Real Estate & Property Law

Is Anyone On The Hook If a Volcano Gawker Ends Up In Trouble?

Posted on May 17, 2013
This photo and accompanying story ("Volcano officials concerned about risky activity at Kilauea ocean entry") reminded us of an article we did a few years ago about issues of liability in these cases, the "compensation culture," and a famous tort decision by the UK's House of Lords...

USA's BIO In Western Water Rights Takings Case

Posted on May 17, 2013
Here's the BIO recently filed by the United States in Estate of Hage v. United States, No. 12-918 (cert. petition filed Jan. 17, 2013). This brief responds to the cert petition which seeks Supreme Court review of Estate of Hage v. United States, 687 F...

HSBA Appellate Section: Amicus Briefing

Posted on May 17, 2013
On Monday, May 20, 2013, I'll be speaking at the Hawaii State Bar Association's Appellate Law Section's monthly meeting, on "Amicus Briefing." Sorry for the short notice, but I am a last-minute substitution since one of the original panelists, retired Hawaii Supreme Court Justice Steven Levinson, is under the weather...

PBS's Constitution USA On Eminent Domain

Posted on May 16, 2013
Watch Eminent Domain Case: How Can You Take My House? on PBS. See more from Constitution USA with Peter Sagal. Here's a video snippet focusing on eminent domain and the Kelo decision, from PBS's ongoing series on the U.S. Constitution. It's a somewhat generic view of the issue complete with...

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Pa Appellate Ct: Declaration Controls In Eminent Domain, Not Professed Intent

Posted on May 15, 2013
In In re: Condemnation by PPL Electric Utilities Corp., No. 1389 CD 2012 (Pa. Comm'w May 8, 2013), a Pennsylvania state appeals court held the condemnation of property by a utility for a right-of-way to reconstruct electric lines already existing on the land, needed the prior approval of the Public...

HAWSCT Oral Argument Preview: More On The "Private Attorney General" Fee-Shifting Doctrine

Posted on May 15, 2013
Tomrrow morning (Thursday, May 16, 2013), at 9:00 a.m., the Hawaii Supreme Court will hear oral arguments in Aloha Tower Dev. Corp. v. State of Hawaii, No. SCWC-30484, in which the court is reviewing the opinion of the Intermediate Court of Appeals which held that a party was not entitled...

Third Circuit: Closing A Business To Remove Unexploded Munitions Is Not A Taking

Posted on May 14, 2013
If you haven't figured out by now, we like takings claims. We really do. But here's one where we think the Third Circuit reached the right result when it concluded that there was no compensable taking. National Amusements, Inc. v. Borough of Palmyra, No...

Oral Argument Video In Ninth Circuit Oyster Beef

Posted on May 14, 2013
Here's the video of today's Ninth Circuit oral arguments in Drake's Bay Oyster Co. v. Jewell, the case about an oyster farm in Marin County's Point Reyes National Seashore, and Interior Secretary Ken Salazar's decision to not renew its license. The Ninth Circuit has posted the briefs of the parties...

NJ App: No Blight Proven In Redevelopment Taking

Posted on May 13, 2013
We generally don't cover unpublished decisions, but since we're adding this case to our "to watch" list, we're making an exception. In 62-64 Main Street, LLC v. Mayor and Council of the City of Hackensack, No. A-3257-11T4 (N.J. Super. May 3, 2013), the Appellate Division of the New Jersey Superior...

Cal App Affirms Penn Central Temporary Regulatory Taking

Posted on May 10, 2013
Here's the opinion of the California Court of Appeal (1st District) in an appeal we've been following, Lockaway Storage v. County of Alameda, No. A30874 (May 9, 2013), affirming that the County of Alameda is liable for a temporary regulatory taking under Penn Central, and awarding the property owners nearly...

