Land use law

Subscribe to Land use law via RSS

Last week, the Hawaii Supreme Court heard oral arguments in Sierra Club v. Castle and Cooke Homes Hawaii, Inc., No. SCAP-13-0000765, a case involving a challenge by the usual suspects to a State Land Use  Commission “boundary amendment” (aka state “rezoning” to those of you not familiar with Hawaii’s top-heavy state land use planning scheme). 

According to the Judiciary web site summary of the case, here are the issues:

In this case, Appellants Sierra Club and Senator Clayton Hee appeal from the Decision and Order of the Circuit Court of the First Circuit, which denied and dismissed their appeal from the Land Use Commission’s Findings of Fact, Conclusions of Law, and Decision and Order, which approved Appellee Castle & Cooke’s Petition for District Boundary Amendment. The Land Use Commission reclassified approximately 769 acres of Castle & Cooke’s land from the state agricultural land use district to the state…

Continue Reading Guest Post: HAWSCT Oral Arguments In Koa Ridge – Is The State Prohibited From Rezoning “Potential” Important Ag Land?

The powers-that-be planned on building a major freeway interchange, part of which was going to be on the property owned by Jefferson Street Ventures. Problem was, Jefferson Street also had plans for its property — a shopping center — and when it came time for it to apply to the City of Indio for permits to build, the city said yes, but only if Jefferson Street left open and didn’t build on the 11 acres on which the interchange was envisioned.

We’re going to buy it eventually said the city, but the complex federal and state process for studying, evaluating, and funding the project takes a long time, and if you build on it now, it’s going to cost us more in the future to take the developed property and relocate all of the tenants.

In Jefferson Street Ventures, LLC v. City of Indio, No. G049899 (filed Apr. 21…

Continue Reading Cal App: “Temporary No-Build Area” While City (Maybe) Gets Around To Condemnation Is A Taking

Here’s the latest from the Hawaii Supreme Court on the joinder of parties under Rule 19, where there’s a claim that an absent party is “indispensable” and thus the case should be dismissed. Bottom line is that an absentee should be joined if its presence is needed, and the “indispensable” determination only needs to be undertaken if the party can’t be joined. In other words, dismissal is the last resort. 

We won’t go into the details of Kellberg v. Yuen, No. SCWC-12-0000266 (Apr. 15, 2015), because we represent the plaintiff-respondent. So we will leave it to others to dissect the opinion for any civil procedure gems and practical tips. But read the opinion if you want to understand the details for yourself. 

This is the second time that this case has gone to the Supreme Court, the first trip resulting in a published opinion clarifying when an order…

Continue Reading HAWSCT Clarifies Joinder Of Indispensable Parties

In 2011, Missouri adopted a statute that looks to us like a slightly modified “right to farm” law:

The statute supplants the common law of private nuisance in actions in which the “alleged nuisance emanates from property primarily used for crop or animal production purposes.” Unlike a common law private nuisance action, section 537.296 precludes recovery of non-economic damages for items such as loss of use and enjoyment, inconvenience, or discomfort caused by the nuisance. Instead, the statute only authorizes the recovery of economic damages in the form of diminution in the market value of the affected property as well as documented medical costs caused by the nuisance.

Under Missouri common law, nuisance claims arising from farming activities are considered temporary nuisances. A few days after the statute went live in 2011, Bohr Farms fired up what is known in the business as a “CAFO” (Concentrated Animal…

Continue Reading Missouri: Statute Which Supplants Common Law Farm Nuisance Claim Is Not A Taking

Last week, the California Supreme Court heard oral arguments in California Building Industry Assn. v. City of San Jose, No. S212072, the case which challenges San Jose’s “inclusionary housing” requirement.

The Court of Appeal held that under rational basis review (and not heightend scrutiny) San Jose’s affordable housing exaction might survive because it was designed to promote the development of affordable housing, and not to mitigate the impacts of market priced housing. California Building Industry Ass’n v. City of San Jose, 216 Cal.App.4th 137 (6th District June 6, 2013). The California Supreme Court agreed to hear the following issues:

What standard of judicial review applies to a facial constitutional challenge to inclusionary housing ordinances that re quire set asides or in – lieu fees as a condition of approving a development permit? (See San Remo Hotel L.P. v. City & County of San Francisco (2002) 27 Cal.4th 643…

Continue Reading California Supreme Court Considering “Inclusionary Housing” Fee

Williamson County gives everyone grief, and if you needed any more proof, here it is.  

