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Update: More thoughts from Rick Rayl and Brad Kuhn (California Eminent Domain Report) here.

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Here’s a decision at the intersection of eminent domain valuation and unconstitutional exactions from the California Court of Appeal (Fourth District). In City of Perris v. Stamper, No. E053395 (Aug. 9, 2013) the court held that in a condemnation action, “issues surrounding the dedication requirement are essential to the determination of ‘just compensation’ and therefore must be “ascertained by a jury.'” Slip op. at 1.

First, some background. The city condemned a portion of Stamper’s industrially-zoned vacant land in order to realign and widen an adjacent road. Its deposit was based on the use of the land for agricultural purposes. But wait you say, the land was zoned industrial and even though it was vacant, when calculating compensaton, land is valued at its highest and best use. But get a load…

Continue Reading Cal App: Nollan/Dolan Issues Impacting Eminent Domain Valuation Are Decided By The Jury

Whoa, that was fast: in a case argued on August 2, 2013, and decided on August 9, 2013 (that’s one week from orals to opinion, folks), the U.S. Court of Appeals for the Sixth Circuit in Village of Maineville v. Salt Run, LLC, No. 12-4379 (Aug. 9, 2013), held that the property owner/plaintiff forfeited* its argument that a facial takings challenge to municipal impact fees is not subject to Williamson County‘s state procedures requirement because the argument was not raised in the District Court.

You know the drill: Williamson County tells us that a property owner cannot raise a federal takings claim in federal court unless it has first sought and been denied compensation via available state procedures. “And they agree that Salt Run has not invoked this procedure.” Slip op. at 5.

In the normal course, that would be the end of the case. Having failed to…

Continue Reading 6th Cir: Takings Plaintiff Forfeited Argument That Facial Challenges Not Subject To Williamson County’s State Procedures Requirement

Here’s what we’re reading today:

  • Our Owners’ Counsel colleague from New Jersey, Anthony Della Pelle, has posted some thoughts on the New Jersey Supreme Court’s recent decision in Borough of Harvey Cedars v. Karan, No. 070512 (July 8, 2013). That’s the case about valuation issues when there’s a partial taking of littoral property in order to erect protective dunes. Tony’s thoughts are well worth reading. 
  • In that vein, on Wednesday, August 14, 2013, starting at noon ET, we’ll be joining Tony and other experts to speak at the New Jersey Institute for Continuing Legal Education’s teleseminar on “Eminent Domain and Regulatory Takings:

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Continue Reading Wednesday Round-Up: Koontz Recording, Jersey Shore Dunes, Plastic Bag Bans

Remember that decision by the California Court of Appeal which held that the City of San Jose’s “inclusionary housing” exaction was subject only to low-level scrutiny and not the nexus-and-proportionality requirment?

Well, after Koontz, you should not be surprised that the decision has been taken to the next higher level and the California Building Industry Association has petitioned the California Supreme Court to review the case. The petition points out that the lower California courts have reached different conclusions when considering nearly identical ordinances (see here, for example):

Building Industry Association of Central California v. City of Patterson, 171 Cal. App. 4th 886, 898 (2009), holds that San Remo Hotel applies to inclusionary housing ordinances. The Opinion of the court below holds that San Remo Hotel does not apply to such ordinances. These two published decisions deal with materially identical inclusionary housing ordinances, and so cannot be…

Continue Reading First Post-Koontz Case: City’s “Inclusionary Housing” Exaction Challenged In California Supreme Court

This really was a “blockbuster” Term for the Supreme Court and takings law: no less than three cases (and four, maybe five, if you expand it slightly to include property-owner favorable cases such as Lozman and last term’s Sackett), and as Gideon Kanner noted recently, the CLE sessions are flying fast and furiously.

Here’s another one, with a great angle: our ABA colleague Ed Thomas, President of the Natural Hazard Mitigation Association and the guy who knows just about everything there is to know about disaster preparedness, disaster response, and property rights, is speaking tonight (Tuesday, July 16, 2013, 7:00 pm MT) along with BYU lawprof Lisa Grow Sun, about the Supreme Court’s takings cases:

This session will explore the legal landscape for community development and hazard mitigation/climate adaptation. Specifically, there has been tremendous press coverage of many U.S. Supreme Court decisions this term. One…

Continue Reading Today’s Free Webinar – Mitigation Options Affected by the Supreme Court in 2013: Koontz and Other Game Changers

