42 U.S.C. § 1983 | Civil Rights

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A short one from the U.S. Court of Appeals for the Fifth Circuit. In RBII, L.P. v. City of San Antonio, No. 11-50626 (Apr. 23, 2013), the court overturned a jury verdict that the city violated the due process and Fourth Amendment rights of a property owner when the city demolished its building without first providing notice that it was going to do so.

The city believed a structure owned by the plaintiff was dilapidated and a danger, and needed to be demolished immediately. The city undertook environmental review, exhausted its internal procedures for demolition, notified the Historic Preservation office, turned off the utilities, and checked the permit register to see if any repairs were made. It accomplished this all in about two weeks. But it didn’t notify the property owner before it took down the structure.

The owner filed suit in state court, and the city removed it…

Continue Reading Fifth Circuit: City Not Required To Give Notice Prior To Demolishing Building If It Merely Believed There Was An Emergency

When reading the Ninth Circuit’s latest foray into the regulatory takings doctrine which holds that a muncipal rent control ordinance did not qualify under Penn Central (MHC Financing Ltd P’ship v. City of San Rafael, No. 07-15983 (Apr. 17, 2013), we were reminded of the opening line in Andy Williams’ signature tune “Love Story” —

“Where do I begin …”

But before we begin, two preliminary thoughts. First, the district court’s decision finding that San Rafael’s mobile home rent control ordinance worked a taking of the mobilehome park owner’s property because it reduced the value by more than 80% was not some one-off aberration by a conservative district judge out on a lark. No, the decision was by the now-retired Vaughn R. Walker, the same judge who invalidated California’s Proposition 8 in one of the same-sex marriage cases currently before the Supreme Court.

Continue Reading The Ninth Circuit Botches Regulatory Takings Again

Here’s one to brighten your day, courtesy of the the U.S. District Court for the Middle District of Flordia (that’s Tampa, to all you non-Floridians). In Hillcrest Property, LLP v. Pasco County, No. 8:10-cv-819-T-23TBM (Apr. 12, 2013), the court held the county’s “Right of Way Preservation Ordinance” that allows it to land bank for a future road corridors by means of an exaction (more details on the ordinance below), is “both coercive and confiscatory in nature and constitutionally offensive in both content and operation.” Slip op. at 4.

We’ve seen this situation before — the government wants to build roads, but it either doesn’t have the money to buy or condemn the necessary property to do so, or it simply figures it can get it another way. The county had such plans, and designated future transportation corridors on its comprehensive plans. In 2005, the county adopted the…

Continue Reading Fla Fed Ct: Exaction Scheme Is “Constitutional Mischief” To Avoid “Nettlesome Payment of ‘Just Compensation’”

Here’s the amici brief of the International Municipal Lawyers Association and the National League of Cities, which urges the U.S. Supreme Court to review the Ninth Circuit’s decision in Lavan v. City of Los Angeles, 693 F.3d 1022 (9th Cir. 2012).

In that case, a 2-1 panel held that the city could not presume that property owned by homeless people in the Skid Row area of downtown was abandoned, and enjoined the city from seizing and destroying it when the owner was “momentarily away” from it.

The city filed a cert petition, arguing that the panel decision resulted in an invasion of vermin and other public health hazards in the area. IMLA’s brief argues:

The Ninth Circuit’s Opinion distorts that balancing act and jeopardizes local governments’ ability to act for the benefit of all their citizens. Like other citizens, homeless individuals have a right to use and enjoy…

Continue Reading Amicus Brief In Ninth Circuit Homeless Property Case: No One Has Constitutional Right To Leave Unattended Property On The Street

Here’s what’s on our reading list today:

  • Here’s the latest chapter in the saga of one Fane Lozman, whose titling at windmills got some Supreme Court love recently when the Court held that his floating home was not a “vessel” under admiralty law, and a Florida city was wrong to seize it. My Damon Key colleague Mark Murakami reports on the 11th Circuit’s recent ruling in Lozman’s related federalcivil rights case. Houseboat Redux – Eleventh Circuit Reinstates Lawsuit (via Hawaiioceanlaw.com). 

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Continue Reading Wednesday Round-Up: Houseboat Redux, Backtracking Post-Kelo, Arkansas Game Remand, Big Gulps

This morning, the Supreme Court released the order with the results of last Friday’s conference, revealing the Court has declined to review Lepak v. City of Irving, No. 12-777 (petition for cert. filed Dec. 21, 2012). We’re covering this issue here because as some of you might recall,  we represent the plaintiffs in a case challenging the 2012 Hawaii Reapportionment Plan, and Lepak raised related issues.

