January 25, 2012

2012 Low-Income Housing Tax Credit (LIHTC) Workshops

2012 Low-Income Housing

Tax Credit (LIHTC) Workshops

The California Tax Credit Allocation Committee (TCAC) invites affordable housing developers and interested parties to attend half-day application training workshops on 2012 submissions to the California LIHTC Program.

Workshop details

2011 Results

2012 Regulations Changes

2012 Credit Estimates

Overview of 2012 Market Study Guidelines

Overview of the 9% Application and Checklist

Locations and Dates


Feb. 13, 2012, 1:00pm – 4:30pm

Holiday Inn Capitol Plaza

300 J Street

Sacramento, CA 95814


Feb. 14, 2012, 1:00pm – 4:30pm

Elihu Harris Building, Room 1

1515 Clay Street

Oakland, CA 94612


Feb. 15, 2012, 1:00pm – 4:30pm

Holiday Inn on the Bay

1355 North Harbor Drive

San Diego, CA 92101


Feb. 16, 2012, 1:00pm – 4:30pm

& Feb. 17, 2012, 9:00am – 12:30pm

Marriot Los Angeles – Downtown

333 South Figueroa Street

Los Angeles, CA 90071





2012 Low-Income Housing

Tax Credit (LIHTC) Workshops

The California Tax Credit Allocation Committee (TCAC) invites affordable housing developers and interested parties to attend half-day application training workshops on 2012 submissions to the California LIHTC Program.

Workshop details

2011 Results

2012 Regulations Changes

2012 Credit Estimates

Overview of 2012 Market Study Guidelines

Overview of the 9% Application and Checklist

Locations and Dates


Feb. 13, 2012, 1:00pm – 4:30pm

Holiday Inn Capitol Plaza

300 J Street

Sacramento, CA 95814


Feb. 14, 2012, 1:00pm – 4:30pm

Elihu Harris Building, Room 1

1515 Clay Street

Oakland, CA 94612


Feb. 15, 2012, 1:00pm – 4:30pm

Holiday Inn on the Bay

1355 North Harbor Drive

San Diego, CA 92101


Feb. 16, 2012, 1:00pm – 4:30pm

& Feb. 17, 2012, 9:00am – 12:30pm

Marriot Los Angeles – Downtown

333 South Figueroa Street

Los Angeles, CA 90071












General Information for Workshops

For more information, contact Nicole Valenzuela at 916-654-6340

About the California Tax Credit Allocation Committee

The California Tax Credit Allocation Committee (TCAC) is the state agency responsible for administering the Federal and State Low Income Housing Tax Credit Programs.

About the Workshops

Participants will have the opportunity to ask questions and discuss issues with TCAC staff.

Workshop materials will be available on the TCAC website (

www.treasurer.ca.gov) approximately one week prior to the date of the workshop. Registered attendees are strongly encouraged to visit the TCAC website prior to attending the workshops to download workshop materials. Hard copies of the materials will not be available.

Who should attend

Anyone involved in tax credit projects, including owners, developers, project managers, attorneys, accountants, consultants, and market analysts.


Attendees must register by mailing the Registration Form and $65.00 per person fee to TCAC by

February 7, 2012. Fax, telephone, or walk-in registrations will NOT be accepted.

Space is limited to 2 representatives per organization and 75 attendees per session (100 attendees for LA sessions).

Confirmation letters will be faxed to participants and are required at the door.

Full refunds will be made to registered participants if TCAC cancels or postpones the workshop.


2012 LIHTC Application Workshop – Registration Form

Contact Person:

Select Workshop:




Attendee Name (1):



Sacramento – Feb. 13, 2012



Attendee Name (2):



Oakland – Feb. 14, 2012






San Diego – Feb. 15, 2012






Los Angeles (LA) – Feb. 16, 2012





Los Angeles (LA) – Feb. 17 2012



Phone Number:



The registration fee is $65.00 per person.


