Municipal & Local Govt law

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Zipler Since this is the season for self-congratulatory industry awards, we can’t overlook one of our industry’s highest honors, the Zoning and Planning Law Report Land Use Decision Awards (aka the “ZiPLeRs”). For those of you who do not subscribe to the Zoning and Planning Law Report, the “strangest, or at least more dramatic” land use cases each year are eligible for nomination for a ZiPLeR. 

Our Owners’ Counsel and ABA colleage Dwight Merriam recently announced the 2013 Awards in the December 2013 issue of ZPLR, but before he got to his tongue-in-cheek detailing of such winners as the “You Can’t Pigeonhole These Pets As An Accessory Use Award,” the “Don’t Be An Ass Award,” and “The Grinch Who Stole The Treehouse Award,” he started off with “The Koontz Corner,” a few pages on the goings-on surrounding one our favorite decisions last year, Koontz v. St. Johns Water Management District…

Continue Reading Paging Dr. Merriam, Stat: One Case Of “Koontz Catatonia”

The Hawaii Supreme Court has issued an opinion in Kauai Springs, Inc. v. Kauai Planning Comm’n, No. SCWC 29440 (Feb. 28, 2014). In its preview of the case, the court framed the issue thusly:

In its application, Kauai Springs argues that the ICA gravely erred by: 1) concluding that Kauai Springs impliedly assented to extend the time frame within which the Planning Commission was required to act on two of the permits; and 2) by remanding the case to the Planning Commission when the Commission already had the opportunity to make the relevant inquiries and denied the permits based on standards that the circuit court and ICA concluded were unreasonable, arbitrary and capricious. The Planning Commission responds that: 1) Kauai Springs’ conduct during the Commission’s proceedings was reasonably interpreted as manifesting assent to delaying action on the two permits; and 2) the ICA properly remanded the case because…

Continue Reading HAWSCT On Water, Public Trust Duties, And Autoapproval Requirements

Our Owners’ Counsel of America colleague William Blake, a partner in the Lincoln  office of Nebraska law firm Baylor Evnen, has put up a guest post on OCA’s Eminent Domain Law Blog about the TransCanada Keystone XL pipeline that recently saw a Nebraska trial court invalidating a state statute as unconstitutional. 

Bill writes:

The recent Keystone XL decision by Lancaster County District Judge Stephanie Stacy (a former partner of this author), is being cast in that mold, but in the process, the litigation is somewhat misunderstood. The ruling is 50 pages long with almost 250 footnotes, and is written in the style of a law review article. The misunderstanding is probably excusable, but it is not an eminent domain case. Eminent domain is only a side effect, and really not much of a side effect. The driving issue has always been the environment, whether the pipeline is going…

Continue Reading TransCanada XL In Nebraska: “Not An Eminent Domain Case”

Word comes our way that a bill has been introduced in the Hawaii legislature that would eliminate the primary jurisdiction doctrine and the requirement to exhaust administrative remedies for a narrow class of cases to allow a neighbor to “enforce zoning violations related to transient vacation rental on neighboring property.” 

In Pavsek v. Sandvold, 127 Haw. 390, 279 P.3d 55 (Haw. App. 2012), the Intermediate Court of Appeals concluded that a state statute (Haw. Rev. Stat. § 46-4(a)) allowes a person directly affected by an alleged violation of a county’s land use or zoning ordinance to bring a private enforcement action. The court also held, however, that this private right of action is subject to the usual rules of primary jurisdiction. In other words, you can sue to enforce the zoning code, but you’ve got to do it by first going through the county’s administrative review process…

Continue Reading Bad Idea, Part II: There’s Already A “Private Right Of Action” To Enforce Zoning Ordinances

Here’s more on that bill which we noted the other day that is making its way through the Florida legislature. The bill would prohibit Florida municipal and local governments from inserting a condition in a development permit unless the exaction is related to the “direct impact of a proposed development.”

In “Bills would expand on U.S. Supreme Court ruling in Florida property ‘takings’ case,” in the Florida Current, Bruce Richie writes that “HB 1077 and SB 1310 appear to have backing from property rights supporters following a U.S. Supreme Court decision last year involving the St. Johns River Water Management District.” He was also kind enough to seek out our input:

Robert H. Thomas, a lawyer in Hawaii who represents the Pacific Legal Foundation in cases there, said having a state law in place provides another layer of protection beyond the U.S. Supreme Court decision. He said some legal…

Continue Reading More On Florida’s Post-Koontz Legislation

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I have a long-running and good-natured contest with my Owners’ Counsel and ABA colleague Dwight Merriam about who gets items of interest “fastest with the mostest.”  More than a few times has he sent me items, only to find out that we’ve already posted on the subject, or there is a post in the hopper. 

