September 2011

Here are the latest briefs in a case we’ve been following. In Colony Cove Properties, LLC v. City of Carson, 640 F.3d 948 (9th Cir. 2011), the Ninth Circuit affirmed the dismissal of a property owner’s claim that the city’s mobilehome rent control ordinance is a taking. The district court dismissed the facial takings claim because it was filed outside the statute of limitations, and the as-applied takings challenge as unripe.

The cert petition is asking the Suprme Court to revist and discard the ripeness rules of Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985). It poses two Questions Presented:

1. Should Williamson County be overruled, to the extent that it arbitrarily denies a federal forum to regulatory takings claimants seeking just compensation for the violation of their rights under the Fifth Amendment, contrary to the intention of Congress in …

Continue Reading More Cert Briefs In Williamson County Challenge (Colony Cove)

What is a property owner to do when faced with a regulatory agency asserting that its permission must be obtained before the property can be used, when the property owner believes that the agency does not have authority over her land?

According to the agency, the property owner has two choices: she can either file an application under protest for a permit that she doesn’t think she needs, or she can go ahead without a permit and take the risk that she is wrong and will end up on the wrong end of an enforcement action.

How about an immediate challenge and judicial review? No dice, according to the agency, it’s premature.

This issue is now being considered by the U.S. Supreme Court in in Sackett v. EPA, No. 10-1062, the case in which Idaho property owners are asserting their right to challenge the EPA’s assertion that a portion…

Continue Reading Merits Brief In Sackett: Can A Property Owner Contest EPA’s Assertion Of “Wetlands” Jurisdiction?

Update: cert denied.

This might be academic at this point, since this case was up for consideration by the Court at the September 26, 2011 conference and it didn’t make the grant list (yet). But the amicus brief filed by the local chapter of the American Planning Association in City of San Leandro v. International Church of the Foursquare Gospel, No. 11-106 (cert. petition filed July 11, 2011), is worth reviewing for its walk-through of the land use process in one East Bay city.

The brief’s bottom line: it’s all about planning:

Land use planning and related zoning laws and decison-making enable local governments to preserve their distinct characters. Indeed, a general plan translated long-term values into comprehensive, complicated documents that describe how, why, when, and where to build or rebuild while challenging and inspiring members of the community with a vision of what might be — and…

Continue Reading Amicus Brief In RLUIPA Case: Planning Is A “Compelling Interest” Justifying Denial Of Church’s Request For Rezoning

IMG_3352

As part of the Fall Meeting of the ABA’s Section of State & Local Government Law in Tucson, on Thursday, September 22, I was on a panel discussing the Supreme Court’s recent decision in Nevada Commission on Ethics v. Carrigan, “Ethical Considerations for Municipal Attorneys: Caught in the Crosshairs Reconciling the Rules of Professional Conduct with Government Ethics Laws.”

Joining me in the discussion were Yvonne M. Nevarez-Goodson (Commission Counsel and one of the lawyers for the Nevada Commission on Ethics in the Supreme Court), J. Scott Rhodes (an expert in ethics and professional responsibility issues), and Professor Keith Swisher (Phoenix School of Law – his scholarship includes ethics and he produces the Judicial Ethics Forum blog). Michael Donaldson moderated.

I started us off by providing a short summary of the Carrigan case, touching on the Nevada Supreme Court’s conclusion that vote by a legislator is a…

Continue Reading CLE Report: Government Ethics, Free Speech, And Voting Rights

Under Florida eminent domain law the property owner whose property is taken is entitled to attorney’s fees “based solely on the benefits achieved for the client.” The statute defines what “benefits” means:

As used in this section, the term “benefits” means the difference, exclusive of interest, between the final judgment or settlement and the last written offer made by the condemning authority before the defendant hires an attorney. If no written offer is made by the condemning authority before the defendant hires an attorney, benefits must be measured from the first written offer after the attorney is hired.

Fla. Stat. § 73.092.

In Pompano Beach Community Redevelopment Agency v. Holland, No. 4D10-291 (Sep. 14, 2011), the District Court of Appeal (Fourth District) interpreted the phrase “first written offer” to exclude an unexecuted contract in which the condemnor offered to pay $31,250 for the property. However, “[t]he contract contained…

Continue Reading Fla App: What Is The “First Written Offer?”

It can be difficult to piece together the full scope of the issues and arguments in an appeal from the oral arguments alone. Most often, arguments cover narrow issues of concern to the judges, and the advocates do not have the opportunity to cover every argument in the time allotted (that’s what the briefs are for). And although oral arguments in the Hawaii Supreme Court and the Intermediate Court of Appeals are usually scheduled at 30 minutes per side which allows for a wider range of issues and a more in-depth discussion, the briefs are the best guide for what the arguments are.

With that prologue, we wanted to focus your attention on an appeal that was argued last week in the ICA, Goo v. Tavares, No. 30142. The case involves a multitude of land use-related issues, including how “height” is measured, vested rights and estoppel, and the private…

Continue Reading HAWICA Oral Arguments In Appeal About From Where “Height” Is Measured

The top-side brief and supporting amicus briefs have been filed in a case we’ve been following, PPL Montana v. Montana, No. 10-218 (cert. granted June 20, 2011).

In PPL Montana, LLC v. State of Montana, 229 P.3d 421 (Mont. Mar. 30, 2010), the Montana Supreme Court disregarded 100 years of private or federal ownership of the riverbeds under more than 500 miles of river, and held that the state owned them.* The net result of the Montana court’s ruling was that the state was owed millions in back and future rent from the owners of hydropower facilities located on those riverbeds.Sound familiar?

In June, the Supreme Court agreed to review this question:

Does the constitutional test for determining whether a section of a river is navigable for title purposes require a trial court to determine, based on evidence, whether the relevant stretch of the river was…

Continue Reading SCOTUS Reviewing State Court’s Land Grab In Navigability Case

Update: More thoughts on the apology from Gideon Kanner , the Queens, NY-based property owners’ blog Willits Point United, and from eminent domain scholar lawprof Ilya Somin.

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

Comes word from Jeff Benedict, author of the Kelo book Little Pink House, via his blog and a story in the Hartford Courant, that one of the Connecticut Supreme Court justices who voted in favor of the government approached Mrs. Kelo last year at an event and apologized for ruling against her. 

After she told her story, he came up and said, “[h]ad I known all of what you just told us, I would have voted differently.”

Recall that the Connecticut Supreme Court ruled 5-4 that the “economic development” taking of the homes of Mrs. Kelo and her neighbors passed muster under the Connecticut and U.S. Constitutions, overturning the trial court’s post-trial judgment that the takings were invalid…

Continue Reading Too Soon Old And Too Late Smart: A Jurist Offers His Kelo Mea Culpa

Here’s a list of land use and related cases that are worth following, or that have been decided in the last year. [Cases in which we are or were involved are indicated by an asterisk]

  • The Hawaii Intermediate Court of Appeals heard oral arguments last week in the Maui Lani case, involving estoppel and height limits. The argument recording is posted here.
  • The ICA dismissed an appeal on the issue of whether the state Water Commission must hold a contested case before setting interim instream flow standards. The court dismissed the appeal for lack of appellate jurisdiction, and rejected a request for reconsideration.* [We represent Hawaii Farm Bureau Federation in the case]
  • In December, the ICA heard oral arguments in a case about whether Williamson County requires a property owner needs to seek a General Plan amendment (a legislative action) before filing suit for a taking in state

…
Continue Reading Land Use Cases Of Interest