2010

Most municipal zoning codes prohibit the operation of a “business” in a residential zone. Does this mean you can’t have a “home office” or take work-related calls at home? In most circumstances, doing so does not run afoul of the zoning code if the primary use of the home remains a dwelling house, and the business-like activities are incidental and subordinate to the residential purposes. Zoning codes are not meant to control every aspect of life, nor can they legally or practically.

The Miami zoning code allows “home occupations” provided they are not conducted by more than three people, and they are limited to certain occupations (architect, lawyer, real estate broker, for example). According to a new case from the U.S. Court of Appeals for the Eleventh Circuit, a “voyeur dorm” isn’t among the permitted uses of a residence. Flava Works, Inc. v. City of Miami, No. 09-11264 (June…

Continue Reading 11th Circuit: Internet Porn Dorm Is “Business” In A Residential Zone

Here’s a round-up of reports and analysis of yesterday’s opinion by the New York Court of Appeals in the “Columbia U. blight” case, Kaur v. New York State Urban Development Corp., No. 125:

…
Continue Reading Friday’s Columbia “Blight” Case (Kaur) Links

More on today’s opinion in the “Columbia U. blight” case, Kaur v. New York State Urban Development Corp., No. 125.

As we noted in our critique of the Atlantic Yards case (Goldstein), New York judges apparently are too “frightened and confused” by allegations that property is not truly “substandard or unsanitary,” so must defer to the agency’s finding:

The term “substandard or insanitary area” is defined as “a slum, blighted,  deteriorated or deteriorating area, or an area which has a blighting influence on  the surrounding area” (Uncons Laws § 6253 [12]). Here, the two reports prepared by ESDC consultants — consisting of a voluminous compilation of documents and photographs of property conditions — arrive at the conclusion that the area of the Project site is blighted. Just as in Matter of Goldstein, “all that is at issue is a reasonable difference of opinion as to whether…

Continue Reading New York Still Has “Unfrozen Caveman Judges” Who Are “Frightened And Confused” By Eminent Domain Blight

The New York Court of Appeals today reversed the Columbia “blight” case, Kaur v. New York State Urban Development Corp., No. 125 (June 24, 2010). The unanimous opinion came swiftly (oral arguments were just under a month ago), suggesting it was not a close call for the court. Here’s the Appellate Division’s opinion.

We haven’t had time to digest it, and there certainly will be a round of analysis and opinion on the case, but here’s the introductory paragraph of the court’s opinion:

In this appeal, we are called upon to determine whether respondent’s exercise of its power of eminent domain to acquire petitioners’ property for the development of a new Columbia University campus was supported by a sufficient public use, benefit or purpose (see New York Const art I, § 7 [a]; Eminent Domain Procedure Law 207 [C] [4]). We answer this question in the affirmative…

Continue Reading There Really Are No Limits To Eminent Domain In New York – Court Of Appeals Reverses The Columbia Case (Kaur)

We rarely post developments from trial courts, but every now and then a trial court order is so interesting that we deviate from our usual rule. Here’s one that’s worth sharing.

In Sterling v. California Coastal Comm’n, No. CIV. 482448 (Cal. Super. June 18, 2010), the San Mateo County Superior Court (the county immediately south of San Francisco) invalidated a permit condition imposed by the California Coastal Commission that would have required the property owners maintain their property “in active agricultural use,” meaning that they “either personally conduct agriculture on all their land or enter into a lease with a third party willing to engage in agricultural use on the land.” In other words, forced farming.

You read that right. Did we mention that the family seeking the permit are not farmers or ranchers, that the vast majority of the 143-acre parcel is not prime ag soil, that the…

Continue Reading Permit Condition Requiring “Active” Farming Struck Down Under Nollan/Dolan

Yesterday, we attended and posted a long summary of the en banc oral arguments in Guggenheim v. City of Goleta, the case challenging the city’s mobile home rent control ordinance as a regulatory taking, now pending in the Ninth Circuit.

Today, the court posted the sound recording of the argument.