Fax Number:



Make checks payable to: TCAC


Email Address:



Amount Enclosed: $







Please submit form with your check by


February 7, 2012 to:


CA Tax Credit Allocation Committee

915 Capitol Mall, Room 485

Sacramento, CA 95814


January 24, 2012

letter distributed by the Appraisal Foundation (TAF)


Appraisal Subcomitte

Recently, I was made aware of a letter distributed by the Appraisal Foundation (TAF) in response to a publication by the National Association of Home Builders.  The significance of the TAF letter was that appraiser have the freedom to choose whatever comps they feel are relevant to their valuation-including no arm's length sales to opine Market Value.  This practice is an apparent violation of acceptable appraisal practices.  I requested and then demanded that they send me a citation supporting this argument along with one indicating that their response was sanctioned by their bylaws.  They, again, refused.  I then demanded the information, along with comprehensive resume's indicating that they were competent to derive such conclusions, under the Freedom of Information Act (FIA.)  They again refused, stating that they were not subject to the FIA because they are a Private Non-profit organization.


This leads me to believe that they are incompetent for their positions, and that their actions have contributed to an unnecessary geometric decline in real property values.    My complaints are:


1. It is not within their purview to make requested or unrequested public comments re Appraisal Practices.


2. They are incompetent to make such statements.


3. They have no standing when it comes to an exemption of the FIA.



Curtis D. Harris, BS, CGREA, REB

Bachelor of Science in Real Estate, CSULA

State Certified General Appraiser

Real Estate Broker

ASTM E-2018 Commercial Real Estate Inspector

HUD 203k Consultant

HUD/FHA Real Estate Appraiser/Reviewer

FannieMae REO Consultant

CTAC LEED Certification


The Harris Company, Forensic Appraisers and Real Estate Consultants

*PIRS/Harris Company and the Science of Real Estate-Partners*

1910 East Mariposa Avenue, Suite 115

El Segundo, CA. 90245

310-337-1973 Office

310-251-3959 Cell

WebSite: http://www.harriscompanyrec.com

Resume: http://www.harriscompanyrec.com/CURRICULUMVITAENAME2011a.pdf

Commercial Appraiser Blog: http://harriscompanyrec.com/blog/


We Make a Simple Pledge to


Communicate, in a timely fashion, each appraisal, analysis, and opinion without bias or partiality


Abstain from behavior that is deleterious to our clients, the appraisal profession, and the public


Hold paramount the confidential nature of the appraiser/consultant - client relationship




Comply with the requirements of the Uniform Standards of Professional Appraisal Practice and the

Code of Professional Ethics of the National Society of Real Estate Appraisers


IT'S THE LAW- Statement 7: Prohibition Against Discrimination

State agencies should be aware that Title XI and the Agencies' regulations prohibit federally regulated financial institutions from excluding appraisers from consideration for an assignment by virtue of their membership, or lack of membership, in any appraisal organization. Federally regulated financial institutions should review the qualifications of appraisers to ensure that they are qualified for the assignment for which they are being considered. It is unacceptable to assume that an appraiser is qualified solely due to membership in, or designation from, an appraisal organization, or the lack thereof. The Agencies have determined that financial institutions' appraisal policies should not favor appraisers from one or more organizations or exclude individuals based on their lack of such membership. If a State agency learns that a certified or licensed appraiser allegedly has been a victim of such discrimination, the State agency should inform the Agency which has regulatory authority over the involved financial institution. INCLUDING THE APPRAISAL INSTITUTE-MAI

CONFIDENTIALITY/PRIVILEGE NOTICE: This transmission and any attachments are intended solely for the addressee. The information contained in this transmission is confidential in nature and protected from further use or disclosure under U.S. Pub. L. 106-102, 113 U.S. Stat. 1338 (1999), and may be subject to consultant/appraiser-client or other legal privilege. Your use or disclosure of this information for any purpose other than that intended by its transmittal is strictly prohibited and may subject you to fines and/or penalties under federal and state law. If you are not the intended recipient of this transmission, please destroy all copies received and confirm destruction to the sender via return transmittal



On December 9, 2011, the Appraiser Qualifications Board of The Appraisal Foundation adopted changes to the


Property Appraiser Qualification Criteria


that will become effective January 1, 2015. These changes represent

minimum national requirements that each state must implement no later than January 1, 2015.


