2007

In Neighbors in Support of Appropriate Land Use v. County of Tuolumne, No. F051690 (Dec. 7, 2007), a California District Court of Appeals held that a development agreement cannot be used to avoid zoning restrictions.  The court framed the issue:

[C]an a county approve an application to devote a parcel of real property to a use disallowed by the applicable ordinance even though the county does not rezone the property to a district allowing the use, does not amend the text of the zoning ordinance to allow the use in the existing district, does not issue a conditional use permit consistent with the zoning ordinance, and does not grant a variance?  We conclude that it cannot.  Tuolumne County’s decision in this case to grant a parcel an ad hoc exception allowing a commercial use in an agricultural zoning district—an exception which was unavailable to other parcels in the same…

Continue Reading Development Agreement Not A Substitute For Rezoning

Two updates on Yamagiwa v. City of Half Moon Bay, No. 05-4149 VRW (Nov. 28, 2007), the $37 million inverse condemnation judgment about which I posted here.  In that case, the US District Court for the Northern District of California held the city liable for ataking after it caused the plaintiff’s property to flood, whichrendered it an undevelopable “wetland.”  You flood it, you bought it.

First, Gideon Kanner posts his latest comments on the ripeness argument made by the city, and a recent write up of the case in the LA lawyer’s daily paper, the Los Angeles Daily Journal. 
Professor Kanner writes about the city’s post-trial argument that the case belonged in state court under the Williamson County ripeness doctrine (federal takings claims must be brought first in state courts).  As I mentioned, the case was originally brought by the plaintiff in state court, but was removed…

Continue Reading In Ripeness Doctrine, What’s Good For the Goose is Not Necessarily Good for the Gander

In Sierra Club v. Bosworth, No. 05-16989 (Dec. 5, 2007), the US Court of Appeals for the Ninth Circuit held that the US Forest Service and Department of Agriculture did not properly determine that all fuel reduction projects up to 1,000 acres and prescribed burn projects up to 4,500 acres on all national forests in the United States were categorically exempt from the environmental impact statement process.

Tom Caso posts his thoughts on the opinion on The Opening Brief.Continue Reading Ninth Circuit Deals With Categorical EIS Exemptions

Thanks to Timothy Sandefur at PLF on Eminent Domain for calling attention to the Colorado Supreme Court’s opinion in Wheat Ridge Urban Renewal Auth. v. Cornerstone Group XXII, LLC, No. 06SC591 (Dec. 3, 2007). 

In that case, the court refused to order a redevelopment agency to condemn private property and turn it over to a developer to build a Walgreen’s store.  The court held that judges have no authority to compel an agency to take property even if the agency had entered into a contract with the developer in which it agreed to do so.  While not expressly relying on separation of powers, the court’s opinion clearly was based on its concern with preserving the agency’s discretion to condemn (or not condemn) private property.  See slip op. at 21-22.  The bottom line is that in Colorado, courts have no jurisdiction to fashion a specific performance remedy requiring the government to exercise a sovereign power.

Professor Ilya Somin calls the victory “Pyrrhic” in his analysis of the decision, suggesting the court’s “reasoning is likely to undermine property rights in the long run.”  While the opinion is often opaque and many of its premises difficult to fathom, I’m not so sure the case should be considered so poorly.  After all, the court reached a good result, although its analysis ventures into areas it need not have gone.  Continue Reading Court Has No Power to Order Government to Take Property

Just received notice of a new book published by University of Hawaii School of Law Professor Jon Van Dyke, Who Owns the Crown Lands of Hawaii.  According to the summary from UH Press:

In this engrossing work, Jon Van Dyke describes and analyzes in detailthe complex cultural and legal history of Hawai‘i’s Crown Lands. Heargues that these lands must be examined as a separate entity and theirunique status recognized. Government Lands were created to provide forthe needs of the general population; Crown Lands were part of thepersonal domain of Kamehameha III and evolved into a resource designedto support the mô‘î [king], who in turn supported the Native Hawaiian people. Continue Reading Hawaii’s Unique Property Law History

The Los Angeles Times reports “This land is their land — now,” a story out of Colorado about the ancient legal doctrine of adverse possession.  According to the story, a retired judge and his lawyer spouse trespassed on a neighboring vacant parcel of land for over twenty years and then sued for title.  And won:

“There’s a mythology of land ownership — that if you own land, you cando anything you want,” he said. Property rights are limited, he said.”This is one of those limitations: If you’re not vigilant, it could betaken.”

