Land use law

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Mr. McFarland’s property is surrounded by Glacier National Park in Montana.  The only way to get to the property in the winter is by Route 7 (the Park Service prohibits snowmobiles).  The Service closes the road to the public, but until 1999 allowed landowners limited winter access.  In 1999, however, the Service closed the road to everyone in the winter in order to protect wildlife and public recreational opportunities.  McFarland sued, asserting he was entitled to an easement over Route 7, and alternatively that the Service should have granted him an access permit. 

In McFarland v. Kempthorne, No. 06-36106 (Oct. 2, 2008), the Ninth Circuit rejected McFarland’s claims for an express or implied easement, and for an easement by necessity.  The court also held that the Service’s denial of his permit for an access permit was not arbitrary or capricious.  Continue Reading Ninth Circuit: Owner Has No Right of Access to Property From Federal Land

The California Court of Appeals, Second District (Los Angeles) today struck down a municipal moratorium on development, which in some cases prevented landowners from developing their properties for 30 years:

We conclude that the resolution, by implementing the moratorium and continuing to prevent plaintiffs from building on their properties, “deprive[d] [plaintiffs’] land of all economically beneficial use.” (Lucas v. South Carolina Coastal Council (1992) 505 U.S. 1003, 1027 [112 S. Ct. 2886, 2899] (Lucas).) Consequently, the city had the burden at trial of proving that the construction ban was justified by “background principles of the State’s law of property and nuisance.” (Id. at p. 1029 [112 S. Ct. at p. 2900]; see id. at pp. 1031–1032 [112 S.Ct. at pp. 2901–2902].)

The city failed to meet its burden of justifying the moratorium — as applied to plaintiffs’ lots — through evidence showing a reasonable…

Continue Reading Cal. Court of Appeals: Development Moratorium a Taking Under Lucas

More on the U.S. Supreme Court’s decision to review Hawaii’s “ceded lands” case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert.granted Oct. 1, 2008):

  • The Honolulu Advertiser’s report.
  • The Star-Bulletin’s report is here.
  • Hawaii Attorney General’s press release: “I am pleased that the United States Supreme Court has granted certiorari in this important case,” Attorney General Mark Bennett said.  “We believe the Hawaii Supreme Court was incorrect in its holding that the Congress, in the Apology Resolution, barred the State of Hawaii from selling or transferring Ceded Lands, as the Congress had expressly granted Hawaii that right in the 1959 Hawaii Admission Act.  It is our hope that the United States Supreme Court will reverse the decision of the Hawaii Supreme Court.  Hawaii’s Ceded Lands are held by the State for the benefit of all of Hawaii’s citizens, and for a number of purposes, including

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Continue Reading Media Coverage of Supreme Court Ceded Lands Case Review

The U.S. Supreme Court has granted the State of Hawaii’s petition for a writ of certiorari to review the Hawaii Supreme Court’s decision in the “ceded lands” case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert.petition filed Apr. 29, 2008). The State of Hawaii asked the Court to review and overturn Office of Hawaiian Affairs v. Housing and Community Dev. Corp. of Hawaii, 117 Haw. 174, 177 P.3d 884 (Jan. 31, 2008).

The Question Presented is:

In the Joint Resolution to Acknowledge the 100th Anniversary of theJanuary 17, 1893 Overthrow of the Kingdom of Hawaii, Congressacknowledged and apologized for the United States’ role in thatoverthrow.  The question here is whether this symbolic resolutionstrips Hawaii of its sovereign authority to sell, exchange, or transfer1.2 million acres of state land-29 percent of the total land area ofthe State and almost all the land owned by the State-unless and untilit…

Continue Reading Hawaii Ceded Lands Case: U.S. Supreme Court Grants Cert Review

Monday is the first day of the U.S. Supreme Court’s new term, and it will decide whether to review a slew of cases, including the “ceded lands” case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert. petition filed Apr. 29, 2008). The State of Hawaii seeks U.S. Supreme Court review of the decision by the Hawaii Supreme Court in Office of Hawaiian Affairs v. Housing and Community Dev. Corp. of Hawaii, 117 Haw. 174, 177 P.3d 884 (Jan. 31, 2008). The Question Presented is:

