August 2015

Here’s a short (approx. 10 minute) summary of the recent decision by the California Supreme Court in California Building Industry Ass’n v. City of San Jose, No. S212072 (June 15, 2015).

In that case, the court upheld the city’s “inclusionary housing” requirement against a Nollan–Dolan–Koontz challenge. The court concluded the ordinance did not impose an “exaction” because it did not demand the owner surrender land — or money in lieu of land — and thus was only subject to rational basis scrutiny and not the N-D-K nexus and rough proportionality requirements. 

The podcast is an excerpt of last week’s IMLA webinar on this case and others. 

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Horne v. USDA: Way More Than Silly Raisin Jokes
New Article: “Eminent Domain for Underwater Mortgages: Already on the Way to the Bottom of the Sea of Bad Ideas”
Links From Today’s “The Takings Issue” Webinar
Eminent Domain

Continue Reading Podcast: Cal. Building Industry Ass’n v. City of San Jose – Is An “Inclusionary” Housing Requirement An Exaction, Or Mere Zoning?

The headline of this post shouldn’t be that surprising, especially when the the property owner purchased the land already subject to a floodplain designation, and those regulations effectively prohibited development.

But the two twists in the South Carolina Supreme Court’s opinion in Columbia Venture, LLC v. Richland County, No. 27563 (Aug. 12, 2015), were (1) when Columbia Venture purchased the land, the floodplain designation didn’t encompass as much of the land as it eventually did, and the larger area was only preliminarily designated, and (2) various county agencies had informed Columbia that there was a chance it might get permission to build even if the regulations were eventually adopted.   

Those twists, however, were not enough to save Columbia’s takings claim, and the court rejected both its categorical and Penn Central arguments.  

The facts of the case are somewhat dense, but here’s what you need to know. Columbia…

Continue Reading No Taking When Owner Prohibited From Developing In Floodplain

Here’s a short one from the Court of Appeals of Texas, Eighth District, involving how well a regulatory takings claim needs to be pleaded in a complaint. 

In County of El Paso v. Navar, No 08-14-00250-CV (Aug. 7, 2015), the court held that a pro se plaintiff who alleged, among other things, that the County refused “

to issue certificates of 

compliance to him without a legitimate basis unreasonably interfered with his right to use and 

enjoy his property as a mobile home park” 

was specific enough to give the County notice of the allegation, and should not be dismissed.

Read the opinion for the details of the claim, but here’s the critical allegation in the complaint:

The [County]’s conduct, as alleged, was intentional and constituted an unreasonably interfered [sic] with [his] right to use and enjoy his property. The economic impact and the extent to which the regulation…

Continue Reading Tex App: Penn Central Claim Was Poorly Drafted, But It’s Good Enough

Our colleague William Wade, in addition to being an economist, is a prolific author on the topic we find fascinating, takings. He looks at the issues with an economists’ perspective, and we’ve found his articles very helpful. We’ve even posted a few over the years:

Bill has graciously sent us a guest post, a preview of what may be his next article.

He focuses on the impact of the Texas Supreme Court’s landmark decision in Edwards Aquifer Authority v. Day, 369 S.W.3d 814, 832 (Tex. 2012), in which the court held that land ownership…

Continue Reading Guest Post – Liquid Gold, or Water For Pecans: Valuation of Texas Water

We reported on the California Supreme Court’s unanimous opinion in California Building Industry Ass’n v. City of San Jose, No. S212072 (Cal. June 15, 2015) on the day it was issued, and we also spoke about the case at a recent session sponsored by the International Municipal Lawyers Association. 

But we’ve never done a more in-depth write up of the case, or gone into any detail about why the court ruled the way it did. Continue Reading California Supreme Court Knows The Way To San Jose, But Does It Know The Way To Sacramento?

To those able to join us today for IMLA’s “The Takings Issue” webinar, thank you. Here are the links to the items which I discussed:

On Koontz:

On California Building Industry Ass’n v. City of San Jose:

…
Continue Reading Links From Today’s “The Takings Issue” Webinar

We’ve been remiss in updating for the past few days, caught up in the whirlwind that is the ABA Annual Meeting. But that’s now over and we can finally return to our usual blogging routine. 

First up, News of the World:

…
Continue Reading Takings International – Canada, Philippines … And More