42 U.S.C. § 1983 | Civil Rights

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On November 25, 2008, the Supreme Court will consider whether to review the Sixth Circuit’s decision in Braun v. Ann Arbor Charter Township, 519 F.3d 564 (6th Cir. 2008), a decision we analyzed here. The petition expressly asks the Court to overrule Williamson County.  We’ve detailed the kafkaesque nature of the Williamson County rule many times, most recently here (in a post about another pending petition which asks the Court to overrule the case).  Here are the briefs in Braun:

The Court’s docket report is available here. The cert petition contains three Questions Presented:

1.     Should the Court overrule Williamson County Regional Planning Commission v. Hamilton Bank of Johnson Cityinsofar as it requires property owners to seek compensation in statecourt to…

Continue Reading Overrule Williamson County

The most easily recognizable equal protection claim is one in which the plaintiff claims membership in a protected group, and some form of discrimination against the class. Another type of equal protection claim is the “class of one” claim under Village of Willowbrook v. Olech, 528 U.S. 562 (2000) (per curiam), where the Court held that a landowner who claimed village officials retaliated against her for winning an earlier lawsuit againstthem was entitled to bring a claim for an equal protectionviolation even though she was not a member of any protected class, or any group at all. If she was being singled out from others who were similarly situated for disparate treatement, she had a claim. The latest case is in the latter category.

In SBT Holdings, LLC v. Town of Westminster, No. 08-1512 (1st Cir. Nov. 6, 2008), the U.S. Court of Appeals for the First Circuit…

Continue Reading Pleading Class of One Equal Protection Land Use Claims

In Shanks v. Byrd, No. 06-35665 (Aug. 27, 2008), the Ninth Circuit held that a municipality’s alleged failure to enforce its zoning laws was not a violation of the Fourteenth Amendment.

Developers who convert homes into student residents apparently did not obtain all of the appropriate permits from Spokane, Washington to remodel a portion of a house in the city’s Mission Avenue Historic District.  The city issued a building permit, but the Spokane zoning code requires additional permissions when historic landmarks are involved, and the developers did not seek or obtain a “certificate of appropriateness” or an “administrative special permit” from the city’s Historic Landmark Commission.  The city did not object, and took no steps to require the permits.

A group of neighbors and community organizations sued the property owners and the city, alleging the city’s failure to enforce the zoning code was a violation of their due process…

Continue Reading Ninth Circuit: City’s (Alleged) Failure to Enforce the Zoning Code Is Not A Substantive Due Process Violation (Oh, And Armendariz is Still Overruled)

In Moreno v. City of Sacramento, No. 06-15021 (9th Cir. July 28, 2008), the Ninth Circuit clarified the rules for calculating “prevailing party” attorneys fees in civil rights cases under 42 U.S.C. § 1988.  The district court rejected the plaintiff’s claim, and reduced both the number of hours the plaintiff’s attorney claimed, and the hourly rate charged.  The Ninth Circuit reversed, holding that before the district court could simply whack hours and rates, it must articulate its specific reasons for doing so. 

The opinion was authored by Judge Kozinski, so it’s an enjoyable read and I won’t go into details since you can read the full analysis yourself here.  There are some enjoyable and informative quotes worth remembering, however:

Lawyers must eat, so they generally won’t take cases without a reasonable prospect of getting paid. (p. 9522)

By and large, the court should defer to the winning…

Continue Reading Ninth Circuit: “Lawyers Must Eat, So They Generally Won’t Take Cases Without A Reasonable Prospect Of Getting Paid.”

A Lahaina business owner has sued the County of Maui in federal court in Honolulu.  In Goo v. County of Maui, CV 08-00172 DAE (filed Apr. 17, 2008), the Complaint alleges the County and Planning Department officials drove the International Open Market Place, a gift and craft fair, out of business by deliberately favoring a use prohibited under the zoning (a bank/credit union) over uses permitted under the zoning (plaintiff’s business). 

The plaintiff also brings federal constitutional claims as well as claims for civil rights violations under 42 U.S.C. § 1983 and a Monell “deliberate indifference” theory.  The Complaint is posted here.Continue Reading New Federal Court Land Use Case Against County of Maui

If you picked up and read a copy of Braun v. Ann Arbor Charter Township, No. 07-1370 (Mar. 13, 2008), an opinion by the US Court of Appeals for the Sixth Circuit, without having read the briefs of the parties and the decision of the court below, you might not see anything terribly unusual. 

