Land use law

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Remember that decision by a U.S. District Court in Tampa, Florida last year that we crowed about? The court held that a county’s “Right of Way Preservation Ordinance” which allows it to land bank for future road corridors by means of an exaction is “both coercive and confiscatory in nature and constitutionally offensive in both content and operation.” 

A property owner brought a substantive due process claim, and the court first rejected the county’s argument that the substantive due process claim was not ripe under Williamson County because Hillcrest had not pursued a waiver or variance. It also concluded the Right of Way Preservation Ordinance violated the Takings Clause because it shifts the burden to disprove rough proportionality to the property owner and empowers the county to obtain land in excess of what it would otherwise get in the absence of the ordinance. The court enjoined enforcement of the…

Continue Reading 11th Circuit: Facial Challenge To Ordinance Must Be Brought When Ordinance Adopted

Here’s what we’re reading today:

  • Eminent Domain, Ultra Vires, and Adverse Possession Walk Into a Bar… – from SCOV Law, a blog about the decisions of the Vermont Supreme Court: “Get ready to dust off your nineteenth-century-property-law hats, folks, cause this case is chock-full of neglected old cases about rail beds, public trails, adverse possession, eminent domain, and railroad corporations venturing outside the realm of their existential purpose.”
  • Writ to Watch: Ruggles v. Yagong – from Rebecca Copeland at Record on Appeal, about a case which the Hawaii Supreme Court recently agreed to review. The issue is whether an ordinance adopted by the voters of the County of Hawaii (the Big Island) is preempted by state law. The initiative ordinance made it the official policy of the County to make enforcement of personal use of marijuana the lowest priority for the police and prosecutors. Oh my. The trial court

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Continue Reading Wednesday’s Reading List: Vermont Eminent Domain, The Big Island’s Weed Ordinance, And Quo Warranto

Our thanks to Jacob Cremer for the heads-up on the Florida Court of Appeals’ decision in Ocean Palm Golf Club Partnership v. City of Flagler Beach, No. 5D12-4274 (May 30, 2014). Jacob did not post any analysis (undertstandable because his law firm is involved in the case) so we’ll add our two cents.  

Here’s the BLUF: the city’s refusal to change the zoning on a 9-hole golf course and a surrounding parcel to allow residential development did not deprive the parcels of their value, and were not a taking. 

Here’s the longer story. The case involved two parcels, one the golf course, and the other, a vacant parcel. At one time, they were a single parcel owned by a single owner, but by the time of the litigation, they had been subdivided and separately owned by two separate but related entities. Back in the day, the city…

Continue Reading Fla App: Because A Golf Course That Eventually Went Broke (And Was Later Bought By The City) Was “Profitable,” City Not Liable For A Taking

Update: more on the issue from the New York Times: “Honolulu Shores Up Tourism With Crackdown on Homeless.”

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Check out the headline story from today’s Honolulu Star-Advertiser, “Mayor’s sidealk strategy targets Waikiki homeless,” about two bills proposed by Honolulu’s mayor to address some difficult urban issues. 

The first bill is our iteration of the so-called “sit-lie” ordinance, which prohibits people from sitting or lying on sidewalks in the Waikiki Special District. A similar ordinance was upheld by the Ninth Circuit in Roulette v. City of Seattle, 97 F.3d 300 (9th Cir. 1996), in which Judge Alex Kozinski, in his inimitable fashion, wrote:

The first step to wisdom is calling a thing by its right name. Whoever named “parkways” and “driveways” never got to step two; whoever named “sidewalks” did.

. . . 

Plaintiffs claim it is unconstitutional for the city to…

Continue Reading As Judge Kozinski Said, It’s A Sidewalk, Not A Sideseat Or A Sidebed

Here are the merits briefs in an important case set for argument later this month in the Hawaii Supreme Court.

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. The essence of the plaintiff’s allegations is that the State Land Use Commission wrongfully amended the land use boundaries from urban to agriculture. Many years earlier, the LUC had amended the boundary to urban on the condition that the owner provide a certain number of affordable units by 2006. In 2008, the developer had not done so and the LUC ordered it to show cause why the land classification should not revert to agricultural.  

