Municipal & Local Govt law

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The issue resolved by the Minnesota Supreme Court in Zweber v. Credit River Township, No. A14-0893 (July 27, 2016) was one that land use lawyers deal with constantly: when an administrative agency is alleged to have violated someone’s constitutional rights, what procedural route must the legal challenge take — is the plaintiff required to go to court via administrative channels, or can she initiate an original jurisdiction (“de novo”) case?

In Zweber, the court came down on the side of original jurisdiction. There, Zweber owned undeveloped land which he wanted to develop, and he submitted a preliminary subdivision plat to divide it up. After a neighbor objected for the usual reasons (traffic), the County approved the plat application. But Zweber didn’t begin development and instead, a couple of years later applied for a new subdivision. “This time, based on the recommendation of the Planning Commission, the County Board denied…

Continue Reading Constitutional Property Claims Are For Courts, Not Agencies

In City of Missoula v Mountain Water Co., No. DA-15-0365 (Aug. 2, 2016), a sharply divided Montana Supreme Court upheld the City of Missoula’s exercise of eminent domain to take a private water system. We’ve been following the case (see our oral argument notes here). The court’s majority concluded that the takings clause of the Montana Constitution isn’t really any impediment to a government takeover of property, even when it will use the property in exactly the same way as the former owner. 

The court addressed eight issues, with issues 6-8 being the most interesting to us, because they consider the meaning of the phrase “more necessary public use” in Montana Code Annotated § 70-30-111, and and what kind of proof is necessary to support such a claim. The city of Missoula is condemning Mountain Water Company, a private company which supplies municipal water to the city. The company (and its…

Continue Reading City Can Take Over Water Company: Montana Supreme Court Writes Out “More” From The “More Necessary” Statute

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Here’s the latest in that case we told you about a couple of months ago, a published ruling in an eminent domain case from the Hawaii Intermediate Court of Appeals. We wrote that in our view, the court got it really wrong on one of the three issues in the case, whether two parcels which the condemnee alleged he used together could be considered the “larger tract” for purposes of severance damages.

The case involves three parcels on Kauai — one of which is owned by a fellow who has been a thorn in the County’s side — which were condemned by the County for the expansion of a public beach park. The County was taking Parcels 49, 33, and 34. Sheehan owned 49, and HRH, a corporation, owned 33 and 34. Sheehan asserted his use of Parcel 49 stretched across 33, 34, and Area 51 — a portion of…

Continue Reading Hawaii Supreme Court Amicus Brief: In Eminent Domain, Parcels Need Not Abut In Order To Be Considered Part Of A Larger Tract

Another flooding case, this time from the Indiana Court of Appeals.

In Birge v. Town of Linden, No. 54A01-1509-PL-1495 (July 25, 2016), the court considered a pure legal question (the issue was up on appeal after the trial court dismissed for failure to state a claim): does governmental immunity under the state tort claims act apply to inverse condemnation cases? The court held no, “to the extent the trial court concluded that immunity under the ITCA would bar the Birges’ claim for inverse condemnation, the trial court erred.” Slip op. at 10. The town may be entitled to immunity for flooding which it was alleged to have caused, but that immunity “will extend only to tort claims brought under the ITCA.” Slip op. at 11.

More about the case in this story: “Farmers win reversal in drainage appeal against town” from the Indiana Lawyer. 

Birge v. …

Continue Reading Indiana App: No Gov’t Immunity For Inverse Condemnation

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As we noted last week, the expanding costs of the Honolulu Rail project has forced Honolulu’s mayor to ask whether construction should be delayed or stopped entirely, short of its planned terminus at Ala Moana shopping center. “Middle Street” became the new rail watchword, even though stopping it there would omit — temporarily or permanently — the most densely populated, and therefore the most useful, portion of the route. 

Middle Street is somewhat of a nondescript, dare we say it, “blah” street; more of a demarcation between the airport area and the more industrialized Dillingham corridor. A place you generally go by on your way elsewhere, not consider a destination. Frankly, it doesn’t have much of a reputation for anything exciting. In our minds, it is most notable as the border between “town” and “country,” at least psychically. 