The law is based on a philosophy that land should be used, Denver realestate lawyer Willis V. Carpenter said. “If you don’t use it andsomeone else does, they’ll end up owning it,” he said.Continue Reading Use It or Lose It — Adverse Possession

Check out this NYT story on a $12.4m verdict in a Connecticut eminent domain abuse case. 

A vast majority of cases challenging such takings are resolved through injunctions; takings temporarily halted by court injunction are often abandoned. But because Judge DeMayo had granted New England Estates and the landowners the right to seek a claim for damages, this case took a different path: The developer and landowners took it to trial, alleging a violation of their civil rights under the takings clause of the Fifth Amendment and seeking lost profits.

Mr. Hollister, the developer’s lawyer, maintained that town officials had made up reasons to take the land simply to stave off development.

Unlike the City of New London, which exercised its power of eminent domain after a “fair, public and factual” process, Mr. Hollister said, Branford pursued a process “so unfair and distorted as to violate the Constitution.”

The jury…

Continue Reading New York Times: Judging Eminent Domain

In Action Apartment Ass’n v. City of Santa Monica, No. 05-56533 (Dec. 3, 2007), the US Court of Appeals for the Ninth Circuit sustained Santa Monica, California’s 2002 amendments to its rent control ordinance against a takings and due process challenge:

In this appeal, we are presented with a claim that Santa Monica’s rent control ordinance is unconstitutional under both the “public use” component of the Fifth Amendment’s Takings Clause and the substantive component of the Fourteenth Amendment’s Due Process Clause. We conclude that the Fifth Amendment claims are not viable, that the facial Fourteenth Amendment claim is time-barred, and that the as applied Fourteenth Amendment claim is unripe. We therefore affirm the judgment of the district court, dismissing the complaint.

Slip op. at 15619.  The court held that the case were not distinguishable from the claims in Schnuck v. City of Santa Monica, 935 F.2d 171, 172…

Continue Reading Ninth Circuit: Rent Control Ordinance Not a Taking or Due Process Violation

Visit the New Jersey Eminent Domain Law blog and read “RLUIPA, Redevelopment, and Eminent Domain,” a report about Lighthouse Institute for Evangelism, Inc. v. City of Long Branch, No. 06-1319 (Nov. 27, 2007), a recent decision by the US Court of Appeals for the Third Circuit (which covers Pennsylvania, New Jersey, Delaware and the US Virgin Islands).  This case is worthy of attention since, according to NJED, it is at odds with decisions from other federal circuits, and thus may be a candidate for Supreme Court review.Continue Reading Third Circuit RLUIPA Decision – Circuit Split?

Update: More on the case here and here.  Professor Gideon Kanner’s take on the case here.

Update 3/2008: The parties have settled.

Check out the Findings of Fact and Conclusions of Law  issued by the US District Court for the Northern District of California in Yamagiwa v. City of Half Moon Bay, No. 05-4149 VRW (Nov. 28, 2007).  No need to digest all 167-pages: the bottom line is that the court awarded a judgment of $36.8 million because the city caused the plaintiff’s property to become wetlands, and rendered it undevelopable. 

The court held that the city was liable for inverse condemnation under both California and federal law, and that the compensation to be awarded to the landowner was difference in the value of the property before the taking, compared to after.  The court also held the city liable for common law nuisance and…

Continue Reading No. Cal. Federal Court Whacks City for $36.8m Inverse Condemnation Award