September 2015

Here’s the cert petition you knew was coming, which asks the U.S. Supreme Court to review the California Supreme Court’s decision upholding the City of San Jose’s “inclusionary housing” requirement by applying rational basis review. The California court held the requirement was not an “exaction,” and was no more than a mere zoning regulation or price control. 

Here’s the Question Presented:

A San Jose, California, ordinance conditions housing development permits upon a requirement that developers sell 15% of their newly-built homes for less than market value to city-designated buyers. Alternatively, developers may pay the city a fee in lieu. The California Supreme Court held that, even where such legislatively-mandated conditions are unrelated to the developments on which they are imposed, they are subject only to rational basis review.

This raises an issue on which the state courts of last resort and federal circuit courts of appeal are split nationwide. The…

Continue Reading Cert Petition: Requirement That Developers Set Aside “Affordable” Units Is Subject To More Than Rational Basis Review

As noted in the Honolulu Civil Beat story, “Hawaii AG Backs Vermont GMO Labeling Law,” Hawaii has signed on to an amici brief in support of the State of Vermont in the Second Circuit appeal of a Vermont federal court’s ruling which rejected a challenge to Vermont’s requirement to label GMO products. The Civil Beat story reports on the brief, but as far as we can tell, doesn’t actually post the brief. Law nerds rejoice: here it is.

What is intriguing is that Hawaii chose to join this brief. Recall that Hawaii has no statewide GMO labeling laws, although it does have comprehensive laws that address the topic of GMO’s, a conclusion reached by at least two federal courts in challenges to county-adopted ordinances which deal with GMO issues (although none of the ordinances involve labeling). [Disclosure: we represented an amicus party in one of those District…

Continue Reading Hawaii Joins Amici Brief In 2d Cir GMO Labeling Appeal

I’ve put off posting this for a while, but it now feels like the right time.

Back in May, Chuck Hurd — an old mentor and colleague — passed away. When I was fresh out of law school, Chuck (known as “CHH” to us in the firm) was one of the first experienced lawyers to take me under his wing and offer the guidance that was sorely needed as I flailed about in court and on paper. His mentoring and friendship was one of the primary reasons I joined my firm. He was at the time a “courtroom warrior,” but as his obituary notes, he evolved to “peacemaker,” and devoted his energies to resolving problems as a mediator.

Although eventually he departed the firm to set up his own shop, we kept in touch over the years. To my regret, not as formally as we should have, but when we’d see each…

Continue Reading Aloha, Chuck Hurd

We visited Think Tech Hawaii’s downtown studios for a chat with Chris Lethem about Evenwel v. Abbott, the one-person-one-vote reapportionment case currently being briefed in the U.S. Supreme Court. As we’ve written, Evenwel could directly affect how Hawaii has reapportioned its legislature since statehood, and is a case to follow closely.

We also discussed Hawaii’s new Environmental Court and the recent Hawaii Supreme Court oral arguments in the “Thirty Meter Telescope” case. 

We didn’t know until earlier in the day that Chris would be the host. Which was a pleasant surprise because he is a former client in a successful case we took to the Hawaii Supreme Court a few years ago. Small town, no? Continue Reading From Think Tech Hawaii: SCOTUS Reapportionment, The New Environmental Court, And The TMT Oral Arguments

Those of you who are members of the ABA Section of State and Local Government Law, tune in tomorrow, Friday, September 11, 2015 for the Land Use Committee’s monthly call.

It will feature two speakers, talking about the California Supreme Court’s recent decision upholding San Jose’s “workforce housing” requirement against a claim that it was an “exaction” and thus should have been subject to the nexus and rough proportionality requirements of Nollan, Dolan, and Koontz.

