Real Estate & Property Law

Vermont Supreme Court: Snow Is A Fact Of Life In Vermont

Posted on May 09, 2010
"Our decision today recognizes that snow and snowplowing are facts of life in Vermont, and we do not find a cause of action when defendant has done nothing more than protect public safety by plowing the roads that it has...

More About The "Undivided Fee Rule" Cert Petition

Posted on May 08, 2010
A couple of links following up on our recent post about City of Milwaukee Post No. 2874 Veterans of Foreign Wars of the United States v. Redevelopment Agency of the City of Milwaukee, No. 09-1204 (cert. petition filed Apr. 2,...

Links From WMA Presentation - Regulatory Takings, Rent Control, And Guggenheim

Posted on May 07, 2010
Yesterday, I had the pleasure of speaking to members of the Western Manufactured Housing Communities Association about some of the legal issues facing their businesses, and property owners in general. Here are the links I mentioned: Guggenheim v. City of...

Home Builders' Amicus Brief In SCOTUS Eminent Domain Case: Is Wisconsin's Application Of The Undivided Fee Rule Unconstitutional?

Posted on May 05, 2010
Today, on behalf of the National Association of Home Builders and the Wisconsin Building Association, we filed this brief amici curiae in City of Milwaukee Post No. 2874 Veterans of Foreign Wars of the United States v. Redevelopment Agency of...

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"Takings International" Panel Report

Posted on May 03, 2010
My ABA State & Local Government Law colleague Andy Gowder has posted on his blog Grounded, a report and summary of the recent Miami panel discussion of Takings International: A Comparative Perspective on Land Use Regulations and Compensation Rights (Mar...

Amicus Brief In Hawaii Beach Taking Case: "Future" Accretion Is A Present Property Interest

Posted on April 29, 2010
Yesterday, we filed this motion for leave to file brief amicus curiae and a copy of the proposed brief in support of the application for writ of certiorari which asks the Hawaii Supreme Court to review the decision of the...

Cal Ct App: "Substantially Impaired" Access Does Not Mean Reduced Access

Posted on April 28, 2010
We're still on the road so haven't had time to digest this eminent domain decision in more detail, but here's a short summary. In an unpublished opinion in Council of San Benito County Governments v. McNamee, No. H033989 (Apr. 27,...

Cert Application In Hawaii Beach Taking Case: Legislative Reassignment To The State Of The Right To Future Accretion Is A Taking

Posted on April 27, 2010
The property owners have filed an application for a writ of certiorari asking the Hawaii Supreme Court to review the decision of the Intermediate Court of Appeals in Maunalua Bay Beach Ohana 28 v. State of Hawaii, 122 Haw. 34,...

Latest Eminent Domain Ruling From The California Court of Appeal

Posted on April 26, 2010
I'm on the road so haven't had the opportunity to digest this one in more detail. In an unpublished opinion in Community Redevelopment Agency of the City of Los Angeles v. Kramer Metals, No. B208726 (Apr. 23, 2010, the California...

Federal Government's Brief In Opposition In Erosion Case: Is A Littoral Owner Trespassing When The Shoreline Erodes?

Posted on April 24, 2010
The Solicitor General has filed the federal government's Brief in Opposition in Sharp v. United States, No. 09-820 (cert. petition filed Jan. 7, 2010) (Supreme Court docket entry here). In that case, the property owners are asking the U.S. Supreme...

Was Ban On Palmyra Commercial Fishing A Taking Of The Right To Operate Seafood Processing Facilities?

Posted on April 23, 2010
At its upcoming April 30, 2010 conference, the U.S. Supreme Court is considering the cert petition in a case we've been following since it was decided by the Court of Federal Claims. In Palmyra Pacific Seafoods, L.L.C. v. United States,...

Was It "All About The Money?" Hardly.

Posted on April 22, 2010
According to this City Room blog post at the New York Times, Daniel Goldstein, the "last Atlantic Yards holdout" and the driving force behind Develop Don't Destroy Brooklyn, has agreed to cease his objections to the taking of his family...

Indiana Supreme Court: Inverse Condemnation Remedy Exclusive When Government Seizes Land Without Condemnation

Posted on April 21, 2010
A new opinion from the Indiana Supreme Court that reminds us somewhat of the "bizarre condemnation" case now awaiting decision in the New Jersey Supreme Court. In Murray v. City of Lawrenceburg, No. 15S04-0907-CV-310 (Apr. 20, 2010), the court held...

Upcoming: Land Use Hot Topics Program (In Person And Online)

Posted on April 21, 2010
On Friday, April 30, 2010, as part of the Spring Meeting of the ABA's Section of State and Local Government Law, I'll be presenting a paper Recent Developments in Challenging the Rights to Take in Eminent Domain (SSRN posting here)...

Kuilima's Motion For Reconsideration Of HAWSCT's Supplemental EIS Opinion

Posted on April 20, 2010
Kuilima Resort Company has asked the Hawaii Supreme Court to reconsider or clarify its opinion in the Turtle Bay/Kuilima EIS case (Unite Here! Local 5 v. City and County of Honolulu, No. 28602 (Apr. 8, 2010)), in which the court...

