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Land Use Seminar This Week

There's still time to sign up for the "Practical Guide to Zoning and Land Use Law" seminar, to be held Thursday, April 3, 2008, in Honolulu.  I will be leading sessions on Current Case Law and Legislative Update, and Appealing an Administrative Zoning Decision.  A detailed agenda and registration information are posted here. 

The First Amendment, the Ninth Circuit, and the Ten Commandments

While not exactly on the usual topics of this blog, the Ninth Circuit's opinion in Card v. City of Everett, No. 05-35996 (Mar. 26, 2008) is worth a read.  It involves the question of whether the placement of a reproduction of the Ten Commandments (the tablets, not the movie) on the grounds of Old City Hall in Everett, Washington violates the state and federal establishment clauses.  As usual in these type of cases, the facts are fascinating, as is the debate over the controlling law. 

In the end, the Ninth Circuit held that the city's display does not run afoul of either the Washington or the U.S. Constitutions.  Perhaps the best line of the opinion is in the concurring opinion of Judge Fernandez:

I applaud Judge Wardlaw’s scholarly and heroic attempt to create a new world of useful principle out of the Supreme Court’s dark materials.

Slip op. at 3039 (Fernandez, J., concurring) (citing Milton, Paradise Lost).  Read the complete opinion here.

Well, What Do You Know: Condemnees Have Due Process Rights!

In a series of decisions that in any context but eminent domain would be unsurprising, the New Jersey Superior Court, Appellate Division, held that a property owner whose land is targeted for involuntary acquisition is entitled to be told about it first.

In Harrison Redevelopment Agency v. DeRose, Nos. A-0958-06T2, A-0382-07T2 (Feb. 25, 2008), the court held that a property owner was entitled to challenge the designation of his property as part of a redevelopment district despite the fact that the statute of limitations for challenging the designation had long since passed.

Many state redevelopment statutes and eminent domain codes provide that if a property owner has objections to the designation of her property as part of a redevelopment district, or has objections to public use, she has only a short time to act.  New Jersey law, for example, limits objections to 45 days; New York statutes to 30 days.  The issue, as stated by the DeRose court:

The central and recurring question before us is whether a property owner who fails to challenge a redevelopment designation containing his or her property within forty-five days of its adoption by a municipal governing body, pursuant to the Local Redevelopment and Housing Law ("LRHL"), N.J.S.A. 40A:12A-1 to -49, may still challenge, in full or in part, the public purpose of the taking of his or her property, by way of a defense in an ensuing condemnation action. To date both this court and the trial courts have rendered conflicting answers to that fundamental question in unpublished decisions.

The importance of such matters of timeliness is heightened by the fact that the LRHL does not, as it is presently worded, require a municipal governing body to provide individual advance notice to an owner that it is considering designating his or her property for redevelopment, and thus may take that property in the future through the power of eminent domain. Nor are property owners entitled under the LRHL to individual notice after a governing body approves such a designation, unless the owner had previously filed a written objection while the proposed redevelopment was being preliminarily evaluated by the local planning board.

Slip op. at 3-4.   The court held that the government has an obligation to provide property owners with "contemporaneous written notice" that "fairly alerts" the owners that their property has been designated for redevelopment, that such a designation is a finding of "public use" and allows the government to take their property by eminent domain, and that the owners have a short time in which they may object.  Slip op. at 4.  If such notice is not provided, the property owner may contest the designation when his land is condemned.  If, however, the government properly notifies the property owners, the owners must bring an action within the 45-day limitations period, and cannot wait to raise objections in their defense to a later-filed condemnation.

The notion that people whose property is targeted for acquisition deserve actual notice of that fact, and notice of a truncated objection period should not be controversial, yet it often is.  In DeRose, the redevelopment agency claimed that requiring it to actually tell property owners that their land is subject to redevelopment "would signal the 'death knell' for redevelopment in Harrison and other municipalities."  Slip op. at 39.  Telling landowners that we want your property would bring redevelopment efforts to a halt -- imagine that!   The agency never explained why this would be so, and why property owners aren't entitled to be informed of their rights (this brings to mind the other part of the Fifth Amendment -- the self-incrimination clause -- and the Miranda warnings required to be given to suspects). 

In several other recent cases, the courts rejected government's arguments that it was not required to undertake great efforts to provide an owner actual notice: 

• In Jones v. Flowers, 547 U.S. ___ (2006), the U.S. Supreme Court held that the government has an obligation to take further measures when it actually knows that its earlier attempts to notify the property owner have failed (the government's letter was marked "return to sender").

• In Brody v. Village of Port Chester, 434 F.3d 121, 132 (2d Cir. 2005), the court held that the government had an obligation to inform the landowner of the 30-day limitation period under New York law to challenge a redevelopment designation.
  

• In Divine v. Town of Nantucket, 449 Mass. 499, ___ N.E.2d ___ (July 19, 2007), the Supreme Judicial Court of Massachusetts invalidated a 40-year old taking because the owner was not provided actual notice many years ago.

The DeRose court also is worth reading because it expressly recognizes what many other eminent domain opinions fail to:

Although we have been called upon the resolve several rather abstract issues arising under our laws and constitution, we undertake that responsibility mindful that these cases, in a very tangible way, involve a real community, and the real people who live, work and own property there. 

Slip op. at 7.  Read the complete opinion here.

Thanks to New Jersey Eminent Domain Law Blog for posting links to the three opinions and summarizing their holdings here.  A report on the decision here by the New Jersey Star-Ledger.

