Land use law

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We’ve had bridges on our minds lately. Plus, we’ve been meaning to post the Nebraska Supreme Court’s opinion in Strode v. City of Ashland, No. S-15-956 (Oct. 28, 2016) for a while, and it is coincidentally about a bridge. So the title to this post came to us quickly, and naturally. But writing up the case didn’t.

But while we dawdled, Dean Patty Salkin wrote the case up on her blog, Law of the Land. Which has now saved us the effort of writing the case up in its entirety, and we suggest you start by reading her post for the background and the court’s ruling. 

The case involved two inverse condemnation claims brought by husband and wife property owners, asserting the City’s zoning regulations worked a taking of their land in two ways. They first that the regulations prohibited their use of the land for their…

Continue Reading Nebraska: Inverse Condemnation Claims A Bridge Too Far

We don’t usually post unpublished opinions, but the Fourth Circuit’s recent decision in Clayland Farm Enterprises, LLC v. Talbot County, No. 15-1755 (Dec. 2, 2016), raised some issues worth your time. 

The property owner brought its claim in Maryland state court claiming, among other things, that the County’s two indefinite moratoria on development and sewer availability — which prohibited owners from seeking or obtaining County subdivision — was a facial taking. The lawsuit asserted “the moratorium is facially unconstitutional,” although it’s not clear from the majority opinion what remedy the complaint sought. 

The County removed the case to federal court and moved to dismiss. The district court granted the motion, because “[i]t is beyond the province and competence of this court to make zoning decisions[.]” 

The Fourth Circuit reversed. “Count I is a facial challenge to the moratoriums and is thus clearly ripe.” Slip op. at 7. Because a…

Continue Reading 4th Circuit (Unpublished): Federal Court Facial Takings Claim Ripe After Removal By Govt To Fed Court

Here’s what we’re reading today:

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Continue Reading Monday Round-Up: Food Takings; Honolulu And Nebraska Takings; Property Rights And The Environment

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After a short absence and a change of lead sponsor (from ALI-CLE, to the American Bar Association’s Section of State and Local Government Law), the Land Use Institute is back on.

Download the print brochure here, or visit the LUI web site for more. It will be held February 1-2, 2017, in Miami, Florida, at the Brickell City Centre‘s Akerman Conference Center, in conjunction with the ABA’s Midyear Meeting. One of the best aspects of this program is the registration fee, a mere $300, $250 if you are a judge, an academic, young lawyer, or government attorney (perhaps the best deal in CLE). Register on line here. For those who cannot attend in-person, the LUI will be live-streamed. Register here. 

Planning Chairs Frank Schnidman and Dean Patrica Salkin have assembled a very good faculty and program. Topics include: “Nuts and Bolts of Land Use…

Continue Reading Mark Your Calendars: The Land Use Institute Is Returning – February 1-2, 2017, Miami

We were getting ready to dig into the California Court of  Appeal’s opinion in 616 Croft Ave., LLC v. City of West Hollywood, No. B266660 (Sep. 23, 2016), when our ABA State and Local Government Law colleague Bryan Wenter wrote up the case on his firm’s land use blog, saving us the trouble.

The opinion is, in his words, “the first reported appellate decision to rely upon the broad holding of the California Supreme Court’s blockbuster 2015 affordable housing case, California Building Industry Assn. v. City of San Jose, and it boldly highlight the far reaching implications of that ruling.” As Bryan writes, “it also underscores the ongoing need for the United States Supreme Court to finally address whether the heightened scrutiny of the Nollan, Dolan, and Koontz Fifth Amendment takings cases applies to legislatively imposed permit conditions.”

Go read Bryan’s summary and excellent analysis…

Continue Reading Cal App: In-Lieu Housing Fee Isn’t An “Exaction,” And Isn’t A Taking

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Tomorrow, Thursday, October 6, 2016, at 10:00 a.m. at Aliiolani Hale, the Hawaii Supreme Court will hear oral arguments in a case we’ve been following (we filed an amicus brief in the case, supporting the property owner on the first Question Presented), County of Kauai v. Hanalei River Holdings, Ltd., No. SCWC-14-0000828. 

