Vested rights

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If there’s a money quote in yesterday’s opinion by the Supreme Court of Nevada which “wholly affirm[ed] a trial court judgment awarding $48 million in just compensation for Las Vegas’s regulatory taking in City of Las Vegas v. 180 Land Co., LLC, No. 24-13605 (Apr. 18, 2024), it might just be this sentence:

Although the City rejected 180 Land’s development proposals, its representatives had previously recognized the site’s ability to be developed residentially.

Slip op. at 8.

That alone should tell you where this one is ultimately headed. But let’s break it down and see how this got there.

Residential PUD Zoning

It started off well for the property owner, who owned land it wanted to use as a golf course, part of a (much) larger 2,200 acre ranch. The city preliminarily approved a request to zone the proposed golf course for residential PUD (planned unit development – which…

Continue Reading $48 Million The Hard Zoning Way: Thanks To NIMBYs And NIMTOOs, Las Vegas Must Pony Up A Lucas Takings Judgment

This one takes a bit of sifting through, but if you do so, you will eventually savor the arguments. Try and follow this thread.

In 2014, pistachio growers with what seemed to be established rights to pump groundwater for irrigation of their trees and who never had to pay fees or were subject to other governmental regulation, were subject to the newly-adopted Sustainable Groundwater Management Act. This statute, designed to manage groundwater, empowers local groundwater agencies to create management plans and the typical things that such regulatory agencies do.

In the course of determining the “sustainable yield” of the groundwater basin that supplies the pistachio growers’ water, the local agency purported to determine the rights of various users relative to each other. The agency concluded that “public pumpers” have entitlement to 100% of the native groundwater, the pistachio growers’ preexisting water rights notwithstanding. If the pistachio farmers wanted to pump…

Continue Reading Pay To Play? Cal SCT Asked If Challenger Must First Pay A Fee To Object To Zero Water Allocation As A Taking

Illinois adopted a statute that tweaked public pensions:

On January 1, 2020, Public Act 101-610 became effective and amended, in pertinent part, portions of the pension code to consolidate all applicable local police and firefighter pension fund assets into two statewide pension investment funds, one for police and the other for firefighters. Pursuant to the Act, the local pension funds were required to transfer custody and investment responsibility for their fund assets to the respective statewide funds, which are now tasked with collectively investing and administering the pooled assets. The Act provided a transition period that ended on June 30, 2022, for the transfer of securities, assets, and the investment function from the local funds to the statewide investment funds.

There’s more detail on the statute in the Illinois Supreme Court’s opinion in Arlington Heights Police Pension Fund v. Pritzker, No. 129471 (Jan. 19, 2024), but we’ll leave those…

Continue Reading No State Takings Problem In Amending Public Pension Plan

Here’s the latest in a case we’ve been following.

In this Order, the U.S. District Court for the District of Hawaii made permanent its earlier ruling that Honolulu’s ordinance which expanded the minimum rental term to 90 days because it did not account for those owners who were already legally renting their properties for 30 days. The state Zoning Enabling Act requires zoning ordinances account for preexisting uses.

We covered the issues and the court’s preliminary injunction ruling here, and won’t go over those again. About the only difference between that one and this one is that the court rejects the City’s “several new legal arguments[,]” including Pullman abstention, and the claim that this isn’t a zoning ordinance covered by the ZEA, but rather a “rental regulation.” See slip op. at 10.

The City’s attempt to reframe the issue first presented during preliminary injunction proceedings more than a…

Continue Reading Hawaii Federal Court: Honolulu Can’t Increase Minimum Rental Term To 90 Days Without Accommodating Existing Uses

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Starting in January, we’ll be helping our friend and former law partner Mark M. Murakami with the venerated and oh-so-important Land Use course (Law 580) at the University of Hawaii’s Law School.

We’re temporarily stepping into some mighty big slippers (this is Hawaii, so we don’t always wear shoes), as this is the course that our mentor Professor David Callies taught for decades. And is there a better venue in which to teach and study land use law and regulation, and its limits? After all, Hawaii may be the most heavily-regulated land on the planet, and is a focal point for every issue you can think of, from zoning to environmental restrictions to takings to public trust to subdivision to admin law to … well, you get the drift.

