2008

In a case a lot of folks have been following, a New Jersey appellate court yesterday struck down an attempt to declare properties “blighted.”  Turns out these properties in a residential neighborhood which was proposed to be cleared for luxury condos were not in fact blighted, or at least the government had not proven that they were.  The court remanded the case to the trial court since the city had not established the case that there was “substantial evidence of blight.”  City of Long Branch v. Anzalone, No. A-0067-06T2 (N.J. Super. Aug. 7, 2008).  This decision follows up on the New Jersey Supreme Court’s decision in Gallenthin Realty Dev., Inc. v. Borough of Paulsboro, 924 A.2d 447 (N.J. 2007), which held that “blight” means more than “not fully productive.”

The opinion is posted here.  A summary of the case from New Jersey Eminent Domain Law blog is…

Continue Reading New Jersey: Blight Not Right

An interesting decision from the California Court of Appeals (First Appellate District) about a distinct branch of inverse condemnation law — government liability for flooding and erosion. 

Generally, any physical invasion of property by or caused by the government, no matter how small, is compensable, either in eminent domain, inverse condemnation, or tort.  See, e.g., Pumpelly v. Green Bay Mississippi Canal Co., 80 U.S. (13 Wall.) 166 (1871).  This is true whether the invasion is by government agents, see, e.g., D & D Land Holdings v. United States, No. 06-877L (Court of Fed. Cl., June 30, 2008), members of the public at government invitation, see, e.g., Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987); Kaiser Aetna v. United States, 444 U.S. 164 (1979), or by permanent or temporary floodwaters.  See, e.g., Jacobs v. United States, 290…

Continue Reading Cal. Court of Appeals: Goverment Does Not Have To Own The Entire Faulty Drainage System To Be Liable For Inverse Condemnation

Here is what the ripeness requirements of Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985) have brought us: a seemingly endless procedural game where property owners are forced to keep guessing which shell the pea is under, all the while paying their attorneys to litigate matters having nothing to do with the question of whether a local government’s regulations have gone “too far.”  The latest example is West Linn Corporate Park, LLC v. City of West Linn, Nos. 05-36061, 05-46062 (9th Cir. July 28, 2008), a case in which the Ninth Circuit, after removal from state court and trial in federal court, referred the takings issues in the case to the Oregon Supreme Court, effectively handing off the decision in the case to that court. 

Like a good plaintiff is supposed to do under Williamson County, West Linn Corporate Park (WLCP) began this…

Continue Reading Takings Claim Goes From State Court To Federal Court, And Now Back To State Court

The property owner has filed its brief in oppositionto the County of Maui’s motion for reconsideration of the court’s recent decision in the federal court challenge to the County’s 40-50% affordable housing exaction, Kamaole Pointe Development LP v. County of Maui, No. 07-00447 DAE.  We wrote about the case earlier here (contains a link to the complaint), and analyzed the legal problems with the ordinance under state law here.Continue Reading Opposition To Reconsideration Motion In Maui Affordable Housing Exaction Case

In Moreno v. City of Sacramento, No. 06-15021 (9th Cir. July 28, 2008), the Ninth Circuit clarified the rules for calculating “prevailing party” attorneys fees in civil rights cases under 42 U.S.C. § 1988.  The district court rejected the plaintiff’s claim, and reduced both the number of hours the plaintiff’s attorney claimed, and the hourly rate charged.  The Ninth Circuit reversed, holding that before the district court could simply whack hours and rates, it must articulate its specific reasons for doing so. 

The opinion was authored by Judge Kozinski, so it’s an enjoyable read and I won’t go into details since you can read the full analysis yourself here.  There are some enjoyable and informative quotes worth remembering, however:

Lawyers must eat, so they generally won’t take cases without a reasonable prospect of getting paid. (p. 9522)

By and large, the court should defer to the winning…

Continue Reading Ninth Circuit: “Lawyers Must Eat, So They Generally Won’t Take Cases Without A Reasonable Prospect Of Getting Paid.”

A noteworthy case from the North Carolina Court of Appeals about the limits of Euclidean zoning.  Although the decision was issued in March 2008, it seems no one else has posted on the case, so we will. 

