March 2008

With a name like Carefree, Arizona, who wouldn’t want to spend the golden years there?  That appears to have been what was on the mind of one F.G. Budnick, a developer, when he decided he wanted to build the “Residences at Carefree,” which he described as a “luxurious, age restricted, senior retirement residential community,” in the small town north of Phoenix. 

But alas, it was not to be: the Town of Carefree didn’t want him, or at least didn’t want his proposed development, so the Planning and Zoning Commission denied the application for a Special Use Permit, which would have allowed the Residences to operate in a residential zone.

Budnick, however, would not be denied.  The future senior residents of the Residences would be “healthy, active, independent seniors who will be impossible to tell apart from” other Carefree residents, he asserted, and an appeal was lodged with the…

Continue Reading 9th Cir: Senior Citizens Are Not Automatically Considered “Disabled”

How often do you see a published opinion from a federal court of appeals that uses the word “hassle” to describe needless litigation?  Well, thanks to the irrepressible Chief Judge Kozinski, we now have citeworthy precedent from Clement v. City of Glendale, No. 05-56692 (Mar. 11, 2008):

Officer Young could have avoided years of litigation and needless hassle for himself, the Glendale Police Department, the towing company, the courts, Ms. Clement and her daughter, by simply erring on the side of caution and good public service by letting her know that her vehicle was illegally parked. Instead, the rush to tow led to this protracted litigation that, no doubt, has consumed far more city resources than it would have taken to properly notify Clement.

Slip op. at 2357-58. The case involved how much notice and process was due to the owner of a car before the police towed it…

Continue Reading 9th Cir: Due Process “Hassle”

Here’s another case involving property rights along the U.S. – Mexico border, but the issue is somewhat different than last week’s US v. 1.04 Acres case.  The issue this time is not the border fence, and it’s not about an affirmative exercise of eminent domain.  Instead, this case involves allegations of entry onto private property by agents of the U.S. Border Patrol in pursuit of illegal immigrants. 

In International Industrial Park, Inc. v. United States, No. 06-876L (Feb. 22, 2008), a San Diego, California-area property owner sued the federal government in the Court of Federal Claims for just compensation, complaining of the Border Patrol’s violation of its property rights:

As a result of these initiatives since September 11, 2001, IIP states that Border Patrol agents occupy Parcel 11 on an around-the-clock basis. Mr. Wick states in his declaration that Border Patrol vehicles speed across roads on IIP’s property, and…

Continue Reading Inverse Condemnation and the Border Patrol

Keepout What does a fence along the U.S. – Mexico border to deter illegal crossings have to do with eminent domain law?  Well, when the government is condemning property for the fence, a lot.

When it decided to put up a fence along the US-Mexico border,Congress gave the Attorney General the power to use eminent domain:

When the Attorney General and the lawful owner ofan interest identified pursuant to paragraph (1) are unable to agreeupon a reasonable price, the Attorney General may commence condemnationproceedings pursuant to section 3113 of title 40. [the General Condemnation Act of 1888]

See 8 U.S.C. § 1103(b)(3). 

I. What Procedures to Follow?

Congress, however, did not specify what procedures must be followed in the condemnation action.  Must the federal government follow the straight-take procedures of Rule 71Aof the Federal Rules of Civil Procedure, which require a final judgmentbefore the government takes possession of property…

Continue Reading Eminent Domain and the Border Fence

In a story titled “Hawaii: Tourists Make Lousy Neighbors,” the Associated Press summarizes the “transient vacation rental” issue that’s been making waves on Oahu, Maui, and Kauai.  Only one county, the Big Island of Hawaii, does not actively regulate vacation rentals.  Not a very encouraging headline for an economy dependent upon tourism and welcoming visitors.

On a related note, Charley Foster at Planet Kauai expands on the inversecondemnation.com link to a story about the recent legal challenge to Sedona, Arizona’s ban on short term rentals.  Charley adds a collection of links to case studies of how vacation rentals have been treated in other jurisdictions.  Check it out here.Continue Reading Associated Press: “Hawaii: Tourists Make Lousy Neighbors”

Jesse Souki’s post on his Hawaii Land Use Law blog, “NIMBY Group Stymies 700 Home Affordable Housing Project on Maui,” about a state-court challenge to a housing project, brings up a topic that is fun to revisit every now and then: the cheeky acronyms that get tossed about in the land use business.

To start off, there’s the Mother of All Land Use Labels, NIMBY, which is commonly used to describe opponents of LULUs (Locally Undesirable Land Uses).  But a host of others are used, including a few that express the same — or more extreme — thought as NIMBY:

  • NOTE – Not Over There Either
  • NIABY – Not In Anyone’s Back Yard
  • BANANA – Build Absolutely Nothing Anything Near Anyone [or Anywhere]
  • CAVE – Citizens Against Virtually Everything
  • DBTD – Death By a Thousand Days (do you really think the sole purpose of an EIS is to

…
Continue Reading NIMBYs, BANANAs, CAVEs and DUDEs

As reported here, a lawsuit was filed in Arizona state courts seeking to invalidate Sedona, Arizona’s prohibition on short-term rentals (less than 30 days):

Approximately 450 short-term rental properties in Sedona have beenimpacted by the new Ordinance making it illegal to advertise short-termrentals, and the Code prohibiting short-term rentals.

This ordinance was enacted by the city council Jan. 22 to putteeth into the Code, on the books since 1995, which made it illegal torent properties for less than 30-days

The tail end of the article lists the claims asserted by the plaintiffs, which include vested rights, selective enforcement, and other constitutional and statutory claims. Continue Reading Legal Challenge to Sedona, Arizona Short-Term Rental Ban

The US Supreme Court has denied a petition to review a Seventh Circuit opinion which dismissed a property owner’s regulatory takings challenge on ripeness grounds under Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985).  The questions presented by the petition called for overruling Williamson County. 

The case is Peters v. Village of Clifton, No. 07-635.  The Supreme Court order is here.  A summary of the Williamson County rule, the petition, and amicus briefs can be found in this post.

This issue isn’t going away.  Four Justices in San Remo Hotel, L.P. v. City & County of San Francisco,545 U.S. 323 (2005) stated that the ripeness rule needed to be revisited and overruled.  Continue Reading Cert Petition to Overrule Williamson County Denied