Regulatory takings

Subscribe to Regulatory takings via RSS

In Building Industry Ass’n of Central California v. County of Stanislaus, No. F058826 (Nov. 29, 2010), the California Court of Appeal (Fifth District) concluded that the County’s Farmland Mitigation Program — which requires property owners to dedicate or acquire perpetual agricultural conservation easements in a 1-to1 ratio as a condition of obtaining development approvals or permits — was not facially invalid.

The trial court had invalidated the FMP on its face because the County “failed to provide sufficient evidence to demonstrate a reasonable relationship between the exactions requires under the FMP and any adverse public impacts resulting form the new applications to change … to ‘residential’ uses,” but the Court of Appeal concluded that the burden was not on the County to show the FMP bears a rational relationship to farmland loss, but on the plaintiff BIA to show the FMP bears no reasonable relationship. Slip op. at 9.…

Continue Reading Cal Ct App: Farmland Mitigation Exaction Has Nexus And Proportionality

At 10:00 a.m. HST (3 p.m. EST, noon PST), the Hawaii Intermediate Court of Appeals will hear oral arguments in a case we’ve been following that involves federal regulatory takings claims, Williamson County ripeness, the practical effect of the Hawaii Supreme Court’s decision in GATRI v. Blane, 88 Haw. 108, 962 P.2d 367 (1998) regarding zoning and planning for land in the Special Management Area.

Leone v. County of Maui, No. 2969 is a case that has U.S. Supreme Court potential if the Hawaii courts don’t get it right and is definitely one to watch.

We will be live blogging the arguments starting at about 9:55 a.m. Joining me will be my Damon Key colleague Mark Murakami. We will post a full summary of the case and a set of the briefs before then.

Disclosure: we filed an amicus brief supporting the property owners in this case, available…

Continue Reading 12/8/2010 Oral Argument Live Blog: Must A Property Owner Seek To Change The Law To Ripen A Federal Regulatory Takings Claim?

The week before last, the Hawaii State Bar Association’s Real Property and Financial Services Section held a session on recent developments in land use law of interest to local dirt lawyers.

We were not able to attend (we were teaching a seminar on water law), but our Damon Key colleagues Mark Murakami, Greg Kugle (who Chairs the Section), and Ken Kupchak were able to go, and reported that the following decisions were discussed and debated:

  • County of Hawaii v. Ala Loop Homeowners, No. 27707 (July 9, 2010). In that case, the Hawaii Supreme Court concluded that state zoning statutes are “environmental laws” as defined in the Hawaii Constitution, and therefore a private right of action exists. We suggested that

…
Continue Reading Land Use And Takings Cases Discussed At The HSBA Real Property Session

Last Friday, I was on the faculty of Integrating Water Law and Land Use Planning, a seminar on Hawaii’s unique water law.

My session covered “Water Rights, Property Rights and the Law of Settled Expectations,” and provided a crash course in Hawaii land use law, the interrelationship between land use law and water law, and the limitations of the public trust doctrine.

Hawaii Water Law And The Law Of Settled Expectations

Other sessions included “Hawaiian Water Rights – Where Culture and the Law Merge,” “Amendments to the Instream Flow Standards in East and West Maui,” and “County of Hawaii Water Use and Development Plan.” Also on the faculty were my Damon Key colleague Christi-Anne Kudo Chock; Dr. Lawrence Miike, Commissioner on the State Commission on Water Resource Management; and Lawrence Beck, Civil Engineer with the County of Hawaii Department of Water Supply. Dr.

Continue Reading Materials And Links From “Integrating Water Law and Land Use Planning” Seminar

Still not have your MCLE hours for 2010? Will you be in or near Plano, Texas on December 2 and 3, 2010? Want to attend a conference at which the top minds in planning, zoning and eminent domain law are speaking?

Well, you’re in luck. There’s still time to register for Planning, Zoning and Eminent Domain, sponsored by the Center for American and International Law.

It wasn’t overstatement when we said that this one has the big names: among those speaking are Dwight Merriam, Gideon Kanner, Robert Freilich, Bruce Kramer, Mike Berger, and Dan Mandelker. And that’s only a partial list of the luminaries. Dwight will also be announcing the 2010 ZiPLer Awards. We’ve been holding our breath on that one, since we nominated a case for one of the prizes.

