Nollan/Dolan | Exactions

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Here’s the latest in a case we’ve been following. In Bridge Aina Lea, LLC v. State of Hawaii Land Use Comm’n, the plaintiff filed its complaint in state circuit court alleging that the LUC violated state and federal law (due process, takings, vested rights, and more) when it reclassified “urban” land on the Big Island to “agriculture.” 

The defendants then removed the case to federal court, and have now filed a motion to dismiss that contains a host of defenses: immunity, the unavailability of prospective injunctive relief, whether certain defendants are “persons” under 42 U.S.C. § 1983, abstention on the federal takings claim, the lack of a state damage remedy for deprivation of constitutional rights, and zoning estoppel, among others.

Just the thing to give you flashbacks to your Federal Courts class.

Update: here‘s the errata filed just after the motion to dismiss.

Motion to Dismiss, Bridge at …

Continue Reading Latest In Big Island Takings And Vested Rights Challenge To LUC Reclassification

If you understand the title of this post, congratulations: you are a regulatory takings wonk.

The property owners have filed a cert petition asking the Supreme Court to review the Tenth Circuit’s decision in Alto Eldorado Partnership v. County of Santa Fe, 634 F.3d 1170 (10th Cir. 2011). The Questions Presented explain the background and the issues:

A New Mexico county ordinance forces landowners who seek permits to subdivide their properties to construct and sell “affordable housing” units to County-approved buyers. Petitioners Alto Eldorado Partnership, et al., (collectively, “Alto”) are property owners who brought a Fifth Amendment claim in federal district court under 42 U.S.C. § 1983, seeking to have the ordinance enjoined on the grounds that it imposes an unconstitutional permit condition in violation of Nollan v. California Coastal Commission, 483 U.S. 825 (1987). Citing Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City…

Continue Reading New Cert Petition: Are Nollan Claims Subject To Williamson County (And If So, Should Williamson County Be Overruled)?

A new case worth watching has been filed in Hawaii state court (Third Circuit, the Big Island) that involves allegations of vested rights and estoppel, Nollan/Dolan exactions, state and federal due process and takings, inverse condemnation, and equal protection.The

See below, the Complaint in Bridge Aina Le’a v. State of Hawaii Land Use Comm’n, No 11-1-1145-06 (KKS), filed last week, in which the plaintiff asserts that the Land Use Commission changed the land use boundaries from “urban use to agricultural use while affordable housing was being constructed on the property.”

More here, from West Hawaii Today.

Complaint, Bridge Aina Le’a v. State of Hawaii Land Use Comm’n, No. 11-1-1145-06 (KKS) (filed 6-7-2011)Continue Reading New Lawsuit To Watch: Land Use Commission, Vested Rights, Civil Rights

PICT0408
Last week, after we concluded the spring meeting of the ABA’s Section on State and Local Government Law in Portland, Oregon (more about that in a subsequent post), we could not resist paying a brief visit to the neighboring City of Tigard.

Yes, that City of Tigard.

In the early 1990s, the city was home to John and Florence Dolan, who owned A-Boy Plumbing & Electrical Supply. They asked the city for a permit to expand their store and pave their parking lot. The city saw this as an opportunity to expand its network of bike paths, and conditioned its approvals on the Dolans “dedicating” (giving) the city land for a public “greenway” along the adjacent Fanno Creek, totaling approximately 10% of the parcel.

PICT0407

            The entrance to the “greenway” from the street.

The Dolans objected, arguing that requiring them to donate land as a condition of land use…

Continue Reading Regulatory Takings Pilgrimage, Part II

Comes the sad news that Jess S. Jackson, of the renown Kendall-Jackson wine label, has passed away in his Northern California home. Details here (K-J website), here (San Francisco Chronicle), and here (Santa Rosa Press Democrat). Jackson’s biography reveals a life lived very large: winemaker, business mogul, philanthropist, race horse owner.

Add to that list takings lawyer. Before he went full-time into the wine business, Jackson’s law practice included representing property owners in condemnation and regulatory takings cases. Gideon Kanner, a long-time colleague, adds his rememberances here.

Property mavens, remember these cases?