National Uniform Licensing

and Certification Examinations

Education and experience must be completed prior to

taking the AQB-approved

National Uniform Licensing and

Certification Examination



Background Checks

All candidates for a real property appraiser credential must

undergo background screening. State appraiser regulatory

agencies are

strongly encouraged to perform background

checks on

existing credential holders as well.

College Degree Acceptance and

Core Curriculum Requirements

Credit towards qualifying education requirements may be

obtained via the completion of a degree program in Real

Estate from an accredited degree-granting college or

university provided the college or university has had its

curriculum reviewed and approved by the AQB.

Deletion of the Segmented Approach

to Criteria Implementation

States had the option to implement the 2008

Real Property

Appraiser Qualification Criteria


via the “segmented

approach.” This implementation option will no longer be

valid effective January 1, 2015.

Restriction on Continuing Education

Course Offerings

Aside from complying with the requirements to complete


7-Hour National USPAP Update Course (or its AQBapproved

equivalent), appraisers may not receive credit for

completion of the same continuing education course

offering within an appraiser’s continuing education cycle.

Distance Education Requirements


written, proctored examination is required for all

qualifying education distance course offerings. The term



refers to an examination that might be written on

paper or administered electronically on a computer

workstation or other device.

Revisions to Subtopics in Guide Note 1 (GN-1)

and Continuing Education Topics

Added topics on green building (qualifying and continuing

education), seller concessions (qualifying and continuing

education) and developing opinions of real property value

in appraisals that also include personal property and/or

business value (continuing education only).



Trainee Appraiser


None None

Licensed Residential Appraiser



30 semester credit hours of collegelevel

education from an accredited

college, junior college, community

college, or university OR an Associate’s

degree or higher (in any field).

Certified Residential Appraiser

21 semester credit hours in

specified collegiate subject matter

courses from an accredited college

or university OR an Associate’s

degree or higher.

Bachelor’s degree or higher (in any

field) from an accredited college or


Certified General Appraiser

30 semester credit hours in specific

collegiate subject matter courses

from an accredited college or

university OR a Bachelor’s degree

or higher.

Bachelor’s degree or higher (in any

field) from an accredited college or


*These requirements are effective for individuals seeking a real property appraiser credential

after January 1,

2015. However, in some cases, the requirements may also apply to

existing real property appraisers (for example,

a state may require a credentialed appraiser to meet the new Criteria if he or she moves from a state that does not

have reciprocity with that state. Or some states may require appraisers seeking to change their credential level to

meet all of the 2015 Criteria prior to obtaining the new credential).

Credentialed appraisers are urged to

contact the applicable state appraiser regulatory agencies if they are contemplating relocation or changing

credential levels.



State-certified Supervisory Appraiser shall be in good

standing with the training jurisdiction and not subject

to any disciplinary action within the last three (3)

years that affects the Supervisory Appraiser’s legal

ability to engage in appraisal practice. Shall have

been state certified for a minimum of three (3) years

prior to being eligible to become a Supervisory


All qualifying education must be completed within the five

(5) year period prior to the date of submission of an

application for a Trainee Appraiser credential.

A Supervisory Appraiser may not supervise more

than three Trainee Appraisers at one time, unless a

state program in the licensing jurisdiction provides to

progress monitoring, supervising certified appraiser

qualifications, and supervision oversight

requirements for Supervisory Appraisers.

A Trainee Appraiser is permitted to have more than one

Supervisory Appraiser.

Shared responsibility to ensure the appraisal experience log for the Trainee Appraiser is accurate, current, and

complies with the requirements of the Trainee Appraiser’s credentialing jurisdiction.

Both the Trainee Appraiser and Supervisory Appraiser shall be required to complete a course that, at a minimum,

complies with the specifications for course content established by the AQB. The course will be oriented toward the

requirements and responsibilities of Supervisory Appraisers and expectations for Trainee Appraisers. The course

must be completed by the Trainee Appraiser prior to obtaining a Trainee Appraiser credential, and completed by

the Supervisory Appraiser prior to supervising a Trainee Appraiser.