Download it here (caution, it is a 23 MB wma file, meaning you’d best have a broadband connection and a Windows Media Player).

The argument was also broadcast from the Pasadena courthouse to the San Francisco, Portland, and Seattle courthouses, so we’re hoping that the video is eventually posted. The issues in the case aside, it was a very good example of high-level appellate advocacy.Continue Reading Oral Argument Recording In Ninth Circuit Rent Control Taking Case (Guggenheim)

2010-06-22 12.55.09 Pasadena, California (June 23, 2010) – Even in the rarefied, academic atmosphere of an appellate court, an advocate must sometimes have a thick skin. Today’s Ninth Circuit en banc oral arguments in the rent control takings case, Guggenheim v. City of Goleta, was one where the two lawyers who argued the case certainly came away with a few callouses. 

Guggenheim is the appeal from an unsuccessful challenge to the City of Goleta’s mobile home rent control ordinance. The district court ruled against the mobile home park owners who asserted the ordinance worked a regulatory taking of their property.

In Guggenheim v. City of Goleta, 582 F.3d 996 (9th Cir., Sep. 28, 2009), a three-judge Ninth Circuit panel reversed, however, and held 2-1 that the challenge was ripe under Williamson County, and ruled the ordinance was a facial taking by applying the three-part Penn Central test. The…

Continue Reading Ninth Circuit Rent Control Taking Case (Guggenheim) En Banc Oral Argument Report

Continued from Part II

The court was not much easier on the City’s attorney, even though one might think that the hard time they gave the property owners’ counsel indicated they were more sympathetic to the City’s arguments.

Right off the bat, Judge Callahan asked Schwartz whether he “conceded” [appellate advocate alarm bells going off] that there can be a facial Penn Central taking. This seemed to be a response to Judge Rymer’s questions to the property owners’ lawyers of whether “there is such an animal.” If Schwartz were to concede it, issue gone. He did concede it, but only barely. “Yes,” he answered, there can be such a thing, but it is difficult to imagine it, since the Penn Central test is “an ad hoc, factual inquiry.” Judge Callahan asked whether the Penn Central factors “bleed over to the merits” of a facial challenge, and whether the court…

Continue Reading Ninth Circuit Rent Control Taking Case (Guggenheim) En Banc Oral Argument Report pt. III

Continued from Part I

Coldron seemed to sense that the court was in danger of veering off track and buying into the argument in the amicus brief filed by the League of California Cities and California State Association of Counties in support of the city about the claim being time-barred. Judge Clifton returned to his initial barrage of questions and asked whether the ordinance was the same after the City incorporated, and whether the park owners were seeking a “windfall” from that event. Recall that Goleta was originally not an incorporated city, so these parks were subject to the County’s mobile home rent control ordinance. When the City incorporated, the County ordinances continued in effect for a time, and after a gap (another issue in contention), the new City of Goleta adopted its own mobile home rent control ordinance.

Coldron responded to Judge Clifton’s question by noting that “there is…

Continue Reading Ninth Circuit Rent Control Taking Case (Guggenheim) En Banc Oral Argument Report pt. II

2010-06-22 12.55.09 Even in the rarefied, academic atmosphere of an appellate court, an advocate must sometimes have a thick skin. Today’s Ninth Circuit en banc oral arguments in the rent control takings case, Guggenheim v. City of Goleta, was one where the two lawyers who argued the case certainly came away with a few callouses. 

Guggenheim is the appeal from an unsuccessful challenge to the City of Goleta’s mobile home rent control ordinance. The district court ruled against the mobile home park owners who asserted the ordinance worked a regulatory taking of their property.

In Guggenheim v. City of Goleta, 582 F.3d 996 (9th Cir., Sep. 28, 2009), a three-judge Ninth Circuit panel reversed, however, and held 2-1 that the challenge was ripe under Williamson County, and ruled the ordinance was a facial taking by applying the three-part Penn Central test. The court remanded the case to the…

Continue Reading Ninth Circuit Rent Control Taking Case (Guggenheim) En Banc Oral Argument Report pt. I