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Breaking News: Come Join Us For The 42d ALI-CLE Eminent Domain & Land Valuation Litigation Conference, San Diego, Jan 30-Feb 1

With our tongues firmly planted in cheeks, the Planning Chairs for the upcoming 42d edition of this popular and venerable Conference bring you this "breaking news" report from San Diego!

As you know, in addition to being the best nationally-focused conference on the subjects that we love and a venue that is nearly certain to have some of the warmest winter weather in the continental United States, and we went on-location from some of the local highlights: the beaches, Torrey Pines, the Zoo, Balboa Park, the Gaslamp Quarter, and Coronado to name but a few.

More about the Conference here, including registration information.

Here are some of the highlights:

• Property Rights at the Supreme Court: DeVillier and Sheetz and What's Next
• Slow Take: Possession, Rent, Relocation, and Offset
• The Jury's View: How Jurors See Your Case
• From Penn Coal to Penn Central: How to Prove "Too Far"
• Leveraging Expertise in Eminent Domain Litigation: Working with Land Planners, Engineers, and Other Predicate Experts
• Kelo at Twenty: What Changed, What Didn't, and What's on the Horizon
• Viva Las Vegas: How the Nevada Judiciary Upheld Property Rights in 180 Land's Inverse Condemnation Taking
• Ethics: Guiding the Trolley: Perspectives on Professional Ethics in Eminent Domain for Lawyers, Appraisers, and Right of Way Agents
• "I Think I Shall Never See" Just Compensation For a Tree: Strategies to Securing Recovery for Trees, Crops, and Fixtures

And more. Check out the complete agenda here. Registration information here. 

We especially welcome first-time participants, or those returning after an absence. Connect (or reconnect) with your colleagues from across the nation.

The 41st Conference was in New Orleans. Here's a report of that event, and here are our reports from prior conferences in Austin and Scottsdale.

Don't miss out on San Diego: we have had record attendance in recent years, so hold your space now. #EminentDomain2025

(Un?)Happy Euclid Day!

98 years old, and still going (for better or worse)

On this day in 1926, the United States Supreme Court issued its landmark opinion in Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (Nov. 22, 1926).

You know this one (and can you call yourself a dirt lawyer if you don't?). It's the one in which the Supreme Court first upheld -- against a facial due process challenge -- the validity of this thing we call "zoning." While in the intervening century, zoning has become a catch-all term for all sorts of regulatory restrictions on the uses of real property, land users know that "zoning" -- ackshually -- refers only to the regulation and separation of uses, and restrictions on density, and height regulation. At least that's how it began.

While "Euclid" and "Euclidean zoning" have become part of the land use lexicon and landscape, the decision might have been seen at the time as somewhat surprising. After all, the Supreme Court was in the height of the so-called Lochner era, when it might have been expected to get the legal vapors over these type of restrictions on economic liberty and property. In an era when the Court was more aggressively policing the police power, for it to uphold, even generally, the validity of zoning restrictions, might not have been expected.

And perhaps even more surprisingly, the opinion was authored by none other than Justice George Sutherland, one of the notorious Four Horsemen who would later regularly vote to invalidate similar New Deal legislation.

But Sutherland and the Court went the other way on this "zoning" thing, applying what later became known as the rational basis standard of review. Fairly debatable? No sweat. Who are we, mere judges, to say otherwise?

What accounts for that? Some have noted that the "Bettman Brief," a late-filed amicus (submitted after oral argument) on behalf of the National Conference on City Planning and others, held sway. The dots are not that difficult to connect -- much of the language and imagery in the Euclid opinion such as the "parasitic" nature of (horrors!) apartments -- comes straight out of the Bettman brief. And it also isn't that hard to connect the dots between a facially-neutral tool of exclusion like zoning, and the Supreme Court's then-recent rejection of express racial discrimination in local land use regulations (we're talking Buchanan v. Warley, 245 U.S. 60 (1917)).

