Municipal & Local Govt law

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sidewalk Here’s one court that gets its doctrine right. Bonito Partners, LLC v. City of Flagstaff, No. 1 CA-CV 10-0819 (Feb. 21, 2012).

A property owner challenged a city ordinance that requires a landowner repair adjacent public sidewalks, else the city will do it and send the owner the bill, and if the landowner doesn’t  pay, the city will put a lien on the property.

The city told the owner to fix the broken and dangerous sidewalk next to its property. It didn’t (“Please proceed with the repairs. Do not wait for Bonito Partners, LLC to do the work.”). The city fixed it, charged the owner, and eventually put a lien on the property. The owner sued for both a taking and for due process.

The trial court granted the city summary judgment. In addressing the takings argument, the court of appeals first noted that takings and due process are…

Continue Reading Where The Sidewalk Ends: The Takings Power Is Different Than The Police Power

Regulatingparadise Professor Patricia E. Salkin (of the Law of the Land blog) has written this review of Professor David Callies’ Regulating Paradise: Land Use Controls in Hawaii (2d ed. 2010). The review is in the latest edition of the Urban Lawyer (43 Urb. Lawyer 1107 (2011)), the law review published by the ABA’s Section of State & Local Government Law.

Professor Salkin writes:

Unlike mainland states, the history of land ownership and regulation in Hawai’i—dating back to the mid 1800s—is unique and deeply rooted in centralized control both before and after the State became a territory. Callies explains how the State’s oft-studied 1961 land use law continued this trend, with zoning accomplished at the state level. He points out that from this strong tradition of centralized control, however, a new system of land use regulation has emerged with layers of county laws and the influence of myriad federal statutes and…

Continue Reading Book Review: Callies, Regulating Paradise (2d ed. 2010)

Check this out: the Hawaii Legislature is considering two bills (HB1707 and SB2089) that will require “nonresident” property owners who rent their property for thirty days or less (transient vacation rentals) to use a licensed real estate broker to rent the property, and to employ a property manager to operate it. “Nonresident owner” is defined as an out-of-state owner or someone who lives “on a different island” from their rental property.

Not surprisingly, much of the testimony in favor of these measures has been submitted by the counties (these bills purportedly would make it easier to collect TVR taxes), and by property managers and real estate agents. 

Putting aside any questions of whether this is good policy or not, think there might be any problems with this? Continue Reading “Nonresident” Property Owners Must Employ Property Managers For TVRs?

Professor Richard Epstein, in his own inimitable and unequivocal style, opines on rent control and the Harmon cert petition in a Federalist Society podcast. A must-listen. Here’s the description:

In March 2011, the Second Circuit Court of Appeals issued summary judgment in Harmon v. Markus, a challenge to New York’s rent stabilization law by Mr. John Harmon, whose townhouse has been occupied for years by tenants paying rent equal to about 60% of market value. The Second Circuit ruled that “government regulation of the rental relationship does not constitute a physical taking” in light of the Supreme Court precedent, and that Mr. Harmon was therefore not entitled to just compensation. The Supreme Court has asked New York City and the tenants to file a response to the certiorari petition filed by Mr. Harmon. On this previously recorded conference call, Prof. Richard Epstein provides analysis of the case and…

Continue Reading Federalist Society Podcast On New York Rent Control Takings Challenge With Professor Richard Epstein

As he writes in yesterday’s column, “Supreme Court should take on New York City’s rent control laws.” He’s writing about the Harmon case and the cert petition which the Supreme Court is currently considering:

Rent control is unconstitutional because it is an egregious and uncompensated physical occupation of property. The Constitution says that private property shall not “be taken for public use, without just compensation.” The Harmons get no compensation for being coerced into privatized welfare: The state shows compassion to tenants — many of whom are not needy; one of the Harmons’ entitled tenants owns a house on Long Island — by compelling landlords to subsidize them.

We’ve posted the cert petition and the amicus briefs in support (start here).Continue Reading George Will Doesn’t Like Rent Control

We’ve been meaning to post this interesting and important case, but it got lost in the shuffle. Thanks to a colleague for the reminder. 

Try explaining that headline to anyone but a land use lawyer, and they would think you are a little bit crazy. What is so odd about a federal court actually exercising its core jurisdiction to consider whether a local government has violated someone’s federal constitutional rights?

As readers of this blog know, the one-two punch of Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), and San Remo Hotel, L.P. v. City and County of San Francisco, 545 U.S. 323 (2005), renders a federal forum for federal takings and related claims nearly impossible unless the stars align just right. In R&J Holding Co. v. Redev. Auth. of County of Montgomery, No. 10-1047 (Dec. 9, 2011), they apparently…

Continue Reading There, That Wasn’t So Hard, Was It? Third Circuit Actually Lets Landowner Raise Federal Constitutional Claims In Federal Court

Here’s the final amicus brief supporting the petitioner in the case challenging New York City’s rent control ordinance. The case is in the cert stage (we posted the petition here, along with the other three amicus briefs supporting the petition), and although the respondents initially waived their response rights, the Court requested a response which is now due on March 5, 2012.

Here’s more on the case:

The Court’s docket report is here. Continue Reading One More Amicus Brief In NYC Rent Control Takings Challenge

Here are the links to the cases and other items discussed today at the International Municipal Lawyers Association webinar with Dan Mandelker and Dwight Merriam. Most of these cases are also in your written materials.

  • South Carolina Bar’s

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Continue Reading Links From Today’s IMLA Regulatory Takings Webinar

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