August 2008

In a story titled “Honolulu notifying landowners in way of planned rail route,” the Honolulu Advertiser reports “The city has started notifying residents living in the path of the planned $3.7 billion elevated commuter rail that all or part of their properties may be condemned.  The letters, which are being sent out in batches, don’t specify how much property may be needed along the 20-mile East Kapolei to Ala Moana route.” 

The proposed rail project, if it survives an initiative vote this November, is shaping up to the biggest public works and largest singular use of eminent domain in Hawaii’s history (I say “singlar,” since the Land Reform Act — the law challenged in Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229 (1984) — might still be considered the largest use of eminent domain, but it was piecemeal).   I guess our December 2006 prediction of the “dear…

Continue Reading Eminent Domain and the Holy Rail: “Dear Homeowner” Letters in the Mail?

In Action Apartment Ass’n v. City of Santa Monica, No. B201176 (Aug. 28, 2008), the California Court of Appeal (Second District) denied a facial challenge to the city of Santa Monica’s affordable housing exaction ordinance.  The court relied upon the legislative/adjudicative distinction holding that Nollan/Dolan analysis is only applicable to individual decisions regarding permit applications, and cannot be used to challenge legislative decisions generally applicable. 

More about the case after a chance to digest it. The court’s opinion is available here.Continue Reading California Court Rejects Facial Nollan/Dolan Claim to Affordable Housing Exaction

In Shanks v. Byrd, No. 06-35665 (Aug. 27, 2008), the Ninth Circuit held that a municipality’s alleged failure to enforce its zoning laws was not a violation of the Fourteenth Amendment.

Developers who convert homes into student residents apparently did not obtain all of the appropriate permits from Spokane, Washington to remodel a portion of a house in the city’s Mission Avenue Historic District.  The city issued a building permit, but the Spokane zoning code requires additional permissions when historic landmarks are involved, and the developers did not seek or obtain a “certificate of appropriateness” or an “administrative special permit” from the city’s Historic Landmark Commission.  The city did not object, and took no steps to require the permits.

A group of neighbors and community organizations sued the property owners and the city, alleging the city’s failure to enforce the zoning code was a violation of their due process…

Continue Reading Ninth Circuit: City’s (Alleged) Failure to Enforce the Zoning Code Is Not A Substantive Due Process Violation (Oh, And Armendariz is Still Overruled)

The property owners have asked the U.S. Supreme Court to review the Sixth Circuit’s decision in Braun v. Ann Arbor Charter Township, 519 F.3d 564 (6th Cir. 2008), a decision we analyzed here. 

The cert petition contains three Questions Presented:

1.     Should the Court overrule Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City insofar as it requires property owners to seek compensation in state court to ripen a federal takings claim, where four justices of this Court declared in San Remo Hotel v. City and County of San Francisco that such a rule is “mistaken” due to its lack of doctrinal underpinning and preclusive effect on federal jurisdiction?

2.     Is a property owner barred from bringing a procedural due process claim against a defective land use hearing simply because the owner also raised a regulatory takings claim subject to Williamson County, as the Sixth…

Continue Reading Cert Petition Asks Supreme Court to Overrule Williamson County

In a 2-1 decision applying California law, the U.S. Court of Appeals for the Ninth Circuit held in United Brotherhood of Carpenters and Joiners of America Local 848 v. National Labor Relations Bd., No. 05-75295 (Aug. 25, 2008), held that six rules applied by shopping centers to restrict picketing and handbilling by union members violated the state constitution’s free speech clause, and therefore impermissibly interfered with protected union activity.

This case is the latest chapter in that sub-genre of land use cases dealing with the speech rights at shopping centers that last reached the Supreme Court in memorably-captioned PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980).  Generally speaking, you have no First Amendment rights on private property, but shopping centers have become — for better or worse — modern-day venues for speech, and the issue keeps being raised. 

In PruneYard, the California Supreme Court came down…

Continue Reading Ninth Circuit: Unions Have Right Under California Constitution to Picket and Handbill in Shopping Centers

New filings in the federal district court litigation challenging the County of Maui’s “workforce housing” ordinance.  Enacted in 2006, the Maui ordinance imposes a 40% to 50% affordable requirement on most development, including the subdivision of land.  A property owner subject to this exaction challenged the ordinance under the Nollan/Dolan doctrine of unconstitutional exactions, which requires the governmentto show a substantial nexus between the exaction and some problemcaused by the property owner before the government may demand tributeas a condition of development.  The exaction must also be roughlyproportional to the problem. 

In July 2008, the court held that the plaintiff’s Nollan/Dolan claims are takings claims that are not ripe under Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985).  The district court’s lengthy opinionheld that despite labeling its claim as one under the “unconstitutionalconditions doctrine,” the claim was a facial takings…

Continue Reading Latest Developments in Maui Affordable Housing Exaction Case

In a decision that at first blush seems to have little to do with land use law, the Hawaii Supreme Court reiterated the standard for when an agency hearing is a “contested case” under the Administrative Procedures Act, and clarified what constitutes agency “action” for purpose of the permit application autoapproval statute.

Contested Case Broadly Defined

The first issue in E & J Lounge Operating Co. v. Liquor Comm’n of the City & County of Honolulu, No. 27940 (July 29, 2008) was whether, as the caption of the case indicates, a public hearing before the Honolulu Liquor Commission was a contested case under Haw. Rev. Stat. § 91-1(5).  The court held it was.

This case is important for land use law since many of the public hearings before agencies are not formally defined as contested cases.  The court held that the designation did not matter, and an…

Continue Reading HAWSCT Defines “Contested Case” Broadly, Reviews Autoapproval Statute

Kauaisprings2 Yesterday, the Kauai circuit court granted a permanent injunction, and ordered that Kauai Springs‘s applications for three zoning permits should not have been denied by the Kauai Planning Commission in January 2007.  The case is an appeal from an agency decision under the HawaiiAdministrative Procedures Act (a procedure known in other jurisdictionsas a petition for a writ of administrative mandate or a petition for awrit of mandamus).

As reported in today’s Garden Island:

In a legal victory that was described by its attorney as a “total home run,” the Kaua‘i Springs bottled water company was granted three permits by 5th Circuit Judge Kathleen Watanabe yesterday in a strong rebuke of obstacles put up by the Kaua‘i County Planning Commission.

Kaua‘i Springs owner Jim Satterfield, who attended the proceeding with some 10 family members, said that he was almost “moved to tears” by the decision and categorized it as

…
Continue Reading Victory in Kauai Springs Zoning Permit Appeal