us.

Available Now: 2020 Zoning and Planning Law Handbook (Green Book)

photo: Patricia Salkin

Just published: the 2020 Zoning and Planning Law Handbook (Green Book). The first section of the Summary of Contents is about Takings, and includes as the lead piece Professor Gideon Kanner and Michael Berger's tour-de-force article, "The Nasty, Brutish, and Short Life of Agins v. City of Tiburon." It also includes my articles on Murr, "Restatement (SCOTUS) of Property: What Happened to Use in Murr v. Wisconsin?"

Check it out. The Green Book is a one-stop shop for the best articles on land use in a given year, and this edition includes chapters on housing, agriculture, cell tower placement, RLUIPA, and (of course) zoning.

Our thanks to Dean Patty Salkin who edited the volume for including us.

Summary of Contents, 2020 Zoning and Planing Law Handbook (Green Book)

Land Use Also On The Fall Semester Agenda At William And Mary Law

This fall, we'll be back at the William and Mary Law School (hopefully in-person, depending on the circumstances and the yet-to-be-announced approach to be taken by the College of William and Mary), teaching two of our favorite subjects.

Not only will this be the third time leading Eminent Domain and Property Rights (Law 608), but we'll also be undertaking another subject, Land Use Control (Law 425). This semester, we're stepping into the (big, figuratively speaking) shoes of Professor Lynda Butler who recently retired after a stellar and trailblazing career. Thankfully, Lynda is continuing to lead the Brigham-Kanner Property Rights Project and is underway with planning October's Brigham-Kanner Conference, honoring Harvard lawprof Henry Smith.

Land Use is, of course, related to Eminent Domain and Property Rights, but the law school understands that they are each worthy of separate study, and they should not be folded into a single course (or, worse yet, treated only as part of the introductory first-year Property course). We're developing the syllabus now, but we're going to be covering topics such as:

• zoning
• vested rights
• who decides - agencies or courts?
• RLUIPA and other religious land uses
• First Amendment and land use law
• land use as a means of social control
• Acronym Central: TIFs, PUD's, NIMBYs and YIMBYs
• "In accordance with a comprehensive plan..."
• the uneasy relationship between land use and environmental law
• ...and more!

If you are a student, the course is now available on the law school system. It is a full three-credits, and we'll be meeting Mondays and Wednesdays at 10am. We're not sure whether the final will be a paper or an exam, but if you have thoughts about that subject or topics you'd like to cover, please let me know.

Join Us This Week: May 12-14, 2020 For (Virtual) Land Use Institute Webinar Series

Join us starting tomorrow, Tuesday, May 12, 2020 for the 34th Land Use Institute. Originally scheduled for April in Tampa, we obviously couldn't do tha, so we did the next best thing -- moved this venerable course online. The Planning Chairs (Frank Schnidman and Dean Patricia Salkin) have assembled the usual hot topics session and a lineup of expert faculty (we're speaking at the 2:45 ET session on Federal Laws (in our case, NEPA, Water, and Wetlands (including the Maui case from SCOTUS)). 

The program takes place over three days Tuesday, Wednesday, and Thursday, and you can either register for the sessions or all three days, with various discounts if you are a member of the American Bar Association, and even more if you are a member of the Section of State and Local Government Law. 

Here's the three-day agenda. There is a lot here to like, and we hope you can join us:

Tuesday, May 12th: Updates and Current Issues Explored

1:00-2:35pm: Update on Planning, Land Use, and Eminent Domain Decisions

2:45-4:15pm: Federal Laws, Regulations, and Programs Affecting Local Land Use Decision Making

Wednesday, May 13th: Climate Change, Land Use Practice and COVID-19

1:00-2:35 pm: Annual Richard F. Babcock Faculty Address: Overview of National and International Best Practices to Address Climate Change and Sea Level Rise

2:45-4:15 pm: Land Use Practice and COVID-19 (The Future of Zoning: The View from the COVID-19 Lens & Seeking and Dealing with Variance and Rezoning Requests)

Thursday, May 14th: Hot Topics in Land Use

1:00-2:35 pm: Hot Topics, Part 1 (Regulating Personal Transportation, Housing the Homeless, Redevelopment/Opportunity Zones)

2:45-4:15 pm: Hot Topics, Part 2 (Affordable Housing, Sustainability/Resilience, Eminent Domain and Takings)

Details on the faculty and each day's agenda here. Register for the program (all sessions, or ala carte) here. 

See you online! 

Record Attendance (But There's Still Time For You Last-Minute Filers) At Nashville ALI-CLE Eminent Domain Conference

Picture 1: how normal people see pie.

Picture 2: how you see pie if you're coming to the
ALI-CLE Eminent Domain Conference. 

If you get the above, you probably are already set to join us next week for the 37th Annual ALI-CLE Eminent Domain and Land Valuation Litigation Conference in Nashville. (If not, shame on you!).

And having just reviewed the latest registration list, I can report that we have an all-time record attendance.  But there's still room for those of you still not committed. Register here. Don't miss out. There will be pie. 

If You Build It, It Might Be A Zoning Violation: No Taking, No RLUIPA Violation When Zoning Limited Lights On Religious School's Baseball Field

Check out Marianist Province of the United States v. City of Kirkwood, No. 18-3076 (Dec. 13, 2019), for the U.S. Court of Appeals' handling of RLUIPA and (state law) takings claims stemming from the city not allowing a religious school to light up its baseball field. 

Today's a busy day, so we won't delve in detail into the opinion. But nicely, the Eighth Circuit's website has a summary:

In school's challenge to city's zoning regulations in connection with the school's lighting of its outdoor baseball diamond, the district court did not err in determining that the regulations concerning lighting and sound systems did not substantially burden the school's religious exercise in violation of RLUIPA; the school's inability to use its baseball field at night is a mere inconvenience and not a substantial burden because there are alternative times and locations available to it; school's "as-applied" claim that the school was not treated on equal terms with the city's public high school rejected because the city's high school's football lights and sound system were already in place at the time the zoning regulations were passed in 2012; due to the dearth of case law interpreting Missouri's Religious Freedom Restoration Act, the district court abused its discretion in deciding this state law claim on the merits after granting the city summary judgment on the school's RLUIPA claims; the court should have declined jurisdiction over this pendent state law claim and the matter is remanded with directions to dismiss this claim without prejudice; inverse condemnation claim was properly dismissed as the zoning regulations were a reasonable exercise of the city's police power and did not constitute a taking or impose unusually restrictive limitations.

