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Here’s the podcast of our recent talk to the American Bar Association’s Section of State and Local Government Law about the (then) upcoming decision in Horne v. Dep’t of Agriculture, No. 14-275. Transcript here, if you’d prefer to read it.

This is a preview of the decision. But since we made some predictions — several of which bore fruit in today’s opinions — we thought we’d post it while we digest the Court’s opinions. 

As you may know, the Court today issued its opinions, with eight justices concluding that the raisin marketing order is a physical taking of property, rejecting the Ninth Circuit’s holding that the physical takings rules do not apply when personal property is involved.

We’ll have more analysis shortly, including a round-up of how other commentators view the case. Stay tuned. 

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Magna Raisins: 8-1 SCOTUS Says There’s A Taking, But Not All

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Continue Reading Podcast: Leviathan Shrugged? The Supreme Court’s Raisin Takings Case

As we predicted, the Supreme Court today held that personal property — here, raisins — is property protected from uncompensated acquisition, and that the USDA’s New Deal regulations pursuant to which the Department fined the Hornes for not turning over to the government a massive percentage of their yearly crop without compensation, is a physical taking under Loretto. Horne v. Dep’t of Agriculture, No. 14-275 (June 22, 2015). 

Eight justices rejected the Ninth Circuit’s weird ruling that the regulations did not work a taking because raisins are personal property and not land, holding that “[t]he reserve requirement is a clear physical taking. Actual raisins are transferred from the growers to the Government.” Slip op. at 8. The Court cited [the] Magna Carta, noting it protected certain crops from appropriation:

The Takings Clause provides: “[N]or shall private property be taken for public use, without just compensation.” U. S.

Continue Reading Magna Raisins: 8-1 SCOTUS Says There’s A Taking, But Not All Agree On Remedy

Here’s one that isn’t about land use, but should be of interest to Hawaii land users, since so much of what we do is tied up in the Administrative Procedures Act. 

Hawaii’s APA can be a trap for the unwary: if you run to court to challenge what you believe is the agency’s appealable action, you may be met with a claim that you picked the wrong action, and you needed to exhaust the agency’s own internal administrative appeals process first, and it is now too late to invoke the trial court’s original jurisdiction. And if you err on the side of caution and invoke the agency’s appeal process, you may end up prematurely challenging all sorts of agency decisions when you really didn’t need to. Add to the mix the confusion among many not familiar with this territory — about what type of agency action triggers the ability to appeal…

Continue Reading HAWSCT Clarifies What Qualifies As An Appealable Agency Action Under The Administrative Procedures Act

Honchariw v. County of Stanislaus, No. F069145 (June 3, 2015), is one especially for you Californians, addressing the somewhat unusual process under state law for challenging a land use action by local government which is claimed to take property.

Under the California Supreme Court’s decision in Hensler v. City of Glendale, 876 P.2d 1043 (Cal. 1994), before a landowner can seek just compensation for a regulatory taking, it must first challenge the validity of the action using the writ of mandate procedure (administrative appeal to all you non-Californians), to allow the agency the chance to rescind the act. The property owner may — but need not — join to the writ of mandate a claim for damages (just compensation), and raise the claims concurrently.

Sometimes plaintiffs do join both claims in a single complaint, sometimes they don’t. Hensler is considered an exception to the usual rule prohibiting…

Continue Reading Cal App: Mandamus Challenge To Validity Of Govt Action Must Include Takings Claim

Last week, the Hawaii Supreme Court heard oral arguments in Sierra Club v. Castle and Cooke Homes Hawaii, Inc., No. SCAP-13-0000765, a case involving a challenge by the usual suspects to a State Land Use  Commission “boundary amendment” (aka state “rezoning” to those of you not familiar with Hawaii’s top-heavy state land use planning scheme). 

According to the Judiciary web site summary of the case, here are the issues:

In this case, Appellants Sierra Club and Senator Clayton Hee appeal from the Decision and Order of the Circuit Court of the First Circuit, which denied and dismissed their appeal from the Land Use Commission’s Findings of Fact, Conclusions of Law, and Decision and Order, which approved Appellee Castle & Cooke’s Petition for District Boundary Amendment. The Land Use Commission reclassified approximately 769 acres of Castle & Cooke’s land from the state agricultural land use district to the state…

Continue Reading Guest Post: HAWSCT Oral Arguments In Koa Ridge – Is The State Prohibited From Rezoning “Potential” Important Ag Land?