But sometimes, not only is Dwight ahead of me, he’s way in front. Today is one of those days. Dwight sends along a bill (HB 1077), now making its way through the Florida Legislature that we were not even aware of until today, but which is of great interest. The bill would prohibit Florida municipal and local governments from inserting a condition in a development permit unless the exaction is related to the “direct impact of a proposed development.”

(1) The Legislature finds that in the land use planning and permitting process, a…

Continue Reading Inverse Schadenfreude: We Are Beaten To The Punch With Florida’s Proposal To Limit Exaction Demands

Here’s the Answer Brief on the Merits, filed last week in the California Supreme Court in City of Perris v. Stamper.

That’s the case in which the court is considering whether, in the context of determining just compensation, the judge or the jury gets to decide whether a city’s exaction is something that is so reasonably likely to happen that it can be taken into account. That, of course, raises the Nollan/Dolan issue, and although this seems like a question of law, the California Court of Appeal concluded that, on the whole, the jury gets this one. We reported on the Court of Appeal decision here.

This brief responds to the Opening Brief, filed last month by the City (and posted here), which argues that the issue is one reserved solely to judges.  The Answer Brief makes two points:

  • The court can solve this case

…
Continue Reading Answering Brief In Stamper: Jury Decides Nollan/Dolan When A Factor In Compensation

One portion of the federal Uniform Relocation Act, 42 U.S.C. § 4651, requires Federal agencies participating in projects requiring the acquisition of private property to be guided by certain policies that “assure consistent treatment for owners . . . and . . . .promote public confidence in Federal land acquisition practices,” such as (and we’re paraphrasing here), do it as quickly as possible, try to get it by negotation, don’t use condemnation to leverage a lower negotiated price, and so forth. 

These policies apply to state and local condemnors when their projects involve federal funding, and in Clear Sky Car Wash LLC v. City of Chesapeake, No. 13-1492 (4th Cir. Feb. 21, 2014), the owner whose property was being condemned by the Virginia Department of Transportation asserted VDOT was not following the rules. VDOT instituted a “quick take” eminent domain action in state court, and Clear Sky went to federal…

Continue Reading 4th Cir: Uniform Relocation Act Requirements Are Like The Pirate’s Code – “More What You’d Call ‘Guidelines,’ Than Actual Rules”

Looks like they’re at it again, a solution in search of a problem: a bill has been proposed in the Hawaii Legislature to create an “Environmental Court,” whose mission would be to handle “environmental disputes” arising under a wide range of state statutes:

…administrative proceedings and proceedings for declaratory judgment on the validity of agency rules authorized under chapter 91, arising under chapters 6D, 6E, 6K, 54, 58, 128D, 128E, 201N, 205, 205A, 220, 269, 339, 339D, 340A, 340B, 340E, 340F, 342B, 342C, 342D, 342E, 342F, 342G, 342H, 342I, 342J, 342L, 342P, 343, 508C, and 664, and Titles 11 and 12.

(And the regulations promulgated by state agencies, and ordinances and regulations promulgated by the counties, no doubt.) The bill (SB 632) would task this new court with “maintenance and improvement” of the environment and with exercising “constant vigilence” to “promote and protect Hawaii’s natural environment through consistent…

Continue Reading Does Hawaii Need An “Environmental Court?” (Part II)

The Hawaii Supreme Court has been on a roll lately, giving us a series of decisions clarifying appellate procedure. So in the past couple of months, we’ve got cases about appealability, dismissing appeals for a brief not conforming to the rules, and what is a final appealable order. Good stuff for those of us who practice a lot in the appellate courts. 

Here’s the latest (and bonus for us, it’s a land use case). It addresses what remedy should be applied by a court of appeals when a case becomes moot while on appeal, and what a court should do with the appealed-from judgment: leave it in place even though it has been rendered academic, or vacate it and wipe it off the books as if it never existed at all? 

The court framed the issue and its conclusion in Goo v. Arakawa, No. SCWC-30142 (Feb.

Continue Reading How Do You Solve A Problem Like … Appellate Mootness? More Process!