Land use law

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2018 LUI header Detroit-1

Mark your calendars, plan to come: Detroit, April 19-20, 2018. For what is perhaps the best deal in CLE (tuition as low as $400), the 32d Annual Land Use Institute, sponsored by our section of the ABA, the Section of State and Local Government Law.

The venue is the Detroit Mercy School of Law, and the conference hotel is the historic Westin Book Cadillac in downtown Detroit. The Land Use Institute is being held in conjunction with the Section’s Spring State and Local Law Conference. Register for one conference, and you are free to move between sessions (no additional registration fees).

Planning Chairs Frank Schnidman and Dean Patrica Salkin have assembled an excellent faculty and program for the two days. Topics include: “Nuts and Bolts of Land Use Practice: Vested Rights and Regulatory Takings,” “Public-Private Partnerships,” “Climate Change and Resilient Development,” “Client…

Continue Reading 32nd Annual Land Use Institute: Detroit, April 19-20, 2018

Here’s one from the Hawaii Intermediate Court of Appeals, Cervelli v. Bufford, No. CAAP-13-896 (Feb. 23, 2018), in which the court considered whether homeowners who rented out rooms in their home to the public, but refused to do so to a lesbian couple, violated Hawaii’s public accommodation laws, or were sheltered from the statute by the Free Exercise Clause and other constitutional provisions.

In short, the court held they could be held liable, even though it is their home, first concluding that renting out a room in your home qualifies as offering a public accommodation, even though it is your residence. The owners advertise and offer rooms to the general public on their website and through third-party websites, rent to a large number of people (up to 200 nights per year), and pretty much takes all comers “aside from same-sex couples and smokers.” Slip op. at 11.

The potential…

Continue Reading HAWICA: Vacation Rental Home Is “Public Accommodation,” And Can’t Discriminate Based On Sexual Orientation

Here’s the cert petition, filed today by SCOTUS superstar Paul Clement in a case we’ve been following out of Northern California.

Here are the Questions Presented:

This case involves a stretch of private property along the California coast known as Martins Beach. The California Coastal Commission and the County of San Mateo want Martins Beach to be open to the public, but they do not want to pay to purchase the property, or even for an easement. Instead, they have taken the position that the owner of the property cannot exclude the public unless it first obtains a permit deemed necessary for any change, including a decrease, in the “intensity” of the public’s use of or access to the ocean under the California Coastal Act. In their view, because the previous owner of Martins Beach chose to allow members of the public to access the property upon payment of…

Continue Reading New Cert Petition: Beach Access, Temporary And Permanent Takings, And Permits To Exercise The Right To Exclude

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Mr. Song’s tale is harrowing: His property targeted for redevelopment. Offered compensation, but he believed that local regulations required payment of at least 45% more. When he attempted to negotiate, local officials said no deal. So he organized a protest at which he and his neighbors held signs that said things like “opposed to forced demolition.” They also “chanted slogans like ‘give me my fair compensation,’ ‘please do what is just,’ and ‘return to me what is mine.'”

For his troubles, he eventually was arrested, charged with “interfering with official duties.” (This tale, as you may have already deduced, takes place in the People’s Republic of China.)

During the three days Song was jailed, police tortured and beat him, and encouraged his cell mates to do the same. Song was forced to spend an entire night in a squatting position. The police also interrogated him about his alleged crime. When asked…

Continue Reading Anti-Eminent Domain Protester Persecuted Because Of His Political Opinions

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Here’s the (draft) article from our poriton of the first panel at the 2017 Brigham-Kanner Conference, “Back to the Future of Land Use Regulation.” (Also posted on SSRN here.)

This is an expanded version of our talk (listen to the audio here) during the Conference during which the William and Mary Law School awarded U. Hawaii lawprof David Callies the Brigham-Kanner Prize. Our summary of the conference is posted here.

We were part of the panel entitled “The Future of Land Regulation and a Tribute to David Callies,” along with Professors Shelly Saxer and Jim Ely, and past B-K Prize winner Michael Berger. Professor Callies also delivered his opening remarks during this session.

