Confirming that Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009) is shaping up to be one of the most interesting cases in the Supreme Court’s term, even more amici briefs are coming in supporting the petitioner/property owners.
In an earlier post, we noted that eight briefs have been filed, and now are posting four more:
Continue Reading Even More Amici Supporting The Property Owners In Beach Takings Case
In an expansive opinion in Township of Readington v. Solberg Aviation Co., No. A-3083-07T3 (Aug. 19, 2009), the Appellate Division of the New Jersey Superior Court determined that a municipality abused its condemnation power when it attempted to take property to thwart the expansion of a nearby airport.
The facts are set forth in detail in the opinion and will not be repeated here, but the most interesting portion of the opinion deals with the property owner’s claim of pretext. It argued that the condemnation was “at least substantially motivated, by the desire of Township officials to limit airport expansion and to prevent [Solberg-Hunterdon Airport] from becoming a jetport.” Slip op. at 35.
The Township did not dispute the contention, but argued the motivations of individual officials are not relevant in determining the public use or purpose of a taking. Under New Jersey law, a court will not overturn a decision to use eminent domain “in the absence of an affirmative showing of fraud, bad faith or manifest abuse.” Township of West Orange v. 769 Assocs.,LLC, 800 A.2d 86, 90 (N.J. 2002). A condemnation may be set aside when the “real purpose” is other than the “stated purpose.” See Casino Reinvestment Dev. Auth. v. Banin, 727 A.2d 102 (N.J. Super. 1998).
The court examined the objective factors surrounding the adoption of the condemnation ordinance, and concluded they “impugned its validity.” Slip op. at 38. First, it was unlikely to achieve its stated purpose. The taking was purportedly for
open space and farmland preservation[,] land for recreational uses, conservation of natural resources, wetlands protection, water quality protection, preservation of critical wildlife habitat, historic preservation, airport preservation, and preservation of community character.
Slip op. at 39. However, “[r]eports prepared by the Township’s experts indicate that the airport is in poor physical condition and has limited prospects for future economic success.” Id. The court compared expert reports which questioned the viability of the airport. See id. at 40-42. The court also looked at the context of the condemnation to conclude the real purpose of the taking was to control airport operations, and that much of the area was already open space. See slip op. at 43-45.
The fact that the condemnation of development rights to the airport will not achieve its stated purposes indicates that the true purpose of the condemnation was to secure a greater measure of land use authority over the airport than the Township currently enjoys. Further, objective evidence suggests that the condemnation was initiated to secure Township control over airport operations. These are improper purposes in that they subvert the Commissioner’s ultimate authority over aeronautical facilities.
Slip op. at 44. The court concluded the Township abused its power of eminent domain “to avoid the limitations on municipal zoning power imposed by State airport statutes and regulations,” and “is not within the police powers delegated to the municipalities by the Legislature.” Id. at 48. The full opinion is worth a read.
Continue Reading NJ Appeals Ct: Eminent Domain Pretext Determined Objectively, By Context
More briefs have been filed in support of the Petitioner/property owner in Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009).
We posted the brief of the Cato Institute, Pacific Legal Foundation and NFIB here.
The petitioner’s merits brief is posted here. More information on the case on our resource page.Continue Reading Amici Briefs Supporting The Property Owners In Beach Takings Case
Here’s the latest in the Maui affordable housing case now being litigated in the U.S. District Court, Kamaole Pointe Development LP v. County of Maui, No. 07-00447 DAE (D. Haw.). The case is a challenge to the County of Maui’s “workforce housing”ordinance, enacted in in 2006, which imposes a40% to 50% affordable requirement on new housing developments of fiveor more units, and on an application to subdivide a lot into five ormore parcels. In lieu of providing actual units, a developer may eitherpay a fee equivalent to 30% of the total project sales, donate improvedland of the same value, or donate raw land valued at 200% of thein-lieu fee. Ordinance 3418 is posted here. We posted on the case earlier here and here.
The complaint asserts claims for “unconstitutional conditions,”regulatory takings, substantive due process, equal protection, andclaims under Hawaii law. The Complaint for Declaratory and InjunctiveRelief (filed…
Continue Reading Latest In Maui Affordable Housing Exaction Case: Cross-Motions On Due Process
From The Destin Log, the hometown newspaper from the location of the U.S. Supreme Court case on judicial takings and beachfront land (Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009)), comes the report “Destin may be Sotomayor’s first test: Analysts think new justice would vote against private property owners in beach restoration case.”