We’ll cover those topics, as well as the fundamentals. And we have a few surprises up our sleeves — some impressive…

Continue Reading Hawaii Five-80: More Land Use (Law 580) At The University Of Hawaii

Like a lot of us, Ball State University student Keller Mellowitz didn’t care for “remote” or “Zoom” virtual classrooms which were imposed on us in varying degrees during the Co-19 thing.

But he didn’t take it lying down. Believing that remote learning wasn’t what was promised to him in return for his tuition dollars, he sued the University for breach of contract and unjust enrichment. He was fighting the fight for not just himself: he brought the claim as a class action on behalf of his fellow students similarly deprived.

Not to allow that sort of thing, the Indiana legislature adopted a statute — applicable retroactively — that prohibits class actions against “postsecondary educational institutions for contract or unjust enrichment claims to recover losses stemming from COVID-19.” In response, the trial court limited Mellowitz’s claims to those only on his own behalf, and not on behalf of the class…

Continue Reading Indiana: Depriving Litigant Of Ability To Bring Class Action Challenging Co-19 Zoom Classes Isn’t A Taking

A quick one from the Alabama Supreme Court. In Dixon v. City of Auburn, No SC-2022-0741 (Oct. 27, 2023), the court rejected a property owner’s claim that the city outlawing short term rentals of residential properties — when the plaintiff had been renting his basement for a while — was not a violation of the Alabama Constitution.

The court rejected the argument that Dixon’s use was a nonconforming use or vested right, and concluded that his right to do so was not so because he had no legal right to rent out his property before the STR ordinance. The court rejected his claim that in the absence of regulations limiting that right, he could rent short term, because the zoning code prohibits any uses not expressly allowed. Slip op. at 10.

And here’s the interesting bit. Although Dixon styled one of his claims as “an ‘unlawful taking without just …

Continue Reading Alabama: Banning Short-Term Rentals Is Constitutional (PS – “the Alabama Constitution does not recognize regulatory-takings claims”)

In Van Sant & Co. v. Town of Calhan, No. 22-1190 (Oct. 13, 2023), the U.S. Court of Appeals for the Tenth Circuit considered the claim of the operator of a mobile home park who asserted a due process property right to instead use its property as a RV park. Here’s why the court said no.

Van Sant was using its property as a mobile home park. It decided to use its land instead as a RV park. Turns out that the local municipality doesn’t much care for RV parks — or at least the way that Van Sant was going to use its property — so the Town shifted from a regime that didn’t regulate RV parks to a regime that prohibited or tightly controlled RV parks on certain lands (lands that looked an awful lot like Van Sant’s). And to cap it off, the Town’s new regulations…

Continue Reading CA10: Absence Of Restrictions On Land Uses Isn’t A Due Process Property Right

Why is it, you ask, that the ALI-CLE Eminent Domain & Land Valuation Litigation Conference (scheduled next February 1-3, 2024, in New Orleans) is an event that seems to be growing in popularity and attendance. In recent years, we have standing room only in the Conference halls, and have sold out the hotel block. After all, this is a pretty niche area of law. So what gives?

When we were in Austin earlier this year, we thought it might be nice to try and answer that question. We asked Conference participants why they come, year-after-year (and in Austin, despite massive travel disruptions). Yes, it is the various venues (Nashville, Austin, Scottsdale, Palm Springs, to name a few recent locations), and yes, it is the excellent and useful programming.

But as we suspected it is more than that. As the above video notes…

Continue Reading ALI-CLE’s Eminent Domain & Land Valuation Litigation Conference (Feb 1-3, 2024, New Orleans): Why Attend? Here’s Why.

The voters of South Lake Tahoe, California, adopted an ordinance that forbade the city from issuing short-term rental permits for properties in residential zones unless the owner was a permanent resident of the city, and declared that all short-term rental permits would expire three years later. The trial court granted the city summary judgment on all claims raised by an association of property owners who rented short-term. 

In South Lake Tahoe Property Owners Group v. City of South Lake Tahoe, No. C093603 (June 20, 2023), the California Court of Appeal mostly agreed, holding that the owners’ vested rights and state law preemption claims did not survive. But the court disagreed with the trial court’s dismissal of a (dormant) Commerce Clause challenge to the residency component. As noted in this recent Fifth Circuit decision, local ordinances that discriminate between residents and non-residents are (or at least could be) too…

Continue Reading Cal Ct App: Prohibition On Short-Term Rentals Might Have A Commerce Clause Problem