Land use law

Subscribe to Land use law via RSS

Beginning at 9:00 a.m. Central Time today, the Texas Supreme Court heard oral arguments in Severance v. Patterson, No. 09-0378 (Nov. 5, 2010), the case in which the court held 6-2 that Texas does not recognize a “rolling” public beachfront access easement, without proof of prescription. In March, the court agreed to rehear the case.

Launch the archived video feed in a separate window by clicking this link, then follow the live blog archive below, where we added our thoughts and background. Our Damon Key colleague Rebecca Copeland provided Texas background (she practiced in the Texas appeals courts before joining our firm, so knows what “writ ref’d n.r.e.” means).

Background on the case, including the briefs the the court’s original opinion, are posted here.

Continue Reading Live Blog of Texas Supreme Court Argument In Severance (Beach “Rolling Easement” Case)

What we are reading today:

  • Should the Courts Help Los Angeles Commit Fiscal Suicide? – Gideon Kanner’s takedown of the recent California Court of Appeal decision in City of Los Angeles v. Superior Court, No. B225082 (Apr. 12, 2011), which held that in order to make out a claim for inequitable precondemnation activities, the city must actually have filed (or be contemplating filing) an eminent domain action. Because it hadn’t, the property owner could not get summary judgment on the Klopping claim. But as one colleague noted, if the city was not buying up these properties around LAX for a public purpose, just what was it doing? Also worth reading is Brad Kuhn‘s summary and analysis of the case here.

…
Continue Reading Monday Round-Up

Here’s Bettendorf v. St. Croix County, No. 10-1359 (Jan. 20, 2011) a 2-1 decision from the U.S. Court of Appeals for the Seventh Circuit, another regulatory takings opinion we’ve been meaning to post for a while. The case involves a property owner’s claim that the county’s changing the zoning on his land from commercial to agricultural-residential was a taking and a violation of due process. The county changed the zoning in response to a state court judgment holding that the commercial zoning was void because it contained a provision that it would revert to agricultural-residential upon the property owner’s death or a sale to a new owner. The owner sued to invalidate the condition, but the state court invalidated the entire zoning ordinance. Put that one in the “be careful what you ask for” department.

But before you get to the majority’s treatment of the merits (no taking, no…

Continue Reading 7th Circuit Rejects Takings Claim On The Merits. But How?

Dark-and-stormy-nightWe’ve had the U.S. Court of Appeals for the Fourth Circuit’s opinion in Henry v. Jefferson County Comm’n, No. 09-1546 (Mar. 3, 2011) near the top of our to-read list for a while, because it is a regulatory takings case. But after finally reading it, realized that the opinion is a must read for another reason.

For how often does a judicial opinion begin with the words, “We begin by begging the reader’s indulgence as we summarize the frequently litigated facts underlying Henry’s claims and the byzantine procedural history accompanying them.”

While we appreciate the court paying us this courtesy, the archaic phrasing reminded us of those godawful entries in the annual Bulwer-Lytton bad writing contest. You know, the ones that attempt to emulate the literary depths of the opening sentence of one of Bulwer-Lytton’s novels:

It was a dark and stormy night; the rain fell in torrents–except…

Continue Reading The 4th Circuit’s Entry In The Bulwer-Lytton Contest

The April 2011 edition of the Zoning and Planning Law Report (West/Thomson Reuters) features my article Supreme Court Preview: Voting as Speech When a Government Official Has a Conflict of Interest – “Analogy Gone Wild” or First Amendment Right?, 34 Zoning & Planning L. Rptr. (Apr. 2011), which summarizes the issues in Comm’n on Ethics of the State of Nevada v. Carrigan, No. 10-568 (cert. granted Jan 7, 2011).

From the Introduction:

In late April 2011, the U.S. Supreme Court will hear oral arguments in Nevada Commission on Ethics v. Carrigan, reviewing a Nevada Supreme Court decision holding that a city councilman had a First Amendment right to cast a vote on a development proposal in which it appeared he had a conflict of interest. The Nevada court invalidated a state statute under which the state Ethics Commission censured the councilman because he did not recuse himself…

Continue Reading New Article: Voting As Speech When A Government Official Has A Conflict Of Interest – “Analogy Gone Wild” Or First Amendment Right?

