Municipal & Local Govt law

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Mark your calendars: On August 14-16, 2013, ALI-CLE is putting on the annual Land Use Institute. It’s in San Francisco, which is very convenient for those who may be attending the ABA Annual Meeting the week earlier. A good excuse to stay longer.

The Land Use Institute, now in its 29th year, is designed for attorneys, professional planners, public officials, developers, and academics who are involved in land use planning, zoning, permitting, property development, environmental protection, and related litigation. This cutting-edge program, comprising 16 hours of instruction, including one hour of ethics, and taught by preeminent practitioners, academics, and government officials, has well-earned its role as the most comprehensive land use continuing education program available.

Not only does the program provide critical reviews and analyses of the most important new cases, nationwide trends, state-specific concerns, and both routine and complex procedural issues, but it also offers outstanding networking opportunities…

Continue Reading Upcoming ALI-CLE Conference: Land Use Institute – Planning, Regulation, Litigation, Eminent Domain, and Compensation

This is a long one from the California Court of Appeal, Fourth District (58 pages, with an 11-page dissent), so we’re not going to go into detail. But if a local government’s conflict with an all-powerful state agency, shoreline and coastal law, or how the concept of governmental “pretext” is treated in areas outside of eminent domain law is your cup of tea, then be sure to check out City of Dana Point v. California Coastal Comm’n, No. D060260 (June 17, 2013).

Property owner created 125 lots on an oceanfront slope. On the inland side of the development is a public park built by the developer, and a public beach is on the seaside, donated by the developer. (That’s “mauka” and “makai” respectively for you Hawaii people.) Public access trails run through the development, linking the park and the beach. The city adopted an ordinance requiring the installation of…

Continue Reading Cal App Tackles Pretext … But Not Eminent Domain Pretext

What’s the difference, if any, between a “cemetery” and a burial, and are burials in cemeteries exempt from archaeological review? That’s one of the issues the Hawaii Supreme Court agreed to review in this Order, by which it accepted the DLNR’s application for a writ of certiorari.

In Hall v. Dep’t of Land and Natural Resources, No. 12-0000061 (Dec. 14, 2012), the 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, even though the development is located in the Church’s cemetery.

The DLNR’s application posed the following Questions Presented:

Defendant-Appellee Kawaiaha‘o Church (the “Church”) is attempting to construct a multi-purpose building (“MPC Project”) on its grounds for use…

Continue Reading HAWSCT To Review Kawaiahao Church Cemetery Case

Here’s one we’ve been meaning to post for a few days. In California Building Industry Ass’n v. City of San Jose, No. H0338563 (June 6, 2013), the California Court of Appeal (6th District) held that the city’s affordable housing exaction might survive judicial scrutiny because it was designed to promote the development of affordable housing, and not to mitigate the impacts of developing market priced (“unaffordable?”) housing.

San Jose is one of the most expensive markets in the country, where homes don’t come cheap. The city’s “inclusionary housing” ordinance requires developers of residential projects of more than 20 units to set aside 15% for purchase at below-market rates by those earning no more than 110% of the area median income. Alternatively, a developer could either construct affordable housing on a different site, dedicate land, or pay an in lieu fee “not to exceed the difference between the median sale…

Continue Reading Cal App: “Inclusionary Housing” Money Exaction Might Just Survive Low-Level Scrutiny

Mark your calendars for July 12, 2013 for our CLE teleconference on “Supreme Court Takings: A First Look at Koontz and Horne,” sponsored by the ABA’s State and Local Government Law Section. We’ll start at 1:00 pm ET (Noon CT, 11:00 am MT, 10:00 am PT, 7:00 am HT). Here’s the program description:

In the 2012term, the U.S. Supreme Court heard arguments on two regulatory takings cases,Koontz v. St Johns River Water Management District, and Horne v. U.S.Department of Agriculture. Join our panel of legal scholars and expertpractitioners for the first analysis of these cases, and how the Court’srulings on land use exactions (Koontz), and jurisdiction (Horne) will impactyour practice.

