42 U.S.C. § 1983 | Civil Rights

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In a lengthy opinion — it comes in two volumes — the Ninth Circuit again takes on a mobile home rent control ordinance, this time with a better result than usual for the property owners. The court determined the ordinance worked a taking, and remanded the case for a calculation of just compensation. Guggenheim v. City of Goleta, No. 06-56306 (Sep. 28, 2009). Because the case is long, we haven’t had a chance to digest it yet, but here’s the court’s conclusion:

We therefore reverse the district court’s judgment on the takings claim and remand to the district court for further proceedings. On remand, the district court may of course consider  any materials presented by either party that are relevant to determining the total amount of just compensation due to the Park Owners. See, e.g., Cienega Gardens, 331 F.3d at 1354. As noted in Part III.A.1…

Continue Reading New Ninth Circuit Case: Mobile Home Rent Control Ordinance Takes Property

The property owners and the County of Maui have filed their opposition and reply briefs regarding the cross motions for summary judgment in the Maui affordable housing case now being litigated in the U.S. District Court, Kamaole Pointe Development LP v. County of Maui, No. 07-00447 DAE (D. Haw.).

The case is a challenge to the County of Maui’s “workforce housing”ordinance, enacted in in 2006, which imposes a40% to 50% affordable requirement on new housing developments of fiveor more units, and on an application to subdivide a lot into five ormore parcels. In lieu of providing actual units, a developer may eitherpay a fee equivalent to 30% of the total project sales, donate improvedland of the same value, or donate raw land valued at 200% of thein-lieu fee. Ordinance 3418 is posted here.

The complaint asserts claims for “unconstitutional conditions,”regulatory takings, substantive and procedural due process, equal protection…

Continue Reading Final Briefs On Due Process Motions In Maui Affordable Housing Exaction Case

Today, we filed an amicus brief in Leone v. County of Maui, No. 29696, an appeal in the Hawaii Intermediate Court of Appeals which is considering, among other issues, the question of when a regulatory takings claim is ripe for review under Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985).

The trial court determined the plaintiffs’ regulatory takings claims were not ripe because they should have sought a legislative change to the offending land use regulations which allegedly deprive their property of all economically beneficial uses. The trial court’s decision is available here.

Our brief argues Williamson County only requires a “final decision” by the government applying existing land use regulations to the property, and a property owner is under no obligation to change the law before asserting her federal takings claim:

A claim that a land use regulation takes…

Continue Reading New Brief: Must A Property Owner Seek A Change In The Law In Order To Ripen A Takings Claim?

In a case that’s highly topical given the current health care debate, in Franklin Memorial Hospital v. Harvey, No. 08-2550 (Aug. 5, 2009), the U.S. Court of Appeals for the First Circuit held that Maine’s requirement that hospitals provide free medical services to certain low income patients is not a regulatory taking.

The not-for-profit hospital sought a declaration that Maine’s “free care laws” effected a taking because “Maine’s free care laws do not reimburse the hospitals for their expenses incurred in delivering care to low income patients, and the amount of free care that the hospitals must provide is not limited under the statute.” Slip op. at 2. Maine statutes require hospitals to provide free inpatient and outpatient services to residents who earn at or below 150% of the federal poverty level, upon pain of fines and private enforcement suits by the state attorney general or any affected patient.

Continue Reading First Circuit: Requiring Hospital To Provide “Free” Medical Services Not A Taking

The property owners have filed their merits brief in the beachfront takings case, Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). The case presents three questions:

TheFlorida Supreme Court invoked “nonexistent rules of state substantivelaw” to reverse 100 years of uniform holdings that littoral rights areconstitutionally protected. In doing so, did the Florida Court’sdecision cause a “judicial taking” proscribed by the Fifth andFourteenth Amendments to the United States Constitution?

Is theFlorida Supreme Court’s approval of a legislative scheme thateliminates constitutional littoral rights and replaces them withstatutory rights a violation of the due process clauses of the Fifthand Fourteenth Amendments to the United States Constitution?