Epstein on the Didden Case

In Forbes, law prof Richard Epstein writes "The Taking of Port Chester" about the Didden v. Village of Port Chester case.  The facts of Didden are particularly egregious -- in return for a private developer's promise to withhold an exercise of eminent domain, a landowner was offered a choice: give the developer $800,000, or a one-half interest in the owner's planned use of the property.  The owner had plans to put in a CVS Pharmacy, but the developer convinced the Village that his plan to put in a Walgreen's was better, and the Village agreed to use eminent domain to stop Mr. Didden.  Professor Epstein writes:

It takes no financial wizardry to see that the expenses on both sides of this high-priced battle are a social waste if all they do is replace a CVS pharmacy with a Walgreens. The Port Chester saga reveals the institutional flaw of modern takings law. Undue judicial deference creates large amounts of government discretion that in turn invites self-interested actors to game the system.

Complete article here.

New Article: Property Rights in the Ninth Circuit, And Beyond

The Federalist Society has posted a new edition of Engage - The Journal of Federalist Society Practice Groups, a newsletter-format publication with short scholarly articles on topics such as Administrative Law, Environmental Law and Property Rights, and Civil Rights, among others. 

The most interesting article in this edition is Property Rights in the Ninth Circuit, and Beyond by J. David Breemer, Damien Schiff, and Elizabeth Yi, which analyzes the Crown Point case, where the Ninth Circuit finally ditched the Armendariz doctrine.  Armendariz stood for the proposition that a property owner's claim for violations of substantive due process rights were "subsumed" within the owner's claim for violation of the Takings Clause.  Thus, in land-related issues, a property owner could only bring takings claims.  Crown Point signals a revival of substantive due process as a viable claim in land use cases in the Ninth Circuit.  Download the article here.

Order in Florida Short Term Rental Case

Here's the written order (1.8mb pdf) in Milo v. City of Venice, Case No. 2008 CA 552 SC (Mar. 17, 2008), the Florida case invalidating a municipality's restrictions on short term rentals that I posted earlier.  The case arose after the city's planning director determined that the local zoning ordinance restricted short term rentals in "residential" districts. 

The ruling is, of course, specific to Florida law, but there are two points worth noting:

• The court held that short term rental is not a "business" use.  "Indeed many rental properties, regardless of the duration of the rental term, are for profit ventures and could therefore be characterized as 'businesses.'"  Slip op. at 6.  The local code also permits temporary residences without limitation.

• Despite the rule that courts generally should defer to an agency's interpretation of regulations it administers, the court noted the rule that "[z]oning regulations are in derogation of private ownership rights and should be construed broadly in favor of property owners absent a clear intent to the contrary."  Slip op. at 5.  The court held that the municipality's failure to clearly define the term of tenancies in its code was fatal. 

Florida Court Invalidates Short Term Rental Restrictions

According to this report, a Florida state court has invalidated a municipality's attempt to regulate short-term rentals:

Milo [the property owner] bought more than a dozen homes on or near the island beginning in 2005 and started renting them out on a daily and weekly basis, something the city thought was addressed in -- and forbidden by -- its zoning ordinance.

[The court] didn't see it that way. In his seven-page decision, he said the city zoning code lacked key definitions and relied too heavily on state statutes -- statutes that weren't adequately referenced in its zoning code -- when making its case against Milo.

City officials thought they had a solid case, based on current code language and state rules that Planning and Zoning Director Tom Slaughter said in 2006 stipulate "the duration and frequency of rental of a single-family dwelling unit within the RSF (residential, single family) is restricted to not more than three rentals in a calendar year for periods of less than 30 days or one calendar month, whichever is less."

Download the complaint here.  Milo v. City of Venice, Case No. 2008 CA 552 SC (filed Jan. 11, 2008). 

Epstein Blogs His New Takings Book

In a post at PrawfsBlawg, "Takings, a Second Time," University of Chicago Law Professor Richard Epstein discusses his new book Supreme Neglect: How to Revive the Constitutional Protection for Private Property, a follow-up to Takings: Private Property and the Power of Eminent Domain (1985):

There is a sneaky character of great constitutional provisions. The shorter they are, and the more common their language, the more difficult the task of their interpretation. Private property, for example, is not just a two-word phrase, but it represents an entire world view, which necessarily needs to be distilled from sources external to the text. Takings, public use and just compensation are also terms that come easily off the tongue, but are hard to explicate in any coherent fashion. In the next few blog posts I shall work through some of the key arguments on these issues. But for the moment, I will just note that I am quite proud that my own views leave me outside the mainstream of both the political left and right.

Read the full post and comments here.  Related video from the Cato Institute here.

Missouri Supreme Court: Both Large and Small Cities May Use Eminent Domain for Redevelopment

Disappointing news out of the Missouri Supreme Court.  In City of Arnold v. Tourkakis, No. SC88647 (Mar. 18, 2008), the court held that both chartered and non-chartered Missouri cities have the power to use eminent domain to take property for "redevelopment."  The issue in the case was whether Article VI, section 21 of the Missouri Constitution allowed only larger "chartered" cities to use the power.  Background on the case here, and a summary of the issues by the Castle Coalition here.

The court's 6-1 decision is posted here.

Land Use Seminar - April 3, 2008

On April 3, 2008, I will be on the faculty of "Practical Guide to Zoning and Land Use Law" in Honolulu.  I'll be presenting two subjects, "Current Caselaw and Legislative Update," and "Appealing an Administrative Zoning Decision.  Also on the faculty are Jesse Souki and A. Bernard Bays.  The complete agenda and registration information are available here.