Municipal & Local Govt law

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Most likely, by the time you read this, the Supreme Court will have decided whether to grant cert in Harmon v. Kimmel, No. 11-496 (cert. petition filed Oct. 17, 2011), the case challenging New York City’s residential rent control law as a taking, among other things. Today, you see, is the day the Court is scheduled to hold its conference to decide whether to do so.

We mere mortals won’t know what the result of the conference is until next week, of course, but we thought we’d get you ready. Use the time to review the key briefs:

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Continue Reading Conference Day For New York Rent Control Challenge

Here is the Reply Brief in Harmon v. Kimmel, No. 11-496 (filed Mar. 20, 2012), the case in which a Manhattan property owner is challenging New York’s rent control law as unconstitutional:

Respondents confuse the issues with their scattershot assertions that rent stabilization concerns merely “landlord tenant relations,” “economic regulation,” “price controls” and “economic liberties,” and is just a matter of political and legislative policy. They disregard controlling precedent of this Court and seemingly concede that the Court of Appeals was mistaken. They also each acknowledge the existence of the “different case” standard set forth in Yee v. City of Escondido, 503 U.S. 519, 528 (1992). However, despite having argued otherwise to this Court and to the Court of Appeals in prior litigation, the State now argues that rent stabilization does not present the elements of the “different case” standard. The conflcts with decisions of this Court and…

Continue Reading Petitioner’s Reply Brief In New York Rent Control Case: “Permanent dispossession is nine-tenths of this law”

Here’s the state’s BIO in Harmon v. Kimmel, No. 11-496 (cert. filed Oct. 17, 2011), the case challenging New York City’s rent control ordinance as a due process violation and as a taking. We posted the cert petition and the three amicus briefs in support here.

Both respondents waived their rights to file a BIO, but in December, the Court requested responses. Last week, we posted the City of New York’s BIO here.

Here’s the Court’s docket page for the case.Continue Reading State’s BIO In New York Rent Control Case

Here are the other two amicus briefs in support of the petitioner in River Center LLC v. Dormitory Auth. of the State of New York, No. 11-922 (cert. petition filed Jan. 23, 2012).

That’s the case in which a Manhattan property owner and developer is challenging the compensation awarded by New York courts for a taking near Lincoln Center. The Appellate Division denied the owner the right to present and have considered evidence about the valuation of the property because the court held that in order to be admissible, the property owner must be able to show the use it claims is the highest and best use is “established as reasonably probable and not a ‘speculative or hypothetical arrangement in the mind of the claimant,'” and that these plans will “come to fruition” in the near future.

The property owner, represented in the Supreme Court by Harvard lawprof…

Continue Reading Amicus Briefs In Manhattan Just Compensation Case

Here’s the BIO in Harmon v. Kimmel, No. 11-496 (cert. filed Oct. 17, 2011), the case challenging New York City’s rent control ordinance as a due process violation and as a taking. Although the respondents waived their right to respond, the Court requested they file an opposition.

We posted the cert petition and the three amicus briefs in support here.

The BIO argues that Yee v. City of Escondido, 503 U.S. 519 (1992) forecloses the takings claim (it “removes any basis for petitioners’ argument that the [Rent Stablization Law] effects a physical taking of their property”). It also argues that the RSL is “rational,” and does not violate due process:

The RSL addresses a pressing local problem. “In contrast to the rest of the country, most New Yorkers do not own the homes in which they live.” New York City Rent Guidelines Board, 2011 Housing Supply Report…

Continue Reading BIO In New York Rent Control Case: Market Rents Are “Unjust, Unreasonable, And Oppressive”

The Stanford Law Review has been doing a good job lately of talking takings. Last week, it published a note about judicial takings and the Stop the Beach Renourishment case. Now comes the Law Review’s online edition with a new essay by Professor Richard Epstein, “Physical and Regulatory Takings: One Distinction Too Many,” about the New York City rent control case up before the Supreme Court on a cert petition. (We posted the cert petition and the amicus briefs in support in the Harmon case here.) Professor Epstein writes:

Unfortunately, modern takings law is in vast disarray because the Supreme Court deals incorrectly with divided interests under the Takings Clause of the Fifth Amendment … The Supreme Court’s regnant distinction in this area is between physical and regulatory takings. …

Thus, under current takings law, a physical occupation with trivial economic consequences gets full compensation. In contrast…

Continue Reading Epstein On Physical And Regulatory Takings (Stanford L. Rev.)

Descendants-kauai After the New York Court of Appeals’ decisions in the Goldstein (Atlantic Yards) and Kaur (Columbia) cases, we opined that there were not many limits remaining on the government’s exercise of eminent domain in that state.

But even after those cases, there’s got to be some limits, no?

Our Owners’ Counsel of America colleague Michael Rikon is currently testing that hypothesis in a case arising from Willets Point, a Queens neighborhood adjacent to Citi Field (new home of the Mets). Mike represents property owners (mostly small businesses) in the case, their public use challenge to the City of New York’s attempt to take their Willets Point properties for “redevelopment.” For more, see Willets Point United, and this video.

The problem is, the city doesn’t have a redevelopment plan, or any plan regarding what it intends to do with the land beyond making it a “lively, mixed-use, sustainable…

Continue Reading Amicus Brief In Willets Point Case: Condemnation For Redevelopment Needs A Plan

The appellate courts in California haven’t been too friendly to the medical marijuana dispensaries when it comes to land use and zoning. See here, here for example (the latter case is being considered by the California Supreme Court, so we may see some major pronouncement this year).

Here’s the latest decision, City of Lake Forest v. Evergreen Holistic Collective, No. G043909 (Feb. 29, 2012), in which the Fourth District (six SoCal counties, including San Diego, Orange, and the Inland Empire) concluded that the city could not adopt an outright ban on medical marijuana dispensaries under the local zoning code, because state law authorizes “collective[] and cooperative[]” medicial marijiana acitvities.

The city instituted a nuisance abatement proceeding against the Collective, arguing that because the zoning code prohibits dispensaries, the it was was a “nuisance per se.” The trial court sided with the city and entered an injunction. The court…

Continue Reading Smoke Em If You Got Em – Cal Ct App: Med Marijuana Dispensary Is Not A Per Se Nuisance

In Town of Bozrah v. Chmurynski, No. SC 18424 (Feb. 14, 2012), the Connecticut Supreme Court held that in order for the town’s zoning enforcement officer to inspect private property, he must obtain an injunction (similar to a warrant in the criminal context) that is based on probable cause:

In conclusion, we hold that a zoning official may inspect a single property—not part of a routine or area wide search—pursuant to § 8-12 if the zoning official first obtains an injunction issued upon probable cause by a judicial officer as articulated in this opinion. Because the trial court failed to make a preliminary determination of probable cause to believe that a zoning violation existed on the property, its order permitting a search of the defendants’ property violates the fourth amendment.

Slip op. at 13. The opinion also set out the criteria that a court must consider when it determines…

Continue Reading Connecticut: Zoning Officials Need Probable Cause To Search Private Property