inversecondemnation.com

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. 

6th Circuit: We Have No Jurisdiction, But We Rule Against The Property Owner Anyway

If you picked up and read a copy of Braun v. Ann Arbor Charter Township, No. 07-1370 (Mar. 13, 2008), an opinion by the US Court of Appeals for the Sixth Circuit, without having read the briefs of the parties and the decision of the court below, you might not see anything terribly unusual. 

The case arose after property owners asked the Township to rezone their parcels from Agricultural to Residential, and the Township refused.  The property owners did not seek a variance because the Township informed them that none was available.  The property owners then dutifully went to state court to seek compensation, arguing that the only economically beneficial use of the property was residential.  The state courts did not reach the constitutional claims, and dismissed the case on procedural grounds because the property owners had not sought a variance.  See Braun v. Ann Arbor Township, 683 N.W.2d 755 (Mich. Ct. App. 2004).  The Township's Zoning Board of Appeals denied the variance because it lacked jurisdiction .

Probably believing it was futile to thrash about in this state court procedural shell game (hadn't the Michigan Court of Appeals just held the ZBA did have jurisdiction?), the property owners filed suit in federal district court, asserting the denial of their zoning change request deprived them of substantive and procedural due process, denied them equal protection, was a regulatory taking and a violation of a federal civil rights statute (42 USC § 1983). 

They fared no better in federal court, however, which dismissed all of their claims on Williamson County ripeness grounds because they had not sought and been denied just compensation by the state courts (more on the Williamson County rule here). 

But wait, you say, the regulatory takings claim was only one of the property owners' claims; what about the due process and equal protection claims -- those are not subject to Williamson County because denial of just compensation is not an element of a due process and equal protection claim.  You'd be right, but apparently the District Court was following the now-discredited and overruled Armendariz doctrine from the Ninth Circuit which treats all property owner claims as takings claims, even when they plainly are not. 

The court of appeals affirmed, holding that the regulatory takings claim was not ripe under the Williamson County rule, and that the due process, equal protection, and 1983 claims were "ancillary" to the takings claim, and thus were also not ripe.  See Braun, slip op. at 3.  The court of appeals held:

Because the plaintiffs did not fulfill their obligation of seeing just compensation in state court, we do not have jurisdiction to reach the merits of their takings claim.

Slip op. at 5 (emphasis added). 

If the Sixth Circuit's opinion stopped there, it would be "nothing to see here, folks, just move along" time -- yet another case to add to the growing list of certworthy decisions highlighting the weird regulatory takings ripeness rules property owners find themselves up against when they have the audacity to believe they can assert federal constitutional claims in federal court.  However, having just held it did "not have jurisdiction" to reach the merits of the property owners' claims, the Sixth Circuit spent the next four pages doing just that, on issues not analyzed by the District Court's opinion (the District Court dismissed the case without prejudice), and not raised, briefed, or argued by either party to the appeal.  The Sixth Circuit apparently believed it possesses the power to raise and decide these issues on its own initiative, without the benefit of input by the parties.  See slip op. at 6-9. 

But the Federal courts are limited by Article III of the Constitution to hear only "cases" and "controversies," meaning that they have no power to decide cases over which they lack jurisdiction, especially when a court expressly acknowledges it does "not have jurisdiction" over a case, as the Sixth Circuit did here.      

9th Cir: Senior Citizens Are Not Automatically Considered "Disabled"

With a name like Carefree, Arizona, who wouldn't want to spend the golden years there?  That appears to have been what was on the mind of one F.G. Budnick, a developer, when he decided he wanted to build the "Residences at Carefree," which he described as a "luxurious, age restricted, senior retirement residential community," in the small town north of Phoenix. 

But alas, it was not to be: the Town of Carefree didn't want him, or at least didn't want his proposed development, so the Planning and Zoning Commission denied the application for a Special Use Permit, which would have allowed the Residences to operate in a residential zone.

