Land use law

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Land users, please read the California Court of Appeal’s opinion in Woody’s Group, Inc. v. City of Newport Beach, No.G050155 (Jan. 29, 2015), which starts off with this straightforward summary:

The language of the law is replete with synonyms for fairness: due process, equal protection, good faith, harmless error are all ways of expressing our commitment to fairness. The City Council of Newport Beach violated at least two basic principles of fairness in overturning a permit application approved by the city’s planning commission. It should come as no surprise, then, that their action also violated California law.

First basic principle: You cannot be a judge in your own case. In this case Councilmember Mike Henn, having already voiced his “strong[]” opposition to Woody’s application, was allowed to appeal the approval of Woody’s application to the very body on which he sits, where he did his best to convince his…

Continue Reading Cal App: Zoning Authorities Need To “Play Fair”

The wheels of justice may grind slowly, but they do grind. Yesterday, the Ninth Circuit granted a motion we filed back in June 2013, and permitted us to file this amicus brief on behalf of the Western Manufactured Housing Communities Association in a case that is scheduled to be argued in mid-February 2015, Rancho de Calistoga v. City of Calistoga, No. 12-17749.  

The case is a federal court challenge to a California wine-country municipality‘s decision to deny a rent increase for a mobilehome park subject to the city’s rent control ordinance. The complaint alleged that the city’s failure to allow the ground lease rent to increase to $624 violated the park owner’s rights under the takings, due process, and equal protection clauses. The District Court eventually dismissed the complaint for failure to state a claim for relief under Rule 12(b)(6), because, among other things, the park …

Continue Reading 9th Circuit Amicus Brief: How To State A Valid Claim After Lingle – Regulatory Taking, Private Taking, Or Due Process?

The Township of Ocean, New Jersey downzoned the plaintiffs’ residentially-and-commercially-zoned land to “Environmental Conservation.” The EC district allows “only very low density residential development or other low intensity uses,” with a minimum lot size of 20 acres. 

The plaintiffs, who own 34 acres subject the EC zoning, challenged the zoning ordinance, asserting it was “arbitrary, unreasonable, capricious and illegal,” and that it resulted in an inverse condemnation because it prohibited all uses.

In Griepenburg v. Township of Ocean, No. A-55-13 (Jan. 22, 2015), the New Jersey Supreme Court seemed to agree that there is little chance the property owners can make any use of their land: “[a]lthough plaintiffs’ single-family residence conforms to the ED district’s density requirement of one unit per twenty acres, no further development of their property within the EC district is permitted under the new zoning.” Slip op. at 13. 

The Supreme Court, however, held that the…

Continue Reading NJ: Environmental Preservation Zoning Might Prohibit Development, But Owner Must First Try To Develop

Last we checked in with the Bridge Aina Lea case, the Ninth Circuit said it would hold off on a decision until the Hawaii Supreme Court ruled in the associated state court litigation (see 9th Cir Says “Let’s Wait” On Hawaii Supreme Court To Rule In Bridge Aina Lea).

This is the federal court side of a case in which a developer is suing the State Land Use Commission (and certain Commissioners in their individual capacities) after the LUC reclassified its land on the Big Island from urban to agricultural use. Aina Lea filed two actions in state court: an administrative appeal under the administrative procedures act, and an original jurisdiction civil rights complaint. The defendants removed the latter action to federal court. The District Court, however, abstained. After oral arguments in the Ninth Circuit, the panel withdrew the case from submission to allow the Hawaii Supreme Court…

Continue Reading 9th Cir: No Need For Pullman Abstention In Aina Lea After Hawaii Supreme Court Ruling

Here’s the latest in a case we’ve been following, the property owner’s cert petition, filed last week, in which a U.S. District Court invalidated a Florida county’s “Right of Way Preservation Ordinance” which allows it to land bank for a future road corridors by means of an exaction. The court concluded the ordinance is “both coercive and confiscatory in nature and constitutionally offensive in both content and operation,” and struck it down under Nollan/Dolan. 

