Municipal & Local Govt law

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This just crossed our desk in a case we’ve been following (link includes the numerous merits and amicus briefs filed in the case), the California Supreme Court’s opinion, authored by the Chief Justice in California Building Industry Ass’n v. City of San Jose, No. S212072 (June 15, 2015). 

The bottom line is the court agreed that rational basis review is the applicable standard:

As noted at the outset of this opinion, for many decades California statutes and judicial decisions have recognized the critical need for more affordable housing in this state. Over the years, a variety of means have been advanced and undertaken to address this challenging need. We emphasize that the legal question before our court in this case is not the wisdom or efficacy of the particular tool or method that the City of San Jose has adopted, but simply whether, as the Court of Appeal held…

Continue Reading Cal Supreme Court: Affordable Housing Exaction Subject Only To “Aliens Might Have Done It” Rational Basis Review

Pic_shot_1429716535697

            “It’s Frank’s world, we just live in it.”

                      – attributed to Dean Martin, about Frank Sinatra

A narrowly drawn opinion from the Supreme Court in Horne v. Dep’t of Agriculture, No. 14-275, argued in April and to be decided by the Court sometime before the Term ends this month, could attract more than the needed five Justices to form a bare majority, and the initial reports from the arguments agree that the Hornes’ takings argument appeared to gain traction with at least a couple of Justices from the Court’s left bloc. Combined with the property-friendly Justices and Justice Kennedy (who appeared to view the government’s arguments with great skepticism), they could put the Hornes well over the top. 

There may be much more at stake, however, if any part of the government’s…

Continue Reading Leviathan Shrugged: Oral Arguments In Horne Reveals The Taking, But Remedy Still Open

Honchariw v. County of Stanislaus, No. F069145 (June 3, 2015), is one especially for you Californians, addressing the somewhat unusual process under state law for challenging a land use action by local government which is claimed to take property.

Under the California Supreme Court’s decision in Hensler v. City of Glendale, 876 P.2d 1043 (Cal. 1994), before a landowner can seek just compensation for a regulatory taking, it must first challenge the validity of the action using the writ of mandate procedure (administrative appeal to all you non-Californians), to allow the agency the chance to rescind the act. The property owner may — but need not — join to the writ of mandate a claim for damages (just compensation), and raise the claims concurrently.

Sometimes plaintiffs do join both claims in a single complaint, sometimes they don’t. Hensler is considered an exception to the usual rule prohibiting…

Continue Reading Cal App: Mandamus Challenge To Validity Of Govt Action Must Include Takings Claim

Last week, the Hawaii Supreme Court heard oral arguments in Sierra Club v. Castle and Cooke Homes Hawaii, Inc., No. SCAP-13-0000765, a case involving a challenge by the usual suspects to a State Land Use  Commission “boundary amendment” (aka state “rezoning” to those of you not familiar with Hawaii’s top-heavy state land use planning scheme). 

According to the Judiciary web site summary of the case, here are the issues:

In this case, Appellants Sierra Club and Senator Clayton Hee appeal from the Decision and Order of the Circuit Court of the First Circuit, which denied and dismissed their appeal from the Land Use Commission’s Findings of Fact, Conclusions of Law, and Decision and Order, which approved Appellee Castle & Cooke’s Petition for District Boundary Amendment. The Land Use Commission reclassified approximately 769 acres of Castle & Cooke’s land from the state agricultural land use district to the state…

Continue Reading Guest Post: HAWSCT Oral Arguments In Koa Ridge – Is The State Prohibited From Rezoning “Potential” Important Ag Land?

For those of you who are members of the ABA Section of State and Local Government Law’s Land Use Committee (if you aren’t, you can become a member easily; just ask me how), please tune in on June 12, 2015 for our monthly teleconference.

Here’s the announcement:

Our third meeting is scheduled for Friday, June 12, 2015 at 2:00 pm EDT, and we will be featuring as our speaker, Robert Thomas, a land use lawyer and publisher of the law blog inversecondemnation.com (who is also the Chair of the Section’s Eminent Domain Committee) who will present a 20 minute program about the key takings case now awaiting decision by the U.S. Supreme Court, Horne v. United States Dep’t of Agriculture. 

FREE Teleconference Sponsored by the Land Use Committee
Friday, June 12, 2015
2:00 p.m. EDT
Dial-in 888-3967955
Passcode 797687#

Everything a Land Use Lawyer Needs To Know About …

Continue Reading Mark Your Calendars June 12, 2015: Free ABA Teleconference “Everything a Land Use Lawyer Needs To Know About Dancing California Raisins: A Report From the Oral Arguments in Horne v. USDA”

California law requires a condemnor to present to the property owner a final pre-trial settlement offer 20 days before trial, and for the property owner to make a final demand. If a court later determines that the condemnor’s final offer was unreasonable and the property owner’s final demand was reasonable, the property owner is entitled to litigation expenses. 

