Regulatory takings

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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

California, if you weren’t already aware, produces raisins. Lots of raisins. It accounts for 99.5% of the U.S. crop and 40% of the world crop.

Since the 1920’s, supply has exceeded demand by 30 to 50 percent. Since the 1940’s, the USDA has regulated the raisin industry to even out the fluctuation in supplies and prices by creating “annual reserve pools” that remove extra raisins from the market. Those regulations, in the form of “marketing orders,” require raisin “handlers” (those who process and pack agricultural goods for distribution) to set aside a certain percentage of raisins from the domestic open market, upon pain of civil and criminal penalties if they do not. The reserve raisins can only be sold for resale in export or secondary markets, with the proceeds used to pay for administration of the regulatory program (naturally), and any balance being distributed among raisin “producers.”

In Horne …

Continue Reading 9th Cir: California Raisins Were Not Taken

In Edwards v. City of Jonesboro, No. 10-2405 (July 14, 2011), the U.S. Court of Appeals for the Eighth Circuit held that a takings claim brought in federal court after the property owner prevailed on the same claim in state court was not barred by the Rooker-Feldman doctrine, but that the state court judgment was final and precluded relitigation of the owner’s federal claims.

Methane gas, released by decomposing waste in the the city’s landfill, invaded adjacent land, rendering it undevelopable, so the owner sued the city. He filed an action in state court; alleging violations of his rights under state law (inverse condemnation, trespass, violations of the state constitution, and the like), and under federal law (takings, etc). With his third amended complaint, however, he filed an England reservation, withholding his federal claims from resolution in state court.

After a trial, the state court ordered the city…

Continue Reading 8th Cir: No Rooker-Feldman, But San Remo Hotel Precludes Federal Takings Claim

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)?

Today’s Ninth Circuit opinion in Vandevere v. Lloyd, No. 09-35957 (July 11, 2011), raises a couple of interesting questions having little to do with the merits of whether Alaska’s commercial fishing regulations worked a taking or a due process violation because they shortened the fishing season and limited the number of fish that can be harvested under the plaintiff’s entry permits and fishery leases.

First of all, what’s the Ninth Circuit doing reviewing a federal takings claim at all? As we’ve discussed repeatedly (most recently here), we thought that under Williamson County, federal courts could only review takings claims for compensation after a property owner has sought (and been denied) compensation in state procedures, which include an inverse condemnation claim in state court. A search of the Vandevere opinion reveals no citation to Williamson County. But check out page 9226 of the slip opinion, which references…

Continue Reading Judicial Takings Overtones In The Ninth Circuit

Yesterday, we reported on the South Carolina Supreme Court’s opinion in Brown v. Howard, No. 26991 (S.C. June 21, 2011), holding that “the Takings Clause of the Fifth Amendment to the United States Constitution is implicated when an attorney is appointed by the court to represent an indigent litigant. In such circumstances, the attorney’s services constitute property entitling the attorney to just compensation.”

The opinion is generating some buzz (see the Legal Profession blog and John Blackman’s blog), so we thought we’d post the South Carolina Bar’s amicus brief since the opinion focused on the Bar’s arguments:

The South Carolina Bar appears Amicus Curiae. The Bar contends that the appointment of attorneys to represent indigent litigants implicates the Takings Clause of the Fifth Amendment to the United States Constitution. See U.S. Const. amend. V (“[N]or shall private property be taken for public use without just compensation.”). We agree…

Continue Reading Amicus Brief In S. Carolina Case: “The State may not require a lawyer to spend office overhead or render his services on an appointed case without providing just compensation.”

We hold today that the Takings Clause of the Fifth Amendment to the United States Constitution is implicated when an attorney is appointed by the court to represent an indigent litigant. In such circumstances, the attorney’s services constitute property entitling the attorney to just compensation.

Brown v. Howard, No. 26991 (S.C. June 21, 2011).*

Brown was appointed as defense counsel in a case in which Howard was charged with serious felonies “including first degree criminal sexual conduct, two counts of kidnapping, two courts of armed robbery, and possession of a weapon during the commission of a crime.” South Carolina law limits attorneys fees in indigent criminal defense matters to $3,500, S.C. Code Ann. §17-3-50(A), and Brown asked the court to withdraw, “stating that his obligations to an appointed capital case were taking up substantial amounts of time.”

The court declined Brown’s repeated “belligerent” requests. When Brown refused to…

Continue Reading South Carolina: “Court-Appointed Attorneys’ Service Is Property For Purposes Of The Takings Clause”

“Hard cases make bad law” goes the cliché.* But in the case of the Williamson County ripeness requirement in federal takings cases, the bad law is an entirely self-inflicted wound and cannot be blamed on lousy facts or hard cases. Others have done a much better job of deconstructing Williamson County‘s faulty history and rationale and the “bad law” the opinion has wrought (see here and here for examples), but we’ve taken our share of shots too.

But for an example of Williamson County unfairness, look no further than the case behind this order entered by the U.S. District Court for the Eastern District of Michgan in Oakland 40, LLC v. City of South Lyon, No. 10-14456 (May 18, 2011).

The case started out as a rather typical land use dispute, with a property owner who wanted to use its industrial zoned land for homes, and who…

Continue Reading Williamson County: An Absurdity Wrapped In A Fallacy Inside A Contradiction

Civil Beat‘s recent report on the mayor’s plan to demolish the Waikiki Natatorium War Memorial, a salt-water swimming pool erected to honor those who served in “the Great War,” not only brought back some childhood memories (I swam there as a kid) but reminded us of the cost of preservation. When the thing or property sought to be preserved  — or, to use the bumper-sticker vernacular, “saved” — is public property like the Natatorium, the discussion usually involves the cost of doing so balanced against the desire to keep it.

But when the property involved is private property, you usually hear very little about the burdens placed on the owner, or the cost to the public of preservation. Which brings us to the tile of this post, which was inspired by a recent column by Howard Dicus “What do you want to save in Honolulu that’s old?…

Continue Reading What Do You Want To Save In Honolulu (And How Much Will It Cost?)

We don’t usually cover unpublished decisions. They are usually cryptic, and depending on local court rules, can’t be cited. But as we explained before, there are exceptions. The Ninth Circuit’s memorandum decision in Molony v. Crook County, No. 09-35624 (May 27, 2011) is one that raises some interesting issues.

First, what’s a takings claim doing in federal court? Like another recent opinion from the Seventh Circuit, the opinion notes it is a “state-law taking claim” meaning that the district court’s jurisdiction was based either on diversity (in which case, the court could consider stand-alone state law claims), or on the presence of a federal question (in which case, the court has the discretion to consider “supplemental” state law claims — what we used to call “pendent” or “ancillary” jurisdiction). We’re not sure which applied here, but the jurisdictional basis is worth noting since it may reveal a…

Continue Reading 9th Circuit (Unpublished): State Taking Claim Ripe, No Economic Use