In the Joint Resolution to Acknowledge the 100th Anniversary of theJanuary 17, 1893 Overthrow of the Kingdom of Hawaii, Congressacknowledged and apologized for the United States’ role in thatoverthrow.  The question here is whether this symbolic resolutionstrips Hawaii of its sovereign authority to sell, exchange, or transfer1.2 million acres of state land-29 percent of the total land area ofthe State and almost all…

Continue Reading Supreme Court to Decide Monday Whether to Review Ceded Lands Case

To those who attended the workshop at the University of Hawaii law school, Hawaii State Historic Preservation Laws: Reclaiming the Past, Shaping the Future, thank you.  Here are links to the cases I mentioned in my presentation.

  • Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), the case where the U.S. Supreme Court held that if a use restriction was part of the “background principles” of nuisance and property law applicable to the property at issue, it could insulate the government from takings liability even if the restriction resulted in a total diminution of economically beneficial uses.

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Continue Reading Links From UH Historic Preservation Workshop

“This case presents an issue of first impression in this Circuit — whether a legislative, generally applicable development condition that does not require the owner to relinquish rights in the real property, as opposed to an adjudicative land-use exaction, should be reviewed pursuant to the ad hoc standards of Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978), or the nexus and proportionality standards of Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994). We affirm,holding that the Penn Central analysis applies to the 12-inchpipe requirement.” 

McClung v. City of Sumner, No. 07-35231 (Sep. 25, 2008), slip op. at 13744-45.  More, after a chance to review the opinion.Continue Reading Ninth Circuit: Legislative Exactions Not Subject to Nollan/Dolan

Some interesting items from around the land use law blogosphere:

  • A write up of an Eleventh Circuit (which covers Alabama, Florida, and Georgia) decision striking down as unconstitutional a municipal ordinance that prohibited national chain retail stores because it violates the dormant Commerce Clause.  This could be a very important case on the “big box” and “formula retail” issues. More from Georgia Zoning Blog.
  • Charley Foster has a series of posts about a reporter’s privilege to trespass on private property, and how it may relate to an ongoing controversy about the State of Hawaii Historical Preservation Division and native Hawaiian remains on a construction site on Kauai.  Start at Planet Kauai.

Continue Reading Land Use Law Round-up

The transcript of the June 2, 2008 arguments in the federal lawsuit challenging Maui’s affordable (“workforce”) housing exaction has been released. That hearing resulted in a lengthy opinion by the District Court holding that the plaintiff’s Nollan/Dolan claims were not ripe, and a recent order holding that the facial due process and equal protection claims should be dismissed.

The most interesting part of the hearing was when the county admitted the motivation for the 40-50% exaction was to not give all infrastructure away to “millionaires from the Mainland,” or even “millionaires on Maui.”  The court, as one might expect, had a bit of difficulty with that reasoning:

MS. D’ENBEAU: And this is for people, good solid middle income people who find themselves priced out of the market on Maui. So the county council in its wisdom decided, All right, since we have limited water, we have limited roads, …

Continue Reading Transcript of Arguments in Maui Affordable Housing Exaction Case

The US District Court for the District of Hawaii has granted (in part) the County of Maui’s motion for reconsideration of the court’s earlier order granting in part and denying in partthe County’s summary judgment motion.  Here’s a copy of the court’s latest order.

The court entered summary judgment in favor of the county on the plaintiff’s facial equal protection and facial due process claims, and allowed the “class of one” equal protection claim, and the as-applied equal protection and due process claims to proceed. 

The case involves a Maui property owner’s challenge to the County’s “workforce housing” exaction ordinance, which requires aproperty owner to commit 40% to 50% of the unitsin most new housing developments to below-market-rate ownership orrental.  Kamaole Pointe Development LP v. County of Maui, No. 07-00447 DAE.  The plaintiff challenged theordinance under the Nollan/Dolan doctrine of unconstitutional exactions, which requires the…

Continue Reading Court Strikes Facial Due Process and Equal Protection Claims in Maui Affordable Housing Exaction Case