Municipal & Local Govt law

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Someone up in Asheville must’ve really ticked off someone else down at the North Carolina legislature. Because for some reason, the state adopted a statute which, just like that, transferred the city-owned water system to a newly-created county sewer and water district. The statute didn’t change the water system’s operation — and this was key in the resultant lawsuit in which the city sued the state — only the ownership.

The law on its face is one of general application, and doesn’t name Asheville’s system specifically. But the statute covered only systems that met certain standards (population, for example), and which were located in a county that already has a public sewer system. And guess which was the only city in all of North Carolina which qualified? You guessed it, Asheville.  

The city wasn’t too happy about that and called bunk (perhaps appropriate, given that the new entity to which…

Continue Reading NC Supreme Court Arguments: Can A State Take A City’s Water System?

A good story for your weekend reading from the Los Angeles Times, “U2’s The Edge and his decade-long fight to build on a pristine Malibu hillside,” about the rock guitarist’s decade-long effort to build his dream home compound in the exclusive coastal town. Running smack dab in to the California Coastal Commission, this was a clash between a guy who is touted as being “an activist, an artist, that made his money from spreading peace and love in the world,” and people whom you might expect would support a guy like The Edge. 

Yeah, but it’s still filthy lucre, and even Mr. Edge’s donation of a public-access hiking easement and $1 million to maintain it were not enough. 8-4, project denied. 

Not until the Coastal Commission’s Director-For-Life died, and The Edge replaced his project manager with “an artist and sometime model, who had interrupted his architecture career…

Continue Reading California Coastal Development In A Nutshell: Hire Jesus – Moses, Actually – To Sell Your Luxe Home Plans, And Become One With The Mountain.

We thought there was a chance in a case out of San Jose, California, that the U.S. Supreme Court might take up the long-standing issue of whether legislatively-imposed exactions meet the nexus and proportionality unconstitutional conditions tests from Nollan, Dolan, and Koontz. Do those tests require an individualized determination, or is it enough that the conditions are imposed on everyone? 

But the Court declined to review that case. There was a question in whether San Jose’s affordable housing requirements were “exactions,” because the California Supreme Court disposed of the case by concluding that the regulations were mere run-of-the-mill zoning ordinances, and thus not subject at all to N-D-K. Thus, the heightened scrutiny required by N-D-K didn’t apply.  

This cert petition, recently filed, however, presents the legislatively-imposed question very clearly. In Common Sense Alliance v. Growth Management Hearings Bd., No. 72235-2-1 (Wash.

Continue Reading New Cert Petition: Are Legislative Exactions Immune From Nexus And Proportionality Requirements?

The New Hampshire Supreme Court, in our view, got it wrong in Ashton v. City of Concord, No. 2015-0400 (Apr. 29, 2016). Really, really wrong.

Indeed, the New Hampshire court seems to have resurrected the California Supreme Court’s now-defunct rule from Agins v. City of Tiburon, 598 P.2d 25 (Cal. 1979), which held that there is no compensation remedy when the application of an ordinance denies an owner all beneficial use of property, only declaratory and equitable relief. See id. at 26 (“the need for preserving a degree of freedom in the land-use planning function, and the inhibiting financial force which inheres in the inverse condemnation remedy, persuade us that on balance mandamus or declaratory relief rather than inverse condemnation is the appropriate relief under the circumstances”). The Agins rule was held unconstitutional in First English Lutheran Church of Glendale v. County of Los Angeles, 482…

Continue Reading Does New Hampshire Think It’s California? Wrongful Denial Of Demolition Permit Cannot Be A Taking Because City Was Merely Applying The Statute

Dominionstorage

Is the forced acquisition of property by the government’s power of eminent domain a “purchase?” To the Virginia Supreme Court, the answer to that question is yes. Why, we’re not really sure, because the court doesn’t tell us why.

In City of Chesapeake v. Dominion SecurityPlus Self Storage, LLC, No. 150328 (Apr. 29, 2016), the court held that the use of the word in a subdivision plat in which the owner agreed that it “reserve for future purchase by the City” a part of its property with no compensation for any improvements on that land, meant that the owner also agreed to let the city condemn the land without paying for the improvements.  

This case involved a highway widening and elevation project in southern Virginia. The current owner of the property, which operates a self-storage facility on the parcel, purchased it from the prior owners who had subdivided it…

Continue Reading Virginia: Taking By Eminent Domain Is “Purchasing” Property. Why? Because We Said So.

