Inverse condemnation

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The transcript of the June 2, 2008 arguments in the federal lawsuit challenging Maui’s affordable (“workforce”) housing exaction has been released. That hearing resulted in a lengthy opinion by the District Court holding that the plaintiff’s Nollan/Dolan claims were not ripe, and a recent order holding that the facial due process and equal protection claims should be dismissed.

The most interesting part of the hearing was when the county admitted the motivation for the 40-50% exaction was to not give all infrastructure away to “millionaires from the Mainland,” or even “millionaires on Maui.”  The court, as one might expect, had a bit of difficulty with that reasoning:

MS. D’ENBEAU: And this is for people, good solid middle income people who find themselves priced out of the market on Maui. So the county council in its wisdom decided, All right, since we have limited water, we have limited roads, …

Continue Reading Transcript of Arguments in Maui Affordable Housing Exaction Case

When a court labels the Nollan/Dolan line of decisions “so-called exaction cases” (and your claim is that an exaction is not related or proportional) you know right away you are in trouble.

First, the dry summary.  In Action Apartment Ass’n v. City of Santa Monica,No. B201176 (Aug. 28, 2008) (slip opinion available here), the California Court of Appeal (SecondDistrict) denied a facial challenge to the city of Santa Monica’saffordable housing exaction ordinance.  The court relied upon thelegislative/adjudicative distinction holding that Nollan/Dolananalysis is only applicable to individual decisions regarding permitapplications, and cannot be used to challenge legislative decisionsgenerally applicable.

Second, some background on “facial” challenges as contrasted with “as applied” challenges. A “facial” takings challenge to a statute or ordinance asserts thatits mere enactment is unconstitutional.  The U.S.Supreme Court recently explained the nature of facial challenges:

Under United States v. Salerno,481 U. S.

Continue Reading My So-Called Exaction Case: More on Action Apartment

In Action Apartment Ass’n v. City of Santa Monica, No. B201176 (Aug. 28, 2008), the California Court of Appeal (Second District) denied a facial challenge to the city of Santa Monica’s affordable housing exaction ordinance.  The court relied upon the legislative/adjudicative distinction holding that Nollan/Dolan analysis is only applicable to individual decisions regarding permit applications, and cannot be used to challenge legislative decisions generally applicable. 

More about the case after a chance to digest it. The court’s opinion is available here.Continue Reading California Court Rejects Facial Nollan/Dolan Claim to Affordable Housing Exaction

The property owners have asked the U.S. Supreme Court 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 cert petition contains three Questions Presented:

1.     Should the Court overrule Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City insofar as it requires property owners to seek compensation in state court to ripen a federal takings claim, where four justices of this Court declared in San Remo Hotel v. City and County of San Francisco that such a rule is “mistaken” due to its lack of doctrinal underpinning and preclusive effect on federal jurisdiction?

2.     Is a property owner barred from bringing a procedural due process claim against a defective land use hearing simply because the owner also raised a regulatory takings claim subject to Williamson County, as the Sixth…

Continue Reading Cert Petition Asks Supreme Court to Overrule Williamson County

So the federal government tells you that the device you are making is not a “machine gun” and you go ahead and start to manufacture them.  Times change, though, and three years later “upon further review” (as they say in the NFL), the government tells you that the device is is an illegal “machine gun” and that you can’t sell it to anyone but law enforcement agencies.

In Akins v. United States, No. 08-136C (July 24, 2008), the Court of Federal Claims dismissed a claim that the government’s reversal of position amounted to a taking of property without compensation. 

The plaintiff had obtained a patent from the U.S. Patent and Trademark Office for a device to increase the rate as which a semi-automatic rifle fires.  (Go here to view the patent.)  In other words, it would make a rifle shoot faster.  The Bureau of Alcohol, Tobacco, Firearms and Explosives…

Continue Reading Three Times The Pain, And Your Own Self To Blame*

An interesting decision from the California Court of Appeals (First Appellate District) about a distinct branch of inverse condemnation law — government liability for flooding and erosion. 

