September 2008

District Court: San Diego county’s zoning ordinance — which “imposes restrictions and permit requirements on the construction and location of wireless telecommunications facilities” — conflicts with federal law, and is preempted.  The county is permanently enjoined from enforcing the zoning ordinance.

Ninth Circuit panel: we agree. 

Ninth Circuit en banc: we don’t, injunction dissolved, case dismissed. 

Sprint Telephony PCS, L.P. v. County of San Diego, Nos. 05-56076, 05-56435 (Sep. 11, 2008) (en banc). Continue Reading Ninth Circuit: Local Zoning Ordinance Does Not Conflict With Federal Statute

The Natural Resources Defense Council has filed its brief in the US Supreme Court case about the Navy’s use of mid-frequencyactive (MFA) sonar in training exercises off the California coast, Winter v. Natural Resources Defense Council, Inc., No. 07-1239:

The Navy argues that a letter it procured from another executive-branch agency, the White House Counsel on Environmental Quality (“CEQ”), disagreeing with the district court’s finding, compelled the court to strike the challenged measures. This novel argument, reduced to its essentials, is that an Article III court must set aside its findings of fact and modify an injunction because an administrative agency in which Congress has vested no adjudicatory authority, and which lacks any expertise in the issue in dispute, disagrees with the court’s findings. The consequence of the Navy’s argument—that CEQ was entitled to sit as a “court of errors” in review of the district court’s findings—ignores not…

Continue Reading NRDC Brief in Navy Sonar Case

The California Coastal Commission today filed its brief in the U.S. Supreme Court case about the Navy’s use of mid-frequencyactive (MFA) sonar in training exercises off the California coast, Winter v. Natural Resources Defense Council, Inc., No. 07-1239.  The issue in the case is whether the Ninth Circuit properly granted aninjunction under the National Environmental Policy Act (NEPA), 42U.S.C. § 4321, the law that requires federal agencies to consider theenvironmental impacts of their proposed actions and reasonablealternatives to those actions.  The CCC’s brief summarizes its argument:

According to the Navy’s own assessment, its training exercises “will cause widespread harm to nearly thirty species of marine mammals, including five species of endangered species, and may cause permanent death or injury.” App. 163a. Congress in the Marine Mammal Protection Act (MMPA), however, authorized the Secretary of Defense to exempt certain military activities from the MMPA despite their impact on marine…

Continue Reading California Coastal Commission Brief in Navy Sonar Case

In a brief opinion (the case was decided without oral argument), the Ninth Circuit affirmed the Hawaii district court’s dismissal of claims that the security zone established by the U.S. Coast Guard violated the protester’s First Amendment rights.  Even if the protest was symbolic speech, the security zone was a reasonable time, place, and manner restriction.  The court also held that the Coast Guard has a categorical exemption from NEPA, and no EIS was required.  Wong v. Bush, No. 07-16799 (Sep. 5, 2008).  Continue Reading 9th Circuit: No First Amendment, NEPA Violation in Kauai Superferry Protest

The Ninth Circuit has scheduled oral arguments in Maui Vacation Rental Association, Inc. v. County of Maui, No. 08-15251, the Ninth Circuit appeal from the Hawaii district court’s dismissal of MVRA‘s complaint which sought to declare Maui’s shut down of vacation rentals illegal. The court will hear argument on November 21, 2008, at 9:00 a.m. in Honolulu.

The issues in the case are spelled out in the briefs:

The case and the issues have also been reported in the media:

…
Continue Reading Oral Argument Scheduled in Ninth Circuit Maui Vacation Rental Appeal

When a court labels the Nollan/Dolan line of decisions “so-called exaction cases” (and your claim is that an exaction is not related or proportional) you know right away you are in trouble.

First, the dry summary.  In Action Apartment Ass’n v. City of Santa Monica,No. B201176 (Aug. 28, 2008) (slip opinion available here), the California Court of Appeal (SecondDistrict) denied a facial challenge to the city of Santa Monica’saffordable housing exaction ordinance.  The court relied upon thelegislative/adjudicative distinction holding that Nollan/Dolananalysis is only applicable to individual decisions regarding permitapplications, and cannot be used to challenge legislative decisionsgenerally applicable.

Second, some background on “facial” challenges as contrasted with “as applied” challenges. A “facial” takings challenge to a statute or ordinance asserts thatits mere enactment is unconstitutional.  The U.S.Supreme Court recently explained the nature of facial challenges:

Under United States v. Salerno,481 U. S.

Continue Reading My So-Called Exaction Case: More on Action Apartment