Regulatory takings

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Thanks to Professor Patty Salkin for calling attention to a recent case from a Missouri federal court that provides a good (if that word can be used) illustration of the weird shell game that is played by the federal courts when it comes to regulatory takings claims, Reagan v. City of St. Louis, No. 4:07CV1487 (Jan. 31, 2008).

Reagan brought regulatory takings claims against the city for downzoning her land from industrial to residential, making her land unsuitable for her business.  Reagan filed suit against the city in state court, alleging that the city’s actions violated the federal takings and due process clauses, and the Missouri takings clause.  Prior to trial, Reagan dismissed the federal takings claim, presumably because she was trying to keep open the possibility of federal court review of the issue at some point in the future. 

In other words, the property owner did expressly did…

Continue Reading Williamson County Illustrated: You’re Either Too Early, or You’re Too Late

The Garden Island reports that the Kauai County Council is considering a ban on “gated communities” —

A stalled plan to ban gated communitiesshould return to County Council’s agenda by the end of February, MayorBryan Baptiste said yesterday. 
   
“It’s not a public safety issue to me,” he said. “It’s so we don’t isolate ourselves from each other.”

All I can say about the issue is, what about the right to excludeothers?  This may be the most fundamental “stick” in the bundle of rightsknown as property, and can’t be taken away by regulation, no matter how well-intentioned the regulation may be. 

After all, if you can’t keep others off your property, what have you got left?  According to the U.S. Supreme Court, nothing (except perhaps a per se regulatory takings claim).  As the Court held in Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987):

We have repeatedly…

Continue Reading The Right to Exclude Others From Gated Communities

Are rumors of the demise of the Ninth Circuit’s Armendariz doctrine greatly exaggerated, or is J.J. Hunsecker (Burt Lancaster)’s advice to Sidney Falco (Tony Curtis) in the noir classic Sweet Smell of Success more appropriate? 

What brings this to mind is the parting shot in the recently-issued opinion in Matsuda v. City and County of Honolulu, No. 06-15337 (Jan 14, 2008), where the Ninth Circuit panel — in a case involving a Contracts Clause claim which was brought together with a substantive due process claim — added:

Furthermore, we express no opinion as to whether our decision in Armendariz v. Penman,75 F.3d 1311 (9th Cir. 1996) (en banc), precludes the Lessees fromasserting a substantive due process claim in this case, where theContracts Clause provides a specific source of constitutionalprotection against the government conduct of which they complain.  Id. at 1318.

Slip op. at 411.  This looks like…

Continue Reading Amendariz: “You’re Dead Son. Get Yourself Buried.”

Thanks to Patty Salkin’s Law of the Land blog for summarizing the recent Supreme Court of Nevada opinion in Hsu v. County of Clark, No. 46461 (Dec. 27, 2007).  Read Professor Salkin’s summary or the opinion itself for the complete details, but these are the facts in a nutshell:

The county enacted building height restrictions on property around the Las Vegas airport.  A property owners within the zone brought an inverse condemnation action, asserting the height restriction imposed a physical occupation of their airspace, and that the ordinance was a per se regulatory taking.  In an unpublished order, the Nevada Supreme Court held that a per se taking did not occur, and that the applicable analysis was under the Penn Central test [Penn Central Trans. Co. v. City of New York, 438 U.S. 104 (1978)].  On remand, the trial court dismissed, and the property owner again appealed.…

Continue Reading Nevada SCT: Upon Further Review, It’s a Per Se Regulatory Taking

After Lingle v. Chevron, U.S.A., Inc., 544 U.S. 528 (2005)informed us that the “substantially advance a legitimate state interest”test was one of substantive due process, not regulatory takings, the courts began revisiting the long-neglected topic of substantive due process in the land use context. 

  • The Ninth Circuit finally jettisoned the Armendariz v. Penman, 75 F.3d 1311 (9th Cir. 1996) (en banc) doctrine in Crown Point Development, Inc. v. City of Sun Valley, 506 F.3d 851 (9th Cir. Nov. 1, 2007).  Armendariz stood for the unusual proposition that a propertyowner’s claim for violations of substantive due process rights were”subsumed” within the owner’s claim for violation of the TakingsClause.  Thus, in land-related issues, a property owner could onlybring takings claims.  No longer, as I wrote here.

