inversecondemnation.com

Cert Denied Update

Last week's cert grant by the Supreme Court in Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted, June 15, 2009) got us to thinking about other petitions in takings and land use cases which we've discussed, so here's an update on the cases denied review:

• Empress Casino Joliet Corp. v. Giannoulias, No. 08-945 (cert. petition filed Jan. 21, 2009) - the Illinois Supreme Court held (896 N.E.2d 277 (Ill. 2008) that a regulation which imposes a 3% "surcharge" on Illinois casinos with gross receipts over $200 million per year, and then gives the money to horse racing tracks is not a taking of property. Several casinos challenged the law asserting, among other arguments, that the redistribution of their money to tracks was a taking.  The Illinois Supreme Court held that the regulation was a tax, and not subject to takings analysis. Cert denied June 8, 2009.

• Fairbanks North Star Borough v. U.S. Army Corps of Engineers, 543 F.3d 586 (9th Cir. 2008)- the Ninth Circuit held that since the Corps' jurisdictional determination is not a final agency action, the property owner cannot immediately challenge it under the Administrative Procedures Act. Cert denied June 22, 2009.

• Joy Builders, Inc. v. Town of Clarkstown, 11 N.Y.3d 863 (2008) - the New York Supreme Court Appellate Division upheld the imposition of a fee in lieu of a dedication of land. Cert denied April 20, 2009.

• Navajo Nation v. United States Forest Service, 535 F.3d 1058 (9th Cir. 2008) - the Ninth Circuit determined it was not a "substantial burden" on the religious exercises of Native American tribes under the Religious Freedom Restoration Act for the Forest Service to allow a ski resort to make artificial snow from recycled sewage water on a mountain considered by the tribes to be sacred. Cert denied June 8, 2009.

• McClung v. City of Sumner, 548 F.3d 1219 (9th Cir. 2008) (cert petition filed Mar. 2, 2009) - the Ninth Circuit held that legislatively imposed exactions should be analyzed under the Penn Central ad hoc standards and not under Nollan/Dolan. Cert denied June 8, 2009.

• AmeriSource Corp. v. United States, No. 08-497 (cert. petition filed Oct. 15, 2008) - the Federal Circuit held that the seizure as evidence was not a taking for public use because the seizure was an exercise of the government's "police power," and not an exercise of eminent domain. Cert denied March 23, 2009.

Minn Court Of Appeals: No Taking Of Church Property For Sidewalk Without Consent

In City of Jordan v. Church of St. John the Baptist of Jordan, No. CV-07-24976 (Apr. 14, 2009), the Minnesota Court of Appeals held that a state law requiring the consent of a church's governing board before its land can be taken for road or street purposes requires consent before a city can take property for sidewalks and traffic signals.

Minn. Stat. § 315.42 (2008) provides in relevant part:

No roads or streets shall be laid through the property without the consent of the corporation's governing board.

The city intended to place a new sidewalk and traffic signal lights on the church's property and could not negotiate a purchase. The issue was whether the sidewalk and signal constituted "roads and streets" under the statute.  The appellate court noted that the statute had never been interpreted since its enactment in 1881, but that the Minnesota Supreme Court in a case decided roughly contemporaneously with the statute, held that "sidewalk" was ordinarily understood to be part of a "street." The Jordan court concluded:

And because a religious corporation's land cannot be taken for street purposes without consent of the corporation's governing board, the church's land cannot be taken for sidewalk purposes without its consent. 

. . .

For purposes of Minn. Stat. § 315.42 (2008), sidewalks are part of streets. Also, because a city is to place traffic-control devices on a highway or street, the prohibition in Minn. Stat. § 315.42 (2008) on using the land of religious corporations for road or street purposes without the consent of the corporation's governing board precludes the use of the church's land for sidewalk and signal light purposes without consent of the church's governing board.

Slip op. at 7, 10.

Hawaii's Good Friday Holiday: It's Like Thanksgiving And Christmas

If you are wondering why your calls to State and County offices go unanswered tomorrow, it is because it is Good Friday, a legal holiday in the State of Hawaii pursuant to Haw. Rev. Stat. § 8-1. 

The day of the crucifixion was originally made a holiday in 1941 by the Territorial Legislature. The statute was recodified upon statehood in 1959, and the holiday has been confirmed via Haw. Rev. Stat. § 89-1, the law that makes the establishment of public holidays -- among many other things -- a product of what the statute calls "joint decision-making" process between the government and the government employee unions, also known as collective bargaining.