For you takings folks, this one was a Missouri law inverse claim (presumably in federal court pre-Knick as a supplemental claim):

In addition, like the regulations here, the ordinance in Tayler was not a total proscription on the use of a property but merely a limit on certain uses. Id. at 646-47; see Max v. Barnard-Bolckow Drainage Dist., 32 S.W.2d 583, 586 (Mo. 1930) (holding that “the proper exercise of the police power” that does “not directly encroach upon private property” is not a taking, though the “consequence may impair the use thereof”). Kirkwood’s regulations similarly do not deprive Vianney of all use of its baseball field but simply limit the light and sound trespass it can impose on neighboring homes.

Vianney asserts that an unreasonable exercise of a city’s police powers can still constitute damage to private property and, therefore, amount to a taking. There was no such unreasonable exercise here. Just as the ordinance in Tayler was considered a reasonable exercise of the police power, Kirkwood’s regulations are similarly limited in their effect and focused on preventing intrusions onto neighboring properties. Furthermore, the reasonableness of Kirkwood’s lighting restrictions is supported by the fact that neighboring municipalities, such as Frontenac and Creve Coeur, have the same or more restrictive lighting limits. See, e.g., Echevarrieta v. City of Rancho Palos Verdes, 103 Cal. Rptr. 2d 165, 171 (Ct. App. 2001) (“[T]raditional land-use regulations such as the imposition of . . . lighting conditions . . . have long been held to be valid exercises of the city’s traditional police power, and do not amount to a taking merely because they might incidentally restrict a use . . . .” (internal quotation marks omitted)). Because Missouri courts have held the reasonable exercise of a city’s police power does not constitute a taking and the regulations do not impose unusually restrictive limitations, we find that Vianney’s inverse condemnation claim fails.

Slip op. at 13-14 (footnote omitted). 

Marianist Province of the United States v. City of Kirkwood, No. 18-3076 (8th Cir. Dec. 13, 2019) 

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.  

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

Takings Ripeness Of Apparent Interest: Eighteen—18!—Amicus Briefs In Knick. Here's Your Rundown.

A quick check of the Supreme Court's docket in the Knick v. Township of Scott case shows that no less than 18 amici briefs have been filed top side. Not all of them in support of the Petitioner mind you (two, the briefs of the United States and of the American Planning Association, are in support of neither party, or ask the Court to impose a specific remedy), but whoa, that's still a lot. 

Shows us how much a case about a very technical aspect of takings law can generate huge participation, reflecting how important the issue of whether a property owner can file a federal takings claim in federal court truly is. 

So you don't have to read each one (although we encourage you to do so), here's our quick summary of each: 

• Western Manufactured Housing Communities Association: Details how the ripeness issue was never briefed or argued in Williamson County, but came about after the federal government raised it in its amicus brief. 
• American Planning Association (in support of neither party): The Court should "follow, not overrule" Williamson County in as-applied challenges, but not apply it in facial takings claims. "Williamson County was not an aberration." Br. at 5. 
• Washington Legal Foundation, Allied Education Foundation: the framers of the Fifth Amendment expected governments "would, in fact, pay 'just compensation;' at the time they took private property," Br. at 5, taking on one of the biggest bricks in the Court's takings jurisprudence, the notion that the Takings Clause does not require payment of compensation contemporaneous with the taking, but the availability of post-taking process to get compensation is enough. 
• American Farm Bureau Federation, National Cattlemen's Beef Association, and CATL Fund: Williamson County not protected by stare decisis, as evidenced by the Court itself switching the case's rationale from a substantive requirement, to a prudential one.
• Ohio Farm Bureau Federation: Some states, Ohio for example, do not recognize an inverse condemnation remedy, subjecting Ohio property owners to a "clear and convincing" standard under Ohio writ practice, not the "preponderance of the evidence" standard they would be subject to in a federal court 1983 case. 
• Institute for Justice, Owners' Counsel of America, Professor Dan Mandelker: the whole point of section 1983 was to provide a federal forum for the vindication of federal rights. 
• Center for Constitutional Jurisprudence: Williamson County violates the original meaning and text of the Fifth Amendment. Br. at 7 ("In a sense, the
  Williamson County state-litigation requirement is akin to the old tally sticks from the Middle Ages in England."). 
• Justice and Freedom Fund: "In navigating the complex interplay among procedural rules—including removal, res judicata, and collateral estoppel—the befuddled claimant is like a dog chasing its own tail but never catching it. Meanwhile the ripened claim, like a rotten tomato, falls to the ground." Br. at 2.
• The Becket Fund for Religious Liberty: Williamson County has turned into an "all-purpose land-use doctrine" applied to RLUIPA, due process, and equal protection claims. 
• Texas and Oklahoma: Overrule Williamson County's state-litigation requirement because it is both erroneous, and "imposes a substantial impediment to Fifth Amendment plaintiffs' access to lower federal courts." Br. at 2. 
• United States ("In Support of Vacatur and Remand"): as Gideon Kanner notes, one of the more interesting briefs filed in the case. The brief isn't an easy read, (and we might do a separate post on it), but get this (from a government brief!): "Like other plaintiffs asserting constitutional claims against local governments, those owners should be able to vindicate their federal rights by bringing actions in federal court. This Court should clarify or overrule Williamson County to make clear that they may do so." Br. at  5.
• Citizens' Alliance for Property Rights, inversecondemnation.com: our brief. The average landowner doesn't understand why they can't protect their federal rights in federal courts. And memes. 
• Cato Institute, NFIB Small Business Legal Center, Southeastern Legal Foundation, Beacon Center of Tennessee, Reason Foundation and Professor Ilya Somin: Williamson County consigns Taking Clause claims to second-class status, and "is anathematic to the reforms Congress sought to effect with the Reconstruction Amendments and enactment of [section 1983]." Br. at 3.
• New England Legal Foundation: the Monsanto case, on which Williamson County's rationale is built, wasn't a very good foundation for the state-litigation requirement. (Justice Blackmun wrote both opinions, by the way.) 
• AARP and AARP Foundation:  Williamson County's application to state tax foreclosure cases "illustrates the extremes to which courts have taken this doctrine." Br. at 5. (Barista's note: when you have motivated AARP to jump in a takings case, you know you are doing something right.)
• Congressman Steve King, Chairman, Subcommittee on the Constitution & Civil Justice, Committee on the Judiciary, U.S. House of Representatives; and Congressman Kevin Cramer: Congress would appreciate guidance from the Court on the "current scope of property rights protection." Br. at 3.
• National Association of Home Builders: Williamson County has not been applied "in a fair and uniform manner" by the lower courts. Br. at 4. Landowners often seek other remedies besides just compensation. 
• San Remo Hotel, L.P., Thomas Field, Robert Field, Franklin Kottschade, Peyman Pakdel, and Sima Chegini: Yes, that San Remo Hotel! Some firsthand experiences from the Williamson County trenches by property owners who got caught up (or are being caught up) in the Williamson web.  

