Nollan/Dolan | Exactions

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Early next month, the California Supreme Court will hear oral arguments in two cases which we’ve been closely following:

  • Tuesday, May 3, 2016, 9:00 am – Property Reserve, Inc. v. Superior Court, No. S217738. The court is considering whether California’s “entry statute” which allows a condemning agency to enter property for testing and inspection exempted the Department of Water Resources from adhering to the protections in the eminent domain code when the government physically invades property. We filed an amicus brief in that case arguing that “any non-trivial physical invasion of private property is a per se taking requiring just compensation and adherence to eminent domain procedures. The intrusions sought by DWR and ordered by the Superior Court cannot be dismissed as mere “entries.” This is not only a long-standing tenet of California constitutional law (see Jacobsen, supra, 192 Cal. at 329), it is a baseline Fifth Amendment principle, and

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Continue Reading Big Eminent Domain Days Coming Up At The California Supreme Court

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The Nollans own a beachfront lot in Ventura County, California. A quarter-mile north of their property is Faria County Park, an oceanside public park with a public beach and recreation area. Another public beach area, known locally as “the Cove,” lies 1,800 feet south of their lot. A concrete seawall approximately eight feet high separates the beach portion of the Nollans’ property from the rest of the lot. The historic mean high tide line determines the lot’s oceanside boundary.

Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987)

From time-to-time, and when we’re in the neighborhood, we like to drop by the sites of familiar (and famous) takings and land use cases. Like Kaiser Aetna (in our own backyard), Dolan, and PruneYard. We’ve been there, done that. 

So there we were in Central California (Ventura County to be exact), and we’re driving up the coastal highway when…

Continue Reading Another Takings Pilgrimage (Unconstitutional Conditions Technically, But Close Enough)

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As we noted here (“Latest On The Latest Hawaii Takings Case: Unconstitutional Conditions, Statutes Of Limitations, And Vested Rights“) the U.S. District Court for the District of Hawaii is considering a regulatory takings case (removed by the defendant State of Hawaii from Hawaii courts) involving a stalled development on the Big Island.

At the hearing last month, District Judge Mollway stated she was inclined to grant a part of the State’s motion for summary judgment and deny the rest, and that she would issue a formal ruling by the end of the month. In this order, filed on the last day of an extended February, the court as promised issued its decision. 

Bottom line: the plaintiff’s takings claims (Lucas and Penn Central) are going to trial, the balance of the remaining claims (vested rights, etc.) are gone.

This case came about after a property owner…

Continue Reading Hawaii Federal Court: Get Ready For Trial On Lucas And Penn Central Takings Claims

You can really breathe in San Jose
They’ve got a lot of space
There’ll be a place where I can stay.
I was born and raised in San Jose
I’m going back to find some peace of mind in San Jose

Today, in this order after a series of rescheduled considerations that had seen the U.S. Supreme Court repeatedly delay the conference, the Court declined to review the California Supreme Court’s decision in California Building Industry Association v. City of San Jose.

That’s the case in which 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 …

Continue Reading Cert Denied In Cal Affordable Housing “Exaction” Case

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The U.S. and Hawaii flags at half-staff this morning at the Hawaii Capitol

So Justice Scalia is gone. We all knew this day had to come, eventually. But we were not prepared for it so soon.

With his opinions in Nollan, Lucas, Rapanos, and Stop the Beach Renourishment, I think it is fair to say that he was a champion of private property rights, even though I am always uncomfortable when judges are called “champions” of certain causes, because they really aren’t supposed to have causes. I’d imagine that Justice Scalia probably would agree that the only “cause” judges should serve is to call the law objectively as they see it. Fair enough. But even a cursory review of his property law jurisprudence tells us that his absence will leave a large hole, unlikely to be filled.  

There are a lot of retrospectives on the man…

Continue Reading “Unless the permit condition serves the same governmental purpose as the development ban, the building restriction is not a valid regulation of land use but an out-and-out plan of extortion.” Goodbye To Justice Scalia

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Here’s the latest on a takings case that is winding its way through the U.S. District Court in Honolulu. Yes, you read that right: a takings case being litigated in federal court.

Intrigued? Read on. 

We’ve covered this case and the related state court litigation several times here before, so this isn’t entirely unfamiliar ground. This is a case in which a property owner (the developer of the Aina Lea project on the Big Island, just north of the Waikoloa beach area) filed a case in Hawaii state court seeking, among other things, just compensation for the temporary taking of its right to develop its property. The case ended up in federal court because the State of Hawaii Land Use Commission waived the State’s 11th Amendment immunity and removed the case from state court under federal question jurisdiction. 

The litigation began as two lawsuits originating in state court in the…

Continue Reading Latest On The Latest Hawaii Takings Case: Unconstitutional Conditions, Statutes Of Limitations, And Vested Rights

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The second day of the 2016 ALI-CLE Eminent Domain and Land Valuation conference went as well as the first. Here are some highlights:

  • Austin Mayor Steve Adler (pictured above), who is (was?) also an eminent domain lawyer, welcomed us to his city. 
  • We moderated a discussion between Andy Gowder and Dana Berliner about “First Amendment for Fifth Amendment Lawyers: Free Speech, Signs, Defamation, FOIA, and RLUIPA Claims,” how takings lawyers deal with these issues when they crop up in their cases. 
  • One update from that session: at nearly the same time that we were talking about Central Radio, the case about the Norfolk, Virginia “anti-eminent domain” sign, the Fourth Circuit issued its opinion on remand from the U.S. Supreme Court. We’ll have more in a full post soon, but here’s the bottom line for now: no, the City can’t ban the sign (“we hold that the sign

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Continue Reading 2016 ALI-CLE Eminent Domain Conference, Austin: Second Day

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Here’s what’s going on today, the first day of the 33d annual ALI-CLE Eminent Domain and Land Valuation conference in Austin, Texas. We’re at standing room only, with a record number of attendees and our usual nationally renown faculty.

We started off the day with our usual “Eminent Domain Update” session with Amy Brigham Boulris, and as mentioned, the links to the opinions which we discussed are going to be posted in a separate post today. 

We are being followed by a panel on pipeline takings, one of the hot issues nationwide, with Joe Waldo, Matthew Ray, MAI, Thomas Peebles, and Dave Domina.

That session was followed by Professor Ilya Somin, talking about his book, “The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain.”  

Above are our annual “proof of life” photos taken from the lectern, to show…

Continue Reading ALI-CLE 2016 Eminent Domain Conference, First Day: Standing Room Only, National Expertise

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Austin, Texas, is where we’re at for the next few days, for the 2016 edition of the American Law Institute-CLE Eminent Domain and Land Valuation conference, now in its 33d year. First time we’re in Austin, however, and our registration numbers are looking very good, and we haven’t had this big a turnout in years.

We haven’t been back to Austin in a few years ourselves, so we did what law nerds sometimes do when we go to new towns: visit the local courtroom to check out the scene. So we dropped by the Supreme Court of Texas to take a look. Turns out it was an off-day for the court and it was not in session and the courtroom was locked. But Security suggested that if we asked the Clerk nicely, she might retrieve the key and let us take a look around. And you know what? She did.

Continue Reading ALI-CLE 2016 Eminent Domain Conference: Austin Scouting Report

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