Land use law

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Confirming yet again that the shopping mall is the focus of California culture, the California Supreme Court in Ralphs Grocery Co. v. United Food and Commerical Workers Union Local 8, No. S185544 (Dec. 27, 2012), held that a privately-owned walkway fronting a warehouse-type grocery store is a venue for the airing of grievances, even though it is not a “public forum” for speech under the California Constitution’s free speech provision. Thus, a labor union’s members have no constitutional rights to picket there. However, the court also held that the Moscone Act — a state statute prohibiting courts from issuing injunctions in labor disputes except in limited circumstances — protected union members’ (and no one else’s) rights to picket on this private property.

In other words, the grocery store owner has a right to exclude others from this property, but that right is trumped by the Moscone Act.

If…

Continue Reading Cal Supremes Revisit Pruneyard, But Ignore The Takings Problem

Our friend Paul Schwind has been keeping us up to date on the progress, vel non, of the federal legal challenge to the Honolulu rail project. Paul’s most recent update was on the remedy hearing, and today he provides us with a breakdown of yesterday’s short ruling on the remedy the court is imposing for the violations of section 4(f) of the Transportation Act Next step the Ninth Circuit?

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Honolulu Rail Remedy – Phasers On Minimal

by Paul J. Schwind*

The multi-billion dollar Honolulu rail project has been onlyminimally stunned by the U.S. District Court for the District of Hawaii for itsfailure to adequately study the project’s possible effects on Chinatown and MotherWaldron Park (an old urban park/playground), and for its failure to articulatethe reasons why a tunnel under Beretania Street (a major city arterial) wasrejected.

Yesterday, the court issued its Judgment and Partial Injunction in Honolulutraffic.comv.

Continue Reading Guest Post: Honolulu Rail Remedy – Phasers On Minimal

Here’s the respondent’s brief in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012). That’s the case in which the Supreme Court is considering whether the “essential nexus” and “rough proportionality” standards of Nollan and Dolan are applicable only to exactions for land, or whether they are generally-applicable tests for all exactions.

The respondent’s brief argues that the Water District did not demand an exaction, but merely “suggested a range of ways [the] applicant may [have] become eligible for a development permit.” Br. at 40. The brief argues that because the District could have denied the permit outright, it was fine for it to “suggest” ways that the property owner could convince it to issue the permit, without needing to show that there was some relationship between the suggested mitigation measures and the justification supporting the denial. Thus this was not merely the…

Continue Reading Brief For The Respondent In Koontz: “Mere Obligation To Spend Money Is Not A Taking”

The Hawaii Supreme Court recently accepted cert in two cases worth watching. Our colleage Rebecca Copeland has summaried both and posted the relevant documents over at Record on Appeal.

  • Kanahele v. Maui County Council, No. SCWC-29649. It looks like the court will be wading into the nuances of Hawaii’s “Sunshine Law,” and what it means for public hearing notices.

Continue Reading Two Hawaii Supreme Court Cases To Watch

An opinion worth reading. In Galleon Bay Corp. v. Bd. of County Commissioners, No. 3D11-1296 (Dec. 5, 2012), the Florida District Court of Appeal (Third District), held that the trial court improperly applied the “investment-backed expectations” prong of the Penn Central factors, by not treating the parcels at issue separately from the plaintiff’s other parcel which it had developed “decades earlier.” The appeals court reversed the judgment for the County, and remanded the case, instructing the trial court to enter judgment in favor of the property owner and hold a trial on compensation. It’s a long fact pattern with a relatively short opinion. Check it out.

Pay particular attention to note 9 on page 16, for a flavor of what just might have added to the court of appeals’ determination that the law was on the property owner’s side. The trial court initially ruled in favor of the property…

Continue Reading Fla App Applies Penn Central, Finds A Taking: Investment-Backed Expectations Measured Parcel-by-Parcel, Not Against All Property Owned

In Hall v. Dep’t of Land and Nat. Resources, No. 12-0000061 (Dec. 14, 2012), the Hawaii Intermediate Court of Appeals held that a development proposed by the historic Kawaiahao Church in Honolulu is not exempt from historic preservation review, and the state should have required the preparation of an archaelogical inventory survey prior to the State Historical Preservation Department’s check off on the project.

The ICA analyzed the case under the tests set out in the Hawaii Supreme Court’s recent decision in Kaleikini v. Yoshioka, 283 P.3d 60 (2012), in which the court held that archaeological review, if required, must come before agency approval.

More to follow.

Hall v. Dep’t of Land and Nat. Resources, No. CAAP-12-0000061 (Haw. App. Dec. 14, 2012)Continue Reading HAWICA: Kawaiahao Church Development Not Exempt From Archaeological Review

We always like reading amicus briefs filed by the Center for Constitutional Jurisprudence because they tend to focus on the history of whatever issue they are addressing, and the brief they (along with the Atlantic Legal Foundation and the Reason Foundation) filed in in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012) fits the bill. Check it out.

This looks like the final amicus brief supporting the property owner/petitioner. Now we wait for the respondent’s brief (and amici). Stay tuned.Continue Reading One More Top Side Amicus Brief In Koontz

Here are two more amicus curiae briefs in n Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012).

That’s the case asking whether the “essential nexus” and “rough proportionality” standards of Nollan and Dolan are applicable only to exactions for land, or whether they are generally-applicable tests. We filed our amicus brief last week (posted here), and the other amicus briefs in support of the property owner/petitioner are here. 

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Continue Reading More Amicus Briefs In Koontz

Today, on behalf of our colleagues at Owners’ Counsel of America, we filed this amicus brief in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012). That’s the case asking whether the “essential nexus” and “rough proportionality” standards of Nollan and Dolan are applicable only to exactions for land, or whether they are generally-applicable tests.

Our brief argues:

It is no great stretch to apply the nexus and proportionality standards to all exactions, and not just those demanding land. Like land, money is property, and should be subject to the same rules. Requiring compliance with Nollan and Dolan when government seeks money or other property in exchange for discretionary permits will not impose a significant burden on land planners, other than the requirement that they, like other officials, follow the Constitution. If the constable must understand the limitations the Constitution places on…

Continue Reading Amicus Brief: Exaction Not Subject To Lesser Standards Because Taking Measured In Dollars And Not Square Feet

Check out this story, Excelaron filed $6.24 billion lawsuit against SLO county, and the filing below.

$6.24 billion? According to the story, “[c]ounty Supervisor Adam Hill said the amount being sought makes this one of the largest, if not the largest lawsuit in San Luis Obispo County’s history.” 

We’d certainly hope so.

ead more here: http://www.sanluisobispo.com/2012/11/21/2303534/excelaron-lawsuit-huasna-valley.html#storylink=cpy

Petition for Writ of Mandate; Complaint, Excelaron, LLC v. County of San Luis Obispo, No. CV 120675 (Nov. 19, 2012)Continue Reading Wow, That’s A Lot Of Just Compensation