Municipal & Local Govt law

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There’s been yet another cert petition asking the Suprme Court to revist and discard the ripeness rules of Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985).

In Colony Cove Properties, LLC v. City of Carson, 640 F.3d 948 (9th Cir. 2011), the Ninth Circuit affirmed the dismissal of a property owner’s claim that the city’s mobilehome rent control ordinance is a taking. The district court dismissed the facial takings claim because it was filed outside the statute of limitations, and the as-applied takings challenge as unripe.

The property owners’ petition poses these Questions Presented:

This case involves a regulatory takings claim brought under the Fifth Amendment and 42 U.S.C. § 1983. The Ninth Circuit Court of Appeals upheld the district court’s dismissal of the claim, holding that Petitioner is required to seek a remedy for the taking through the California state…

Continue Reading The Latest Cert Petition Seeking To Overrule Williamson County

Today, we filed the Reply Brief (also available below) in the case that asks: after Kelo, when is eminent domain pretextual? 

Last month, we filed a cert petition asking the Supreme Court to review the Hawaii Supreme Court’s decision in County of Hawaii v. C&J Coupe Family Ltd. P’ship, 242 P.3d 1136 (Haw. 2010). In that case, the Hawaii court upheld the taking of land on the Big Island, holding that the asserted public use was not a pretext to the overwhelming private benefit to the developer of the luxury Hokulia project.

On August 17, 2011, the developer and the County filed their joint brief in opposition. Our brief responds:

After reviewing the Oceanside/County brief, it would be easy to forget why this case is here: they argue the Hawaii Supreme Court correctly applied the rational basis standard for pretext established in Kelo v. City of…

Continue Reading Final Cert Brief In Eminent Domain Pretext Case

You have to like any sport that the New York Times describes as “like driving full speed through an endless loop of red lights. Luck often expires in a cloudburst of steam and scattered auto parts.” That’s how the Times described “figure 8 car racing.”

But not everyone likes figure 8 racing or related activities, it seems. After a property owner stored several of his race cars on his land and annoyed some residents of Indianola, Iowa, the city adopted an ordinance requiring land on which figure 8 cars (and others) are stored to be enclosed by a fence if two or more cars are present. The property owner sued the city in state court alleging a regulatory taking and the city removed the case to federal court. After a bench trial, the district court held that the ordinance was not a taking.

In Iowa Assuarnce Corp. …

Continue Reading Eighth Circuit: No Physical Take For Fence Requirement

Today, the Honolulu Star-Advertiser filed a Complaint asking the circuit court to order the Governor to publicly release the list of judicial nominees presented to him by the Judicial Selection Commission, now that the Hawaii Senate has consented to the Governor’s appointment of Justice McKenna. The Governor has refused the Star-Advertiser‘s multiple requests, notwithstanding the Office of Information Practices’ opinion that the list must be disclosed because any justification for withholding “would end once a nominee is confirmed by the Senate.”

Read the story in the Star-Advertiser here.

We won’t add more since we represent the paper, but here’s the Complaint (Exhibits A – N referenced in the complaint are here):

Complaint, Star-Advertiser v Abercrombie, Civ No 11-1-1871-08 (filed 8-23-2011)Continue Reading New Complaint: Governor Must Release JSC List

Last week the developer and the County of Hawaii filed their joint Brief in Opposition in C & J Coupe Family Limited Partnership v. County of Hawaii, No. 11-75 (cert. petition filed July 14, 2011), responding to the cert petition we filed earlier, that poses this Question Presented:

The Hawaii Supreme Court held that a one-to-one transfer of property to a private developer by eminent domain, instituted outside the confines of an integrated development plan, and while the condemnor was threatened by breach of a contract in which it promised to condemn the land for the developer, was not subject to a presumption of invalidity or even heightened scrutiny under the Fifth Amendment’s Public Use Clause. The court concluded that even when “a contract that delegates a county’s eminent domain powers raises well founded concerns that a private purpose is afoot” under Kelo v. City of New London, …

Continue Reading Developer & County’s BIO In Eminent Domain Pretext Case

Battle for Brooklyn film posterWe reviewed the docfilm Battle for Brooklyn after it made its public debut a few months ago (the filmmakers presented a rough cut preview at the annual ALI-ABA eminent domain program), and we recommended it. We even sat down for a few minutes with director Michael Galinsky for a short interview.

