February 2012

The appellate courts in California haven’t been too friendly to the medical marijuana dispensaries when it comes to land use and zoning. See here, here for example (the latter case is being considered by the California Supreme Court, so we may see some major pronouncement this year).

Here’s the latest decision, City of Lake Forest v. Evergreen Holistic Collective, No. G043909 (Feb. 29, 2012), in which the Fourth District (six SoCal counties, including San Diego, Orange, and the Inland Empire) concluded that the city could not adopt an outright ban on medical marijuana dispensaries under the local zoning code, because state law authorizes “collective[] and cooperative[]” medicial marijiana acitvities.

The city instituted a nuisance abatement proceeding against the Collective, arguing that because the zoning code prohibits dispensaries, the it was was a “nuisance per se.” The trial court sided with the city and entered an injunction. The court…

Continue Reading Smoke Em If You Got Em – Cal Ct App: Med Marijuana Dispensary Is Not A Per Se Nuisance

Gideon Kanner reminds us of the passing of retired California Court of Appeal Justice Lynn “Buck” Compton, famous of late for his exploits as a hard-charging paratrooper in World War II (L.A. Times story here). Gideon writes about Justice Compton’s time on the bench:

No, we aren’t going to wax lyrical about the high profile criminal cases in which he was involved, first as a prosecutor and later as a judge. We leave that to the popular press. We do wish to note that “Buck” Compton was one of the few — very few — California appellate judges who would give condemnees an even break, and for that he deserves our, and your thanks. He was tough-looking and blunt, but you knew when you appeared before him on behalf of property owners in an eminent domain case that he would listen to your arguments and give them fair …

Continue Reading Justice Lynn “Buck” Compton

In Town of Bozrah v. Chmurynski, No. SC 18424 (Feb. 14, 2012), the Connecticut Supreme Court held that in order for the town’s zoning enforcement officer to inspect private property, he must obtain an injunction (similar to a warrant in the criminal context) that is based on probable cause:

In conclusion, we hold that a zoning official may inspect a single property—not part of a routine or area wide search—pursuant to § 8-12 if the zoning official first obtains an injunction issued upon probable cause by a judicial officer as articulated in this opinion. Because the trial court failed to make a preliminary determination of probable cause to believe that a zoning violation existed on the property, its order permitting a search of the defendants’ property violates the fourth amendment.

Slip op. at 13. The opinion also set out the criteria that a court must consider when it determines…

Continue Reading Connecticut: Zoning Officials Need Probable Cause To Search Private Property

Descendants-kauaiMatthew King, the Honolulu lawyer at the center of Alexander Payne’s The Descendants, has two problems, one of which I will never have, and one of which, God willing, I hope never to have.

The first is his status as the sole trustee of an alii trust in possession of 25,000 acres of prime land on Kauai. The trust’s fuse is running down as a result of the rule against perpetuities and King (George Clooney) must therefore decide what to do with the trust’s largest asset: sell it to Developer A or to Developer B, or do something else with it. His fellow descendants are letting their desires known, and he’s feeling the pressure.

The second is that his wife is in an irreversible coma as a result of a boating accident, and her “living will” dictates that she be allowed to die with dignity; to make it even…

Continue Reading Movie Review: “The Descendants”

In case you are working today (we are), here’s some light reading to distract you:

Continue Reading Saturday Round Up

Today, on behalf of Owners’ Counsel of America, we filed this amicus brief in River Center LLC v. Dormitory Auth. of the State of New York, No. 11-922.

Did you know that when the U.S. Supreme Court began applying the rights in the Bill of Rights to the states (aka “selective incorporation”) that it started with the Just Compensation Clause? See Chicago, B. & Q. R. Co. v. City of Chicago, 166 U.S. 226 (1897). Was that a sign that the Court believed the right to the “full and perfect equivalent” in value when property is taken “for public use” is more important than other rights in the Bill of Rights? Maybe not, but it is a reminder than a vast majority of eminent domain cases do not involve the Public Use issues that have captured the public’s attention in the wake of Kelo v. City…

Continue Reading New Amicus Brief: A Property Owner Need Not Have Development Plans To Show Highest And Best Use

This just arrived: in Edwards Aquifer Auth. v. Day, No. 08-0964 (Feb. 24, 2012), the Texas Supreme Court, applying the Penn Central test, held that the government is not entitled to summary judgment because “the three Penn Central factors do not support summary judgment for the Authority and the State. A full development of the record may demonstrate that … regulation is too restrictive of Day’s groundwater right and without justification in the overall regulatory scheme.” Slip op. at 45. The court began the unanimous opinion with this summary:

We decide in this case whether land ownership includes an interest in groundwater in place that cannot be taken for public use without adequate compensation guaranteed by article I, section 17(a) of the Texas Constitution. We hold that it does.

I’m liking the Texas Supreme Court these days.

We’re getting a brief ready for filing today, so I haven’t…

Continue Reading Texas: “The requirement of compensation may make the regulatory scheme more expensive, but it does not affect the regulations themselves or their goals for groundwater production.”

Lawyers who deal with issues of navigability understand

those typically fact-intensive servitude cases involving reclamation and flood prevention projects, and the thigh-bone-is-connected-to-the-hip-bone tracing of waterways

Here’s an opinon you need to read if you are a navigability wonk, one of those lawyers who knows what the “equal footing doctrine” is, a Lewis and Clark buff. 

In PPL Montana, LLC v. Montana, No. 10-218 (Feb. 22, 2012), the unanimous Court in an opinion by Justice Kennedy,  

Our preview page is here (with links to the briefs).

PPL Montana LLC v. Montana, No. 10-218 (Feb. 22, 2012)Continue Reading U.S. Supreme Court Thwarts State Court Land Grab: Navigability, Public Trust, And Lewis And Clark

sidewalk Here’s one court that gets its doctrine right. Bonito Partners, LLC v. City of Flagstaff, No. 1 CA-CV 10-0819 (Feb. 21, 2012).

A property owner challenged a city ordinance that requires a landowner repair adjacent public sidewalks, else the city will do it and send the owner the bill, and if the landowner doesn’t  pay, the city will put a lien on the property.

The city told the owner to fix the broken and dangerous sidewalk next to its property. It didn’t (“Please proceed with the repairs. Do not wait for Bonito Partners, LLC to do the work.”). The city fixed it, charged the owner, and eventually put a lien on the property. The owner sued for both a taking and for due process.

The trial court granted the city summary judgment. In addressing the takings argument, the court of appeals first noted that takings and due process are…

Continue Reading Where The Sidewalk Ends: The Takings Power Is Different Than The Police Power

Ilya Shapiro from Matthew Bowler on Vimeo.

Ilya Shapiro

, Senior Fellow in Constitutional Studies at the Cato Institute and the Editor in Chief of the Cato Supreme Court Review, and a semi-regular speaker in Hawaii, recently gave an informal talk about the “Obamacare” challenges now pending in the U.S. Supreme Court. We haven’t covered the topic, but we found his talk to be worth sharing because, in Ilya’s words, “five weeks from now, the Supreme Court is taking up the most important case it’s had since Brown vs. Board of Education.”
Continue Reading Ilya Shapiro (Cato Institute), In Hawaii Speaking About Obamacare Supreme Court Cases