Now we wait for the Township's merits brief, and any amici in support.

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!

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

Go Shopping, Hawaii, It's The Secular Good Friday State Holiday!

Our second official holiday this week, making it for some (not us hard-working types) a three-day work week. Really.

Today is Good Friday, an official state holiday in Hawaii, so we're reposting our annual recounting of how it came to be that the State commemorates the date of the crucifixion, and how that squares with the Establishment Clause of the First Amendment. 

Turns out that we don't really commemorate today as the crucifixion date (its a public worker union thing), and it is just coincidence that the official State "spring holiday" occurs on the same day.

It's plausible, isn't it, that the State had a secular purpose when it officially sanctified "a religious holiday observed primarily by Christians commemorating the crucifixion of Jesus Christ and his death at Calvary?" 

Or so says the Ninth Circuit.

 

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.

Latest Issue Of The Urban Lawyer

For you land-users out there, be sure to check your inboxes for the link to the latest issue of The Urban Lawyer, the law review published by my section of the ABA, the Section of State and Local Government Law. With articles on privacy and public real estate records, neighborhood opposition to zoning changes, greenhouse gas regulation, planned communities, land use and cannabis, RLUIPA, and more.

If you are not a member of our Section, you really should be because in addition to a subscription to UL, you get to hang with a crew of lawyers, judges, and legal scholars who are smart, fun, and generous with their time. See this post for more on the reasons you should join us.

Want to see what we're all about? Plan on joining us for our next in-person conference, the 32d Annual Land Use Institute and Spring State and Local and Public Procurement Conference, April 19 - 22, 2018, in Detroit. Registration for both events is now open.

2018 ALI-CLE Eminent Domain Conference - Agenda And Faculty Now Posted

The complete agenda and faculty list has now been posted on the ALI-CLE website, and early registration is open! Go now and reserve your spot. 

We paid a visit to Charleston recently, the venue for our January 2018 conference, to scout it out. We can report that we're going to have a great time, for sure. When we polled you last year, you selected Charleston as your first choice (a new city for the Conference), and it is shaping up to be a very good selection. In addition to the usual lineup of CLE programming, there are a ton of things to see and do in the area. We recorded a short video down at the "four corners of law" (the intersection of Meeting Street and Broad Street), to give you a preview (the weather was much better than in our 2016 preview video, too).

As an added exclusive bonus, there will also be a special sneak preview of the movie about Kelo v. City of New London, Little Pink House. If you joined us in Austin in 2016, you’ll remember that we spoke with Ted Balaker, the film's producer about the movie, which was then being shot. It is now complete, and we're privileged to be getting a before-the-public screening of the film on Friday evening of the Conference.  

So plan on joining us in Charleston, January 25-27, 2018. See you there. 

2018 ALI-CLE Eminent Domain and Land Valuation Litigation and Condemnation 101, Charleston, SC, January 25-... 

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. 

Go Shopping, Hawaii, Today's The Secular Good Friday State Holiday (According To The Ninth Circuit)!

Today is Good Friday, an official state holiday in Hawaii, so we're reposting our annual recounting of how it came to be that the State commemorates the date of the crucifixion, and how that squares with the Establishment Clause of the First Amendment. 

Turns out that we don't really commemorate today as the crucifixion date, and it is just coincidence that the official State "spring holiday" occurs on the same day.

It's plausible, isn't it, that the State had a secular purpose when it officially sanctified "a religious holiday observed primarily by Christians commemorating the crucifixion of Jesus Christ and his death at Calvary?" 

Or so says the Ninth Circuit.

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The Eminent Domain Angle In The Hawaii Federal Court's Immigration EO Ruling

We think we can find a takings angle in nearly anything. See here (net neutrality) here (the Supreme Court's Obamacare decision), and here (a visit to Los Alamos, NM) for past examples. 

So when reviewing last week's U.S. District Court (D. Hawaii) order granting a nationwide TRO prohibiting enforcement of President Trump's executive order on immigration (something, we admit, has nothing to do with our usual topics -- we were armoring up for the inevitable cocktail party questions), we came across the court's reliance on several cases which allowed it to "go behind" the purported purpose of the EO, to get to the "real" reason it was adopted: religious animus. See Order at 32 (citing Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993); Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266–68 (1977)).

We knew we had our angle. Because you know what looking for the "real" motive behind a government action seems an awful lot alike to us? Our old friend, pretext in eminent domain. 

Mission accomplished. 

