Municipal & Local Govt law

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Check this out: in this order, a Wisconsin state trial court today held that the state’s right to work law — which prohibits labor unions “from assessing dues, fees, or other charges of any kind on non-union members” — is a taking. The court concluded that unions have a property interest in the contract negotiation and related services they provide, and the law takes this interest by allowing “free riders” (nonunion members who benefit from the deals the union makes) to, well, free ride. Although the order doesn’t expressly say so, the court concludes, in effect, that the law impresses unions into public service. 

There’s going to be a whole lot more on this case, no doubt, so stay tuned. More here (“State court judge throws out Wisconsin Right to Work Law“) . Remember, Wisconsin Supreme Court justices are elected, which adds another twist.  

Order Granting…

Continue Reading Trial Court: Wisconsin’s Right To Work Law Is A Taking

In a ruling that no one who was paying attention could claim to be surprised by, the Hawaii Supreme Court yesterday issued a 4-1 memorandum opinion holding that the “agricultural lands” section of the Hawaii Constitution isn’t self-executing, and which approved the State Land Use Commission’s reclassification of land on Oahu from agricultural to urban uses for the “Koa Ridge” master-planned community:  

its constitutional history as well as the legislative history of Act 183 do not reveal an intent to require the LUC to delay reclassifying agricultural land pending formal designation of [Important Agricultural Lands].

Slip op. at 3. Justice Pollack, as he did in a prior case on the same issue, dissented.

No Surprises

We say no surprise, because only a few months ago, the same majority (Chief Justice Recktenwald, and Justices Nakayama and McKenna, joined by a circuit judge sitting for the recused — and now…

Continue Reading HAWSCT Says It Again: Court Won’t Create A Moratorium While “Important Ag Lands” Process Completes

Earlier this week, we posted our visit to the site of the U.S. Supreme Court’s decision in Hadacheck v. Sebastian, 239 U.S. 394 (1915). It’s been over 100 years since that case was decided by the Court, but to Hinga Mbogo, the Dallas auto mechanic profiled in the above video from the Institute for Justice, 2016 sure must seem like 1915.

The more things change…

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Continue Reading Hadacheck Revisited: The More Things Stay The Same Dep’t…

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A nondescript corner of what could be just about any urban city street in America. Nothing of overwhelming interest, just the usual commercial buildings, traffic signals, and small businesses. A self-storage facility. Pretty typical in a Commercial district. Here, the “C-4 District.”

Nothing at all, in fact, to indicate that just over a century ago, this was the site of what was to become one of the most important land use cases in U.S. history — the place that gave us the first Supreme Court decision that dealt with how the expanding power to regulate the uses of property meshes with private property rights.

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For this area — the block southeast of the corner of Pico and Crenshaw Boulevards — was once a Los Angeles brickyard owned by Joseph C. Hadacheck.  

What is now the Arlington Heights neighborhood was once outside of the city limits. Indeed, Hadacheck’s title went back…

Continue Reading Takings Pilgrimage, LA Edition: Police Power, The Zoning Game, And Nuisances

Today is Good Friday, an official state holiday in Hawaii, so we’re reposting our annual recounting of how it came to be that the State commemorates the date of the crucifixion, and how that squares with the Establishment Clause of the First Amendment. 

Turns out that we don’t really commemorate today as the crucifixion date, and it is just coincidence that the official State “spring holiday” occurs on the same day.

It’s plausible, isn’t it, that the State had a secular purpose when it officially sanctified “a religious holiday observed primarily by Christians commemorating the crucifixion of Jesus Christ and his death at Calvary?” 

Or so says the Ninth Circuit.

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Continue Reading Go Shopping, Hawaii, It’s The Secular Good Friday State Holiday!

Mississippi, like many states, by statute allows private parties to condemn a neighbor’s land for use as a private access road, if doing so is “necessary” for a landlocked parcel to gain ingress and egress. This power is subject to limitations: for example, the parcel must be truly landlocked with no other access. Mississippi apparently has an additional requirement, that the power cannot be exercised within the limits of an incorporated city or town. 

The property at issue in High v. Kuhn, No. 2015-IA-00072-SCT (Miss. Mar. 17, 2016) is within the incorporated City of Gulfport, so the owner objected when his neighbor tried to exercise the power to take his land for access to an otherwise landlocked parcel. The trial court, however, held that the owner had waived the right to assert this objection by not objecting within five days as required by another statute. Besides, the court held, the incorporated…

Continue Reading Mississippi: Statute That Says No Private Takings For Access Within City Limits Means Just That

One from the California Court of Appeal that may be interesting even though it is about municipal law, and not eminent domain or takings.

We present to you San Diegans for Open Gov’t v. City of San Diego, No. D067578 (Mar. 3, 2016, published Mar. 16, 2016), because the court concluded that an appraiser, hired by a tenant to value property leased from the city, was an “independent fee appraiser” as required by the city’s municipal code.

The code requires that when the city leases property it owns, an “independent fee appraiser” must value the property. BH, which owns and operates the Bahia Resort Hotel on city-owned land, wanted to extend its lease for another 40 years. The city council approved, and BH hired an appraiser to value the property. The city didn’t do its own appraisal, but the director of the city’s real estate assets division stated that…

Continue Reading Appraiser Is “Independent” Even Where One Side Is Paying Him

The roof collapsed and damaged the building. In the view of the City, that created an immediate danger so it demolished it. But the building owners had plans to fix it up, and claimed the demolition was a taking. Trial court said no, the Connecticut Appellate Court affirmed:

On the basis of our review of the record, we conclude that the court properly determined, in light of the circumstances shown by the evidence presented at trial, that demolition of the plaintiff’s building pursuant to the defendant’s police power did not amount to a taking. Lawson, Sr., testified that he purchased the subject property for $65,000 in August, 2009, with a goal of renting out eighteen apartment units. At the time of trial, the plaintiff still owned the subject property. There was no testimony or other evidence indicating that ‘‘no reasonable use may be made of the [subject] property’’; (internal quotation marks…

Continue Reading Emergency Demolition Of Damaged Building Not A Taking

The land use and zoning game can be pretty strange to the uninitiated. If that description includes you, here’s your chance to get initiated. The American Planning Association is sponsoring a webinar about “Rules of the Game: A Framework for Fair and Effective Zoning Hearings,” on Monday, March 7, 2016. Here’s the description:

This webinar will cover the legal requirements for public hearings, including constitutional due process considerations, and provide tips on how to more effectively manage these hearings.

Details here. Thanks to colleague Evan Seeman at RLUIPA Defense blog for the heads up.  Continue Reading Upcoming Webinar: Playing The Zoning Game

Here’s the long story short in Metropolitan Theater, LLC v. YES Prep Public Schools, Inc, No. 01-15-00480 (Feb. 25, 2016), a decision from the Texas Court of Appeals:

The theater sued “YES Prep Public Schools” because (allegedly), the school screwed up the theater’s agreement to buy a parcel of land from a third party. How did the school screw up the contract? By purchasing the property from the third party itself, and for more money. The theater claimed breach of contract, fraud, and similar. The school responded that as a “public enrollment charter school” it is a governmental entity, immune from such suits. In response, the theater added a claim that if the school is a governmental entity, then it also was liable for a taking of the theater’s property (the theater’s contract to purchase the land). The trial court dismissed the takings claim, and the theater appealed. 

Affirmed. The…

Continue Reading Public School Was Not Acting As A Condemnor When It Purchased Property Which The Seller Already Promised To A Theater