  • Kinzli v. City of Santa Cruz, 818 F.2d 1449 (9th Cir. 1987).
  • Del Monte Dunes of Monterey, Ltd. v. City of Monterey, 920 F.2d 1496 (9th Cir. 1990).
  • California Coastal Comm’n v. Granite Rock Co., 480 U.S. 572 (1987).
  • United States v. 100

…
Continue Reading Jess Jackson: Winemaker Extraordinaire, And Takings Lawyer

Here’s another of the amicus briefs in Guggenheim v. City of Goleta, No. 10-1125. The brief of the National Association of Home Builders argues:

The Ninth Circuit in Guggenheim has rejected the widely held principle that regulatory takings claims run with the land for all subsequent title holders. As a result, the availability of the Fifth Amendment has, for all practical purposes, been eliminated for an entire class of property owners. The Guggenheim decision also creates adverse policy results for both property owners and local communities.

Massachusetts’ high court addressed this issue in Lopes v. City of Peabody, 629 N.E.2d 1312 (Mass. 1994). In Lopes, the court upheld the property owner’s regulatory takings case against an existing zoning ordinance even though the owner has purchased the land with full knowledge of environmental buffers that would limit the property’s development potential. Id. at 1313. The court explained…

Continue Reading Amicus Brief In Guggenheim: Takings Claims Run With The Land

This just in: in Trinity Park, L.P. v. City of Sunnyvale, No. H035573 (Mar. 24, 2011), the California Court of Appeal (6th District) held that the City’s approval of the property owner’s residential development, conditioned upon the developer reserving 12 1/2% of the units for sale at below the market rate, was not a “development fee, dedication, reservation or ‘other exaction’ within the meaning of [Cal.Gov’t Code §] 66020 where, as here, the affordable housing requirement was clearly not intended to ‘defra[y] all or a portion of the cost of public facilities related to the development project.'” Slip op. at 2.

The narrow issue in the case was the statute of limitations (statute of repose, if you want to be more technical). California law requires challenges to conditions on development permits to be made within 90 days, while challenges to development fees, dedications, reservations and “other exactions”…

Continue Reading Cal Ct App: When Is An Affordable Housing Exaction Not Exactly An “Exaction?”

In Alto Eldorado Partnership v. County of Santa Fe, No. 09-2214 (Mar. 16, 2011), the U.S. Court of Appeals for the Tenth Circuit held that a regulatory takings challenge to an affordable housing exaction was not ripe under the second prong of the   Williamson County test.The “final decision” prong was not at issue in this case, where the plaintiffs challenged the County’s up-to-30% affordable housing exaction on subdivisions, where the subdivision is for resale.  Continue Reading 10th Circuit: Affordable Housing Exaction Claim Not Ripe Under Williamson County

Aliaba

Thursday-Saturday, February 17-19, 2011, come join us for the 28th annual presentation of the advanced-level ALI-ABA Course of Study, Eminent Domain and Land Valuation Litigation, and the sixth annual presentation of the basic-level ALI-ABA Course of Study, Condemnation 101: Making the Complex Simple in Eminent Domain, both at the Hyatt Regency in Coral Gables (Miami), Florida. Both courses also are offered via live webcast, available either in their entirety or in segments.

Update: Register online between December 12 and December 31, 2010, and you can get a 30% tuition break. Simply enter coupon code DECS30 when you check out to receive your discount (this includes ALI-ABA’s, live and online courses, telephone seminars, webcasts and on-demand CLE, coursebooks, DVDs, mp3s, subscriptions to periodicals, books, and all online content, including forms). This offer may not be combined with other ALI-ABA discounts, group rates or bundled products. This discount is only available for new…

Continue Reading Mark Your Calendars – Feb. 17-19, 2011: Annual ALI-ABA Condemnation Law Programs

In Building Industry Ass’n of Central California v. County of Stanislaus, No. F058826 (Nov. 29, 2010), the California Court of Appeal (Fifth District) concluded that the County’s Farmland Mitigation Program — which requires property owners to dedicate or acquire perpetual agricultural conservation easements in a 1-to1 ratio as a condition of obtaining development approvals or permits — was not facially invalid.

The trial court had invalidated the FMP on its face because the County “failed to provide sufficient evidence to demonstrate a reasonable relationship between the exactions requires under the FMP and any adverse public impacts resulting form the new applications to change … to ‘residential’ uses,” but the Court of Appeal concluded that the burden was not on the County to show the FMP bears a rational relationship to farmland loss, but on the plaintiff BIA to show the FMP bears no reasonable relationship. Slip op. at 9.…

Continue Reading Cal Ct App: Farmland Mitigation Exaction Has Nexus And Proportionality