July 2011

 

It appears it is not enough for the lobbying arms of California cites and redevelopment agencies to sue the state claiming the state is grabbing “their” money, now at least one California city is in the business of producing You Tube videos complaining of the taking.

Putting aside for the moment whether the municipal poobahs of the City of Morgan Hill* have otherwise solved all the issues no doubt facing their fair city such that they can spend their days making and posting videos, the above piece — which ham-fistedly (and somewhat tastelessly) compares the California Legislature and Governor Jerry Brown to hostage-takers for the recent bills to either eliminate redevelopment agencies or allow them to continue to exist if they pay tribute to the state — we take note of the video’s final request: “[i]f you see the Governor or a State Legislator … Please ask them…

Continue Reading You Stay Classy, California Redevelopment Agencies

We tend not to think of churches as “blighting” their neighborhoods. But what about a church in a downtown “entertainment” district, where the nearby businesses are bars, nightclubs, and liquor stores, and placing a church in the area might limit the availability of liquor licenses?

In a sort of reversal of the usual LULU (locally undersirable land uses) issue, in Centro Familiar Cristiano Buenas Nuevas v. City of Yuma, No. 09-15442 (July 12, 2011), the Ninth Circuit considered whether a municipality ran afoul of RLUIPA’s “equal terms” provision when it required a church to seek a conditional use permit before it could relocate to a downtown entertainment area, and then denied the permit because it might limit the liquor licenses that could be issued to nearby businesses.

Arizona law prohibits issuance of a liquor license to any new bar, nightclub, or liquor store within 300 feet of a church…

Continue Reading 9th Circuit: Church’s Use Permit Requirement Violates RLUIPA Equal Terms

Yesterday, the California Redevelopment Association, the League of California Cities and two Bay Area municipalities filed an original jurisdiction petition for writ of mandate in the California Supreme Court asserting that the California Legislature’s recent bills to eliminate redevelopment agencies, or allow them to continue to exist if they pay tribute to the state, violate the California Constitution. According the press release accompanying the petition:

The central claim in the lawsuit is that AB 1X 26/27 violate Proposition 22, the constitutional amendment passed by 61 percent of California voters in November 2010, just eight months ago. Prop. 22 was passed by voters to “conclusively and completely prohibit State politicians in Sacramento from seizing, diverting, shifting, borrowing, transferring, suspending, or otherwise taking or interfering with” revenue dedicated to local government. The revenues protected by Prop. 22 specifically include the annual increments of property taxes allocated to California’s 400 redevelopment…

Continue Reading Can’t Touch This: Cal Redevelopment Agencies Sue State

On this Monday we bring you these stories, all with an international flavor:

  • More from India, on Kelo-style takings issues: the Wall Street Journal reports that “India Grapples With Land Acquisition Rules” (“Indian government ministers are vowing to bring legislation to overhaul the country’s ancient land acquisition laws when Parliament begins again next month, and everyone agrees that’s a good thing. Unfortunately, that’s where agreement ends. The biggest dilemmas are over figuring out who should get compensated when land is taken, what constitutes a fair price, and, most difficult of all, when exactly the government should use its

…
Continue Reading International Monday

DK_greenbag_1 Notice: This post is worth reading. There’s the possibility of a prize if you do. Read on.

Here’s the latest in a case we’ve been following with mild amusement, if only because the Court of Appeal decision seemed so ironic.

In Save the Plastic Bag Coalition v. City of Manahattan Beach, No. B215788 (Jan. 27, 2010), the Fourth District concluded the city needed to undertake environmental review under CEQA before it could adopt an ordinance banning grocery store plastic bags. The resultant increase in the use of paper bags might cause environmental harm, you see.

Whether you agreed with that conclusion or not, the decision certainly entertained. A putatively “green” measure struck down because it might be bad for the environment? But with a 2-1 panel decision and review granted by the California Supreme Court, it wasn’t hard to see the handwriting on the wall.