Budnick, however, would not be denied.  The future senior residents of the Residences would be "healthy, active, independent seniors who will be impossible to tell apart from" other Carefree residents, he asserted, and an appeal was lodged with the Town Council.  But like the Planning Commission, the Council denied the SUP.

Budnick then changed course: the Residence would serve disabled people, and the Town of Carefree was violating federal law by discriminating against the disabled if it denied his permit.  The parties met, but could not find a middle ground.

Budnick filed suit in federal court, alleging the denial of the SUP was a violation of the Fair Housing Amendments Act of 1988, 42 U.S.C. § 3604, the Americans With Disabilities Act, due process and equal protection, and our old friend 42 U.S.C. § 1983 (violation of federal rights under color of state law).  The district court granted Carefree summary judgments on all of Budnick's claims.

In Budnick v. Town of Carefree, No. 06-15841 (Mar. 11, 2008), the Ninth Circuit affirmed.  The court held that Budnick could not establish a prima facie case of discrimination against the disabled for two reasons.

First, the court held that he did not raise triable issues of fact whether the Residence would house "disabled" people.  As the court put it, "Budnick suggests that the [Residence] would naturally house disabled individuals because the senior citizen residents of the [Residence] would have entered into life care contracts and would inevitably experience disabilities as they age."  Slip op. at 2314.  The court rejected the argument, holding:

We hold that potential [Residence] residents do not presently qualify as disabled under the FHAA simply because some of them will become disabled as they age.  To hold that they can currently be considered disabled under the FHAA would mean, in effect, that every senior citizen (indeed, every person) desiring to rent or buy housing could assert a present claim of discrimination based on inevitable disability due solely to the passage of time.  Such a holding would also disregard the reality that even if many individuals become disabled as they age, many do not, and that being old is not, per se, equivalent to being disabled.

Slip op. at 2314 (emphasis original).  In other words, the FHAA does not cover people who may become disabled, but only those who presently are.

Second, the court held that Carefree had valid, nondiscriminatory reasons for denying the SUP, and that a few statements by witnesses at the public hearings that the Residence would turn Carefree into a place where "people came to die," could not be attributed to the Town, and there was no evidence to show that the SUP was denied due to such beliefs.  Slip op. at 2319.

Download the opinion here.

Appellate practice notes:  The panel was comprised of Circuit Judges William C. Canby (born 1931), David R. Thompson (born 1930), and Milan D. Smith (born 1942).  It was an interesting oral argument, trying to convince three Ninth Circuit judges, all of whom presumably would be eligible to reside in the Residence at Carefree were it ever to open, that being elderly makes you "disabled."  The first question asked at orals:

Before we get to that, there's an underlying issue here that's really quite interesting to me.  It seems to me you are saying that -- at least the literature that was given to the city -- says these are going to be able-bodied people, at least 95 percent.  But we're making the claim for disability, and the reason people are disabled is that because they're human beings, and when you get old, you get disabled.  Is that the argument?

Judge Smith, the youngest member of the panel, authored the opinion.  The oral argument recording is posted here (6mb wav).

9th Cir: Due Process "Hassle"

How often do you see a published opinion from a federal court of appeals that uses the word "hassle" to describe needless litigation?  Well, thanks to the irrepressible Chief Judge Kozinski, we now have citeworthy precedent from Clement v. City of Glendale, No. 05-56692 (Mar. 11, 2008):

Officer Young could have avoided years of litigation and needless hassle for himself, the Glendale Police Department, the towing company, the courts, Ms. Clement and her daughter, by simply erring on the side of caution and good public service by letting her know that her vehicle was illegally parked. Instead, the rush to tow led to this protracted litigation that, no doubt, has consumed far more city resources than it would have taken to properly notify Clement.

