2011

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”

Synchronicity. Serendipity. Yin and Yang. Sometimes things just seem to work out.

Exhibit A: No sooner do we post a case about when inverse condemnation cases are filed too late (see Federal Circuit On The Metaphysics Of Takings Claim Accrual), what comes across our desk? A case about when inverse condemnation cases are filed too soon, of course. In Pembroke Center, LLC v. Fla. Dep’t of Transportation, No. 4D10-1737 (June 29, 2011), the District Court of Appeal (4th District) held that a declaratory judgment action initiated by a property owner was ripe, and that more was needed to determine whether an inverse condemnation action was ready for review.

The DOT has plans to widen the road next to the plaintiff’s shopping center, but the widening “was put on hold due to economic circumstances, but its website indicted the project will resume once funding is…

Continue Reading Florida Court Of Appeals Brings Balance To The Force: A Project That Isn’t Quite “Shovel Ready” May Be Ripe For Review

upFrom Oregon Live comes the report that a Portland attorney who was fighting to keep his office building (a converted Victorian), from being taken, has prevailed.

After a years-long fight in which Randal Acker, a commercial litigation lawyer, vowed to “do eminent domain law for the next two years to save the house” if necessary, the other side relented and allowed him to keep the house in place and decided to build the Portland State Dormitory around it.

Noting the resemblance of the home to the house in the Pixar animated film Up, the lawyer recently had 400 helium filled balloons affixed to its chimney, just like in the film.

Wish we could have been there.

Turns out this did not devolve into a typical eminent domain fight and that positions did not harden, but that reasonable minds prevailed:

Construction on the $90 million College Station [dormatory] started in…

Continue Reading Portland Lawyer Fighting To Keep His Property Goes “Up”

Here’s an interesting court of appeal decision about the intersection of technology and direct democracy from the epicenter of citizen lawmaking, California.

In Ni v. Slocum, No. A128721 (June 30, 2011), the court held that a voter using his smartphone to put his “electronic signature” on a petition does not qualify as “personally affixing” his signature to an initiative petition as required by California statute. The initiative in this case was to legalize marijuana.

Examining the language of the statute, the court concluded that “personal” means by the voter’s own hand and that both sides agreed that an e-signature qualifies, but that “affix” is subject to several possible meanings. Thus, because the statutory term is subject to multiple interpretations, the court looked at the legislature’s intent, noting that when it first adopted the “affix” requirement it obviously did not anticipate signing a petition by smartphone: “When the Legislature first…

Continue Reading Cal Ct App: No iSign For You!

Update: Civil Beat published a version of this post here.

We know lawyers are easy targets (we enjoy lawyer jokes as much as the next person, i.e., What’s the difference between a good lawyer and a great lawyer? A good lawyer knows the law; a great lawyer knows the judge.). Still, as we celebrate our independence, we note that author Thomas Jefferson and 23 other of the 56 signers of the Declaration of Independence were lawyers, and that the document was crafted and understood fundamentally as a legal pleading, and is the product of careful legal thinking.

So lawyers can’t be all that bad, right?

As convincingly argued by historian Peter Charles Hoffer in his book The Law’s Conscience: Equitable Constitutionalism in America (1990), the structure and style of the Declaration follows a form familiar to most modern lawyers: a complaint initiating a lawsuit. There’s the introduction…

Continue Reading The Verified Complaint In Equity: The Declaration Of Independence