Zoning & Planning

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Here’s the latest in a case we’ve been following, and which earlier resulted in a very good decision from the North Carolina Supreme Court. 

In Kirby v. North Carolina Dep’t of Transportation, No 56PA14-2 (June 10, 2016), the N.C. Supreme Court held that the “Map Act,” a statute by which the DOT designated vast swaths of property for future highway acquisition, was a taking because the act prohibited development of designated properties in the interim. The court concluded that “[t]hese restraints, coupled with their indefinite nature, constitute a taking of plaintiffs’ elemental property rights by eminent domain.” The court remanded the case for a parcel-by-parcel determination of just compensation.

Here’s the trial court’s Order on remand, granting in part the plaintiffs’ motion for partial judgment on the pleadings on inverse condemnation liability, and ordering the NCDOT to “file plats, make deposits with the required statutory interest, and, if any plaintiff…

Continue Reading NC Map Act: DOT Ordered To Pay For Designating Property For Future Highway Use (But Then Not Taking It)

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 ALI2017

We’ve teased some of the details on the 2017 ALI-CLE Eminent Domain and Land Valuation Litigation and Condemnation 101 Conference, to be held at the Westin San Diego, January 26-28, 2017, but here are the details you’ve been waiting for.

This is the “big one,” our annual 3-day festival of all things eminent domain, property, takings, inverse condemnation, and just compensation. Truly national in scope, this is the 34th annual edition, and the one conference you must attend. Our 2016 conference in Austin was one of the best in years, and we’re on the way to replicating it in 2017, with a great venue in an exciting city. 

Look for the web and printed brochures to show up in your mailboxes, but in the meantime, here are some of the highlights (we’ll post more in the next few days):

  • Relocation, relocation, relocation: we are featuring two sessions on this

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Continue Reading Details: ALI-CLE Eminent Domain And Land Valuation Conference – San Diego, January 26-28, 2017

There’s a lot of pages in the Pennsylvania Supreme Court’s opinion (and two concurring opinions) in Robinson Township v. Commonwealth of Pennsylvania, No. J-34A-2016 (Sep. 28, 2016), and the good stuff from the headline starts on page 78. But to understand the case, you need a bit of background.

Pennsylvania has been one of the hotbeds of property owner objections to natural gas (including the related fracking extraction method) and other pipeline projects, and this case was a lawsuit by several townships and municipal officials challenging a state statute which made fracking and eminent domain easier for the gas companies. The townships asserted this went beyond what the state legislature had the power to allow, because it was “special legislation” designed to help a particular industry, and not applicable to all, and allowed an unconstitutional taking of private property for private use. The court held the statute was special…

Continue Reading Pennsylvania Supreme Court: Delegation Of Eminent Domain Power To Pipeline Companies Violates Fifth Amendment’s Public Use Clause

Denials of rehearing and motions for en banc review from a state intermediate appellate court generally do not catch our attention. But Ganson v. City of Marathon, No. 3D12-777 (Sep. 14, 2016) is the exception to that rule.

This is a long-running regulatory takings dispute between property owners in the Florida Keys — who are making a Lucas claim that the City’s regulations prohibit economically beneficial use of their island — and the appropriately-named City of Marathon (see here and here, for example). 

The majority ruling is just what you’d expect in a disposition such as this: a one word per curiam “Denied,” with 6 judges concurring. The reason we’re posting the ruling, however, is the 3-judge dissent, which starts off like this:

This is a significant regulatory takings case, the holding of which is that a local government can regulate private property to an extent that is…

Continue Reading Wasting* Away Again In Margaritaville: En Banc Denied In Lucas Takings Case, Over Compelling Dissent

This just in, in a case we’ve been following closely.

In City of Perris v. Stemper, No. S2133468 (Aug. 15, 2016), the California Supreme Court held that the judge, and not the jury, determines the validity of a dedication which a condemnor asserts it would impose to get the condemned property “for free” if the owner ever asked it to develop the property to its highest and best use. The case involves whether the city can avoid paying just compensation by showing that it would, in the future, exact from the owners the very same property which the city is condemning. The only way the city wouldn’t require dedication of this property is if the owner continued to use it for agricultural purposes. The second issue which the court considered was the “project influence” rule, and whether the city’s dedication requirement must be ignored in determining just compensation.  …

Continue Reading California Supreme Court: In Just Comp Trial, Judge, Not Jury, Determines Reasonable Probability Of Nollan-Dolan Exaction

One for you land users. We’re not going to analyze the Hawaii Intermediate Court of Appeals’ published opinion in Robert D. Ferris Trust v. Planning Comm’n of the County of Kauai, No. CAAP-15-0000581 (Aug. 9, 2016) in too much detail, because our Damon Key colleagues Greg Kugle and Chris Leong represent the prevailing appellant. But here’s a short summary, after which you can read the opinion itself.