  • Civil Beat‘s Chad Blair, however, sees it differently. In a tongue-in-cheek

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Continue Reading Rail: Building To The Nowhere Of Middle?

A land use diversion, to take you into the weekend. As land users know, the vested rights and zoning estoppel doctrines are all about timing. When did the government gave the green light” (however that is defined in your jurisdiction), what did the property owner do after that, and when did the government decide “hey, wait a minute, we’ve changed our mind” about that earlier green light? For more, see this law review article we co-authored a few years ago that highlights these dynamics. Even the title reflects that it is all about timing: “Arrow of Time: Vested Rights, Zoning Estoppel, and Development Agreements in Hawaii.”

As we wrote, “These closely-related principles permit the government to retain flexibility in land use planning only if a property owner has not proceeded sufficiently along the development path that it would unconstitutional or unfair to prevent it from completion.” 

Well, here’s an opinion from …

Continue Reading Cal App: Vested Rights Are All About Timing

There’s a lot of procedural history to digest in the Michigan Court of Appeals’ opinion in AFT Michigan v. Michigan, No. 303702 (June 7, 2016), because it is merely the latest in a long string of opinions from that court, and the Michigan Supreme Court, interspersed with the Michigan legislature’s attempts to react. The opinion lays it all out, and we won’t repeat it here.

The short story is that the legislature adopted a statute which required public school employees to contribute 3% of their salaries to the retirement and health care system. Adding insult to injury, the withholding was labeled as an employer contribution.

The employees sued, alleging a taking among other claims. The court of appeals agreed it was a taking, but while the case languished in the Michigan Supreme Court awaiting discretionary review, the legislature revised the offending parts of the statute. In a different case…

Continue Reading Mich App: Forced Employee Contributions To Retirement Fund – Still A Taking

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It’s a good day. You win your takings case in the Texas Supreme Court. True, it’s a narrow 5-4 victory, and it merely reverses summary judgment against you, which means only that you live to fight another day. But a win is a win, we always say. The decision is based on the Texas Constitution, which also means that your win is insulated from U.S. Supreme Court review. 

So it’s game over, right? 

Not so fast. Under Texas appellate procedure, a win in that court isn’t necessarily the end of the process. You need to get by a motion for rehearing as well. In our (non-Texas) experience, these things are usually exercises in futility for the moving party, at least if the goal is to get the court to change its mind on the critical issue decided. Yes, we’ve seen recon and rehearing motions granted from time to time, but only…

Continue Reading Texas Turnabout: Gov’t Development Approvals Without Flood Control Plan Isn’t A Taking

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As readers know, from time to time, we undertake what might be called “eminent domain tourism” — visiting the sites of famous and infamous cases when we’re in the neighborhood. Hadacheck, Kaiser Aetna, Nollan, Dolan, and PruneYard, for example.

Perhaps the best illustration of the “holdout” comes from Seattle (see this 2008 story from the New York Times for the backstory), and during a recent trip there, we went by the semi-famous “Up House” formerly owned by the late Edith Macefield, so named because in 2009, “Disney publicists attached balloons to the roof of Macefield’s house, as a promotional tie-in to their film, Up, in which an aging widower (voiced by Ed Asner)’s home is similarly surrounded by looming development.” 

There’s still some balloons tied to the fence, but the house has definitely seen better days. The Wikipedia entry tells…

Continue Reading Holdouts And Regrades, Seattle Style

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In a surprise move, Honolulu Mayor Kirk Caldwell today announced that he supports suspending the Honolulu rail project at Middle Street, at least until there’s more money in the coffers. See “Mayor, Council chairman say rail should end at Middle Street for now” from Marcel Honore at the Star-Advertiser.

We think the key words in that headline are “for now,” and this is not the end of the project, necessarily. Notwithstanding that, as the story notes, this could be a “seismic shift” for the project, which has been plagued by massive cost overruns and other embarrassments since its inception, such as having its financially-savvy Board chairman resign and be replaced by a career politician, only to see her set her cap for Congress and abandon ship when one of Hawaii’s two House seats unexpectedly became available. What started off as a project projected to cost a bit more than $3…

Continue Reading Honolulu To Truncate Rail … For Now?