Nollan/Dolan | Exactions

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Here are the latest opinions of interest from the Court of Federal Claims, which has nationwide jurisdiction over inverse condemnation and regulatory takings claims against the federal government where the compensation sought exceeds $10,000:

  • James v. United States, No. 01-2911L (Mar. 5, 2009) – subject matter jurisdiction, ownership of parcel in question; “scrivener’s error.”
  • Biery v. United States, Nos. 07-693L, 07-675L (Feb. 27, 2009) – more rails-to-trails takings – certifying questions of abandonment under Kansas law to the Kansas Supreme Court.

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Continue Reading Court Of Federal Claims Round-Up

A cert petition has been filed seeking review of Joy Builders, Inc. v. Town of Clarkstown, 11 N.Y.3d 863 (2008).  That decision was summarized by Professor Patty Salkin on the Law of the Land blog here. The New York Court of Appeals refused to hear the case, ordering “Appeal dismissed without costs, by the Court sua sponte, upon the ground that no substantial constitutional question is directly involved.”

The cert petition was filed on February 27, 2009 and is available here.

The Question Presented:

A government violates the doctrine of unconstitutional conditions when it grants a development permit conditioned upon the compelled dedication of land for municipal purposes if: i) it has not made an “individualized determination” that an exaction is required because of the project’s impacts, and ii) the quantity of land compelled is not roughly proportional to those impacts.1  More and more governments…

Continue Reading New Cert Petition – Dolan Proportionality And Individualized Determination Applies To In-Lieu Fees

The modified opinion in Building Industry Ass’n of Central California v. City of Patterson, No. F054785 (Cal. Ct. App. Mar. 2, 2009), a case we summarized here, has been further modified in this order. The latest modifications do not alter the judgment that the a city could notincrease an in-lieu affordable housing exaction from $734 to $21,000per house in a proposed development, because it failed to show the increase was attributable tothe development.Continue Reading Out-Of-Proportion In-Lieu Affordable Housing Exaction Opinion Modified

Instead of an in-person Spring Meeting this year, the ABA Section of State & Local Government Law will be “meeting” virtually from March 31-April 2, 2009.  As part of the meeting, the Section will be featuring a series of teleconference and live audio webcasts on a variety of subjects including topics near and dear to us: workforce housing, condemnation, land use, and green regulations. You can register for all programs, or individual subjects. A complete list of programs is posted here.

I will be participating as faculty in two of the programs: Condemnation Hot Topics (April 1, 2009 from 2:00 – 3:30pm EDT) and Hot Topics in Land Use Law (April 2, 2009 from noon – 1:30 EDT).  I’ll be speaking about the issue of public use and pretext in eminent domain, and recent cases questioning the government’s ability to take property.

Registration information is available on the links.

Continue Reading Conference: ABA Section Of State & Local Government Law Virtual Spring Meeting

Thank you to Kamuela attorney Margaret Wille for allowing us to post the commentary she published in West Hawaii Today (Mar. 7, 2009), but which is not available on line. Posting on inversecondemnation.com is not an endorsement of the views expressed or the conclusions reached, but we thought it was worthwhile to hear others’ voices on this important subject. Disclosure: we represent the property owners in the eminent domain cases instituted by the County, County of Hawaii v. C&J Coupe Family Ltd. P’ship which she discusses. Our thoughts on the topic are posted here.

Who Pays For Impacts: You Do
by Margaret Wille

Recently there have been several articles in West Hawaii Today about “fair share” versus “impact” fees.  Probably there are many readers who wonder why do these fees matter to me. In other words, does this issue affect the ordinary Big Island taxpayer?  Yes, very much so.  

These fees, regardless of name, are charged to developers to defray a portion of the cost to maintain the current level of service for one or more categories of public facilities impacted by the proposed development.

The first question to ask is whether you believe the developer who reaps the financial benefit of the new development should shoulder a portion of the financial cost to maintain the current level of service for affected public facilities that are off of the developed property, e.g. area roads or police and fire stations. Would you rather all of the resulting costs to maintain the current level of service of these affected public facilities be paid for by us existing taxpayers? By way of example, when Costco went in, who paid the 5.5 million in cost to upgrade the Queen K intersection, just to maintain the current level of service at that intersection (I believe the level of service of that intersection was level D if not worse.) We did, you, me, all of us existing taxpayers and businesses paid for the improvements needed just to continue at that same low level of service (and if bond money was used for a portion of either the County’s or the State’s cost, you could say we saddled our kids with some of this expense).  If the County had passed a development fee ordinance consistent with the State’s 1992 impact fee law, some of the County’s cost of those intersection improvements would instead have been paid by Costco’s owners.  

