Land use law

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Revisiting a decision from September 2007, the Ninth Circuit revised the opinion in Equities Lifestyle Prop., Inc., v. County of San Luis Obispo (No. 05-55406), a decision we originally analyzed here.  In the original decision, the Ninth Circuit affirmed the dismissal of a challenge to avoter-approved mobilehome “rent stabilization” (rent control) ordinance. The landowners sought rehearing or en banc review of the originalopinion, and although the court denied both, it withdrew the earlieropinion and issued a new one.

No change in result — the landowner still lost — but the court revised the opinion, deleting one section, and adding another. In the original opinion, the panel affirmed the dismissal of a challenge to avoter-approved mobilehome “rent stabilization” (rent control)ordinance.  The court ruled:

  • Standing: the county challenged the ability ofthe plaintiff to bring suit because it did not have “title ownership”of the mobilehome park.  The court held that

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Continue Reading 9th Circuit Takes Belt and Suspenders Approach to Takings and Due Process Challenge to Cal. Rent Control Ordinance

On October 1, 2008, the U.S. Supreme Court agreed to 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, 2008).  That decision heldCongress’ “Apology Resolution” required the State of Hawaii to reach apolitical settlement with Native Hawaiians, and prohibited the Statefrom selling, exchanging, or transferring the ceded lands until thatpolitical resolution was accomplished. [Disclosure: I filed an amicusbrief in the case, supporting the state’s petition.]

The Honolulu Advertiser reported about a rally yesterday at the State Capitol urging the Lingle administration to “rescind its U.S. Supreme Court appeal of a state court ruling that bars the state from selling ceded lands until claims of Native Hawaiians are resolved.” “Groups oppose ceded-land appeal to U.S. Supreme Court.”  This is the “ceded lands” case, Hawaii v. Office of Hawaiian Affairs, No. …

Continue Reading Too Late For “Never Mind” in the Ceded Lands Case

When four justices of the U.S. Supreme Court tell you that a case needs to be overruled, and district judges acknowledge the case “has led to a number of serious problems,” you know something is seriously wrong. Yes, we’re back to Williamson County.

In San Remo Hotel, L.P. v. City & County of San Francisco,545 U.S. 323 (2005) four Justices noted the ripeness rules of Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985) produce absurd results and deny federalcourt review of federal constitutional rights. Chief Justice Rehnquistwrote:

Finally, Williamson County‘sstate-litigation rule has created some real anomalies, justifying ourrevisiting the issue… I joined the opinion of the Court in Williamson County.But further reflection and experience lead me to think that thejustifications for its state-litigation requirement are suspect, whileits impact on takings plaintiffs is dramatic… In an appropriate…

Continue Reading New Cert Petition on Penn Central and (Yet Again) Williamson County

On November 25, 2008, the Supreme Court will consider whether 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 petition expressly asks the Court to overrule Williamson County.  We’ve detailed the kafkaesque nature of the Williamson County rule many times, most recently here (in a post about another pending petition which asks the Court to overrule the case).  Here are the briefs in Braun:

The Court’s docket report is available here. The cert petition contains three Questions Presented:

1.     Should the Court overrule Williamson County Regional Planning Commission v. Hamilton Bank of Johnson Cityinsofar as it requires property owners to seek compensation in statecourt to…

Continue Reading Overrule Williamson County

So much of “land use” and eminent domain law also involves the law of state, local, and municipal government. Thus, its good to see the folks at the International Municipal Lawyers Association have started blogging.  Check out IMLA’s Local Government Blog and subscribe to the RSS feed. Of special note are the posts on land use issues authored by land use law expert Dwight Merriam, a great addition to the law blog world. Continue Reading New Blog on State and Municipal Government and Land Use Law

Administrative note: I’ve added two new categories for indexing posts:

Equal protection comes up often in land use litigation when the government discriminates against a person for belonging to a protected class, and when a landowner asserts she was singled out for different treatment than others who are similarly situated (the “class of one” / Olech claim). The federal civil rights statute, 42 U.S.C. § 1983 is a common vehicle to litigate constitutional land use claims in either federal or state courts:

Every person who, under color of any statute, ordinance, regulation,custom, or usage, of any State or Territory or the District ofColumbia, subjects, or causes to be subjected, any citizen of theUnited States or other person within the jurisdiction thereof to thedeprivation of any rights, privileges, or immunities secured by theConstitution and laws, shall be liable to the party injured…

Continue Reading Two New Categories: Equal Protection, 42 U.S.C. § 1983/Civil Rights

The most easily recognizable equal protection claim is one in which the plaintiff claims membership in a protected group, and some form of discrimination against the class. Another type of equal protection claim is the “class of one” claim under Village of Willowbrook v. Olech, 528 U.S. 562 (2000) (per curiam), where the Court held that a landowner who claimed village officials retaliated against her for winning an earlier lawsuit againstthem was entitled to bring a claim for an equal protectionviolation even though she was not a member of any protected class, or any group at all. If she was being singled out from others who were similarly situated for disparate treatement, she had a claim. The latest case is in the latter category.

In SBT Holdings, LLC v. Town of Westminster, No. 08-1512 (1st Cir. Nov. 6, 2008), the U.S. Court of Appeals for the First Circuit…

Continue Reading Pleading Class of One Equal Protection Land Use Claims

In reviewing some of the comments posted on the Honolulu Advertiser’s November 1 report  “Rail study doesn’t list all affected properties,” it seems several of the commenters have fairly severe misconceptions about how eminent domain law works in Hawaii. Let’s clear some up some myths.

  • Myth #1: The city will offer a “premium” to property owners whose homes, businesses and churches will need to be acquired, because the city will want their properties quickly. Wrong on two counts. First, the city does not need to offer a premium since Hawaii law has a procedure by which the city can take immediate possession of property it wants, “ex parte” (without notice to the landowner). Second, the city will only offer what it believes to be the amount legally required to be paid for “just compensation” and damage, not a penny more. Indeed, the citywill claim it is

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Continue Reading Clearing Up Myths About Hawaii Eminent Domain Law and the Rail

What more could we possible say about the bizarre ripeness/issue preclusion Catch-22 brought on by Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985) that we haven’t said before, several times? The rule is unique to regulatory takings law and forces property owners alleging violation of their federal constitutional rights to litigate those claims exclusively in state court.

If a property owner goes to federal court in the first instance to vindicate its Fifth Amendment rights, it is told it is “too early” and must go to state court first on state law takings claims. When the property owner does so and then comes back to federal court to litigate the now-ripened federal takings claims, it is told it is it already litigated the federal claim (even if it expressly didn’t) and it is “too late.” In San Remo Hotel, L.P. …

Continue Reading Cert Petition: Overrule Williamson County

In Nuuanu Valley Ass’n v. City & County of Honolulu, No. 28599 (Oct. 24, 2008), the Supreme Court of Hawaii clarified when a project that is not being built on state or county land meets the definition of “use” of such lands triggering review under the Hawaii Environmental Policy Act, Haw. Rev. Stat. ch. 343. The developer of private residential land in urban Honolulu sought to subdivide the property, which required hooking up new drainage system to existing lines.

Section 343-5(a)(1) requires that”an environmental assessment shall berequired for actions that . . . [p]ropose the use of state or countylands,” and in earlier cases, the Court held that installation of a new drainage line beneath a public road qualified as “use” of state land, Kahana Sunset Owners Ass’n v. County of Maui, 86 Haw. 66, 947 P.2d 378 (1997); as did construction of an underpass beneath a…

Continue Reading HAWSCT Curtails Definition of “Use of State or County Lands” in Environmental Law