Nollan/Dolan | Exactions

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The Garden Island reports that a property owner’s appeal of the County of Kauai’s approval of its permits with allegedly illegal conditions is going forward after the County withdrew its motion to dismiss.

The County Attorney’s Office filed for themotion to dismiss based on the Planning Commission failing to issue a“written decision and order containing findings of fact and conclusionsof law,” which it claims is the only decision the court can review.Without it, there is no subject matter to base a case.

ThePlanning Commission has this on its Feb. 12 agenda, which, if approved,would apparently ratify the commission’s Dec. 11 approval ofCreeksides’ permit applications.

Full report here.

Continue Reading County Withdraws Motion to Dismiss Land Use Civil Rights Complaint

The Garden Island reports that the Kauai County Council is considering a ban on “gated communities” —

A stalled plan to ban gated communitiesshould return to County Council’s agenda by the end of February, MayorBryan Baptiste said yesterday. 
   
“It’s not a public safety issue to me,” he said. “It’s so we don’t isolate ourselves from each other.”

All I can say about the issue is, what about the right to excludeothers?  This may be the most fundamental “stick” in the bundle of rightsknown as property, and can’t be taken away by regulation, no matter how well-intentioned the regulation may be. 

After all, if you can’t keep others off your property, what have you got left?  According to the U.S. Supreme Court, nothing (except perhaps a per se regulatory takings claim).  As the Court held in Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987):

We have repeatedly…

Continue Reading The Right to Exclude Others From Gated Communities

A complaint has been filed in U.S. District Court against the mayor of Kauai County, the county  Department of Planning, and the Planning Commission over the Coconut Beach development.  The complaint seeks relief for violations of equal protection, and federal civil rights laws.  Charley Foster has some background on the case here.  Download the complaint here.Continue Reading Federal Equal Protection Land Use Case Filed

I’ve had a chance to review Matsuda v. City and County of Honolulu, No. 06-15337 (Jan 14, 2008), a decision by the Ninth Circuit on the Contracts and Due Process clauses, but which also involves how local governments exercise the power of eminent domain.  The case revolves around Chapter 38 of the Honolulu Revised Ordinances, which was the local version of the “land reform act” at issue in HawaiiHous. Auth. v. Midkiff, 467 U.S. 229 (1984) before it was repealed in 2005.

Background

Finding thatthe economic ills purportedly caused by the concentrated ownership of privatesingle-family residential property in Hawaii,Haw. Rev. Stat. ch. 516 allowed homeowner/lessees to petition the HawaiiHousing Authority to exercise eminent domain on the homeowner’s behalf andcondemn the fee simple interest underneath their homes from the lessor, andtransfer it to the lessee upon payment of just compensation.

After that statute was upheld by the U.S.

Continue Reading Deal Or No Deal: Ninth Circuit Says Honolulu May Have to Live Up to Its Eminent Domain Promises

Thanks to Patty Salkin’s Law of the Land blog for summarizing the recent Supreme Court of Nevada opinion in Hsu v. County of Clark, No. 46461 (Dec. 27, 2007).  Read Professor Salkin’s summary or the opinion itself for the complete details, but these are the facts in a nutshell:

The county enacted building height restrictions on property around the Las Vegas airport.  A property owners within the zone brought an inverse condemnation action, asserting the height restriction imposed a physical occupation of their airspace, and that the ordinance was a per se regulatory taking.  In an unpublished order, the Nevada Supreme Court held that a per se taking did not occur, and that the applicable analysis was under the Penn Central test [Penn Central Trans. Co. v. City of New York, 438 U.S. 104 (1978)].  On remand, the trial court dismissed, and the property owner again appealed.…

Continue Reading Nevada SCT: Upon Further Review, It’s a Per Se Regulatory Taking

After Lingle v. Chevron, U.S.A., Inc., 544 U.S. 528 (2005)informed us that the “substantially advance a legitimate state interest”test was one of substantive due process, not regulatory takings, the courts began revisiting the long-neglected topic of substantive due process in the land use context. 

  • The Ninth Circuit finally jettisoned the Armendariz v. Penman, 75 F.3d 1311 (9th Cir. 1996) (en banc) doctrine in Crown Point Development, Inc. v. City of Sun Valley, 506 F.3d 851 (9th Cir. Nov. 1, 2007).  Armendariz stood for the unusual proposition that a propertyowner’s claim for violations of substantive due process rights were”subsumed” within the owner’s claim for violation of the TakingsClause.  Thus, in land-related issues, a property owner could onlybring takings claims.  No longer, as I wrote here.

…
Continue Reading 2007 in Review: Taking Substantive Due Process Seriously Again

A round up of posts of possible interest to readers:

The 18-page lawsuit names as defendants thecounty of Kaua‘i, the Planning Commission, and the Planning Departmentand its director. It asks for the Koloa Creekside Estates project to befound exempt from the Koloa-Po‘ipu-Kalaheo Development Plan and, ifnot, the imposed conditions to be declared unlawful.

Thedeveloper also opposes some requirements that it was previously willingto concede — such as a land dedication, impact fees and constructionschedule, the lawsuit states.

Attorneys argue in the case for automatic approval of the permits because the county failed to meet its own deadlines.

  • Jesse Souki at Hawaii Land Use Law blog digests HAWSCT’s latest water law decision,

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Continue Reading Land Use Round Up

These seemingly unrelated court decisions were tied together with a common thread: private agreements for the most part are not substitutes for public processes, whether it is eminent domain, rezoning, or the granting of permits.   

Several courts determined that agreements in which government agreed with private parties to exercise eminent domain were invalid: 

  • One case (in which I am involved as counsel for the property owners so won’t comment in detail) involved a development agreement between the County of Hawaii and a developer to take property for a road.  The trial court struck down the attempt — here is the court’s Findings of Fact and Conclusions of Law.  More on the case here.
  • In a similar vein, a Washington state court of appeals in HTK Mgm’t, L.L.C. v. Rokan Partners, No. 58113-9-I (Wash. Ct. App., July 23, 2007) held that eminent domain “is an inherent power

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Continue Reading 2007 in Review: Private Agreements and Public Process

Government Gone Wild: the sad case of Wilkie v. Robbins. In perhaps the low point of 2007, the U.S. Supreme Court held that alandowner who was subject to systematic harassment by governmentofficials because he had the temerity to refuse to give up a publiceasement on his land without just compensation did not have acomprehensive federal remedy.

Details of the case here, and an op-ed I wrote about the decision for the Honolulu Advertiser, “Little-noticed decision erodes property rights,” is posted here.Continue Reading 2007 in Review: Government Gone Wild

The Wall Street Journal details impact fee issues in “Rising Use of ‘Impact’ Fees Rankles New-Home Buyers,” with some truly horrific examples, including one couple whom a California city demanded pay a $240,000 fee to get building permits to construct a rural home valued at $500,000, and homeowners who were required to sign away their first amendment rights as a condition of obtaining a permit.  Worth a read.

Exactions are not limited to demands for cash.  For example, the County of Maui imposes a 40% – 50% “affordable” requirement on new housing developments.  See this post for more. Continue Reading Wall St. Journal on Impact Fees and Exactions