January 2012

In City of Dallas v. Stewart, No. 09-0257 (Jan. 27, 2012), the Texas Supreme Court provided a good reminder of the importance of property rights and due process, even when protecting rights may inconvenience the government. In that case, the court held that a determination by a city agency that a home was a public nuisance and should be demolished, was not entitled to preclusive effect (that’s “res judicata” to us Old Schoolers) in a subsequent takings lawsuit by the homeowner.

The facts of the case are pretty straightforward: Ms. Stewart abandoned her house and allowed it to fall into disrepair, and she ignored notices from the city. The Dallas Urban Rehabilitation Standards Board, the agency charged with enforcing the city’s zoning ordinances, concluded that the house was a public nuisance and ordered it demolished. It rejected Stewart’s request for a rehearing and obtained a judicial demolition warrant, after…

Continue Reading Texas: “The protection of property rights, central to the functioning of our society, should not – indeed cannot – be charged to the same people who seek to take those rights away.”

Last week, San Diego was on our karmic radar, as we were there for the annual ALI-ABA Eminent Domain conferences and there were a couple of cases and issues involving San Diego that popped up. This week, we’re off to the ABA Midyear meeting in New Orleans, so guess where the cases are coming from? YesContinue Reading CFC, New Orleans Edition

Here are the cases Professor Callies and I discussed in today’s session at ALI-ABA’s Eminent Domain and Land Valuation conference:

  • McCandless v. United States, 298 U.S. 242 (1936) – an offer of proof that irrigation water could be transported to the land was not too “remote and speculative,” and should have been allowed in support of the property owner’s contention that the highest and best use of the land taken was to grow sugar cane.
  • Damon v. Hawaii, 194 U.S. 154 (1904) – when an ahupuaa patent includes the adjacent fisheries, the U.S. Constitution recognizes that interest as “property.”
  • Kaiser Aetna v. United States, 444 U.S. 164 (1979) – when a private waterway, recognized as private property under Hawaii law, is modified by private effort and investement into a navigable waterway, the government can only impose a right of public access by condemnation.

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Continue Reading ALI-ABA Annual Eminent Domain Conference, San Diego: “The Role of Hawaii’s Unique Property Law in the U.S. Supreme Court’s Takings Cases”

Under California law, there’s a short statute of limitations (technically, it’s a “statute of repose” but who’s quibbling) for challenges to local government zoning decisions. The statute requires that a challenge must be filed within 90 days to “attack, review, set aside, void, or annul the decision of a legislative body to adopt or amend a zoning ordinance.” Cal. Gov’t Code § 65009(c)(1)(B) (emphasis added).

The statute “could be drafted with greater precision,” and it doesn’t expressly mention a denial of a request for a zoning change, only the adoption or amendment of a zoning ordinance.  Thus, after a city denied a developer’s request for a zoning change and its petition for a writ of mandate was dismissed because it was filed 97 days later, the developer appealed, asserting that the statute required a 90-day challenge only when the city adopts or amends zoning. General Development Co., L.P. v. City …

Continue Reading Cal App: “Denial” Of Rezoning Is The Same As “Adoption” Or “Amendment” Of Zoning For Limitations Purposes

The San Diego area must be on the karmic radar this week, and here’s the latest: a Federal Circuit decision in a case involving the U.S. Border Patrol’s activities on private land on the border with Mexico. In Otay Mesa Property, L.P. v. United States, No. 2011-5002 (Jan. 25, 2012), the court held that an agreement by which property owners allowed the federal government to install motion-sensing devices on their land resulted in a permanent physical taking and not temporary. The court also clarified the property “taken,” and how just compensation should have been calculated.

You can’t get any closer to the border than San Diego’s Otay Mesa neighborhood. The plaintiffs own several parcels abutting the border, and 20 years ago their predecessor-in-title granted the Border Patrol an easement along the border to allow it to, well, patrol the border.