The case arose after property owners asked the Township to rezone their parcels from Agricultural to Residential, and the Township refused.  The property owners did not seek a variance because the Township informed them that none was available.  The property owners then dutifully went to state court to seek compensation, arguing that the only economically beneficial use of the property was residential.  The state courts did not reach the constitutional claims, and dismissed the case on procedural grounds because the property owners had not sought a variance.  See Braun v. Ann Arbor Township…

Continue Reading 6th Circuit: We Have No Jurisdiction, But We Rule Against The Property Owner Anyway

A must-read decision today from the Ninth Circuit — Crown Point Development, Inc. v. City of Sun Valley, No. 06-35189 (Nov. 1, 2007).  The court clarified a point that has been a long time coming: a property owner may assert claims under both the Takings and the Due Process Clauses.  In other words, land use guys, the court has finally torpedoed Armendariz v. Penman, 75 F.3d 1311 (9th Cir. 1996) (en banc). 

Armendariz stood for the unusual proposition that a property owner’s claim for violations of substantive due process rights were “subsumed” within the owner’s claim for violation of the Takings Clause.  Thus, in land-related issues, a property owner could only bring takings claims.

Sun Valley rejected Crown Point’s development application.  Afterpursuing relief in state court, Crown Point filed a federal civil rights actionpursuant to 42 USC § 1983, alleging that Sun Valley arbitrarilyinterfered with its property rights…

Continue Reading ▪ Ninth Circuit: Landowner May Assert Both Takings and Due Process Claims

The US Supreme Court has issued a unanimous opinion in Sole v. Wyner (No. 06-531) (docket listing here), a case involving whether a party who obtains a preliminary injunction — but ultimately loses the case on the merits — can be a “prevailing party” entitled to civil rights attorneys fees.  The Court, in an opinion by Justice Ginsburg, answered no.  I’ve previously posted about the case background here, and the oral arguments here.  SCOTUSblog summarizes the opinion here, and National Public Radio reports on the case here (with audio).

This case has impact on land use litigation.  A key federal civil rights law, 42 USC  § 1988, allows the prevailing party to recover attorneys fees from the other side.  The right to own and make economically beneficial use of property isone of those federal civil rights, and land use and property issues areoften litigated under…

Continue Reading ▪ SCOTUS: “Prevailing Party,” Attorney’s Fees, and Land Use Litigation

Just in case you were wondering whether Hawaii water rights issues were matters of federal or state law, the Hawaii Supreme Court has provided the answer. 

In Maui Tomorrow v. State of Hawaii, 110 Haw. 234, 131 P.3d 517 (Apr. 5, 2006), the court held that prevailing on a state law water rights claim in state court does not entitle the victor to federal civil rights attorneys fees. 

That conclusion may seem a touch obvious, one might think, but despite a rather clever and “tenuous” argument by the party seeking to fee-shift, the court correctly determined that issues of water rights and the common law public trust were matters of state law.  Disclosure: I represented the Hawaii Farm Bureau Federation, one of the prevailing parties in this appeal.

The appeal arose when the owner of a private water transport system on Maui sought a long term lease from the State Board of Land and Natural Resources, allowing the use of surface water originating in state-owned land.  Several individuals and organizations intervened in the administrative process, alleging that the lease would interfere with their preexisting water rights, rights as Native Hawaiians, and rights under Hawaii’s public trust in water, and that before entering into a lease, the agency must undertake an environmental assessment under the  Hawaii Environmental Policy Act, Haw. Rev. Stat. ch. 343.

The agency rejected the claims, and the intervenors appealed to state court, adding a claim for due process violations.  The trial court ruled against the intervenors and in favor of the state on the due process claims, for the intervenors on the EA and public trust claims, and remanded the case back to the agency.  After judgment was entered, the intervenors sought nearly a quarter of a million dollars in attorneys fee under the federal fee-shifting statute, 42 U.S.C. § 1988.  That statute allows a party who prevails on a federal civil rights claim (42 U.S.C. § 1983) to make the loser pay attorneys fees.  The trial court denied the motion and the intervenors appealed.

The Supreme Court held that despite characterizing their water rights and public trust claims as claims under the law admitting Hawaii as the 50th state (the Admission Act), the claims made by the intervenors were, in reality, arguments under state law. The court compared the claims actually made by the intervenors to the claims theintervenors said they made, and found no federal civil rights claim was present, much less a federal claim on which the intervenors prevailed.  The court characterized the request for attorneys fees as “tenuous,”but refused to impose Rule 11 sanctions for a frivolous argument.

    
Continue Reading ▪ 2006 Land Use in Review: Hawaii Water Law is Not a Federal Case