A new face on the Supreme Court may help settle an old but simmering issue that has divided Destin for years.
With the city about to become ground zero for beach restorationbattles nationwide, The Log contacted legal experts and lobbyist groupsto ask where Sonia Sotomayor would stand on the case and whether hernomination could swing the decision.
Robert Thomas, a land use and appellate lawyer based in Honolulu,Hawaii, said when the Destin beach restoration case goes before thehigh court sometime this winter, it will…
Continue Reading Report: Beachfront Takings Case May Be Sotomayor’s First Test
These past few days, I’ve been attending the annual meeting of the ABA in Chicago. It was a chance to meet new colleagues, associate faces with those whom I’ve only had e-contact, and reacquaint myself with old friends.
I’m also the new Chair of the Condemnation Law Committee of the State & Local Government Law Section. I’m honored to have been delegated the task of leading a group which includes some of the most experienced and learned condemnation lawyers in the country among its members, from both condemnor and condemnee perspective.
One of the jobs of the Chair is to encourage those who are not section and committee members to join us. In that vein, here are some of the benefits of participating:
…
Continue Reading ABA Section Of State & Local Gov’t Law – Condemnation Law Committee
In Cloverleaf Realty of New York, Inc. v. Town of Wawayanda, No. 07-3405-cv (July 15, 2009), the Second Circuit held that a dismissal by a state court on statute of limitations ground does not preclude the plaintiff from bringing the same claim in a federal court which has a longer statute of limitations.
Needing to fund water and sewer improvements, the town approved an improvement district which included Cloverleaf’s two parcels. The taxes were assessed ad valorem (on the assessed values of the properties). Notice of the hearing regarding objections was published in the newspaper. After Cloverleaf paid the taxes under protest, it brought an action in New York state court seeking to declare the town’s assessments of Cloverleaf’s property illegal on two grounds. First, that the assessments should have been made on a “benefit basis” — taxation based on each parcel’s proportional share of the benefits — and…
In a notable case worth following, the Hawaii Intermediate Court of Appeals is considering a new appeal involving whether a per se regulatory takings claim is ripe under Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), and whether in order to ripen a takings claim, a property owner is obligated to seek a legislative change to the regulations applicable to the property.
In Leone v. County of Maui, No.29696, the trial court refused to consider a property owner’s claim that state law and local regulations resulted in a regulatory taking of beachfront property on the south shore of Maui. The Opening Brief filed by the property owner is available here.
The case involves an undeveloped 1/2 acre beachfront parcel, one of 11 similarly-situated lots. The zoning on the property is “Hotel-Multifamily,” which permits residential use. The Community Plan (Maui County’s…
Continue Reading Must A Property Owner Seek A Change In The Law In Order To Ripen A Takings Claim?
What do you call an appeal in which the Supreme Court doesn’t address any of your five questions presented?
If you are the petitioner’s attorneys in Save Diamond Head Waters LLC v. Hans Hedemann Surf, Inc., No. 27804 (July 13, 2009), you’d call it “victory.”
In that case — which was being considered by the Hawaii Supreme Court on secondary cert review — the petitioners asserted the Intermediate Court of Appeals “gravely erred” (see Haw. Rev. Stat. § 602-59(b)(1)) when it held the Director of the Honolulu Department of Planning and Permitting was within his authority when he concluded a surf school’s use of a space in a hotel lobby would be a valid nonconforming use if the school adhered to certain conditions imposed by the Director.
Usually, cases about nonconforming uses aren’t exactly the most interesting to read. Commonly known as “grandfathering,” and…
Continue Reading HAWSCT On Nonconforming Uses: You Can’t Change What You Didn’t Establish
The Senate’s hearings on Circuit Judge Sonia Sotomayor’s nomination as an Associate Justice of the U.S. Supreme Court begin today. Here’s our summary of cases in which she was involved as a circuit and district judge on the issue.
If confirmed, we may find out her thinking about regulatory takings very soon, because in its next Term, the Court will be reviewing Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009), a case about the taking of littoral (beachfront) land in Florida. Our summary of the issues in that case is here.
If she is elevated to the Court, this case could prove especially interesting because her one unabashedly pro-property owner decision as a Second Circuit judge focused on procedural due process. In Brody v. Village of Port Chester, 434 F.3d 121 (2d Cir. 2005), the court held…
Continue Reading Sotomayor On Takings And Property Rights Issues