Land use law

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A must read from our colleague Professor Steven Eagle (author of the Regulatory Takings treatise) about the Koontz case, Koontz in the Mansion and the Gatehouse, forthcoming in the Urban Lawyer.

Here’s the abstract:

This Article focuses on problems in implementing the U.S. Supreme Court’s expansion of its doctrine of unconstitutional conditions pertaining to land development approvals in Koontz v. St. Johns River Water Management District. As earlier developed in Nollan v. California Coastal Commission and Dolan v. City of Tigard, the doctrine applied only to unrelated or disproportional exactions of interests in real property. The doctrine was expanded in Koontz to include denials of development approval after landowner refusal to accede to unreasonable exaction demands, and also to exactions of money as well as real property interests.

Drawing an analogy to Yale Kamisar’s disparate treatment of criminal defendants in the “mansion” of the judicial system and the “gatehouse”…

Continue Reading New Article: “Koontz in the Mansion and the Gatehouse” (Professor Steven Eagle)

Worth reading: a new working paper on exactions and Koontz by a Pacific Legal Foundtion Fellow (PLF represented the prevailing property owner in Koontz).

The article, “Nollan and Dolan and Koontz – Oh My! The Exactions Trilogy Requires Developers to Cover the Full Social Costs of Their Projects, But No More,” by Christina Martin,

argues that, contrary to appalled assertions of some observers, the U.S. Supreme Court’s decision in Koontz v. St. Johns River Water Management District is a straightforward application of Nollan v. California Coastal Commission and Dolan v. City of Tigard. Nollan and Dolan established that when government requires a permit applicant to give up property in exchange for a permit, the demand must be closely related and roughly proportional to the development’s social cost. Anything that exceeds those bounds violates the unconstitutional conditions doctrine by burdening the right to just compensation for a taking. Koontz…

Continue Reading New Article On Nollan-Dolan-Koontz

Today, the Hawaii Supreme Court rejected certiorari (remember that under our procedures, you “apply” for cert which is “accepted” or “rejected”), and declined to review the Intermediate Court of Appeals’ decision in In re Campbell, No. 30006 (June 13, 2013), the case involving Land Court registration (Torrens title) and mineral and metallic mining rights.

The ICA held than an encumbrance does not exist if it does not appear on a Land Court registered title. In this case, the encumbrance was mineral and metallic mining rights, which the Territory of Hawaii claimed it reserved in a Royal Patent. The ICA concluded that if the Territory did so, its rights were extinguished when in 1938 it appeared in the Land Court to assert its other rights, but failed to raise the mining claims:

We hold that the Original [1938] Decree and the Original Certificate of Title extinguished the express government reservations…

Continue Reading HAWSCT Rejects Cert In Land Court Registration Case

Here’s the State’s Reply Brief supporting its application for cert and responding to the landowner’s BIO in the land court registration case, In re Campbell. The brief argues that “[t]his is no minor land dispute,” and “that the State is very concerned about the ICA Opinion.”

What’s so important about the State’s claimed reservation of mineral and metallic mines that had made it put up this kind of resistance? It’s not like there’s a whole lot of mining potential on Oahu’s north shore (unless its big waves they’re after). Scroll down to page 4 to get to what we suspect is the real gold that’s at stake here: geothermal rights (something Hawaii probably has in abundance):

If this Court grants the State’s application for writ of certiorari, it will have to consider whether minerals and metallic mines were ever part of the “bundle of sticks” conveyed by a…

Continue Reading Final Brief In Land Court Registration Case

Here’s the Response to Application for Writ of Certiorari by the State of Hawaii, which opposes the State’s cert app asking the Hawaii Supreme Court to review for grave error the Intermediate Court of Appeals’ opinion in In re Trustees Under the Will of the Estate of James Campbell, No. 30006 (June 13, 2013).