Law of Affordable/Workforce Housing Exactions and Set-Asides 

FREE Teleconference Sponsored by the Land Use Committee
Friday, September 11, 2015
2:00 p.m. EST
Dial-in 888-3967955
Passcode 797687#
 
Speakers: David L. Callies, FAICP, Kudo Professor of Law at the University of Hawaii

Tim Iglesias, Professor of Law at the University of San Francisco School of Law (Professor Iglesias organized and co-authored an amicus brief in support of the City of San Jose).…

Continue Reading Tomorrow: ABA Land Use Committee Talk On The California Workforce Housing “Exaction” Case

Here’s one from the Connecticut Appellate Court which combines two of our favorite geeky topics: takings and muni law.

In Turn of River Fire Dep’t, Inc. v. City of Stamford, No. AC 36468 (Sep. 15, 2015), the court concluded it was not a violation of the Takings Clause for the voters of the city to amend their charter to consolidate the city’s six fire departments (the city-operated Fire and Rescue Department, and five independent volunteer fire departments) into a single city department, commanded by a city-employed official, the fire chief.

After amendment of the charter, one of the volunteer departments sued, alleging among other things a takings claim: “Specifically, they claim that the amendments constitute a per se regulatory taking because they deprive Long Ridge of all economically beneficial use of its property by forcing it to either participate in the Stamford Fire Department or cease operating as a fire department.” Slip op. at 11. The…

Continue Reading Merging Volunteer Fire Companies Into An “Official” Municipal Fire Department Isn’t A Taking

Here’s what we are reading today, eminent domain with a slightly offbeat theme:

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Continue Reading Eminent Domain Round-Up: Aliens, Exotic Dancers, And Princesses

From the Texas Court of Appeals in Sloan Creek II, LLC v. North Texas Tollway Authority, No. 0-5-14-1456-01456 (Aug. 28, 2015):

This is an interlocutory appeal of the trial court’s orders granting two pleas to the jurisdiction challenging an inverse condemnation counterclaim under article I, section 17 of the Texas Constitution. In its counterclaim, Sloan Creek II, L.L.C. alleged the increased amount and rate of erosion of creek banks on its property due to increased rainwater runoff from highway improvements was an inverse condemnation in violation of the Texas Constitution. Because we conclude Sloan Creek II failed to create a fact issue on whether the governmental entities involved knew the highway improvements were substantially certain to increase the amount and rate of erosion, we affirm the trial court’s orders dismissing the article I, section 17 counterclaim.

Slip op. at 1. 

We don’t have much more to add, except to…

Continue Reading “Should Have Known” Isn’t Enough To Show Intent In Inverse Condemnation

Every year at around this time, we note the anniversary of the blog. Our first post was back in August 2006, which means that we have nine years of this under our belt. In blog years, that’s apparently a lot. 

It’s a gas to think about our favorite topics, and write up my thoughts about them. But the best part of this enterprise is the people whom I have met over the years as a result. So I’d like to recognize those who send in items, who make comments, and who gently prod with suggestions.

I’d also like to hail my fellow law bloggers who, like me, make the time to share thoughts about the legal issues of the day. Although you’re not quite “Real Men [and Women] of Genius,” today we salute you, Mr. Law Blog Blogging Guy (and Gals):

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Continue Reading Entering Our Tenth Year

From the Ninth Circuit, a published opinion in a case challenging a Napa Valley city’s mobilehome rent control ordinance, Rancho de Calistoga v. City of Calistoga, No. 12-17749 (Sep. 3, 2015). Here’s a complete summary of the issues in the case, along with the Ninth Circuit merits and amici briefs. We’ve been following it because we filed an amicus brief in support of the property owner’s argument that it pleaded enough to get by a motion to dismiss for failure to state a claim. 

The Ninth Circuit didn’t agree, and affirmed the District Court’s dismissal. The panel concluded the case was ripe under Williamson County (an issue that seemed to occupy a lot of the judges’ time at oral arguments), but that the owner’s theory that “even if the taking is for a public purpose, the rent subsidy should be paid by the government if the rent is…

Continue Reading Where’s Palazzolo, Ninth Circuit? Owner Bought Property Subject To Regulation (Just Not These Regulations), So Has No Takings Claim