Land use law

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The Wall Street Journal posts “Whose Beach Is This Anyway,” a story about how shoreline erosion is resulting in legal disputes nationwide over ownership and building setbacks.

The story notes Hawaii’s Diamond v. Bd. of Land and Nat. Res., 112 Haw. 161, 145 P.3d 704 (Oct. 24, 2006), a case which I discussed here:

Property owners are battling in some states overso-called building setbacks, which dictate how far new structures mustbe built from the water. Hawaiian counties, for example, require thatnew construction be at least 20 feet and often up to 40 feet inland ofthe shoreline.

In recent years, some landowners planted salt-tolerantplants at their seaward property line, hoping the vegetation line wouldserve as the shoreline for setback purposes even if the tide sometimesextended past the plants. The state agreed in some cases, but concernedneighbors and environmental groups sued to have the issue clarified.Hawaii’s Supreme Court…

Continue Reading Wall St. Journal on Beach Erosion Issues (video)

The County of Hawaii Planning Department has issued Memorandum No. 07-20 (Oct. 3, 2007) setting forth the County’s reevaluated practices in reviewing development applications “to see whether an environmental assessment is needed under Chap. 343 [the Hawaii Environmental Policy Act.]”  The bottom line is set forth on page 2:

Planners will have to review the application to see if there is construction on state or county land involved.  This may be shown on the site plan.  Planners also have to use common sense in looking at the application.  For example, if access to the property will require constructing a new road over a “paper” government road, this will trigger this Chap. 343 review.

. . .

The end result of this is likely that more applications will need environmental assessments, and, because the entire project has to be considered, some will need full EIS’s, even though the only “trigger” is…

Continue Reading Bootstrapping Environmental Assessment Exemptions

There’s an interesting discussion going on over at The Volokh Conspiracy about the recent $37 million inverse condemnation/regulatory takings federal judgment against the City of Half Moon Bay, California.  I wrote about the decision here and here. 

The comments to Professor Somin’s post are particularly thought-provoking, especially the ones dealing with whether the decision is an “inverse condemnation” case or a “regulatory takings” case.  On one hand, government causing flooding on private property is a classic inverse condemnation situation; the intrusion of water onto private property is the equivalent of the government taking a flowage easement, so it is required to pay fair value for it.  That’s what happened in the Half Moon Bay case.  On the other hand, the “wipeout” of economically beneficial uses and a “physical invasion” are two per se categories of regulatory takings, both of which also occurred in the case. 

So the case is…

Continue Reading What’s the Difference Between “Inverse Condemnation” and a “Regulatory Taking?”

In Neighbors in Support of Appropriate Land Use v. County of Tuolumne, No. F051690 (Dec. 7, 2007), a California District Court of Appeals held that a development agreement cannot be used to avoid zoning restrictions.  The court framed the issue:

[C]an a county approve an application to devote a parcel of real property to a use disallowed by the applicable ordinance even though the county does not rezone the property to a district allowing the use, does not amend the text of the zoning ordinance to allow the use in the existing district, does not issue a conditional use permit consistent with the zoning ordinance, and does not grant a variance?  We conclude that it cannot.  Tuolumne County’s decision in this case to grant a parcel an ad hoc exception allowing a commercial use in an agricultural zoning district—an exception which was unavailable to other parcels in the same…

Continue Reading Development Agreement Not A Substitute For Rezoning

Two updates on Yamagiwa v. City of Half Moon Bay, No. 05-4149 VRW (Nov. 28, 2007), the $37 million inverse condemnation judgment about which I posted here.  In that case, the US District Court for the Northern District of California held the city liable for ataking after it caused the plaintiff’s property to flood, whichrendered it an undevelopable “wetland.”  You flood it, you bought it.