National Appraisal Board Adopts Changes to the

National Appraisal Board Adopts Changes to the 
Real Property Appraiser Qualification Criteria

Effective January 1, 2015


January 24, 2012


Paula Douglas Seidel

Executive Administrator

The Appraisal Foundation


direct phone 202.624.3048


Washington, DC — The Appraisal Foundation is pleased to announce that Proposed Revisions to the Real Property Appraiser Qualification Criteria (Criteria) have been adopted by the Appraiser Qualifications Board (AQB). The AQB is an independent Board of The Appraisal Foundation. The AQB is responsible for developing minimum qualifications for education, experience, examination and continuing education for real property appraisers in the United States.


The Criteria, which were adopted at the December 2011 meeting of the AQB, will be effective on January 1, 2015. The changes to the Criteria are the result of five public exposure drafts, covering a period of 15 months. Feedback was received from interested parties in the form of comment letters as well as comments made to the Board at public meetings. The changes to the Criteria will affect individuals seeking a real property appraiser credential as of January 1, 2015.  It is important to note that individual State Appraiser Regulatory Agencies may opt to implement the Criteria earlier than the 2015 deadline.


A summary of the changes to the Criteria include:


  • Education and experience will have to be completed prior to taking the National Uniform Licensing and Certification Examinations;
  • Applicants for the Certified Residential and Certified General classifications will have to possess a Bachelor’s degree or higher from an accredited college or university;
  • Applicants for the Licensed Residential classification will have to have successfully completed 30 semester hours of college-level education from an accredited college, junior college, community college, or university, or  have an Associate’s degree or higher from an accredited college, junior college, community college, or university;
  • All candidates will be required to undergo a background check;
  • Recognition of approved university degree programs as counting toward the education requirements in the Real Property Appraiser Qualification Criteria;
  • Removal of the “Segmented” Approach to the Real Property Appraiser Qualification Criteria implementation;
  • Prohibition of repetitive continuing education in the same continuing education cycle;
  • Clarification of the term “written examination”;
  • Revisions to the Trainee Appraiser classification that will include a requirement to take a course oriented to the requirements and responsibilities of Trainee Appraisers and Supervisory Appraisers;
  • New Supervisory Appraiser requirements;
  • Revisions to Guide Note 1; and
  • Additions to the illustrative list of educational topics acceptable for continuing education.


A more detailed summary of the changes to the Criteria is available at the following link:  



Any questions on the Real Property Appraiser Qualification Criteria and the work of the Appraiser Qualifications Board can be directed to Magdalene Vasquez, Qualifications Administrator at 202.624.3074.

Governor Brown’s State of the State

Governor Brown’s State of the State 

Last week Governor Jerry Brown presented the State of the State speech to the legislature. In his remarks, he highlighted his commitment to build a statewide high-speed train project:


“Just as bold is our plan to build a high-speed rail system, connecting the Northern and Southern parts of our state. This is not a new idea. As governor the last time, I signed legislation to study the concept. Now thirty years later, we are within weeks of a revised business plan that will enable us to begin initial construction before the year is out.


President Obama strongly supports the project and has provided the majority of funds for this first phase. It is now your decision to evaluate the plan and decide what action to take. Without any hesitation, I urge your approval.


If you believe that California will continue to grow, as I do, and that millions more people will be living in our state, this is a wise investment. Building new runways and expanding our airports and highways is the only alternative. That is not cheaper and will face even more political opposition.


Those who believe that California is in decline will naturally shrink back from such a strenuous undertaking. I understand that feeling but I don’t share it, because I know this state and the spirit of the people who choose to live here. California is still the Gold Mountain that Chinese immigrants in 1848 came across the Pacific to find. The wealth is different, derived as it is, not from mining the Sierras but from the creative imagination of those who invent and build and generate the ideas that drive our economy forward.


