May 2011

We don’t usually cover unpublished decisions. They are usually cryptic, and depending on local court rules, can’t be cited. But as we explained before, there are exceptions. The Ninth Circuit’s memorandum decision in Molony v. Crook County, No. 09-35624 (May 27, 2011) is one that raises some interesting issues.

First, what’s a takings claim doing in federal court? Like another recent opinion from the Seventh Circuit, the opinion notes it is a “state-law taking claim” meaning that the district court’s jurisdiction was based either on diversity (in which case, the court could consider stand-alone state law claims), or on the presence of a federal question (in which case, the court has the discretion to consider “supplemental” state law claims — what we used to call “pendent” or “ancillary” jurisdiction). We’re not sure which applied here, but the jurisdictional basis is worth noting since it may reveal a…

Continue Reading 9th Circuit (Unpublished): State Taking Claim Ripe, No Economic Use

Any regular reader of these pages knows about the Williamson County/San Remo Hotel “ripeness” Catch-22: try vindicating a property owner’s federal constitutional right in federal court in the first instance, and the federal court will tell you that you are too early — a regulatory taking is of no constitutional moment until the state regulators have made a final decision, and the state courts have denied compensation (even if this means the state hasn’t offered compensation and in state court denies it owes any). But bring a federal action after a state court inverse condemnation case, and the federal court will tell you that you are too late — you already litigated your federal claim, even if you expressly didn’t.

The Catch-22 nature of this prompted four Justices to note in San Remo Hotel that the Williamson County experiment may have run its course and is due…

Continue Reading First Circuit: RI’s Inverse Condemnation Remedy Satisfies Williamson County

Most courthouses look like court houses. Government Issue Bland. Others can be  interesting, even though they are imposing (Tennessee Supreme Court), traditional (Ninth Circuit, San Francisco), historic (Rhode Island Superior Court, Providence), unique (Hawaii Supreme Court, the only courthouse in the U.S. which was also the supreme court for another country), plain but hip (Coahoma County, Mississippi, “in the land of the Delta Blues”), mildly sinister, could be haunted (Ninth Circuit, Portland), cliché (Ninth Circuit, Pasadena, which looks like it could be the “Hotel California” of Eagles fame), or rockin’ (no wait, that’s Graceland).

But how many courthouses do you know could serve (and have served) as the set of a sci-fi film? For that matter, how many courthouses were designed by Frank Lloyd Wright? Welcome to the Marin County Civic Center and Courthouse in San Rafael, California, which is by our estimation the Coolest Courthouse…

Continue Reading A Brief Visit To What May Be The Coolest Courthouse In America

Responding to the recent post on the New York Court of Appeals’ decision in Uptown Properties, George Mason U. lawprof Steven Eagle writes with his thoughts on the concurring opinion by Judge Smith that caused us some dissonance.

Here, with a little editing for layout, are Professor Eagle’s comments:

In your blog for May 20, you express confusion over Judge Smith’s concurring opinion in Uptown Properties. You ask:

Judge Smith, bless him, had the courage to be the lone dissenting voice in Goldstein, although we’ve never quite figured out how the the public use clause in the New York Constitution can provide more protection than the Fifth Amendment’s Public Use Clause as interpreted in Kelo, but at the same time allow a “blight” standard that is so deferential to the agency’s determination of blight that it renders judicial review meaningless. Is he arguing that because…

Continue Reading Professor Eagle Clears Up Our Confusion

Hartman

Update: a follow up from lawprof Steve Eagle  here.

Thanks to colleague Dwight Merriam for pointing out a recent decision that we missed from the Court of Appeals, New York’s highest court. In Uptown Holdings, LLC v. City of New York, 2011 NY Slip Op 01071 (Feb. 17, 2011), the court sua sponte dismissed the appeal because “no substantial constitutional question is directly involved.” We’ve been following the case, in which the Appellate Division held that the city’s Department of Housing Preservation and Development validly condemned property, upholding the taking against a due process and a public use challenge, because Kelo does not require a taking to be part of a comprehensive plan.

