Land use law

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What we’re reading today:

  • Court weighs handling of suit over DOT rules for future highways – North Carolina colleague Matthew Bryant argued an appeal yesterday in the court of appeals regarding the class action-worthiness of a case in which the Dep’t of Transportation effectively blighted a huge swath of land by identifying it as a future highway, and then did nothing to acquire it. More on the appeal (Beroth Oil Co. v. North Carolina DOT) here. 
  • The Federalist Society’s view of the oral arguments in Filarksy v. Delia. We filed an amicus brief for the ABA supporting the petitioner in that case, which involves the availability of qualified immunity for private-practice lawyers who work for state and local governments, but whom are not employed by those entities. 

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Continue Reading Thursday Round-Up

On Saturday, February 4, 2012, from 10:00 am to noon at the Sheraton New Orleans, the American Bar Association and the State & Local Government Law Section is sponsoring a free screening of “ Crime After Crime,” the award-winning documentary from director Yoav Potash. I saw the film last year, and loved it:

“Crime” and “land use lawyers” are phrases not usually heard together; in most cases, the worlds of criminal law and land use never intersect, and lawyers for developers and property owners don’t have much occasion to visit the “Attorney’s Room” at the state pen. But in the documentary film Crime After Crime, two land use lawyers including our State and Local Government Law Section colleague Nadia Costa (Vice-Chair of the Section’s Land Use Committee), plunge into that unfamiliar milieu.

Read my complete review here.Continue Reading ABA Midyear, New Orleans: Free Screening Of “Crime After Crime” (Feb. 4, 10 am)

Most of the cert petitions about eminent domain in recent years have focused on the “public use” side of the equation, and not on the “just compensation” side. That’s not surprising, since the Kelo issue (the power to take) has been the object of intense public interest, so much so that as eminent domain lawyers, we no longer pass under the public radar. (We say “most” since there have been a few petitions on the compensation issue, all denied. Here for example.)

But now comes this cert petition (River Center LLC v. The Dormitory Authority of the State of New York, No. 11-922 (cert. petition filed Jan. 23, 2012)) which presents three questions focused directly on the Just Compensation Clause. It’s a case we’ve been following as it worked its way up through the New York state court system, and it is now ripe for U.S. Supreme Court …

Continue Reading New Cert Petition: Just Compensation For Development Potential, Inequitable Precondemnation Activities

Mark your calendars: Dwight Merriam and his team at Robinson & Cole are conducting a webinar/teleconference CLE, “Religious Land Use and Institutionalized Persons Act Claims – Strategies for Local Governments to Avoid or Defend RLUIPA Actions.” Also on the faculty is Professor Marci Hamilton, one of the nation’s leading church/state scholars and the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University.

The webinar will be held on March 13, 2012, but the early registration deadline (for a substantial tuition discount) is February 17, 2012. Here’s a description:

After the Religious Land Use and Institutionalized Persons Act (RLUIPA) was signed into law over a decade ago, religious institutions nationwide began filing claims against municipalities alleging that certain zoning and land use decisions violated RLUIPA and infringed upon their right to religious exercise.

RLUIPA suits continue today. Courts have ordered…

Continue Reading March 13, 2012: RLUIPA Webinar

In City of Dallas v. Stewart, No. 09-0257 (Jan. 27, 2012), the Texas Supreme Court provided a good reminder of the importance of property rights and due process, even when protecting rights may inconvenience the government. In that case, the court held that a determination by a city agency that a home was a public nuisance and should be demolished, was not entitled to preclusive effect (that’s “res judicata” to us Old Schoolers) in a subsequent takings lawsuit by the homeowner.

The facts of the case are pretty straightforward: Ms. Stewart abandoned her house and allowed it to fall into disrepair, and she ignored notices from the city. The Dallas Urban Rehabilitation Standards Board, the agency charged with enforcing the city’s zoning ordinances, concluded that the house was a public nuisance and ordered it demolished. It rejected Stewart’s request for a rehearing and obtained a judicial demolition warrant, after…

Continue Reading Texas: “The protection of property rights, central to the functioning of our society, should not – indeed cannot – be charged to the same people who seek to take those rights away.”

