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There have now been a total of five briefs amicus curiae filed supporting the petition for writ of certiorari in Charles A. Pratt Construction Co. v. California Coastal Commission, No. 08-668 (cert. petition filed Nov. 18, 2008) (SCOTUS docket report here). 

We wrote here about the California Court of Appeal’s decision, reported at  76 Cal. Rptr. 2d 466 (slip opinion available here), the rehearing petition here, and the cert petition here.  The amicus briefs:

The Brief in Opposition of the California Coastal Commission is due January 16, 2009.Continue Reading More Amici Supporting Grant of Cert in Pratt (Penn Central and Williamson County)

Here is the brief amici curiae of the National Association of Home Builders, California Building Industry Association, Building Industry Association Legal Defense Foundation, and Home Builders Association of Northern California urging the U.S. Supreme Court to review the California Court of Appeal’s decision in Charles A. Pratt Const. Co. v. California Coastal Comm’n, 76 Cal. Rptr. 2d 466 (Cal. Ct. App. 2008) (slip opinion available here). 

We blogged about the lower court decision here, the rehearing petition here, and the cert petition here. We filed an amicus brief in the case, posted here.

The NAHB argues:

The increasingly complex structure of the land use regulatory system stands as an obstacle to housing development. Against this backdrop, the holdings of this Court in Penn Central Transportation Company v. City of New York, 438 U.S. 104 (1978) and Williamson County Regional Planning Commission v. Hamilton…

Continue Reading Further Amici Supporting Grant of Cert in Pratt (Penn Central and Williamson County)

Today, on behalf of the Western Manufactured Housing Communities Association, we (me and my Damon Key colleagues Christi-Anne Kudo Chock and Matt Evans) filed an amicus brief brief urging the U.S. Supreme Court to accept for review the California Court of Appeal’s decision in Charles A. Pratt Const. Co. v. California Coastal Comm’n, 76 Cal. Rptr. 2d 466 (Cal. Ct. App. 2008) (slip opinion available here).  Our brief is posted here.

We blogged about the lower court decision here, the rehearing petition here, and the cert petition here.

The two Questions Presented by the cert petition involve whether the ad hoc Penn Central test for whether government action effects a regulatory taking of property can be reduced to bright-line rules, and whether, under the Williamson County ripeness rules, a property owner must continue to pursue a a development application when the reviewing agency…

Continue Reading Our Amicus Brief in Pratt Construction Co. v. California Coastal Commission

When must a landowner challenge a land use regulation she claims illegally impact her property?  Talk to a lawyer, and they’re usually going to say that you should act sooner than later, and often the time limitations are very short. Under California law, for example, facial challenges to a zoning ordinance must be brought within 90 days of enactment:

Except as provided in subdivision (d), no action or proceeding shall be maintained in any of the following cases by any person unless the action or proceeding is commenced and service is made on the legislative body within 90 days after the legislative body’s decision:

. . . .

(B) To attack, review, set aside, void, or annul the decision of a legislative body to adopt or amend a zoning ordinance.

Cal. Gov’t Code § 65009(c)(1)(B). But what about when an ordinance is amended — does the enactment of a “new”…

Continue Reading Cal. Court of Appeals: Extension of Ordinance Allows New Inverse Condemnation Challenge

A panel of the Ninth Circuit has revised its earlier opinion in McClung v. City of Sumner, No. 07-35231 (Sep. 25, 2008), adding a footnote:

On slip Opinion page 13750, insert a new footnote 3 at the bottom of the page after the sentence that ends “. . . applies to Ordinance 1603.” (and renumber the subsequent footnotes) [page 15838 of the revised slip opinion]:

We observe that the ordinance before us concerns a permit condition designed to mitigate the adverse effects of the new development. New construction increases the burden on the City’s sewer system and increases the loss that might result from flooding. After experiencing considerable flooding, the City enacted Ordinance 1603 to require most new developments to include specified storm pipes. We are not confronted, therefore, with a legislative development condition designed to advance a wholly unrelated interest. We do not address whether Penn Central…

Continue Reading 9th Circuit: Revised Opinion in McClung v. City of Sumner

When four justices of the U.S. Supreme Court tell you that a case needs to be overruled, and district judges acknowledge the case “has led to a number of serious problems,” you know something is seriously wrong. Yes, we’re back to Williamson County.