ABA Spring Conference: Public Use And Regulatory Takings Updates

Posted on May 09, 2013
We just wrapped up the spring meeting of the ABA's Section of State and Local Government Law in Nashville, which included our presentation of two updates, one on the latest in public use in eminent domain, the other on regulatory takings. Here are the draft papers presented: Recent Developments in...

Tex App: Low Threshold For "Intent" In Inverse Condemnation Pleading

Posted on May 07, 2013
A short one from the Texas Court of Appeals (Third District), involving inverse condemnation. In City of Austin v. GHI Investments, LLC, No. 03-12-00198CV (Tex. App. Apr. 30, 2013), the court held that flooding resulting from the city's approval of drainage designs that were part of a road widening and...

HAWSCT's Latest On The "Private Attorney General" Fee-Shifting Doctrine

Posted on May 06, 2013
Here's the latest decision from the Hawaii Supreme Court applying the "private attorney general" doctrine, which allows a prevailing party to recover fees and costs in certain limited circumstances. In Kaleikini v. Yoshioka, No. SCAP-11-0000611 (May 2, 2013), the court awarded attorneys' fees and costs incurred on appeal to the...

One More Amicus Brief In Railbanking Case: Growing And Well-Documented Circuit Split

Posted on May 01, 2013
Here's the third and final amicus brief supporting the petitioner in Marvin M. Brandt Revocable Trust v. United States, No. 12-1173 (cert. petition filed Mar. 22, 2013). The Pacific Legal Foundation brief argues: This case raises important questions regarding the common law of property ownership and the certainty of titles...

Amicus Brief In Railbanking Case: Circuit Split May Upset Title To Millions Of Acres

Posted on April 30, 2013
Here's the amici brief of the Cato Institute and the National Association of Reversionary Property Owners supporting the petitioners in in Marvin M. Brandt Revocable Trust v. United States, No. 12-1173 (cert. petition filed Mar. 22, 2013). In that case, the Tenth Circuit's opinion held that the term railroad "right...

9th Circuit: Hard To Complain About Indian Tribe's Eminent Domain Home Cookin' When Condemnee Develops Indian Land

Posted on April 29, 2013
There isn't a whole lot of eminent domain action in the Ninth Circuit's opinion in Grand Canyon Skywalk Development, LLC v. Sa Nyu Wa, Inc., No. 12-15634 (Apr. 26, 2013), and the issue the court analyzes is the relative jurisictions of the federal and tribal courts, but it still is...

Materials From Today's Virginia Eminent Domain Conference

Posted on April 26, 2013
For those of you attending the Virginia Eminent Domain Conference, here's the expanded papers on "Tough Takings Questions: Regulatory Takings, Zoning Issues and Judicial Takings" and Public Use issues. Use the password provided at the conference to open the pdf's...

Amicus Brief In Rails-to-Trails Case: Switching Tracks To Undermine Takings Claims

Posted on April 25, 2013
Here's the amicus brief we filed today on behalf of our colleagues at Owners' Counsel of America, urging the U.S. Supreme Court to grant cert in Marvin M. Brandt Revocable Trust v. United States, No. 12-1173 (cert. petition filed Mar. 22, 2013). That petition asks the Court to review a...

Fifth Circuit: City Not Required To Give Notice Prior To Demolishing Building If It Merely Believed There Was An Emergency

Posted on April 24, 2013
A short one from the U.S. Court of Appeals for the Fifth Circuit. In RBII, L.P. v. City of San Antonio, No. 11-50626 (Apr. 23, 2013), the court overturned a jury verdict that the city violated the due process and Fourth Amendment rights of a property owner when the city...

Prof Fight: Epstein v. Tushnet

Posted on April 22, 2013
Ah, the world of academia: ivy-covered walls, the strains of gentle theoretical debate, three months off in the summer, free coffee in the faculty lounge. [Here's where the movie trailer has that cliché screeching sound of a record being scratched - by the way, do those raised on CD's and...

