Land use law

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Check this out, a story in the September 28, 2015 edition of the New York Times, “Owner of Grand Central Sues Developer and City for $1.1 Billion Over Air Rights.”

Reminds us of this obscure Supreme Court case we heard about…

The Times reports that the current owner of Grand Central Terminal is, with the counsel of uberlawyers, suing New York City in federal court, alleging a taking and related. So what’s this all about (we thought this was “old, unhappy, far-off things, And battles long ago”)?

Apparently, the city granted a Grand Central neighbor permission to build a massive 1500 feet high office tower, and in doing so, took Grand Central’s property (its air rights) without compensation:

On Monday, Mr. Penson filed a $1.1 billion lawsuit in United States District Court in Manhattan that argued that the administration of Mayor Bill de Blasio, a Democrat…

Continue Reading Penn Central, Part Deux? A New Complaint Alleges A Taking Of Grand Central Air Rights

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Look what arrived in the mail, a copy of the ABA Section of State and Local Government Law’s recently-published Municipal Law Deskbook, edited by our friend and colleague, Oregon’s Bill Scheiderich. 

We received a gratis copy because we authored the chapter on Regulatory Takings. The book is designed as a quick reference guide for you muni law types who don’t keep the entire set of McQuillin Municipal Corporations in your library, or for you non-muni law lawyers who want a handy reference guide when these issues come your way:

[The] Municipal Law Deskbook offer[s] legal guidance to municipal attorneys, private practitioners, city administrators, and educators. The book covers a full range of those issues that commonly arise in day-to-day local government administration and the content is intended for attorneys and nonlawyers alike. The chapters cover such topics as when and how federal laws and regulations preempt local legislation…

Continue Reading New Book: Municipal Law Deskbook

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We’re in Detroit and environs for the weekend, doing some scouting for an upcoming meeting of the ABA’s Section of State and Local Government Law.

Had a Faygo Redpop at the site of Tiger Stadium in Corktown, dinner in Poletown, a fresh peach at the Saturday Eastern Market, and read this recent Sixth Circuit opinion reinstating the Insane Clown Posse‘s lawsuit against federal prosecutors over the DOJ’s inclusion of Juggalos on its gang list.  

Although things look like they’re on the uptick here, Detroit has a long way to go. For some insight on how they got this bad, check out Professor Kanner’s recent article, “Detroit and the Decline of Urban America,” 2013 Mich. State. L. Rev. 1547 (2013). 

Parsons v. U.S. Dep’t of Justice, No. 14-1848 (6th Cir. Sep. 17, 2015)

Continue Reading Detroit Travelogue

Here’s the cert petition you knew was coming, which asks the U.S. Supreme Court to review the California Supreme Court’s decision upholding the City of San Jose’s “inclusionary housing” requirement by applying rational basis review. The California court held the requirement was not an “exaction,” and was no more than a mere zoning regulation or price control. 

Here’s the Question Presented:

A San Jose, California, ordinance conditions housing development permits upon a requirement that developers sell 15% of their newly-built homes for less than market value to city-designated buyers. Alternatively, developers may pay the city a fee in lieu. The California Supreme Court held that, even where such legislatively-mandated conditions are unrelated to the developments on which they are imposed, they are subject only to rational basis review.

This raises an issue on which the state courts of last resort and federal circuit courts of appeal are split nationwide. The…

Continue Reading Cert Petition: Requirement That Developers Set Aside “Affordable” Units Is Subject To More Than Rational Basis Review

As noted in the Honolulu Civil Beat story, “Hawaii AG Backs Vermont GMO Labeling Law,” Hawaii has signed on to an amici brief in support of the State of Vermont in the Second Circuit appeal of a Vermont federal court’s ruling which rejected a challenge to Vermont’s requirement to label GMO products. The Civil Beat story reports on the brief, but as far as we can tell, doesn’t actually post the brief. Law nerds rejoice: here it is.

What is intriguing is that Hawaii chose to join this brief. Recall that Hawaii has no statewide GMO labeling laws, although it does have comprehensive laws that address the topic of GMO’s, a conclusion reached by at least two federal courts in challenges to county-adopted ordinances which deal with GMO issues (although none of the ordinances involve labeling). [Disclosure: we represented an amicus party in one of those District…

Continue Reading Hawaii Joins Amici Brief In 2d Cir GMO Labeling Appeal

Those of you who are members of the ABA Section of State and Local Government Law, tune in tomorrow, Friday, September 11, 2015 for the Land Use Committee’s monthly call.

