Municipal & Local Govt law

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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.”

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

Here’s what we’re reading today:

  • Oakland budget cuts his zoo, Children’s Fairyland – from the San Francisco Chronicle: “In all, more than $28 million will be sliced from the budget, mostly from the $388 million general fund. The cuts are due to the loss of redevelopment funds, which Oakland used to fund services and programs across the city. ‘It’s not clean and neat. We wish it were,’ said Mayor Jean Quan. ‘For California’s older, larger cities, like Oakland, losing these redevelopment funds has been very, very tough.'”
  • Redevelopment Agencies Facing Default – from Cal Watchdog: “The Legislation canceled the RDAs’ tax increment-financing, which served as their piggy-bank under the Community Redevelopment Law for the past 65 years.  The California Legislature and its crony capitalist allies will desperately try to resurrect new tax and economic incentives to reclaim their ability to interfere in the California real estate markets.”

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Continue Reading Tuesday Round Up: Cal Redevelopment Drawdown To Hurt Animals, Children; Thank You Public Workers For Saving Hawaii

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

Roxie_logoSan Francisco Bay Areans: come join us at the Roxie Theater (3117 16th Street between Valencia and Guerrero, San Francisco) tonight for screenings of Battle for Brooklyn, the Oscar-shortlisted documentary film about the Atlantic Yards eminent domain case. Two shows, 7:00 and 9:00 p.m. Details, including ticket purchase here.

I’ll be there to answer questions on the legal aspects of the film, as well as discuss its relevance to California, where redevelopment and eminent domain abuse are front page stories due to the California Supreme Court’s recent decision upholding the Legislature’s abolishment of the state’s 400+ redevelopment agencies.

Also showing is “The Tragedy of Eminent Domain: The destruction and survival of a New York City neighborhood.” This short tells the story of how a project called “Manhattantown” destroyed a historic African-American community on the Upper West Side in the 1950s. Manhattantown set the model…

Continue Reading Tonight: San Francisco Screenings Of “Battle For Brooklyn” At The Roxie

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

ABA_SLGThere’s still time to register for tomorrow’s teleconference on Ethics for Municipal Attorneys: Reconciling the Rules of Professional Conduct with Government Ethics Law (a live webinar and teleconference which starts at 1:00 p.m. Eastern Time). More information, including registration, here. This program is sponsored by the ABA Continuing Legal Education Center and the Section of State and Local Government Law.

We’ll be focusing on more than just ethics for government attorneys, and we’ve built the program around our thoughts on the U.S. Supreme Court’s decision in Nevada Commission on Ethics v. Carrigan, where the Court concluded that a city council member’s vote was not first amendment “speech,” and he was therefore subject to a Nevada statute thave prohibits elected officials from voting when they may appear to have conflicts of interest.

Joining me in the discussion will be Yvonne M. Nevarez-Goodson (Commission Counsel and one of the lawyers…

Continue Reading ABA Teleseminar: Ethics, Government Conflicts Of Interest, And The First Amendment

Here’s the last brief in Filarksy v. Delia, No. 10-1018 (cert. granted Sep. 27, 2011), the case involving the immunities that lawyers may be entitled to claim in civil rights actions under 42 U.S.C. § 1983. We filed an amicus brief in the case on behalf of the American Bar Association. The other merits and amici briefs are posted here.

Oral argument is set for January 17, 2012.

Reply Brief for the Petitioner, Filarksy v. Delia, No. 10-1018Continue Reading Final Brief In Filarsky: A Private Lawyer Retained To Represent Government Is Entitled To Claim Qualified Immunity

Here’s what we’re reading today:

  • Blight barons of redevelopment plot comeback – Steven Greenhut (O.C. Register): “As of February, anyway, redevelopment is dead in California, the victim of an absurdly arrogant legal and political strategy pursued by redevelopment’s chief defenders. This is wonderful news, made even better by the teeth-gnashing of public officials who have routinely abused their powers under redevelopment law. Cry me a river. But before I gloat too much, we need to remember that this victory already resembles one of those cheap horror movies where the Evil Thing has been vanquished, and all appears well, then its hand pokes out from the grave just as the credits begin.”
  • RDA Timeline: Hatchet to Fall Feb. 1 – via California Planning & Development Report: “State senators Alex Padilla and Luis Alejo have reportedly introduced Senate Bill 659, which would extend the deadline for agencies’ dissolution for several

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Continue Reading Redevelopment Developments