Regulatory takings

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A very important decision today from the US Court of Appeals for the Federal Circuit.  In Casitas Municipal Water District v. United States, No. 2007-5153 (Sep. 25, 2008), the court held that contractual water rights were taken when the federal government required the landowner to contruct a fish ladder and divert water in order to protect endangered steelhead trout.  The court held that the requirement resulted in a physical diversion of water for public use, and that “Casitas will never, at the end of any period of time, be able to get the water back.  The character of the government action was a physical diversion for public use — the protection of an endangered species.” Slip op. at 30. 

More to follow after a chance to review the opinion in more detail.  Continue Reading Federal Circuit: Government Diversion of Water For Fish Ladder is Per Se Taking

“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

The US District Court for the District of Hawaii has granted (in part) the County of Maui’s motion for reconsideration of the court’s earlier order granting in part and denying in partthe County’s summary judgment motion.  Here’s a copy of the court’s latest order.

The court entered summary judgment in favor of the county on the plaintiff’s facial equal protection and facial due process claims, and allowed the “class of one” equal protection claim, and the as-applied equal protection and due process claims to proceed. 

The case involves a Maui property owner’s challenge to the County’s “workforce housing” exaction ordinance, which requires aproperty owner to commit 40% to 50% of the unitsin most new housing developments to below-market-rate ownership orrental.  Kamaole Pointe Development LP v. County of Maui, No. 07-00447 DAE.  The plaintiff challenged theordinance under the Nollan/Dolan doctrine of unconstitutional exactions, which requires the…

Continue Reading Court Strikes Facial Due Process and Equal Protection Claims in Maui Affordable Housing Exaction Case

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

In Action Apartment Ass’n v. City of Santa Monica, No. B201176 (Aug. 28, 2008), the California Court of Appeal (Second District) denied a facial challenge to the city of Santa Monica’s affordable housing exaction ordinance.  The court relied upon the legislative/adjudicative distinction holding that Nollan/Dolan analysis is only applicable to individual decisions regarding permit applications, and cannot be used to challenge legislative decisions generally applicable. 

More about the case after a chance to digest it. The court’s opinion is available here.Continue Reading California Court Rejects Facial Nollan/Dolan Claim to Affordable Housing Exaction

In Shanks v. Byrd, No. 06-35665 (Aug. 27, 2008), the Ninth Circuit held that a municipality’s alleged failure to enforce its zoning laws was not a violation of the Fourteenth Amendment.

Developers who convert homes into student residents apparently did not obtain all of the appropriate permits from Spokane, Washington to remodel a portion of a house in the city’s Mission Avenue Historic District.  The city issued a building permit, but the Spokane zoning code requires additional permissions when historic landmarks are involved, and the developers did not seek or obtain a “certificate of appropriateness” or an “administrative special permit” from the city’s Historic Landmark Commission.  The city did not object, and took no steps to require the permits.

A group of neighbors and community organizations sued the property owners and the city, alleging the city’s failure to enforce the zoning code was a violation of their due process…

Continue Reading Ninth Circuit: City’s (Alleged) Failure to Enforce the Zoning Code Is Not A Substantive Due Process Violation (Oh, And Armendariz is Still Overruled)

The property owners have asked the U.S. Supreme Court to review the Sixth Circuit’s decision in Braun v. Ann Arbor Charter Township, 519 F.3d 564 (6th Cir. 2008), a decision we analyzed here. 

The cert petition contains three Questions Presented:

1.     Should the Court overrule Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City insofar as it requires property owners to seek compensation in state court to ripen a federal takings claim, where four justices of this Court declared in San Remo Hotel v. City and County of San Francisco that such a rule is “mistaken” due to its lack of doctrinal underpinning and preclusive effect on federal jurisdiction?

2.     Is a property owner barred from bringing a procedural due process claim against a defective land use hearing simply because the owner also raised a regulatory takings claim subject to Williamson County, as the Sixth…

Continue Reading Cert Petition Asks Supreme Court to Overrule Williamson County

In a 2-1 decision applying California law, the U.S. Court of Appeals for the Ninth Circuit held in United Brotherhood of Carpenters and Joiners of America Local 848 v. National Labor Relations Bd., No. 05-75295 (Aug. 25, 2008), held that six rules applied by shopping centers to restrict picketing and handbilling by union members violated the state constitution’s free speech clause, and therefore impermissibly interfered with protected union activity.

This case is the latest chapter in that sub-genre of land use cases dealing with the speech rights at shopping centers that last reached the Supreme Court in memorably-captioned PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980).  Generally speaking, you have no First Amendment rights on private property, but shopping centers have become — for better or worse — modern-day venues for speech, and the issue keeps being raised. 

In PruneYard, the California Supreme Court came down…

Continue Reading Ninth Circuit: Unions Have Right Under California Constitution to Picket and Handbill in Shopping Centers

New filings in the federal district court litigation challenging the County of Maui’s “workforce housing” ordinance.  Enacted in 2006, the Maui ordinance imposes a 40% to 50% affordable requirement on most development, including the subdivision of land.  A property owner subject to this exaction challenged the ordinance under the Nollan/Dolan doctrine of unconstitutional exactions, which requires the governmentto show a substantial nexus between the exaction and some problemcaused by the property owner before the government may demand tributeas a condition of development.  The exaction must also be roughlyproportional to the problem. 

In July 2008, the court held that the plaintiff’s Nollan/Dolan claims are takings claims that are not ripe under Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985).  The district court’s lengthy opinionheld that despite labeling its claim as one under the “unconstitutionalconditions doctrine,” the claim was a facial takings…

Continue Reading Latest Developments in Maui Affordable Housing Exaction Case

So the federal government tells you that the device you are making is not a “machine gun” and you go ahead and start to manufacture them.  Times change, though, and three years later “upon further review” (as they say in the NFL), the government tells you that the device is is an illegal “machine gun” and that you can’t sell it to anyone but law enforcement agencies.

In Akins v. United States, No. 08-136C (July 24, 2008), the Court of Federal Claims dismissed a claim that the government’s reversal of position amounted to a taking of property without compensation. 

The plaintiff had obtained a patent from the U.S. Patent and Trademark Office for a device to increase the rate as which a semi-automatic rifle fires.  (Go here to view the patent.)  In other words, it would make a rifle shoot faster.  The Bureau of Alcohol, Tobacco, Firearms and Explosives…

Continue Reading Three Times The Pain, And Your Own Self To Blame*