Municipal & Local Govt law

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It was on this day in 1928 when the U.S. Supreme Court issued its second most famous decision about zoning, Nectow v. City of Cambridge., 277 U.S. 183 (1928). 

We say “second” because everyone knows that the first is the Court’s decision issued just two years earlier which generally upheld comprehensive use, height, and density regulations as a valid exercise of the government’s police power to regulate property uses to further the public health, safety, welfare, or morals. See Village of Euclid v. Ambler Realty Co., 272 U S. 365 (1926). 

Partly because of the hype surrounding Euclid and the broad governmental embrace of exclusionary land use policies that Euclid unleashed, we think that Nectow has not received the attention it is due. After all, it should be seen as the companion case to Euclid: it was authored by same Justice who wrote Euclid (Justice Sutherland)…

Continue Reading Happy Birthday, Nectow v. City of Cambridge!

Check out the North Carolina Court of Appeals opinion in North Carolina Bar and Tavern Ass’n v. Cooper, No. COA22-725 (Apr. 16, 2024).

We’re not going to go into great detail, mostly because this one tracks the most common judicial approach to takings challenges to business shut-down orders during the Co-19 period. The court concluded that the State’s selective shut down of certain bars but not others was neither an “emergency commandeering” under North Carolina’s emergency response statute, not a physical, Lucas, or Penn Central taking. Read the opinion for the reasons why.

But there is more than one way to skin that cat. The court held that the trial court should not have rejected the plaintiff’s motion for summary judgment on its North Carolina’s Fruits of Labor Clause claim.

That provision states:

We hold it to be self-evident that all persons are created equal; that they are endowed…

Continue Reading Blinded Me With Science! No Taking For Selective Co-19 Business Shut-Down, But Might Violate North Carolina’s Fruits Of Labor Clause

This is one we’ve been meaning to post for a while, but something else always seemed to intervene.

In BMG Monroe I, LLC v. Village of Monroe, No. 22-1047 (Feb. 16, 2024), the U.S. Court of Appeals for the Second Circuit affirmed the dismissal of a statutory and constitutional challenge to the Village’s .

The court did so on the basis of the surviving part of the Williamson County ripeness requirement, that the government has taken a definitive position on whether it will allow some development of the plaintiff’s land under the challenged regulations.

BMG wanted to build 181 homes, so it developed plans for a mix of uses across several parcels, and development of related infrastructure like roads and a community center. This “did not conform to the zoning codes of the Village and Town.” Slip op. at 4. The Village and Town were ok with the proposal…

Continue Reading CA2: If You Want To Be A Land Use Player, You Gotta Play (And That Means Keep On Trying – Without Hitching Rides)!

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There are some rewards for working late in the 808

Yesterday was the last day of instruction for the Spring 2024 semester at the University of Hawaii Law School. Did these last few months ever go by fast. 

A big thank you to Professor Mark M. Murakami, with whom I guest-lectured at the Old School (both of us earned our JD’s at the Law School) over the semester, on such topics as Euclid, vested rights and development agreements, and of course limitations on the police power such as takings.

Although our students have another couple of weeks to finish up with their final papers, we can say with certainty that the future of Hawaii land use law is in good hands. We had some very intriguing and educational discussions over the past few months. 

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Law of the Splintered Paddle

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Old School chalkboards remain in some of the classrooms. …

Continue Reading Aloha To Another Semester Of U. Hawaii Land Use

Screenshot 2024-04-24 at 10-12-17 VICTORY Breaking Down the Supreme Court Ruling on Permit Fees

Be sure to join our Pacific Legal Foundation colleagues Brian Hodges and Larry Salzman, and Paul Beard (arguing counsel) and Chance Weldon (Texas Public Policy Foundation) tomorrow, Thursday, April 25, 2024, at 4pm ET for a free webinar on Sheetz v. El Dorado County, the Supreme Court’s recent decision holding that all permit conditions are subject to the nexus and proportionality tests of Nollan and Dolan.

Here’s the description:

Pacific Legal Foundation just won its 18th Supreme Court victory! Join us for a virtual discussion to learn more about the case, Sheetz v. County of El Dorado, and how it helps secure property rights (and lower housing costs) for everyone. 