Battle For Brooklyn made its premiere in Brooklyn, naturally, and it has been playing in the New York area on an extended run. Unfortunately, there’s only one print of the final film because prints are very expensive, about $7,500 apiece, so it has not been more widely shown. But for the next week, the film will be in Southern California at the Laemelle Theatre in Beverly Hills.

Those of you in the area really should check it out. Our colleagues at the California Eminent Domain Report agree (“If you’re in the right of way industry, this is a…

Continue Reading “Battle For Brooklyn” Comes West

Here’s what we’re reading this fine summer Monday:

  • Land Use Institute – Although we won’t be able to attend the upcoming annual ALI-ABA program in Boston due to a scheduling conflict, we have attended several times in the recent past, and can highly recommend it. The faculty, as usual, is stellar, and includes colleagues Michael Berger,  Amy Brigham Boulris, Bob Foster, Patricia Salkin, Julie Tappendorf, and Gideon Kanner. 
  • 2011 Takings Conference – Another law conference (November 19, 2011), this one devoted (mostly) to how to defeat regulatory

…
Continue Reading Monday Round-Up: Vested Rights, Land Use Institute, And More

One of the very first things we addressed in the first year Property class (wonderfully taught by Allen Smith, visiting from Michigan Law) was the ownership of animals: when do wild animals become someone’s “property?” And the very first Latin phrase we incorporated into our new legal lexicon was ferae naturae, the law of wild animals.

In that vein, we introduce you to Ferae Naturae, a new law blog (to us, at least) on the law of animals, wild and otherwise. The blog is authored by our ABA State and Local Government Law colleague Amy Lavine, and although she posts on a wider scope of issues than the property law aspects of wild animals, it’s still an informative and worthwhile read.

Recent posts include “How to fight criminal charges when you get caught with a crocodile in your bathtub,” “Raccoons are not ‘cuddly…

Continue Reading New Law Blog To Follow: Ferae Naturae

Later this week, I’ll be attending the annual scrum of lawyers known as the American Bar Association Annual Meeting, being held this year in Toronto, Ontario, Canada. I’ll be attending the gatherings of the State & Local Government Law Section and the Litigation Section (Condemnation, Zoning & Land Use Committee), and the meeting of the Council of Appellate Lawyers.

I’m the CLE Director for the State & Local Government Law Section, and I’m pretty excited about our two featured programs. The first is Protecting Heirs Property: Uniform Laws and Social Justice, a presentation about the new uniform act dealing with the problem of fractional ownership by extended families of land, mostly in the rural south. The program will be moderated by George Mason U lawprof (and regulatory takings guru) Steven Eagle, and includes four expert speakers on the subject. Professor Eagle always asks provocative questions and…

Continue Reading ABA Annual Meeting, Toronto

Here’s the latest in a case we’ve been following. In Bridge Aina Lea, LLC v. State of Hawaii Land Use Comm’n, the plaintiff filed its complaint in state circuit court alleging that the LUC violated state and federal law (due process, takings, vested rights, and more) when it reclassified “urban” land on the Big Island to “agriculture.” 

The defendants then removed the case to federal court, and have now filed a motion to dismiss that contains a host of defenses: immunity, the unavailability of prospective injunctive relief, whether certain defendants are “persons” under 42 U.S.C. § 1983, abstention on the federal takings claim, the lack of a state damage remedy for deprivation of constitutional rights, and zoning estoppel, among others.

Just the thing to give you flashbacks to your Federal Courts class.

Update: here‘s the errata filed just after the motion to dismiss.

Motion to Dismiss, Bridge at …

Continue Reading Latest In Big Island Takings And Vested Rights Challenge To LUC Reclassification