The Establishment Clause, which has been incorporated against the states by the due process clause of the 14th Amendment, prohibits the government from establishing an official religion (the so-called separation church and state), and in 1987, several Hawaii taxpayers challenged the designation of Good Friday as a public holiday because it was plainly -- they claimed -- a religious, not secular observance.  The Hawaii federal court held otherwise in Cammack v. Waihee, 673 F. Supp. 1524 (D. Haw. 1987), concluding among other things that the Legislature made Good Friday a holiday to insure that public workers have more days off, not to make sure they were religious: 

[T]he Good Friday holiday was primarily proposed to increase the frequency of legal holidays. It is also noteworthy to point out, as does the State in this case, that the legislative report seems to acknowledge that Good Friday is not an entirely religious day. The 1939 report characterizes Good Friday as  in theory at least a day of solemn religious observances, apparently reflecting the legislature's sentiment that Good Friday had lost much of its religious nature and had become a holiday similar in nature to Thanksgiving or Christmas which have been secularized to some extent over the centuries.
Indeed, this court is also of the opinion that Good Friday has attained a secular character; for the majority of Americans Good Friday has become more an integral part of a traditional three day secular celebration of Spring which begins on Good Friday and continues through Easter Sunday than a solemn observance of Jesus Christ's crucifixion.

This court concludes that the secular purpose behind the establishment of the Good Friday is manifest. The legislature does not offend the First Amendment by enacting a statute intended to ensure that the people of Hawaii have an adequate number of leave days. This court further concludes that any ancillary sectarian purpose which the legislature may have had in establishing Good Friday as a holiday is not fatal to the Hawaii Rev. Stat. § 8-1, since  a clearly secular purpose  for the statute exists and since Good Friday, like Christmas, has become secularized to some extent over the centuries.

An examination of the effects of Hawaii Rev. Stat. § 8-1 leads this court to the conclusion that the legislature's intended purpose in declaring Good Friday to be a legal holiday has been fulfilled. While the plaintiffs argue that the effect of the Good Friday statute is to give Christian sects the imprimatur of State approval, an analysis of the effects of the statute compels this court to find that the secular effects of the statute significantly predominate over the sectarian effects of the statute.

The Ninth Circuit affirmed. See Cammack v. Waihee, 932 F.2d 765 (9th Cir. 1991).  The majority of the three-judge panel noted that many people in Hawaii use the Good Friday holiday to go shopping, and held "[i]t is of no constitutional moment that Hawaii selected a day of traditional Christian worship, rather than a neutral date, for its spring holiday once it identified the need."  The court concluded that the presence of a plausible secular purpose for enacting the law made the holiday's religious nature effectively irrelevant; to violate the Establishment Clause, the legislature must have intended the Good Friday holiday to only serve a religious purpose: 

We conclude that the Hawaii statute has a legitimate, sincere secular purpose, specifically to provide Hawaiians with another holiday, and thus is not motivated wholly by an impermissible purpose. There is nothing impermissible about considering for holiday status days on which many people choose to be absent from work for religious reasons. That the state legislature was able to accomplish its secular purpose and at the same time accommodate the widespread religious practices of its citizenry is hardly a reason to invalidate the statute.

(citation omitted). One judge dissented, arguing that a day off for Good Friday was not in any sense secular, and was a government endorsement of religion: 

The holly and the ivy, jingling bells, red-nosed reindeer, and frosty snowmen this is not. What this case is about is Hawaii's endorsement, by means of a state holiday, of a day thoroughly infused with religious significance alone. Because I believe that such a state establishment of religion violates both the purpose and effects prongs of Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). I respectfully dissent.

The dissenting judge argued that the court's duty is to seek out whether the legislature had a primarily religious purpose, rather than whether it had any legitimate secular purpose.

Tuesday Round-Up: Forced Farming, Tax Or Taking, RLUIPA Loophole

Several items of interest:

• California Coastal Commission: "You must farm" - As a condition of allowing a Northern California family to build a home, the California Coastal Commission demanded that they dedicate an "agricultural easement" on their 143-acre parcel.  In other words, as a condition of use, the Commission requires a family that has never farmed its land to use its land for farming.  More about the case from the Half Moon Bay Review here. The complaint is posted here.
  

  "What the Coastal Commission is asking us to do in return for a building permit is to put the remaining acreage into agriculture easement," Dan Sterling said. "But it doesn’t stop there. They want control of what and how we farm. And even then, they can come in here whenever they want." That’s Sterling’s biggest issue. He says he’d lose control over all but 10,000 square feet of his property but still be liable to keep it up to state standards. And as far as he’s aware, no one has ever farmed any portion of the property – terrain marked by steep hills of trees and brush.

