2007

In Aspen Creek Estates, Ltd. v. Town of Brookhaven, 2007 NY Slip Op 09583 (Dec. 4, 2007), the Appellate Division of the New York Supreme Court approved a taking of private property to preserve it as farmland.  The court’s majority held that the goal of preserving farmland generally qualifies as a public use/purpose, and that there was no evidence of pretext in the record demonstrating that the presumption of public use should be questioned, even though the property owner asserted that the land would eventually be leased or sold to another private owner.  The facts of the case are set out in the opinion, and by Professor Patty Salkin in her analysis of the decision, so I won’t repeat them in detail here.  Two points, however, merit discussion.

First, the property owner asserted that because the taking was not part of a plan, it did not deserve judicial…

Continue Reading Comprehensive Eminent Domain Plan: If You Don’t Have One, The Court Will Make One Up

Confirming once again that the shopping mall defines California’s culture, the California Supreme Court in Fashion Valley Mall, LLC v. National Labor Relations Bd., No. S144753 (Dec. 24, 2007), held that the mall is a public forum for the airing of grievances, and that the mall’s owner did not have the right to prohibit protesters from urging on-site a boycott of a mall tenant. 

The First Amendment does not prohibit private censorship, but the court held that the California Constitution’s free speech clause provides greater protection than the First Amendment.  Thus, under California law, private shopping malls may not bar on-site protests, even when those protests are directed at a mall tenant.  The court reaffirmed the holding of Robins v. Pruneyard Shopping Center, 23 Cal.3d 899 (1979) which held that shopping malls are fora for public speech.  In other words, unlike the owners of other types of private…

Continue Reading Free Speech on Private Property: Cal Supreme Court Confirms California’s Mall-Centric Culture

The NY Times posts a story, “Despite Earlier Defiance, Holdouts in Columbia’s Expansion Zone Are Down to 3,” about Columbia University’s move into the area north of W. 125th Street.  Hat tip to No Land Grab for the link. 

New York City is a long way from the jurisdictions that are theusual subjects of the posts on this blog, but this case has interestedme since I am familiar with both sides of the dispute.  When I was atColumbia Law, I used businesses mentioned in the article: I filled mytank at the service station (yes, I lived in Manhattan and owned acar), had a couple of meals at the McDonalds on 125th (starving studentdays), and stored some of my stuff at the Tuck-it-Away on Broadway. See also these posts on the same topic: Columbia Pulls a Kelo, Columbia U. Takes Manhattan, and Columbia U’s Expansion Plans and Continue Reading NY Times on Columbia U’s Expansion Plans

In anticipation of the upcoming eminent domain conferences, ALI-ABA has posted a (free!) short podcast by Michael Berger about the recent $37 million inverse condemnation judgment against a northern California for causing the plaintiff’s land to become undevelopable wetlands (Yamagiwa v. City of Half Moon Bay, No. 05-4149 VRW (Nov. 28, 2007)).  See you at the conference (Jan 3-5, 2008). Continue Reading Podcast on $37m Federal Inverse Condemnation Judgment

The US District Court for the District of Hawaii dismissed most of the counts of the Maui Vacation Rental Association’s complaint against the County of Maui.  The court held that MVRA had the right to bring suit on behalf of its members, but dismissed — without leave to amend — the substantive and procedural due process claims, the breach of contract claim, the breach of implied covenant of good faith and fair dealing claim, the equitable estoppel claim, and the illegal customs and policies claim.  The court also dismissed the equal protection claim, but allowed MVRA to amend its complaint. 

Here’s the court’s written order.  (The court’s summary order also mentioned a “First Amendment” claim, but no such claim is mentioned in the written order.)

County Fails to Process 90% of Applications

Vacation rentals outside of the “Hotel” zones are generally prohibited.  Those vacation rentals that were not operating…

Continue Reading Federal Court Dismisses Maui Vacation Rental Due Process Claims — Details

According to this story in the West Hawaii Times (free registration may be required), the County of Hawaii is considering amending its Charter to form another Planning Commission, and splitting jurisdiction between a Leeward commission and a Windward commission. 

No one has challenged the validity under state law of a county having more than a single planning commission (even though Maui County for some time has has three — one for each populated island within the county), and state law can be read to require that each county have a single commission. Jesse Souki analyzed the issue in this post on his Hawaii Land Use Law blog.  Also, see his comment below. Continue Reading Double Your Fun: Big Island Considering Another Planning Commission

The NY Sun posts an opinion piece “Columbia Pulls a Kelo” —

Most don’t know that a private owner who covets the property of another can, outside the scrutiny of the public eye, start the condemnation process by writing a check to the self-funding government agency — to finance costs, including government staff salaries — so that agency will put together materials advancing the condemnation. In that vein, Columbia University, interested in acquiring a swath of West Harlem, wrote a $300,000 starter check to ESDC in 2004, years before any public hearings.Continue Reading NY Sun Opinion: Columbia Pulls a Kelo

Hat tip to Supreme Court of Hawaii Blog for posting a Maui County press release announcing that on December 17, 2007, the US District Court for the District of Hawaii dismissed, for failure to state a claim, most of the allegations in the lawsuit by the Maui Vacation Rental Association.  The Maui News reports the story here, and Jesse Souki amalgamates his posts on the case at his Hawaii Land Use Law blog here. 

Failure to state a claim means either that a cause of action alleged by the plaintiff is not recognized, or, more commonly, that the plaintiff failed to properly plead an essential element of her legal claim.

Here’s the court’s summary order.  When the court issues its full written order, we’ll post it.Continue Reading Federal Court Dismisses Most of Maui Vacation Rental Lawsuit

As reported here and here, the City of Half Moon Bay, California is going to appeal the $37 million federal inverse condemnation judgment to the Ninth Circuit.  In the first story, the San Francisco Chronicle reports:

The Half Moon Bay CityCouncil on Tuesday night voted to hire a team of appellate lawyers andannounced it would fight a potentially ruinous federal court decisionthat orders the city to pay $36.8 million to a developer in a propertydispute.

“The City Council has decided to go forward with an appeal,” MayorBonnie McClung told a crowd of more than 70 people gathered for thecouncil’s first regular meeting since the ruling came down. “We areunited in our position at this point that this is the best course ofaction for us.”

The council voted unanimously to hire Orrick, Herrington &Sutcliffe, a San Francisco law firm that specializes in public financeand corporate law. In the same

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Continue Reading City Will Appeal $37 Million Inverse Condemnation Judgment to Ninth Circuit