Slip op. at 2357-58. The case involved how much notice and process was due to the owner of a car before the police towed it away.  The opinion isn't a groundbreaking decision on due process, but it is still a fun read.  Some of the better bits include the opening paragraph, which sums the issue up succinctly:

Virginia Clement lived in a residential hotel and parked her 1981 Cadillac Eldorado Biarritz in the hotel’s parking lot.  The car had not been driven in seven years and Clement did not keep the car’s registration current. But she did dutifully complete an alternate form of vehicle registration, she had the hotel’s permission to park there and the car was in its proper space. Without so much as a letter, a knock on the door, a note on her windshield or even a parking ticket, the Glendale police towed and impounded Clement’s car. They left no clue to where it had gone. Only  later did Clement discover that it had been towed for allegedly violating California vehicle registration laws.

Slip op. at 2351.  My favorite: "After discovering what happened to her car, Clement did the American thing: She sued."  Id. at 2352.  The car owner lost, by the way -- both the police officer and the towing company successfully asserted immunity from civil lawsuits, even though Ms. Clement's due process rights were violated.

Inverse Condemnation and the Border Patrol

Here's another case involving property rights along the U.S. - Mexico border, but the issue is somewhat different than last week's US v. 1.04 Acres case.  The issue this time is not the border fence, and it's not about an affirmative exercise of eminent domain.  Instead, this case involves allegations of entry onto private property by agents of the U.S. Border Patrol in pursuit of illegal immigrants. 

In International Industrial Park, Inc. v. United States, No. 06-876L (Feb. 22, 2008), a San Diego, California-area property owner sued the federal government in the Court of Federal Claims for just compensation, complaining of the Border Patrol's violation of its property rights:

As a result of these initiatives since September 11, 2001, IIP states that Border Patrol agents occupy Parcel 11 on an around-the-clock basis. Mr. Wick states in his declaration that Border Patrol vehicles speed across roads on IIP’s property, and that vans or buses are brought in to haul away the illegal aliens. He further states that Border Patrol agents fan out over Parcel 11 on all-terrain vehicles, on horseback, or on foot in an effort to apprehend illegal immigrants. Mr. Wick complains that Border Patrol agents even stop and question him, as well as contractors or employees, as they go about their business on the property. He says that he often is stopped while showing the property to potential buyers or lessees. IIP alleges that the Border Patrol has cut open locked gates, and has graded its own roads on the property. IIP asserts that the Border Patrol has damaged Parcel 11’s environmentally sensitive areas, and interfered with construction projects. Mr. Wick states that the Border Patrol has declined offers  to lease portions of the property for its law enforcement activities, or to discuss the granting of further easements.

Slip op. at 5.  The CFC held that the six-year statute of limitations did not require dismissal of the lawsuit (see, e.g., the John R. Sand & Gravel case), rejecting the government's argument that its activities on the land was no worse in the past six years than it was before.

The court also held that the landowner's complaint properly stated a claim for relief, dismissing the government's claim that because a previous owner of the land had granted the Border Patrol a limited right of entry, that did not mean that the owner had surrendered the right to exclude.  Slip op. at 9.  The court also rejected the government's argument that it was immune from having to pay compensation because the Patrol's activities were exercises of police power.  The court was right on, because a claim for just compensation in the CFC is predicated on the landowner's recognition that the activities complained about are otherwise legitimate -- the CFC may only award compensation, and lacks jurisdiction to strike down regulations, or enjoin government activity.  Only district courts have that power.

Read the entire opinion here.

Eminent Domain and the Border Fence

What does a fence along the U.S. - Mexico border to deter illegal crossings have to do with eminent domain law?  Well, when the government is condemning property for the fence, a lot.

When it decided to put up a fence along the US-Mexico border, Congress gave the Attorney General the power to use eminent domain:

When the Attorney General and the lawful owner of an interest identified pursuant to paragraph (1) are unable to agree upon a reasonable price, the Attorney General may commence condemnation proceedings pursuant to section 3113 of title 40. [the General Condemnation Act of 1888]

See 8 U.S.C. § 1103(b)(3). 

I. What Procedures to Follow?

Congress, however, did not specify what procedures must be followed in the condemnation action.  Must the federal government follow the straight-take procedures of Rule 71A of the Federal Rules of Civil Procedure, which require a final judgment before the government takes possession of property, or could it rely upon the expedited procedures of the Declaration of Taking Act, which permits the government to take possession of property before final judgment?   