Relying on those two Supreme Court decisions to get behind government's facially-neutral reasons behind a taking isn't something we conjured up recently, and we last raised it in 2011, when we filed this cert petition which argued:

This Court has recognized in similar situations that a reviewing court must look to context to determine the motivations of government officials. See, e.g., Vill. of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 266 (1977) (“Sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face.”); Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 540 (1993) (“[W]e may determine the city council’s object from both direct and circumstantial evidence,” which includes “the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body.”). Although these cases involved equal protection and the free exercise of religion, the inquiry is no different when property is involved, since private property is also a fundamental constitutional right that must be respected. Dolan v. City of Tigard, 512 U.S. 374, 393 (1992) (“We see no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or the Fourth Amendment, should be relegated to the status of a poor relation in these comparable circumstances.”).

Petition at 29-30. 

If those cases can be employed to go behind the text of an executive order -- especially an EO on immigration, the area in which judicial deference to the executive traditionally is at its zenith -- then we don't see any good reason why it should not similarly be available to ask a mayor or council person about their extrajudicial (and even pre-office) statements about why property should be condemned, whatever the text of the actual resolution says.

Why not?  

Petition for a Writ of Certiorari, C & J Coupe Family Ltd. P'ship v. County of Hawaii, No. 11-75 (July 18,... 

2017 ALI-CLE Eminent Domain Conference Wrap, 2018 Venue Announcement

When we previewed the 2017 ALI-CLE Eminent Domain & Land Valuation Litigation Conference while we were getting buried in the snow a couple of weeks ago, we promised there would be better weather in San Diego than much of the country was then experiencing. As you can see, we delivered.

We -- and by "we" I mean the faculty, the ALI-CLE staff, and the record number of attendees who came to San Diego -- also delivered on a really great conference. See our posts on several of the presentations here, here, here, and here for a flavor.

We also announced that the date and location for the 2018 Conference has been set, and the hotel and site have been booked:

2018 ALI-CLE
Eminent Domain & Land Valuation Litigation Conference
Francis Marion Hotel
Charleston, South Carolina
January 25-27, 2018

Stay tuned for details. Send your ideas for what you'd like to see at the 2018 Conference. Tell your colleagues to come if they missed out this year. The more who attend, the better this gets.

We'll post more once the agenda, faculty, and registration process are ready. See y'all in Charleston. 

Links & Materials From Day 3 Of ALI-CLE Eminent Domain And Land Valuation Litigation Conference, San Diego

Our final day was anchored, as usual, by Pacific Legal Foundation's Jim Burling, and property rights guru and advocate Michael Berger. Jim was his usual riveting self, and Michael supplied the insight to cases which only he can.

In case you are wondering, the above is the view from the dais, and no, I didn't bring a Spam calendar with me, it was a gift from a thoughtful New Jersey colleague who knows that Hawaii people love Spam. I will reserve comment on whether I love Spam, and simply say thank you for the calendar. 

We finished the day strong with the National Forum, where audience members took the mic and shared their cases, issues, and results with the rest of us. 

• Here's the decision on attorneys' fees in an expropriation case awarded to the condemning authority, which our Toronto colleague Shane Rayman spoke about.
• It's not just a Canada thing - here's the Idaho Supreme Court case awarding the condemnor attorneys' fees. 
• John Groen, the lawyer who will be arguing Murr v. Wisconsin on behalf of the Murr Family (should the Court ever decide to schedule oral arguments) spoke about the status of the case and the way the arguments have played out.
• Here's that Florida District Court of Appeals decision discussed, about project announcement and inverse condemnation. 

If you attended the Conference or served on the faculty, and have a web site or blog about issues other Conference participants should know about, send your URL my way, and I will post them up later this week. We should keep the conversation going. 

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Day 1, 2017 ALI-CLE Eminent Domain And Land Valuation Litigation Conference, San Diego

Here are the links and references to the cases we spoke about today at our opening session on the national trends in eminent domain law at the 2017 ALI-CLE Eminent Domain and Land Valuation Litigation Conference in San Diego. 

We again have a record attendance, and a good number of new attendees. If you aren't here now, we're sorry you didn't make it. But fear not: ALI-CLE has already set the date and location for the 2018 Conference: save the date on your calendars now -- January 25-27, 2018, Charleston, South Carolina, at the Francis Marion Hotel. 

• North Carolina's Map Act case (Kirby). Land banking to keep the eventual acquisition price low, is a taking.
• Nevada: No Regulatory Taking When DOT Announced Future Plans To Condemn.
• California's City of Indio case: temporary "no build" area while city gets around to taking the property is a taking.
• Municipal takings of public utilities: Montana Supreme Court writes "more" out of the "more necessary" clause.
• Pennsylvania Supreme Court: Delegation Of Eminent Domain Power To Pipeline Companies Violates Fifth Amendment's Public Use Clause.
• Through, Not To: A Pipeline With No Kentucky Offramps Isn't For Public Use (for Kentucky).
• Pipeline takings: Pennsylvania appellate court agrees that the polar vortex made them do it.
• Creative Thinking Prize: Texas Supreme Court sides with property owner who formed conservation district to beat back a taking. Don't tell me no, tell me how.
• Georgia appellate court: appraisal "before" negotiations means just that.
• Colorado Supreme Court reads its eminent domain statute narrowly: when it says Commission must approve taking, DOT can't do it.
• Virginia: an unacceptably low appraisal = "bona fide" offer.
• Entry statutes: the California Supreme Court decision in Property Reserve: the court rewrites the statute in order to save it.
• Virginia federal court rejects facial challenge to Virginia's entry statute.
• North Dakota Supreme Court finds that small entries are "examinations" and not takings.
• Who decides, Part II: West Virginia Supreme Court concludes that condemnor (not the courts) is sole determiner of sufficiency of quick take deposit.
• Tex App: Rail Construction Cutting Off Access Can Be Inverse Condemnation - Even When There's Been No Taking.
• Kauai condemnation: Hawaii Supreme Court arguments in "larger parcel" case. 
• SCOTUS and larger parcel in regulatory takings: Murr v. Wisconsin - the "larger parcel' in regulatory takings.
• Who decides? California Supreme Court in City of Perris -- judge decides Nollan/Dolan issues (but they may be project influences, so property owners do the happy dance).