First, Gideon Kanner posts his latest comments on the ripeness argument made by the city, and a recent write up of the case in the LA lawyer’s daily paper, the Los Angeles Daily Journal. 
Professor Kanner writes about the city’s post-trial argument that the case belonged in state court under the Williamson County ripeness doctrine (federal takings claims must be brought first in state courts).  As I mentioned, the case was originally brought by the plaintiff in state court, but was removed…

Continue Reading In Ripeness Doctrine, What’s Good For the Goose is Not Necessarily Good for the Gander

Just received notice of a new book published by University of Hawaii School of Law Professor Jon Van Dyke, Who Owns the Crown Lands of Hawaii.  According to the summary from UH Press:

In this engrossing work, Jon Van Dyke describes and analyzes in detailthe complex cultural and legal history of Hawai‘i’s Crown Lands. Heargues that these lands must be examined as a separate entity and theirunique status recognized. Government Lands were created to provide forthe needs of the general population; Crown Lands were part of thepersonal domain of Kamehameha III and evolved into a resource designedto support the mô‘î [king], who in turn supported the Native Hawaiian people. Continue Reading Hawaii’s Unique Property Law History

The Los Angeles Times reports “This land is their land — now,” a story out of Colorado about the ancient legal doctrine of adverse possession.  According to the story, a retired judge and his lawyer spouse trespassed on a neighboring vacant parcel of land for over twenty years and then sued for title.  And won:

“There’s a mythology of land ownership — that if you own land, you cando anything you want,” he said. Property rights are limited, he said.”This is one of those limitations: If you’re not vigilant, it could betaken.”

The law is based on a philosophy that land should be used, Denver realestate lawyer Willis V. Carpenter said. “If you don’t use it andsomeone else does, they’ll end up owning it,” he said.Continue Reading Use It or Lose It — Adverse Possession

Check out this NYT story on a $12.4m verdict in a Connecticut eminent domain abuse case. 

A vast majority of cases challenging such takings are resolved through injunctions; takings temporarily halted by court injunction are often abandoned. But because Judge DeMayo had granted New England Estates and the landowners the right to seek a claim for damages, this case took a different path: The developer and landowners took it to trial, alleging a violation of their civil rights under the takings clause of the Fifth Amendment and seeking lost profits.

Mr. Hollister, the developer’s lawyer, maintained that town officials had made up reasons to take the land simply to stave off development.

Unlike the City of New London, which exercised its power of eminent domain after a “fair, public and factual” process, Mr. Hollister said, Branford pursued a process “so unfair and distorted as to violate the Constitution.”

The jury…

Continue Reading New York Times: Judging Eminent Domain

Visit the New Jersey Eminent Domain Law blog and read “RLUIPA, Redevelopment, and Eminent Domain,” a report about Lighthouse Institute for Evangelism, Inc. v. City of Long Branch, No. 06-1319 (Nov. 27, 2007), a recent decision by the US Court of Appeals for the Third Circuit (which covers Pennsylvania, New Jersey, Delaware and the US Virgin Islands).  This case is worthy of attention since, according to NJED, it is at odds with decisions from other federal circuits, and thus may be a candidate for Supreme Court review.Continue Reading Third Circuit RLUIPA Decision – Circuit Split?

Update: More on the case here and here.  Professor Gideon Kanner’s take on the case here.

Update 3/2008: The parties have settled.

Check out the Findings of Fact and Conclusions of Law  issued by the US District Court for the Northern District of California in Yamagiwa v. City of Half Moon Bay, No. 05-4149 VRW (Nov. 28, 2007).  No need to digest all 167-pages: the bottom line is that the court awarded a judgment of $36.8 million because the city caused the plaintiff’s property to become wetlands, and rendered it undevelopable. 

The court held that the city was liable for inverse condemnation under both California and federal law, and that the compensation to be awarded to the landowner was difference in the value of the property before the taking, compared to after.  The court also held the city liable for common law nuisance and…

Continue Reading No. Cal. Federal Court Whacks City for $36.8m Inverse Condemnation Award