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The Sixth Circuit’s opinion in Lilly Investments v. City of Rochester, No. 15-2289 (Jan. 5, 2017) is not slated for publication, but its worth a read anyhow because it involves Williamson County ripeness, and the “final decision” rule. Here’s how the court summarized the case:

This case concerns Louis Leonor’s efforts to open a dental clinic in Rochester, Michigan. The clinic stands nearly complete, but in May 2013 Rochester issued a stop-work order preventing Leonor from finishing and operating the clinic, prompted by an expert’s finding that the clinic does not comply with the conditions of a city permit. That same expert found compliance a few months later after Leonor made corrective changes. Nonetheless, Rochester refused to lift the stop-work order or take an up-down vote on the project unless Leonor waived any legal claims and paid a $40,000 fee. Unwilling to comply with those conditions, Leonor filed a complaint…

Continue Reading 6th Circuit: City’s “War Of Attrition” Meant Regulatory Takings Claim Ripe For Federal Review

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After the Hawaii Supreme Court decided GATRI v. Blane, 962 P.2d 367 (Haw. 1998) one big question remained.

In GATRI, the court held that in the coastal zone, a county Community Plan (also known as a “General Plan” in some counties) is a binding land use regulation, and thus has the force and effect of law. (Outside the coastal zone, the CP/GP’s don’t actually control any land uses, and are general statements of long-term planning goals. The zoning, and the zoning alone, regulates the uses of land.)

But the state legislature in the Coastal Zone Management Act mandated a different result in the coastal zone and there, the planning also controls land use, as the court held in GATRI. Thus, in order to develop property in the coastal zone in accordance with the applicable zoning, the applicable CP/GP must also permit the use. This is know as “plan-zone consistency,” and…

Continue Reading Hawaii Supreme Court Oral Arguments In Lucas “Economically Beneficial Use” Taking Case

Heads up for a case to watch being argued next week in the Hawaii Supreme Court.

This is a regulatory takings case that’s been up to the Hawaii appellate courts before (see here). In that opinion, the court of appeals correctly held that a property owner raising a regulatory takings case has no obligation to change the law to ripen her claims. [Note: we filed an amicus brief in that appeal in support of the property owner.] The court vacated the trial court’s dismissal, and remanded the case for trial.

The backstory to that case is long and complex.It involves beachfront property, the relationship between planning and zoning, and what exactly “economically beneficial use” means under the U.S. Supreme Court’s Lucas test for wipeout takings, especially in the context of what instructions that juries are given. [Another note: we represented a neighboring property owner in a similar case that…

Continue Reading HAWSCT Considering Wipeout Regulatory Takings: What Is An Economically Beneficial Use?

Here’s what we’re reading today:

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Continue Reading Monday Reading: Raisin Redux, Beach Appeal Dismissal, Zoning, And More

HSBA 2017 Land Use Conference

Registration is now open for the 2017 Hawaii Land Use Conference, presented by the Hawaii State Bar Association and the University of Hawaii Law School, at the downtown Honolulu YWCA’s Fuller Hall on January 19-20, 2017. “This 2 day conference is a must attend for any attorney or professional whose practice involves land use and development,” as the registration web site says (we agree).  

Topics include the latest in Transit-Oriented Development, the Thirty Meter Telescope, GMO (including the recent rulings from the Ninth Circuit), and the topic we’ll be presenting, “Takings: Regulatory and Physical.”

The final agenda has not yet been released, but if experience is any guide, Planning Chair Professor David Callies will put together two days of timely topics, presented by distinguished faculty. 

And the cost can’t be beat: $200 for members of the Real Property and Financial Services Section and government lawyers, $300…

Continue Reading 2017 Hawaii Land Use Law Conference, January 19-20, 2017

We’ve had bridges on our minds lately. Plus, we’ve been meaning to post the Nebraska Supreme Court’s opinion in Strode v. City of Ashland, No. S-15-956 (Oct. 28, 2016) for a while, and it is coincidentally about a bridge. So the title to this post came to us quickly, and naturally. But writing up the case didn’t.

But while we dawdled, Dean Patty Salkin wrote the case up on her blog, Law of the Land. Which has now saved us the effort of writing the case up in its entirety, and we suggest you start by reading her post for the background and the court’s ruling. 

The case involved two inverse condemnation claims brought by husband and wife property owners, asserting the City’s zoning regulations worked a taking of their land in two ways. They first that the regulations prohibited their use of the land for their…

Continue Reading Nebraska: Inverse Condemnation Claims A Bridge Too Far

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After a short absence and a change of lead sponsor (from ALI-CLE, to the American Bar Association’s Section of State and Local Government Law), the Land Use Institute is back on.

Download the print brochure here, or visit the LUI web site for more. It will be held February 1-2, 2017, in Miami, Florida, at the Brickell City Centre‘s Akerman Conference Center, in conjunction with the ABA’s Midyear Meeting. One of the best aspects of this program is the registration fee, a mere $300, $250 if you are a judge, an academic, young lawyer, or government attorney (perhaps the best deal in CLE). Register on line here. For those who cannot attend in-person, the LUI will be live-streamed. Register here. 

Planning Chairs Frank Schnidman and Dean Patrica Salkin have assembled a very good faculty and program. Topics include: “Nuts and Bolts of Land Use…

Continue Reading Mark Your Calendars: The Land Use Institute Is Returning – February 1-2, 2017, Miami

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Here’s the final brochure for the upcoming ALI-CLE Eminent Domain and Land Valuation Conference, set for January 26-28, 2017, in San Diego.

Early registration gets you a discount (code CY009MK), as does multiple registrations from one office, so now’s the time to commit to joining us for our annual gathering (the 34th Annual) of the nation’s leading practitioners of eminent domain, condemnation, valuation, and takings law. There are multiple ways to register, including on line. 

Like in past years, the first day has three tracks: Practice, Substantive, and Condemnation 101. The latter is a one-day course for those new to the field, or as a refresher course for those with more experience. The second day, the 101 attendees will join the advanced course, and we’ll have plenary sessions in the morning, followed by Practice and Substantive tracks in the p.m. As always, attendees are free to move among …

Continue Reading ALI-CLE Eminent Domain & Land Valuation Litigation Conference, San Diego, January 26-28, 2017: Final Brochure

We were getting ready to dig into the California Court of  Appeal’s opinion in 616 Croft Ave., LLC v. City of West Hollywood, No. B266660 (Sep. 23, 2016), when our ABA State and Local Government Law colleague Bryan Wenter wrote up the case on his firm’s land use blog, saving us the trouble.

The opinion is, in his words, “the first reported appellate decision to rely upon the broad holding of the California Supreme Court’s blockbuster 2015 affordable housing case, California Building Industry Assn. v. City of San Jose, and it boldly highlight the far reaching implications of that ruling.” As Bryan writes, “it also underscores the ongoing need for the United States Supreme Court to finally address whether the heightened scrutiny of the Nollan, Dolan, and Koontz Fifth Amendment takings cases applies to legislatively imposed permit conditions.”

Go read Bryan’s summary and excellent analysis…

Continue Reading Cal App: In-Lieu Housing Fee Isn’t An “Exaction,” And Isn’t A Taking