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Ode To A Road

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Details: ALI-CLE Eminent Domain And Land Valuation Conference - San Diego, January 26-28, 2017

We've teased some of the details on the 2017 ALI-CLE Eminent Domain and Land Valuation Litigation and Condemnation 101 Conference, to be held at the Westin San Diego, January 26-28, 2017, but here are the details you've been waiting for.

This is the "big one," our annual 3-day festival of all things eminent domain, property, takings, inverse condemnation, and just compensation. Truly national in scope, this is the 34th annual edition, and the one conference you must attend. Our 2016 conference in Austin was one of the best in years, and we're on the way to replicating it in 2017, with a great venue in an exciting city. 

Look for the web and printed brochures to show up in your mailboxes, but in the meantime, here are some of the highlights (we'll post more in the next few days):

• Relocation, relocation, relocation: we are featuring two sessions on this important and growing area of law. Our first panel will address the tension between condemnors, property owners, and tenants in securing relocation benefits, and our second will be a case study of an appeal under the Uniform Relocation Act, complete with lessons learned and traps for the unwary. Featuring a slate of experts: David Arnold (Virginia), Janet Handy Bush (Maryland), Kenneth Gindy (Texas), Brian Kunze (Virginia), Jill Gelineau (Oregon), Kelly Walsh (Washington), and Martyn Daniel (Washington). 
• Present and Future Highway Projects: we have several panels on issues related to present and planned highways and other transportation projects. We'll focus on the issues that arise when a highway authority plans to take property but doesn't do so immediately -- where are the lines between planning and taking in those cases? Strategies for property owners in obtaining information from the highway department under public records laws, and the role of federal funding in these and similar cases. Featuring Linde Hurst Webb (Ohio), Matthew Bryant (North Carolina), W. Andrew Gowder (South Carolina), Minming Wu (from the Federal Transit Administration (invited)), and Mark Murakami (Hawaii). 
• Trial and practice insights: we have several panels devoted to the latest strategies from condemnation jury trial experts: how to use experts (appraisers and others) to make your case; how to employ a jury consultant to maximize your results; winning valuation evidentiary issues before and during trial; admitting or excluding the "lowball" offer; and maximizing the property owner's testimony in the just comp phase. With Jeremy Hopkins (Virginia), Mary Nell Bennett (Louisiana), Christian Torgrimson (Georgia), Darius Dynkowski (Michigan and Ohio), Andrew Brigham (Florida), Scott Jenny (California), Justin Hodge (Texas), and Susan MacPherson (Minnesota)
• Inverse and regulatory takings: It's been 25 years since the Supreme Court blockbuster Lucas -- has the sky fallen? With Dwight Merriam (Connecticut), and Luke Wake (California and DC). Where the line is between an exercise of the police power to protect the public, and a taking is something we've been trying to figure out for nearly a century since Pennsylvania Coal. David Breemer (California) and I (Hawaii) will bring you the latest. 

There's a lot more, of course, Reserve your space by registering for the conference here. 

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6th Cir: Avoid Your RLUIPA Problems By Condemning Church-Owned Property, Then Selling It "to a buyer that the government thinks offers superior economic benefits"

Check out this post ("Did the Sixth Circuit Unintentionally Adopt an RLUIPA Equal Terms Test?") from RLUIPA gurus Evan Seeman, Karla Chaffee, and Dwight Merriam on their RLUIPA Defense blog, analyzing the Sixth Circuit's recent opinion in Tree of Life Christian Schools v. City of Upper Arlington, No. 14-3469 (May 18, 2016).

We won't go into the details because our colleagues cover them pretty well, but wanted to point this one thing out. The issue in the case was whether the city could be held liable under RLUIPA's "equal terms" provision (which requires local governments to impose land use regulations on religious and nonreligious users on an equal basis), after it refused to allow a religious school to rezone property in an economic development zone to allow the school.

The school didn't conform to the area master plan, which allowed only uses which would increase the government's tax revenue (that's some plan, no?). We want commercial uses and offices, not your school.

RLUIPA suit followed. District court granted the city summary judgment. The Sixth Circuit reversed, setting out a test (sort of) for determining when a municipality is applying its purportedly neutral land use regulations in an unequal manner.

So far, so good. We like clarity in the law; more so when it adds to a circuit split.

But here's what caught our eye, this bit of legal advice from the court of appeals about how the city could avoid all that RLUIPA mess:

Finally, we observe that the government could ensure commercial use of the property at issue without violating the federal statute. Using eminent domain, Upper Arlington could force TOL Christian Schools to sell the land to the government, and sell the land to a buyer that the government thinks offers superior economic benefits.

Slip op. at 11 (footnote omitted) (citing Kelo v. City of New London, 545 U.S. 469 (2005); Christopher Serkin & Nelson Tebbe, Condemning Religion: RLUIPA and the Politics of Eminent Domain, 85 Notre Dame L. Rev. 1, 53 (2009)). 

The only reason that plan didn't work here?

[T]he city has not committed government funds to the theory that a traditional commercial office tenant—as yet unidentified—both could be attracted to use the land and also, if attracted, would increase tax revenues. Instead, they have placed the cost on TOL Christian Schools—perhaps to save the upfront cost of compensating an exercise of eminent domain, perhaps because there is no market for office space in Upper Arlington, and perhaps to exclude an unfamiliar or disfavored religious assembly.

Id.

But why should a lack of commitment of funds, an identified new owner, or the lack of a market stop the city? Under Kelo, that stuff is just analytical dross. And indeed, having those elements in your hip pocket, city, would seem to cut against public use and in favor of a pretext claim.   

