Nollan/Dolan | Exactions

Subscribe to Nollan/Dolan | Exactions via RSS

As you know, yesterday the Supreme Court granted cert in Horne v. U.S.D.A., No. 12-123 (cert. granted Nov. 20, 2012), the third takings claim this season. As this article asked, what, if anything, is going on? Is it just “serendipity” or a “return to the norm” as two lawprofs quoted in the article suggested, or might it be something else?

Of course, no one knows but the justices themselves (and maybe the cert pool clerks). But that won’t prevent us from engaging in a little lighthearted speculation. One theory that might explain why the Court seems to be particularly interested in property cases this term is the recent election.

It takes only four of the justices to agree to review a case, and we can safely count Justices Scalia, Thomas, and Alito as very property friendly, and Justice Kennedy and Chief Justice Roberts are moderately property friendly. If…

Continue Reading Three Takings Cases This Term – What’s The Deal?

Here are my remarks from last week’s Brigham-Kanner Property Rights Conference at the William & Mary Law School in Williamsburg, Virginia. Our panel spoke on “Property Rights in Times of Economic Crisis,” and included lawprofs James W. Ely (Vanderbilt), William Fischel, (Dartmouth), and Eric Kades (William & Mary). See the complete faculty list and agenda here.

+++++++++++++++++++++++++++++++++++++++

Aloha, I bring you greetings from the land of Midkiff, the land of Lingle.

I practice in the jurisdiction that believed it would cure our economic ills to use eminent domain to bust up the legacy land trusts, and make sure that everyone who owns a home could also own the fee simple interest.

Which they may now do, provided they can afford our median price for a single-family residence, $637,000.

I practice in the jurisdiction that believed that it would be a good idea to try and bring…

Continue Reading Professor Ely, You Magnificent Bastard, I Read Your Book!

This just in: our Pacific Legal Foundation colleagues have informed us that the U.S. Supreme Court has agreed to review another takings case.

The questions presented are:

1. Whether the government can be held liable for a taking when it refuses to issue a land-use permit on the sole basis that the permit applicant did not accede to a permit condition that, if applied, would violate the essential nexus and rough proportionality tests set out in Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994); and

2. Whether the nexus and proportionality tests set out in Nollan and Dolan apply to a land-use exaction that takes the form of a government demand that a permit applicant dedicate money, services, labor, or any other type of personal property to a public use.

The case is Koontz v. St. Johns River Water…

Continue Reading SCOTUS Grants Cert: Does Nollan/Dolan Apply To Cash Exactions?

If you need another reminder of what land use and zoning law looks like on Kauai in practice (and, in turn, in Hawaii generally), see this article, Hanalei vs. Hanalei in The Garden Island newspaper. It’s about a proposal to develop a new resort that (not surprisingly) is “meeting staunch opposition from a rapidly growing group of people.”

The developer side has its own view, touting the proposed resort as “the most environmentally and culturally responsible visitor-oriented project ever to be proposed in the state.” The story reports that one of the project’s backers is “billionaire and eBay founder Pierre Omidyar,” so that could make this a very interesting development instead of the usual enviros vs developer scenario, since Omidyar, according to at least one of the project’s opponents “has the right mind,” and “right heart” to donate at least part of the land to preserve a viewplane.

The…

Continue Reading A Microcosm Of Hawaii Land Use Law

Florida land use and environmental law attorney Jake Cremer has posted the Brief in Opposition in Koontz v. St. Johs River Water Management Dist., No. 11-1447 (cert. petition filed May 30, 2012), the case asking whether the Nollan/Dolan nexus and proportionality tests  apply to a land-use exaction that takes the form of a government demand that a permit applicant dedicate money, services, labor, or any other type of personal property. We posted the cert petition here.

Jake writes:

The U.S. Supreme Court has not yet given much more guidance on exactions, and confusion has been the result. The Florida Supreme Court forged its own path, holding that the Nollan-Dolan test only applies to (1) exactions of real property (2) where a permit was actually issued and imposed an exaction. Consequently, in Florida, there are now relatively few restrictions on what a local government can ask …

Continue Reading BIO In SCOTUS Florida Exactions Case: Fla Supremes Ruled Only Under Fla Law

Here’s the cert petition in a case we’ve been following that presents a question that has divided the lower courts – do the nexus and rough proportionality tests for whether a land use exaction works a taking apply to exactions of cash, or are they limited to land exactions? In St. Johns River Water Management Dist v. Koontz, No. SC09-713 (Nov. 3, 2011), the Florida Supreme Court added to the lower court split when it held under both the U.S. and Florida Constitutions that the Nollan and Dolan tests are only applicable “where the condition/exaction sought by the government involves a dedication of or over the owner’s interest in real property in exchange for permit approval; and only when the regulatory agency actually issues the permit sought, thereby rendering the owner’s interest in the real property subject to the dedication imposed.”