It will feature two speakers, talking about the California Supreme Court’s recent decision upholding San Jose’s “workforce housing” requirement against a claim that it was an “exaction” and thus should have been subject to the nexus and rough proportionality requirements of Nollan, Dolan, and Koontz.

Law of Affordable/Workforce Housing Exactions and Set-Asides 

FREE Teleconference Sponsored by the Land Use Committee
Friday, September 11, 2015
2:00 p.m. EST
Dial-in 888-3967955
Passcode 797687#
 
Speakers: David L. Callies, FAICP, Kudo Professor of Law at the University of Hawaii

Tim Iglesias, Professor of Law at the University of San Francisco School of Law (Professor Iglesias organized and co-authored an amicus brief in support of the City of San Jose).…

Continue Reading Tomorrow: ABA Land Use Committee Talk On The California Workforce Housing “Exaction” Case

From the Ninth Circuit, a published opinion in a case challenging a Napa Valley city’s mobilehome rent control ordinance, Rancho de Calistoga v. City of Calistoga, No. 12-17749 (Sep. 3, 2015). Here’s a complete summary of the issues in the case, along with the Ninth Circuit merits and amici briefs. We’ve been following it because we filed an amicus brief in support of the property owner’s argument that it pleaded enough to get by a motion to dismiss for failure to state a claim. 

The Ninth Circuit didn’t agree, and affirmed the District Court’s dismissal. The panel concluded the case was ripe under Williamson County (an issue that seemed to occupy a lot of the judges’ time at oral arguments), but that the owner’s theory that “even if the taking is for a public purpose, the rent subsidy should be paid by the government if the rent is…

Continue Reading Where’s Palazzolo, Ninth Circuit? Owner Bought Property Subject To Regulation (Just Not These Regulations), So Has No Takings Claim

Here’s the latest in a case that we’ve been following, which was in both state and federal court, Bridge Aina Lea v. Land Use Comm’n. 

The litigation is a series of two lawsuits that originated in state court in the Third Circuit (Big Island), one an original jurisdiction civil rights lawsuit, the other an administrative appeal (that’s a writ of administrative mandate for you Californians). The State removed the civil rights lawsuit to U.S. District Court in Honolulu and promptly moved to dismiss, and this portion of the case nearly caused us to flash back to our Federal Courts class in law school, since it raised a host of procedural questions such as the effect of removal, whether certain defendants are “persons” under 42 U.S.C. § 1983, whether the federal court must abstain from addressing the federal takings claim, whether there is a state damage remedy for…

Continue Reading Hawaii Federal Court Gets Rid Of Most Claims Against Land Use Commission, But Allows Takings And Vested Rights Claims To Go Forward

Oral Arguments part I

Oral Arguments part II

Three points before we get to our more involved thoughts on last week’s oral arguments in what is known as the “Thirty Meter Telescope” case, Mauna Kea Anaina Hou v. Bd. of Land and Natural Resources, No. SCAP-14-0000873: 

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Continue Reading Not Quite “Where No Man Has Gone Before” – Hawaii Supreme Court Considers Mauna Kea’s 30 Meter Telescope

EM Hauulaeminent_domain_abuse

You remember that case about property on the rural north shore of Oahu, in which the City and County of Honolulu is condemning a vacant parcel in order to build a new fire station. The City hasn’t moved on building the station and hasn’t included money in the budget to do so. There’s even some question about whether this is a good place for a fire station.

All this caused the property owner to erect several protest signs on the parcel, one of which is depicted above. An additional brouhaha arose when the City removed and stored the signs, which caused the owner to sue the City in federal court, alleging among other things, due process and First and Fourth Amendment violations, and violations of the City’s “stored property” ordinance.  

We reported on proceedings in the first case, where the court denied the City’s motion for summary judgment. The City argued …

Continue Reading Federal Court: City Stopped Blowing Hot And Cold And Had Exclusive Possession Of Property Under Quick-Take Statute, So It Was OK To Seize Anti-Eminent Domain Sign