March 2008

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.  Continue Reading Land Use Seminar This Week

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…

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

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…

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

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 withholdan exercise of eminent domain, a landowner was offered a choice: givethe developer $800,000, or a one-half interest in the owner’s planneduse 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 sidesof this high-priced battle are a social waste if all they do is replacea CVS pharmacy with a Walgreens. The Port Chester saga reveals theinstitutional flaw of modern takings law. Undue…

Continue Reading Epstein on the Didden Case

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 propertyowner’s claim for violations of substantive due process rights were”subsumed” within the owner’s claim for violation of the TakingsClause.  Thus, in land-related issues, a property owner could onlybring 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.Continue Reading New Article: Property Rights in the Ninth Circuit, And Beyond

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 therental term, are for profit ventures and could therefore becharacterized 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

…
Continue Reading Order in Florida Short Term Rental Case

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. Theshorter they are, and the more common their language, the moredifficult the task of their interpretation. Private property, forexample, is not just a two-word phrase, but it represents an entireworld view, which necessarily needs to be distilled from sourcesexternal to the text. Takings, public use and just compensation arealso terms that come easily off the tongue, but are hard to explicatein any coherent fashion. In the next few blog posts I shall workthrough some of the key arguments on these issues. But for the moment,I will just note that I am quite proud that…

Continue Reading Epstein Blogs His New Takings Book

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

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…

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