Tree of Life Christian Schools, v. City of Upper Arlington, No. 14-3469 (6th Cir. May 18, 2016)

The Blog Lineup From The 2016 ALI-CLE Eminent Domain Conference

We've posted a lot lately reporting on the 2016 ALI-CLE Eminent Domain and Land Valuation Litigation Conference, recently held in Austin. We have a couple of more posts for you before we turn to other things. Here is the first, a run-down of the blogs of faculty members, and others we were in the audience. If your blog is missing from this list, email me the link and I will update the post to include it.

• Dalton-Tomich's blog on land use, RLUIPA, and related issues has this post: "Five Land Use Issues We Learned in Austin." 
• Neil Olsen publishes the Oregon Condemnation Law Blog, where you can follow along on the critical events and decisions coming out of the northwest.
• Steve Streck from Wisconsin publishes "The Preeminent Domain."
• Rick Rayl and Brad Kuhn (among others at the Nossaman firm) author the California Eminent Domain Report.  
• Mike Faherty publishes the Eminent Domain in Pennsylvania blog.
• Charles McFarland's blog on Texas eminent domain. 
• More from Texas: Justin Hodge's updates.
• Michael and Joshua Rikon's Bulldozers at Your Doorstep (New York)
• Alan Ackerman's National Eminent Domain Blog. 
• Follow along with Matthew Bryant's "Map Act" cases in North Carolina here. 
• Thor Hearne's Federal Takings. 
• Our Toronto expropriation colleague Shane Rayman writes about property issues in the Great White North here. 
• Dwight Merriam's RLUIPA Defense blog. 
• Mark Murakami writes about surf and turf at hawaiioceanlaw.com (he's posted his slides from the Conference there, also).
• Tony Della Pelle and Tom Olson write at New Jersey Condemnation Law. 
• Professor Ilya Somin blogs (extensively) at Volokh Conspiracy (at the Washington Post)
• And, of course, Gideon Kanner's blog, Gideon's Trumpet. For the first time in decades, Professor Kanner wasn't with us at the Conference in-person. But he's always there in spirit. 

As always, send your suggestions to us about the 2017 conference, also.

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2016 ALI-CLE Eminent Domain Conference, Austin: Second Day

The second day of the 2016 ALI-CLE Eminent Domain and Land Valuation conference went as well as the first. Here are some highlights:

• Austin Mayor Steve Adler (pictured above), who is (was?) also an eminent domain lawyer, welcomed us to his city. 
• We moderated a discussion between Andy Gowder and Dana Berliner about "First Amendment for Fifth Amendment Lawyers: Free Speech, Signs, Defamation, FOIA, and RLUIPA Claims," how takings lawyers deal with these issues when they crop up in their cases. 
• One update from that session: at nearly the same time that we were talking about Central Radio, the case about the Norfolk, Virginia "anti-eminent domain" sign, the Fourth Circuit issued its opinion on remand from the U.S. Supreme Court. We'll have more in a full post soon, but here's the bottom line for now: no, the City can't ban the sign ("we hold that the sign ordinance challenged in the plaintiffs’ complaint is a content-based regulation that does not survive strict scrutiny"). How timely.  
• We also attended sessions on ethics for eminent domain lawyers (with Jamila Johnson, Joe Sherman, and Bob Neblett), Class Actions in Inverse Condemnation Cases with Martin Wolf, a really great session from electrical engineer Robert Dew on Powerline Cases, Voir Dire Tips from Janet Handy and Christian Torgrimson, and how the probability of rezoning impacts valuation (with Nikelle Meade, Dwight Merriam, and Charles Ruffin). Also, three experienced eminent domain trial lawyers (Christian Torgrimson, Roy Brandys, and Dan Hannula) shared "war stories" about some mistakes they have made over their long careers, and how they recovered from them. 
• We ended the day with filmmaker Ted Balaker (pictured below), whom we interviewed about his soon-to-be-released movie about the Kelo case, "Little Pink House." More on that in a separate post. 

Day Three, with our usual stalwarts Mike Berger and Jim Burling is ongoing right now, and we'll have more on today in another post. 

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ALI-CLE 2016 Eminent Domain Conference, First Day: Standing Room Only, National Expertise

Here's what's going on today, the first day of the 33d annual ALI-CLE Eminent Domain and Land Valuation conference in Austin, Texas. We're at standing room only, with a record number of attendees and our usual nationally renown faculty.

We started off the day with our usual "Eminent Domain Update" session with Amy Brigham Boulris, and as mentioned, the links to the opinions which we discussed are going to be posted in a separate post today. 

We are being followed by a panel on pipeline takings, one of the hot issues nationwide, with Joe Waldo, Matthew Ray, MAI, Thomas Peebles, and Dave Domina.

That session was followed by Professor Ilya Somin, talking about his book, "The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain."  

Above are our annual "proof of life" photos taken from the lectern, to show we are actually in the room and not out enjoying all that Austin has to offer.  

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ALI-CLE 2016 Eminent Domain Conference: Austin Scouting Report

Austin, Texas, is where we're at for the next few days, for the 2016 edition of the American Law Institute-CLE Eminent Domain and Land Valuation conference, now in its 33d year. First time we're in Austin, however, and our registration numbers are looking very good, and we haven't had this big a turnout in years.

We haven't been back to Austin in a few years ourselves, so we did what law nerds sometimes do when we go to new towns: visit the local courtroom to check out the scene. So we dropped by the Supreme Court of Texas to take a look. Turns out it was an off-day for the court and it was not in session and the courtroom was locked. But Security suggested that if we asked the Clerk nicely, she might retrieve the key and let us take a look around. And you know what? She did. How very nice. 

And an impressive courtroom it is. Modern, yet imposing (as befitting a Temple of Justice®). Here's the view from counsel's lectern, complete with a LCD screen, and a Justice crib sheet in the event you vapor lock and forget one of their names. 

And here's a view of a courtroom we advocates don't often see, the one where the Justices are looking at us. Or down at us. We're never quite sure. 

