Rent Control

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The wheels of justice may grind slowly, but they do grind. Yesterday, the Ninth Circuit granted a motion we filed back in June 2013, and permitted us to file this amicus brief on behalf of the Western Manufactured Housing Communities Association in a case that is scheduled to be argued in mid-February 2015, Rancho de Calistoga v. City of Calistoga, No. 12-17749.  

The case is a federal court challenge to a California wine-country municipality‘s decision to deny a rent increase for a mobilehome park subject to the city’s rent control ordinance. The complaint alleged that the city’s failure to allow the ground lease rent to increase to $624 violated the park owner’s rights under the takings, due process, and equal protection clauses. The District Court eventually dismissed the complaint for failure to state a claim for relief under Rule 12(b)(6), because, among other things, the park …

Continue Reading 9th Circuit Amicus Brief: How To State A Valid Claim After Lingle – Regulatory Taking, Private Taking, Or Due Process?

Here’s what caught our eye today:

  • Last evening, we attended lawprof Gregory S. Alexander‘s talk at the U. Hawaii Law School, “Five Easy Pieces: Recurrent Themes in American Property Law.” You know it’s not a real academic talk until the speaker uses the words “normative” and “neologism,” and Professor Alexander did not disappoint. But seriously, it was a thought-provoking hour, focused on our favorite topic, property law. A video was made, and hopefully the law school will post it on line so you can watch. We’ll link to it when they do. 
  • “Va. high court to look at Beach eminent domain appeal,” from the Hampton Roads newspaper, about a case which the Virginia Supreme Court just accepted. The case was triggered when the trial court refused to allow the jury to hear evidence of the DOT’s first appraisal and deposit, which was higher than its final appraisal

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Continue Reading Thursday Round-Up: “Five Easy Pieces” Talk, Re-appraisals, Foie Gras Ban Lives, Kelo In China, Kelo Movie

Update: San Francisco is going to appeal.

It cost a lot to live in San Francisco, these days. A whole lot, whether you own, or rent. 

If you’re a renter, however, you should hope and pray that your landlord wants out of the rental business. Because under a San Francisco ordinance, property owners who rent their properties but then decide they don’t want to continue to do so must get a permit from the City in order to quit. Another requirement of the ordinance is that the owner pay cash to a displaced tenant — a lump sum “relocation payment” of 24 times “the difference between the units’ current monthly rent and an amount that purports to be the fair market value of a comparable unit in San Francisco, as calculated by a schedule developed by the Controller’s Office.” 

The Levins wanted out of the rental business, and…

Continue Reading Federal Court: San Francisco’s Housing Exaction Violates Nollan-Dolan-Koontz

Remember that decision by a U.S. District Court in Tampa, Florida last year that we crowed about? The court held that a county’s “Right of Way Preservation Ordinance” which allows it to land bank for future road corridors by means of an exaction is “both coercive and confiscatory in nature and constitutionally offensive in both content and operation.” 

A property owner brought a substantive due process claim, and the court first rejected the county’s argument that the substantive due process claim was not ripe under Williamson County because Hillcrest had not pursued a waiver or variance. It also concluded the Right of Way Preservation Ordinance violated the Takings Clause because it shifts the burden to disprove rough proportionality to the property owner and empowers the county to obtain land in excess of what it would otherwise get in the absence of the ordinance. The court enjoined enforcement of the…

Continue Reading 11th Circuit: Facial Challenge To Ordinance Must Be Brought When Ordinance Adopted

Rent control cases rarely thrill us. They’s often long, the ordinances and rules being challenged are usuallylabyrinthian, and from our point of view, the results are mostly unsatisfying. 

The California Court of Appeal’s recent opinion in Colony Cove Properties, LLC v. City of Carson, No. B227092 (Oct. 21, 2013) doesn’t deviate from that pattern: it’s 50 pages long, the city’s mobilehome rent control system for determining a “fair” return for the park owner will make your head hurt, and in the end, the court held that the property owner was not entitled to make a profit after the payment of debt service. So we’ll leave it to you to read the details in the case itself if those issues interest you.

