Land use law

Subscribe to Land use law via RSS

Here are links to worthwhile reads, all with a takings flavor:

  • A

…
Continue Reading Takings Tuesday

Here’s the property owner/petitioner’s Reply Brief in Arkansas Game & Fish Comm’n v. United States, No. 11-597 (cert. granted Apr. 2, 2012), the Supreme Court takings case scheduled to be argued on October 3, 2012.

The Federal Circuit held that flooding caused by the Corps was only temporary that destroyed G&F’s trees did not result in a compensable taking merely because the flooding it eventually stopped, and “at most created tort liablity.” The dissenting judge concluded that temporary flooding was no different in kind than more permanent flooding that occurs in other inverse condemnation cases and regularly results in awards of compensation. The Federal Circuit’s opinion is here.

The Reply Brief responds to the federal government’s brief, and argues: 

The Commission seeks to apply the physical takings analysis, not a regulatory analysis like the Penn Central framework, that this Court established in flooding decisions like Pumpelly and…

Continue Reading Property Owner’s Reply Brief In Arkansas Game & Fish Comm’n: Flooding Causing Destruction Is Physical, Not Regulatory Taking

In Moore v. City of Middletown, No 2012-1363 (Aug. 30, 2012), the Ohio Supreme Court held that a property owner did not have standing to bring a regulatory takings claim when a “foreign municipality” (the neighboring city) rezoned an adjacent parcel, because the municipality did not have jurisdiction to exercise eminent domain over his property. However, the court held the property owner could seek a declaratory judgment “to challenge the constitutionality of the ordinances.”

Under Ohio law, a “regulatory takings” action gives the plaintiff a right to bring a mandamus action to compel a municipality to institute condemnation proceedings, and the court held that since Middletown could not have exercised eminent domain authority outside of its jurisdiction, it could not be compelled to do so by the property owner. Our Ohio colleague Matt Fellerhoff discussed this aspect of Ohio law in his analysis of Clifton v. Blanchester, 964…

Continue Reading Ohio: No Such Thing As Extraterritorial Inverse Condemnation

Here’s a few reports worth reading:

  • Lt Gov. Gavin Newsom alleges ‘threats’ against mortgage plan – the LA Times reports on California’s Lieutenant Governor (who just happens to have “some ties to Mortgage Resolution Partners” — the private investment group that promulgated the idea of using eminent domain to seize underwater mortgages), who is calling for an investigation of whether those objecting to the plan are “threatening” local governments. “Newsom’s complaint comes after several groups, including the influential Securities Industry and Financial Markets Assn., objected to the eminent domain plan and warned that mortgages could become more expensive for future homeowners living in regions that adopt the plan. The Federal Housing Finance

…
Continue Reading Thursday’s Worth Reading List

Thanks to Municipal Minute for pointing out a new blog that should be of interest to our readers. Our friend and colleague Dwight Merriam and his firm are publishing RLUIPA Defense a “one-stop comprehensive site stocked with cases, trial materials, briefs and scholarly articles all about avoiding and defending against claims taken under the Religious Land Use and Institutionalized Persons Act (RLUIPA).”

Our biggest question: how do you pronounce “RLUIPA?” (Practice tip: get the Judge to say it first, then pronounce it the way s/he does.)

If Dwight and his blogmates can resolve that one, we’d be grateful.

Check it out here. Continue Reading New Land-Usey Blog: RLUIPA Defense

Here’s the latest inverse condemnation opinion from the Wisconsin Supreme Court in a case involving overflights from an adjacent airport. The case arose when property owners asserted that an extension of the runway by 1500 feet was a taking. The trial court dismissed the property owners’ inverse condemnation claims, but the court of appeal reversed and revived their claims.The airport authority sought review by the Wisconsin Supreme Court, which affirmed.

The decision was summarized by the Schober & Mitchell blog:

The Court took into consideration the fact that Wisconsin Statutes Section 114.03 and 114.04 gave property owners certain rights with respect to airspace over their properties. It determined referring to federal case law that the proper standard to be applied in determining whether a taking occurs in airplane overflight cases is whether the government action results in aircraft flying low enough and with such frequency as to have a…

Continue Reading Airspace In Wisconsin Is Property – Overflights May Be A Taking

Check this out. A report from the Maui News that “Environmental court would be perfect fit here – judge.” Apparently, there is an effort to get the Judiciary or the Legislature to form another court with specialized jurisdiction, either formally like the Family Courts, or more likely on a less formalized basis like the “Drug Courts” that the circuit courts convene.

And who is recommending the formation of such a court? Why a judge from just such a court in Memphis, Tennessee:

“I’ve learned over the years that if you get them by the wallet, their hearts and minds follow,” Potter said to about 100 people at the Maui Arts & Cultural Center.

Potter said that an environmental court here is a perfect fit – and long overdue. There’s just so much to protect and balance in this delicate paradise, he said.

“The environment is everything here. It’s…

Continue Reading Does Hawaii Need An “Environmental Court?” – Doesn’t It Already Have One?

An interesting new complaint filed in U.S. District Court in Hawaii, asserting claims for substantive due process, violation of the zoning enabling act, and the Kauai County Charter.

A owner of property that has been designated for resort development for 35 years is asserting that the adoption by the County’s voters of a charter amendment severely limiting the number of visitor accommodation units (no more than one new unit, and other restrictions), was an attempt to restrict the number of visitors and part-time residents. The complaint asserts that the County has no legitimate interest in restricting tourists or part time residents, and that the charter amendment is a zoning regulation that cannot be adopted by the voters (recall that in Hawaii, zoning ordinances may not be adopted by initiative – thanks to a case we argued many years ago – see here and here).

We’ll keep track of this…

Continue Reading New Complaint Challenging Kauai’s Limit On Visitor Units

In a short opinion in Sierra Club v. Castle & Cooke Homes Hawaii, Inc., No. CAAP-11-0000625 (Aug. 24, 2012), the Hawaii Intermediate Court of Appeals held that the Hawaii Senate’s failure to confirm a sitting Land Use Commissioner for a second term did not disqualify him under Haw. Rev. Stat. § 26-34(a):

Kanuha was not disqualified under HRS § 26-34(a) as he had not been a commissioner appointed consecutively to more than two terms as a member of the LUC not had his membership on LUC exceeded eight consecutive years. Not obtaining Senate consent to a second term did not disqualify Kanuha from service as a holdover after the expiration of his first term. This was not a disqualification under the plain language of HRS § 26-34(a). The circuit court erred in holding that Kanuha was not a valid holdover for failure to obtain Senate confirmation for…

Continue Reading HAWICA: Holdover Land Use Commissioner Not Disqualified

This just in: as we predicted after oral arguments (see HAWSCT Oral Argument Recap – Who Defines The “Project” For Archaeological Review? and The Real “Descendants” Plays Out In The Hawaii Supreme Court – Honolulu’s $4+ Billion Rail Project In Grave Danger), in a unanimous opinion, Hawaii Supreme Court has slapped down the City of Honolulu’s archaelological inventory survey, holding:

In sum, the SHPD failed to comply with HRS chapter 6E and its implementing rules when it concurred in the rail project prior to the completion of the required archaeological inventory survey for the entire project. The City similarly failed to comply with HRS chapter 6E and its implementing rules by granting a special management area permit for the rail project and by commencing construction prior to the completion of the historic preservation review process.

Slip op. at 6. The court vacated the trial court’s decision, and sent…

Continue Reading Hawaii Supreme Court Smacks Rail EIS – City Needed To Evaluate Burials For “Entire Project” Before Starting To Build