Land use law

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Here’s one that — although unpublished — is still worth a quick read. Because it’s a case where the Sixth Circuit held that a federal court takings claim against the City of Franklin, Tennessee, which is the seat of Williamson County, Tennessee, should be dismissed under Williamson County because it wasn’t ripe.

In Beech v. City of Franklin, No. 16-6326 (Apr. 19, 2017), Beech sued the City claiming it was a taking for the City to allow Beech’s neighbor to operate a barbershop next door. That’s a tough claim to begin with, but Beech pressed a mandamus claim in Tennessee state court, seeking to enjoin the neighboring barber shop. Included within the petition were claims for damages for violations of Beech’s federal constitutional due process and equal protection rights because (allegedly) the City was not enforcing its zoning code. Beech did not assert a takings claim. The state court…

Continue Reading A Williamson County Ripeness Case From Williamson County, Tennessee

Do you really need an excuse to visit Seattle? If you do, and want to earn some CLE credit while you’re at it, check it out the brochure for the upcoming Eminent Domain seminar on May 18, 2017. This is a one-day program that focuses on the hot topics in our area of law. We’ll be speaking about “Changes in National Public Policy” and the latest developments in eminent domain and takings law. 

Agenda and full registration information here. 

Come, join us. 

7th Annual Eminent Domain Seminar, Seattle, Washington, May 18, 2017 

Continue Reading Seattle Eminent Domain Conference, May 18, 2017

We don’t usually post trial court decisions. They are, obviously, subject to change by an appellate court, and because many are interlocutory, alteration by the rendering court iself.

But for this order from the U.S. District Court for the Northern District of Florida, we’ll make an exception. It’s a land use case (it’s right there in the first sentence, “This is a land use case.”), in which the plaintiffs are challenging two ordinances adopted by the County. The first prohibited obstruction of the beach with ropes, chains, signs, or fences. The second prohibited anyone from interfering with public use of dry sand beach areas. Under Florida law, the dry sand portion of the beach is privately owned. 

As you might expect, because the effect of the ordinance was to invite the public to use private property (as Laurence Tribe wrote in his treatise on Constitutional Law when discussing Kaiser Aetna …

Continue Reading Federal Court: Williamson County Ripeness Not Required In Facial Takings Claims

Remember back from Admin Law the notion of a “quasi-judicial” proceeding? That term always has bugged us, because, you know, it was used when an agency was sorta acting like a court (but also was sorta acting like a legislative body). Half full, half empty, take your pick. 

The fact pattern presented in the Florida District Court of Appeals’ opinion in Highland-in-the-Woods, LLC v. Polk County, No. 2D15-2801 (Apr. 28, 2017), involved the other side of that coin, an exaction the County argued was legislative even though imposed by an agency, and therefore off-limits to the exactions test of Nollan-Dolan-Koontz. (We think distinctions like this don’t matter — that whether or not its a legislature or an agency that is making a demand that in order to make use of your property, that you have to give up a constitutional right — but we recognize that the…

Continue Reading Fla App: A Sorta-Legislative Exaction Is Subject To Nollan-Dolan, But This One Passed The Test

Here are the full set of petitioner-side amici briefs in 616 Croft Ave., LLC v. City of West Hollywood, No. 16-1137, the case which asks the Supreme Court to determine whether the Nollan-Dolan-Koontz exactions standards apply to conditions on development imposed by a legislature. 

The City waived response, but the Court asked for one. This could get interesting, so stay tuned. 

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Continue Reading SCOTUS Amici Briefs In Legislative Exactions Case

Not a lot in Jabary v. McCollough, No. 15-40009 (Apr. 19, 2017) to grab onto, so we’re not really surprised that the Fifth Circuit didn’t publish. But because the case involves Williamson County takings ripeness and is in our wheelhouse, we’re posting it nonetheless.

The first two sentences, “City building inspector Bret McCullough shut down Mike Jabary’s hookah lounge. He did so by leaving a notice on the door of the establishment that summarily revoked Jabary’s certificate of occupancy and informed him that he was violating the city code by doing business without the certificate” give you a clue that this is a procedural due process case as well as a takings case. Jabary met with success with his due process challenge (the district court denied the building inspector’s motion for summary judgment on immunity grounds, after which the inspector appealed), and, predictably, the district court held that Jabary’s…

Continue Reading 5th Cir (Unpub) – Takings Claim Not Ripe

Here’s the amicus brief filed yesterday by the National Federation of Independent Business Small Business Legal Center, joined by Owners’ Counsel of America, in a case we’ve been following.

This case asks the Court to resolve a big outstanding issue: are legislatively-imposed exactions (however that term is defined) subject to the same high level of scrutiny under the Nollan–Dolan–Koontz test as are administratively-imposed exactions? 

Our brief argues:

The Respondent, City of West Hollywood (“City”), forces property owners into the same unconstitutional dilemma which faced James and Marilyn Nollan, Florence Dolan, and Coy Koontz. Nollan v. California Coastal Comm’n., 483 U.S. 825 (1987); Dolan v. City of Tigard, 512 U.S. 374 (1994); Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586 (2013). Specifically, the Petitioners were forced to choose between their fundamental rights to either (a) obtain just…

Continue Reading SCOTUS Amicus Brief: Lawless Legislatures Should Be Treated The Same As Lawless Zoning Boards

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Here’s what we’re reading today:

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Continue Reading Monday Reading: Pirates (Twice), Monet Land Use Pilgrimage

The Indiana Court of Appeals’ recent opinion in Town of Clear Lake v. Hoagland Family Ltd. P’ship, No. 76A05-1606-PL-1241 (Apr. 6, 2017), doesn’t really involve inverse condemnation, except in the background. But we found it interesting nonetheless, because of the way the opinion finishes up, with a plethora of potty puns.

The case involved the town’s attempt to convince a local property owner to abandon his septic system, and connect to the town’s sewer system. At first the town tried cajoling, bargaining, and trying to entice hook up. It laid down pipes beneath the land, it passed ordinances requiring connection. But the owner, for whatever reason, said no. Indeed (and here’s the inverse condemnation connection), he sued the town for inverse condemnation when it put the pipes beneath his property (they eventually settled). Finally, the town sued those who had not connected to the sewer system, including Hoagland, and…

Continue Reading Indiana App: Hook Up To City’s Sewer System…Or Else! (Warning, Toilet Puns)

Here’s the recording of the March 20, 2017 oral arguments in Murr v. Wisconsin, the e “larger parcel” or “denominator” case.

The printed transcript is posted here, and our summary of the arguments is posted here. Our preview of the arguments, which includes link to the briefs, is here.

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inversecondemnation.com: Affirmed By An Equally Confused Court? Some Thoughts On The Oral Arguments In The “Larger Parcel” Case

Continue Reading Murr Oral Argument Recording