Critics of the high-speed rail project abound as they often do when something of this magnitude is proposed. During the 1930’s, The Central Valley Water Project was called a “fantastic dream” that “will not work.” The Master Plan for the Interstate Highway System in 1939 was derided as “new Deal jitterbug economics.” In 1966, then Mayor Johnson of Berkeley called BART a “billion dollar potential fiasco.” Similarly, the Panama Canal was for years thought to be impractical and Benjamin Disraeli himself said of the Suez Canal: “totally impossible to be carried out.” The critics were wrong then and they’re wrong now.”


For a full transcript of his speech, visit: http://gov.ca.gov/home.php


Business Plan

In November 2011, the California High-Speed Rail Authority released a draft of its 2012 Business Plan which provides a comprehensive outlook on the financial, governance, and phasing plans for the statewide high-speed train project. The plan also outlines the alternatives that exist to upgrade our current transit system for the growing California population. A final Business Plan will be approved by the Board in 2012.


To review the Business Plan, please visit: www.cahighspeedrail.ca.gov/Business_Plan_reports.aspx.


Bakersfield - Palmdale Section

The Bakersfield to Palmdale regional team has continued to refine the proposed alignments in the Edison, Tehachapi and Antelope Valley sub-segments in preparation of presenting a Supplemental Alternatives Analysis Report to the California High-Speed Rail Board in February 2012. Refinements to the proposed alignments focus on value engineering along the entire segment.


For more information on the Bakersfield-Palmdale section, visit: http://cahighspeedrail.ca.gov/lib_Bakersfield_Palmdale.aspx


Palmdale - Los Angeles Section

The Supplemental Alternatives Analysis for the Palmdale to Sylmar section will be presented to the Board in April 2012. Following discussions with area stakeholders, more than ten alternatives were investigated throughout Acton, Agua Dulce and Santa Clarita/Sand Canyon. Upon further review by the Authority, the regional team will recommend to the Board alignment alternatives from Palmdale to Sylmar for study in the environmental review process.


For more information on the Palmdale-Los Angeles section, visit: http://cahighspeedrail.ca.gov/lib_Palmdale_Los_Angeles.aspx


I-5 Conceptual Study

In May 2011, the California High-Speed Rail Authority Board requested that the regional team assess potential alternatives along the I-5 to determine if new conditions and factors exist that would justify reconsidering the 2005 Program EIR/EIS decision to drop the I-5 corridor in favor of the Antelope Valley corridor.


The final study, released last week, reinforced the 2005 Program EIR/EIS. It concluded that the Antelope Valley corridor still has fewer potential environmental impacts and greater connectivity than the I-5 corridor. The Board agreed with staff recommendations at their January 2012 board meeting and requested that a proposed route through Palmdale be moved forward in the environmental review process. 


For more information on the study, visit: http://cahighspeedrail.ca.gov/pr_01122012__planning.aspx


Los Angeles – Anaheim Section

In March 2011, the California High-Speed Rail Board approved further study of a phased implementation plan for the Los Angeles to Anaheim section of the statewide high-speed train system.  This phased approach may bring early benefits to existing rail and commuter services and could improve mobility and rail safety for the local region.  This blended approach is being incorporated into the environmental document, as teams continue to work with the corridor cities, agency partners and stakeholders to develop the best solutions for the Los Angeles to Anaheim rail section.


For more information on the Los Angeles-Anaheim section, visit: http://cahighspeedrail.ca.gov/lib_Los_Angeles_Anaheim.aspx


Los Angeles - San Diego Section

In October 2011, AB 615 (Bonnie Lowenthal) was signed into law by Governor Brown, allocating $4 million in state funds to continue the environmental studies being completed throughout the Los Angeles to San Diego region.  This allows for further technical analysis to be completed in the areas of the section with multiple corridors under consideration.  We could not have achieved this funding without the support from various corridor stakeholders and agencies with an interest in seeing the planning work continue between Los Angeles and San Diego.  Further analysis and outreach to key stakeholders will continue with the submittal of a Supplemental Alternatives Analysis by the end of 2012. 


