Municipal & Local Govt law

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This morning, the U.S. Supreme Court declined to hear what might have been a major property rights case, California Building Industry Ass’n v. City of San Jose, No. 15-330 (cert. petition filed Oct. 16, 2015). 

In that case, the California Supreme Court upheld the city’s “affordable housing” requirement against a challenge which asserted that it was an exaction and thus should have been subject to the heightened scrutiny of the unconstitutional conditions doctrine of Nollan, Dolan, and Koontz. The California court disagreed, holding that because the ordinance did not require a developer to give up land, or money in lieu of land, it was a mere zoning restriction and subject to the “rational basis” test. 

We filed an amici brief in the case in support of the petitioners.

While we believed there was a good change that SCOTUS was going to hear this case (it …

Continue Reading SCOTUS Won’t Review Affordable Housing Exactions And “Inclusionary Zoning” Case

This morning, the Supreme Court agreed to hear another important property rights case, California Building Industry Ass’n v. City of San Jose, No. 15-330 (cert. petition filed Oct. 16, 2015). 

In that case, the California Supreme Court upheld the city’s “affordable housing” requirement against a challenge which asserted that it was an exaction and thus should have been subject to the heightened scrutiny of the unconstitutional conditions doctrine of Nollan, Dolan, and Koontz. The California court disagreed, holding that because the ordinance did not require a developer to give up land, or money in lieu of land, it was a mere zoning restriction and subject to the “rational basis” test. 

We filed an amici brief in the case in support of the petitioners.

SCOTUS on a tear lately, as it recently also agreed to review a case on the “relevant parcel” in regulatory takings. …

Continue Reading SCOTUS Takes Another “Takings” Case – Inclusionary Housing And Affordable Housing Exactions On The Menu

A longer one from the California Court of Appeal, but unfortunately, we don’t have the time to digest it in detail. But you really should read Pacific Shores Property Onwers Ass’n v. Dep’t of Fish and Wildlife, No. C070301 (Jan. 20, 2016), in which the court upheld a ruling that the Department of Fish and Wildlife inversely condemned the plaintiffs’ property by a physical taking, when it allowed their land to be flooded.

The interesting part of this decision is the Department’s purpose in allowing the flooding, environmental protection. Local government had historically provided some flood protection to these properties by “breaching” a sandbar when the water reached a certain level. When the Department took over that function, it decreased the level of protection, and although it required the water to reach a higher level before breaching, it didn’t eliminate it completely. The Department argued that it could not…

Continue Reading Cal App: Intentionally Flooding Land To Protect The Environment Is A Physical Taking

When we first read the caption in Metropolitan St. Louis Sewer Dist. v. City of Bellefontaine Neighbors, No. SC94831 (Jan. 12, 2016), we admit to a bit of confusion because this is an inverse condemnation case, and it appeared that a public entity was suing one of those activist groups, “The Bellefontaine Neighbors.”

A public entity bringing an inverse claim against some citizens? We’re intrigued.

But then we read the caption more carefully and noticed the “City of” part, which caused us to do what we usually do these days when curiosity strikes: we googled it. And we learned something new: there is a City of Bellefontaine Neighbors in Missouri. In addition to having a very friendly name and an imposing motto (“Strong Traditions … Strong Moral Values”), it also has the distinction of having, “[a]t 22 letters, … the longest name of any incorporated place in the United States.”…

Continue Reading City With Really Long Name Didn’t Take Private Property When It Damaged Publicly-Owned Pipes

ALI-CLE-2016-masthead

We know we’ve been doing the hard sell lately, with multiple posts on the details of the upcoming 2016 Eminent Domain and Land Valuation Litigation / Condemnation 101 Conference, which runs from January 28-30, 2016, in Austin, Texas. And this will be our last pre-conference post, we promise.

But me and my co-planning chairs, Joe Waldo, Jack Sperber, and Andrew Brigham, think we’re put together a very good program that covers a lot of ground, and we really want you to come. This is also the first time the conference has been to Austin, and we’re in a brand new (as in just opened) hotel, so we’re looking forward to this perhaps more than usual.

