Land use law

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The US Court of Appeals for the Second Circuit (NY) has provided some guidance on how to prove a substantive due process zoning case, and what is a “property interest” that triggers constitutional protection.  In Cine SK8, Inc. v. Town of Henrietta (No. 06-1718-cv) (Nov. 8, 2007), “Fun Quest” received a special use permit to operate a dance club for teenagers, but after an overcrowding incident at Fun Quest, the Town modified the permit to prohibit the use. 

Fun Quest filed a federal court lawsuit, alleging the Town modified the permit and eventually drove Fun Quest into bankruptcy because it was motivated by racial animus (the district court found that “numerous witnesses have testified that after drawing attention to photographs taken of the crowd gathered at Fun Quest . . . [a Town supervisor] stated in sum and substance: ‘Look at these pictures.  There is not a white face among…

Continue Reading Second Circuit: How to Prove a Due Process Zoning Case

The Court has posted the transcript of today’s oral argument in the John R. Sand and Gravel Co. v. United States appeal here. 

The Supreme Court will decide whether the statute of limitations in inverse condemnation actions against the United States under the Tucker Act is “jurisdictional” or may be waived by the defendant.  More about the case, including a summary and the briefs of the parties and amici here.Continue Reading Transcript of Oral Arguments in Tucker Act Statute of Limitations Case

A must-read decision today from the Ninth Circuit — Crown Point Development, Inc. v. City of Sun Valley, No. 06-35189 (Nov. 1, 2007).  The court clarified a point that has been a long time coming: a property owner may assert claims under both the Takings and the Due Process Clauses.  In other words, land use guys, the court has finally torpedoed Armendariz v. Penman, 75 F.3d 1311 (9th Cir. 1996) (en banc). 

Armendariz stood for the unusual proposition that a property owner’s claim for violations of substantive due process rights were “subsumed” within the owner’s claim for violation of the Takings Clause.  Thus, in land-related issues, a property owner could only bring takings claims.

Sun Valley rejected Crown Point’s development application.  Afterpursuing relief in state court, Crown Point filed a federal civil rights actionpursuant to 42 USC § 1983, alleging that Sun Valley arbitrarilyinterfered with its property rights…

Continue Reading ▪ Ninth Circuit: Landowner May Assert Both Takings and Due Process Claims

In a case that may hold lessons for Hawaii land use law, the State of Washington Supreme Court recently invalidated under state law a series of moratoria on shorelinedevelopment permits because the city had no power under delegated statelaw to enact a moratorium.  Hat tip to Professor Patty Salkin’s Law of the Land blog for pointing out Biggers v. City of Bainbridge Island, No. 77150-2 (Oct. 11, 2007).  The court summarized its holding as follows:

Today, we review the Bainbridge Island City (City) Council’s adoption of rolling moratoria, which imposed a multi-year freeze on private property development in shoreline areas. The City denied the processing of permit applications for more than three years. There is no state statutory authority for the City’s moratoria or for these multiple extensions. Clearly, this usurpation of state power by the local government disregards article XVII, section 1 of the Washington Constitution, which expressly…

Continue Reading ▪ Washington (State) Supreme Court Strikes Down Shoreline Development Moratoria

In Desert Outdoor Advertising, Inc. v. City of Oakland, No 01-15501 (Oct. 30, 2007), the US Court of Appeals for the Ninth Circuit upheld most of Oakland, California’s billboard restrictions against a free speech challenge.  The court summarized the case:

Desert Outdoor Advertising, Inc., wants to display three billboards, each of which would be primarily viewed from a freeway, in Oakland, California. The City of Oakland has refused to permit the signs, citing specific City ordinances.  Desert filed this action to challenge those ordinances on First Amendment grounds, seeking injunctive relief and money damages. In particular, Desert argues that Oakland Municipal Code § 1501, which generally prohibits advertising signs designed to be seen from a freeway, favors commercial over noncommercial speech and imposes content-based restrictions on noncommercial speech. Desert also contends that Oakland Planning Code § 17.148.050(A), which limits advertising signs more generally, provides City officials with unbridled discretion…

Continue Reading ▪ Ninth Circuit: Some Billboard Restrictions Violate First Amendment, Some Don’t

A “SLAPP suit” is a “strategic lawsuit against public participation,” and many states have statutes designed to thwart retaliatory lawsuits to protect the public’s willingness to exercise First Amendment rights.  For example, California’s statute defines SLAPP suits as:

lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.