That’s the case in whic the ICA held that the intent of the land court registration provisions (Torrens title) in Chapter 501 of the Hawaii Revised Statutes is to “preserve the integrity of titles,” slip op. at 11, and “a certificate of title is unimpeachable and conclusive except as otherwise provided by law.” Id. That seems straightfoward enough, as any dirt lawyer in a state with a Torrens registration system knows. These systems, in which the state guarantees indefeasable title to the rights and interests reflected in the register, remain active in a…

Continue Reading Response To Cert Application In Land Court Registration Case

Before we get to the California Supreme Court’s opinion in Sterling Park, L.P. v. City of Palo Alto, No. 204771 (Oct, 17, 2013), here’s what we think is the money quote:

For these reasons, we believe Fogarty and Williams correctly interpreted [Cal. Cov’t Code] section 66020. The statute governs conditions on development a local agency imposes that divest the developer of money or a possessory interest in property, but not restrictions on the manner in which a developer may use its property. [Cal. Gov. Code] Section 66499.37 governs the latter restrictions.

Slip op. at 17.

The court backed into defining “exaction,” since the case involved the choice of which statute of limitations applied to the plaintiff’s challenge to the city’s requirement that developers who want to build (in this case, a 96 unit condominium project) must either set aside a certain percentage of units for sale…

Continue Reading Cal Supremes: “Exaction” Includes Demand For Land Or Money

Here’s one we’ve been meaning to post for a while, if only because it presents a fascinating issue about the nature of Torrens title (so much so that we filed an amicus brief on behalf of Pacific Legal Foundation in the Intermediate Court of Appeals).

The State of Hawaii has filed an Application for a writ of certiorari, asking the Hawaii Supreme Court to review for grave error the ICA’s opinion in In re Trustees Under the Will of the Estate of James Campbell, No. 30006 (June 13, 2013).

In that case, the ICA held that the intent of the land court registration provisions in Chapter 501 of the Hawaii Revised Statutes is to “preserve the integrity of titles,” slip op. at 11, and “a certificate of title is unimpeachable and conclusive except as otherwise provided by law.” Id.  That seems straightfoward enough, as any dirt lawyer…

Continue Reading New HAWSCT Cert Application: State Not Required To Preserve Encumbrances In Land Court Registration

DHM_IMLA

A big thanks to my Owners Counsel of America and ABA State and Local Government Law Section colleague Dwight Merriam for emceeing today’s well-attended double session on land use and takings law at the International Municipal Lawyers Association’s 2013 annual meeting in San Francisco. Dwight and I were joined by land use expert Cecily Barclay, who presented sessions on Harvey Cedars, while I covered Koontz and Dwight did the relevant parcel/Lost Tree sessions. Continue Reading IMLA Conference Session On Koontz, Harvey Cedars, Relevant Parcel

A link to a story worth reading about the U.S. Supreme Court’s decision in Koontz v. St. Johns River Water Management District, No. 11-1147 (June 25, 2013).

In Developing Story at Florida Trend (“The Magazine of Florida Business”), our Owners’ Counsel of America colleague Amy Brigham Boulris is quoted along with the property owner/petitioner Coy Koontz, and two lawprofs who don’t care for the decision.

Check it out, it’s a quick read. Continue Reading Worth Reading On Koontz: “A 20-year legal battle over a water management district’s condition for development is over – sort of.”

Dwight Merriam, familiar to our readers for the items of interest he frequently forwards, as a co-author of a recent brief in the New York rent control case, chapter author in the seminal eminent domain treatise Nichols on Eminent Domain, for being the editor of the ABA’s annual “Cutting Edge” land use books, the author of “The Complete Guide to Zoning” (which could be our favorite book on the subject), and the moderator of perhaps the most well-attended legal teleconferences on the planet (we understand this recent example had over 800 participants), has authored “Eminent Domain for Underwater Mortgages: A Cure Worse Than the Disease?,” a piece for The Abstract, the magazine of the American College of Mortgage Attorneys. 

It’s a good quick summary of the facts in the case of the plan for the city of Richmond, California to…

Continue Reading Merriam On Taking Underwater Mortgages: “Lindsay Lohan has a greater chance of staying out of trouble than the city of Richmond”