This article has been submitted to the Brigham-Kanner Property Conference Journal which should be published later this year. 

Back to the Future of Land Use Regulation (draft Feb 11, 2018) Continue Reading Back to the Future of Land Use Regulation – Brigham-Kanner Article

Here is the video of last Friday’s oral arguments in a case we’ve been following, in which the owners of a mobile home park successfully challenged a California municipality’s rent control ordinance as a taking.

In Colony Cover Properties v. City of Carson, a U.S. District Court for the Central District of California jury awarded the park owner just compensation, concluding that under Penn Central, the rent control ordinance was a compensable taking. The total award to the park owner, including damages for lost rental income, attorneys’ fees, and interest, was over $9 million. As far as we can tell, this is the first case in which a mobile home park owner has succeeded in obtaining compensation for a taking for rent control.

Predictably, the city went ballistic, and its brief in the Ninth Circuit argues the City is the aggrieved party:

In April 2006, Plaintiff Colony Cove…

Continue Reading Video: Ninth Circuit Penn Central Oral Arguments

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For you land-users out there, be sure to check your inboxes for the link to the latest issue of The Urban Lawyer, the law review published by my section of the ABA, the Section of State and Local Government Law. With articles on privacy and public real estate records, neighborhood opposition to zoning changes, greenhouse gas regulation, planned communities, land use and cannabis, RLUIPA, and more.

If you are not a member of our Section, you really should be because in addition to a subscription to UL, you get to hang with a crew of lawyers, judges, and legal scholars who are smart, fun, and generous with their time. See this post for more on the reasons you should join us.

Want to see what we’re all about? Plan on joining us for our next in-person conference, the 32d Annual Land Use Institute and Spring State and Local …

Continue Reading Latest Issue Of The Urban Lawyer

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We’re on our third day at the 2018 ALI-CLE Eminent Domain and Land Valuation Conference in Charleston, SC, and as usual, we’re having our headline presentations by takings guru Michael Berger (pictured above), who is updating us on the most interesting and important cases of the past year, and Jim Burling, who will be answering the question, “Should We Rethink Regulatory Takings Law? The Takings Clause, Privileges and Immunities, and Due Process.”

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Here are links to the…

Continue Reading ALI-CLE Eminent Domain Conference, Third Day: Berger And Burling On Takings

Our upcoming American Law Institute-CLE Eminent Domain and Land Valuation Litigation Conference in Charleston, South Carolina has SOLD OUT our in-person registrations. 

We will have a record attendance (with over 100 first-time attendees) and the conference hotel has informed us that we can fit no more people in the meeting rooms. We cannot remember this happening before, but it tells us that we will have an energizing and exciting conference. 

Thank you to all of you who signed up and are coming or joining in online for the webcast — we’ll see you soon at the “four corners of the law.”

And if you delayed too long in registering, please don’t despair. You can still attend from home or the office because ALI has set up a live webcast of the sessions. Go here for more on how to sign up to attend by webcast.

And stay…

Continue Reading ALI-CLE Eminent Domain & Land Valuation Conference – In-Person Registration SOLD OUT (But You Can Still Join By Live Webcast)

Here’s the first post-Murr cert petition (as far as we can tell), in a case we’ve been following. As we wrote in “The First Post-Murr Case? Fourth Circuit: No Taking Because Anti-Development Merger Regulations Actually Make Property Developable,” the Fourth Circuit concluded:

[T]he County’s regulations were run-of-the-mill zoning/land use ordinances, and thus were not a taking, nor violations of the related substantive due process and equal protection claims. Because the County had no obligation to extend sewer services to the plaintiff’s parcels, he had no property interest that was taken by the development prohibition. 

The court rejected the owner’s attempt to distinguish Murr. He pointed out that he purchased his property before the restrictive regulations were adopted, and not afterwards like the Murr children. See Murr, 137 S. Ct. at 1945 (“the “expectations . . . an acquirer of land must acknowledge legitimate restrictions affecting…

Continue Reading First Post-Murr Cert Petition