For more information on the Los Angeles-San Diego section, visit: http://cahighspeedrail.ca.gov/lib_Los_Angeles_San_Diego.aspx



The staff and board members of Southern California Association of Governments (SCAG) recently drafted the 2012 Regional Transportation Plan (RTP), a long-range transportation plan that is developed and updated by SCAG every four years. The California high-speed train is included in this long-term vision for the region, with the goal that early investment in existing passenger rail corridors identified for future high-speed train use will improve travel times and safety throughout Southern California. We want to thank the staff and committee members who have worked tirelessly to ensure high-speed rail is included in the 2012 RTP Constrained Plan.


For more information, visit: http://www.scag.ca.gov/rtp2012/index.htm

Extraction Has No Traction

Extraction Has No Traction

Land values were based

upon the extraction





Look familiar?

If I had a nickel for



phoned‐in Cost

Approach that had this

sentence or one like it, I’d be Warren


The Dictionary of Real Estate Appraisal

defines it as:

A method of estimating land value in

which the depreciated cost of the improvements

on the improved property is estimated

and deducted from the total sale

price to arrive at an estimated sale price for

the land; most effective when the improvements

contribute little to the total sale

price of the property




The underscored portion says it all.

Usually this technique is used in rural

settings. Perhaps when appraising

some hunting shack on a couple of

hundred acres of scrub.

But no, we see it in the

middle of suburban

Hinsdale, Belleville,

Taylorville, and other

places where the residence

is easily a significant

portion of the

total value.

By definition,


extraction doesn’t really

work in cities and suburbs where improvements

tend to drive value.

Also, some Cost Approaches are so

poorly cobbled together that we seriously

doubt the appraiser’s ability to






Don’t just toss


extraction into a report.

If you cannot demonstrate an ability to

depreciate reasonably, then you certainly

won’t be able to support an extraction


The board strongly suggests that you

find a course that teaches a more reliable


Fed. Dist. Court in NY Dismisses Malicious Prosecution Claims Against Town for Enforcing Zoning Violations



New post on LAW OF THE LAND


Fed. Dist. Court in NY Dismisses Malicious Prosecution Claims Against Town for Enforcing Zoning Violations

by Patricia Salkin

The property in question had been used for commercial purposes.  In 2003, the town had rezoned the property as solely residential.  Plaintiffs purchased the property in 2005, under the assumption that the property could continue to be used as commercial under a qualified pre-existing use.  The defendant town asserted that the property was not a qualified pre-existing use, however, plaintiffs continued to use the property for commercial uses.  Subsequently, in January 2006, the town sent a letter to plaintiffs explaining that the commercial use was a violation of permitted uses.  Plaintiffs ignored this letter and in March 2006 and October 2006, court appearance tickets were issued to plaintiff.  Related to this action, plaintiff contributed to a campaign of a state assembly candidate beginning in June 2006. 

Criminal informations were filed against the plaintiff in December 2006.  Other court appearance tickets were issued to the plaintiffs through 2007, 2008, and again in 2010.  In 2008, the town reassessed plaintiff’s property and raised the taxes substantially.  Plaintiff filed this action alleging that there was no probable cause to issue the tickets and, further, that the sole purpose was retaliation for the plaintiff’s political support of the assembly candidate. 

First, plaintiff alleged defendant had no probable cause for issuing the tickets against plaintiff and, thus, it must have been based on plaintiff’s political support.  The court found that plaintiff was in violation of the zoning laws and further that defendant’s letter was sent prior to any campaign donations.  Although the plaintiff asserts support of the candidate before the first letter was sent, the court found this argument implausible and insufficiently plead.  Thus, the court found that the defendant had probable cause for issuing the tickets and informations.  

Next, the plaintiff alleged malicious prosecution by defendants.  The court explained that a malicious prosecution requires the plaintiff to show seizure.  Seizure can be shown by either proving a liberty was deprived or that an unreasonable search of property occurred.  Here, the court found plaintiff had shown neither, thus, there was no seizure and no basis for a malicious prosecution claim.  Similarly, the court found that probable cause existed and that the plaintiff failed to show malice by defendants.  Thus, the plaintiff failed to prove any element of malicious prosecution. 