…
Continue Reading 2007 in Review: Taking Substantive Due Process Seriously Again

In Brescia v. North Shore Ohana(No. 27211, July 12, 2007), the Hawaii Supreme Court held that a property owner was not entitled to rely upon a county planning commission’s determination of the location of a shoreline setback when the planning commission retained the authority to give official assurances.  The case involved Kauai property within the coastal “Special Management Area.”  The SMA is, generally speaking, the land nearest the shoreline, as defined in Hawaii’s Coastal Zone Management Act, Haw. Rev. Stat. ch. 205A. The CZMA established special controls for this strip of land, and thecounties have authority to regulate uses within the SMA, including thelocation of the “shoreline setback,” which is (like other setbacks) anunbuildable zone that “sets back” structures from the shoreline.  The statewide minimum setback is established by the CZMA, but the individual counties are permitted to establish greater setbacks, which vary from county-to-county.  Continue Reading 2007 Land Use in Review: Estoppel and Shoreline Setbacks

In John R. Sand & Gravel v. United States, No. 06-1164 (Jan. 8, 2008), the U.S. Supreme Court held that the six year statute of limitations in the Tucker Act is “jurisdictional,” and must be ruled upon by a court when raised by an amicus on appeal, even when the government had waived it.  The property owner brought an inverse condemnation action in the Court of Federal Claims, asserting the federal government took its property without compensation when it placed fences on its leased property.  Inverse condemnation claims seeking compensation from the federal government in excess of $10,000 must be brought in the CFC.  The Federal Circuit opinion is posted here (500kb pdf).

The short majority opinion by Justice Breyer held that the Court had reached the same result in earlier decisions, and those decisions should not be overruled.  Invoking the principle of stare decisis, the Court held…

Continue Reading Supreme Court: Getting It Right Doesn’t Matter – Statute of Limitations in Inverse Condemnation Claims Against the Federal Government is Jurisdictional

A round up of posts of possible interest to readers:

The 18-page lawsuit names as defendants thecounty of Kaua‘i, the Planning Commission, and the Planning Departmentand its director. It asks for the Koloa Creekside Estates project to befound exempt from the Koloa-Po‘ipu-Kalaheo Development Plan and, ifnot, the imposed conditions to be declared unlawful.

Thedeveloper also opposes some requirements that it was previously willingto concede — such as a land dedication, impact fees and constructionschedule, the lawsuit states.

Attorneys argue in the case for automatic approval of the permits because the county failed to meet its own deadlines.

  • Jesse Souki at Hawaii Land Use Law blog digests HAWSCT’s latest water law decision,

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Continue Reading Land Use Round Up

A federal regulatory takings claim being litigated in the first instance in federal court?  Why, that’s as rare as hen’s teeth.

Here’s the deal: under Williamson County Regional Planning Comm’n v. Hamilton Bank,473 U.S. 172 (1985), a federal regulatory takings claim is not ripe until the property owners has first pursued compensation through available state procedures.  In other words, property owner, go first to state court.  But under City of Chicago v. Int’l College of Surgeons, 522 U.S. 156 (1997), the same rules don’t apply to the government, since it can choose to remove a state court takings claim to federal court, and have the property owner’s federal claims heard initially in federal court.  So in those rare circumstances when a local government wants to buck conventional wisdom and litigate a takings claim in federal court, it has the choice of forum.

For one recent example of this…

Continue Reading Regulatory Takings Claims in Federal Court?

Thanks to Professor Patty Salkin for forwarding a recent $17 million inverse condemnation judgment from the Texas Court of Appeals.  Trail Enterprises, Inc. v. City of Houston, No. 10-05-00382-CV (Nov. 21, 2007).  It’s a short opinion without much background, so we don’t know what actions by the city resulted in Trail bringing suit, but it’s Houston, so it’s a safe bet that the case involves oil.  Apparently, the city passed an ordinance that prohibited or restricted Trail’s ability to drill.  The trial court held there was a taking, a jury determined compensation, but the court granted the city’s post-trial motion to dismiss for ripeness.

The issue on appeal was whether Trail’s claims were ripe since it challenged the regulation without first applying — and being denied — a drilling permit or a variance from the prohibition.  “Ripeness” in this context usually requires that a property owner file, and be…

Continue Reading Takings Claim Ripe Upon Enactment of Regulation, No Permit Application Necessary