But despite those roots, with a few hiccups along the way -- a mere four year later, pretty much the very same Court held in Nectow v. City of Cambridge, 277 U.S. 183 (1928) that, as applied to a specific parcel, Euclidean zoning was arbitrary and capricious and violated a property owner's rights, with the very same Justice Sutherland authoring the opinion -- zoning has been widely accepted around the nation (except, most notoriously, in Houston, which has opted for a more ad hoc, less comprehensive plan-based form of use regulation), with the courts doing little to stand in the way.

These days, however, there's a renewed focus on Euclid and zoning's troublesome roots. Thus, our title's "un" headline. But even as we reckon with that history, zoning chugs along towards the century mark.

Let's see what the next two years might bring. In the meantime, we're going to recognize Euclid's birthday. Whether it is a happy one is subject to change.

Euclid is literally a landmark decision.

Brief Amici Curiae of National Conference on City Planning, Village of Euclid v. Ambler Realty Co., No. 25-...

 

 

Links From Today's ABA Land Use Session

Here are the cases and other materials we discussed in today's Section of State & Local Government Law Land Use group meeting on takings:

• By The Thinnest Of Margins, SCOTUS Declines Public Use Pretext "Spite Taking" Case
• SCOTUS Declines To Review NYC Rent Control Challenge
• Sheetz pt. I - "Radical Agreement" At SCOTUS: "Your Money Or Your Rights" Isn't OK Just Because A Legislature Does It
• In DeVillier v. Texas, The Winner Takes It All
• Unanimous SCOTUS: "state law cannot be the only source" Of Property Rights, And "traditional property law principles" As Enforced By The Takings Clause Play A Role
• "Final decision" ripeness incentivizes government to be opaque, and avoid saying no.
• Texas takes a more practical (and realistic) approach to takings ripeness: City of Buda v. N.M. Edificios and City of Kemah v. Crow
• New Cert Petition: Does The Obligation To Provide Just Compensation Waive Sovereign Immunity?
• Inverse liability for wildfires?
• New Law Review Article: John Groen, "Takings, Original Meaning, and Applying Property Law Principles to Fix Penn Central," 39 Touro L. Rev. 973 (2024)
• Yee v. Escondido and physical occupation takings lower court split: CA8: Yee v. Escondido Doesn't Save Eviction Moratorium From Takings Review and CA9: No Physical Commandeering In Eviction Moratorium Because Yee Says "You Let The Tenants In, So You Can't Complain About Keeping Them (For Free)"
• Florida Appeals Court: TDRs, Beekeeping, And Camping Are Not Economically-Beneficial Uses, So Downzoning Is A Lucas Taking

PS: If you are not a member of the Land Use group, you really should be. We summed up the reasons why here.

The Old "Neighborhood Character" Trope Dressed In Environmental Clothing

Justice Sutherland asks:
whadda mean, you don't like apartments?

Check out this uncharacteristically-lengthy opinion from New York's Appellate Division (and entire 6 pages!).

In Bennett v. Troy City Council, No. CV023-0709 (Oct. 24, 2024), the court invalidated a municipal upzoning (from single-family residential to Planned Development -- which would permit apartments) because the city's conclusion that the zone change would have no significant environmental impact under New York's study-and-disclose statute.

Not content with apartments coming to the neighborhood, an adjoining owner, the "coufounder of The Friends of the Mahicantuck," sued to challenge the negative environmental declaration. Under New York's environmental study-and-disclose statute, the "environment" may include such things like historic or archaeological resources, and similar. 

Zoning and rezoning is generally subject to deferential judicial review under Euclid, with the courts applying rational basis review and generally taking a hands-off approach. But this was not a Euclid-like challenge arguing that the upzoning was arbitrary and capricious. The environmental statute empowered the court to delve into the record, and determine for itself whether the city's negative declaration had a sufficient factual basis and the city had applied the required scrutiny to those facts.

Short story: it didn't:

In view of the site's significant archaeological history, and the omission of the Stockbridge-Munsee Community as a consulting party in formulating any required data retrieval plan, we find that respondent failed to take the necessary hard look at the significant environmental impact expected from the project by issuing a negative declaration.