The property owner has now sought U.S. Supreme…

Continue Reading New Cert Petition: Nollan/Dolan Not Limited To Land Exactions

Gideon Kanner reminds us of the passing of retired California Court of Appeal Justice Lynn “Buck” Compton, famous of late for his exploits as a hard-charging paratrooper in World War II (L.A. Times story here). Gideon writes about Justice Compton’s time on the bench:

No, we aren’t going to wax lyrical about the high profile criminal cases in which he was involved, first as a prosecutor and later as a judge. We leave that to the popular press. We do wish to note that “Buck” Compton was one of the few — very few — California appellate judges who would give condemnees an even break, and for that he deserves our, and your thanks. He was tough-looking and blunt, but you knew when you appeared before him on behalf of property owners in an eminent domain case that he would listen to your arguments and give them fair …

Continue Reading Justice Lynn “Buck” Compton

Here are the links to the cases and other items discussed today at the International Municipal Lawyers Association webinar with Dan Mandelker and Dwight Merriam. Most of these cases are also in your written materials.

  • South Carolina Bar’s

…
Continue Reading Links From Today’s IMLA Regulatory Takings Webinar

ALI-ABAGet ready, it’s that time of year again: the annual eminent domain law conferences by the American Law Institute-American Bar Association, this year to be held in San Diego from January 26-28, 2012.

Here’s the description of Eminent Domain and Land Valuation Litigation, the premiere program on condemnation law and related topics:

The power of eminent domain is being reshaped across the nation by court rulings and legislation. Much of the recent court activity and legislation has involved the controversial use, or attempted use, of eminent domain power to take private property for economic development by private parties. Redevelopment, however, is not the only fluid area in takings law. This national course of study addresses those areas where new developments in the law and procedure have and will reshape the practice. Learn what’s new in the cutting-edge areas of eminent domain law and how the practice in this field continues to evolve.

This popular and long running advanced course of study kicks off with a comprehensive update on eminent domain case law and legislation by a preeminent practitioner.

Each morning, the course focuses on hot issues and topics that affect practitioners today.

On Thursday and Friday afternoon, a dual track system addresses important substantive and practice topics in a series of breakout sessions. Registrants can learn about the key issues in substantive takings law from nationally recognized and experienced professionals. On the practice side, registrants can choose from another array of sessions chock full of practice pointers.

The course brings all the right participants together — lawyers, appraisers, condemning agencies, right-of-way professionals, and many others — to share valuable experiences and engage in healthy debate on these cutting-edge issues.

Networking opportunities are scheduled throughout the program, with breakfasts, networking breaks, a reception on Thursday afternoon, and social activities in the evenings arranged by a special Hospitality Committee. Come and meet with colleagues from around the nation, exchange ideas, enjoy the fellowship, and collect more than 16 hours of CLE credits.

This course runs concurrently with ALI-ABA’s annual Course of Study, Condemnation 101: Making the Complex Simple in Eminent Domain. This unique format allows practitioners who are new in the field of eminent domain to network with many of the nation’s most experienced condemnation lawyers, and to benefit from many of those same lawyers serving as their faculty. Special Offer: Attend Eminent Domain and Land Valuation Litigation and bring an associate to Condemnation 101 for 50% off.  ADD TO CART

We’re on the faculty (“The Role of Hawaii’s Unique Property Law in the U.S. Supreme Court’s Takings Cases“with Professor David Callies), so if you attend either course, please stop by and say hi.
Continue Reading ALI-ABA Annual Eminent Domain Conference, January 26-28, 2012, San Diego

West Linn Corporate Park LLC v City of West Linn, No. 11-299 (petition for cert. filed Sep. 6, 2011), a petition we’ve been following that asked whether the nexus and “rough proportionality” tests for a regulatory taking in Nollan and Dolan are limited to government demands for land, has been denied.

California and Texas say the nexus and rough proportionality standards apply to all exactions (we don’t want the government blackmailing permit applicants, regardless of the tribute that is demanded), while Florida says they don’t. Other courts have also weighed in on one side or the other, and lacking guidance from the Supreme Court, will continue to flounder about on this issue.

We suspect the Court’s reluctance to address the confusion has less to do with the issue at hand (must all exactions be related and proportional to the predicted impact of the development) and more to do…

Continue Reading Lower Court Split On Applicablity Of Nollan/Dolan To Exactions Other Than Land Continues: West Linn Petition Denied