The powers-that-be planned on building a major freeway interchange, part of which was going to be on the property owned by Jefferson Street Ventures. Problem was, Jefferson Street also had plans for its property — a shopping center — and when it came time for it to apply to the City of Indio for permits to build, the city said yes, but only if Jefferson Street left open and didn’t build on the 11 acres on which the interchange was envisioned.

We’re going to buy it eventually said the city, but the complex federal and state process for studying, evaluating, and funding the project takes a long time, and if you build on it now, it’s going to cost us more in the future to take the developed property and relocate all of the tenants.

In Jefferson Street Ventures, LLC v. City of Indio, No. G049899 (filed Apr. 21…

Continue Reading Cal App: “Temporary No-Build Area” While City (Maybe) Gets Around To Condemnation Is A Taking

Our American Bar Association colleague Ed Thomas (no relation, although we often joke that we’re probably cousins), the President of the Natural Hazard Mitigation Association and a guy who acknowledges that the need to protect against natural disasters must take property rights into account, has compiled some thoughts about the Court of Federal Claims’ recent opinion in a case holding the federal government liable for the taking of property during Hurricane Katrina.

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Major Court Decision with implications for Climate Adaptation, Hazard Mitigation and a Safer and More Just Future.

by Edward A. Thomas Esq., 
President, Natural Hazard Mitigation Association

May 7, 2015

On May 1, 2015, the U.S. Court of Federal Claims issued an enormously important decision concerning flood damage caused by Hurricane Katrina and subsequent hurricanes. That case, Saint Bernard Parish Government v. United States, No. 05-1119L (May 1. 2015), found the United States government liable for…

Continue Reading Guest Post: Katrina Flood Takings Decision Emphasizes Science

Here’s the latest from the Hawaii Supreme Court on the joinder of parties under Rule 19, where there’s a claim that an absent party is “indispensable” and thus the case should be dismissed. Bottom line is that an absentee should be joined if its presence is needed, and the “indispensable” determination only needs to be undertaken if the party can’t be joined. In other words, dismissal is the last resort. 

We won’t go into the details of Kellberg v. Yuen, No. SCWC-12-0000266 (Apr. 15, 2015), because we represent the plaintiff-respondent. So we will leave it to others to dissect the opinion for any civil procedure gems and practical tips. But read the opinion if you want to understand the details for yourself. 

This is the second time that this case has gone to the Supreme Court, the first trip resulting in a published opinion clarifying when an order…

Continue Reading HAWSCT Clarifies Joinder Of Indispensable Parties

Last week, the California Supreme Court heard oral arguments in California Building Industry Assn. v. City of San Jose, No. S212072, the case which challenges San Jose’s “inclusionary housing” requirement.

The Court of Appeal held that under rational basis review (and not heightend scrutiny) San Jose’s affordable housing exaction might survive because it was designed to promote the development of affordable housing, and not to mitigate the impacts of market priced housing. California Building Industry Ass’n v. City of San Jose, 216 Cal.App.4th 137 (6th District June 6, 2013). The California Supreme Court agreed to hear the following issues:

What standard of judicial review applies to a facial constitutional challenge to inclusionary housing ordinances that re quire set asides or in – lieu fees as a condition of approving a development permit? (See San Remo Hotel L.P. v. City & County of San Francisco (2002) 27 Cal.4th 643…

Continue Reading California Supreme Court Considering “Inclusionary Housing” Fee

Earlier, we posted the cert petition in Hillcrest Property, LLP v. Pasco County, No. 12-846 (cert. petition filed Jan. 15, 2015), which asks the Supreme Court to review the Eleventh Circuit’s decision throwing out Hillcrest’s facial substantive due process challenge to the county’s “Right of Way Preservation Ordinance.” The ordinance allows the county to land bank for future road corridors by means of an exaction that doesn’t come anywhere near to passing muster under Nollan–Dolan–Koontz. 

Although the District Court held the ordinance unconstitutional and is “both coercive and confiscatory in nature and constitutionally offensive in both content and operation,” the Eleventh Circuit concluded that the mere enactment of the ordinance started the four-year statute of limitations clock running on a facial challenge, and that Hillcrest had waited too long to file its complaint. 

Hillcrest’s petition asks whether a facial claim is even subject to the statute…

Continue Reading On Facial Challenges, Exactions, Standing, And Statutes Of Limitations: Final Cert Briefs In SCOTUS Substantive Due Process Case