Land use law

Subscribe to Land use law via RSS

Does a landowner challenging the public use of a taking of property need to utilize state compensation procedures before seeking relief in federal court?  In Rumber v. District of Columbia (No. 06-7004, D.C. Cir. May 25, 2007), the U.S. Court of Appeals for the District of Columbia joined the majority of federal circuits and held “no.”

Landowners challenged the District of Columbia’s power to condemn their property, alleging, among other things, that the taking was beyond the District’s authority because it was not “for public use” as required by the Fifth Amendment’s Takings Clause.  The D.C. Council had enacted a series of laws which authorized the National Capital Revitalization Corporation, a redeveloper, to take a shopping center by eminent domain. 

The landowners objected, and filed suit in federal court alleging that a taking of their property would not serve a public purpose.  The federal district court dismissed the…

Continue Reading ▪ Public Use Challenges Not Subject to Williamson County Ripeness

The Missouri Supreme Court, in in Mint Properties v. Centene Plaza Redev. Corp. (SC88487, Jun. 12, 2007), clarified that state’s meaning of the term “blight” as a justification for taking property by eminent domain:

(1) The evidence presented was insufficient to showthe social liability necessary to support a finding of blight. Section353.020 defines “blighted area” in part as consisting of those portionsof a city that, “by reason of age obsolescence, inadequate or outmodeddesign or physical deterioration have become economic and social liabilities, and that such conditions are conducive to ill health, transmission of disease, crime or inability to pay reasonabletaxes” (emphasis by italics added). The statute does not define “socialliability,” but its historical context suggests its definition focuseson the health, safety and welfare of the public.

(2) The city failed to provide evidencesupporting a finding of social liability. Although the city managerhere expressed some potential concerns in his testimony regardingsafety…

Continue Reading ▪ Eminent Domain and “Blight” Designations – Missouri Weighs In

I’ve finally had a chance to sit down and read the recent Hawaii Supreme Court opinion in  Citizens Against Reckless Development v. Zoning Bd. of Appeals of the City and County of Honolulu (No. 27264, May 31, 2007), a case I posted about here.  I won’t detail the complex procedural history of the case, as the most interesting aspect of the opinion deals with whether a request for an agency to issue a declaratory ruling under Haw. Rev. Stat. § 91-8 can effectively substitute for an appeal of an agency decision, and the facts that resulted in that holding are fairly straightforward.

The Honolulu Director of Planning and Permitting issued a Conditional Use Permit (CUP) to Wal-Mart build a store and “Sam’s Club” in urban Honolulu.  A citizen’s group, CARD, objected, but apparently missed the deadline to file an administrative appeal of the issuance of the CUP with the…

Continue Reading ▪ HAWSCT: More on CARD v. Honolulu ZBA – Administrative Procedures in Land Use Cases

In MiPro Homes, LLC v. Mount Laurel Township (No. 06-1345) (docket listing here), the US Supreme Court is being asked to consider the following question:

Whether the Takings Clause of the Fifth Amendment to the Constitution prohibits a municipality from taking private property for “public use” when the municipality’s public use determination is ad hoc, pretextual, and not part of a comprehensive planning process.

This case is a follow up to Kelo v. City of New London, 545 U.S. 469 (2005), the decision in which the Court upheld a broad power to take private property for public use, provided it is accomplished as part of a comprehensive planning process.  This case asks whether a municipality’s claim that a taking was to preserve open space was “pretextual,” and was instead designed to halt ongoing residential development, and a determination made outside the usual planning process.  A prior proposal by…

Continue Reading ▪ Cert Petition Challenging Kelo Pretext

HnlIn “The downside of paradise,” the San Francisco Chronicle’s travel editor writes:

News flash: There are problems in Paradise. 

Actually, I don’t believe that any place is heaven on earth  —  though I’ve been to my fair share of purgatories, or worse  —  but some readers are disappointed that I don’t always highlight the lowlights of Hawaii. 

What about the sluggish traffic on Kauai’s Coconut Coast or in Kailua-Kona on the Big Island, they ask. What about the helicopters that crash during sightseeing tours? And, did I know that many Hawaii residents oppose the coming interisland ferry service?