• WSJ op-ed: Riverboat Robbery - When does a tax become an illegal 'taking'? - The Opinion Journal's thoughts on the pending cert petition in Empress Casino Joliet Corp. v. Giannoulias, No. 08-945 (cert. petition filed Jan. 21, 2009), a case we discussed here. 
  

In a time of fiscal pressure, Illinois-type actions may be increasingly tempting for state and local governments to get money to prop up politically favored businesses. In the long run, it will only encourage corruption and deny business the kind of transparency they need to operate and expand. As with all takings, for railroads or schools or highways, if the state believes that the increased purses of the Illinois racetrack are in the public interest, the state must be willing to pay for it.

• Closing a big loophole in RLUIPA - RLUIPA and Eminent Domain: How a Plain Reading of a Flawed Statute Creates an Absurd Result.  Eminent domain is not a "land use regulation" under RLUIPA, most courts hold, including Hawaii's. See City & County of Honolulu v. Sherman, 110 Haw. 39, 129 P.3d 542 (Feb. 28, 2006). Thus, while a local government's zoning may be scrutinized under RLUIPA, the actual taking of property is immune from review. 

  This article addresses the Religious Land Use and Institutionalized Persons Act of 2000. It argues that while the courts hearing RLUIPA cases have correctly held that eminent domain is not land use regulation under RLUIPA, Congress intended eminent domain to be covered under RLUIPA, sound public policy holds that sacred property ought to be afforded special protection from burdensome government action, and Congress must cover eminent domain under RLUIPA in order to adequately protect religious liberty in the land use context.

Conference: ABA Section Of State & Local Government Law Virtual Spring Meeting

Instead of an in-person Spring Meeting this year, the ABA Section of State & Local Government Law will be "meeting" virtually from March 31-April 2, 2009.  As part of the meeting, the Section will be featuring a series of teleconference and live audio webcasts on a variety of subjects including topics near and dear to us: workforce housing, condemnation, land use, and green regulations. You can register for all programs, or individual subjects. A complete list of programs is posted here.

I will be participating as faculty in two of the programs: Condemnation Hot Topics (April 1, 2009 from 2:00 - 3:30pm EDT) and Hot Topics in Land Use Law (April 2, 2009 from noon - 1:30 EDT).  I'll be speaking about the issue of public use and pretext in eminent domain, and recent cases questioning the government's ability to take property.

Registration information is available on the links. If you can't make it for the live programs, the ABA is making recordings available also.  I hope you can join in.

Weekend Round-Up

Some interesting items have crossed my desk on Friday and Saturday:

• From the Grand Theft: Property blog, Jim Mattson posts his thoughts about Monks v. City of Rancho Palos Verdes, 67 Cal. App. 4th 263 (Cal. Ct. App. 2008), the case in which a California Court of Appeals held that a municipality's development moratorium was a Lucas taking.

• A California Court of Appeal issued an opinion in Rental Housing Ass'n of Northern Alameda County v. City of Oakland, No. A114855 (Cal. Ct. App.,  Feb. 27, 2009), striking down in part the city's rent control ordinance because it is preempted by state law.

• From the New York Zoning and Municipal Law blog comes a summary and analysis of the recent oral arguments in the latest phase of the Atlantic Yards eminent domain fight from Brooklyn. 

• More on AmeriSource v. United States, No. 08-497 (cert. petition filed Oct. 15, 2008) from the law bloggers at Volokh Conspiracy here (follow the links to earlier analysis of the issue). We posted the briefs in the case and our thoughts about the issues here.

• Also from the VC, see Supreme Court to Hear Potentially Important Property Rights Case, about SCOTUS agreeing to review the following question:

In determining whether the Due Process Clause requires a State or local government to provide a post-seizure probable cause hearing prior to a statutory judicial forfeiture proceeding and, if so, when such a hearing must take place, should district courts apply the "speedy trial" test employed in United States v $8,850, 461 U.S. 555 (1983) and Barker v. Wingo, 407 U.S. 514 (1972) or the three-part due process analysis set forth in Mathews v. Eldridge, 424 U.S. 319 (1976)?

• The International Municipal Lawyers Association's Local Government blog posts a summary and analysis of the decision the U.S. Supreme Court issued earlier this week about whether the Free Speech Clause requires a city to allow a religious group to place a permanent religious monument in a public park. Pleasant Grove City, Utah v. Summum, No. 07-665 (Feb. 25, 2009).

Cert Petition Asks: Does Spraying Recycled Sewage Water On A Sacred Mountain "Substantially Burden" Religious Exercise?

Thanks to SCOTUSblog for posting the cert petition, filed on January 5, 2008, in Navajo Nation v. United States Forest Service, No. 08A368.

