June 2010

The_men_who_stare_at_goats According to this news release, the Ninth Circuit will offer remote viewing of the upcoming oral arguments in three en banc cases, including the rent control takings case, Guggenheim v. City of Goleta (which we’re following here). 

“Remote viewing” does not mean you have to psychically tune into the arguments, nor does it equal webcasting as many state appeals courts do. Instead, it means that if you are in San Francisco, Portland, or Seattle and you find yourself in the neighborhood of the Ninth Circuit’s courthouse in those cities at 2pm on Tuesday, June 22, 2010, you can watch a live video and audio feed.

Get thee to the courthouse: it’s “first-come-first-served” according to the news release.

Us? We’re going to be in L.A. that day, so we plan to camp out on the courthouse steps like those Star Wars and iPhone people to insure ourselves a…

Continue Reading The Men Who Stare At Judges: 9th Circuit To Provide “Remote Viewing” Of En Banc Oral Arguments

On Tuesday, June 22, 2010 starting at 2:00 p.m., the U.S. Court of Appeals for the Ninth Circuit will hear oral arguments in the en banc review of a takings challenge to the City of Goleta’s mobile home rent control ordinance (RCO).

In Guggenheim v. City of Goleta, 582 F.3d 996 (9th Cir., Sep. 28, 2009), a three-judge panel held the city’s RCO was a regulatory taking. The court found the case ripe under Williamson County, and addressed the merits of the takings claim under the three-factor regulatory taking test of Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978).

On March 12, 2010, the court ordered en banc review.

The arguments will take place in Courtroom Three of the Richard H. Chambers Courthouse (125 South Grand Avenue, Pasadena, California). While we won’t be able to live blog the arguments, we are

…
Continue Reading June 22 Oral Arguments In Ninth Circuit Rent Control Takings Case (Guggenheim)

Most of the time when we think of impact fees and other development exactions, Nollan and Dolan spring immediately to mind. In those two cases, the Court established the requirement that exactions have a reasonable relationship (“nexus”) to some ill caused by a proposed development, and be “roughly proportional” to the impact created by the development.

Absent a nexus and proportionality, an exaction is “not a valid regulation of land use but ‘an out-and-out plan of extortion.'” Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987) (citations omitted). The Court was worried that absent a nexus and proportionality, impact fees, in-lieu fees, and development exactions were a form of “pay to play” where local governments take advantage of the fact that a property owner seeks development approvals, to leverage land other property or cash to address impacts not caused by the property owner.

However, Nollan/Dolan is not…

Continue Reading Impact Fee Not Reasonably Related To Burden Created By Development

In City of Oakland v. Schenck, 197 Cal. 456 (1925), the California Supreme Court held that when a railroad’s property is being taken, nominal compensation and not fair market value may be the appropriate measure of “just compensation.”

Schenck held that “where a street is opened across a railroad right of way, the rule as to the amount of compensation to be allowed the railroad company is different from the rule which prevails in the case of the taking of the property of an individual for like uses.” Schenck, 197 Cal. at 460-61. Nominal compensation may be due if the property’s use as a railroad will not be greatly impacted by placing a road across it. In other words, putting a road across railroad tracks don’t substantially impact the value of the railroad tracks.

In City of San Jose v. Union Pacific Railroad Co., No. H033503 (June…

Continue Reading Cal. Ct. Appeal: Nominal Compensation In Takings Of Railroad Property

Today, by a 3-2 vote, the Hawaii Supreme Court declined to review the decision of the Intermediate Court of Appeals in Maunalua Bay Beach Ohana 28 v. State of Hawaii, 122 Haw. 34, 222 P.3d 441 (Haw. Ct. App. 2009), which held that “Act 73” (codifed here and here) was a taking. [Disclosure: we filed an amicus brief in the ICA supporting the property owners, and filed an amicus brief urging the Hawaii Supreme Court to accept certiorari.

