Nollan/Dolan | Exactions

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The Hawaii Supreme Court has issued a lengthy opinion in a case we’ve been following, DW Aina Lea Development, LLC v. Bridge Aina Lea, LLC, No. SCAP-13-0000091 (Nov. 25, 2014). 

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, the latter being the case in which the Supreme Court just ruled.

The essence of the plaintiff’s allegations is that the State Land Use Commission wrongfully amended the land use boundaries from “urban” back to to “agriculture.” Many years earlier, the LUC had amended the boundary to urban on the condition that the owner provide a certain number of affordable units by 2006. In 2008, the developer had not fully done so and the LUC ordered it to show cause why the land classification should not revert to…

Continue Reading HAWSCT: Land Use Comm’n Can’t Rescind A Re-zoning Via Truncated Procedures

Here’s the audio of the recording of the ABA talk we did last week on the Starr International v. USA takings case, “Taking AIG Without Compensation: The $40 Billion Question,” now ongoing in the Court of Federal Claims. The materials and links referred to in the talk are available here. If streaming doesn’t work for you, download the mp3 here.

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Continue Reading Audio Of ABA Talk On Starr International v. United States Trial: Taking AIG Without Compensation – The $40 Billion Question

For those of you who couldn’t join us at the William & Mary Law School last month for the Brigham-Kanner Property Rights Conference (see our report here), the law school has made videos of the four panel presentations available here. 

They’re high quality videos, so be prepared for big downloads, but the presentations are worth it. While they are all good, our favorite was the impromptu discussion/debate during the third panel, “Balancing Private Property and Community Rights,” featuring panelists Kames Burling (Pacific Legal Foundation), Professors Richard Epstein (NYU), Steven Eagle (Geo. Mason), Mark Poirer (Seton Hall), and James Stern (William & Mary). 

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Continue Reading Brigham-Kanner Property Rights Conference – Panel Videos Now Available

To all who were able to join today’s ABA Section of Real Property, Trust and Estate’s Condemnation, Zoning and Land Use Committee’s call on the AIG takings trial, currently pending in the U.S. Court of Federal Claims, thank you for participating. I’ve posted the entire talk (minus questions) above.

Here are the links to the stories, analysis, and materials I mentioned: 

  • The original complaint, first filed in the CFC in November 2011. 
  • Second Amended Complaint in the CFC case, along with Mr. Boies’ quote that this will be “an easy case to litigate.” We described the case as “audacious,” if only because it seeks $25 billion in just compensation. 
  • Professor Gideon Kanner’s (who has been following this case more closely than we have) first thoughts on the complaint. 
  • The CFC’s Opinion and Order granting in part and denying in part the United States’ motion to dismiss.  

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Continue Reading Links From Today’s ABA Talk On The AIG Bailout Takings Case

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“You can’t have rights without advocates.”

                              – Michael Berger

We’re at the William and Mary Law School in Williamsburg, Virginia today for the 11th Brigham-Kanner Property Rights Conference. As we’ve noted earlier, Michael Berger is this year’s B-K Prize honoree, for his career contributions to property law and his “scholarly work and accomplishments [which] affirm that property rights are fundamental to protecting individual and civil rights.”

The list of past recipients is an All-Star roster of property scholars and jurists, including lawprofs Frank Michelman, Richard Epstein, James Ely, Carol Rose, Thomas Merrill, and Supreme Court Justice Sandra Day O’Connor (the latter perhaps more for where she ended up in her Supreme Court career than where she started). See the plaque on the Law School’s wall for the complete list of…

Continue Reading 2014 Brigham-Kanner Property Rights Conference Report: Honoring Michael Berger

We’re tied up today and don’t have time to do any analysis, so we post this without comment: Bowman v. California Coastal Comm’n, No. B243015 (Oct. 23, 2014), wherein the court held:

In Kleiniecke v. Montecito Water District (1983) 147 Cal.App.3d 240, we held it would not be inequitable to apply the doctrine of estoppel as a defense to the statute of limitations. Here we conclude it would be inequitable to apply collateral estoppel to require a party to dedicate a coastal easement as a condition of obtaining a coastal development permit.

We reverse a judgment denying a property owner’s petition for a writ of administrative mandate to eliminate a public access condition from a coastal development permit.

Slip op. at 1  

Bowman v. California Coastal Comm’n, No. B243015 (Cal. App. Oct. 23, 2014)

Continue Reading Cal App: “There is no rational nexus, no less rough proportionality”

Update: San Francisco is going to appeal.

It cost a lot to live in San Francisco, these days. A whole lot, whether you own, or rent. 

If you’re a renter, however, you should hope and pray that your landlord wants out of the rental business. Because under a San Francisco ordinance, property owners who rent their properties but then decide they don’t want to continue to do so must get a permit from the City in order to quit. Another requirement of the ordinance is that the owner pay cash to a displaced tenant — a lump sum “relocation payment” of 24 times “the difference between the units’ current monthly rent and an amount that purports to be the fair market value of a comparable unit in San Francisco, as calculated by a schedule developed by the Controller’s Office.” 

The Levins wanted out of the rental business, and…

Continue Reading Federal Court: San Francisco’s Housing Exaction Violates Nollan-Dolan-Koontz

We get to post the California Raisins again!

Last term, in Horne v. U.S. Dep’t of Agriculture, No. 12-123 (June 10, 2013), the U.S. Supreme Court unanimously held that a property owner could raise a takings claim as a defense to the government’s attempt to impose a fine pursuant to a complex federal regulatory scheme affecting raisin farmers, which requires those in the industry to set aside a percentage of their yearly crop and “donate” it to the public. The Court held that District Courts have jurisdiction to hear a property owner’s claim that this works a taking, and held that the Court of Federal Claims does not have exclusive jurisdiction over this type of claim.

Having resolved the jurisdictional issue in favor of the property owners, the Court remanded the case to the Ninth Circuit for a determination of the merits of their takings defense. Predictably (given the…

Continue Reading New Cert Petition: Raisin Takings Case, Round II

A reminder: the 11th annual Brigham-Kanner Property Rights Conference is coming up on October 30-31, 2014, at the William and Mary Law School in Williamsburg, Virginia. As we noted earlier, Michael Berger will receive the Brigham-Kanner Prize, so this one is special – he’s the first practitioner to receive the Prize.

More here, from W&M, including agenda and registration information. Here’s the flyer.

We’re going – hope to see you there. 

11th Annual Brigham-Kanner Property Rights Conference – Oct 30-31, 2014 – Michael Berger

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Continue Reading October 30-31, 2014: Brigham-Kanner Property Rights Conference @ William & Mary Law

Check this out: Vermont lawprof John Echeverria has launched a blog about “Takings Litigation.” Which, given the predilections of the author (organizer of the anti-takings conference, and recently presented with the Koontz Catatonia Award), probably should be called “Takings Defense” or the “No Takings Blog,” but who are we to say? 

Samples of recent posts:

  • “Just when you thought the Koontz litigation couldn’t get any worse (see my article, Koontz: the Very Worst Takings Decision Ever?), the Florida Court of Appeals has issued a decision in the Koontz case on remand.”
  • “Importantly, the decision [Sherman v. Town of Chester] does not cast doubt on the general rule that when a litigant initially files a takings claim in federal court, the government defendant can raise Williamson County and insist that the takings claim be litigated in state court.”
  • “One thing seems clear about this case [

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Continue Reading New Takings Blog – “Takings Litigation”