In City of Wilmington v. Hill, 657 S.E.2d 670 (N.C. Ct. App. 2008), the court struck down a local ordinance that required the owner of a garage apartment to reside either inthe main residence or the apartment.  When his permit to build a garage apartment was denied and he was cited for violation of the ordinance, the property owner asserted the owner-occupancy requirement was an unconstitutional regulation of his ownership of the property.

Relying on Graham Court Assoc. v. Town of Chapel Hill, 281 S.E.2d 418 (N.C. Ct. App. 1981), the court held that while the zoning power extends to regulating the use of property, it does not allow the…

Continue Reading PING: 1 month loanURL: http://1monthloan13.co.uk/IP: 185.3.132.231BLOG NAME: 1 month loanDATE: 02/04/2013 07:37:34 AMinversecondemnation.com: Zoning Can Regulate Use Of Property, Not Ownership

The County of Maui has asked the federal court to reconsider its recent order granting in part and denying in part the County’s summary judgment motion.  A Maui property owner challenged the County’s “workforce housing” exaction ordinance, which requires a property owner to commit 40% to 50% of the unitsin most new housing developments to below-market-rate ownership orrental.  Kamaole Pointe Development LP v. County of Maui, No. 07-00447 DAE.  The plaintiff challenged theordinance under the Nollan/Dolan doctrine of unconstitutional exactions, which requires the governmentto show a substantial nexus between the exaction and some problemcaused by the property owner before the government may demand tributeas a condition of development, and that the exaction is roughly proportional to the problem.

The court held that the plaintiff’s Nollan/Dolan claims are takings claims that are not ripe under Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S.

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The State of Hawaii has filed its Reply Brief to the Office of Hawaiian Affairs’ Brief in Opposition in the “ceded lands” case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert.petition filed Apr. 29, 2008).  The State has sought a writ ofcertiorari to review of the decision by the Hawaii Supreme Court in Office of Hawaiian Affairs v. Housing and Community Dev. Corp. of Hawaii,117 Haw. 174, 177 P.3d 884 (Jan. 31, 2008). 

In that case, theHawaii Supreme Court, relying on the “Apology Resolution,” enjoined theState of Hawaii from conveying 1.2 million acres of state-owned landuntil a political settlement is reached with Native Hawaiians about thestatus of that land.  The Reply starts off by pointing out:

Respondents do not even dispute that the Hawaii Supreme Court was wrong on the merits in construing the federal Apology Resolution to strip the State of essential attributes of sovereignty over…

Continue Reading State’s Reply in Ceded Lands Case

In D & D Land Holdings v. United States, No. 06-877L (filed under seal: June 25, 2008, reissued: June 30, 2008), the Court of Federal Claims held the landowner’s claim that the Border Patrol’s activities on its land resulted in a compensable Fifth Amendment taking was not barred by the six-year statute of limitations, and that the landowner had a property right to keep Border Patrol agents off its property.  The CFC denied the federal government’s motions to dismiss and for summary judgment. The court summarized the plaintiff’s complaint:

[P]laintiff claims that defendant’s construction of a border fence between the United States and Mexico resulted in the channeling of illegal immigrants onto its property “where they can be rounded up, arrested, and deported.”  According to plaintiff, Border Patrol agents utilize its property for these purposes on an “almost daily” basis.

Slip op. at 1 (citiation omitted).  The most interesting…

Continue Reading PING: blu ray playerURL: http://3dwise.co.uk/IP: 108.174.194.111BLOG NAME: blu ray playerDATE: 02/06/2013 01:46:39 PMinversecondemnation.com: CFC: No “Border Patrol” Servitude

An interesting story in the LA Times about eminent domain abuse and free speech in St. Louis, Missouri, “Political protest hits a brick wall.”  The story details the conflict between a property owner who commissioned a two-story mural on the side of a building that says “End Eminent Domain Abuse” and city officials who have asked a federal court to hold that it violates the city’s restrictions on the size of signs.  The owner claims its not the size that offends the city mothers and fathers, but the message.  The story has a great big photo of the mural, so you can decide for yourself.Continue Reading Protesting Eminent Domain Abuse