Here are the cases Professor Callies and I discussed in today’s session at ALI-ABA’s Eminent Domain and Land Valuation conference:

  • McCandless v. United States, 298 U.S. 242 (1936) – an offer of proof that irrigation water could be transported to the land was not too “remote and speculative,” and should have been allowed in support of the property owner’s contention that the highest and best use of the land taken was to grow sugar cane.
  • Damon v. Hawaii, 194 U.S. 154 (1904) – when an ahupuaa patent includes the adjacent fisheries, the U.S. Constitution recognizes that interest as “property.”
  • Kaiser Aetna v. United States, 444 U.S. 164 (1979) – when a private waterway, recognized as private property under Hawaii law, is modified by private effort and investement into a navigable waterway, the government can only impose a right of public access by condemnation.

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Continue Reading ALI-ABA Annual Eminent Domain Conference, San Diego: “The Role of Hawaii’s Unique Property Law in the U.S. Supreme Court’s Takings Cases”

Under California law, there’s a short statute of limitations (technically, it’s a “statute of repose” but who’s quibbling) for challenges to local government zoning decisions. The statute requires that a challenge must be filed within 90 days to “attack, review, set aside, void, or annul the decision of a legislative body to adopt or amend a zoning ordinance.” Cal. Gov’t Code § 65009(c)(1)(B) (emphasis added).

The statute “could be drafted with greater precision,” and it doesn’t expressly mention a denial of a request for a zoning change, only the adoption or amendment of a zoning ordinance.  Thus, after a city denied a developer’s request for a zoning change and its petition for a writ of mandate was dismissed because it was filed 97 days later, the developer appealed, asserting that the statute required a 90-day challenge only when the city adopts or amends zoning. General Development Co., L.P. v. City …

Continue Reading Cal App: “Denial” Of Rezoning Is The Same As “Adoption” Or “Amendment” Of Zoning For Limitations Purposes

We’ve been watching Bowers v. Whitman, No. 10-24966 (Jan. 12, 2012), the case which challenged Oregon’s Measure 49, the statute adopted by initiative that replaced and modified the earlier Measure 37. Measure 37, for those not aware, was the initiative measure by which Oregon voters required the state to compensate owners whose private property was devalued by land use regulations. It essentially required the state to either allow development or pay, even if the regulation did not run afoul of the high thresholds of regulatory takings doctrine.  

Back to Measure 49. That statute, as the Oregon Supreme Court held, “conveys a clear intent to extinguish and replace the benefits and procedures that Measure 37 granted to landowners.” Corey v. Dep’t of Land Conservation & Dev., 184 P.3d 1109, 1113 (Or. 2008). But what of those landowners in process under Measure 37 when the voters adopted the new…

Continue Reading 9th Cir: No Vested Rights Taken By Oregon’s Measure 49

Thanks to the Land Use Prof Blog for getting the word out about the new documentary “Urbanized.” It’s next up on our “to watch” list, and we will have a review when we’ve seen it. The New York Times had this to say:

The mingling of design and happenstance is, to some extent, the deep subject of “Urbanized,” Gary Hustwit’s fascinating, idea-packed new documentary. In this remarkably concise film — which could easily have sprawled to 15 hours on public television — Mr. Hustwit and his crew survey both the challenges and promises facing some of the world’s important cities. Their itinerary may not take them everywhere you want it to, but it also turns up some unexpected vistas along with familiar ones.

Read the full Times review here. More to follow. Continue Reading “Urbanized” – Land Use And Planning Documentary Released

YouvebeentrumpedDonald Trump has more money than you. He’s also a huckster, a self-aggrandizing showman, a judgmental snob, and an eminent domain abuser with more than a hint of mean lying just below the surface. And he has really weird hair.

But we already knew that, and if these are the only insights to be taken from You’ve Been Trumped (Montrose Pictures 2011), the new documentary by director Anthony Baxter, the film would add little to the conversation.

But at its core, You’ve Been Trumped demands more of its audience by posing an essential question: in the “supersized” consumerist culture epitomized by Mr. Trump, is “better” inherently preferable? The film highlights his belief that modest, traditional, and worn-at-the-heels should naturally give way to glitzy, contemporary, and grandiose.

The U.S. Supreme Court sided with Mr. Trump’s philosophy in Kelo v. City of New London, the case where the Court’s majority allowed…

Continue Reading Movie Review: “You’ve Been Trumped” – Is “More” And “Better” Always Preferable?