Slip op. at 5.

The challengers also brought a spot zoning claim which the court rejected by applying the rational basis/fairly debatable test:

While the project certainly differs from the existing single-family zoning, it does maintain a residential use and would establish a multi-use trail along the shoreline opening public access to the Hudson River. The initial rejection of the proposal by the Planning Commission is relevant to this compatibility question (see Matter of Save Our Forest Action Coalition v City of Kingston, 246 AD2d 217, 221 [3d Dept 1998]), but the record was expanded by the EDP October 2021 report prior to respondent's determination. Under these circumstances, where the question of compatibility is "fairly debatable," we conclude that petitioner did not meet her burden of demonstrating that the zoning amendment constituted illegal spot zoning (Matter of Evans v City of Saratoga Springs, 202 AD3d at 1324 [internal quotation marks and citations omitted]; see Matter of Heights of Lansing, LLC v Village of Lansing, 160 AD3d 1165, 1169 [3d Dept 2018]).

Slip op. at 6.

The presence of the spot zoning claim tells us that this was not, at heart, a true environmental challenge but more NIMBYs who don't want apartments ruining the character of their neighborhood who found a way to dress up those objections in environmental clothing.

Bennett v. Troy City Council, No. CV-23-0709 (N.Y. App. Div. Oct. 24, 2024)

Call For Papers: "Housing and Exactions: The Next Frontiers After Sheetz"

Our outfit (Pacific Legal Foundation) has put out a call for papers. on the topic of land use exactions and housing law. Honorarium included for accepted papers, and there will be a workshop to follow.

Here's the description:

This workshop seeks to build on the result of Sheetz v. County of El Dorado and chart the course of the next steps in exactions/unconstitutional-conditions law. From Nollan v. California Coastal Commission, through Dolan v. City of Tigard and Koontz v. St. John’s River Water Management District, and now including Sheetz, the Supreme Court has looked to the doctrine of exactions and unconstitutional conditions to ensure property rights are protected. In doing so, it has created a constitutional bulwark protecting the right to build housing on private property, an important stick in the property rights bundle.

The Supreme Court’s unanimous decision in Sheetz held that legislatively-imposed development-fee schedules are subject to judicial scrutiny under the doctrine of unconstitutional conditions. This ruling promises to change how local and state governments extract development impact fees from property owners in exchange for building permits; and it may very well do more. This is where you come in.

We seek papers that address the questions arising from the Sheetz ruling. We welcome proposals that look at this issue from legal, economic, political, historical, and related angles, including empirical and nonempirical approaches.

Some possible topics:

• Must a permit condition imposed by a legislative body on a category of properties be tailored with the same degree of specificity as a permit condition that targets a particular single development to be constitutional?
• An article exploring the Sheetz concurrences by Justices Neil Gorsuch and Brett Kavanaugh offering different arguments about the need for legislative exactions to be tailored.
• Beyond the analysis of Koontz, is there a basis in constitutional text, history, and/or case law for holding stand-alone impact fees (as opposed to in-lieu fees) subject to the doctrine of unconstitutional conditions?
• How does the requirement that the government “make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development” work when evaluating a generally imposed legislative exaction?
• What does “essential nexus” require to be constitutional?
• Are there economic models that prove or disprove the claim that inclusionary zoning meets the nexus requirement of the Nollan-Dolan-Koontz-Sheetz exactions test?
• Does inclusionary zoning create meaningful workforce and affordable housing?
• Alternatively, does inclusionary zoning have a negative impact on the production of affordable housing? Empirical studies of communities with inclusionary zoning policies in place could yield meaningful information if studied.
• Do all inclusionary-zoning schemes rely upon Kelo v. City of New London, and if they do, then would the right inclusionary-zoning challenge have the promise of overturning Kelo?
• How have states limited local government’s ability to legislatively impose fees on developers, and is there empirical evidence of more and cheaper housing in the states with those limits?
• True or false: The weaker the nexus, the more difficult it will (or should) be for the government to establish proportionality.
• How do impact fees affect housing supply and affordability? What is the tradeoff between property taxes and fees?
• How can YIMBYs incorporate the Sheetz decision into their work and build from it to successfully encourage communities to build more housing?
• Besides inclusionary-zoning fees, are there other government-imposed fees on builders and developers that may violate the nexus prong of the Nollan-Dolan-Koontz-Sheetz test? What are they and why is there a lack of nexus between the fee and the demand?

