Real Estate & Property Law

Pretext In Eminent Domain: Law Of The Land On The Coupe Opinion

Posted on April 10, 2009
Dean Patty Salkin's Law of the Land blog posts James Lawlor's summary of the Hawaii Supreme Court's decision in County of Hawaii v. C&J Coupe Family Ltd. P'ship, 119 Haw. 352, 198 P.3d 615 (2008), "Court Must Decide If Public...

Two Interesting Eminent Domain Decisions

Posted on April 08, 2009
Our thanks to Dwight Merriam for letting us know about these two decisions. Gold v. Town of East Haddam, No. 18067 (Conn. Mar. 24, 2009) - On one hand, this is a fairly straightforward summary judgment case: are material facts...

Hawaii Business Magazine Column: Using Blogs, Social Media To Connect

Posted on April 08, 2009
Hawaii Business magazine has published my column about how our firm is using web 2.0 tools to communicate and connect, "Connect with customers with blogs, Twitter." Ironically, the article is not (yet) available on-line, so here it is: Connect with...

New Article: Is Eminent Domain Reform Just Window Dressing?

Posted on April 08, 2009
A new article from the ABA Journal "Where's the Revolution" about whether post-Kelo reforms of eminent domain law have any real effect on the law. According to the summary of the article on the Geo. Mason U. law school web...

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Tuesday Round-Up: Forced Farming, Tax Or Taking, RLUIPA Loophole

Posted on April 07, 2009
Several items of interest: California Coastal Commission: "You must farm" - As a condition of allowing a Northern California family to build a home, the California Coastal Commission demanded that they dedicate an "agricultural easement" on their 143-acre parcel...

New Cert Petition And Amicus Brief On Nollan/Dolan Applicability To Legislative Exactions, In-Lieu Fees

Posted on April 06, 2009
A cert petition has been filed seeking review of the Ninth Circuit's decision in McClung v. City of Sumner, 548 F.3d 1219 (9th Cir. 2008), the case in which the court held: This case presents an issue of first impression...

2009 Update Of Hawaii Chapter In Law & Procedure Of Eminent Domain In The 50 States Available

Posted on April 05, 2009
I've updated the Hawaii chapter in Law and Procedure of Eminent Domain in the 50 States, a compendium of individual states' condemnation laws put together by the ABA Section on Litigation - Committee on Condemnation, Zoning & Land Use. The...

Links From Today's ABA Teleconference: Hot Topics In Land Use Law 2009

Posted on April 02, 2009
Thank you to those who were able to join us live for today's teleconference. Here are the links to the additional cases and other items I mentioned (or wanted to mention) in my session on Public Use and Pretext Update:...

Links From Today's ABA Condemnation Hot Topics Teleconference

Posted on April 01, 2009
Thank you to those who were able to join us live for today's teleconference. Here are the links to the additional cases and other items I mentioned (or wanted to mention) in my session on Public Use and Pretext Update:...

Book Review: Little Pink House, Eminent Domain - Time To Change The Law

Posted on March 31, 2009
Our thanks to Robert S. Poliner, the Connecticut Ombudsman for Property Rights for permitting us to republish his review of Jeff Benedict's Little Pink House - A True Story of Defiance and Courage (Grand Central Publishing 2009) (available from Amazon...

Three Takeaway Points From The "Ceded Lands" Decision

Posted on March 31, 2009
What to make of the U.S. Supreme Court's unanimous opinion in the "ceded lands" case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (Mar. 31, 2009), beyond the narrow holding that the Apology Resolution had no legal effect? Think about...

Sorry Seems To Be The Hardest Word: U.S. Had "Absolute Fee Simple" Title To Ceded Lands, Apology Resolution Had No Legal Effect

Posted on March 31, 2009
The U.S. Supreme Court held that a Congressional resolution apologizing for the United States' role in the overthrow of the Hawaiian kingdom was just an apology, and had no legal effect. In an opinion for a unanimous Court authored by...

Unanimous SCOTUS: Apology Resolution No Legal Effect

Posted on March 31, 2009
A unanimous Supreme Court, in an opinion authored by Justice Alito has reversed and remanded the Hawaii Supreme Court in the "ceded lands" case. The opinion is posted here. More to follow after a chance to read the opinion, but...

Spinning The Ceded Lands Decision

Posted on March 31, 2009
Here's a collection of the reports and commentary beginning to come in about the U.S. Supreme Court's unanimous opinion in the "ceded lands" case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (Mar. 31, 2009): Supreme Court backs Hawaii in...

Court Of Federal Claims Round-Up

Posted on March 30, 2009
Here are the latest opinions of interest from the Court of Federal Claims, which has nationwide jurisdiction over inverse condemnation and regulatory takings claims against the federal government where the compensation sought exceeds $10,000: Energy Security of America Corp...

