Development agreements

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More on Franco v. National Capital Revitalization Corp., No. 06-CV-645 (July 12, 2007), a decision from the District of Columbia Court of Appeals about the level of proof needed to show a “pretextual” — and therefore prohibited — taking. 

I.  Kelo and Pretextual Takings

In Kelo v. City of New London, 545 U.S. 469 (2005), a bare majority of the US Supreme Court held that takings supported by claims of “economic development” were governed by rational basis review and are not, in every case, devoid of public purpose.  The Court, however, reserved judicial oversight, holding that in certain circumstances, a court could strike down a taking for lack of public use.  This result was consistent with the Court’s established Public Use jurisprudence, most notably Berman v. Parker, 348 U.S. 26 (1954), in which the Court held that eminent domain in the redevelopment context would be reviewed as…

Continue Reading More on DC Decision on Evidence of Pretext in Public Use Challenges

In a case discussed earlier here and here, Congregation Etz Chaim has filed a Petition for Rehearing and Suggestion for Rehearing En Banc in the Ninth Circuit in The League of Residential Neighborhood Advocates v. City of Los Angeles, No. 06-56211 (Aug. 21, 2007).

In that opinion, a three-judge panel of the Ninth Circuit determined that Los Angeles agreed as part of a settlement of the Congregation’s RLUIPA claim to issue a conditionaluse permit (CUP) to the congregation.  Neighbors complained that citycould not override the CUP process in a settlement agreement, whichwould have provided the neighbors notice and hearing under state law.  The Ninth Circuit agreed, voiding the settlement agreement unlessthere had been a specific finding that federal law was violated. 

The petition argues that the panel got it wrong factually: the settlement did not grant the Congregation a CUP, rather, it was premised on the idea that…

Continue Reading ▪ Petition for Rehearing/En Banc in RLUIPA Settlement Case

You can read the court’s Findings of Fact, Conclusions of Law, and Order here.

I won’t be commenting on this decision since my colleagues Ken Kupchak, Mark Murakami and I are the attorneys for the property owner, but the statement of the family that owns the land is below.

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Circuit Judge Ronald Ibarra has decided in favor of a local Kona family, ruling that the County of Hawaii illegally sold its power of eminent domain to Scottsdale, Arizona-based luxury developer Hokulia.  In the County-Hokulia Development Agreement, the County allowed Hokulia to control what property would be seized, permitted Hokulia’s lawyers to threaten the Richards Family and its neighbors, and forced the County to bring lawsuits against its own citizens to take their property. 

The court ruled that the County-Hokulia Development Agreement violated state law because it illegally transferred the County’s power to take the property

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Continue Reading ▪ Court Strikes Delegation of Eminent Domain and Reimbursement to Private Party

Thanks to Professor Gideon Kanner at Gideon’s Trumpet for pointing out a recent important eminent domain case from the Court of Appeals of Washington (state), HTK Mgm’t, L.L.C. v. Rokan Partners, No. 58113-9-I (Wash. Ct. App., July 23, 2007).  The court summarized the case:

The power of eminent domain is an inherent power of the state and redelegations of that power to private parties are invalid.  Here, the Seattle Monorail Project agreed to assign its rights in an uncompleted condemnation proceeding to a private party.  Because the Seattle Monorail Project did not have the power to make such an assignment, and because the Seattle Monorail Project’s actions evidenced its intent to abandon the condemnation proceedings, we affirm the trial court on this issue.

Opinion posted here, Professor Kanner’s thoughts here.Continue Reading ▪ Eminent Domain Power Can’t Be Delegated to Private Party

In The League of Residential Neighborhood Advocates v. City of Los Angeles, No. 06-56211 (Aug. 21, 2007), which I first discussed here a few days ago, the Ninth Circuit invalidated an agreement between the city of Los Angeles and a congregation to settle the congregation’s federal RLUIPA claim.  As part of the settlement, the city agreed to issue the congregation a Conditional Use Permit (CUP).  The League objected, asserting its members had been deprived of their right to a public hearing on the CUP.  More details on the case at Professor Patty Salkin’s Law of the Land blog here. 

The Ninth invalidated the agreement because the usual procedure to issue a CUP under California law includes public hearings, which had not been held in this case due to the settlement agreement.  While a federal district court has broad powers to settle litigation, those powers could not be invoked…

Continue Reading ▪ More on 9th Circuit RLUIPA Settlement Case

Los Angeles entered into settlement agreement with a religious organization to settle a RLUIPA claim.  The city agreed as part of that settlement to issue a conditional use permit (CUP) to the congregation.  Neighbors complained that city could not agree in settlement agreement to override CUP process, which would have provided the neighbors notice and hearing under state law. 