Fertile grounds for exploration.

Details here, including deadlines. Check it out, and then submit a proposal.

Book Launch Event, Aug 13, 2024: Jim Burling, "Nowhere to Live: The Hidden Story of America's Housing Crisis"

If you are in the California Southland (or plan to be in the next week), please be sure to reserve on your calendar Tuesday, August 13, 2024, to join us in-person for the launch of our colleague Jim Burling's forthcoming book, "Nowhere to Live: The Hidden Story of America's Housing Crisis."

Here's a blurb about the book, which is available for preorder on Amazon:

A century of policy mistakes ruined America’s cities and created an unprecedented housing crisis.   
 
For many families, homelessness is no longer someone else’s problem. It is right around the corner, a real threat in their own immediate future. Our housing crisis is the result of a long history of government policies, court cases, and political manipulation. While these disparate causes make up a tangled web, they have one surprising root: the attack on private property rights. For more than a century, government policies and court decisions have attacked, undermined, and eroded private property rights. Whether it be exclusionary zoning, eminent domain abuse, rent control, or excessive environmental regulations, the cumulative impact of these assaults on private property is that it’s become increasingly difficult—or even impossible—to build adequate housing supplies to meet market demands. We are fast approaching a time when millions of typical Americans will, quite literally, have nowhere to live. 

Nowhere to Live: The Hidden Story of America’s Housing Crisis, takes readers through the history of how we got here. With stories going back to the Civil War, the early twentieth century, and the ill-fated “urban renewal” movement of the 1950s, Nowhere to Live reveals how the government layered mistake upon mistake to create the current crisis. It also provides a way out: not by government fiat, but through the restoration of private property rights.  

The event will take place at the Pacific Club in Newport Beach, California, from 6:00-8:00 p.m., on Tuesday, August 13, 2024. It will feature Pacific Legal Foundation President Steven Anderson, and national zoning expert Nolan Gray, and, of course, Jim. The event will feature an open bar and is free. Register here.

Come, join us and learn and celebrate!

New Article - "Sheetz v. County of El Dorado: Legislatures Must Comply with the Takings Clause" (Brian Hodges & Deb La Fetra)

Check this out: our Pacific Legal Foundation colleagues (Brian Hodges and Deborah La Fetra we on our Sheetz SCOTUS team), have posted a new scholarly piece on SSRN, "Sheetz v. County of El Dorado: Legislatures Must Comply with the Takings Clause."

Here's the Abstract:

For more than 30 years, the Supreme Court has recognized that building permit conditions requiring a dedication of property to the public implicate the Fifth Amendment’s Takings Clause and are therefore subject to the unconstitutional conditions doctrine as set out by Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994). But for nearly as long as the Nollan/Dolan doctrine has been in place, state and lower federal courts have divided on the foundational question of whether the doctrine applies equally to all branches of government, or if it applies only to administrative exactions imposed by agencies on an ad hoc basis. See, e.g., California Bldg. Indus. Ass’n v. City of San Jose, 136 S. Ct. 928, 929 (2016) (Thomas, J., concurring in denial of certiorari) (acknowledging a decades-long split of authority); Parking Ass'n of Georgia, Inc. v. City of Atlanta, 515 U.S. 1116, 1117-18 (1995) (recognizing that the split of authority raises an important question of constitutional law).

The United States Supreme Court’s unanimous decision in in Sheetz v. County of El Dorado settled this split of authority by ruling that the unconstitutional conditions doctrine applies to all branches of government, including the legislature. 601 U.S. 267, 280 (2024). Although the holding drew support from the full Court, the opinion drew three concurring opinions commenting on additional questions may need to be determined on remand or in future litigation. Id. at 280-84.