Cert Denied In Agripost (Williamson County)

Posted on March 30, 2009
The U.S. Supreme Court has denied review to Agripost, LLC v. Miami-Dade County, Florida, No. 08-567 (cert. petition filed Oct. 27, 2008), another case asking the Court to overrule Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City,...

Upcoming ABA Condemnation, Land Use Teleconferences

Posted on March 27, 2009
There's still time to register for two teleconferences that are a part of the ABA State and Local Government Section's "Virtual Spring Meeting." I hope you can join us for at least one of the programs. Wednesday, April 1, 2:00...

Federal Circuit: 35k SF Government Borrow Pit On Your Property Not "Inherently Unknowable"

Posted on March 27, 2009
In 1999, without asking the owner's permission, the federal government constructed a 35,000 square foot "borrow pit" on a parcel in a remote corner of Texas. The owner did not learn about the government's activities until 2004, when a migrant...

Hawaii Superferry II: Rooting Out Pretext In Legislative Actions

Posted on March 26, 2009
"Unlike Bulgo, in this case there is no evidence in the record that any company, other than Superferry, met the definition provided by section 2 when Act 2 was enacted." Sierra Club v. Dep't of Transportation, No. 29035 slip op....

New Cert Petition - Dolan Proportionality And Individualized Determination Applies To In-Lieu Fees

Posted on March 24, 2009
A cert petition has been filed seeking review of Joy Builders, Inc. v. Town of Clarkstown, 11 N.Y.3d 863 (2008). That decision was summarized by Professor Patty Salkin on the Law of the Land blog here. The New York Court...

James Ely: Report Card On Post-Kelo Eminent Domain Reforms

Posted on March 24, 2009
Professor James Ely (who, among other things, is the author of The Guardian of Every Other Right: A Constitutional History of Property Rights) writes "A Report Card on Post-Kelo Eminent Domain Reforms" at the Oxford University Press blog. He notes...

More On Pretext In Eminent Domain

Posted on March 24, 2009
Following up on this story, West Hawaii Today reports "Attorneys argue against Supreme Court ruling on bypass," about whether a second attempt to condemn property ostensibly for a road is pretextual when the court determined the first attempt was unconstitutional...

Cert Denied In Amerisource (Taking Of Property As Evidence)

Posted on March 23, 2009
The U.S. Supreme Court today issued an order denying review in AmeriSource Corp. v. United States, No. 08-497 (cert. petition filed Oct. 15, 2008), the case which asked "[w]hether it is a taking compensable under the Fifth Amendment for the...

Determining Eminent Domain Pretext In Serial Takings

Posted on March 22, 2009
As reported in this story from West Hawaii Today, a Hawaii trial court is considering whether a second attempt to condemn property ostensibly for a road is pretextual when it determined the first attempt was unconstitutional. Disclosure: we represent the...

PBS Hawaii Posts Vid Of Ceded Lands "Conversation"

Posted on March 21, 2009
For those who couldn't watch it live, the Hawaii public television station has posted a video of yesterday's broadcast of a discussion about the "ceded lands" case. The program includes Hawaii Attorney General Mark Bennett who argued the case for...

Weekend Round-Up

Posted on March 21, 2009
Several diverse items of interest for your weekend reading enjoyment: "Impact Fees" - a response to this commentary about impact fees and the legality of "fair share" exactions by the County of Hawaii. "Substantive Due Process at Work" - analysis...

Overrule Williamson County: Agripost Cert Petititon A "Petition To Watch"

Posted on March 20, 2009
Thank you to several of our readers for pointing out that SCOTUSblog has determined that Agripost, LLC v. Miami-Dade County, Florida, No. 08-567 (cert. petition filed Oct. 27, 2008) is a "petition to watch" for the Supreme Court's March 27,...

Out-Of-Proportion In-Lieu Affordable Housing Exaction Opinion Modified

Posted on March 20, 2009
The modified opinion in Building Industry Ass'n of Central California v. City of Patterson, No. F054785 (Cal. Ct. App. Mar. 2, 2009), a case we summarized here, has been further modified in this order. The latest modifications do not alter...

Lessons For Superferry From The Kelo Aftermath?

Posted on March 19, 2009
"One more victory such as this and we shall be ruined." So lamented Pyrrhus, the king of the eponymous victory -- a win so costly it cannot be savored. It's a term the New London Development Corporation, which prevailed in...

Additional Amicus Briefs In Empress Casino (Can The Gov't "Take" Money?)

Posted on March 19, 2009
Three more amicus briefs supporting the petition for writ of certiorari in Empress Casino Joliet Corp. v. Giannoulias, No. 08-945 (cert. petition filed Jan. 21, 2009). In that case, the Illinois Supreme Court held (896 N.E.2d 277 (Ill. 2008) that...

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