The full agenda is posted here, but here are highlights:

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Continue Reading Final Post: More Reasons To Attend The ALI-CLE Eminent Domain Conference

ALI-CLE-2016-masthead

We’re now only a bit more than two weeks away from the 2016 Eminent Domain and Land Valuation Litigation – Condemnation 101 Conference, which runs from January 28-30, 2016, in Austin, Texas. 

As we’ve noted here earlier, we think that this is going to be a fantastic conference that will cover a lot of ground, and the hot topics of the day. Here’s the full agenda for the program. If you are not familiar with the conference or have not attended recently, we’ve undergone some formatting changes lately, but are still bringing the best faculty and topics to bear. Here’s a summary of last year’s San Francisco conference, to give you an idea of how we’ve updated the programs, while keeping the best elements and traditions unchanged.  

This is the first time the conference has been held in Austin, and thus far, the registration figures are doing exceedingly…

Continue Reading ALI-CLE Eminent Domain Conference, Austin, TX – Nearly Here, But There’s Still Time To Register

We’ve been tied up with other things the past few days, so haven’t had a chance to do much posting, but here’s something to tide you over, a piece from Florida colleague Jacob Cremer, “Why Exactions Law Should Bring Property Rights Advocates Cheer in the New Year.” 

Land use and takings mavens, rejoice. 

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BIO In Riparian Rights Due Process Case
More On Florida’s Post-Koontz Legislation

Continue Reading Exactions, Again

Another short one, this time from the Arkansas Supreme Court.

In City of Siloam Springs v. La-De LLC, No. CV-15-194 (Ark. Nov. 19, 2015), the court concluded that an Arkansas statute which requires the state to pay reasonable attorneys’ fees if the just compensation exceeds the deposit by more than 10%, does not apply when a city is the condemnor against whom the condemnation judgment is entered. 

The statute was clear enough, because it required the court to award fees “against the State of Arkansas and in favor of the party entitled thereto,” and here, the condemnation judgment involved the city, not the state. There is no statutory authority for an award of fees in eminent domain cases against cities. Seems simple enough, no? 

But the twist was that the condemnation in this case was actually instituted by the State Department of Transportation, after which it was granted immediate…

Continue Reading Arkansas: Eminent Domain Fee Shifting Statute Only Applies To State Condemnations, Not City, Even Though State DOT Initiated The Taking

ALI-CLE-2016-masthead

Here’s our second day of highlights from the upcoming American Law Institute-CLE Eminent Domain and Land Valuation Litigation / Condemnation 101 Conference, which will be held in Austin, Texas, from January 28-30, 2016.  

This is the first time the conference has been to Austin, and we’re hoping for a good turnout. Here’s the full agenda for the program. 

  • We especially focused on the ethics component this year, and are looking forward to the session on “Ethics: Tips and Traps for the Eminent Domain Practitioner” at the first plenary session on the second day, taught by Jamila A. Johnson (Schwabe, Williamson & Wyatt, Seattle), Robert B. Neblett, (Jackson Walker L.L.P., Austin). and Joseph V. Sherman (Waldo & Lyle, P.C., Norfolk, Virginia). 
  • Pipeline takings are a huge issue, and we’ve got the lawyers on the very tip of the spear on these cases. “Pipelines and Energy

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Continue Reading More On The Upcoming ALI-CLE Eminent Domain Conference (Austin, Jan 28-30, 2016)

2010-03-24 15.25.46

More from our end-of-year clearing of the opinion hopper.

Winston Churchill reportedly said, “Never give in–never, never, never, never, in nothing great or small, large or petty, never give in except to convictions of honor and good sense. Never yield to force; never yield to the apparently overwhelming might of the enemy.”

Well, the case of City of Memphis v. Tandy J. Gilliland Family LLC, No. W2014-02472-COA-R3-CV (Dec. 16, 2015) might prove the point.

The opinion was the second time the Tennessee Court of Appeals considered issues regarding the taking of the Gilliland Family’s land by the Memphis Light, Gas, and Water Division (nice use of the Oxford comma there, MLGW) for utility poles. The first time up, the question involved public use. The court concluded the taking was for public use, even though MLGW allowed the poles to be shared by private telecommunications and cable providers. In the…

Continue Reading Tenn App And The Churchill Principle: On Further Review, We Goofed