April 2015

Earlier, we posted the cert petition in Hillcrest Property, LLP v. Pasco County, No. 12-846 (cert. petition filed Jan. 15, 2015), which asks the Supreme Court to review the Eleventh Circuit’s decision throwing out Hillcrest’s facial substantive due process challenge to the county’s “Right of Way Preservation Ordinance.” The ordinance allows the county to land bank for future road corridors by means of an exaction that doesn’t come anywhere near to passing muster under Nollan–Dolan–Koontz. 

Although the District Court held the ordinance unconstitutional and is “both coercive and confiscatory in nature and constitutionally offensive in both content and operation,” the Eleventh Circuit concluded that the mere enactment of the ordinance started the four-year statute of limitations clock running on a facial challenge, and that Hillcrest had waited too long to file its complaint. 

Hillcrest’s petition asks whether a facial claim is even subject to the statute…

Continue Reading On Facial Challenges, Exactions, Standing, And Statutes Of Limitations: Final Cert Briefs In SCOTUS Substantive Due Process Case

Williamson County gives everyone grief, and if you needed any more proof, here it is.  

In A Forever Recovery, Inc. v. Township of Pennfield, No. 13-2657 (Apr. 2, 2015), an unpublished opinion from the Sixth Circuit, the court upheld the district court’s award of attorneys’ fees and costs to a property owner who brought a takings claim in Michigan state court, only to see the defendant, the Township of Pennfield, remove the case to federal court and then move to dismiss the claim six days later, asserting it was not ripe under Williamson County. 

The district court rightly remanded the case back to state court, and held the Township liable for fees and costs under the removal statute which shifts fees in cases where the defendant doesn’t have an “objectively reasonable basis for seeking removal.” The court held that the Township removed only to delay the case…

Continue Reading 6th Cir Schadenfreude Alert: Municipality Liable For Fees And Costs For Removing Takings Claim From State Court

What we learned from the Federal Circuit’s opinion in Shinnecock Indian Nation v. United States, No.14-5015 (Apr. 7, 2015):

  • A $1,105,000,000 (that’s $1.1 billion and change) is the Nation’s claim in the U.S. Court of Federal Claims for what the Hamptons are worth. Slip op. at 3. Sounds about right. 
  • The Nation sued the State of New York in U.S. District Court, alleging that in the mid-19th Century, the State “enacted legislation allowing thousands of acres of the Nation’s land to be wrongfully conveyed to the government of the Town of Southampton.” Slip op. at 2.
  • USDC: case dismissed (laches, you know). Appeal to the Second Circuit remains pending.
  • Off to the CFC they went, seeking the abovementioned $1.1 billion, claiming the federal government violated its trust obligations when it failed to provide the Nation with a remedy for the misappropriation of its land (at New York’s hands).

…
Continue Reading Fed Cir: Claim That U.S. District Court Judicially Took Property Can’t Be Brought In The Claims Court

Two stories to read, in tandem:

  • In the ultimate dog-bites-man story, yesterday’s Honolulu Star-Advertiser headline reads “Home demand outweighs supply.” Well no kidding. As one fellow quoted in story said,”This is the most overstudied subject in the history of mankind … You don’t need a study to know what the numbers are. It’s time to stop studying housing and start doing housing.” The story is partially behind a paywall, but the lede sums it up: “Hawaii needs up to 66,000 homes if it expects to satisfy demand for housing over the next decade.” Increasing demand coupled with restrictive supply means, guess what – high prices and shortages. What’s responsible for the lack of housing? There’s land on which to build, but it’s infamously difficult to develop. As Professor David Callies wrote recently, Hawaii has an “increasingly well-known penchant for lengthy, often decade-long land use permitting processes” and a

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Continue Reading Guess What: Hawaii Housing Is Expensive!

We like dictionaries. A couple of them have treasured spots on our bookshelf. But we’re not all that keen on courts relying upon dictionaries to define statutory terms, because our experience is that one word could have many meanings, and just because one dictionary defines a word a certain way doesn’t rule out other meanings. And it doesn’t provide much help about what a legislature meant when it used the word. 