This article reviews the state of the law regarding Nollan/Dolan’s special application of the doctrine of unconstitutional conditions both before and after the Sheetz case and discusses the questions posed by the concurring opinions—i.e., whether an impact fee is an exaction subject to Nollan and Dolan and whether class-based exactions should be held subject to the same heightened scrutiny, “essential nexus” and “rough proportionality” tests as all other exactions. The article then discusses the decision’s implications on other emerging takings issues, including whether sovereign immunity can bar property owners’ recovery of just compensation and the cognizability of judicial takings claims.  

Download the article here.

Highly recommended.

California SCT To Review Major Challenge To Coastal Commission's Claimed Power To Overrule Local Govt's Housing Approvals

Disclosure: this one is one of ours, so we're not going to do a deep dive or do much commentary (must resist!).

Yesterday, the California Supreme Court granted a Los Osos property owner's petition, and agreed to review an (unpublished) Court of Appeal opinion which held that the California Coastal Commission has the authority to appeal (to itself!) the County of San Luis Obispo's decision to grant Shear a Coastal Development Permit to build a handful of homes in the coastal zone.

The County has adopted a Local Coastal Program ordinance regulating development in the coastal zone in the County. Under the California Coastal Act, a municipal government adopting a LCP delegates to the municipality to authority to make these type of land-use permitting decisions, with a very limited window for the Commission to inject itself. The point of the Coastal Act is to maintain a high degree of local control if a municipality has taken the effort to adopt an LCP to reflect its understanding of its obligation to protect public coastal resources when it is making land-use decisions.

In 2003, Shear began the process of building homes on its eight lots zoned by the County for residential development. In 2004, the County approved Shear building eight homes in two stages. In 2017, after Shear completed the first four homes, it sought the County’s approval to complete the balance. After consideration of Shear’s plans under the LCP, the County granted a Coastal Development Permit.

That should have been the end of it. But after the County’s approval, the Commission appealed the County's decision. And to whom did the Commission appeal? In one of the weirdest procedures we've ever heard of, California law allows two members of the Commission to institute an appeal these kind of things...to the very Commission on which they serve. Seems fair (must resist!). Despite the Coastal Act delegating exclusive land use decision-making to local governments that have adopted an LCP, the Commission's appeal claimed that it has the power to overrule all local permitting decisions.

The lower courts agreed. With the County's support, Shear sought discretionary review, and the California Supreme Court said yes.

This case is important for a few reasons beyond the legal questions presented. First, it is the first case in a decade where the California Supreme Court has agreed to review a challenge to the Commission's claimed coastal fiefdom, which appears nearly armor-clad in California's courts (although the Commission's excesses don't play all that well when courts beyond California bother to look).

Second, not only is this a home rule issue about the Commission's lack of respect for local LCP municipalities, but one where coastal property owners need to understand clearly who they need to deal with when seeing government approvals to make presumptively reasonable use of their land (remember, this property is zoned for residential uses); the Commission's position that it is the final czar on all this stuff often puts landowners in the middle of these type of intra-government jurisdiction fights where the only loser at the end is the landowner (flashback to two wolves and a lamb voting on what's for dinner). 

Finally and maybe most importantly, this case brings into sharp focus the ongoing public realization that the Commission has been a substantial impediment to coastal communities carrying their fair share of addressing the housing crisis in California. For example:

• California coastal protections versus housing: The battle is on (SF Chronicle)
• My house of my beach? How California's housing crisis could weaken its coastal protections (Cal Matters)

Will the California Supreme Court bring the Commission back in conformity with the law?

Congratulations to our colleague Jeremy Talcott (who chairs our Coastal Initiative) for the petition grant. Stay tuned here for more. Or follow along on your own on the court's docket. 

Petition for Review, Shear Dev. Co., LLC v. Cal. Coastal Comm'n, No. S284378 (Cal. Apr. 2, 2024)