In A Forever Recovery, Inc. v. Township of Pennfield, No. 13-2657 (Apr. 2, 2015), an unpublished opinion from the Sixth Circuit, the court upheld the district court’s award of attorneys’ fees and costs to a property owner who brought a takings claim in Michigan state court, only to see the defendant, the Township of Pennfield, remove the case to federal court and then move to dismiss the claim six days later, asserting it was not ripe under Williamson County. 

The district court rightly remanded the case back to state court, and held the Township liable for fees and costs under the removal statute which shifts fees in cases where the defendant doesn’t have an “objectively reasonable basis for seeking removal.” The court held that the Township removed only to delay the case…

Continue Reading 6th Cir Schadenfreude Alert: Municipality Liable For Fees And Costs For Removing Takings Claim From State Court

Two stories to read, in tandem:

  • In the ultimate dog-bites-man story, yesterday’s Honolulu Star-Advertiser headline reads “Home demand outweighs supply.” Well no kidding. As one fellow quoted in story said,”This is the most overstudied subject in the history of mankind … You don’t need a study to know what the numbers are. It’s time to stop studying housing and start doing housing.” The story is partially behind a paywall, but the lede sums it up: “Hawaii needs up to 66,000 homes if it expects to satisfy demand for housing over the next decade.” Increasing demand coupled with restrictive supply means, guess what – high prices and shortages. What’s responsible for the lack of housing? There’s land on which to build, but it’s infamously difficult to develop. As Professor David Callies wrote recently, Hawaii has an “increasingly well-known penchant for lengthy, often decade-long land use permitting processes” and a

…
Continue Reading Guess What: Hawaii Housing Is Expensive!

It’s not often that we say a law review article is a “must-read.” But this one definitely is, especially for all you regulatory takings mavens: David L. Callies, Through a Glass Clearly: Predicting the Future in Land Use Takings Law, 54 Washburn L. Rev. 43 (2014). A pdf of the article is posted here. 

From the Introduction:

The subject of takings—the government taking of an interest in real property, either through eminent domain or through the exercise of the police power—has been the subject of continuous litigation for nearly a century. The past ten years have been particularly fruitful, as litigants struggle with the meaning and extent of the Fifth Amendment’s Public Use Clause and the extent to which the overzealous exercise of the police power can sufficiently deprive a landowner of rights in property so that the property has been “taken” by regulation, ever since Justice Holmes…

Continue Reading New Law Review Article Worth Reading: “Through a Glass Clearly: Predicting the Future in Land Use Takings Law”

In Kirby v North Carolina Dep’t of Transportation, No. COA14-184 (Feb. 17, 2015), the North Carolina held that state’s “Map Act,” which gives the DOT the ability to designate property for future highway use and prevent its development in the meantime, was a taking. There was great shouting and gnashing of teeth that making the DOT actually pay just compensation would crash the system and cost the state a lot of money, so we were not terribly surprised when the DOT recently filed this Notice of Appeal and Petition for Review posing three questions:

1. Did the Court of Appeals erroneously hold that the Map Act, N.C.G.S. § 136-44.50 et seq., empowered NCDOT to exercise the power of eminent domain and that NCDOT exercised that power and took Plaintiffs’ property rights when it recorded protected corridor maps?

2. Did the Court of Appeals erroneously remand this matter for…

Continue Reading State Appeals NC “Map Act” Takings Case

Brost v. City of Santa Barbara, No. B246153 (Mar. 25, 2015) is an unpublished opinion, but (1) we hope the property owners ask the court to publish it, and (2) even if it remains unpublished, it is worth reading, because the court correctly applies both Williamson County‘s futility exception, and the “background principles” exception to a Lucas “wipeout” regulatory taking. 

It’s a longer opinion, but here’s the short story: the plaintiffs’ properties are in a part of the city that is an active landslide area. The city adopted an ordinance that prohibited new construction in the area. The plaintiffs’ homes were destroyed in a wildfire (not a landslide, mind you), and the city refused to allow them to rebuild and refused to amend the ordinance. The trial court held that the total prohibition was a regulatory taking, and “[t]o avoid having to compensate plaintiffs for a permanent taking, …

Continue Reading Cal App (Unpub): Temporary Prohibition On Rebuilding In A Landslide Zone Is A Taking