The Ninth Circuit agreed, voiding the settlement agreement unless there had been a specific finding that federal law was violated.  Settlement of lawsuits does not give local governments a “blank check” to ignore or avoid the rights of their residents:

Municipalities may not waive or consent to a violation of their zoning laws, which are enacted for the benefit of the public. See Hansen Bros. Enters., Inc. v. Bd. of Supervisors, 907 P.2d 1324, 1343 (Cal. 1996); Trancas [Property Owners Ass’n v. City of Malibu], 138 Cal. App.

Continue Reading ▪ 9th Cir: Settlement of RLUIPA Claim Can’t Override State Law

West Hawaii Today has posted a story on an ongoing eminent domain case:

Counsel for the developer William Meheula Jr. saidinverse condemnation can only be proven if the defendants admit thatthe government is taking possession of the private property for apublic purpose. The Coupe case claims the lack of public purpose fortaking the 3-acre strip of land for the highway.

Meheula saidOceanside was not opposing the Coupe’s claims regarding public purposeand would address those during the trial, but said it was notappropriate to argue inverse condemnation at the same time.

However,Robert Thomas, counsel for the defendants, who counter sued the countyto block the eminent domain proceedings, said there are no HawaiiSupreme Court cases that can be used to support Meheula’s claims.

Ifthey do not prevail, the Coupe’s attorneys are also arguing “blight ofsummons damages,” which compensates a landowner in a condemnationaction for the damages resulting from the government’s delay in…

Continue Reading ▪ Inverse Condemnation, Eminent Domain, and Development Agreements

As a way of saying “aloha” to 2006, I’ve summarized the land use lawhighlights (orlowlights, depending on your point of view) from the Hawaii SupremeCourt, the Ninth Circuit, and the U.S. Supreme Court, roughly inchronological order.  Topics include shorelines, eminent domain,environmental impact statements, RLUIPA, vested rights, and land uselitigation procedures.

If you think I missed any key cases or events, please email me.

    
Continue Reading ▪ 2006 Land Use in Review

The University of Hawaii Law Review has published an article on vested rights and development agreements, authored by me and my Damon Key colleagues Ken Kupchak and Greg Kugle.

“Vested rights” is a body of law designed to protect property owners who rely upon government assurances — often in the form of development permits — if the government subsequently attempts to change its mind, or revoke the issued permits.

The title of the article is Arrow of Time: Vested Rights, Zoning Estoppel, and Development Agreements in Hawaii, and the citation is 27 U. Haw. L. Rev. 17 (2004).

Although the article carries a date of 2004, it was published in February 2006, since the U.H. Law Review was a tad behind schedule.

Here’s a summary of the article, from its Introduction:

The modern land regulation and development process is a complex, lengthy, expensive, and very often uncertain undertaking.  The uncertainty is compounded by the ability of the government to change the regulations applicable to property after the owner has begun planning or building but has not completed construction.

Attempting to balance these competing interests, the courts have responded by creating the doctrines of vested rights and zoning estoppel. These closely-related principles permit the government to retain flexibility in land use planning only if a property owner has not proceeded sufficiently along the development path that it would be unconstitutional or unfair to prevent it from completion.

Once an owner’s rights have “vested,” the owner possesses development rights…if the government is estopped, it is prevented from applying any future incompatible, albeit legal, regulations to the property.  Vested rights and zoning estoppel thus counterbalance the government’s unfettered ability to use its police power to regulate land uses, providing some insulation of the land development process from shifting political winds.

This Article details the development of the doctrines by the Hawai’i courts and the application of vested rights and zoning estoppel in Hawai’i land use litigation. It also discusses remedies, and analyzes alternatives to vested rights and zoning estoppel litigation such as development agreements, land swaps, and transferred development rights.

It is a fairly comprehensive treatment of vested rights and zoning estoppel law in Hawaii, and compares our courts’ approach with that of fellow jurisdictions.  It also suggests some areas where the law can be filled out more fully in Hawaii. 

Finally, it deals with the interplay between development agreements and vested rights.  You can’t understand one without understanding the other.   

If you’d like a reprint of the complete article, drop me an e-mail.

    Continue Reading ▪ Law Review Article on Vested Rights and Development Agreements