Regulatory takings

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Here is what the ripeness requirements of Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985) have brought us: a seemingly endless procedural game where property owners are forced to keep guessing which shell the pea is under, all the while paying their attorneys to litigate matters having nothing to do with the question of whether a local government’s regulations have gone “too far.”  The latest example is West Linn Corporate Park, LLC v. City of West Linn, Nos. 05-36061, 05-46062 (9th Cir. July 28, 2008), a case in which the Ninth Circuit, after removal from state court and trial in federal court, referred the takings issues in the case to the Oregon Supreme Court, effectively handing off the decision in the case to that court. 

Like a good plaintiff is supposed to do under Williamson County, West Linn Corporate Park (WLCP) began this…

Continue Reading Takings Claim Goes From State Court To Federal Court, And Now Back To State Court

The property owner has filed its brief in oppositionto the County of Maui’s motion for reconsideration of the court’s recent decision in the federal court challenge to the County’s 40-50% affordable housing exaction, Kamaole Pointe Development LP v. County of Maui, No. 07-00447 DAE.  We wrote about the case earlier here (contains a link to the complaint), and analyzed the legal problems with the ordinance under state law here.Continue Reading Opposition To Reconsideration Motion In Maui Affordable Housing Exaction Case

The County of Maui has asked the federal court to reconsider its recent order granting in part and denying in part the County’s summary judgment motion.  A Maui property owner challenged the County’s “workforce housing” exaction ordinance, which requires a property 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 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, and that the exaction is roughly proportional to the problem.

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.

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In D & D Land Holdings v. United States, No. 06-877L (filed under seal: June 25, 2008, reissued: June 30, 2008), the Court of Federal Claims held the landowner’s claim that the Border Patrol’s activities on its land resulted in a compensable Fifth Amendment taking was not barred by the six-year statute of limitations, and that the landowner had a property right to keep Border Patrol agents off its property.  The CFC denied the federal government’s motions to dismiss and for summary judgment. The court summarized the plaintiff’s complaint:

[P]laintiff claims that defendant’s construction of a border fence between the United States and Mexico resulted in the channeling of illegal immigrants onto its property “where they can be rounded up, arrested, and deported.”  According to plaintiff, Border Patrol agents utilize its property for these purposes on an “almost daily” basis.

Slip op. at 1 (citiation omitted).  The most interesting…

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Relying on Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985), the US District Court for the District of Hawaii today denied a property owner’s motion for summary judgment in a case challenging the County of Maui’s “workforce housing” exaction ordinance.  Kamaole Pointe Development LP v. County of Maui, No. 07-00447 DAE.

The ordinance requires a property owner to commit 40% to 50% of the units in most new housing developments to below-market-rate ownership or rental.  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.  See this post for more on the nexus analysis.

I posted on the…

Continue Reading Nollan/Dolan Challenge to Maui’s 50% Housing Exaction Is A Takings Claim Subject To Williamson County

I’ve finally had a chance to read the article posted on SSRN by Professor Laurence Tribe about the Supreme Court’s decision in Wilkie v. Robbins, 127 S. Ct. 2588 (2007), “Death by a Thousand Cuts: Constitutional Wrongs without Remedies after Wilkie v. Robbins.” 

The essay explores the incentives createdby Wilkie v. Robbins for intentional circumvention of the Takings andJust Compensation Clauses by federal agents and addresses the dangersthereby created for any meaningful protection of private propertysought by the Federal Government, as well as the dangers created forthe meaningful protection of other constitutional rights againstdeliberate erosion by federal agents.

I posted a summary of the case here, and published an op–ed in the Honolulu Advertiser about the decision.Continue Reading Professor Tribe on Wilkie v. Robbins: Death by a Thousand Cuts

The speed of information on the internet sure is fast.  I was preparing a post summarizing the recent Court of Federal Claims decision in Estate of Hage v. United States,No. 91-1470L (May 6, 2008), which awarded Nevadaproperty owners several million dollars in just compensation for the taking of theirvested water rights by the federal government, but Professor Gideon Kanner and the Real Estate and Construction Law Blog both beat me to the punch.

Kanner’s commentary on the case, “Posthumous Victory for Hage” is posted here. “Federal Claims Court Awards $4.2M to Ranchers’ Estate for Taking of Water Rights” is posted here.

Read the CFC’s opinion here.Continue Reading Court of Federal Claims Awards Compensation for Taking of Vested Water Rights

The property owner has filed a Petition for Rehearing and Suggestion for Rehearing En Banc in AmeriSource Corp. v. United States,No. 07-1521 (Fed. Cir. May 1, 2008). 

In that case, the Federal Circuit held that when an innocent party’sproperty is seized for use in a criminal prosecution but never used as evidence, no FifthAmendment taking has occurred even though the property was rendered valueless during the time the government possessed it.  The government seized a largequantity of legal prescription drugs in its investigationof a pharmacy but never used the drugs as evidence.  Although the drugs were eventually returned to the owner, they had expired in the interim.

The Federal Circuit agreed with the government’s argument that it would be impractical to hamper prosecutorial efforts by a requirement that the owner of the evidence must be compensated.  Yes, paying for property seized as evidence may force the government to think…

Continue Reading Federal Circuit En Banc Petition in AmeriSource

Keep an eye out on June 19, 2008: that’s the date the US Supreme Court will consider whether to grant review of the Ninth Circuit’s decision in Vacation Village, Inc. v. Clark County, No. 05-16173 (July 23, 2007), a decision I blogged about here.  The issue in that case, as posed by the petitioner is:

Whether a State’s recognition and constitutional protection of an unqualified compensable ownership interest in 500 feet of navigable airspace above a landowner’s property is preempted by federal laws that confer on the federal government “exclusive sovereignty” over the navigable airspace of the United States and grant the public the fight to traverse navigable airspace less than 500 feet above ground level to ensure safe takeoffs and landings of aircraft.

Clark County, Nevada imposes a height restriction on structures near McCarran Airport in Las Vegas, While the Ninth Circuit held there was no regulatory…

Continue Reading Cert Petition Asks: Is There A Federal Avigational Servitude?

My colleague Mark Murakami posted a link to a recent newspaper article about lateral beach access; that article spurred the Star-Bulletin editorial “State upholding public policy in Kahala beach access issue.”  It seems that vegetation growing on private property is moving — either on its own or with help — makai (towards the ocean), thus crowding onto the public beach.  The editorial rightly recognizes:

Sooner or later, vegetation and waves converge, preventing people frommoving laterally along public land, which law defines as the highestwash of waves at high tide during the highest surf season, “usuallyevidenced by the edge of vegetation or by the line of debris left bythe wash of the waves.”

As I detailed in this post, the above is a correct statement of law; unlike jurisdictions that define the public-private boundary on beaches as the mean high water mark, Hawaii law says all beaches are…

Continue Reading Shoreline Boundaries And Shoreline Setbacks