Generally, any physical invasion of property by or caused by the government, no matter how small, is compensable, either in eminent domain, inverse condemnation, or tort.  See, e.g., Pumpelly v. Green Bay Mississippi Canal Co., 80 U.S. (13 Wall.) 166 (1871).  This is true whether the invasion is by government agents, see, e.g., D & D Land Holdings v. United States, No. 06-877L (Court of Fed. Cl., June 30, 2008), members of the public at government invitation, see, e.g., Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987); Kaiser Aetna v. United States, 444 U.S. 164 (1979), or by permanent or temporary floodwaters.  See, e.g., Jacobs v. United States, 290…

Continue Reading Cal. Court of Appeals: Goverment Does Not Have To Own The Entire Faulty Drainage System To Be Liable For Inverse Condemnation

Here is what the ripeness requirements of Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985) have brought us: a seemingly endless procedural game where property owners are forced to keep guessing which shell the pea is under, all the while paying their attorneys to litigate matters having nothing to do with the question of whether a local government’s regulations have gone “too far.”  The latest example is West Linn Corporate Park, LLC v. City of West Linn, Nos. 05-36061, 05-46062 (9th Cir. July 28, 2008), a case in which the Ninth Circuit, after removal from state court and trial in federal court, referred the takings issues in the case to the Oregon Supreme Court, effectively handing off the decision in the case to that court. 

Like a good plaintiff is supposed to do under Williamson County, West Linn Corporate Park (WLCP) began this…

Continue Reading Takings Claim Goes From State Court To Federal Court, And Now Back To State Court

In D & D Land Holdings v. United States, No. 06-877L (filed under seal: June 25, 2008, reissued: June 30, 2008), the Court of Federal Claims held the landowner’s claim that the Border Patrol’s activities on its land resulted in a compensable Fifth Amendment taking was not barred by the six-year statute of limitations, and that the landowner had a property right to keep Border Patrol agents off its property.  The CFC denied the federal government’s motions to dismiss and for summary judgment. The court summarized the plaintiff’s complaint:

[P]laintiff claims that defendant’s construction of a border fence between the United States and Mexico resulted in the channeling of illegal immigrants onto its property “where they can be rounded up, arrested, and deported.”  According to plaintiff, Border Patrol agents utilize its property for these purposes on an “almost daily” basis.

Slip op. at 1 (citiation omitted).  The most interesting…

Continue Reading PING: blu ray playerURL: http://3dwise.co.uk/IP: 108.174.194.111BLOG NAME: blu ray playerDATE: 02/06/2013 01:46:39 PMinversecondemnation.com: CFC: No “Border Patrol” Servitude

In Citizens’ Alliance for Property Rights v. Sims, No. 59416-8-1 (Wash. Ct. App. July 7, 2008), the Court of Appeals of the State of Washington held that a county ordinance which prohibited  a landowner from clearing 50% to 65% of his property violated a state statute prohibiting counties from imposing a “tax, fee, or charge” on land development.

The court relied on Isla Verde Int. Holdings, Inc. v. City of Camas, 49 P.3d 867 (Wa. 2002) to find that King County Ordinance 15053 §14 violates the prohibition on taxing land development in Rev. Code of Washington 82.02.020.  That statute provides, in part:

Except as provided in RCW 82.02.050 through 82.02.090,no county, city, town, or other municipal corporation shall impose anytax, fee, or charge, either direct or indirect, on the construction orreconstruction of residential buildings, commercial buildings,industrial buildings, or on any other building or building space orappurtenance…

Continue Reading Washington (State) Court Of Appeals: One-Size-Fits-All Open Space Regulation Is Not Roughly Proportional

Relying on Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985), the US District Court for the District of Hawaii today denied a property owner’s motion for summary judgment in a case challenging the County of Maui’s “workforce housing” exaction ordinance.  Kamaole Pointe Development LP v. County of Maui, No. 07-00447 DAE.

The ordinance requires a property owner to commit 40% to 50% of the units in most new housing developments to below-market-rate ownership or rental.  A property owner subject to this exaction challenged the ordinance under the Nollan/Dolan doctrine of unconstitutional exactions, which requires the governmentto show a substantial nexus between the exaction and some problemcaused by the property owner before the government may demand tributeas a condition of development.  The exaction must also be roughlyproportional to the problem.  See this post for more on the nexus analysis.

I posted on the…

Continue Reading Nollan/Dolan Challenge to Maui’s 50% Housing Exaction Is A Takings Claim Subject To Williamson County