New Jersey Eminent Domain Blog posts “Eminent Domain, Fifth Amendment Property Rights, and Government Retaliation” about last Term’s US Supreme Court decision in Wilkie v. Robbins:

But what makes Wilkie particularly troubling is the clearpattern of harassment against Robbins by the BLM over the course offive years. While the alleged violations by BLM employees againstRobbins have administrative and state court remedies, the problemremains that these could only be pursued piecemeal, at the greatexpense of time and money by the property owner.

. . .

The question remains: Where does an aggrieved citizen like Robbins seekredress? Administrative and state judicial actions for individualincidents are a far from satisfactory remedy. However, this isprecisely what the Court suggested, and it is consistent with theCourt’s decision in San Remo Hotel L.B. v. City and County of San Francisco,125 S.Ct. 2491 (2005). The message is clear: A property owner must seekrelief…

Continue Reading ▪ More on Wilkie v. Robbins – Where to go When Government Goes Wild

In a case that illustrates the lengths a court will go to avoid dealing with the merits of a takings challenge, the Ninth Circuit in Equities Lifestyle Prop., Inc., v. County of San Luis Obispo (No. 05-55406) (Sep. 17, 2007), held that the plaintiff was both too early (not yet ripe under Williamson County) and too late (missed the statute of limitations).  In that opinion, the Ninth Circuit affirmed the dismissal of a challenge to a voter-approved mobilehome “rent stabilization” (rent control) ordinance.  The court ruled:

• Standing: the county challenged the ability of the plaintiff to bring suit because it did not have “title ownership” of the mobilehome park.  The court held that pecuniary injury, not title ownership is the key to standing, and allowed the suit to proceed.

• Takings: the court rejected the “as applied” takings challenge on Williamson County grounds because the plaintiff had not availed itself

…
Continue Reading ▪ Ninth Circuit: No Takings and Due Process Challenge to Cal. Rent Control Ordinance

There’s an interesting discussion going on over at Professor Patty Salkin’s Law of the Land blog about a recent Ohio appeals court decision applying Lingle v. Chevron USA, 544 U.S. 528 (2005). 

Lingle didn’t get rid of the “substantially advance” test, it merelyrelocated it to due process, and reminded us that in thosecircumstances where there is not a per se taking by wipeout of“beneficial” use (Lucas) or an occupation (Kaiser Aetna, Loretto),courts go back to Penn Central where no factor appears to bedispositive. So even if there is some value or use left in the land,Penn Central could allow for a finding of a taking, depending on thecircumstances of the case and how the other elements factor into thecalculus.

The opinion in Boice v. Village of Ottawa Hills (No. L-06-1208) (Aug. 31, 2007) is posted here.Continue Reading ▪ Ohio Court Applies Lingle and Penn Central

The Maui News reports that Maui’s “workforce housing” ordinance has been challenged:

Lawyers for a Canadian condominium developer, who is seeking to buildtwo multiunit projects in the Kamaole area, are seeking a court orderto block the county from implementing the law that the developer saysis defective.

The lawsuit alleges the housing policy adopted by the council last yearfailed to include a “close nexus” between new developments and the needfor affordable housing, is “an arbitrary, unreasonable impairment” ofproperty rights and violates due process rights.

It also charges that the county policy does not meet the standards for imposing impact fees allowed by a state law.

Complete story here.  The Maui ordinance, enacted last year, imposes a 40% to 50% affordable requirement on new housing developments. 

The Complaint for Declaratory and Injunctive Relief (filed Aug. 23, 2007) is posted here.

I also discussed the ordinance earlier here and here.  Continue Reading ▪ Nollan/Dolan Challenge to Maui’s Forty Percent Affordable Housing Exaction

The Ninth Circuit recently decided Vacation Village, Inc. v. Clark County, No. 05-16173 (July 23, 2007), a case that has just about everything in terms of regulatory takings issues in federal court: the Penn Central standard for regulatory takings, Williamson County ripeness, Rooker-Feldman, exhaustion of administrative remedies, federal preemption, choice of law under Erie, and independent and adequate state law grounds.

I won’t go into the details, which are set forth here and in the opinion.  The basic issue in the case is whether airport-related height and use restrictions are regulatory takings under the Nevada Constitution.  The most interesting aspect to the opinion is that the court held the plaintiff complied with Williamson County‘s requirement that a landowner first seek state remedies before seeking federal remedies.  The court noted that the plaintiff only asserted state law claims, and the case was in federal court only…

Continue Reading ▪ New Ninth Circuit Regulatory Takings Case Has It All

Back in May 2007, the US Supreme Court granted review in John R. Sand & Gravel Co. v. United States, No. 06-1164.  Docket listing here.  The issue, as I mentioned here is:

The statute of limitations codified in 28 U.S.C. § 2501 provides: “Every claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues.  The question presented is:

Whether the statute of limitations in 28 U.S.C. § 2501 limits the subject matter jurisdiction of the Court of Federal Claims.

The petitioner’s brief has been posted here (500kb pdf).  The issue of whether a time limit is merely “procedural” or “jurisdictional” goes to whether it may be waived by the defendant.  Procedural time limitations are lost if the defendant fails to assert them.  Issues of subject matter jurisdiction, however, cannot…

Continue Reading ▪ Is The Statute of Limitations in Federal Inverse Condemnation Claims Jurisdictional?

Dean Patricia Salkin of the Albany Law School posts Ripeness and Williamson County – 1st, 6th and 7th Circuit Rulings on her land use law blog Law of the Land.  The post details three recent cases from the federal circuits about when a regulatory takings or inverse condemnation case is ripe for federal review under the Williamson County doctrine (almost never):

• Association de Subscripcion Conjuncta del Seguro de Responsibilidad Obligatorio v. Galarza, 484 F.3d 1 (1st Cir. 2007)
• McNamara v City of Rittman, 473 F.3d 633 (6th Cir. 2007)
• Rockstead v City of Crystal Lake, 486 F.3d 963 (7th Cir. 2007)

Gideon Kanner has already deconstructed the reasoning in the last case in a post on his blog entitled “Franz Kafka Weds Alice in Wonderland.”  One guess what Professor Kanner thinks of the decision.

Professor Salkin’s blog is a welcome perspective; I’ve already subscribed, Continue Reading ▪ Recent Williamson County Ripeness Decisions Summarized