Continue Reading Impact Fees And “Fair Share” Guest Commentary: “Who Pays For Impacts: You Do”

In Building Industry Ass’n of Central California v. City of Patterson, No. F054785 (Cal. Ct. App. Mar. 2, 2009), the California District Court of Appeal held that the city could not increase an in-lieu affordable housing exaction from $734 to $21,000 per house, because it failed to show the increase was attributable to the development.

The City of Patterson entered into a development agreement with the landowner in which the city agreed the owner would pay only those affordable housing fees in effect at the time the agreement was executed. The agreement recognized, however, that the exaction may be increased and that the city was preparing an “updated analysis.” The owner agreed to pay the revised exaction, provided it was “reasonably justified.” Predictably, the city revisited the exaction schedule and after study that changed the methodology of calculating the fee, revised it to $20,946 per market rate unit. After…

Continue Reading Cal. Court of Appeal Strikes Down Out-Of-Proportion In-Lieu Affordable Housing Exaction

Thanks to James Lawlor of the Land Use Legal Report for letting us know that the U.S. Supreme Court has declined to review Ocean Harbor Homeowners Ass’n v. California Coastal Comm’n, 163 Cal. App. 4th 215, 77 Cal. Rptr. 432 (2008). In that case, the California Court of Appeals held that the California Coastal Commission properly conditioned a permit to build a seawall to protect property from erosion on the landowner’s payment of a $5.3 million “mitigation fee.” The fee was to be used to purchase other beach property since Commission claimed the construction of the seawall would result in the loss of beach fronting the property. The property owner challenged the exaction under the nexus and proportionality requirements of Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994).

A denial of a petition for writ of…

Continue Reading Cert Denied In California Nollan/Dolan $5.3 Million Seawall “Mitigation Fee” Case

Thanks to Kona Blogger Aaron Stene for pointing out an article from West Hawaii Today, “County lawyers say fair share legal.”The article reports:

Council members who say Judge Ronald Ibarra’s 2007 ruling in a contested condemnation case invalidated the county’s fair share assessments are basing their argument on too specific a portion of the ruling, attorneys for the Corporation Counsel’s Office said.

Following the logic of the argument, the attorneys went on, someone could argue that the county’s condemnation powers were also invalidated, because both condemnation and fair share assessment were mentioned in a single sentence. Instead, the county’s attorneys said, the references were specific to the Coupe lawsuit in which the ruling was filed, according to written opinions from the office released Friday.

Disclosure: we represent the property owners in the Coupe lawsuit mentioned (more accurately termed the “Coupe condemnation,” since the Coupe Family is the…

Continue Reading County Of Hawaii “Fair Share”/Impact Fees – What Did The Court Decide?

Some interesting reports filtering across my screen today:

  • Thanks to Charley Foster for sending notice about a post at Volokh Conspiracy about whether the Takings Clause was incorporated against the states by the Due Process Clause, “Regulatory Takings and the Fourteenth Amendment.”  On that subject, check out “No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights” by Michael Kent Curtis (available on Amazon here), which makes a good case that the Reconstruction Congress meant for the Privileges or Immunities Clause of the Fourteenth Amendment to incorporate all of the provisions of the Bill of Rights against the states as attributes of national citizenship.

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Continue Reading Land Use Round-Up

Duck Thanks to Kona Blogger Aaron Stene for sending this next item my way, a follow up to the previous two days’ reports from West Hawaii Today (posted here and here) about Hawaii County’s so-called “fair share” exaction system. In “Council reaffirms belief in fair share legality,” WHT reports:

The county’s Corporation Counsel spent two-and-a-half hours of a four-hour-long executive session Wednesday apparently trying to convince the County Council the County’s fair share cost system is legal.

The effort apparently worked.

Council Chairman J Yoshimoto, Hilo, said after the meeting the “Corporation Counsel explained to us the fair share system is legal.”

He said he does not expect the council to hold another executive session on the subject any time soon, as information presented by Corporation Counsel during the meeting clearly showed the fair share cost system is legal.

The county has for years used the system, which…

Continue Reading Even More On Hawaii County’s Impact Fee … Whoops, I Mean “Fair Share”