We’ve assembled a great faculty with a mix of expert scholars and practitioners: Professor Michael McConnell (arguing counsel in Horne), Professor David Callies, W. Andrew Gowder, and…

Continue Reading Upcoming ABA CLE: “Supreme Court Takings – A First Look At Koontz And Horne”

As we mentioned yesterday when we posted the Brief in Opposition, here’s the Reply Brief of Petitioner (the City of Los Angeles) in City of Los Angeles v. Lavan, No 12-1073 (cert. petition filed Feb. 28, 2013), the case in which the Ninth Circuit in a 2-1 panel decision held that the city could not presume that property owned by homeless people in the Skid Row area was abandoned, and enjoined the city from seizing and destroying it when the owner was “momentarily away” from it.

The Reply Brief focuss on the circuit-wide impact of the Ninth Circuit’s ruling:

The problem is that while the district court’s preliminary injunction may have been limited in scope to the Skid Row area and may have been responsive to such a confined set of facts, the rule of law set forth in the published Lavan opinion is not. The opinion is…

Continue Reading LA’s Reply Brief In SCOTUS Homeless Property Case

Here’s the Brief in Opposition filed recently in City of Los Angeles v. Lavan, No 12-1073 (cert. petition filed Feb. 28, 2013), the case in which the Ninth Circuit in a 2-1 panel decision held that the city could not presume that property owned by homeless people in the Skid Row area was abandoned, and enjoined the city from seizing and destroying it when the owner was “momentarily away” from it.

Hawaii connection: The petiton pointed out a federal lawsuit filed in December 2012 alleging that the City and County of Honolulu violated the due process rights of “De-Occupy Honolulu” members (those folks who are still camping on the sidewalk next to Thomas Square across Beretania from the Honolulu Museum of Art). As noted here, we didn’t think that Lavan would have a direct impact on Honolulu’s “stored property” ordinance, or the more recently-adopted ordinance to deal with…

Continue Reading Brief In Opposition In SCOTUS Homeless Property Case

Hat tip to ABA State and Local Government Law colleague (and fellow U.H. Law School alum) Julie Tappendorf for the lead on a newly-published article: John M. Baker and Katherine M. Swenson, Koontz v. St. Johns River Water Management District: Trudging Through a Florida Wetland with Nine U.S. Supreme Court Justices, in the latest issue of the Zoning and Planning Law Report. Julie writes:

In the May 13, 2013 issue of West’s Zoning & Planning Law Report, John Baker and Katherine Swenson provide a compelling argument, or should I say six compelling arguments, for how the U.S. Supreme Court might decide the Koontz v. St. Johns River Water Management District case involving the denial of a wetlands permit.  For those of you who have been waiting 20 years for the Court to weigh in on another land use condition takings case (post Nollan-Dolan), or have been waiting since January…

Continue Reading Predicting The Koontz Case: Six Possible Outcomes

Update: Professor Ilya Somin, a leading eminent domain scholar and author of the definitive articles on post-Kelo reforms, adds his thoughts on the decision here. Here’s a report from the local paper.

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In the wake of Kelo v. New London, 545 U.S. 469 (2005), a majority of states adopted rules about what constitutes a “public use” in eminent domain. Missouri is one of the states that, by statute, now prohibits takings “solely” for “economic development” purposes:

1. No condemning authority shall acquire private propertythrough the process of eminent domain for solely economic developmentpurposes.

2. For the purposes of this section, “economic development” shall mean ause of a specific piece of property or properties which would provide anincrease in the tax base, tax revenues, employment, and general economichealth, and does not include the elimination of blighted, substandard, orunsanitary conditions, or conditions rendering the property or itssurrounding area…

Continue Reading Missouri S Ct Deconstructs Condemnor’s Stated Reasons, Finds Taking Is “Solely” For Economic Development

What we’re reading today:

  • “Battle of the Beach” – about the choices facing Jersey Shore towns in the aftermath of Sandy: “Offer ‘blighted’ areas to big developers or risk a slow decline. Residents worry about losing their homes.” Via the Wall St. Journal.

Continue Reading Monday Round-Up: Casinos, Sandy Aftermath, Mortgage Seizure