Here’s one not to miss, not only because it’s free, but because it features our PLF colleague Paul Beard II, arguing and prevailing counsel in Koontz v. St. Johns River Water Mgm’t Dist., No. 11-1447 (June 25, 2013): on Wednesday, July 17, 2013, from 2:00 – 3:30 pm ET, Greenberg Traurig and PLF are sponsoring a live chat:

In Koontz, one of the most important Takings Clause cases in recent years, the U.S. Supreme Court held that the doctrine of  unconstitutional conditions established in the Nollan and Dolan cases applies to all land use permit applications – even if the excessive condition leads to a permit denial, and even if the condition involves the payment of money rather than dedication of real property. This extension of Nollan/Dolan principles has far reaching implications for real estate, environmental, and other federal and state permitting actions. The significance and implications…

Continue Reading Upcoming Live Chat: Koontz – How Far Has Nollan/Dolan Been Extended

Late last year, we posted the Complaint in a federal court lawsuit originating on Kauai. In that case, the owner of a property that has been designated for resort development for 35 years asserted that the adoption of a Charter amendment by the County’s voters and a follow-on ordinance adopted by the County Council that together created a new land use classification (“transient accommodation unit”), and severely limit the number of TAU’s was an attempt to restrict the number of visitors and part-time residents.

The Complaint contains three major allegations: (1) the measures are arbitrary and capricious and violate substantive due process as an attempt to limit visitors, (2) they violate the Hawaii Zoning Enabling Act (Haw. Rev. Stat. § 46-4, the state statute delegating zoning authority to the counties in certain areas for all you land use nerds), which prohibits adopting of zoning ordinances by initiative, and…

Continue Reading Hawaii Federal Court: Kauai Charter Amendment Limiting Vacation Rentals Is A Prohibited “Zoning Initiative”

On Wednesday, July 17, 2013, from 4:00 – 5:30 pm ET, I will be a panelist in the American Planning Association’s above-titled teleconference.  The session was put together by our ABA and OCA colleague Dwight Merriam, and in additon to Dwight and me, includes Professors David Callies (U. Hawaii) and Carol Brown (U. Richmond), John Baker, an attorney with Greene Espell in Minneapolis, and our ABA colleage and fellow U. Hawaii alum Julie Tappendorf.

Here’s the description of the program:

The U.S. Supreme Court ended its term with a decision that will change planning and regulation — but by how much, and will the change be for better or worse? Koontz v. St. Johns River Water Management District is the most important planning law case in nearly a decade, and already there is widespread disagreement about what it means.

A diverse panel of land use lawyers will examine…

Continue Reading Upcoming Teleconference: Lessons from Koontz – Game Changer or Just a Little Rule Refinement?

Update: From the July 13 WaPo: As Wal-Mart threatens to walk, what’s next for a dying shopping center? (“The Skyland Shopping Center in Southeast Washington is amost dead. Shops are shuttered and windows broken.” Gee, we wonder why?). See also Gideon Kanner’s thoughts on the story at “Another Kelo Case in the Marking?”

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You remember the Skyland redevelopment project in Washington, D.C., don’t you? That’s the one we’ve covered before, which has resulted in boocoo court decisions, most of them unfavorable to the small property owners whose businesses were considered “blighting factors” to the surrounding area, and thus stood in the way of a redevelopment project coveted by the city fathers and mothers. See DeSilva v. District of Columbia, No. 10-CV-1069 (Feb. 24, 2011); Rumber v. District of Columbia, 487 F.3d 941 (D.C. Cir. 2007); Franco v. National Capital Revitalization Comm’n, 930 A.2d…

Continue Reading If This Wasn’t So Depressing (And Predictable), It Might Be Funny

Another date to save on your calendar: the 2014 Conference of the International Academic Association on Planning, Law, and Property Rights will be held from February 11-14, 2014 in Haifa, Israel, at Technion-Israel Institute of Technology. The Conference will include the usual presentations, plus day-long workshops, and excursions. You don’t need to be a PLPR member (although joining is free), nor do you have to be an “academic.”

We attended the 2013 PLPR Conference in Portland, and it was well worth it. The message of PLPR is “Planning matters. Law matters. Property matters,” and the 2013 Conference delivered, with presentations on those topics with an emphasis on international practices.

The 2014 event is chaired by Professor Rachelle Alterman, who, among other accomplishments, edited Takings International (2010), a book our ABA Section published that is a comparative study of how what we call regulatory takings are treated worldwide.

Continue Reading 2014 Planning, Law, And Property Rights Conference – Haifa