Land use law

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Update: PLF’s Dave Breemer on the decision “In a New Victory, Court Blasts Rules Barring Court Access for Property Owners,” while Gideon Kanner adds his thoughts in “Be Still, My Heart! Second Circuit Rules for a Property Owner In a Stinging Inverse Condemnation Opinion.” 

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Check this out, just received: In Sherman v. Town of Chester, No. 13-1503-cv (May 16, 2014), the U.S. Court of Appeals for the Second Circuit held that a takings claim was ripe, and that Williamson County does not stand in the way. 

We love the way this opinion starts off, with a literary reference:

Hungry Joe packed up his bags and wrote happy letters home. He had flown the 25 missions required to complete a tour of duty. But thing were not so simple on Catch-22’s Pianosa island. He soon discovered that Colonel Cathcart had just raised the number of…

Continue Reading 2d Cir and Catch-22: Takings Case Ripe, “Seeking a final decision from the Town would be futile”

Here’s an article worth reading, co-authored by our colleague Edward Thomas (no relation, although we often kid that Ed is our brother-in-the-law), President of the Natural Hazard Mitigation Association, and a fellow who is concerned both with anticipating natural hazards such as sea level rise, hurricanes, and the like, as well as property rights. 

Thanks to permission from the Environmental Law Institute, which has has graciously allowed us to reproduce Ed’s latest from the National Wetlands Newsletter, we’re able to bring you “Turning Koontz Into an Opportunity for More Resilient Communities,” which posits that the sky is not falling because of the Supreme Court’s decision in that case: 

Many did not see the positive side of Koontz when the decision was released. Almost immediately, many commentators viewed the case as a victory for property owners and a defeat for government regulation. Many alarmist articles were written…

Continue Reading New Article Of Note: Turning Koontz Into an Opportunity for More Resilient Communities

The case that seemingly wouldn’t end — Coy Koontz, Jr.’s continuation of his late father’s case against the St. Johns River Water Management District over the WMD’s demand that they “pay to play” — has ended with its eighth appellate decision (including the now-famous visit to the U.S. Supreme Court), with another win for Koontz.

In St. Johns River Water Management District v. Koontz, No. 5D06-01116 (Apr. 30, 2014), the Florida District Court of Appeals made short work of the WMD’s argument that there were some loose threads left over from the prior decisions. The opinion doesn’t say much about the substantive law, except to say “we said this all before, and we haven’t changed our minds.” 

Because our decision in Koontz IV is entirely consistent with the decision of the United States Supreme Court, we adopt and reaffirm Koontz IV in its entirety and affirm the judgment below. We…

Continue Reading Fla App In Koontz VIII: We Were Right Before, Koontz Wins Again

You know the old saw, attributed to a variety of sources including Samuel Clemens, that “whiskey is for drinking, and water is for fighting over,” but here’s a decision from a U.S. District Court, that shows that whiskey is also for fighting over. Not quite whiskey, but a fungus that is claimed to be created by a nearby distillery.

In Merrick v. Diageo Americas Supply, Inc., No. 3:12-CV-334-CRS (W.D. Ky. Mar. 19, 2014), the fight was about “whiskey fungus,” which is created when ethanol is emitted from a distillery and “combines with condensation on Plaintiffs’ real and personal property to ’cause an invisible, naturally occurring fungal spore to ‘germinate’ (start growing) and become a living organism, visible to the naked human eye.'” This stuff “creates an unsightly condition requiring abnormal and costly cleaning and maintenance, early weathering of surfaces,” and is pretty much a nuisance.

More about the case…

Continue Reading It Turns Out That Whiskey (Fungus) Is Also For Fighting, After All

Here’s what we’re reading today:

  • “Flash Boys and the Transportation Corridor Act” – from the North Carolina Land Use Litigator blog, some thoughts about the recent NC Supreme Court decision that we described as a “muddled hash.” This is the one in which the court denied class certification to the claims of 800+ property owners whose land has been blighted by the Map Act, a statute that allows the NC DOT to prohibit the development of parcels where the DOT wants to put a future highway. In a recent story on the case by North Carolina Lawyers Weekly, we said this about the case: “‘I’ve read the decision a couple of times since it was published and it still is kind of inexplicable to me,’ he said in a phone interview.’It’s somewhat frustrating because you can’t quite figure out what the court’s analysis is and where that leaves

…
Continue Reading Thursday Round-Up: NC Beltway Blight Case, Precondemnation Entry Statute Unconstitutional, Why Buy Land You Can Get For Free?