The court quickly dismissed the plaintiff’s abuse of process claim because of plaintiff’s failure to allege any plausible facts of defendant’s intent to harm them.  The court next discussed plaintiff’s First Amendment retaliation claim; retaliation for political speech.  The court again dismissed this claim for two reasons.  First, the court found that purchase of a parcel of land is not protected speech under the First Amendment and also because plaintiff has failed to present a causal connection between the plaintiffs political support and alleged retaliation as defendant’s letter was sent prior to plaintiff’s contribution. 

The court dealt next with plaintiff’s claim of selective enforcement.  The court asserted that in a successful selective enforcement claim, the plaintiff must give specific persons who are similarly situated but treated differently.  Plaintiff, found the court, failed to present specific persons, instead making conclusory statements alleging selective enforcement.  Although the court found plaintiff has standing to bring a 1983 challenge to a tax assessment in the district court, the court held that they again failed to prove this claim.  Finally, the court found that the prosecutor had prosecutorial immunity and was acting in his official capacity in prosecuting the plaintiff’s zoning violations.  Thus, the prosecutor was immune from civil liability.  In concluding, the court said punitive damages were unavailable for 1983 actions against municipalities and refused to award them. 

Parkash v. Town of Southeast, 2011 WL 5142669 (S.D.N.Y. 9/30/2011) 

The opinion can be accessed at: http://web2.westlaw.com/find/default.wl?rs=WLW11.10&rp=%2ffind%2fdefault.wl&vr=2.0&fn=_top&mt=208&cite=2011+wl+5142669&sv=Split

Patricia Salkin | January 24, 2012 at 1:46 am | Categories: Current Caselaw - New York, Enforcement | URL: http://wp.me/p64kE-1za


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Fla App: Inverse Condemnation Triggers "Sword-Wielder" Venue Exception

Posted: 24 Jan 2012 12:01 AM PST

Here's a short one for you civil procedure mavens: in Pinellas County v. Baldwin, No. 2d11-2274 (Jan. 20, 2012), the District Court of Appeal (Second District) concluded that a property owner could bring an inverse condemnation action against the County of Pinellas in a court in the County of HIllsborough.

Under Florida procedure, when suing the government, the action must, generally speaking, be brought in the government's home court. Thus, when suing a county, the proper venue for the lawsuit is in the trial courts of that county. But there are exceptions to that rule.

Here, Pinellas County owned a borrow pit physically located in Hillsborough County. Baldwin alleged that her land was permanently flooded and thus taken when the borrow pit overflowed as a result of construction. She instituted her inverse condemnation lawsuit against Pinellas County in the courts of Hillsborough County, and Pinellas moved to dismiss by asserting its "home venue privilege." The trial court denied the motion and the County appealed.

The Court of Appeal concluded that an exception to the home venue rule with the ominous label "sword-wielder" applied, because the official act complained of was performed outside of the county's home turf, and:

whether the state is the initial sword-wielder in the matter, and whether the plaintiff's action is in the nature of a shield against the state's thrust. If so, then the suit may be maintained in the county wherein the blow has been or is imminently about to be laid on.

Slip op. at 5 (quoting Dep't of Revenue v. First Federal Savings & Loan Ass'n of Fort Meyers, 256 So.2d 524, 526 (Fla. Dist. Ct. App. 1971)). Here, the County maintained its borrow pit in another jurisdiction and "[t]he unusual nature of Ms. Baldwin's claim for inverse condemnation is its extraterritorial aspect." Slip op. at 6. The court rejected the County's argument that it was not exercising government powers outside of its home venue, because it didn't matter in the end: the fact that the County was alleged to have taken the property without compensation was the act alleged to have triggered liability, and this qualified as the County's initial "thrust." The court thus suggested that the inverse condemnation claim was merely a shield.

We're not sure about the intricacies of Florida procedure, but this seems like this case could have been resolved in much the same manner on the basis that the County could hardly be heard to complain about venue when the res alleged to have been taken is in another county and the action that was alleged to have caused the taking was the County's borrow pit. But whatever the rationale, the result seems about right to us.

