Regulatory takings

Subscribe to Regulatory takings via RSS

Zplr_p1 The Zoning and Planning Law Report (Thomson | West) has published my article about the post-Lingle developments in substantive due process in the Ninth Circuit. Download a pdf of the article here.

From the introduction:

Substantive due process asserted as a claim for relief has a whiff of danger about it. After all, a plaintiff claiming a violation of substantive due process is asking a court to override the judgment of the political branches and invalidate an ordinance, statute, or an administrative determination because the action is somehow illegitimate. After the demise of Lochner, courts are understandably reluctant to be seen as second-guessing the policy choices made by the elected branches of government, and a suggestion that a court is “Lochnering”—legislating from the bench by invalidating economic regulations based on a judge’s contrary economic or social beliefs—can be the equivalent of judicial kryptonite.

In…

Continue Reading New Article: The Ninth Circuit Rediscovers Substantive Due Process In Land Use Cases

Section 30010 of California’s Public Resource Code provides that the California Coastal Commission may grant a development permit that otherwise could not be granted in order to avoid a taking:

The Legislature hereby finds and declares that this division is not intended, and shall not be construed as authorizing the commission, port governing body, or local government acting pursuant to this division to exercise their power to grant or deny a permit in a manner which will take or damage private property for public use, without the payment of just compensation therefor. 

In a lengthy (51 page) opinion, the California District Court of Appeal (Sixth District) in McAllister v. California Coastal Comm’n, No. H031283 (Cal. Ct. App. Dec. 30, 2008) held that this statute requires the Coastal Commission to make specific findings that denying a coastal development permit would result in a taking. As summarized by the court:

The…

Continue Reading Cal. Court of Appeals: No Record And No Findings By Coastal Commission = No Consideration

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)

When the case is captioned “Jerry McGuire v. United States,” and involves an inverse condemnation claim seeking compensation from the government, how could anyone resist making a reference to Jerry Maguire, the 1996 Cameron Crowe film that added “show me the money” to the lexicon?  I couldn’t, nor, apparently, could others.

In McGuire v. United States, No. 06-15812 (9th Cir. Dec. 24, 2008), the government might have to show Jerry the money, but not in a district court. The Ninth Circuit held that an inverse condemnation claim brought by McGuire against the federal government (the Bureau of Indian Affairs) for removing a bridge connecting two parcels of land that he leased from the Colorado Indian River Tribe, could only be heard in the Court of Federal Claims.

Williamson County Final Decision

After the bridge was removed, McGuire filed for bankruptcy protection, and brought…

Continue Reading Show Me The Money (In The Court of Federal Claims), Williamson County Ripeness, And A Possible Circuit Split

Why does inversecondemnation.com, a blog about land use issues, care about Hawaii Insurers Council v. Lingle, No. 27840 (Haw. Dec. 18, 2008) enough to have posted about it, you ask?  The case involved whether the State of Hawaii Insurance Commissioner could collect fees from insurance companies, and whether the state legislature could thereafter transfer the money collected into the general fund. The short answer by the Hawaii Supreme Court is that the collection of the fees were proper “regulatory fees,” but that the legislative transfer was an unconstitutional violation of the separation of powers. Not exactly typical land use law fare.

But here’s the interesting part. The Hawaii Insurers case analyzed State v. Medeiros, 89 Haw. 361, 973 P.3d 736 (1999), which set forth the test for when a charge imposed by an administrative agency pursuant to the state’s police powers is valid, and when it crosses…

Continue Reading Of Taxes, Exactions, User Fees, and Regulatory Fees

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

Let me make sure I am understanding this properly: a property owner does the right thing under the rules of Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), and brings her federal regulatory takings/inverse condemnation claim in state court because its not yet ripe in federal court, but the city removes the case to federal court on the basis of “arising under” jurisdiction (in other words, the case could have been brought in federal court in the first instance), and then moves to dismiss the federal claim on the basis that it’s not ripe in federal court, and both the district court and the court of appeals don’t bat an eye?

That’s my read of one of the issues in Snaza v. City of St. Paul, No. 08-1604 (8th Cir. Dec. 12, 2008), where the court held:

Snaza brought this action…

Continue Reading Procedural Chutzpah: Williamson County in Action

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