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The five land use issues we learned in Austin

Last week, Kate Brink, Larry Opalewski and I attended the ALI Eminent Domain Land Use conference in Austin, Texas.  In addition to giving Zana Tomich a well-deserved break from listening to land use attorneys talking about zoning issues, we had a wonderful time in Austin learning from the best attorneys in the United States about the new contours of land use law.

Our five takeaways from the conference include the following:

  1. Assert RLUIPA in Eminent Domain cases.  While there is disagreement over this topic, it can be (and has been) successfully argued that RLUIPA applies to Eminent Domain actions.  Therefore, it is important to raise the issue for religious organizations faced with this issue.
  2.  Property Owners are winning Regulatory Takings claims.  In the past decade, the United States Supreme Court has ruled favorably for the landowner in all six cases before it.  The Court has one regulatory taking claim this year and several more are in the pipeline.
  3. Ripeness arguments may finally be reversed.  The argument raised by municipal lawyers alleging that claims are not ripe based on the Supreme Court’s decision in Williamson County may finally be going away.  The Court has a case before it currently to address the issue and a decision to grant review is pending.  In my humble opinion, ripeness is a wholly unfair and illogical defense.  If, for example, a police officer denies the civil rights of a citizen, the citizen is not required to go through an internally created and biased process before filing suit.  He can file suit.  This does not apply to land use and zoning claims.  The property owner whose civil rights are violated by a local government should be able to go to Court directly once his civil rights are violated. Another topic for another day.
  4. The Kelo backlash continues.  Most all states have passed anti-Kelo statutes or constitutional provisions since the United States Supreme Court issued its decision.  And after $78 million spent by New London on the property, it remains vacant today – with the exception of feral cats – as the property owner, Pfizer, merged with another company and abandoned the development.
  5. Austin is a great place to visit.  One cannot attend a conference in Austin without experiencing the local food, craft beer and music scene.  If you are planning a trip, for work of course, I highly recommend the bacon sausage sandwich with cheesy grits at Bangers Sausage House & Beer Garden, live music and small plates at Parkside and the barbeque at Iron Works.
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