January 2008

Thanks to Patty Salkin’s Law of the Land blog for summarizing the recent Supreme Court of Nevada opinion in Hsu v. County of Clark, No. 46461 (Dec. 27, 2007).  Read Professor Salkin’s summary or the opinion itself for the complete details, but these are the facts in a nutshell:

The county enacted building height restrictions on property around the Las Vegas airport.  A property owners within the zone brought an inverse condemnation action, asserting the height restriction imposed a physical occupation of their airspace, and that the ordinance was a per se regulatory taking.  In an unpublished order, the Nevada Supreme Court held that a per se taking did not occur, and that the applicable analysis was under the Penn Central test [Penn Central Trans. Co. v. City of New York, 438 U.S. 104 (1978)].  On remand, the trial court dismissed, and the property owner again appealed.…

Continue Reading Nevada SCT: Upon Further Review, It’s a Per Se Regulatory Taking

After Lingle v. Chevron, U.S.A., Inc., 544 U.S. 528 (2005)informed us that the “substantially advance a legitimate state interest”test was one of substantive due process, not regulatory takings, the courts began revisiting the long-neglected topic of substantive due process in the land use context. 

  • The Ninth Circuit finally jettisoned the Armendariz v. Penman, 75 F.3d 1311 (9th Cir. 1996) (en banc) doctrine in Crown Point Development, Inc. v. City of Sun Valley, 506 F.3d 851 (9th Cir. Nov. 1, 2007).  Armendariz stood for the unusual proposition that a propertyowner’s claim for violations of substantive due process rights were”subsumed” within the owner’s claim for violation of the TakingsClause.  Thus, in land-related issues, a property owner could onlybring takings claims.  No longer, as I wrote here.

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Continue Reading 2007 in Review: Taking Substantive Due Process Seriously Again

The Maui News reports “Vacation rental group planning to appeal ruling” —

The Maui Vacation RentalAssociation will appeal U.S. District Judge Michael Seabright’sdismissal of its suit against Maui County to the 9th Circuit Court ofAppeals.

President David Dantes said Wednesday that the association had retaineda land use legal specialist, Robert Thomas of the Honolulu firm DamonKey Leong Kupchak Hastert, to handle the appeal.

He said that if the association wins its point and if the appeals courtin California should remand the case to the Honolulu court, theassociation might have Maui lawyer James Fosbinder handle the renewalof the suit.

Seabright dismissed most of the association’s claims but left open anoption of amending the complaint to allege civil rights violations.

Complete article here.  We posted about this case earlier here.

Continue Reading How Appealing

Several cases focused on the issue of due process notice in eminent domain.  In Divine v Town of Nantucket,449 Mass. 499, ___ N.E.2d ___ (July 19, 2007), the Supreme JudicialCourt of Massachusetts invalidated the town’s 1968 exercise of eminentdomain since the town’staking listed the owners of the property as “owners unknown,” which wasnot sufficient notice to the landowner.  In Brody v. Village of Port Chester,No. 00 Civ. 7481 (HB) (SDNY, July 18, 2007), a New York federal courtheld that a municipality wrongfully exercised eminent domain and deniedthelandowner procedural due process by not providing proper notice of hisright to contest the taking. Continue Reading 2007 Land Use in Review: Due Process Notice in Eminent Domain

It’s a pretty rare event when a court invalidates a law for violating the Equal Protection clauses of either the Hawaii or U.S. Constitution under rational basis review.  In Silva v. City & County of Honolulu, No. 27385 (Aug. 10, 2007), the Hawaii Supreme Court did just that, holding that Haw. Rev. Stat. § 46-72 was irrational, and violated the Hawaii Constitution.  More here.Continue Reading 2007 Land Use in Review: Hawaii Supreme Court Lowers the Bar in Equal Protection “Rational Basis” Analysis

In Brescia v. North Shore Ohana(No. 27211, July 12, 2007), the Hawaii Supreme Court held that a property owner was not entitled to rely upon a county planning commission’s determination of the location of a shoreline setback when the planning commission retained the authority to give official assurances.  The case involved Kauai property within the coastal “Special Management Area.”  The SMA is, generally speaking, the land nearest the shoreline, as defined in Hawaii’s Coastal Zone Management Act, Haw. Rev. Stat. ch. 205A. The CZMA established special controls for this strip of land, and thecounties have authority to regulate uses within the SMA, including thelocation of the “shoreline setback,” which is (like other setbacks) anunbuildable zone that “sets back” structures from the shoreline.  The statewide minimum setback is established by the CZMA, but the individual counties are permitted to establish greater setbacks, which vary from county-to-county.  Continue Reading 2007 Land Use in Review: Estoppel and Shoreline Setbacks

Administrative Procedures in Land Use Cases:  In Citizens Against Reckless Development v. Zoning Bd. of Appeals of the City and County of Honolulu (No. 27264, May 31, 2007), the Hawaii Supreme Court tackled the issue of when a request for anagency to issue a declaratory ruling under Haw. Rev. Stat. § 91-8can effectively substitute for an appeal of an agency decision, and when it can’t.Continue Reading 2007 Land Use in Review: CARD v. ZBA – Administrative Procedures in Land Use Cases

In Hawaii Home Infusion Assoc. v. Befitel,(No. 27256, Apr. 16, 2007), the Hawaii Supreme Court held that thevenue provisions in the declaratory judgment section of the HawaiiAdministrative Procedures Act, Haw. Rev. Stat. § 91-7,are jurisdictional, and such actions must be brought in the judicialcircuit in which the petitioner is domiciled.  Find out why thisdecision is important in the land use arena by reading this post.Continue Reading 2007 Land Use in Review: Venue in Declaratory Actions on Legality of Agency Rules is Jurisdictional

In John R. Sand & Gravel v. United States, No. 06-1164 (Jan. 8, 2008), the U.S. Supreme Court held that the six year statute of limitations in the Tucker Act is “jurisdictional,” and must be ruled upon by a court when raised by an amicus on appeal, even when the government had waived it.  The property owner brought an inverse condemnation action in the Court of Federal Claims, asserting the federal government took its property without compensation when it placed fences on its leased property.  Inverse condemnation claims seeking compensation from the federal government in excess of $10,000 must be brought in the CFC.  The Federal Circuit opinion is posted here (500kb pdf).

The short majority opinion by Justice Breyer held that the Court had reached the same result in earlier decisions, and those decisions should not be overruled.  Invoking the principle of stare decisis, the Court held…

Continue Reading Supreme Court: Getting It Right Doesn’t Matter – Statute of Limitations in Inverse Condemnation Claims Against the Federal Government is Jurisdictional

An important case from the Pennsylvania Supreme Court.  In Middletown Township v. The Lands of Josef Seegar Stone, No 64 MAP 2006 (Dec. 28, 2007), the court upheld the power of a local government to take property “for any legitimate purpose,” notwithstanding statutory language that did not extend authority to the town to take property for “open space.”  However, the court struck down the attempted taking because the evidence showed that the realpurpose of the taking was something other than the Township’s stated reason. 

The Township filed a Declaration of Taking to condemn farmland the Stone family wanted to subdivide and presumably develop.  The Township wanted to take the property for “recreational and open space purposes.”  Slip op. at 2.  The property owner objected, arguing the Township was specifically prohibited by state statute from taking land to preserve open space and prevent development.  Pennsylvania’s Lands Act prohibits local government…

Continue Reading PA Supreme Court on Public Use and Pretext – Take That, Kelo