The Equal Protection Clause of the Fourteenth Amendment requires that state and local reapportionment and redistricting be accomplished so that the resulting districts are of roughly equal “population,” but the Supreme Court has never defined exactly what it means by “population.” Is it like Congressional reapportionment which requires that all persons get counted, i.e., the census count? Can some lesser population be counted? This is another way of describing the question of whether Equal Protection guarantees each person’s right to vote…

Continue Reading Voting Equality vs. Representational Equality – Cert Denied In “One Person, One Vote” Case

As we noted here, the City of Los Angeles has filed a cert petition asking the Supreme Court to review Lavan v. City of Los Angeles, 693 F.3d 1022 (9th Cir. 2012). In that case, a 2-1 Ninth Circuit panel held that the city could not presume that property owned by homeless people in the Skid Row area was abandoned, and enjoined the city from seizing and destroying it when the owner was “momentarily away” from it. L.A.’s petition details the conditions on the area that purportedly resulted from the Ninth Circuit’s injunction, and it sounds pretty bad (see pages 16 through 22).

The petition also argues that, like the vermin that has swept Skid Row, the panel majority’s ruling has “swept” around the Ninth Circuit from the Venice area of L.A., to Fresno, and “across the Pacific Ocean to Hawaii.” The Hawaii section of the petition points out…

Continue Reading New Cert Petition: Ninth Circuit Homeless Property Ruling Created Public Health Hazard

On Tuesday, February 26, 2013, the Judiciary and Labor Committee of the Hawaii State Senate will be conducting a public hearing and taking testimony on S.B. 286, a measure which amends a state statute to define “permanent resident” as used in state reapportionment and redistricting as “any person counted as a usual resident of the state of Hawaii in the lastpreceding United States census.”

Currently, under the Hawaii Supreme Court’s decision in Solomon v. Abercrombie, 126 Haw. 283, 270 P.3d 1013 (2012), “permanent resident” is defined as “domiciliary,” which means that to be considered a permanent resident of Hawaii, a person must have a physical presence plus have exhibited an “intent to remain.”

As you may well know, we represent the plaintiffs in Kostick v. Nago, No. 12-00184 JMS-LEK-MMM, the case challenging Hawaii’s 2012 Reapportionment Plan for violating the Equal Protection Clause (among other things). That case…

Continue Reading Testimony On Defining “Permanent Residents” For Hawaii Reapportionment As Census Count

This post has nothing to do with our usual menu of takings, property, and other issues. But we just had to point out to you two articles which feature comments by our Damon Key colleague Bethany Ace, adding her thoughts about the “Steven Tyler Act” (yes, that Steven Tyler), a bill now pending in the Hawaii Legislature.

The Act purports to protect celebrities from being offended by invasive photographers by creating a new tort called — get this — “constructive invasion of privacy.” For some lighthearted reading on this Friday, check out the recitals:

The legislature finds that Hawai‘i is home to manycelebrities, particularly on Maui, who are subjected to harassment fromphotographers and reporters seeking photographs and news stories. The privacyof these celebrities endure unwarranted invasion into their personal lives.Although their celebrity status may justify a lower expectation of privacy, thelegislature finds that sometimes the paparazzi…

Continue Reading Celebrity Incentive To Move To Hawaii: We’ll Give You An “Inoffensive” Space

The Hawaii Intermediate Court of Appeals, in a unanimous panel opinion authored by Judge Foley, held that a “zoning verification” by the Director of the City and County’s Department of Planning and Permitting is not a “decision of the Director” which a property owner must administratively appeal to the Honolulu Zoning Board of Appeals. Hoku Lele, LLC v. City and County of Honolulu, No. CAAP-11-0001064 (Jan. 25, 2013). The circuit court had dismissed the complaint for lack of jurisdiction because the property owner did not seek administrative review.

We represent the property owner/plaintiff/appellant in the case, so we’re not going to analyze the issue in detail, and leave it up to you to read the opinion. Needless to say, we think it is a correct and well-reasoned decision.

Hoku Lele, LLC v. City and County of Honolulu, No. CAAP-11-0001064 (Jan. 25, 2013)


Continue Reading HAWICA Clarifies What Actions By Planning Dept Trigger Administrative Zoning Appeals