Nollan/Dolan | Exactions

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In Action Apartment Ass’n v. City of Santa Monica, No. B201176 (Aug. 28, 2008), the California Court of Appeal (Second District) denied a facial challenge to the city of Santa Monica’s affordable housing exaction ordinance.  The court relied upon the legislative/adjudicative distinction holding that Nollan/Dolan analysis is only applicable to individual decisions regarding permit applications, and cannot be used to challenge legislative decisions generally applicable. 

More about the case after a chance to digest it. The court’s opinion is available here.Continue Reading California Court Rejects Facial Nollan/Dolan Claim to Affordable Housing Exaction

New filings in the federal district court litigation challenging the County of Maui’s “workforce housing” ordinance.  Enacted in 2006, the Maui ordinance imposes a 40% to 50% affordable requirement on most development, including the subdivision of land.  A property owner subject to this exaction challenged the ordinance under the Nollan/Dolan doctrine of unconstitutional exactions, which requires the governmentto show a substantial nexus between the exaction and some problemcaused by the property owner before the government may demand tributeas a condition of development.  The exaction must also be roughlyproportional to the problem. 

In July 2008, the court held that the plaintiff’s Nollan/Dolan claims are takings claims that are not ripe under Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985).  The district court’s lengthy opinionheld that despite labeling its claim as one under the “unconstitutionalconditions doctrine,” the claim was a facial takings…

Continue Reading Latest Developments in Maui Affordable Housing Exaction Case

The Supreme Court of Hawaii has scheduled oral arguments in County of Hawaii v. Richards,No. 28882, the consolidated appeal from two eminent domain lawsuitsfiled by the County in 2000 and 2005.  The issues in the case include:

  • application of Haw. Rev. Stat. § 101-27(1993), the statute that provides that the government must make aproperty owner whole and pay damages when an attempt to take propertyby eminent domain is discontinued or dismissed
  • whether the government may concurrently prosecute more than one condemnation lawsuit to take the same property, at the same time
  • the standards for demonstrating that the government’s claim of public use is pretext to hide private benefit

The briefs are posted here, and a summary of the case and the trial court’s findings are here.  The argument will be held on Thursday, October 16, 2008, at 9:00 a.m. in the Supreme Court courtroom at the Continue Reading Oral Argument Scheduled in Kona Eminent Domain Appeals: Damages for Failed Condemnations, Abatement, and Pretext

Here is what the ripeness requirements of Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985) have brought us: a seemingly endless procedural game where property owners are forced to keep guessing which shell the pea is under, all the while paying their attorneys to litigate matters having nothing to do with the question of whether a local government’s regulations have gone “too far.”  The latest example is West Linn Corporate Park, LLC v. City of West Linn, Nos. 05-36061, 05-46062 (9th Cir. July 28, 2008), a case in which the Ninth Circuit, after removal from state court and trial in federal court, referred the takings issues in the case to the Oregon Supreme Court, effectively handing off the decision in the case to that court. 

Like a good plaintiff is supposed to do under Williamson County, West Linn Corporate Park (WLCP) began this…

Continue Reading Takings Claim Goes From State Court To Federal Court, And Now Back To State Court

The property owner has filed its brief in oppositionto the County of Maui’s motion for reconsideration of the court’s recent decision in the federal court challenge to the County’s 40-50% affordable housing exaction, Kamaole Pointe Development LP v. County of Maui, No. 07-00447 DAE.  We wrote about the case earlier here (contains a link to the complaint), and analyzed the legal problems with the ordinance under state law here.Continue Reading Opposition To Reconsideration Motion In Maui Affordable Housing Exaction Case

The County of Maui has asked the federal court to reconsider its recent order granting in part and denying in part the County’s summary judgment motion.  A Maui property owner challenged the County’s “workforce housing” exaction ordinance, which requires a property owner to commit 40% to 50% of the unitsin most new housing developments to below-market-rate ownership orrental.  Kamaole Pointe Development LP v. County of Maui, No. 07-00447 DAE.  The plaintiff challenged theordinance under the Nollan/Dolan doctrine of unconstitutional exactions, which requires the governmentto show a substantial nexus between the exaction and some problemcaused by the property owner before the government may demand tributeas a condition of development, and that the exaction is roughly proportional to the problem.

