Land use law

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A round up of interesting and notable zoning decisions:

  • Zoning inspectors need a warrant – The US Court of Appeals for the Sixth Circuit, in  Jacob v. Township of West Bloomfield,531 F.3d 385 (6th Cir. July 3, 2008), held that  zoning inspectorsare required by the Fourth Amendment’s search and seizure clause mustobtain a warrant if the zoning ordinance they are purporting to enforcecan lead to criminal prosecution. Full post here.
  • Zoning can regulate use of property, not ownership – In City of Wilmington v. Hill,657 S.E.2d 670 (N.C. Ct. App. 2008), the court struck down a localordinance that required the owner of a garage apartment to resideeither inthe main residence or the apartment.  When his permit to build a garageapartment was denied and he was cited for violation of the ordinance,the property owner asserted the owner-occupancy requirement was anunconstitutional regulation of his ownership of the property. The

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Continue Reading 2008 Land Use In Review: Zoning

In a brief order available here, the Hawaii Supreme Court has rejected an application for writ of certiorari, declining to review the Intermediate Court of Appeals’ decision in Pono v. Molokai Ranch, Ltd., 119 Haw. 163, 194 P.3d 1126 (2008). 

In that opinion, the ICA held that private citizens do not have standing to enforce the state land use laws.  The ICA’s opinion was summarized on Professor Patty Salkin’s Law of the Land blog by James D. Lawlor, Esq., Editor and Publisher of the Land Use Legal Report, here.

Disclosure: we represented Molokai Ranch and filed a brief in opposition to the application for writ of certiorari, posted here.Continue Reading HAWSCT Declines To Review ICA Decision: No Private Standing To Enforce Land Use Law

There have now been a total of five briefs amicus curiae filed supporting the petition for writ of certiorari in Charles A. Pratt Construction Co. v. California Coastal Commission, No. 08-668 (cert. petition filed Nov. 18, 2008) (SCOTUS docket report here). 

We wrote here about the California Court of Appeal’s decision, reported at  76 Cal. Rptr. 2d 466 (slip opinion available here), the rehearing petition here, and the cert petition here.  The amicus briefs:

The Brief in Opposition of the California Coastal Commission is due January 16, 2009.Continue Reading More Amici Supporting Grant of Cert in Pratt (Penn Central and Williamson County)

Here is the brief amici curiae of the National Association of Home Builders, California Building Industry Association, Building Industry Association Legal Defense Foundation, and Home Builders Association of Northern California urging the U.S. Supreme Court to review the California Court of Appeal’s decision in Charles A. Pratt Const. Co. v. California Coastal Comm’n, 76 Cal. Rptr. 2d 466 (Cal. Ct. App. 2008) (slip opinion available here). 

We blogged about the lower court decision here, the rehearing petition here, and the cert petition here. We filed an amicus brief in the case, posted here.

The NAHB argues:

The increasingly complex structure of the land use regulatory system stands as an obstacle to housing development. Against this backdrop, the holdings of this Court in Penn Central Transportation Company v. City of New York, 438 U.S. 104 (1978) and Williamson County Regional Planning Commission v. Hamilton…

Continue Reading Further Amici Supporting Grant of Cert in Pratt (Penn Central and Williamson County)

It’s not often that you see an opinion piece previewing an attorney’s arguments in a pending case being published before his or her brief has been filed. Most commonly, if counsel publishes in the op-ed pages about a case, it is afterthe brief has been filed or after the court has rendered adecision. Thus, the op-ed published in today’s Honolulu Advertiser, “State court correct in protecting ceded lands,” by two attorneys for the Office of Hawaiian Affairs previewing one aspect of their argument in the ceded lands case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert.granted Oct. 1, 2008), is most interesting since it suggests that the U.S. Supreme Court cannot — or, more accurately, should not — review the Hawaii Supreme Court’s decision in Office of Hawaiian Affairs v. Housing and Community Dev. Corp. of Hawaii, 117 Haw. 174, 177 P.3d 884 (Jan. 31…

Continue Reading Op-Ed Previewing OHA Arguments In SCOTUS Ceded Lands Case: Independent and Adequate State Grounds?

In a major decision regarding eminent domain, whether the government must pay damages when its attempts to condemn property fail, and the standards applicable to challenging the government’s claim that a taking is for public use, the Hawaii Supreme Court today issued an opinion in County of Hawaii v. Richards, No. 28882, the consolidated appeal from two eminent domain lawsuitsfiled by the County in 2000 and 2005.

[Disclosure: we represent the property owner.]

The majority opinion by Justice Acoba, joined by Justices Nakayama and Duffy is posted here:

We hold that (1) a landowner in a condemnation action is entitled to damages under HRS § 101-27 where the property at issue is not finally taken in the context of a particular condemnation proceeding, irrespective of whether the government attempts to take the land through subsequent condemnation proceedings; (2) abatement does not apply where the relief sought in two…

Continue Reading HAWSCT Opinion in Eminent Domain Abuse Cases – Kona Bypass Highway

Today, on behalf of the Western Manufactured Housing Communities Association, we (me and my Damon Key colleagues Christi-Anne Kudo Chock and Matt Evans) filed an amicus brief brief urging the U.S. Supreme Court to accept for review the California Court of Appeal’s decision in Charles A. Pratt Const. Co. v. California Coastal Comm’n, 76 Cal. Rptr. 2d 466 (Cal. Ct. App. 2008) (slip opinion available here).  Our brief is posted here.

We blogged about the lower court decision here, the rehearing petition here, and the cert petition here.

The two Questions Presented by the cert petition involve whether the ad hoc Penn Central test for whether government action effects a regulatory taking of property can be reduced to bright-line rules, and whether, under the Williamson County ripeness rules, a property owner must continue to pursue a a development application when the reviewing agency…

Continue Reading Our Amicus Brief in Pratt Construction Co. v. California Coastal Commission

When must a landowner challenge a land use regulation she claims illegally impact her property?  Talk to a lawyer, and they’re usually going to say that you should act sooner than later, and often the time limitations are very short. Under California law, for example, facial challenges to a zoning ordinance must be brought within 90 days of enactment:

Except as provided in subdivision (d), no action or proceeding shall be maintained in any of the following cases by any person unless the action or proceeding is commenced and service is made on the legislative body within 90 days after the legislative body’s decision:

. . . .

(B) To attack, review, set aside, void, or annul the decision of a legislative body to adopt or amend a zoning ordinance.

Cal. Gov’t Code § 65009(c)(1)(B). But what about when an ordinance is amended — does the enactment of a “new”…

Continue Reading Cal. Court of Appeals: Extension of Ordinance Allows New Inverse Condemnation Challenge

The State of Washington, along with 31 others have filed an amicus brief in support of the State of Hawaii in the ceded lands case (available here) which argues:

The amicus curiae states are deeply concerned with the lower court’s conclusion that the Apology Resolution creates or recognizes claims that cloud the title to Hawaii’s state lands. As part of the “solemn agreement” embodied in the admission act, every state admitted into the Union since 1802 has received grants of land from the United States. See Andrus v. Utah, 446 U.S. 500 (1980). The acreage granted to the states is substantial, and the lands and proceeds from the lands support vital state institutions and programs across the nation. “Between 1803 and 1962, the United States granted a total of some 330,000,000 acres to the States for all purposes. Of these, some 78,000,000 acres were given in support of common…

Continue Reading Final Amicus Brief Supporting the State of Hawaii in Ceded Lands Case