In DeCook v. Rochester Int’l Airport Joint Zoning Bd., No. A09-96 (Mar. 30, 2011), the Minnesota Supreme Court held that a $170,000 decrease in market value casued by an airport zoning ordinance was a compensable regulatory taking. Applying the Minnesota Constitution’s takings clause, the court held that when a regulation designed to benefit a “specific public or governmental enterprise” causes a “substantial and measurable decline in market value,” that compensation is due, even if it might not be a taking under the federal Penn Central test.

In 2002, the Airport Joint Zoning Board adopted an ordinance which increased the size of a runway safety zone that included the DeCook property. Most of the DeCook land is outside of “Safety Zone A,” but those regulations “allow fewer land uses” on their property:

On September 18, 2002, the Board enacted Ordinance No. 4, the ordinance at issue in this case. Ordinance…

Continue Reading Minn S Ct: $170k Decrease In Value Is A Regulatory Taking … Under State Constitution

An interesting story from today’s San Francisco Chronicle, forwarded by a colleague. In Bolinas oceanfront parcel $3.9 million, no building, Peter Fimrite reports on a 47 acre parcel of land in the notoriously I-got-mine Marin County, California community of Bolinas:

Kidson bought the land for $250,000 from the Smadbecks’ heir Louis Smadbeck and Howard Sloane in 2004, according to county records. But, this uniquely insular town opposes virtually all development and closely guards its long-standing moratorium on water meter hookups.

So neighbors were horrified when Kidson immediately began building trails to the beach, drilling exploratory wells and making plans for a three-story barn house.

“I told him, ‘You might want to talk to the neighbors,’ and he immediately got angry, saying he had a right to build,” said Polla Pratt, 46, who lives on Ocean Parkway overlooking the spot Kidson had chosen for his home. “It became…

Continue Reading A $3.9 Million View — And Not Much Else, But A Takings Claim

In Colony Cove Properties, LLC v. City of Carson, No. 09-57039 (Mar. 28, 2011), the U.S. Court of Appeals for the Ninth Circuit affirmed the District Court’s dismissal of a property owner’s claim that the City of Carson’s mobilehome rent control ordinance is a taking. The District Court dismissed the facial takings claim because it was filed outside the statute of limitations, and the as-applied takings challenge as unripe.

We’ll review the opinion in detail to see if there is anything more worth posting about, or whether this is another one in the long series of Williamson County ripeness cases.

Colony Cove Properties, LLC v. City of Carson, No 09-57039 (9th Cir 3/28/2011)Continue Reading 9th Circuit: Mobilehome Rent Control Takings Claim Too Early Or Too Late, Take Your Pick

Update: here‘s the Respondent’s Brief, filed yesterday (courtesy of Election Law Blog – the author is one of the counsel for Mr. Carrigan)

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

In Comm’n on Ethics of the State of Nevada v. Carrigan, No. 10-568 (cert. granted Jan 7, 2011), the U.S. Supreme Court is considering whether a state statute which requires elected officials to recuse themselves from considering matters on which they appear to have conflicts of interest impermissibly infringes upon a city councilman’s First Amendment rights.

In that case, the Nevada Supreme Court invalidated a Nevada law which required a Sparks, Nevada city councilmember to recuse himself from considering an application to develop a hotel/casino because the developer’s “consultant” was a “longtime professional and personal friend” of the councilmember, and had been his campaign manager. We’ve been following the case closely, since the Court’s decision could have a broad impact on the land…

Continue Reading Latest Briefs In SCOTUS Ethics Case: Do Elected Officials With Conflicts Of Interest Have A Right To Vote Anyway?

This just in: in Trinity Park, L.P. v. City of Sunnyvale, No. H035573 (Mar. 24, 2011), the California Court of Appeal (6th District) held that the City’s approval of the property owner’s residential development, conditioned upon the developer reserving 12 1/2% of the units for sale at below the market rate, was not a “development fee, dedication, reservation or ‘other exaction’ within the meaning of [Cal.Gov’t Code §] 66020 where, as here, the affordable housing requirement was clearly not intended to ‘defra[y] all or a portion of the cost of public facilities related to the development project.'” Slip op. at 2.

The narrow issue in the case was the statute of limitations (statute of repose, if you want to be more technical). California law requires challenges to conditions on development permits to be made within 90 days, while challenges to development fees, dedications, reservations and “other exactions”…

Continue Reading Cal Ct App: When Is An Affordable Housing Exaction Not Exactly An “Exaction?”