Cal. Code. Civ. Proc. § 425.16 (emphasis added).  Hawaii’s anti-SLAPP statute is codified at Haw. Rev. Stat. ch. 634F, and defines a SLAPP suit somewhat differently than California:

“SLAPP”means a strategic lawsuit against public participation and refers to alawsuit that lacks substantial justification or is interposed for delayor harassment and that is solely based on the party’s public participation before a governmental body.

Haw. Rev. Stat. § 634F-1 (emphasis added).

In City of Riverside v. Stansbury, Nos. E040125 & E040973 (Cal. Ct. App. Oct. 12, 2007), the…

Continue Reading ▪ SLAPP Suits, Ballot Measures, and Curbing Eminent Domain Abuse

The issues in the lawsuits about the Hawaii Superferry Environmental Assessment dwell on legal technicalities such as standing, the statute of repose, and the standard of review.  But the case seems to have touched a deeper nerve, serving as the crucible for wider issues not limited to the Superferry.  For a flavor, read the LA Times’ report of the Kauai Superferry protests here and the Honolulu Advertiser’s story here.

In that vein, I just revisited a Land Use Prof Blog post from earlier this year by Professor Paul Boudreaux entitled “From NIMBY to … ‘Drawbridge Protectionism’.”  The post, as its title suggests, discusses economic and land development versus environmental and cultural claims, and has become more topical in the wake of the Superferry case.  Professor Boudreaux makes some good points:

“NIMBY” is perhaps the most overused term in land use policydebates, even though the…

Continue Reading ▪ “Drawbridge Protectionism,” the Superferry EA / EIS, Raindrops, and Floods

The Maui News reports that the County of Maui has filed a “response” (motion to dismiss) to the federal complaint brought by the Maui Vacation Rental Association against the County.  I posted about the case here.  The complaint summarizes the claims:

This is an action for injunctive and declaratory relief againstdefendants, and each of them, for their conduct in dealing with theowners of property being used as Transient Vacation Rentals in theCounty of Maui. Plaintiff alleges procedural and substantive dueprocess and equal protection violations, equitable estoppel, breach ofexpress and implied contract. Plaintiff also alleges municipalliability for failure to adequately train and supervise entityemployees, and for the maintenance of illegal customs and policies,both of which cause and allow constitutional violations of proceduraldue process, substantive due process, equal protection, and deprivationof honest government services, in violation of the Fourth, Fifth andFourteenth Amendments to the U.S. Constitution.

Download the Complaint (800kb pdf)…

Continue Reading ▪ Government Response in Maui Vacation Rental Lawsuit

In a case discussed earlier here and here, Congregation Etz Chaim has filed a Petition for Rehearing and Suggestion for Rehearing En Banc in the Ninth Circuit in The League of Residential Neighborhood Advocates v. City of Los Angeles, No. 06-56211 (Aug. 21, 2007).

In that opinion, a three-judge panel of the Ninth Circuit determined that Los Angeles agreed as part of a settlement of the Congregation’s RLUIPA claim to issue a conditionaluse permit (CUP) to the congregation.  Neighbors complained that citycould not override the CUP process in a settlement agreement, whichwould have provided the neighbors notice and hearing under state law.  The Ninth Circuit agreed, voiding the settlement agreement unlessthere had been a specific finding that federal law was violated. 

The petition argues that the panel got it wrong factually: the settlement did not grant the Congregation a CUP, rather, it was premised on the idea that…

Continue Reading ▪ Petition for Rehearing/En Banc in RLUIPA Settlement Case