Yesterday the other shoe…

Continue Reading Cal Supremes: You Don’t Need Environmental Review Before Choosing Paper Or Plastic – “Common Sense” Dictates No EIR Needed For City’s Plastic Bag Ban

On July 14, 2011, we filed this cert petition (also posted below), which asks the U.S. Supreme Court to review the Hawaii Supreme Court’s decision in County of Hawaii v. C&J Coupe Family Ltd. P’ship, 242 P.3d 1136 (Haw. 2010). In that case, the Hawaii court upheld the taking of land on the Big Island, holding that the asserted public use was not a pretext to hide the overwhelming private benefit to the developer of the luxury Hokulia project.

This case presents the opportunity for the U.S. Supreme Court to firmly establish what the Kelo majority and Justice Kennedy’s concurring opinions strongly suggested, but did not need to squarely address in that case: that “unusual” exercises of eminent domain power will trigger a presumption of invalidity, or at least require heightened scrutiny. These independent triggers include when (1) a taking is accomplished outside of an integrated and comprehensive plan…

Continue Reading Cert Petition: After Kelo, When Is Eminent Domain Pretextual?

stlouis

Is this a “sign?” The city of St. Louis thought so. The city’s building inspection department issued a citation to the folks who commissioned the painting on a residential duplex, telling them they needed a permit. So they asked the city for one.

Denied. The zoning code does not allow for such signs. It’s too big. The building doesn’t have street frontage. Signs can only be incidental to the building’s use, and the building is a two-family home.

Appeal to the Board of Adjustment. No adjustment: it’s not exempt as a “work of art,” a “civil symbol,” or (get this) a “crest.” Those things are not subject to the sign code. Paint a big flag, a mural, (or your family crest?) and you don’t need a permit. But this is a sign. And signs need a permit.

Next stop, state court. The sign guys filed a lawsuit for…

Continue Reading Eighth Circuit Sees The Sign – Eminent Domain Abuse Protest Mural Gets First Amendment OK

If you understand the title of this post, congratulations: you are a regulatory takings wonk.

The property owners have filed a cert petition asking the Supreme Court to review the Tenth Circuit’s decision in Alto Eldorado Partnership v. County of Santa Fe, 634 F.3d 1170 (10th Cir. 2011). The Questions Presented explain the background and the issues:

A New Mexico county ordinance forces landowners who seek permits to subdivide their properties to construct and sell “affordable housing” units to County-approved buyers. Petitioners Alto Eldorado Partnership, et al., (collectively, “Alto”) are property owners who brought a Fifth Amendment claim in federal district court under 42 U.S.C. § 1983, seeking to have the ordinance enjoined on the grounds that it imposes an unconstitutional permit condition in violation of Nollan v. California Coastal Commission, 483 U.S. 825 (1987). Citing Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City…

Continue Reading New Cert Petition: Are Nollan Claims Subject To Williamson County (And If So, Should Williamson County Be Overruled)?

Today’s Ninth Circuit opinion in Vandevere v. Lloyd, No. 09-35957 (July 11, 2011), raises a couple of interesting questions having little to do with the merits of whether Alaska’s commercial fishing regulations worked a taking or a due process violation because they shortened the fishing season and limited the number of fish that can be harvested under the plaintiff’s entry permits and fishery leases.

First of all, what’s the Ninth Circuit doing reviewing a federal takings claim at all? As we’ve discussed repeatedly (most recently here), we thought that under Williamson County, federal courts could only review takings claims for compensation after a property owner has sought (and been denied) compensation in state procedures, which include an inverse condemnation claim in state court. A search of the Vandevere opinion reveals no citation to Williamson County. But check out page 9226 of the slip opinion, which references…

Continue Reading Judicial Takings Overtones In The Ninth Circuit

Here’s how the California Court of Appeal, Third District began today’s opinion in a case involving the California Environmental Quality Act:

This is a case where CEQA worked. The City of Rocklin (the City) in 2007 approved a residential development project for an undeveloped area of the City known as Clover Valley. The approval culminated more than 10 years of planning and environmental review for the site’s development. Since 1981, zoning authorized nearly 1,000 homes for the site. The site’s owners applied to develop a project for that size in 1991, and environmental review began in earnest in 1995. As a result of environmental concerns analyzed since then, the approved project is roughly half the size it could have been. The amount of open space has increased by a factor of five. The project owners have already paid millions of dollars to the City to construct needed infrastructure. The approved…

Continue Reading “This Is A Case Where CEQA Worked”