Judge Smith concurred in a short statement:

Smith, J. (concurring): I agree that no substantial constitutional issue is presented, because, as the concurring opinion in the Appellate Division points out, this case is controlled…

Continue Reading Now I’m “Frightened And Confused” – New York Eminent Domain Law May Provide More Protection Than The Fifth Amendment, Unless There Is Blight?

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Last week, after we concluded the spring meeting of the ABA’s Section on State and Local Government Law in Portland, Oregon (more about that in a subsequent post), we could not resist paying a brief visit to the neighboring City of Tigard.

Yes, that City of Tigard.

In the early 1990s, the city was home to John and Florence Dolan, who owned A-Boy Plumbing & Electrical Supply. They asked the city for a permit to expand their store and pave their parking lot. The city saw this as an opportunity to expand its network of bike paths, and conditioned its approvals on the Dolans “dedicating” (giving) the city land for a public “greenway” along the adjacent Fanno Creek, totaling approximately 10% of the parcel.

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            The entrance to the “greenway” from the street.

The Dolans objected, arguing that requiring them to donate land as a condition of land use…

Continue Reading Regulatory Takings Pilgrimage, Part II

The U.S. Supreme Court has denied the petition for a writ of certiorari in Guggenheim v. City of Goleta, No. 10-1125. Property owners asked the Court to review the Ninth Circuit’s sharply divided en banc opinion, which held that the City’s mobile home rent control ordinance did not work a regulatory taking because the fact that the Guggenheims purchased their property subject to a rent-control regime was “fatal” to their investment-backed expectations under Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978).

The petitioners asserted the Ninth Circuit”s conclusion contradicted Palazzolo v. Rhode Island, 533 U.S. 606 (2001), the case in which the Supreme Court held the fact that restrictive regulations predated the property owner’s acquision of the property did not forclose his challenging the regulation as a taking. Will the cert denial mean that the lower courts will continue to ignore Palazzolo or…

Continue Reading Cert Denied In Guggenheim

Honolulu attorney Jay Fidell (who also produces Think Tech Hawaii) writes a regular column in the Honolulu Star-Advertiser. This week, he focuses on eminent domain in “Governor must insure wind farm moves forward,” where he writes about the proposed wind farm on Molokai, and urges the state to use eminent domain aggressively to take the needed land:

When Abercrombie threatened eminent domain against Molokai Ranch, he unleashed the genie, and the possibility of condemnation is now in play. He gave us a glimpse of a powerful solution to our energy security predicament, and we can’t let it pass.

In our state of islands, land is scarce, and NIMBY is in every back yard. Large landowners want to hold on to their land in hopes of appreciation and because it’s so difficult to find other parcels. So they refuse to sell.

Hawaii has traditionally been reluctant to …

Continue Reading “Make Eminent Domain Imminent” – Fidell On Wind Power

In Levine v. Town of Sterling, No. 18470 (Apr. 12, 2011), the Connecticut Supreme Court held that a property owner need not show that his property was rendered worthless or that he made “capital investment” to prove that he relied on a resolution by the town’s board of selectmen that he could build more than one house on his land.

Levine involved zoning estoppel (aka equitable estoppel, permit estoppel, or, as in Connecticut, “municipal estoppel”), the claim that the government cannot apply existing land use regulations to a parcel because the owner has relied on some kind of official assurance that she could do something else. In that case, Mr. Levine owned a parcel with an existing house and wanted to build two others and convert it to a planned unit development. The board “noted that [the plaintiff] was within his rights to do so but stressed that none…

Continue Reading Connecticut: Soft Costs Sufficient To Show “Substantial Loss” For Zoning Estoppel

As we’ve mentioned here before, the City & County of Honolulu has given the green light to a new public railway, described as “a 20-mile elevated rail line that will connect West O`ahu with downtown Honolulu and Ala Moana Center. The system features electric, steel-wheel trains capable of carrying more than 300 passengers each. Trains can carry more than 8,000 passengers per hour in each direction.”

This evening, I spoke to the Waikiki Rotary about some of the legal issues that the rail project will involve, including eminent domain, environmental questions, and the relationship between the newly-created Honolulu Authority for Rapid Transit (HART), an agency within city government to oversee the project.

Here are some links on the topics I spoke about:

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Continue Reading All Aboard? Honolulu Rail Is Coming