When George Sheetz wanted to build a modest manufactured home on the property he bought in El Dorado Country, California, the government told him he was going to have to pay a “traffic impact fee” of more than

…
Continue Reading “Breaking Down the Supreme Court Ruling on Permit Fees” (Thursday, Apr. 25, 2024, 4pm ET/1pm PT)

Gorsuch concurring

Note: this is the second of our posts on the recent Supreme Court opinions in Sheetz v. County of El Dorado, the case in which the unanimous Court held that exactions imposed by legislation are not exempt from the essential nexus (Nollan) and rough proportionality (Dolan) standards. Here’s our first post, which covers the case and the main opinion (“Sheetz pt. I – ‘Radical Agreement’ At SCOTUS: ‘Your Money Or Your Rights’ Isn’t OK Just Because A Legislature Does It“).

[Disclosure: this case is one of ours.]

In this post, we cover the three very short concurring opinions.

* * * *

The Court took no position on whether the County’s traffic impact fee has an essential nexus to the Sheetz development, or whether $23 grand is roughly proportional to any traffic his proposal might be responsible for. For this and more…

Continue Reading Sheetz pt. II: The Concurrences – Does Nollan/Dolan Operate Differently When Exaction Affects A Class?

Devillier

Note: this is the second of our posts on the U.S. Supreme Court’s recent decision in Devillier v. Texas. The first — which tries to put the weird post-opinion controversy over which party “won” at the Supreme Court into its proper perspective — is here.

In this post we’ll cover the case’s facts, the odd procedural path that Texas dragged everyone through (only ultimately abandon a key position once at the Supreme Court), and what the Court actually decided, if anything.

The State Flooding Private Property is a Taking Under Everyone’s Constitutions

After the Texas DOT flooded his property as part of a freeway project by creating a dam that caused rainwater to collect on his land, Devillier and other landowners sued the State of Texas for a taking, aka inverse condemnation.

The state flooding someone’s property is one of those “classic” cases which are considered takings, …

Continue Reading Devillier v. Texas (Part II): After Rope-a-Dope By Texas, Unanimous SCOTUS Saves The State Immunity Issue For Later

The winner takes it all
The loser’s standing small
Beside the victory
That’s her destiny

Note: this is the first of a short series of posts on the U.S. Supreme Court’s recent decision in Devillier v. Texas.

In Part II, we’ll cover the case, the procedural path that Texas dragged everyone through, only to abandon it at the Supreme  Court), and what the Court actually decided, if anything,

Three Common Questions for Lawyers

In the classroom, I often ask students to use their intuition to guess the three most common questions that lawyers almost always get from potential clients. Put yourself in a client’s shoes: what would you want to know?

The students mostly get it right. “What’s this going to cost?” Check. “How long will this take?” Check. And perhaps most obviously, “What are my chances of winning?“

That last…

Continue Reading In Devillier v. Texas, The Winner Takes It All (Part I)

If there’s a money quote in yesterday’s opinion by the Supreme Court of Nevada which “wholly affirm[ed] a trial court judgment awarding $48 million in just compensation for Las Vegas’s regulatory taking in City of Las Vegas v. 180 Land Co., LLC, No. 24-13605 (Apr. 18, 2024), it might just be this sentence:

Although the City rejected 180 Land’s development proposals, its representatives had previously recognized the site’s ability to be developed residentially.

Slip op. at 8.

That alone should tell you where this one is ultimately headed. But let’s break it down and see how this got there.

Residential PUD Zoning

It started off well for the property owner, who owned land it wanted to use as a golf course, part of a (much) larger 2,200 acre ranch. The city preliminarily approved a request to zone the proposed golf course for residential PUD (planned unit development – which…

Continue Reading $48 Million The Hard Zoning Way: Thanks To NIMBYs And NIMTOOs, Las Vegas Must Pony Up A Lucas Takings Judgment

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Guess where we stopped for coffee this morning?
(A reminder: this case has nothing to do
with the convenience store.)

Note: this is the first of two posts on the recent Supreme Court opinions in Sheetz v. County of El Dorado, the case in which the unanimous Court held that exactions imposed by legislation are not exempt from the essential nexus (Nollan) and rough proportionality (Dolan) standards. Here’s the second post, which covers the concurring opinions.

[Disclosure: this case is one of ours.]

In this post, we cover the background, and the Court’s unanimous opinion.

* * * *

Does the government have the unfettered ability to demand “the goodies” (as one municipality’s chief land use planner famously called them in the 1980s), simply because a property owner needs the government’s approval to make use if his or her land?

That’s the…

Continue Reading Sheetz pt. I – “Radical Agreement” At SCOTUS: “Your Money Or Your Rights” Isn’t OK Just Because A Legislature Does It