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When you think “LA” or Southern California, what comes to mind? Things like “the hills of Beverly Hills, the Hollywood Hills, and the Los Angeles basin, including the Hollywood sign, the Griffith Observatory, downtown Los Angeles, and … Mount Baldy,” perhaps?

Or maybe, like us, you think of prehistoric elephants stuck in tar.

But no matter, because our point is that each of us recognizes what we call “cliche litigation.” You know, the cases that involve just the thing you think about when you imagine a certain place. We have our beach cases in Hawaii; the south has alligator cases, for example. 

Well, here’s the LA version, Boxer v. City of Beverly Hills, No. B258459 (Apr. 26, 2016).

The City of Beverly Hills planted redwood trees in a public park. These trees apparently blocked the views from the plaintiffs’ backyards of some very So Cal-ish things like…

Continue Reading Cal App: Beverly Hills Blocking Views Of The Hollywood Sign Isn’t Inverse Condemnation

Kauaipark

A longer post to start the week because it involves an eminent domain case, a somewhat rare occurrence from the Hawaii appellate courts. The issues determined by the Hawaii Intermediate Court of Appeals are important, and because we have an old eminent domain code and don’t have a whole lot of current decisional law applying it — and we think the ICA got some critical things wrong (even though it may not matter for this case) — we’re going hit this one in some detail.    

This one involves three parcels on Kauai — some of which were 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.  

In County of Kauai v. Hanalei River Holdings, Ltd., No. CAAP-14-0000828 (Mar. 31, 2016), the ICA addressed three issues:

  • Can a

…
Continue Reading Hawaii Court Of Appeals Draws A Bright Line In Eminent Domain: In Larger Parcel Analysis, Unity Of Contiguity Means Parcels Must Touch

Update: Oral argument audio posted above. 

Update: “State’s High Court Hears Arguments In Mountain Water Appeal On Wide-Ranging Issues” 

Update: “Montana Supreme Court Justices quiz lawyers on eminent domain, finances“

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The condemnation of privately owned utilities is a thing these days. Seems like many local governments believe they can do it better than the private owners, and exercise the eminent domain power to force the acquisition. But in these cases, isn’t the property already being put to public use? Indeed, the exact same public use? 

This morning, the Montana Supreme Court is hearing oral arguments in a case we’ve been following that will address 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 attempting to condemn Mountain Water Company, a private company which supplies…

Continue Reading Montana Supreme Court Live Streams Arguments In “More Necessary” Public Use Case: Can A Municipality Seize The Local Water Utility?

The amicus briefs supporting the property owners/petitioners in Murr v. Wisconsin, No. 15-214, the “parcel as a whole” case now being considered by the Supreme Court, are rolling in.

Here’s the first one, the amici brief for the Cato Institute and the Owners’ Counsel of America. [Disclosure: we represent OCA on this filing.]

Regulatory takings are about the impact of a regulation on an owner’s use of property and how it has a similar economic impact on that property as an exercise of the government’s eminent domain power. Thus, most regulatory takings claims will hinge in large part on “the extent of the interference with rights in the parcel as a whole.” Penn Central Trans. Co. v. New York City, 438 U.S. 104, 130-31 (1978). This is also known as the denominator issue, because the size of the property often dictates the severity of the regulation’s impact.

Continue Reading SCOTUS Amici Brief: In Regulatory Takings, No Aggregation Of Separate, Commonly-Owned Parcels

Here’s the amici brief we’re filing today on behalf of the National Federation of Independent Business Small Business Legal Center and the Hillsborough County Chapter of the NAACP in support of a cert petition now pending at the Supreme Court.

The case centers around a “class of one” Equal Protection claim in which the plaintiff/petitioner alleges that his land use requests were treated by the County differently than other “similarly situated” landowners. The District Court granted summary judgment to the County because the other owners whom the plaintiff proffered in comparison were not subject to the Keystone Community Plan as were his properties. The Eleventh Circuit affirmed.

The court held that the comparators must be “identical in all relevant respects,” and since the other owners were not subject to the Keystone CP, end of story. It didn’t matter that the applicable provisions in the Keystone CP were the same as in…

Continue Reading Amici Brief: In Class Of One Equal Protection Claims, Is “Substantially Similar” A Search For Evidence, Or Unicorns?