The transportation corridor protrudes into Hillcrest’s undeveloped commercially-zoned property. Hillcrest wanted to build a shopping center and it submitted a plan to the Review Committee, which rejected the application because it did not account for the corridor. Hillcrest submitted a second plan which was rejected, and a third plan which was eventually approved, which required Hillcrest to dedicate the right of way to the county. Hillcrest reserved its right to object …

Continue Reading New Cert Petition: Must A Plaintiff Challenging An Ordinance For Facial Invalidity File Suit Before Her As-Applied Claim Has Ripened?

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This could be your view, winging your way to San Francisco in a couple of weeks, to join us for the 2015 ALI-CLE Eminent Domain and Land Valuation Litigation Conference (and the concurrent Condemnation 101 program), at the Hotel Nikko, February 5-7, 2015. 

There’s still a few spaces left, and time to register. We’re the co-Planning Chair of the Eminent Domain and Land Valuation Litigation program along with Joe Waldo, and we’ve assembled an exciting agenda, presented by a faculty comprised of the nation’s best-of-the-best in our field of law.

Winter in San Francisco is the one time of the year when you are likely to not be fogged in, and in addition to the 2 and a half days of programming, there are networking and social events so you can get to know your colleagues and the faculty better.

Please come and join us, if you…

Continue Reading Still Time To Join Us For The 2015 ALI-CLE Eminent Domain Programs In San Francisco

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Ben Kudo and David Callies, leading off

Professor Richard Epstein began the Hawaii Land Use Law Conference with the keynote presentation on “Stealth Takings: Exactions, Impact Fees, and More,” which was his usual comprehensive and non-stop takedown of takings law. 

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Our panel on Impact Fees and Exactions After Koontz followed, and here are the promised links and other materials which I mentioned:

Later today, I will also post up a recording of my short backgrounder on the exaction issue, to give you a flavor of the panel discussion (the Hawaii State Bar Assocation…

Continue Reading 2015 Hawaii Land Use Law Conference

Here’s the final program and faculty list for the 2015 Hawaii Land Use Conference, coming up Thursday and Friday, January 15-16, 2015, in downtown Honolulu.

This is the bi-annual gathering of Hawaii’s land use mavens, and this year’s program has two very special presenters. Storied lawprof Richard Epstein (perhaps more than a “mere mortal”) will be presenting the keynote talk on “Stealth Takings: Exactions, Impact Fees and More,” and our ABA colleague Patty Salkin, Dean of the Touro Law School, will get us our Ethics CLE credits with her usual exciting program on ethics topics. (As someone who has attended more than few of her presentations, we can report that it is worth the price of admission alone, and even though “ethics CLE” and “exciting” are words we usually do not associate with each other, Dean Salkin’s presentation is the exception.)

Our panel on “…

Continue Reading Still Time To Join Us For The 2015 Hawaii Land Use Conference (Jan. 15-16)

Mauitemple

Here’s the latest for you RLUIPA mavens, a complaint recently filed in Hawaii federal court by a Maui “integral yoga” temple and its leader against the County for not permitting it to use their site on Maui’s north shore for things like weddings and religious observations. Parking was the proffered reason, it appears.  

Dwight Merriam and Evan Seeman have all the details here, at RLUIPA-Defense blog. 

Complaint, Spirit of Aloha Temple v. County of Maui, No. 1:14-cv-00535-RLP (D. Haw. Nov. 26, 2014)

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Continue Reading New RLUIPA Complaint vs Maui: “‘Integral Yoga’ Group and Swami Hope to Find Their Inner Balance in Federal Court”

Here’s that last case in our 2014 opinion queue, from way back in July. It’s also coincidentially the 2,500th post on the blog.

In Sawn Beach  Corolla, LLC v,.County of Currituck, No. COA13-1272 (July 1, 2014), the North Carolina Court of Appeals considered vested rights and takings claims in a fact pattern than streched back decades. 

In 1966, the owners purchased 1400 acres for residential development. In 1969, the owners recorded a subdivision plat, to make both residential and commerical uses. The county had no zoning ordinance in place at that time. The owners spent $425,000 on preliminary work and infrastructure, such as surveying, engineering and grading. Big bucks in 1960’s dollars.

The county adopted a zoning ordinance in 1971, zoning the property for “RO2,” which prohibits most businesses, including those contemplated by the owners. “Nevertheless, plaintiffs continued to believe that they would be allowed to commerically develop their…

Continue Reading Our Final 2014 Opinion Post: Vested Rights In North Carolina