Land Court, Schmand Court: State Disregards Torrens Title, Claiming Unstated, Preexisting Rights

Posted on April 19, 2010
A fascinating case is now pending in Hawaii's Intermediate Court of Appeals involving the nature of "Torrens" title and, in a broader sense, the nature of property rights themselves. Hawaii has had a dual system of land registration. One is...

Sunday Eminent Domain Round-Up

Posted on April 18, 2010
What we're reading today: Curbing abuse of eminent domain - A Denver Post editorial on a new Colorado statute designed to limit the power of the government to declare farmland "blighted" ("The new law says land that has been classified...

New Jersey Appellate Division: For Property To Be Blighted, City Must Do More Than Say It Is Blighted

Posted on April 18, 2010
In Cottage Emporium, Inc. v. Broadway Arts Center, L.L.C., No. A-0048-97T2 (Apr. 16, 2010) (per curiam), the New Jersey Superior Court (Appellate Division) struck down the city of Long Branch, New Jersey's declaration that properties located in an area of...

8th Circuit: Rooker-Feldman Not Applicable, But Federal Claims Precluded Under San Remo

Posted on April 14, 2010
To paraphrase comedian Jeff Foxworthy, if you understand the title of this post...you might be a regulatory takings lawyer. And when you hear the terms "Rooker-Feldman" and "San Remo," you know you are knee deep in the often-bizarre procedural maze...

Book Review: Takings International: A Comparative Perspective on Land Use Regulations and Compensation Rights

Posted on April 13, 2010
I've finally had a chance to peruse the recently-published book Takings International: A Comparative Perspective on Land Use Regulations and Compensation Rights (ABA Section of State and Local Government Law 2010; $95 regular price; $75 for SLG members)...

Cal Ct App Gives LA The Business: A Book Buff Is Not A "Book Dealer"

Posted on April 09, 2010
Thank goodness for small things. At least book collectors in Los Angeles do not need to get "secondhand book dealer" permit from the government simply because they buy used books. In Hopp v. City of Los Angeles, No. B215265 (decided...

Turtle Bay/Kuilima Supplemental EIS Case: Is A Change In "Context," But Not The Project, Enough To Trigger Supplemental EIS?

Posted on April 08, 2010
This just in: the Hawaii Supreme Court has issued an opinion in the Turtle Bay/Kuilima EIS case (Unite Here! Local 5 v. City and County of Honolulu). In short, the court held that a supplemental environmental impact statement is required...

The Latest (Last?) Chapter In The Port Chester Condemnation

Posted on April 07, 2010
The eminent domain issue grabbing everyone's attention these days is the question of whether property can be taken -- the Public Use/Kelo issue -- and not the issue in play in the vast majority of condemnation cases, just compensation. The...

New Cert Petition: Is The "Undivided Fee" Rule Unconstitutional?

Posted on April 06, 2010
When is a lease that everyone agrees is worth more than a million dollars totally worthless? When it's an eminent domain case and the court applies the "undivided fee" rule, that's when. Most eminent domain attorneys know about the infamous...

When Pleading An Inverse Condemnation Cause Of Action, You Should Probably Use The Term "Inverse Condemnation"

Posted on April 05, 2010
File this one in the obvious category. In Brown v. City of Pocatello, No. 35992 (Apr. 1, 2010), the Idaho Supreme Court held that a property owner's complaint that her home was flooded as a result of roadwork by the...

New Hampshire Supreme Court Upholds Taking Of Private Water Works

Posted on April 05, 2010
The New Hampshire Public Utilities Commission properly approved the taking of private water works by the City of Nashua. In Appeal of Pennichuck Water Works, Inc., No. 2009-274 (Mar. 25, 2010), the New Hampshire Supreme Court concluded taking was in....

Be Careful Of Lawprofs Bearing Praise: Another Chapter In The "Background Principles" Debate

Posted on April 02, 2010
When one lawyer writes that another is "my friend and colleague," watch out: what follows may not be exactly friendly or collegial. For legal academics, the rule is even more pronounced when the friend-and-colleague's name shows up in the title...

Making Regulatory Takings Harder

Posted on March 29, 2010
More on the closely-followed case rent control regulatory takings decision from the Ninth Circuit, Guggenheim v. City of Goleta, No. 06-56306 (Sep. 28, 2009), which is currently being reheard en banc by the Ninth Circuit. Earlier, we posted a link...

8th Circuit: Federal Takings Lawsuit Not Ripe

Posted on March 25, 2010
In granting a special zoning exemption to Shelter House, Iowa City allowed it to build a homeless shelter on land next to Mr. and Mrs. Dahlen's mobile home park. After losing their challenge to the zoning exemption, the Dahlens filed...

NJ Law Journal's Summary Of The Klumpp Oral Arguments (The "Bizarre Condemnation")

Posted on March 24, 2010
Calling the case "tempestuous," the New Jersey Law Journal (via law.com) summarizes this week's New Jersey Supreme Court oral arguments in Klumpp v. Borough of Avalon, No. A-49-09 (certification granted Nov. 10, 2009). See Michael Booth, Town's Taking of Beachfront...

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