The court held that the plaintiff’s Nollan/Dolan claims are takings claims that are not ripe under Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S.

Continue Reading PING: where to buy pure 5-htp griffoniaURL: http://5htpdosage.usIP: 103.23.139.97BLOG NAME: where to buy pure 5-htp griffoniaDATE: 02/07/2013 07:16:47 AMinversecondemnation.com: County Motion For Reconsideration in Maui Affordable Housing Exaction Case

In Citizens’ Alliance for Property Rights v. Sims, No. 59416-8-1 (Wash. Ct. App. July 7, 2008), the Court of Appeals of the State of Washington held that a county ordinance which prohibited  a landowner from clearing 50% to 65% of his property violated a state statute prohibiting counties from imposing a “tax, fee, or charge” on land development.

The court relied on Isla Verde Int. Holdings, Inc. v. City of Camas, 49 P.3d 867 (Wa. 2002) to find that King County Ordinance 15053 §14 violates the prohibition on taxing land development in Rev. Code of Washington 82.02.020.  That statute provides, in part:

Except as provided in RCW 82.02.050 through 82.02.090,no county, city, town, or other municipal corporation shall impose anytax, fee, or charge, either direct or indirect, on the construction orreconstruction of residential buildings, commercial buildings,industrial buildings, or on any other building or building space orappurtenance…

Continue Reading Washington (State) Court Of Appeals: One-Size-Fits-All Open Space Regulation Is Not Roughly Proportional

Relying on Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985), the US District Court for the District of Hawaii today denied a property owner’s motion for summary judgment in a case challenging the County of Maui’s “workforce housing” exaction ordinance.  Kamaole Pointe Development LP v. County of Maui, No. 07-00447 DAE.

The ordinance requires a property owner to commit 40% to 50% of the units in most new housing developments to below-market-rate ownership or rental.  A property owner subject to this exaction challenged the ordinance under the Nollan/Dolan doctrine of unconstitutional exactions, which requires the governmentto show a substantial nexus between the exaction and some problemcaused by the property owner before the government may demand tributeas a condition of development.  The exaction must also be roughlyproportional to the problem.  See this post for more on the nexus analysis.

I posted on the…

Continue Reading Nollan/Dolan Challenge to Maui’s 50% Housing Exaction Is A Takings Claim Subject To Williamson County

The County of Maui has filed a motion for summary judgment in the federal court challenge to the County’s affordable housing exaction ordinance.  The memorandum in support of the motion is posted here (215k pdf).

The Maui ordinance, enacted last year, imposes a 40% to 50% affordablerequirement on new housing developments.  I posted on the case earlier here (contains a link to the complaint), and analyzed the legal problems with the ordinance under state law here .

The plaintiff landowner earlier filed a motion for partial summary judgment (1.5mb pdf) asking the court to declare the ordinance unconstitutional on its face under the Nollan/Dolandoctrine of unconstitutional exactions, which requires the governmentto show a substantial nexus between the exaction and some problemcaused by the property owner before the government may demand tributeas a condition of development.  The exaction must also be roughlyproportional to the problem.  The plaintiff’s…

Continue Reading County Motion in Maui Affordable Housing Exaction Case

The plaintiff property owner has filed a motion for partial summary judgment in the federal court challenge to Maui County’s “affordable housing” requirement.  Kamaole Pointe Development LP v. County of Maui, Civ. No. CV07-00447 DAE LEK (filed Feb. 28, 2008). 

The Maui ordinance, enacted last year, imposes a 40% to 50% affordable requirement on new housing developments.  I posted on the case earlier here (contains a link to the complaint), and analyzed the legal problems with the ordinance under state law  here . 

The plaintiff’s motion is posted here (1.5mb pdf).  It asks the court to declare the ordinance unconstitutional on its face under the Nollan/Dolan doctrine of unconstitutional exactions, which requires the government to show a substantial nexus between the exaction and some problem caused by the property owner before the government may demand tribute as a condition of development.  The exaction must also be…

Continue Reading Nollan/Dolan in Federal Court Challenge to Maui’s “Affordable Housing” Exaction Scheme