Isthe Florida Supreme Court’s approval of a legislative scheme thatallows an executive agency to unilaterally modify a private landowner’sproperty boundary without a judicial hearing or the payment of justcompensation a violation of the due process clauses of…

Continue Reading Petitioner’s Merits Brief In SCOTUS Beachfront Takings Case

Here’s the latest in the Maui affordable housing case now being litigated in the U.S. District Court, Kamaole Pointe Development LP v. County of Maui, No. 07-00447 DAE (D. Haw.). The case is a challenge to the County of Maui’s “workforce housing”ordinance, enacted in in 2006, which imposes a40% to 50% affordable requirement on new housing developments of fiveor more units, and on an application to subdivide a lot into five ormore parcels. In lieu of providing actual units, a developer may eitherpay a fee equivalent to 30% of the total project sales, donate improvedland of the same value, or donate raw land valued at 200% of thein-lieu fee. Ordinance 3418 is posted here.  We posted on the case earlier here and here.

The complaint asserts claims for “unconstitutional conditions,”regulatory takings, substantive due process, equal protection, andclaims under Hawaii law. The Complaint for Declaratory and InjunctiveRelief (filed…

Continue Reading Latest In Maui Affordable Housing Exaction Case: Cross-Motions On Due Process

In Cloverleaf Realty of New York, Inc. v. Town of Wawayanda, No. 07-3405-cv (July 15, 2009), the Second Circuit held that a dismissal by a state court on statute of limitations ground does not preclude the plaintiff from bringing the same claim in a federal court which has a longer statute of limitations.

Needing to fund water and sewer improvements, the town approved an improvement district which included Cloverleaf’s two parcels. The taxes were assessed ad valorem (on the assessed values of the properties). Notice of the hearing regarding objections was published in the newspaper. After Cloverleaf paid the taxes under protest, it brought an action in New York state court seeking to declare the town’s assessments of Cloverleaf’s property illegal on two grounds. First, that the assessments should have been made on a “benefit basis” — taxation based on each parcel’s proportional share of the benefits — and…

Continue Reading PING: Immigration Adviser in BarkingURL: http://bleacherreport.com/users/1955859-hamza-terkildsenIP: 217.27.150.230BLOG NAME: Immigration Adviser in BarkingDATE: 02/04/2013 12:32:30 AMinversecondemnation.com: Second Circuit: State Court Statute Of Limitations Dismissal No Bar To Federal Claim

In a notable case worth following, the Hawaii Intermediate Court of Appeals is considering a new appeal involving whether a per se regulatory takings claim is ripe under Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), and whether in order to ripen a takings claim, a property owner is obligated to seek a legislative change to the regulations applicable to the property.

In Leone v. County of Maui, No.29696, the trial court refused to consider a property owner’s claim that state law and local regulations resulted in a regulatory taking of beachfront property on the south shore of Maui. The Opening Brief filed by the property owner is available here.

The case involves an undeveloped 1/2 acre beachfront parcel, one of 11 similarly-situated lots. The zoning on the property is “Hotel-Multifamily,” which permits residential use. The Community Plan (Maui County’s…

Continue Reading Must A Property Owner Seek A Change In The Law In Order To Ripen A Takings Claim?

The U.S. Supreme Court last week agreed to review the Florida Supreme Court’s decision in Walton County v. Stop the Beach Renourishment, Inc.,998 So.2d 1102 (Fla. Sep. 29, 2008), which heldthat a state statute prohibiting “beach renourishment” without apermit did not effect a taking of littoral (beachfront) property, eventhough it altered the long-standing rights of the owners to accretionon their land and direct access to the ocean. See Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). More background on the case at our resource page.

The Court accepted three questions for review, and the cert petitionrelied on two rather notorious cases with Hawaii origins to support theconclusion that a decision by a state court which unexpectedly changesestablished state common law rules of property is a compensable taking.See Pet. at 31-32 (citing Robinson v. Ariyoshi…

Continue Reading On Judicial Takings, And The Hawaii Water Rights Backstory In Stop The Beach Renourishment