Next, we hopped next door to the state capitol building, an imposing 1882 domed structure, complete with its famous door hinges. Took one of the free tours ("Heroes of the Texas Revolution" -- well worth it, by the way). Saw portraits of famous Texans Audie Murphy, Ike, and GWB. No official portrait yet completed of Rick Perry, though. We speculate that he's still deciding whether to wear the glasses.

Up on the third floor (by the bathrooms, next to the elevators) are a bunch of paintings of Texas judges. All have names, except this poor chap, labeled "Unknown Judge." Strange, painting doesn't seem that old, judging by the modern outfit. You'd think someone would recognize him. Maybe he put some legislator in jail, and this was their revenge: Unknown Judge.

Finally, down to the main floor, smack dab in the center of the building. Looking up to the interior of the dome, 20+ stories high. That's a star in the middle (lots of those in all state buildings around these parts), along with the word T-E-X-A-S around it, just in case you don't know where you are. Click on the photo to enlarge, if you can't quite see it in the thumbnail.

The Conference kicks off on Thursday, with a welcoming talk by Austin Mayor Steve Adler, who just happens to be a (former) eminent domain lawyer. We'll have more as we progress.

Brochure/Agenda - 2016 American Law Institute-CLE Eminent Domain Conference, Austin

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Upcoming Events And CLE's - Appellate, RLUIPA, Sharing Economy, And More

Here are some upcoming events in which you may be interested, in chronological order:

• Sharing Economy: this Friday, October  16, 2015, from 1:00 pm - 2:30 pm ET: "Is Sharing Really Caring? Part I: The Law of Transportation Sharing: Uber, Lyft, and the Sharing Economy." This is a webinar-format program, a follow up the in-person program which we moderated at the recent ABA Annual Meeting. This program features expert presenters from the National League of Cities, the Liberty Justice Center, the Goldwater Institute, Tampa International Airport, and the University of Idaho School of Law. And yes, we will touch on takings issues. A timely program on a very important topic. Details and registration information here. 
• RLUIPA: next Thursday, October 22, 2015, our colleagues Evan Seeman (RLUIPA Defense Blog) and Dan Dalton are on the panel of the American Planning Association's program on "Planning for Religious Uses Under The Religious Land Use and Institutionalized Persons Act." The program "will explain several different strategies and approaches that can be used to avoid RLUIPA litigation, including through revisions to local zoning codes and accommodating religious uses when appropriate." More here. 
• Appellate: next Friday, October 23, 2015, from 8:30 am - 10:45 am Hawaii Time, I will be joining a a panel of fellow appellate practitioners at the Hawaii State Bar Association's annual meeting at the Hawaii Convention Center for "Appellate Practice Pointers and Brief Writing Seminar."  We have a good chunk of time, so we will be able to cover a lot of ground on civil and criminal appeals, how to prepare the record, and do's and don'ts for appellate work in Hawaii state courts. Immediately following the practitioner module, Chief Justice Recktenwald, Associate Justice Pollack, and Court of Appeals Judge Nakamura will hold a session on the view from their side of the lectern. More information here. Register here.  
• Environmental - Climate Change: finally, on Friday, November 6, 2015, I'm the planning co-chair, along with Tom Lindley of Perkins Coie's Chicago and Portland offices of "Rising Tides: Climate Change and the Economic and Business Impact in Hawaii," an all-day program at the Hilton Waikiki Beach hotel. This isn't your typical "climate change" program and we're really not going to be debating the science. Frankly, it doesn't matter whether it is real or not, or caused by man or not, because governments are adopting regulations that property owners and businesses are going to have to comply with, regardless. So we've assembled an expert national and local faculty and an agenda to give a crash course about the science, the government reactions, the need to protect property rights in the process, and practical matters like insurance, compliance, and business planning.

I hope you can join us for one or more of these programs.

Land Use Institute: Planning, Regulation, Litigation, Eminent Domain, and Compensation - 31st Annual Conference, Chicago, July 30, 2015

The Land Use Institute, a program that for many years has been planned by co-chairs Frank Schnidman and Gideon Kanner, has found a new home with the American Bar Association's Section of State and Local Government Law as the main sponsor. It also has a new Planning co-chair, Dean Patty Salkin of Touro Law School, who has stepped in for Professor Kanner.

This 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.

This year, the one-day program is being held in conjunction with the ABA Annual Meeting in Chicago. It will be held on Thursday, July 30, 2015, the day before the Annual begins, in the same hotel as the State and Local Section meeting, which will make it easy to attend both.

The program brochure has all of the information you need, including tuition (register by July 17, 2015 to receive a discount), agenda, and faculty. Topics covered include: updates on the hot topics, key land use and eminent domain decisions from the past year, the law of sharing transportation and residential properties, fracking, ethics, urban agriculture, drone regulations, and the annual Richard F. Babcock Faculty Keynote Address, "From the Group Up: Unshared Assumptions in Law and Planning." We're on the faculty, and will be providing updates on eminent domain, federal water law, and will be moderating the panel on ride sharing issues. 

In addition, you may also want to attend the additional Friday modules (separate registration fee), "The 2014 Supreme Court Term in Review" (with a panel of Supreme Court advocates and journalists), and "Looming Land Use Constitutional Issues," a panel of experts speaking about compensation for owners whose property is taken for environmental protection, the Horne v. USDA case (presented by one of the attorneys for the Hornes), medical marijuana for land use lawyers, and the law of exactions and affordable housing. 

Download the brochure for all the information or to register, or visit www.landuseinstitute.org (which will redirect to the ABA's registration link page). 

Hope to see you in Chicago in a few weeks. 

31st Land Use Institute (Chicago, July 30, 2015)

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Upcoming APA Webinar: 2015 Planning Law Review

On Wednesday, July 1, 2015, the American Planning Association is putting on the 2015 Planning Law Review, a program highlighting the most important and topical cases decided by the courts recently. Here's the program description:

Planning feels the impact of decisions from the U.S. Supreme Court, federal district courts, and state courts. How will their rulings affect you? Get a briefing on the year's legal developments, from First Amendment issues to environmental actions, housing, and equal access. Presenters also will discuss major legislative initiatives and APA's amicus filings. Join in a lively, informative program you and your staff, colleagues, and officials won't want to miss. This program is also suitable for planning commissioners.