In City and County of San Francisco v. PCF Acquisitionco, LLC, No. A139836 (May 26, 2015), the court concluded that the offer by the city, which “was expressly made ‘contingent on the approval of the Federal Transportation Authority [FTA], the Board of Directors of the San Francisco Municipal Transportation Agency [MTA], and the San Francisco Board of Supervisors [the Board]’,” was unreasonable as a matter of law because it wasn’t a “final offer.” Thus, the trial court wrongly denied the property owner’s request for fees and costs. 

The court held that the…

Continue Reading Cal App: Condemnor’s “Final” Pretrial Offer, Contingent On Approvals From Other Agencies, Isn’t Really Final, Is It?

The powers-that-be planned on building a major freeway interchange, part of which was going to be on the property owned by Jefferson Street Ventures. Problem was, Jefferson Street also had plans for its property — a shopping center — and when it came time for it to apply to the City of Indio for permits to build, the city said yes, but only if Jefferson Street left open and didn’t build on the 11 acres on which the interchange was envisioned.

We’re going to buy it eventually said the city, but the complex federal and state process for studying, evaluating, and funding the project takes a long time, and if you build on it now, it’s going to cost us more in the future to take the developed property and relocate all of the tenants.

In Jefferson Street Ventures, LLC v. City of Indio, No. G049899 (filed Apr. 21…

Continue Reading Cal App: “Temporary No-Build Area” While City (Maybe) Gets Around To Condemnation Is A Taking

Our American Bar Association colleague Ed Thomas (no relation, although we often joke that we’re probably cousins), the President of the Natural Hazard Mitigation Association and a guy who acknowledges that the need to protect against natural disasters must take property rights into account, has compiled some thoughts about the Court of Federal Claims’ recent opinion in a case holding the federal government liable for the taking of property during Hurricane Katrina.

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Major Court Decision with implications for Climate Adaptation, Hazard Mitigation and a Safer and More Just Future.

by Edward A. Thomas Esq., 
President, Natural Hazard Mitigation Association

May 7, 2015

On May 1, 2015, the U.S. Court of Federal Claims issued an enormously important decision concerning flood damage caused by Hurricane Katrina and subsequent hurricanes. That case, Saint Bernard Parish Government v. United States, No. 05-1119L (May 1. 2015), found the United States government liable for…

Continue Reading Guest Post: Katrina Flood Takings Decision Emphasizes Science

Even though it is a trial court decision, the opinion in Township of Readington v. Solberg Aviation Co., No. HNT-L-486-06 (May 4, 2015), is well worth reading, because we think the judge gets the process for how courts evaluate claims of pretext correct. 

We posted about this case a few years ago, after the Appellate Division remanded the case with instructions to the trial court to take an objective view of the Township’s claim that the taking of Solberg’s airport was to preserve open space, and not, as Solberg claimed, to thwart Solberg’s plans to expand its facilities and to allow the Township to take control of the enterprise.

The trial court did so, and after a long bench trial, it concluded:

In fine, an objective scrutiny of the collective testimony of the elected officials involved in the architecture and implementation of the eminent domain ordinance concerning the SHA…

Continue Reading NJ Trial Court Finds Open Space Taking Pretextual: “objective scrutiny of the…testimony of the elected officials…reveals a studied attempt to obscure the true purpose of the condemnors”

Remember Dunn v. City of Milwaukie? That’s the case in which the Oregon Supreme Court reversed an inverse condemnation judgment in favor of a homeowner who had sewage back up into her house after the city “hydrocleaned” the sewer system, because she had not shown that the government had “acquisitory intent.”

The court, however, felt okay about depriving Ms. Dunn of an inverse condemnation remedy for her house being tainted with municipal crap, because sovereign immunity had been waived, and she could still sue the city in tort.

Turns out, she was s**t out of luck there, also. In Dunn v. City of Milwaukie, No. A139386A (Apr. 22, 2015), the Oregon Court of Appeals concluded that she missed Oregon’s 180-day statute of limitations/repose to bring these type of  claims. She knew, they held, but she waited too long. As we wrote in our report on the earlier decision…

Continue Reading Sue Early, Sue Often If Your Home Flooded With Municipal Waste In Oregon