So we read a recent opinion issued by the California Court of Appeal, Friends of Oceano Dunes, Inc. v. San Luis Obispo Cnty. Air Pollution Control District, No. B248814 (Apr. 6, 2015) with some interest, even though the case was about California’s version of the Clean Air Act, a topic that we must confess doesn’t exactly float our boat. We liked the opinion because the court held that the trial court should not have relied on one…

Continue Reading Cal App: Never Mind What The Dictionary Says, A State Park With Sand Dunes Is Not A Man-Made “Contrivance”

A few years ago, in Gallenthin Realty Development, Inc. v Borough of Paulsboro, 191 N.J. 344 (2007), the New Jersey Supreme Court held that in order to target property for redevelopment as “blighted,” the government must show that it is in such condition that it “negatively affects surrounding areas” by promoting conditions that can develop into blight. In that case, the targeted property was mostly undeveloped wetlands, and the “blight” of which it stood accused was the owner’s failure to put it to a more intensive economic use. But that was not sufficient to support a blight finding, and the court held that the government must have done more than simply recited the standards for blight redevelopment, and declare they were met. 

We were going to do a complete write-up of the New Jersey court’s latest foray into blight and redevelopment, 62-64 Main Street LLC v. City of Hackensack…

Continue Reading New Jersey: When Designating Blight, Baby Can Be Tossed Without First Showing The Bathwater’s Dirty

Today is Good Friday, an official state holiday in Hawaii, so we’re reposting our annual recounting of how it came to be that the State commemorates the date of the crucifixion, and how that squares with the Establishment Clause of the First Amendment. 

Turns out that it doesn’t really. It’s just coincidence that the “spring holiday” occurs on the same day, and it’s plausible that the State had a secular purpose when it officially sanctified “a religious holiday observed primarily by Christians commemorating the crucifixion of Jesus Christ and his death at Calvary.” 

Or so says the Ninth Circuit.

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Pacific Business News Report On Eminent Domain And The Honolulu Rail

Continue Reading Go Shopping, It’s Hawaii’s Good Friday Holiday

It’s not often that we say a law review article is a “must-read.” But this one definitely is, especially for all you regulatory takings mavens: David L. Callies, Through a Glass Clearly: Predicting the Future in Land Use Takings Law, 54 Washburn L. Rev. 43 (2014). A pdf of the article is posted here. 

From the Introduction:

The subject of takings—the government taking of an interest in real property, either through eminent domain or through the exercise of the police power—has been the subject of continuous litigation for nearly a century. The past ten years have been particularly fruitful, as litigants struggle with the meaning and extent of the Fifth Amendment’s Public Use Clause and the extent to which the overzealous exercise of the police power can sufficiently deprive a landowner of rights in property so that the property has been “taken” by regulation, ever since Justice Holmes…

Continue Reading New Law Review Article Worth Reading: “Through a Glass Clearly: Predicting the Future in Land Use Takings Law”

131996

As we hoped it might, the Norfolk, Virginia property owner — represented by the Institute for Justice — who was on the losing side of the Fourth Circuit’s 2-1 recent opinion in Central Radio Co. Inc. v. City of Norfolk, 776 F.3d 229 (4th Cir. Jan. 13, 2015) has filed a cert petition.

In that case, the Fourth Circuit held that the above sign, erected on the owner’s building to protest a separate eminent domain action, violated the city’s sign code, and this restriction did not violate the First Amendment. The court concluded that the sign ordinance was content-neutral, even though it exempted national and religious “flags” and “emblems,” and “works of art” that do not relate to a product or service. The city lacked “censorial intent to value some forms of speech over others to distort public debate, to restrict expression because of its message, its…

Continue Reading New Cert Petition: Property Owner Should Not Be Limited To “Whispering” Anti-Eminent Domain Message

Here’s the letter request which we sent today to the California Court of Appeal, Second Division, asking the court to publish its recent opinion in Brost v. City of Santa Barbara, No. B246153 (Mar. 25, 2015). In our post about the case, we wrote “we hope there’s a motion to publish and that the court grants it. This case should be citeable as precedent.”

But as a colleague reminded us, a request to publish an opinion isn’t limited to just the parties to the case, and the California Rules of Court provide that “any person” may ask the court to publish an unpublished opinion, and we certainly fit that description. So today, we — along with our colleagues at Owners’ Counsel of America — wrote to the court that the Brost decision is significant (among other reasons) because it correctly applies the futility exception to takings ripeness, and…

Continue Reading Recent California Court Of Appeal Regulatory Takings Opinion Should Be Published