The case is a taking by the County of several parcels on the north short of Kauai, but the main issue in the case — do parcels need to physically touch in order for the jury to consider them part of a larger economic parcel — goes well beyond this one case. The Honolulu rail project, probably the biggest eminent domain project in Hawaii’s history, is underway, and the larger parcel issue could arise is more than a few cases there. What we thought was settled doctrine in Hawaii law was thrown into question by the…

Continue Reading Oct 6, 2016: HAWSCT Oral Argument In Eminent Domain Case: Do Parcels Need To Touch To Be Part Of A “Larger Parcel”

Here’s the latest in a case we’ve been following, and which earlier resulted in a very good decision from the North Carolina Supreme Court. 

In Kirby v. North Carolina Dep’t of Transportation, No 56PA14-2 (June 10, 2016), the N.C. Supreme Court held that the “Map Act,” a statute by which the DOT designated vast swaths of property for future highway acquisition, was a taking because the act prohibited development of designated properties in the interim. The court concluded that “[t]hese restraints, coupled with their indefinite nature, constitute a taking of plaintiffs’ elemental property rights by eminent domain.” The court remanded the case for a parcel-by-parcel determination of just compensation.

Here’s the trial court’s Order on remand, granting in part the plaintiffs’ motion for partial judgment on the pleadings on inverse condemnation liability, and ordering the NCDOT to “file plats, make deposits with the required statutory interest, and, if any plaintiff…

Continue Reading NC Map Act: DOT Ordered To Pay For Designating Property For Future Highway Use (But Then Not Taking It)

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We’ve teased some of the details on the 2017 ALI-CLE Eminent Domain and Land Valuation Litigation and Condemnation 101 Conference, to be held at the Westin San Diego, January 26-28, 2017, but here are the details you’ve been waiting for.

This is the “big one,” our annual 3-day festival of all things eminent domain, property, takings, inverse condemnation, and just compensation. Truly national in scope, this is the 34th annual edition, and the one conference you must attend. Our 2016 conference in Austin was one of the best in years, and we’re on the way to replicating it in 2017, with a great venue in an exciting city. 

Look for the web and printed brochures to show up in your mailboxes, but in the meantime, here are some of the highlights (we’ll post more in the next few days):

  • Relocation, relocation, relocation: we are featuring two sessions on this

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Continue Reading Details: ALI-CLE Eminent Domain And Land Valuation Conference – San Diego, January 26-28, 2017

There’s a lot of pages in the Pennsylvania Supreme Court’s opinion (and two concurring opinions) in Robinson Township v. Commonwealth of Pennsylvania, No. J-34A-2016 (Sep. 28, 2016), and the good stuff from the headline starts on page 78. But to understand the case, you need a bit of background.

Pennsylvania has been one of the hotbeds of property owner objections to natural gas (including the related fracking extraction method) and other pipeline projects, and this case was a lawsuit by several townships and municipal officials challenging a state statute which made fracking and eminent domain easier for the gas companies. The townships asserted this went beyond what the state legislature had the power to allow, because it was “special legislation” designed to help a particular industry, and not applicable to all, and allowed an unconstitutional taking of private property for private use. The court held the statute was special…

Continue Reading Pennsylvania Supreme Court: Delegation Of Eminent Domain Power To Pipeline Companies Violates Fifth Amendment’s Public Use Clause

This one is kind of Colorado specific, but there are lessons here for the rest of us.

In Colorado Dep’t of Transportation v. Amerco Real Estate Co., No. 16SA75 (Sep. 26, 2016), the Colorado Supreme Court prohibited the DOT from taking Amerco’s land (leased to U-Haul) for a highway project because the transportation commission had not first determined via the process required by statute that the taking would serve the public interest.

U-Haul argued these statutes required the commission to adopt a resolution — based on a report by the chief engineer — to establish that the taking of this specific property would be in the public interest, and that it wasn’t sufficient that these things were done for the project in general. The DOT asserted that an earlier resolution by the transportation commission gave the DOT all the power it needed, because it had delegated the power to acquire…

Continue Reading When Statute Requires Commission Approve Taking, DOT Can’t Do It