July 2010

If you can figure out the syntax of this post’s headline, you’ve just figured out the rationale of the Wisconsin Supreme Court in E-L Enterprises, Inc v. Milwaukee Metropolitan Sewerage District, No. 2008AP921 (July 2, 2010). In that case, the court held that the removal of groundwater was not a compensable taking because the property owner did not seek compensation for the taken water, but for damage to its building which relied in part on the groundwater for support.

Many years ago, in the course of constructing a new pipeline, the local sewer company removed groundwater under a neighboring building. Removal of the water resulted in the wooden supports under the building rotting, which caused the building to settle. The cost to replace the wooden supports with concrete supports was approximately $300,000.

The property owner brought claims for negligence, nuisance and inverse condemnation because the sewer company “physically took…

Continue Reading Wisconsin: Taking Groundwater Is Not A Taking Of A Building Damaged By The Taking Of The Groundwater

Heads up on a new article of interest to those of us who deal with exactions and Nollan/Dolan: Matthew Baker, Much Ado About Nollan/Dolan: The Comparative Nature of the Legislative Adjudication Distinctions in Exactions, 42 Urban Lawyer 171 (2010). Here’s a summary: 

Much has been made, by both commentators and courts, of the distinction between legislative and adjudicative land use exactions used to determine whether an exaction must meet the “essential nexus” requirement of Nollan v. California Coastal Commission and the “rough proportionality” test of Dolan v. City of Tigard. But practical application of the distinction has been anything but simple, only adding to the “mess” and “muddle” of Takings Clause jurisprudence. While exactions jurisprudence is admittedly messy, the apparent analytical incoherence results primarily from the confused and inconsistent application of the Nollan/Dolan test by lower courts, which would no doubt prefer…

Continue Reading New Article On Legislative-Adjudicative Distinction In Nollan/Dolan Analysis

The Hawaii Supreme Court today by a 4-1 margin issued an opinion that has fundamentally rewritten Hawaii land use law. In County of Hawaii v. Ala Loop Homeowners, No. 27707 (cert. granted Sep. 2, 2009), the four-Justice majority in an 81-page opinion authored by Justice Recktenwald held “[w]e further conclude that article XI, section 9 of the Hawai’i Constitution creates a private right of action to enforce chapter 205 in the circumstances of this case.” Slip op. at 4.

In an equally lengthy concurring and dissenting opinion, Justice Acoba wrote: “I respectfully disagree, then, with the majority’s holding that the court abused its discretion in denying Wai’ola’s motion to set aside default. Thus, in my view, it is unnecessary to decided that Ala Loop had a private right of action to enforce HRS chapter 205 under article XI, section 9 of the Hawai’i State Constitution, but inasmuch as…

Continue Reading HAWSCT Finds Zoning Statutes Are “Environmental” Laws – Court Creates A Private Right Of Action To Enforce Chapter 205

A rule of law set out over 100 years ago and which remains (as we say) good law qualifies as “well-established” by any standard. Village of Norwood v. Baker, 172 U.S. 269 (1898) set forth the rule that a special assessment for municipal improvements is only constitutional if the improvements result in the property being assessed enjoying special benefits, and then only to the extent of the benefit. If the benefits are merely those which inure to the public at large, or if the assessment exceeds the benefit conferred, the assessment is invalid.

Think of it as an “anti-givings” requirement: the cost of public benefits get absorbed by the public as a whole, but if property gets some benefit over and beyond those public benefits, it is fair to ask the property owner to pay. Otherwise, it’s a no-go.

In Hubbard v. City of Pierre, No. 25312-a-JKM (June…

Continue Reading Curb Appeal In South Dakota: No Special Benefit To Property Means That Special Assessment Is A Taking

P13513986-160025L I’ve just received my copy of the 2010 revision of Federal Land Use Law & Litigation by Brian W. Blaesser and Alan C. Weinstein (West, $225).

Here’s the description of the book from West’s site:

Examines all federal, constitutional, and statutory limitations on local land use controls, discussing cases, regulations, liability, defense strategies, doctrines, and antitrust restrictions. Comprehensively reviews Supreme Court and lower federal court decisions that consider the constitutionality of land use regulations. Discusses complicated free speech issues affected by federal land use law, and municipalities exercising home rule powers. Examines issues such as: constitutional and statutory limits, First Amendment limitations on land use controls, federal remedies and attorney’s fees, liability and immunity issues, litigation guidelines, zoning, subdivision controls, growth management, model complaints, and selected constitutional and statutory decisions.

Federal Land Use Law & Litigation is an eminently useful single-volume research and reference guide. It’s well-organized, and although it…

Continue Reading Book Review: Federal Land Use Law and Litigation, 2010 edition

The State of Hawaii has filed a brief responding to the amicus brief we filed in June in In re Trustees Under the Will of the Estate of James Campbell, No. 30006, an appeal now under review by the Hawaii Intermediate Court of Appeals. The issues in the case include the nature of “Torrens” title and the scope of the “public trust” in water resources.

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…

Continue Reading Final Brief In Torrens Title And Public Trust Appeal

Two unreported opinions arising out of cases from New Jersey. We won’t be reviewing them  (they are not precedential after all), but you may want to check them out if you are interested in public use and redevelopment (case #1), or inverse condemnation by permit denial (case #2):

  • RLR Investments, LLC v. Town of Kearny, No 09-3100 (3d Cir., July 2, 2010) (“This appeal is centered on the “public use” requirement for the governmental taking of private property. The appeal presents a number of overlapping and interrelated claims set out in a ten count complaint. We conclude that the District Court’s judgment in favor of the governmental entry should be affirmed.”).

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Continue Reading New Jersey Monday

Not much new in Numont v. State of Florida, No. 04-13610 (11th Cir., July 2, 2010) (per curiam). There, property owners sued to enjoin a Monroe County (aka the Florida Keys) ordinance that prevents “vacation rentals.” The opinion makes short work of two issues.

First, the court disposed of the claim that the ordinance was not properly adopted because it underwent “substantial or material” changes during the adoption process. The federal court certified the question to the Florida Supreme Court, which answered that the changes made conformed to the public notice, the ordinance was properly adopted.

Second, the property owners’ takings claim was not ripe since they conceded they had not sought relief in state court. The court rejected the property owners’ claim that doing so would be futile because the ordinance was “part of a larger regulatory effort to ban vacation rentals, an effort that they had challenged…

Continue Reading 11th Circuit: Ixnay On The Vacay Rental Lawsuit

What we’re reading today – not all of it property or land use law related:

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Continue Reading Friday Round-Up: Kagan On Property, RLUIPA, Second Amendment, CEQA, And Title VII (Yes, Title VII)

Think property rights are a “conservative” issue? To challenge that notion, read Black Landowners Fight to Reclaim Georgia Home in today’s New York Times. It tells the story of African-American property owners whose homes were condemned years ago, who now may have a second chance:

In 1942, Harris Neck, a thriving community of black landowners who hunted, farmed and gathered oysters, was taken by the federal government to build an airstrip. Now, the elders — who remember barefoot childhoods spent climbing trees and waking to watch the Canada geese depart in formation — want to know why they cannot have it back.

….

Harris Neck was deeded by a plantation owner to a former slave in 1865. Black families who settled there built houses and boats and started crab and oyster factories. But the community, many descendants suspect, was too independent for the comfort of McIntosh County’s whites.

During…

Continue Reading Are Property Rights A “Conservative” Issue?