Land use law

Subscribe to Land use law via RSS

You have to like any sport that the New York Times describes as “like driving full speed through an endless loop of red lights. Luck often expires in a cloudburst of steam and scattered auto parts.” That’s how the Times described “figure 8 car racing.”

But not everyone likes figure 8 racing or related activities, it seems. After a property owner stored several of his race cars on his land and annoyed some residents of Indianola, Iowa, the city adopted an ordinance requiring land on which figure 8 cars (and others) are stored to be enclosed by a fence if two or more cars are present. The property owner sued the city in state court alleging a regulatory taking and the city removed the case to federal court. After a bench trial, the district court held that the ordinance was not a taking.

In Iowa Assuarnce Corp. …

Continue Reading Eighth Circuit: No Physical Take For Fence Requirement

Here’s what we’re reading this fine summer Monday:

  • Land Use Institute – Although we won’t be able to attend the upcoming annual ALI-ABA program in Boston due to a scheduling conflict, we have attended several times in the recent past, and can highly recommend it. The faculty, as usual, is stellar, and includes colleagues Michael Berger,  Amy Brigham Boulris, Bob Foster, Patricia Salkin, Julie Tappendorf, and Gideon Kanner. 
  • 2011 Takings Conference – Another law conference (November 19, 2011), this one devoted (mostly) to how to defeat regulatory

…
Continue Reading Monday Round-Up: Vested Rights, Land Use Institute, And More

Not the California Court of Appeals, Second District. Edna Valley Watch v. County of San Luis Obispo, No. B223653 (Aug 2, 2011), slip op. at 2, n.2 .

Oh yeah, the holding: administrative proceedings are “actions” thus entitling parties — opponents of the building of a church — who participated in those proceedings and in the subsequent lawsuit to attorney’s fees. Continue Reading “The numbers are from [the appellants’] motion for attorney’s fees. Their mathematics appears to be incorrect. But who is going to care about a few dollars?”

One of the very first things we addressed in the first year Property class (wonderfully taught by Allen Smith, visiting from Michigan Law) was the ownership of animals: when do wild animals become someone’s “property?” And the very first Latin phrase we incorporated into our new legal lexicon was ferae naturae, the law of wild animals.

In that vein, we introduce you to Ferae Naturae, a new law blog (to us, at least) on the law of animals, wild and otherwise. The blog is authored by our ABA State and Local Government Law colleague Amy Lavine, and although she posts on a wider scope of issues than the property law aspects of wild animals, it’s still an informative and worthwhile read.

Recent posts include “How to fight criminal charges when you get caught with a crocodile in your bathtub,” “Raccoons are not ‘cuddly…

Continue Reading New Law Blog To Follow: Ferae Naturae

Later this week, I’ll be attending the annual scrum of lawyers known as the American Bar Association Annual Meeting, being held this year in Toronto, Ontario, Canada. I’ll be attending the gatherings of the State & Local Government Law Section and the Litigation Section (Condemnation, Zoning & Land Use Committee), and the meeting of the Council of Appellate Lawyers.

I’m the CLE Director for the State & Local Government Law Section, and I’m pretty excited about our two featured programs. The first is Protecting Heirs Property: Uniform Laws and Social Justice, a presentation about the new uniform act dealing with the problem of fractional ownership by extended families of land, mostly in the rural south. The program will be moderated by George Mason U lawprof (and regulatory takings guru) Steven Eagle, and includes four expert speakers on the subject. Professor Eagle always asks provocative questions and…

Continue Reading ABA Annual Meeting, Toronto

Here’s the latest in a case we’ve been following. In Bridge Aina Lea, LLC v. State of Hawaii Land Use Comm’n, the plaintiff filed its complaint in state circuit court alleging that the LUC violated state and federal law (due process, takings, vested rights, and more) when it reclassified “urban” land on the Big Island to “agriculture.” 

The defendants then removed the case to federal court, and have now filed a motion to dismiss that contains a host of defenses: immunity, the unavailability of prospective injunctive relief, whether certain defendants are “persons” under 42 U.S.C. § 1983, abstention on the federal takings claim, the lack of a state damage remedy for deprivation of constitutional rights, and zoning estoppel, among others.

Just the thing to give you flashbacks to your Federal Courts class.

Update: here‘s the errata filed just after the motion to dismiss.

Motion to Dismiss, Bridge at …

Continue Reading Latest In Big Island Takings And Vested Rights Challenge To LUC Reclassification

In a case we’ve been following, a San Francisco Bay Area municipality has filed a cert petition asking the U.S. Supreme Court to review the Ninth Circuit’s opinion in International Church of the Foursquare Gospel v. City of San Leandro, No. 09-15163 (Feb. 15, 2011). In that case, the Ninth Circuit held that the church had established enough to get to trial under RLUIPA’s “substantial burden” provision, and reversed the district court’s grant of summary judgment to the city.

The court held that there was a triable issue of fact regarding whether the city’s denial of the church‘s request for a an amendment to the zoning code and a conditional use permit to allow the construction of new facilities on industrial land imposed a substantial burden on the church’s religious exercise under RLUIPA. The court applied the “strict scrutiny” standard of review, and held that the city failed…

Continue Reading New Cert Petition: What Standard Of Review For RLUIPA “Substantial Burden” Cases?

We tend not to think of churches as “blighting” their neighborhoods. But what about a church in a downtown “entertainment” district, where the nearby businesses are bars, nightclubs, and liquor stores, and placing a church in the area might limit the availability of liquor licenses?

In a sort of reversal of the usual LULU (locally undersirable land uses) issue, in Centro Familiar Cristiano Buenas Nuevas v. City of Yuma, No. 09-15442 (July 12, 2011), the Ninth Circuit considered whether a municipality ran afoul of RLUIPA’s “equal terms” provision when it required a church to seek a conditional use permit before it could relocate to a downtown entertainment area, and then denied the permit because it might limit the liquor licenses that could be issued to nearby businesses.

Arizona law prohibits issuance of a liquor license to any new bar, nightclub, or liquor store within 300 feet of a church…

Continue Reading 9th Circuit: Church’s Use Permit Requirement Violates RLUIPA Equal Terms

On this Monday we bring you these stories, all with an international flavor:

  • More from India, on Kelo-style takings issues: the Wall Street Journal reports that “India Grapples With Land Acquisition Rules” (“Indian government ministers are vowing to bring legislation to overhaul the country’s ancient land acquisition laws when Parliament begins again next month, and everyone agrees that’s a good thing. Unfortunately, that’s where agreement ends. The biggest dilemmas are over figuring out who should get compensated when land is taken, what constitutes a fair price, and, most difficult of all, when exactly the government should use its

…
Continue Reading International Monday

stlouis

Is this a “sign?” The city of St. Louis thought so. The city’s building inspection department issued a citation to the folks who commissioned the painting on a residential duplex, telling them they needed a permit. So they asked the city for one.

Denied. The zoning code does not allow for such signs. It’s too big. The building doesn’t have street frontage. Signs can only be incidental to the building’s use, and the building is a two-family home.

Appeal to the Board of Adjustment. No adjustment: it’s not exempt as a “work of art,” a “civil symbol,” or (get this) a “crest.” Those things are not subject to the sign code. Paint a big flag, a mural, (or your family crest?) and you don’t need a permit. But this is a sign. And signs need a permit.

Next stop, state court. The sign guys filed a lawsuit for…

Continue Reading Eighth Circuit Sees The Sign – Eminent Domain Abuse Protest Mural Gets First Amendment OK