The Border Patrol stepped up its activities after 2001…

Continue Reading Fed Circuit On The Difference Between “Temporary” And “Permanent” Physical Takings

Here’s what we’re reading today:

  • Oakland budget cuts his zoo, Children’s Fairyland – from the San Francisco Chronicle: “In all, more than $28 million will be sliced from the budget, mostly from the $388 million general fund. The cuts are due to the loss of redevelopment funds, which Oakland used to fund services and programs across the city. ‘It’s not clean and neat. We wish it were,’ said Mayor Jean Quan. ‘For California’s older, larger cities, like Oakland, losing these redevelopment funds has been very, very tough.'”
  • Redevelopment Agencies Facing Default – from Cal Watchdog: “The Legislation canceled the RDAs’ tax increment-financing, which served as their piggy-bank under the Community Redevelopment Law for the past 65 years.  The California Legislature and its crony capitalist allies will desperately try to resurrect new tax and economic incentives to reclaim their ability to interfere in the California real estate markets.”

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Continue Reading Tuesday Round Up: Cal Redevelopment Drawdown To Hurt Animals, Children; Thank You Public Workers For Saving Hawaii

Captain-Jack-Sparrow-with-swordHere’s a short one for you civil procedure mavens: in Pinellas County v. Baldwin, No. 2d11-2274 (Jan. 20, 2012), the District Court of Appeal (Second District) concluded that a property owner could bring an inverse condemnation action against the County of Pinellas in a court in the County of HIllsborough.

Under Florida procedure, when suing the government, the action must, generally speaking, be brought in the government’s home court. Thus, when suing a county, the proper venue for the lawsuit is in the trial courts of that county. But there are exceptions to that rule.

Here, Pinellas County owned a borrow pit physically located in Hillsborough County. Baldwin alleged that her land was permanently flooded and thus taken when the borrow pit overflowed as a result of construction. She instituted her inverse condemnation lawsuit against Pinellas County in the courts of Hillsborough County, and Pinellas moved to dismiss by…

Continue Reading Fla App: Inverse Condemnation Triggers “Sword-Wielder” Venue Exception

We’ve been watching Bowers v. Whitman, No. 10-24966 (Jan. 12, 2012), the case which challenged Oregon’s Measure 49, the statute adopted by initiative that replaced and modified the earlier Measure 37. Measure 37, for those not aware, was the initiative measure by which Oregon voters required the state to compensate owners whose private property was devalued by land use regulations. It essentially required the state to either allow development or pay, even if the regulation did not run afoul of the high thresholds of regulatory takings doctrine.  

Back to Measure 49. That statute, as the Oregon Supreme Court held, “conveys a clear intent to extinguish and replace the benefits and procedures that Measure 37 granted to landowners.” Corey v. Dep’t of Land Conservation & Dev., 184 P.3d 1109, 1113 (Or. 2008). But what of those landowners in process under Measure 37 when the voters adopted the new…

Continue Reading 9th Cir: No Vested Rights Taken By Oregon’s Measure 49

Roxie_logoSan Francisco Bay Areans: come join us at the Roxie Theater (3117 16th Street between Valencia and Guerrero, San Francisco) tonight for screenings of Battle for Brooklyn, the Oscar-shortlisted documentary film about the Atlantic Yards eminent domain case. Two shows, 7:00 and 9:00 p.m. Details, including ticket purchase here.

I’ll be there to answer questions on the legal aspects of the film, as well as discuss its relevance to California, where redevelopment and eminent domain abuse are front page stories due to the California Supreme Court’s recent decision upholding the Legislature’s abolishment of the state’s 400+ redevelopment agencies.

Also showing is “The Tragedy of Eminent Domain: The destruction and survival of a New York City neighborhood.” This short tells the story of how a project called “Manhattantown” destroyed a historic African-American community on the Upper West Side in the 1950s. Manhattantown set the model…

Continue Reading Tonight: San Francisco Screenings Of “Battle For Brooklyn” At The Roxie

Thanks to the Land Use Prof Blog for getting the word out about the new documentary “Urbanized.” It’s next up on our “to watch” list, and we will have a review when we’ve seen it. The New York Times had this to say:

The mingling of design and happenstance is, to some extent, the deep subject of “Urbanized,” Gary Hustwit’s fascinating, idea-packed new documentary. In this remarkably concise film — which could easily have sprawled to 15 hours on public television — Mr. Hustwit and his crew survey both the challenges and promises facing some of the world’s important cities. Their itinerary may not take them everywhere you want it to, but it also turns up some unexpected vistas along with familiar ones.

Read the full Times review here. More to follow. Continue Reading “Urbanized” – Land Use And Planning Documentary Released