December 2008

Yet another year has comeand gone — our third at this blog, — so it’s time to start off ourannual summary of the past year’s highlights (or lowlights, dependingon your point of view) in land use law and other topics covered oninversecondemnation.com.

It was mostly a year of incrementaldoctrinal shifts, with a couple of sea changes thrown in forexcitement: the Ninth Circuit finally ditched Armendariz andrecognized the validity of substantive due process in land use cases;the Hawaii Supreme Court came out strongly in favor of property owner’srights in eminent domain proceedings, holding that courts should notsimply take the government’s word that a taking is for public use, andrequiring the government to bear the economic burden when its attemptsto take property fail; the Hawaii intermediate appellate court heldthat there is no private right of action under the state land use laws.

It was also a year in which certain issues kept…

Continue Reading 2008 Land Use In Review

You own a home built in 2002. A couple of years later, the county redevelopment authority decides that your home, and the properties your neighbors own, would together make a grand site for an industrial park. Your properties are “shovel-ready” (the authority’s term, not mine) and primed for industrial development.

So it decides your home is “blighted.” Nothing wrong with your property, mind you. No “urban decay,” no unsafe, unsanitary, inadequate, or overcrowded conditions (you know, attributes that come to mind when we think of a blighted property). Although acknowledging there is nothing wrong with your home, the authority maintains that your use of the property as a residence is “economically and socially undesirable” merely because industrial use is a “better” use and, therefore, you are underutilizing your land. Consequently, your property is blighted and the redevelopment authority can take it. The trial court finds that the authority’s claim of…

Continue Reading Pa Court: No Public Use Because Residential Use Is Not “Blight”

Section 30010 of California’s Public Resource Code provides that the California Coastal Commission may grant a development permit that otherwise could not be granted in order to avoid a taking:

The Legislature hereby finds and declares that this division is not intended, and shall not be construed as authorizing the commission, port governing body, or local government acting pursuant to this division to exercise their power to grant or deny a permit in a manner which will take or damage private property for public use, without the payment of just compensation therefor. 

In a lengthy (51 page) opinion, the California District Court of Appeal (Sixth District) in McAllister v. California Coastal Comm’n, No. H031283 (Cal. Ct. App. Dec. 30, 2008) held that this statute requires the Coastal Commission to make specific findings that denying a coastal development permit would result in a taking. As summarized by the court:

The…

Continue Reading Cal. Court of Appeals: No Record And No Findings By Coastal Commission = No Consideration

In a brief order available here, the Hawaii Supreme Court has rejected an application for writ of certiorari, declining to review the Intermediate Court of Appeals’ decision in Pono v. Molokai Ranch, Ltd., 119 Haw. 163, 194 P.3d 1126 (2008). 

In that opinion, the ICA held that private citizens do not have standing to enforce the state land use laws.  The ICA’s opinion was summarized on Professor Patty Salkin’s Law of the Land blog by James D. Lawlor, Esq., Editor and Publisher of the Land Use Legal Report, here.

Disclosure: we represented Molokai Ranch and filed a brief in opposition to the application for writ of certiorari, posted here.Continue Reading HAWSCT Declines To Review ICA Decision: No Private Standing To Enforce Land Use Law

There have now been a total of five briefs amicus curiae filed supporting the petition for writ of certiorari in Charles A. Pratt Construction Co. v. California Coastal Commission, No. 08-668 (cert. petition filed Nov. 18, 2008) (SCOTUS docket report here). 

We wrote here about the California Court of Appeal’s decision, reported at  76 Cal. Rptr. 2d 466 (slip opinion available here), the rehearing petition here, and the cert petition here.  The amicus briefs:

The Brief in Opposition of the California Coastal Commission is due January 16, 2009.Continue Reading More Amici Supporting Grant of Cert in Pratt (Penn Central and Williamson County)

Here is the brief amici curiae of the National Association of Home Builders, California Building Industry Association, Building Industry Association Legal Defense Foundation, and Home Builders Association of Northern California urging the U.S. Supreme Court to review the California Court of Appeal’s decision in Charles A. Pratt Const. Co. v. California Coastal Comm’n, 76 Cal. Rptr. 2d 466 (Cal. Ct. App. 2008) (slip opinion available here). 

