Land use law

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Our thanks to our friends and colleagues at the ABA Section of Real Property, Probate & Trust Section’s Land Use and Environmental Group for inviting us to a discussion of the latest and greatest decisions of interest.

We only had an hour together, so naturally could not cover everything of interest (indeed, we reserved a big discussion of the biggest item, the Supreme Court’s decision in Cedar Point, assuming that the Group will schedule a full session on that decision alone). So here is our curated list of what we think are the most interesting recent decisions in areas of interest to the Group:

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Continue Reading Links From Today’s ABA RPTE Session

In this post — the third in a series of deeper dives that we’ll be posting about last week’s U.S. Supreme Court opinion in Cedar Point Nursery v. Hassid, No. 20-107 (June 23, 2021) — we’ll be discussing whether the “right to exclude” is absolute, what exceptions the Court laid out, and how it responded to the arguments that the ruling will bring the system crashing down.

Here are all of the posts in our Cedar Point series:

And in case you missed the live webcast on Friday, July 16, 2021 that featured expert analysis of the case, please don’t miss…

Continue Reading Cedar Point Part III: No, Chicken Little, The Sky Isn’t Falling

In which we pay a return visit to Clint Schumacher’s Eminent Domain Podcast to catch up with Clint about our new gig, Cedar Point (briefly, since the opinion came down the day we recorded the podcast), just compensation and attorneys’ fees, assessing severance damages in appraisals supporting jurisdictional offers, public use, and our favorite cool courthouses (let’s just say that they range from historic courtrooms to converted doublewide trailers).

If you are not already a regular listener to the Eminent Domain Podcast, you should be! It’s a great one-stop convenient way to keep current on the latest goings-on in the takings business. Continue Reading We Pay A Return Visit To The Eminent Domain Podcast To Talk Takings

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Another day, another property rights decision from SCOTUS. This time, the unanimous per curiam opinion in a case we’ve been following, Pakdel v. City & County of San Francisco, No. 20-1212 (June 28, 2021).

[Disclosure: our PLF colleague Jeff McCoy is lead counsel on this case, and we pitched in with help on the petition and related.]

Because we’re directly involved in this one, we’re not going to take a deep dive analysis. But the opinion is short, and the result clear: grant, vacate, remand, with instructions:

On remand, the Ninth Circuit may give further consideration to these claims in light of our recent decision in Cedar Point Nursery v. Hassid, ante, p. ___.

Slip op. at 3, n.*.

The Pakdels sued San Francisco for a regulatory taking because of the city’s requirement that as a condition of converting a tenancy-in-common to a condominium, the owners must …

Continue Reading Another SCOTUS Property Rights Win, This Time On Williamson County’s “Final Decision” Requirement

More good takings news, hot off the press.

Before Cedar Point came down last week, we were all set to let you know about the Eleventh Circuit’s opinion in South Grande View Dev. Co., Inc. v City of Alabaster, No. 18-14044 (June 21, 2021), in which the court affirmed a jury verdict that the city’s reduction in the developable density on residential-zoned parcel (from R-7 and R-4) to R-2) was a Penn Central regulatory taking. 

The city appealed on an evidentiary issue, arguing that the jury should not have heard evidence of its reasons for downzoning the property, which were not relevant to the takings question and only went to whether the government acted arbitrarily and capriciously (a due process inquiry). The city also raised a ripeness question: the owner had not sought a variance from application of the new zoning, and indeed had never asked the city…

Continue Reading 11th Circuit Affirms Penn Central Jury Verdict For Rezoning Resulting In 86% Loss Of Value

In Protect and Preserve Kahoma Ahupuaa Ass’n v. Maui Planning Comm’n, No. SCWC-15-0000478 (June 16, 2021), the Hawaii Supreme Court reaffirmed the idea that all members of the public have a right under the Hawaii Constitution to a “clean and healthful environment,” and that this is a “property” right entitled to due process protection under the state constitution. We say “reaffirmed” because this is merely the latest case so holding (see here for the first).

