Land use law

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Thanks to both Patty Salkin’s Law of the Land blog and Gideon Kanner’s Gideon’s Trumpet, we’ve been alerted to a regulatory takings case from the Georgia Supreme Court that presents an unusual fact pattern.  In Mann v. Georgia Dep’t of Corrections, No. S07A1043 (Nov. 21, 2007), the court struck down as an illegal taking a Georgia law that prohibited convicted sex offenders from living within 1,000 feet of a school or child care facility. 

Mann, an offender, was living legally in a home he owned, when a child care facility located within 1,000 feet.  The Department of Corrections ordered Mann to leave upon pain of arrest.  Professor Salkin summarizes the case here, and Professor Kanner adds his analysis here.  They both sum up the facts and holding of the case very thoroughly. 

The court noted that the effect of the Georgia statute wasnot simply to interfere…

Continue Reading Law That Requires Sex Offender Move From Home is a Regulatory Taking

The Federalist Society’s section on property rights and environmental law has posted audio (14mb mp3) (with video coming soon) of a recent debate held in Washington, D.C., about the state of Property Rights in the United States.  Two Ninth Circuit judges, Alex Kozinski and Stephen Reinhardt, anchored the debate.  Jim Burling of the Pacific Legal Foundation moderated.  Continue Reading Property Rights in the United States: a Debate (mp3)

The US Court of Federal Claims (CFC) is the court assigned jurisdiction under the Tucker Act to hear inverse condemnation and regulatory takings claims against the federal government where the remedy sought is money damages.  The CFC is an “article I” court meaning its judges do not have life tenure as do judges of article III courts, but aside from that and its limited jurisdiction, it functions very much like the district courts.  Appeal of the CFC is taken to the Court of Appeals for the Federal Circuit.  Here is a rundown of a few of the court’s recent decisions involving takings issues:

Contract is not “property” — Griffin Broadband Communications, Inc. v. United States, No. 06-898C (Nov. 19, 2007).  The court dismissed a takings claim based on a contract between the plaintiff and the Army to provide TV and communication services at Fort Irwin, California.  After 10…

Continue Reading Court of Federal Claims Takings Roundup

The Wall Street Journal details impact fee issues in “Rising Use of ‘Impact’ Fees Rankles New-Home Buyers,” with some truly horrific examples, including one couple whom a California city demanded pay a $240,000 fee to get building permits to construct a rural home valued at $500,000, and homeowners who were required to sign away their first amendment rights as a condition of obtaining a permit.  Worth a read.

Exactions are not limited to demands for cash.  For example, the County of Maui imposes a 40% – 50% “affordable” requirement on new housing developments.  See this post for more. Continue Reading Wall St. Journal on Impact Fees and Exactions

The Hawaii Supreme Court issued an opinion in Omerod v. Heirs of Kaheananui,No. 27118 (Nov. 15, 2007), a case which presents a fact pattern that is just so “Hawaii.”  The case is a quiet title action, normally a sort ofho-hum affair long on detail, but short of broad interest.  The decision, however, is notable for a couple of reasons.  The first deals is the court’s summary of Hawaii’s unique history of property law, and the other is the rule regarding the preclusive effect of a 1873 decision by the Boundary Commission of the Kingdom of Hawaii regarding the boundaries of a parcel, on claims of title.  The court also provided guidance on two issues of appellate procedure which are discussed separately in this post.

The case concerned two sets of property owners, each who claimed rightsto land on the Big Island of Hawaii.  One side claimed the landwas…

Continue Reading Ahupuaa or Ili? HAWSCT on Hawaii Land Titles, the Great Mahele, and the Boundary Commission

In Scheehle v. Justices of the Supreme Court of Arizona,No. 05-17063 (Nov. 15, 2007), the Ninth Circuit held that Arizona’s”low bono” requirement that all attorneys serve as arbitrators for $75per day, maximum two days, is not a taking.  It’s probably safe tosurmise that the plaintiff’s position probably received little sympathyoutside of certain members of the Bar:

Mark V.Scheehle, an Arizona tax lawyer, challenges as an unconstitutionaltaking the Arbitrator Appointment System of the Maricopa CountySuperior Court (“Appointment System”), which requires that anexperienced attorney serve as an arbitrator for up to two days a yearwith minimal compensation.  Following a decision by the Arizona SupremeCourt that the Appointment System was permissible under Arizona law,the district court reaffirmed its grant of defendants’ motion forsummary judgment. We now affirm. We hold that Scheehle’s constitutionalchallenge to the Appointment System is properly considered under theregulatory takings test set forth in Penn Central Transportation Company v. City…

Continue Reading Ninth Circuit: No Taking for Forced Attorney Low Bono* Labor

Check out this story from the Big Island’s West Hawaii Today (free registration may be required), “Other counties’ vacation rental laws could prove Big Island boon,” which starts off with this theorem: “[t]he Big Island could soon experience a windfall ofvisitor dollars that would have otherwise flowed into Maui, Kauai andHonolulu.”  In the article, the County of Hawaii’s Planning Director contrasts the Big Island’s treatment of short term (aka vacation) rentals with their treatment by the other three counties:

“We do enforce nonlicensed bed and breakfasts and rentals on agricultural land that are supposed to be farm dwellings,” said Hawaii County Planning Director Chris Yuen. “But we’re not engaged in any kind of crackdown on vacation rentals.”

There’s a reason the Big Island has escaped a controversy that could culminate next month with a federal lawsuit brought against Maui County by an association of renters: Hawaii…

Continue Reading Big Island: Bring Me Your Enthusiastic, Your Laden-With-Spending-Money Tourists, Yearning To Vacation Rent?

More on Franco v. National Capital Revitalization Corp., No. 06-CV-645 (July 12, 2007), a decision from the District of Columbia Court of Appeals about the level of proof needed to show a “pretextual” — and therefore prohibited — taking. 

I.  Kelo and Pretextual Takings

In Kelo v. City of New London, 545 U.S. 469 (2005), a bare majority of the US Supreme Court held that takings supported by claims of “economic development” were governed by rational basis review and are not, in every case, devoid of public purpose.  The Court, however, reserved judicial oversight, holding that in certain circumstances, a court could strike down a taking for lack of public use.  This result was consistent with the Court’s established Public Use jurisprudence, most notably Berman v. Parker, 348 U.S. 26 (1954), in which the Court held that eminent domain in the redevelopment context would be reviewed as…

Continue Reading More on DC Decision on Evidence of Pretext in Public Use Challenges

Thanks to Property Prof Blog for tipping us off to a recent case involving claims of “pretext” in eminent domain cases from the District of Columbia Court of Appeals has issued an opinion in Franco v. National Capital Revitalization Corp., No. 06-CV-645 (July 12, 2007), posted here. 

I haven’t had time to digest the opinion yet, but Professor Ilya Somin has posted a summary and analysis of the decision here.  More to follow after I’ve had a chance to review the decision.  Update: I’ve summarized the decision in this post.Continue Reading DC Court: Evidence of Pretext in Public Use Challenges