The narrow issue in the case involves the definition of the term “applicant” in two different sections in the County’s zoning ordinance. The underlying issue is one that’s hot right now across Hawaii and elsewhere: short-term or transient vacation rentals, defined in the Kauai zoning ordinance as rental for less than 6 months.  

Here, the homeowner had a parcel in an agricultural district, with a single-family residence on the lot. It began renting the home to vacationers in 2003, prior to…

Continue Reading HAWICA Rejects Planning Department’s Formalistic Definition Of “Applicant” In Vacation Rental Case

To state a claim for inverse condemnation in Nevada, the property owner must allege that the government was “substantially involved” in activities that caused the taking of the property.

In Fritz v. Washoe County, No. 67660 (Aug. 4, 2016), the Nevada Supreme Court addressed what constitutes substantial involvement. Does it require actual physical “involvement” in the actions which resulted in flooding, or is the government doing governmental things like approving applications enough? In the end, the court set out a test somewhere in between those two poles. 

This is a flood case where the property owners alleged that the County approved plat maps and managed the drainage system which ultimately resulted in their property being inundated. As part of that process, the County accepted dedications, and worked with the Nevada DOT to direct where water coming down a mountain would flow. The County asserted the owners didn’t have standing…

Continue Reading Nevada Clarifies Inverse Condemnation And What Is “Substantial Government Involvement”

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We’re experiencing the madness that is the ABA Annual Meeting — this time in San Francisco — hanging with colleagues from the State and Local Government Law Section (where we’re slated to be the Chair-Elect this year), and at the Council of Appellate Lawyers. These meetings are a lot of … meetings .. but there’s also a healthy dose of CLE programming, some of it focused on things like eminent domain and land use, and other topics near and dear. 

Pictured above is our friend and colleague from the Northwest, Jamila Johnson, who gave a spirited defense of the Fifth Amendment and property rights in her session on energy corridors. We were discussing the pros and cons of “quick take” statutes, and to counter the assertion that these things allow for efficient, convenient, and cost-effective government projects, Jamila responded (and we’re recalling this from memory here), “the government has…

Continue Reading Eminent Domain Programming At The ABA Annual Meeting

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As we noted last week, the expanding costs of the Honolulu Rail project has forced Honolulu’s mayor to ask whether construction should be delayed or stopped entirely, short of its planned terminus at Ala Moana shopping center. “Middle Street” became the new rail watchword, even though stopping it there would omit — temporarily or permanently — the most densely populated, and therefore the most useful, portion of the route. 

Middle Street is somewhat of a nondescript, dare we say it, “blah” street; more of a demarcation between the airport area and the more industrialized Dillingham corridor. A place you generally go by on your way elsewhere, not consider a destination. Frankly, it doesn’t have much of a reputation for anything exciting. In our minds, it is most notable as the border between “town” and “country,” at least psychically. 

  • Civil Beat‘s Chad Blair, however, sees it differently. In a tongue-in-cheek

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Continue Reading Rail: Building To The Nowhere Of Middle?

A land use diversion, to take you into the weekend. As land users know, the vested rights and zoning estoppel doctrines are all about timing. When did the government gave the green light” (however that is defined in your jurisdiction), what did the property owner do after that, and when did the government decide “hey, wait a minute, we’ve changed our mind” about that earlier green light? For more, see this law review article we co-authored a few years ago that highlights these dynamics. Even the title reflects that it is all about timing: “Arrow of Time: Vested Rights, Zoning Estoppel, and Development Agreements in Hawaii.”

As we wrote, “These closely-related principles permit the government to retain flexibility in land use planning only if a property owner has not proceeded sufficiently along the development path that it would unconstitutional or unfair to prevent it from completion.” 

Well, here’s an opinion from …

Continue Reading Cal App: Vested Rights Are All About Timing