This posting includes an audio/video/photo media file: Download Now

9th Cir: No Vested Rights Taken By Oregon's Measure 49

Posted: 23 Jan 2012 03:56 PM PST

We've been watching Bowers v. Whitman, No. 10-24966 (Jan. 12, 2012), the case which challenged Oregon's Measure 49, the statute adopted by initiative that replaced and modified the earlier Measure 37. Measure 37, for those not aware, was the initiative measure by which Oregon voters required the state to compensate owners whose private property was devalued by land use regulations. It essentially required the state to either allow development or pay, even if the regulation did not run afoul of the high thresholds of regulatory takings doctrine.  

Back to Measure 49. That statute, as the Oregon Supreme Court held, "conveys a clear intent to extinguish and replace the benefits and procedures that Measure 37 granted to landowners." Corey v. Dep't of Land Conservation & Dev., 184 P.3d 1109, 1113 (Or. 2008). But what of those landowners in process under Measure 37 when the voters adopted the new law? Measure 49 "exempted a property owner from pursuing compensation pursuant to the new provisions in Measure 49 if the property owner had "a common law vested right . . . to complete and continue the use described in the waiver.' . . . Measure 49 does not mandate any particular process for establishing vested rights. Claimants seeking a vested rights determination generally either applied for a local decision or sued for a declaratory judgment." Bowers, slip op. at 245.

Property owners who had started the Measure 37 process but had not recovered compensation and were thus halted in their tracks, sued in federal court asserting a taking of their right under Measure 37 to compensation and other vested rights:

First, Bowers Plaintiffs alleged that there had been a "taking" of protected property in violation of the Fifth Amendment due process clause. Bowers Plaintiffs asserted that those property interests were "statutory rights to monetary compensation," "vested and accrued claim[s] for compensation," "legal entitlements . . . in lieu" of monetary compensation, or "Measure 37 waivers and the entitlement to monetary compensation." Second, Bowers Plaintiffs alleged that Measure 49 violates equal protection guarantees under the Fourteenth Amendment. Third, Bowers Plaintiffs alleged that Measure 49 violates substantive due process under the 14th Amendment.

Slip op. at 247. The Ninth Circuit rejected each of these arguments, and the bulk of the opinion is devoted to analysis of whether the plaintiffs possess rights that have "vested" and are thus protected "property" under the Takings Clause. Id. at 249 ("Thus, the critical issue is whether Plaintiffs’ Measure 37 property interests have vested such that Oregon could not remove or modifythe right without committing a constitutional taking.").

The court professed confusion as to what interest they asserted was the property right that had vested, id. at 250 ("we emphasize that Plaintiffs failed to articulate any clear characterization of the exact property interest to which they are entitled"), and rejected three possibilities: (1) "accrued causes of action" under Measure 37 were not vested property rights because they had not been reduced to final judgment, id. at 251; (2) the right to statutory compensation under Measure 37 was not vested because it was not an "express and unequivocal promise" to pay compensation, id. at 252-53; and (3) Measure 37 did not give the plaintiffs any rights to a particular land use. Id. at 253-54,

On the final claim the court analogized the Measure 37 rights to land use permits, and concluded those claims were not ripe under Williamson County.

More here from lawprof Jonathan Zasloff at Legal Planet blog. Thanks to colleague Dwight Merriam for the heads up on this decision.

Bowers v Whitman, No. 10-35966 (Jan. 12, 2012)  

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January 23, 2012

Sara W. Stephens, MAI, President, Suffering From Agnosia

Sara W. Stephens, MAI, President
of Appraisal Institute Sara W. Stephens, MAI, President, Suffering From Agnosia



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Classification and external resources

Agnosia (a-gnosis, or loss of knowledge) is a loss of ability to recognize objects, persons, sounds, shapes, or smells while the specific sense is not defective nor is there any significant memory loss.[1] It is usually associated with brain injury or neurological illness, particularly after damage to the occipitotemporal border, which is part of the ventral stream.[2]

Inability to tell the difference between a Market Transaction and a Non-Arms Length Transaction.

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