In Act 73, the Hawaii Legislature declared that title to shoreline land naturally accreted cannot be registered by anyone except the State, and that only the State could quiet title to accreted land. The ICA held that the Act was a taking of accreted land which existed in 2003 when the Act was adopted, but that it  was not a taking of what the ICA called “future accretions.”

The court…

Continue Reading HAWSCT Denies Cert In Beach Accretion Case

Here are two opinions just received that look awfully interesting, but that we haven’t had a chance to read in detail:

  • Beyer v. City of Marathon, No. 3D08-2864 (Fla. Dist. Ct. App. June 9, 2010) – denial of Beneficial Use Determination started limitations period on an as-applied takings claim, meaning that inverse condemnation complaints were timely filed.

More details to follow.Continue Reading New Opinions: Inverse Condemnation Statute Of Limitations, Impact Fee Nexus
Launch in external player

Missed our live blog of the the New York Court of appeals oral arguments in Kaur v. New York State Urban Development Corp. the case in which the Appellate Division struck down an attempt to take property north of Columbia University in New York City because of the record reflected overwhelming private benefit and lack of “blight?”

Well, you’re in luck — the court has archived the video.

Launch the live blog and start the video at the same time and you can follow along with Timothy Sandefur, Mark Murakami, and me as we provide commentary.

To launch the video in a separate window, go here.

Norman Oder has posted an excellent summary of the arguments on Atlantic Yards Report. Worth reading, especially as you follow along with the video.Continue Reading Video Of Columbia Blight Case Oral Arguments (NY Court Of Appeals)

Yesterday, we filed an amicus brief in an appeal we wrote about earlier, In re Trustees Under the Will of the Estate of James Campbell, No. 30006. The appeal involves the nature of “Torrens” title and, in a broader sense, the nature of property rights themselves.

Hawaii is one of the few remaining states retaining its Torrens system of title registration (two others are Massachusetts and Minnesota). We call it “Land Court,” a system in which the State guarantees indefeasible title to the rights and interests reflected in the title register.  

In Campbell, the State of Hawaii claims that title to property on Oahu’s north shore which was registered and confirmed to the Campbell Estate by the Land Court in 1938, is subject to the State’s ownership of “all mineral and metallic mines of every kind or description on the property, including geothermal rights,” and is subject…

Continue Reading Amicus Brief In Hawaii Land Title And Public Trust Appeal

Comes news that the State Land Use Commission has reclassified a large portion of state-owned land in east Oahu from “urban” to “conservation.” See Ka Iwi shoreline area reclassified as conservation land (via Hawaii News Now) and Ka Iwi coast gets added protection (via the Honolulu Advertis…Honolulu Star-Advertiser). The reports state the “reclassification should make the development of the makai [seaward] area of the coastline ‘a remote possibility'” (quoting the governor’s press release).

The reclassification from urban to conservation means that instead of the City and County of Honolulu’s zoning regulating the land, the State Department of Land and Natural Resources will exercise exclusive regulatory control. (Land classified urban is zoned and primarily regulated by the counties, whereas under Haw. Rev. Stat. § 205-5, the DLNR exclusively regulates conservation-designated land.)

But we’re not quite sure what we’re missing here, since it seems the fact the…

Continue Reading You Take It, You Bought It

Here are the final briefs in City of Milwaukee Post No. 2874 Veterans of Foreign Wars of the United States v. Redevelopment Agency of the City of Milwaukee, No. 09-1204 (cert. petition filed Apr. 2, 2010). That’s the case in which the U.S. Supreme Court is being asked whether the “undivided fee rule,” as applied by the Wisconsin Supreme Court, violates the Fifth Amendment’s Just Compensation Clause because it requires that a leasehold interest — which would be worth over $1 million if condemned separately — be valued at zero.

More on the case here. [Disclosure: we filed an amicus brief for the National Association of Home Builders and the Wisconsin Builders Association in the case, supporting the VFW.]

Here are the petition and the …

Continue Reading BIO And Reply In SCOTUS Eminent Domain Case: Is Wisconsin’s Application Of The Undivided Fee Rule Unconstitutional?