April 2017

Remember back from Admin Law the notion of a “quasi-judicial” proceeding? That term always has bugged us, because, you know, it was used when an agency was sorta acting like a court (but also was sorta acting like a legislative body). Half full, half empty, take your pick. 

The fact pattern presented in the Florida District Court of Appeals’ opinion in Highland-in-the-Woods, LLC v. Polk County, No. 2D15-2801 (Apr. 28, 2017), involved the other side of that coin, an exaction the County argued was legislative even though imposed by an agency, and therefore off-limits to the exactions test of Nollan-Dolan-Koontz. (We think distinctions like this don’t matter — that whether or not its a legislature or an agency that is making a demand that in order to make use of your property, that you have to give up a constitutional right — but we recognize that the…

Continue Reading Fla App: A Sorta-Legislative Exaction Is Subject To Nollan-Dolan, But This One Passed The Test

Here’s the cert petition, recently filed, which asks the U.S. Supreme Court to review a decision of the North Carolina appellate courts. We say “appellate courts,” because the decision being reviewed is one from the N.C. Court of Appeals, because the N.C. Supreme Court, after granting discretionary review, punted and dismissed the appeal after it was fully briefed and teed up for oral arguments.

What happened that cause the court to dismiss? Who really knows the internals, but the one thing we do know is that some members of the court changed due to a judicial election. We know the above because we were watching the case closely; we filed an amicus brief in support of the property owner in the N.C. Supreme Court, a brief that apparently didn’t get read (not that amicus briefs get read all that frequently anyway, but you get our drift).

The case is…

Continue Reading New Regulatory Takings Cert Petition: Legislature Can’t Simply Declare Private Property To Be Public

Here are the full set of petitioner-side amici briefs in 616 Croft Ave., LLC v. City of West Hollywood, No. 16-1137, the case which asks the Supreme Court to determine whether the Nollan-Dolan-Koontz exactions standards apply to conditions on development imposed by a legislature. 

The City waived response, but the Court asked for one. This could get interesting, so stay tuned. 

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Continue Reading SCOTUS Amici Briefs In Legislative Exactions Case

Here’s one for all you appellate lawyers and appellate wannabees looking for more experience: the Hawaii Supreme Court last week entered an order making the experimental Pro Bono Appellate Project permanent, “in light of the project’s accomplishments since its inception.” 

This is a good thing, and the Project helps by matching “financially deserving pro se litigants in matters on appeal” with appellate counsel. Count us among the participants (we recently represented pro bono a petitioner in an election law case, which resulted in this opinion).

We will continue to participate in the pool of lawyers, and thank Volunteer Legal Services Hawaii for keeping tabs on the cases and the litigants, and to colleague Rebecca Copeland for taking the initiative to get the project off to a great start. 

Order, In re Hawaii Appellate Pro Bono Pilot Project, No. SCMF-15-0000566 (Haw. Apr. 19, 2017) 

Continue Reading Appellate Nerd Alert: Hawaii SCT Makes Appellate Pro Bono Program Permanent

Not a lot in Jabary v. McCollough, No. 15-40009 (Apr. 19, 2017) to grab onto, so we’re not really surprised that the Fifth Circuit didn’t publish. But because the case involves Williamson County takings ripeness and is in our wheelhouse, we’re posting it nonetheless.

The first two sentences, “City building inspector Bret McCullough shut down Mike Jabary’s hookah lounge. He did so by leaving a notice on the door of the establishment that summarily revoked Jabary’s certificate of occupancy and informed him that he was violating the city code by doing business without the certificate” give you a clue that this is a procedural due process case as well as a takings case. Jabary met with success with his due process challenge (the district court denied the building inspector’s motion for summary judgment on immunity grounds, after which the inspector appealed), and, predictably, the district court held that Jabary’s…

Continue Reading 5th Cir (Unpub) – Takings Claim Not Ripe

Here’s the amicus brief filed yesterday by the National Federation of Independent Business Small Business Legal Center, joined by Owners’ Counsel of America, in a case we’ve been following.

This case asks the Court to resolve a big outstanding issue: are legislatively-imposed exactions (however that term is defined) subject to the same high level of scrutiny under the Nollan–Dolan–Koontz test as are administratively-imposed exactions? 

Our brief argues:

The Respondent, City of West Hollywood (“City”), forces property owners into the same unconstitutional dilemma which faced James and Marilyn Nollan, Florence Dolan, and Coy Koontz. Nollan v. California Coastal Comm’n., 483 U.S. 825 (1987); Dolan v. City of Tigard, 512 U.S. 374 (1994); Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586 (2013). Specifically, the Petitioners were forced to choose between their fundamental rights to either (a) obtain just…

Continue Reading SCOTUS Amicus Brief: Lawless Legislatures Should Be Treated The Same As Lawless Zoning Boards

The Pennsylvania DOT wanted to take a part of the Szabos’ property. Fine. But when it filed the declaration of taking, the DOT wasn’t as careful as it should have been, and the plans which it submitted with the declaration noted “[s]ome property lines were labeled as ‘probable [sic] correct.'”

Good enough for DOT, but not good enough for the Szabos, who hired a surveyor. The survey confirmed that indeed, DOT “misidentified” a part of the Szabo property as belonging to someone else. Thus, DOT’s plans “understated the amount of property owned by the Szabos taken as part of the condemnation. Therefore, the Department condemned more of the Szabos’ property than the Declaration indicated.”  

They told the DOT, but it didn’t listen. So they sought an evidentiary hearing to determine the nature and extent of the property taken. The trial court said no, and the Szabos appealed.

DOT argued…

Continue Reading “And The Survey Says…” Condemnor Sloppiness Will Not Be Tolerated

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Here’s what we’re reading today:

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Continue Reading Monday Reading: Pirates (Twice), Monet Land Use Pilgrimage

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 we don’t really commemorate today as the crucifixion date, and it is just coincidence that the official State “spring holiday” occurs on the same day.

It’s plausible, isn’t it, 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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Continue Reading Go Shopping, Hawaii, Today’s The Secular Good Friday State Holiday (According To The Ninth Circuit)!

The Indiana Court of Appeals’ recent opinion in Town of Clear Lake v. Hoagland Family Ltd. P’ship, No. 76A05-1606-PL-1241 (Apr. 6, 2017), doesn’t really involve inverse condemnation, except in the background. But we found it interesting nonetheless, because of the way the opinion finishes up, with a plethora of potty puns.

The case involved the town’s attempt to convince a local property owner to abandon his septic system, and connect to the town’s sewer system. At first the town tried cajoling, bargaining, and trying to entice hook up. It laid down pipes beneath the land, it passed ordinances requiring connection. But the owner, for whatever reason, said no. Indeed (and here’s the inverse condemnation connection), he sued the town for inverse condemnation when it put the pipes beneath his property (they eventually settled). Finally, the town sued those who had not connected to the sewer system, including Hoagland, and…

Continue Reading Indiana App: Hook Up To City’s Sewer System…Or Else! (Warning, Toilet Puns)