The Ninth Circuit Botches Regulatory Takings Again

Posted on April 18, 2013
When reading the Ninth Circuit's latest foray into the regulatory takings doctrine which holds that a muncipal rent control ordinance did not qualify under Penn Central (MHC Financing Ltd P'ship v. City of San Rafael, No. 07-15983 (Apr. 17, 2013), we were reminded of the opening line in Andy Williams'...

Ninth Circuit: No Penn Central Taking In Rent Control Ordinance

Posted on April 17, 2013
This just in: the Ninth Circuit has issued an opinion in MHC Financing Ltd P'ship v. City of San Rafael, No. 07-15983 (Apr. 17, 2013), reversing the District Court's decision that the city's mobilehome rent control ordinance was a taking under Penn Central...

Federal Appeals: Tips And Hints

Posted on April 17, 2013
Earlier this week, the Hawaii State Bar Association's Appellate Law Section put on a one-hour MCLE session on federal appeals featuring Ninth Circuit Judge Richard Clifton, our Damon Key colleague Mark M. Murakami, and Claire Connors (Davis Levin). While you can no longer earn MCLE credits (next time, attend in...

Fla Fed Ct: Exaction Scheme Is "Constitutional Mischief" To Avoid "Nettlesome Payment of 'Just Compensation'"

Posted on April 16, 2013
Here's one to brighten your day, courtesy of the the U.S. District Court for the Middle District of Flordia (that's Tampa, to all you non-Floridians). In Hillcrest Property, LLP v. Pasco County, No. 8:10-cv-819-T-23TBM (Apr. 12, 2013), the court held the county's "Right of Way Preservation Ordinance" that allows it...

Sorry, Property Owners. Supreme Court Just Not That Into You

Posted on April 15, 2013
When the cert petition was filed in Ilagan v. Ungacta, No. 12-723 (cert. petition filed Dec. 7, 2012), we wrote that the case seemed like a good vehicle for the U.S. Supreme Court to revisit the pretext-in-eminent-domain issue it teased us with in Kelo, especially the part about the taking...

Indiana S Ct: Meaning Of "De Novo" Rehearing In Eminent Domain Code Not Quite A "No Brainer"

Posted on April 12, 2013
Check out the opinion of the Indiana Supreme Court in Utility Center, Inc. v. City of Fort Wayne, No. 90S04-1208-PL-450 (Apr. 11, 2013. The issue is what the term "rehear ... de novo" means in Indiana's eminent domain code relating to condemnations by cities and towns, which provides for such...

Podcast On The Tombstone Federal Lands Access Case

Posted on April 12, 2013
Earlier today, the Supreme Court considered whether to grant review in City of Tombstone v. United States, No. 12-1069 (cert. petition filed Feb. 27, 2013). The City of Tombstone's cert petition asks whether the city "is likely to succeed on the merits of the claim that the Forest Service violated...

Cert Petition: Texas Liable For A Taking Because It Caused The Feds To Deny A Permit

Posted on April 11, 2013
Here's one that's coming up for the Supreme Court's consideration at its conference next week, but which we haven't noted until now. A Texas property owner has filed this cert petition asking the Court to review the Texas Supreme Court's decision in Hearts Bluff Game Ranch, Inc...

Strong Letter To Follow...

Posted on April 11, 2013
Yesterday, we posted our thoughts on a recent article in Hawaii Business magazine about land use, environmental law, and the Hawaii Supreme Court. In "'Let 'Em Eat Cake' Comes to Hawaii, Professor Gideon Kanner has added his thought on the article. He comments on the article's conclusion that "[i]f we...

Amicus Brief In Ninth Circuit Homeless Property Case: No One Has Constitutional Right To Leave Unattended Property On The Street

Posted on April 10, 2013
Here's the amici brief of the International Municipal Lawyers Association and the National League of Cities, which urges the U.S. Supreme Court to review the Ninth Circuit's decision in Lavan v. City of Los Angeles, 693 F.3d 1022 (9th Cir. 2012). In that case, a 2-1 panel held that the...

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