Like a lot of important Hawaii cases, this one came up in the context of standing to participate in the administrative review process. A Maui developer sought a permit under the Hawaii Coastal Zone Management Act from the Maui Planning Commission for an affordable housing project near Lahaina. Members of the Association, all of whom asserted they owned property adjacent to the project, asked the Planning Commission to intervene in the…

Continue Reading HAWSCT: Anyone Claiming That An Affordable Housing Project Might Impact Their Property Interests In A “Clean And Healthful Environment” Has Standing To Object

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A short, land-usey one today, from the Massachusetts Supreme Judicial Court. In Styller v. Zoning Board of Appeals, No. SJC-12901 (June 7, 2021), the court held that the plaintiff’s “occasional” use of a home to rent to others short-term is not a legal primary use of property in a “single residence’ zoning district.

The facts were not in dispute:

  • 5,000 sf, five bedroom, single-family home, three acres of land
  • “single-residence” zoning district
  • owner rented premises 13 times, totaling 65 days
  • rentals were between 2 and 15 days
  • most were 5 days or less
  • use during the rentals: reunions, board meetings, business retreats,

The town cited the owner, and the Land Court agreed that these uses were illegal “additional” uses because they constituted unauthorized use either as a boarding house or a tourist home. 

The owner appealed, and the SJC took over the case. The owner argued that these uses…

Continue Reading Euclid Lives! Mass SJC: “Short-Term” Rental Is Not A Permissible Primary Use In A Residential Zone Because Not Of “Residential Character”

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A short, land-usey one today, from the Massachusetts Supreme Judicial Court. In Styller v. Zoning Board of Appeals, No. SJC-12901 (June 7, 2021), the court held that the plaintiff’s “occasional” use of a home to rent to others short-term is not a legal primary use of property in a “single residence’ zoning district.

The facts were not in dispute:

  • 5,000 sf, five bedroom, single-family home, three acres of land
  • “single-residence” zoning district
  • owner rented premises 13 times, totaling 65 days
  • rentals were between 2 and 15 days
  • most were 5 days or less
  • use during the rentals: reunions, board meetings, business retreats,

The town cited the owner, and the Land Court agreed that these uses were illegal “additional” uses because they constituted unauthorized use either as a boarding house or a tourist home. 

The owner appealed, and the SJC took over the case. The owner argued that these uses…

Continue Reading Euclid Lives! Mass SJC: “Short-Term” Rentals Is Not A Permissible Primary Use In A Residential Zone Because Not Of “Residential Character”

PASH symposium

Back in February, we were honored to be part of the University of Hawaii Law Review’s symposium “25 Years of PASH,” a retrospective of one of the Hawaii Supreme Court’s most famous (or infamous) decisions, Pub. Access Shoreline Haw. v. Haw. Cnty. Plan. Comm’n, 79 Haw. 425, 903 P.2d 1246 (1993), cert. denied sub nom., Nansay Haw. v. Pub. Access Shoreline Haw., 517 U.S. 1163 (1996) (PASH). 

At the conference, we spoke on the panel about “PASH and the Changing Coastal Environment” (see video here at the 2:02:25 mark if you want to watch our panel’s summations).

The speakers also produced short written comments for the Law Review’s upcoming issue, and ours is finally in a shape where we think it is OK for public consumption, so we’ve posted it on SSRN here (or you can download the pdf “Takings,…

Continue Reading New Article: “Takings, PASH, and The Changing Coastal Environment” (U. Haw. L. Rev., forthcoming)

We’ve been meaning to post up the California Court of Appeal’s (now published) opinion in Alliance for Responsible Planning v. Taylor, No. C085712 (May 4, 2021) for a bit, and while we were distracted by lawyer work last week, our friend and colleague Bryan Wenter beat us to it with “County’s Initiative-Enacted General Plan Traffic Mitigation Policies Are Unconstitutional Exactions.”

So rather than do our own summary, we’re just going to recommend you read his analysis. Some high points of that and the opinion:

  • The court called the Nollan/Dolan/Koontz doctrine the “unconstitutional conditions doctrine.” Slip op. at 6. We like that. In our view, N/D/K really isn’t a takings doctrine so much as it is one that says the government can’t force you to choose among your rights (in these cases, one of those rights being your right to just compensation).
  • The N/D/K

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Continue Reading Ordinance Requiring Developer Pay For “All Necessary Road Capacity Improvements” Violates Nollan/Dolan