Unfortunately, we can’t make it this year. But we’ve attended this conference before, and it’s…

Continue Reading Upcoming Seminar: Planning, Zoning & Eminent Domain (Dec. 2-3, 2010)

We use “takings,” “Takings Clause” and “Fifth Amendment rights” as a convenient shorthand for the right of property owners to object or obtain compensation when a government act has so interefered with their rights that it might as well have exercised eminent domain. Every now and then, we need a reminder that the Takings Clause of the U.S. Constitution’s Fifth Amendment is not necessarily the last line of defense for property owners.

Today, in Interstate Companies, Inc v. City of Bloomington, No. A10-481 (Nov. 9, 2010), the Minnesota Court of Appeals provided the nudge. In that case, the court held that the Minnesota Constitution’s takings clause provides “broader protection to property owners than the federal constitution.” Slip op. at 6. The text of Minnesota Constitution is broader than the Fifth Amendment in that it provides that “[p]rivate property shall not be taken, destroyed or damaged for public use without…

Continue Reading Min App: Minnesota Constitution’s Takings Clause Provides Greater Protection For Property Owners

Last week, the U.S. Supreme Court heard oral arguments in United States v. Tohono O’odham Nation, No. 09-846 (cert. granted Apr. 19, 2010), the case involving the scope of the Court of Federal Claims’ subject matter jurisdiction. The transcript of the argument  is posted here, and in a new feature, the Court has also released the audio recording (28mb mp3) in case you want to follow along, or just put in on your podcast list and listen to it on the way to work on Monday. 

Disclosure: we filed an amicus brief supporting the Tohono O’odham Nation.

At the heart of the case is 28 U.S.C. § 1500 which provides:

The United States Court of Federal Claims shall not have jurisdiction of any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United …

Continue Reading SCOTUS Oral Argument Recording And Transcript In CFC Jurisdiction Case

Just in: the Texas Supreme Court has issued an opinion in Severance v. Patterson, No. 09-0378 (Nov. 5, 2010). In that case, the court ruled on “whether private beachfront properties on Galveston Island’s West Beach are impressed with a right of public use under Texas law without proof of an easement” when an avulsive event causes dramatic changes to a beach. Slip op. at 2.

The court concluded no, and answered these questions which were certified by the Fifth Circuit:

  • Does Texas recognize a “rolling” public beachfront access easement, i.e., an easement in favor of the public that allows access to and use of the beaches on the Gulf of Mexico, the boundary of which easement migrates solely according to naturally caused changes in the location of the vegetation line, without proof of prescription, dedication or customary rights in the property so occupied?
  • If Texas recognizes such an easement,

…
Continue Reading Texas: Public’s Beachfront Easement Does Not “Roll” With The Vegetation Line

The U.S. Supreme Court has declined to review Maunalua Bay Beach Ohana 28 v. State of Hawaii, 122 Haw. 34, 222 P.3d 441 (Haw. Ct. App. 2009). That’s the case in which the Hawaii Intermediate Court of Appeals concluded that ownership of beachfront property includes only a partial right to accreted land.

The ICA held that held that “Act 73” (codifed here and here), the statute in which the Hawaii legislature redefined accretion as public property was a taking of existing accreted land, but held that Act 73 did not affect a taking of what it called “future” accretion, because the right is simply a contingent future interest and not a “vested” right. The Hawaii Supreme Court denied discretionary review.

Under the ICA’s view of “unvested future interests,” the legislature would be free to enact a statute abolishing the right to pass property to one’s heirs at death…

Continue Reading Cert Denied In Hawaii Beach Taking Case

Slough Remember that now-iconic scene in The Fugitive, where Harrison Ford’s character has turned the tables on Tommy Lee Jones, and while holding Jones at gunpoint proclaims, “I didn’t kill my wife!”

Jones’ response — “I don’t care!“ — could just as easily apply to regulatory takings law, especially where a property owner alleges a regulatory action results in a per se taking (either a Lucas interference with all economically beneficial use, or a deprivation of a fundamental aspect of property such as the right to exclude).

In those cases, it generally does not matter what justifications the government may have for the regulation — the only thing relevant is the impact of the regulation on the property. In other words, even a regulatory action that might be a very good idea (from the government’s perspective) results in liability for compensation if it results in a taking…

Continue Reading Wash. App: “I Don’t Care!” – Regulatory Takings Are About Impact, Not Justification