The article highlights the problem of somewhere perhaps being too good for its own good, and is, in some ways, the mainland perspective on these local stories on the development vs.  preservation dynamic that is so common locally in land use.  About the photo — can you see Waikiki’s iconic

…
Continue Reading ▪ Trouble in “Paradise” — The Raindrop Never Believes It Is Responsible for The Flood

The US Supreme Court has issued a unanimous opinion in Sole v. Wyner (No. 06-531) (docket listing here), a case involving whether a party who obtains a preliminary injunction — but ultimately loses the case on the merits — can be a “prevailing party” entitled to civil rights attorneys fees.  The Court, in an opinion by Justice Ginsburg, answered no.  I’ve previously posted about the case background here, and the oral arguments here.  SCOTUSblog summarizes the opinion here, and National Public Radio reports on the case here (with audio).

This case has impact on land use litigation.  A key federal civil rights law, 42 USC  § 1988, allows the prevailing party to recover attorneys fees from the other side.  The right to own and make economically beneficial use of property isone of those federal civil rights, and land use and property issues areoften litigated under…

Continue Reading ▪ SCOTUS: “Prevailing Party,” Attorney’s Fees, and Land Use Litigation

In Citizens Against Reckless Development v. Zoning Bd. of Appeals of the City and County of Honolulu (No. 27264, May 31, 2007), the Hawaii Supreme Court clarified the administrative procedures to be used in third-party challenges to the issuance of a Conditional Use Permit (CUP).  I haven’t had a chance to digest the opinion in full, but it appears the most interesting issue in the case is whether a request for an agency to issue a declaratory ruling pursuant to Haw. Rev. Stat. § 91-8 can substitute for an appeal of an agency decision after contested case pursuant to Haw. Rev. Stat. § 91-14.  The Court answered no:

[The Appellant], having failed to bring an appeal of the CUP issuance within the required thirty-day time-limit, sought review of the CUP issuance via the declaratory ruling petition procedure provided by HRS § 91-8 and accompanying DPP Rule § 3-1. Although…

Continue Reading ▪ HAWSCT: New Case on Administrative Procedures in Conditional Use Permit Challenges

Keepout Hat tip to May it Please the Court for alerting us to a recent decision by the Second District Court of Appeals in California, LT-WR, L.L.C. v. California Coastal Comm’n (No. B187666, May 25, 2007).

In that case, the CCC denied a property owner’s request for a permit to allow it to maintain a fence around its property and post “no trespassing” signs, among other things.  The Coastal Commission’s rationale was stunning in its audacity:

The Commission also denied the gates and signs by finding that there are ‘potential’ public prescriptive rights, that the gates are not ‘necessary’, and that the gates and signs are akin to a ‘gated community.’

Slip op. at 37.  (“Public prescriptive rights” is another way of saying that if an ownerdoes not prevent the public from traversing property for a fixed periodof time, the public may gain a permanent right to “adverse possession”of…

Continue Reading ▪ Upholding The Right to Exclude: Rare Judicial Smackdown of California Coastal Commission

The US Supreme Court today granted review to an inverse condemnation case against the US government.  The issue in John R. Sand & Gravel Co. v. United States,is whether the Tucker Act’s six-year statute of limitations is ajurisdictional bar to an inverse condemnation claim.  Apparently, thegovernment on appeal did not assert that the claims were barred by thestatute of limitations.  But the court of appeals did, and dismissedbecause the statute of limitations goes to jurisdiction, and cannot bewaived. 

Whether the statute of limitations is a “jurisdictional” bar, orwhether it is waiveable is an issue for us legal wonk types, andprobably will not rile up the public one way or the other like Kelo,for example.  However, the Court’s decision should clarify an area ofprocedural law that lawyers often presume they understand the basisfor, but nearly as often do not.  (The canon being that statutes oflimitations are jurisdictional, especially in…

Continue Reading ▪ Cert Grant in Inverse Condemnation Case – Are Statutes of Limitations Jurisdictional?

Last week was a busy one — quite a few local stories about land use and property law.  Here’s a rundown:

  • “It’s a tale of 2 ridges – and 17,500 homes” — The Advertiser reports on, and contrasts, two large-scale residential projects in Central Oahu.  One of the projects, Koa Ridge, resulted in a Hawaii Supreme Court decision on the trigger points to an Environmental Impact Statement, Sierra Club v. State of Hawaii Office of Planning, 109 Haw. 411, 126 P.3d 1089 (2006), which I blogged about here. Compare this story to the next one, from Kauai, and there is the same dynamic at play: we all complain about the lack of “affordable” housing, but often complain when new housing is built because it isn’t going in the “right” place, will increase traffic, and on and on.

…
Continue Reading ▪ Hawaii Land Use Roundup