Joining me on the faculty are Jason Jordan, Director, Policy and Communications, American Planning Association (Moderator); Nancy Ellen Stroud, Lewis, Stroud & Deutsch; John M. Baker, Greene Espel; and John Echeverria, Professor of Law, Vermont Law School.

Decisions we're planning on covering include Horne (raisin takings case), Reed v. Town of Gilbert (municipal regulations of signs), the Texas fair housing case, the California Supreme Court case on "inclusionary housing" requirements, and others.

More here, including registration information. A single registration will allow an unlimited number of attendees at a location, so it's a good deal. Please join us for some interesting discussion and debate, and nearly the first word on all of these decisions. 

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Go Shopping, It's Hawaii's Good Friday Holiday

Today is Good Friday, an official state holiday in Hawaii, so we're reposting our annual recounting of how it came to be that the State commemorates the date of the crucifixion, and how that squares with the Establishment Clause of the First Amendment. 

Turns out that it doesn't really. It's just coincidence that the "spring holiday" occurs on the same day, and it's plausible that the State had a secular purpose when it officially sanctified "a religious holiday observed primarily by Christians commemorating the crucifixion of Jesus Christ and his death at Calvary." 

Or so says the Ninth Circuit.

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New RLUIPA Complaint vs Maui: "'Integral Yoga' Group and Swami Hope to Find Their Inner Balance in Federal Court"

Here's the latest for you RLUIPA mavens, a complaint recently filed in Hawaii federal court by a Maui "integral yoga" temple and its leader against the County for not permitting it to use their site on Maui's north shore for things like weddings and religious observations. Parking was the proffered reason, it appears.  

Dwight Merriam and Evan Seeman have all the details here, at RLUIPA-Defense blog. 

Complaint, Spirit of Aloha Temple v. County of Maui, No. 1:14-cv-00535-RLP (D. Haw. Nov. 26, 2014)

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New Book: Litigating Religious Land Use Cases (Dan Dalton)

A big thank you to our friend and colleague from Detroit, Dan Dalton, who sent us a recently-published book which he authored, "Litigating Religious Land Use Cases." 

This book discusses how to litigate such a religious land use case on behalf of a religious entity pursuant to the Religious Land Use and Institutionalized Persons Act (“RLUIPA”)  and the First Amendment. While the First Amendment dates to the founding days of the United States, RLUIPA is a much more recent federal law that can serve as an effective tool in protecting the property interests of religious organizations.

A must-have for any land use lawyer (even if you don't focus on religious land use cases, or don't represent religious organizations in such cases), Dan's book is a great overview of the applicable law, and a primer on the various causes-of-action that can pop up in these type of controversies. Here's the Table of Contents for a peek at what's inside. 

Get your copy here from the American Bar Association. 

Upcoming Webcast: "Sex, Guns, And Drugs: Planning For Controversial Land Uses"

If that title doesn't grab you, nothing will. Here's the description of an upcoming program from the American Planning Association that looks awfully interesting:  

The Planning and Law Division of the American Planning Association is pleased to host the upcoming webcast Sex, Guns & Drugs:  Planning for Controversial Land Useson Wednesday, October 22^nd from 1:00 to 2:30 PM CST. Registration is $20 for PLD members, $40 for nonmembers, and $45 for webinar registration plus a Planning and Law Division membership. Presented by Daniel J. Bolin and Gregory W. Jones of Ancel Glink, this webcast will explore if and where controversial businesses belong in communities.

The U.S. Constitution guarantees freedom of expression, freedom of religion, and the right to bear arms. But it’s not that simple. Businesses that rely on these constitutional guarantees continue to generate controversy in communities across the country. To compound matters, state legislatures from Arizona to Massachusetts have been busy granting new — and in many cases, previously unheard of — rights to marijuana and firearm retailers.This has rapidly drawn planners and zoning practitioners into the debate over how these businesses best fit into their communities, and whether their communities are legally obligated to accommodate these uses in the first place. Spend an hour learning about the issues and regulatory strategies from around the country. 

Webcast—Sex, Guns & Drugs:  Planning for Controversial Land Uses

October 22, 2014

1:00 – 2:30 PM CST

More information here, including registration. 

RLUIPA And The Condemnation Of Church-Owned Property

Our friends and colleagues over at RLUIPA Defense blog Evan Seeman and Dwight Merriam have posted on a case is generating some media attention, and might be interesting to watch.

Orlando wants -- what else -- a new sports venue. A soccer stadium. And the city is using -- what else -- eminent domain to get it. One property standing in the way is a family-owned parcel which currently is being used for a church. [Barista's note: soccer, you have hit the Big Leagues when municipalities are using their eminent domain power to take private property for your stadiums.] You know the drill: city offers low, owners want high, a deal doesn't materialize, and the next thing you know, eminent domain complaint filed. 

So check out "RLUIPA & Eminent Domain – City of Orlando to Take Church Property to Construct Major League Soccer Stadium." And while you are at it, see our earlier missives about when religious land use intersects with the power of eminent domain. In many cases, including this one from the Hawaii Supreme Court -- it doesn't turn out favorably for the church. Many if not most cases hold that condemnation is not a "land use" as that term is defined in RLUIPA. Which doesn't make a whole lot of sense to us (Congress wanted to limit the authority of state and local governments to regulate land, but not to confiscate it outright?), but there it is. For an interesting twist on the issue, see this case from the Pennsylvania Supreme Court which upheld the ability of a municipality to take blighted private property and turn it over to a church for a nominal fee without violating the Establishment Clause. Inverse RLUIPA?

Read more about the Orlando case -- including links to relevant decisions on the relationship between RULIPA and eminent domain -- here. 

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