That was the first issue in United States v. 1.04 Acres of Land, No. B-08-044 (S.D.Tex., Mar. 7, 2008), the first case, as far as I can tell, to address the issue.   

The first section of the General Condemnation Act of 1888 is now codifided at 40 U.S.C. §  3113, and but does not specify any procedures to be used:

An officer of the Federal Government authorized to acquire real estate for the erection of a public building or for other public uses may acquire the real estate for the Government by condemnation, under judicial process, when the officer believes that it is necessary or advantageous to the Government to do so. The Attorney General, on application of the officer, shall have condemnation proceedings begun within 30 days from receipt of the application at the Department of Justice.

Prior to 1951, the second section of the 1888 Act specified that state law eminent domain procedures were to be used in federal court condemnation actions.  However, with the adoption of Rule 71A of the Federal Rules of Civil Procedure, the federal courts now follow a uniform federal "straight-take" procedure which requires a final judgment before the government may take possession. 

In 1.04 Acres, the property owner objected to the government's use of the the expedited procedures of the Declaration of Taking Act to take her land for a portion of the border fence, since, she argued, 8 U.S.C. § 1103(b)(2) requires the government to use the procedures specified in the 1888 Act, which means only the straight-take process. 

The court rejected the argument, and held the government could use the expedited DTA procedures in an action instituted under the General Condemnation Act, since the 1888 Act does not specify what procedures must be followed.  The court held that the DTA was "supplemental" and "ancillary" to the government's power to take, and that the 1888 Act did not require that any set of procedures be followed, noting that prior to Rule 71's adoption, federal courts followed state law procedures:

Given the supplemental nature of the DTA, this Court finds that the provisions of the DTA are available whenever an officer of the United States is authorized to bring a condemnation action in federal court pursuant to the GCA [General Condemnation Act of 1888], 40 U.S.C. § 3113. The right to use the provisions of the DTA is inherent and incidental in all condemnation actions brought under the GCA; thus, this Court finds that Congress does not need to expressly authorize the use of the provisions of the DTA when it otherwise gives the United States authority to proceed under the GCA. See Polson Logging Co. v. United States, 149 F.2d 877, 878 (9th Cir. 1945) (holding that the right of the United States to use the expedited procedures of the DTA is “a right of the United States in all proceedings for condemnation”).

Slip op. at 18.

The bottom line: Congress authorized the taking of property for the border fence, but didn't specify the procedures to be followed.  Therefore, land may be taken by Rule 71A's straight-take procedures or the expedited "take it now" procedures of the DTA.  Government's choice.

II.  Negotiations or "Contact?"

The second issue was whether the government had conformed to the requirement in 8 U.S.C. § 1103(b)(3) to negotiate: "[w]hen the Attorney General and the lawful owner of an interest identified pursuant to paragraph (1) are unable to agree upon a reasonable price. . . " 

The government argued that the above language did not require it to negotiate first with the property owner, but the court rejected that claim, holding that the statute "clearly contemplates that some attempt has been made to reach an agreement prior to the Attorney General exercising the authority to pursue eminent domain remedies. . . This Court finds that Congress clearly intended there to be some level of negotiation between the Government and the owner of a property interest prior to the institution of eminent domain procedures pursuant to 8 U.S.C. § 1103(b)(3)."  Slip op. at 22.  The court held there must have been some "bona fide" attempts by the government before bringing suit.

The government next asserted that its "contacts" with the property owner qualified as bona fide "negotiations."  However, the only evidence that had been submitted to the court was the landowner's written declaration that the government had not negotiated with her, but that she had "conversations and contacts with agents of the Department of Homeland Security over approximately the last six months."  Slip op. at 26.  [Editorial note -- any bets on the tone of those "conversations and contacts"?  My guess was that they were along the lines of the "the federal government does not negotiate" position like in Wilkie v. Robbins.] 