The petition seeks review of an en banc Ninth Circuit panel decision holding it was not a "substantial burden" on the religious exercises of Native American tribes for the Forest Service to allow a ski resort to make artificial snow on a mountain considered by the tribes to be sacred. The artificial snow is made from recycled sewage water. 

The Ninth Circuit held the Religious Freedom Restoration Act, a federal statute which requires the government to justify with compelling reasons actions which substantially burden religious exercises, does not apply.  The court held that religious exercises are only burdened under the RFRA only when a person is forced to choose between adhering to their religion and accepting a government benefit, or when civil or criminal penalties are threatened.  Since the snowmaking activities did neither, the court held there was no violation of the RFRA.  Download the petition here.

US Seeks Cert Review in the Mojave Cross Case

Thanks to Professor Friedman's Religion Clause blog for the post about the federal government seeking Supreme Court review of the Ninth Circuit's decision in Buono v. Kempthorne, No. 05-55852 (Sep. 6, 2007). In that case, the Ninth Circuit invalidated a land swap on Establishment Clause grounds. The Solicitor General's cert petition suggests two Questions Presented:

More than 70 years ago, the Veterans of Foreign Wars (VFW) erected a cross as a memorial to fallen service members in a remote area within what is now a federal preserve. After the district court held that the presence of the cross on federal land violated the Establishment Clause and the court permanently enjoined the government from permitting the display of the cross, Congress enacted legislation directing the Department of the Interior to transfer an acre of land including the cross to the VFW in exchange for a parcel of equal value. The district court then permanently enjoined the government from implementing that Act of Congress, and the court of appeals affirmed. The questions presented are:

1. Whether respondent has standing to maintain this action where he has no objection to the public display of a cross, but instead is offended that the public land on which the cross is located is not also an open forum on which other persons might display other symbols.

2. Whether, even assuming respondent has standing, the court of appeals erred in refusing to give effect to the Act of Congress providing for the transfer of the land to private hands.

The petition is posted here.

Settling Land Use Litigation: Private Agreements and Public Process

A worthwhile article in the latest edition of The Urban Lawyer about settling land use disputes with processes that may not adhere strictly to the usual permit consideration procedures.  Here's the summary from the ABA's site:

Paul D. Wilson, Of Synagogues and Nude Juice Bars: Can a Municipality Settle Land Use Litigation Without a Permitting Process?, 40 Urb. Law. 535 (Summer 2008). This article examines conditional use permits and the appropriateness of settlement agreements between municipalities and controversial zoning permit applicants. The author examines a recent ninth court decision, League of Residential Neighborhood Advocates v. City of Los Angeles, in which the court struck down a settlement agreement between a city and an Orthodox Jewish synagogue wishing to locate in a residential zone, finding that the settlement was not a substitute for a conditional use-permit. The author then examines several analogous cases which present variations of the issue and possible solutions for municipalities.

The Urban Lawyer is the law review published by the ABA's Section on State and Local Government Law, and this article is well worth reading.

We have followed this issue for many years, and have posted a summary of the League of Residential Advocates case here.  This post contains summaries of, and links to, several recent cases on the issue of whether a municipal government may by agreement avoid the usual public processes in rezoning, eminent domain, or the consideration of land use permits.

Cases and Links From Today's Seminar

To all those who attended today's seminar, thank you.  Here are the links to the cases I mentioned.  From the morning session on Case Law Update:

• Wilkie - Government Gone Wild! - no comprehensive federal remedy for federal interference with property
• My Advertiser op-ed on Wilkie
• Crown Point - Ninth Circuit abandons Armendariz doctrine
• Cine SK8 - one way to prove a substantive due process case
• Post-Kelo claims of pretext:

• Franco - District of Columbia Court of Appeals - allegations of pretext cannot be summarily dismissed

• Goldstein v. Pataki - Second Circuit - government's claim of public use trump claims of pretext - cert. petition filed March 31, 2008

• Brescia - shoreline setback and equitable estoppel - HAWSCT holds you gotta get your "official assurances" from the right party
• Private agreements and public process - development and settlement agreements not a substitute for zoning process

From the afternoon session on Appealing an Administrative Zoning Decision:

• Hawaii Home Infusion - venue in administrative declaratory actions under § 91-7
• CARD - can a § 91-8 declaratory action substitute for an appeal?
• Colony Surf - nonconforming uses and reliance on administrative procedures
  
• E & J Lounge - what is a "contested case?"  See also Aha Hui Malama v. Kaniakapupu v. Land Use Comm'n (July 24, 2006)
• Rees v. Carlisle - private rights of action
• Silva v. City and County of Honolulu - the basis for rational basis equal protection arguments must be in the record

Questions?  Want a copy of the vested rights/zoning estoppel law review article? Drop me an email.