We blogged about the lower court decision here, the rehearing petition here, and the cert petition here. We filed an amicus brief in the case, posted here.

The NAHB argues:

The increasingly complex structure of the land use regulatory system stands as an obstacle to housing development. Against this backdrop, the holdings of this Court in Penn Central Transportation Company v. City of New York, 438 U.S. 104 (1978) and Williamson County Regional Planning Commission v. Hamilton…

Continue Reading Further Amici Supporting Grant of Cert in Pratt (Penn Central and Williamson County)

It’s not often that you see an opinion piece previewing an attorney’s arguments in a pending case being published before his or her brief has been filed. Most commonly, if counsel publishes in the op-ed pages about a case, it is afterthe brief has been filed or after the court has rendered adecision. Thus, the op-ed published in today’s Honolulu Advertiser, “State court correct in protecting ceded lands,” by two attorneys for the Office of Hawaiian Affairs previewing one aspect of their argument in the ceded lands case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert.granted Oct. 1, 2008), is most interesting since it suggests that the U.S. Supreme Court cannot — or, more accurately, should not — review the Hawaii Supreme Court’s decision in Office of Hawaiian Affairs v. Housing and Community Dev. Corp. of Hawaii, 117 Haw. 174, 177 P.3d 884 (Jan. 31…

Continue Reading Op-Ed Previewing OHA Arguments In SCOTUS Ceded Lands Case: Independent and Adequate State Grounds?

Holdout The New York Times posts a story, “House Stands as Legacy to Fight Against Developers,” about one woman’s refusal to sell her modest Seattle, Washington area home to a redeveloper, even when offered $1 million.  If a picture is worth a thousand words…

While the case is not like Kelo — or the fictional The Castle — in that the developers apparently did not attempt to get the government to take Edith Macefield’s property forcefully by eminent domain once she refused to sell, it does illustrate at least one of the reasons people may have for refusing, even where the offer is obviously well in excess of the home’s value:

Everybody that’s come in and tried to talk about this has tried tocreate that image of her,” said Mike Semandiris, whose family has owneda chili parlor around the corner for more than 70 years. “But shedidn’t give a…

Continue Reading A Holdout

When the case is captioned “Jerry McGuire v. United States,” and involves an inverse condemnation claim seeking compensation from the government, how could anyone resist making a reference to Jerry Maguire, the 1996 Cameron Crowe film that added “show me the money” to the lexicon?  I couldn’t, nor, apparently, could others.

In McGuire v. United States, No. 06-15812 (9th Cir. Dec. 24, 2008), the government might have to show Jerry the money, but not in a district court. The Ninth Circuit held that an inverse condemnation claim brought by McGuire against the federal government (the Bureau of Indian Affairs) for removing a bridge connecting two parcels of land that he leased from the Colorado Indian River Tribe, could only be heard in the Court of Federal Claims.

Williamson County Final Decision

After the bridge was removed, McGuire filed for bankruptcy protection, and brought…

Continue Reading Show Me The Money (In The Court of Federal Claims), Williamson County Ripeness, And A Possible Circuit Split

In a major decision regarding eminent domain, whether the government must pay damages when its attempts to condemn property fail, and the standards applicable to challenging the government’s claim that a taking is for public use, the Hawaii Supreme Court today issued an opinion in County of Hawaii v. Richards, No. 28882, the consolidated appeal from two eminent domain lawsuitsfiled by the County in 2000 and 2005.

[Disclosure: we represent the property owner.]

The majority opinion by Justice Acoba, joined by Justices Nakayama and Duffy is posted here:

We hold that (1) a landowner in a condemnation action is entitled to damages under HRS § 101-27 where the property at issue is not finally taken in the context of a particular condemnation proceeding, irrespective of whether the government attempts to take the land through subsequent condemnation proceedings; (2) abatement does not apply where the relief sought in two…

Continue Reading HAWSCT Opinion in Eminent Domain Abuse Cases – Kona Bypass Highway