The court rejected the government's claim that mere contacts and conversations qualified as bona fide negotiations, since the government had not submitted any positive evidence that it had complied with the statute's requirement.  The court gave the government two weeks to provide such evidence, or actually negotiate with the landowner.

So the case isn't over, just yet.  The complete opinion of the court is posted here.

My thanks to my Damon Key colleague, immigration attorney David McCauley for pointing out this decision.

Associated Press: "Hawaii: Tourists Make Lousy Neighbors"

In a story titled "Hawaii: Tourists Make Lousy Neighbors," the Associated Press summarizes the "transient vacation rental" issue that's been making waves on Oahu, Maui, and Kauai.  Only one county, the Big Island of Hawaii, does not actively regulate vacation rentals.  Not a very encouraging headline for an economy dependent upon tourism and welcoming visitors.

On a related note, Charley Foster at Planet Kauai expands on the inversecondemnation.com link to a story about the recent legal challenge to Sedona, Arizona's ban on short term rentals.  Charley adds a collection of links to case studies of how vacation rentals have been treated in other jurisdictions.  Check it out here.

NIMBYs, BANANAs, CAVEs and DUDEs

Jesse Souki's post on his Hawaii Land Use Law blog, "NIMBY Group Stymies 700 Home Affordable Housing Project on Maui," about a state-court challenge to a housing project, brings up a topic that is fun to revisit every now and then: the cheeky acronyms that get tossed about in the land use business.

To start off, there's the Mother of All Land Use Labels, NIMBY, which is commonly used to describe opponents of LULUs (Locally Undesirable Land Uses).  But a host of others are used, including a few that express the same -- or more extreme -- thought as NIMBY:

• NOTE - Not Over There Either
• NIABY - Not In Anyone's Back Yard
• BANANA - Build Absolutely Nothing Anything Near Anyone [or Anywhere]
• CAVE - Citizens Against Virtually Everything
• DBTD - Death By a Thousand Days (do you really think the sole purpose of an EIS is to gather information?)

Just so you don't think that labels are used only to describe opponents of development:

• DUDE - Developer Under the Delusion of Entitlement
• BANY - Builder Against NimbYs

For our friends in the political business:

• NIMTOO - Not In My Term Of Office
• NIMEY - Not In My Election Year

There's more, of course. I remember a few years ago reading a web article by a planner that listed the above and more.  Unfortunately, I cannot now find it.  If your Google skills are better than mine, please post up a link in the comments.

Update: my thanks to a reader who referred me to the article I mentioned above: "From NIMBYs To DUDEs: The Wacky World Of Plannerese," by Ric Stephens, posted here.  Well worth a read, as are the comments.

Legal Challenge to Sedona, Arizona Short-Term Rental Ban

As reported here, a lawsuit was filed in Arizona state courts seeking to invalidate Sedona, Arizona's prohibition on short-term rentals (less than 30 days):

Approximately 450 short-term rental properties in Sedona have been impacted by the new Ordinance making it illegal to advertise short-term rentals, and the Code prohibiting short-term rentals.

This ordinance was enacted by the city council Jan. 22 to put teeth into the Code, on the books since 1995, which made it illegal to rent properties for less than 30-days

The tail end of the article lists the claims asserted by the plaintiffs, which include vested rights, selective enforcement, and other constitutional and statutory claims.

Cert Petition to Overrule Williamson County Denied

The US Supreme Court has denied a petition to review a Seventh Circuit opinion which dismissed a property owner's regulatory takings challenge on ripeness grounds under Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985).  The questions presented by the petition called for overruling Williamson County. 

The case is Peters v. Village of Clifton, No. 07-635.  The Supreme Court order is here.  A summary of the Williamson County rule, the petition, and amicus briefs can be found in this post.

This issue isn't going away.  Four Justices in San Remo Hotel, L.P. v. City & County of San Francisco, 545 U.S. 323 (2005) stated that the ripeness rule needed to be revisited and overruled.