In San Remo Hotel, L.P. v. City & County of San Francisco,545 U.S. 323 (2005) four Justices noted the ripeness rules of Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985) produce absurd results and deny federalcourt review of federal constitutional rights. Chief Justice Rehnquistwrote:

Finally, Williamson County‘sstate-litigation rule has created some real anomalies, justifying ourrevisiting the issue… I joined the opinion of the Court in Williamson County.But further reflection and experience lead me to think that thejustifications for its state-litigation requirement are suspect, whileits impact on takings plaintiffs is dramatic… In an appropriate…

Continue Reading New Cert Petition on Penn Central and (Yet Again) Williamson County

The New York Times posts the obituary of Dorothy Miner, a key player in the case that resulted in Penn Central Trans. Co. v. New York City, 438 U.S. 104 (1978),the U.S. Supreme Court case that gave us the three-part “ad hoc” regulatory takings test:

She played an important role in the critical 1978 case of PennCentral Transportation Company v. New York City, which upheld thelandmark status of Grand Central Terminal and set national precedents.

Intimatelyfamiliar with preservation law, Ms. Miner was meticulous when makingher case — another way to put it was that she was a fierce, immovablestickler — and could infuriate allies as well as adversaries with herinsistence on principle and procedure.

“We spent eight hoursarguing over every sentence,” Leonard Koerner, the chief assistantcorporation counsel of New York City, said in recalling what it waslike to work with Ms. Miner at the print shop on…

Continue Reading Key Player in Penn Central Case Obit

To those who attended the workshop at the University of Hawaii law school, Hawaii State Historic Preservation Laws: Reclaiming the Past, Shaping the Future, thank you.  Here are links to the cases I mentioned in my presentation.

  • Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), the case where the U.S. Supreme Court held that if a use restriction was part of the “background principles” of nuisance and property law applicable to the property at issue, it could insulate the government from takings liability even if the restriction resulted in a total diminution of economically beneficial uses.

…
Continue Reading Links From UH Historic Preservation Workshop

“This case presents an issue of first impression in this Circuit — whether a legislative, generally applicable development condition that does not require the owner to relinquish rights in the real property, as opposed to an adjudicative land-use exaction, should be reviewed pursuant to the ad hoc standards of Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978), or the nexus and proportionality standards of Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994). We affirm,holding that the Penn Central analysis applies to the 12-inchpipe requirement.” 

McClung v. City of Sumner, No. 07-35231 (Sep. 25, 2008), slip op. at 13744-45.  More, after a chance to review the opinion.Continue Reading Ninth Circuit: Legislative Exactions Not Subject to Nollan/Dolan

When a court labels the Nollan/Dolan line of decisions “so-called exaction cases” (and your claim is that an exaction is not related or proportional) you know right away you are in trouble.

First, the dry summary.  In Action Apartment Ass’n v. City of Santa Monica,No. B201176 (Aug. 28, 2008) (slip opinion available here), the California Court of Appeal (SecondDistrict) denied a facial challenge to the city of Santa Monica’saffordable housing exaction ordinance.  The court relied upon thelegislative/adjudicative distinction holding that Nollan/Dolananalysis is only applicable to individual decisions regarding permitapplications, and cannot be used to challenge legislative decisionsgenerally applicable.

Second, some background on “facial” challenges as contrasted with “as applied” challenges. A “facial” takings challenge to a statute or ordinance asserts thatits mere enactment is unconstitutional.  The U.S.Supreme Court recently explained the nature of facial challenges:

Under United States v. Salerno,481 U. S.

Continue Reading My So-Called Exaction Case: More on Action Apartment