But what did catch our eye was the final few pages, in which the court reversed the lower court’s determination that the property owner reserving its federal takings…

Continue Reading Cal App: Rental Owner Makes “Enough,” But Can Go To Federal Court Later

Please join us this upcoming Monday, August 19, 2013 from 1:00 – 2:30 p.m. Pacific Time for a telebriefing, “Regulatory Takings Claims in California – Implications of Recent Decisions and Advice for Practitioners and Government Agencies.”

Brad Kuhn (Nossaman, California Eminent Domain Report) is the program Chair and will serve as moderator, and Timothy Kassourni (Kassouni Law) will give us more details on his recent big win in a case under the Penn Central test. I’ll be talking Koontz and the Ninth Circuit’s latest foray into regulatory takings challenges to rent control.

It promises to be a fast-paced and informative hour, and there’s much here for the non-California practitioner. More information here (from Brad’s blog), and registration information is posted here. Continue Reading Telebriefing: Regulatory Takings Claims In California

When reading the Ninth Circuit’s latest foray into the regulatory takings doctrine which holds that a muncipal rent control ordinance did not qualify under Penn Central (MHC Financing Ltd P’ship v. City of San Rafael, No. 07-15983 (Apr. 17, 2013), we were reminded of the opening line in Andy Williams’ signature tune “Love Story” —

“Where do I begin …”

But before we begin, two preliminary thoughts. First, the district court’s decision finding that San Rafael’s mobile home rent control ordinance worked a taking of the mobilehome park owner’s property because it reduced the value by more than 80% was not some one-off aberration by a conservative district judge out on a lark. No, the decision was by the now-retired Vaughn R. Walker, the same judge who invalidated California’s Proposition 8 in one of the same-sex marriage cases currently before the Supreme Court.

Continue Reading The Ninth Circuit Botches Regulatory Takings Again

This just in: the Ninth Circuit has issued an opinion in MHC Financing Ltd P’ship v. City of San Rafael, No. 07-15983 (Apr. 17, 2013), reversing the District Court’s decision that the city’s mobilehome rent control ordinance was a taking under Penn Central.

More, after a chance to review the opinion.

MHC Financing Ltd. P’ship v. City of San Rafael, No. 07-15982 (9th Cir. Apr. 17, 2013)


Continue Reading Ninth Circuit: No Penn Central Taking In Rent Control Ordinance

Mark your calendars for next Tuesday, July 17, 2012, at 1:00 p.m. Eastern (noon CT, 11:00 a.m. MT, 10:00 a.m. PT, 7:00 a.m. Hawaii Time) for “Recent Developments in Eminent Domain,” a live audio program sponsored by Lorman Education.

It’s a 1.5 hour teleconference discussing some of the more important recent court decisions about our favorite topics, eminent domain, inverse condemnation, and regulatory takings.

I’m the sole faculty member, so you get to hear me chatter for about an hour and fifteen minutes, and we’ll save 15 minutes or so for questions. I’ll be covering the latest in public use, just compensation, and related topics. Here is the registration and CLE credit information. Hope you can join us. Continue Reading Upcoming Teleconference: Recent Developments In Eminent Domain

It’s always a safe bet to predict that the Supreme Court will decline to review a case. Statistics, after all, are on the side of “cert denied” regardless of the substantive merits of a case.

But there are some cases, like Harmon v. Kimmel, No. 11-496 (cert. petition filed Oct. 17, 2011), the case challenging New York City’s residential rent control law as a taking (briefs here), that give you pause because they take a slightly different track: the respondents waived their right to respond, the Court invited them to file a BIOthe conference gets moved to April 20. Things like this make you go “hmmmmm.”

Well, the drama was for naught. Today, the Court issued the order denying cert. On one hand, it’s not surprising since the weight of statistics is never favorable, and from a practical standpoint, the Court might be reluctant to wade…

Continue Reading Cert Denied In NY Rent Control Challenge