The North Carolina Supreme Court has issued its opinion in Beroth Oil Co. v. North Carolina Dep’t of Transportation, No. 390PA11-2 (Apr. 11, 2014). That’s the case which we’ve been following about the class-action worthiness of of a case in which the N.C. DOT effectively blighted a huge swath of land by identifying it as a future highway, and then doing mostly nothing to acquire it, even though by virtue of a parcel’s identification on the map, the owner was prevented from obtaining building permits, or undertaking other development of the land.

The Supreme Court briefs are posted here, and we also recently posted NCDOT’s summary of the effect of a “protected corridor,” which is the DOT’s way under North Carolina’s Map Act of keeping property that it wants for future highways from being developed in the interim (we thought it should be called a “taking”). More background on the case here…

Continue Reading N.C.: “Map Act” Inverse Cases Must Be Prosecuted Individually, Not As A Class

Check out this Power Point presentation, sent our way by a North Carolina colleague. It’s an explanation by the NC Department of Transportation of a “protected corridor,” a “[t]emporary restriction on development placed upon properties located within a proposed highway alignment.”

And what, pray tell, is the purpose of this protected corridor? To allow the NCDOT breathing room to come up with an orderly plan of development or something similar that is often used to justify moratoria? No, to “[h]elp[] insure availability of proposed locations for large-scale projects…”

In other words, to stop development in anticipation of NCDOT eventually — maybe, someday — condemning the land for a highway.

You see, those darn developers, they keep building subdivisions in the path of our future beltways (the nerve), so we have this plan to protect the land so we might eventually take it at reduced acquisition and relocation…

Continue Reading What Is A Protected Corridor? A Taking, Or At Least It Should Be

Here’s an interesting case upcoming on the Hawaii Supreme Court’s oral argument calendar that is worth following. (April 29, 2014, at 10:00 a.m. – the court is taking the show on the road, and the arguments will be at the gym at Kealakehe High School, in Kailua-Kona, on the Big Island.)

In Molfino v. Yuen, No. SCWC-10-150 (cert. app. filed Dec. 9, 2013), the petitioner asks whether a county government has any obligation to maintain accurate and complete records. Your first reaction may be “well, duh.” But like many other things in the legal business, it isn’t necessarily as simple as all that. Indeed, the Intermediate Court of Appeals concluded in a Summary Disposition Order (Aug. 28, 2014) that government does not have an obligation to keep its own records accurately. The ICA relied on a 1986 Hawaii Supreme Court case which held:

Without a reasonable and proper limitation of…

Continue Reading HAWSCT Considering Whether A County Has A Duty To Maintain Accurate Public Records

This is a longer post, but we think it’s worthy of your time. That’s because even though there’s a lot going on in the opinion by the California Court of Appeal in Property Reserve, Inc. v. Superior Court, No. C067758 (Mar. 13, 2014), it cuts through much of the unnecessary doctrinal fog surrounding takings law, especially the U.S. Supreme Court’s bizarre ripeness requirement first enunciated in Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985).

The Bottom Line

Although the entire thing is worth reading (44 pages of majority opinion, followed by 46 pages of dissent), if we had to pick out one passage as the takeaway, here it is: 

Eminent domain authority must be exercised in strict conformity to the constitutional protections and procedures that limit its operation. If a condemnor intends to take private property or intends to perform actions that will result…

Continue Reading Cal App States The Inconvenient Truth: There’s No Substitute For Eminent Domain – Gov’t Must Condemn First If It Wants To Enter Land

Our friend Paul Schwind has been keeping us up to date on the progress, vel non, of the legal challenge to the Honolulu rail project in the United States District Court for the District of Hawaii. We last reported on the status of this litigation on February 18, 2014, when the Ninth Circuit issued its opinion dismissing plaintiffs’ appeal of the judgment and partial injunction in Honolulutraffic.com v. Federal Transit Administration, No. 11-0307 (D. Haw. Dec. 27, 2012).

To our mild surprise, the Ninth Circuit concluded it had appelalte jurisdiction, even though there was a colorable argument that the judgment and partial injunction entered by the District Court was not an appealable order, since at the time of the appeal (May 2013) and oral argument (August 2013), the defendants still had not yet reported their compliance with the judgment, the plaintiffs had not, as a consequence, had time to…

Continue Reading Guest Post: District Court’s Rail Compliance Order in Honolulu Rail Case – A Slam Dunk