The State removed the civil rights lawsuit to U.S. District Court in Honolulu and promptly moved to dismiss, and this is the matter now…

Continue Reading HAWSCT Briefs In Bridge Aina Lea: Takings, State Land Reclassification, And Orders To Show Cause

The final words in most appellate oral arguments by the jurists are usually something along the lines of “we’ll let you know.” In Hawaii state courts, the Chief Justice signals you’re done with “we’ll take the case under advisement,” while in many federal courts, the presiding judge informs you “the case is submitted.” Or words to that effect. 

It was no different in the Ninth Circuit oral arguments in Bridge Aina Lea, LLC v. Chock, Nos. 12-15971, 12-16076, case argued earlier this week before the Ninth Circuit at its session in Honolulu. The case was “submitted for decision.” Listen yourself at the end of the oral argument recording.

Today, however, the panel issued this order withdrawing the submission, in anticipation of the upcoming Hawaii Supreme Court oral arguments in the related state litigation, scheduled for June 25, 2014. The NInth Circuit judges were keenly interested in the Hawaii…

Continue Reading 9th Cir Says “Let’s Wait” On Hawaii Supreme Court To Rule In Bridge Aina Lea

Here is the oral argument recording in Bridge Aina Lea, LLC v. Chock, Nos. 12-15971, 12-16076, case argued yesterday in the Ninth Circuit at its session in Honolulu. As we previewed, the issues involved Pullman abstention and immunity. As for Williamson County ripeness, an issue the court asked the parties to brief separately, one of the judges (it sounds to us like Judge William Fletcher) said he was “haunted by Williamson County” (click forward to the 12:25 mark). Aren’t we all, Your Honor, aren’t we all. 

Ninth Circuit Oral Argument No.12-15971

Next up, the oral arguments in the Hawaii Supreme Court in the state court case, scheduled for June 25, 2014, which may have an impact on the federal appeal (one judge asked counsel, “What if we wait until the Hawaii Supreme Court does whatever it’s about to do, will that illuminate these issues for us?”). More…

Continue Reading 9th Circuit Orals In Bridge Aina Lea: Pullman Abstention, Qualified Immunity, And “Haunted By Williamson County”

For those of you who follow the issue, here’s the latest in the “genetically modified organisms” issue, yet another one where Hawaii is apparently the epicenter. As we posted earlier, the County of Kauai adopted an ordinance regulating GMO’s which was immediately challenged in Federal District Court in Honolulu, while the County of Hawaii (Big Island) also adopted an ordinance that was challenged in state court by a farmer. 

The Big Island ordinance is now being challenged in Federal Court on a number of grounds (preemption, Commerce Clause, and takings). Read the complaint for yourself, below. 

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Links From Today’s Session On GMO Issues
Western Australia Supreme Court: GMO “Contamination?” No Worries, Mate
The Other Shoe Drops: Kauai Anti-GMO Ordinance Challenged In Federal Court
GMO Chapter 2 – Big Island Farmer:

Continue Reading Latest Federal Court Salvo In The GMO Front

It’s been our experience that when a court of appeals — particularly when it’s the Ninth Circuit, and it’s the eve of oral argument — raises an issue on its own after the briefs have been filed and requests supplemental briefing, then whatever that issue is must really be on the judges’ minds. They’re the cream of the crop (right?) and along with their cohort of law clerks (the next generation cream), they know the law (right?). And, as one Ninth Circuit judge candidly revealed at one of those bench/bar tip sessions last year, law clerks like nothing better than to catch the advocates in a misstatement or to find a missed argument, so they can present the issue to their judge like a cat bringing home a dead bird to its master (we’re paraphrasing that last bit, of course, but the judge did say that clerks groove on finding things…

Continue Reading Ninth Circuit Sua Sponte Raises Williamson County Ripeness, Asks For Briefing, Gets Some

Our friends and colleagues over at RLUIPA Defense blog Evan Seeman and Dwight Merriam have posted on a case is generating some media attention, and might be interesting to watch.

Orlando wants — what else — a new sports venue. A soccer stadium. And the city is using — what else — eminent domain to get it. One property standing in the way is a family-owned parcel which currently is being used for a church. [Barista’s note: soccer, you have hit the Big Leagues when municipalities are using their eminent domain power to take private property for your stadiums.] You know the drill: city offers low, owners want high, a deal doesn’t materialize, and the next thing you know, eminent domain complaint filed. 

So check out “RLUIPA & Eminent Domain – City of Orlando to Take Church Property to Construct Major League Soccer Stadium.” And while you are at it, see…

Continue Reading RLUIPA And The Condemnation Of Church-Owned Property