Nollan/Dolan | Exactions

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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

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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Continue Reading Exactions, Again

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

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

Here’s the amici brief we filed today in California Building Industry Ass’n v. City of San Jose, No. 15-330 (Oct. 16, 2015).

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 money in lieu of land, it was a mere zoning restriction and subject to the “rational basis” test. 

CBIA filed a cert petition, and our brief (filed on behalf of the National Federation of Independent Business Small Business Legal Center and the Owners’ Counsel of America) agrees that the Court should review this case. We argue that even though …

Continue Reading Amici Brief In SCOTUS Affordable Housing Case: Prohibiting Homebuilders From Selling At Fair Market Value For 55 Years Is A Taking

ALI-CLE-2016-masthead

Here’s the full agenda for the 2016 Eminent Domain and Land Valuation Litigation / Condemnation 101 Conference, January 28-30, 2016, in Austin, Texas. 

Together with our friend and colleague Joe Waldo, we think we’re put together a pretty good program that covers a lot of ground. This is the first time the conference has been to Austin, and we’re starting off with a talk by Austin Mayor Steve Adler, who in his former life was an eminent domain lawyer. Other highlights:

  • Professor Ilya Somin will speak about his recently-published book in a segment entitled “The Impact of Kelo and the Limits of Eminent Domain.”
  • “Pipelines and Energy Corridors: Valuation Perspectives of Condemnors and Condemnees” with the lawyers on the front lines of one of the hottest topics in eminent domain law nationwide.
  • Retired Minnesota Supreme Court Justice Paul H. Anderson will give us his tips

…
Continue Reading It’s Here – 2016 ALI-CLE Eminent Domain Conference: Complete Agenda, Faculty, Registration Information

Here’s the cert petition you knew was coming, which asks the U.S. Supreme Court to review the California Supreme Court’s decision upholding the City of San Jose’s “inclusionary housing” requirement by applying rational basis review. The California court held the requirement was not an “exaction,” and was no more than a mere zoning regulation or price control. 

Here’s the Question Presented:

A San Jose, California, ordinance conditions housing development permits upon a requirement that developers sell 15% of their newly-built homes for less than market value to city-designated buyers. Alternatively, developers may pay the city a fee in lieu. The California Supreme Court held that, even where such legislatively-mandated conditions are unrelated to the developments on which they are imposed, they are subject only to rational basis review.

This raises an issue on which the state courts of last resort and federal circuit courts of appeal are split nationwide. The…

Continue Reading Cert Petition: Requirement That Developers Set Aside “Affordable” Units Is Subject To More Than Rational Basis Review

Those of you who are members of the ABA Section of State and Local Government Law, tune in tomorrow, Friday, September 11, 2015 for the Land Use Committee’s monthly call.

It will feature two speakers, talking about the California Supreme Court’s recent decision upholding San Jose’s “workforce housing” requirement against a claim that it was an “exaction” and thus should have been subject to the nexus and rough proportionality requirements of Nollan, Dolan, and Koontz.

Law of Affordable/Workforce Housing Exactions and Set-Asides 

FREE Teleconference Sponsored by the Land Use Committee
Friday, September 11, 2015
2:00 p.m. EST
Dial-in 888-3967955
Passcode 797687#
 
Speakers: David L. Callies, FAICP, Kudo Professor of Law at the University of Hawaii

Tim Iglesias, Professor of Law at the University of San Francisco School of Law (Professor Iglesias organized and co-authored an amicus brief in support of the City of San Jose).…

Continue Reading Tomorrow: ABA Land Use Committee Talk On The California Workforce Housing “Exaction” Case

Here’s the latest in a case that we’ve been following, which was in both state and federal court, Bridge Aina Lea v. Land Use Comm’n. 

The litigation is a series of two lawsuits that originated in state court in the Third Circuit (Big Island), one an original jurisdiction civil rights lawsuit, the other an administrative appeal (that’s a writ of administrative mandate for you Californians). The State removed the civil rights lawsuit to U.S. District Court in Honolulu and promptly moved to dismiss, and this portion of the case nearly caused us to flash back to our Federal Courts class in law school, since it raised a host of procedural questions such as the effect of removal, whether certain defendants are “persons” under 42 U.S.C. § 1983, whether the federal court must abstain from addressing the federal takings claim, whether there is a state damage remedy for…

Continue Reading Hawaii Federal Court Gets Rid Of Most Claims Against Land Use Commission, But Allows Takings And Vested Rights Claims To Go Forward

Here’s a short (approx. 10 minute) summary of the recent decision by the California Supreme Court in California Building Industry Ass’n v. City of San Jose, No. S212072 (June 15, 2015).

In that case, the court upheld the city’s “inclusionary housing” requirement against a Nollan–Dolan–Koontz challenge. The court concluded the ordinance did not impose an “exaction” because it did not demand the owner surrender land — or money in lieu of land — and thus was only subject to rational basis scrutiny and not the N-D-K nexus and rough proportionality requirements. 

The podcast is an excerpt of last week’s IMLA webinar on this case and others. 

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Eminent Domain

Continue Reading Podcast: Cal. Building Industry Ass’n v. City of San Jose – Is An “Inclusionary” Housing Requirement An Exaction, Or Mere Zoning?

Here’s a short one from the Court of Appeals of Texas, Eighth District, involving how well a regulatory takings claim needs to be pleaded in a complaint. 

In County of El Paso v. Navar, No 08-14-00250-CV (Aug. 7, 2015), the court held that a pro se plaintiff who alleged, among other things, that the County refused “

to issue certificates of 

compliance to him without a legitimate basis unreasonably interfered with his right to use and 

enjoy his property as a mobile home park” 

was specific enough to give the County notice of the allegation, and should not be dismissed.

Read the opinion for the details of the claim, but here’s the critical allegation in the complaint:

The [County]’s conduct, as alleged, was intentional and constituted an unreasonably interfered [sic] with [his] right to use and enjoy his property. The economic impact and the extent to which the regulation…

Continue Reading Tex App: Penn Central Claim Was Poorly Drafted, But It’s Good Enough