Zoning & Planning

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Williamson County gives everyone grief, and if you needed any more proof, here it is.  

In A Forever Recovery, Inc. v. Township of Pennfield, No. 13-2657 (Apr. 2, 2015), an unpublished opinion from the Sixth Circuit, the court upheld the district court’s award of attorneys’ fees and costs to a property owner who brought a takings claim in Michigan state court, only to see the defendant, the Township of Pennfield, remove the case to federal court and then move to dismiss the claim six days later, asserting it was not ripe under Williamson County. 

The district court rightly remanded the case back to state court, and held the Township liable for fees and costs under the removal statute which shifts fees in cases where the defendant doesn’t have an “objectively reasonable basis for seeking removal.” The court held that the Township removed only to delay the case…

Continue Reading 6th Cir Schadenfreude Alert: Municipality Liable For Fees And Costs For Removing Takings Claim From State Court

Two stories to read, in tandem:

  • In the ultimate dog-bites-man story, yesterday’s Honolulu Star-Advertiser headline reads “Home demand outweighs supply.” Well no kidding. As one fellow quoted in story said,”This is the most overstudied subject in the history of mankind … You don’t need a study to know what the numbers are. It’s time to stop studying housing and start doing housing.” The story is partially behind a paywall, but the lede sums it up: “Hawaii needs up to 66,000 homes if it expects to satisfy demand for housing over the next decade.” Increasing demand coupled with restrictive supply means, guess what – high prices and shortages. What’s responsible for the lack of housing? There’s land on which to build, but it’s infamously difficult to develop. As Professor David Callies wrote recently, Hawaii has an “increasingly well-known penchant for lengthy, often decade-long land use permitting processes” and a

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Continue Reading Guess What: Hawaii Housing Is Expensive!

It’s not often that we say a law review article is a “must-read.” But this one definitely is, especially for all you regulatory takings mavens: David L. Callies, Through a Glass Clearly: Predicting the Future in Land Use Takings Law, 54 Washburn L. Rev. 43 (2014). A pdf of the article is posted here. 

From the Introduction:

The subject of takings—the government taking of an interest in real property, either through eminent domain or through the exercise of the police power—has been the subject of continuous litigation for nearly a century. The past ten years have been particularly fruitful, as litigants struggle with the meaning and extent of the Fifth Amendment’s Public Use Clause and the extent to which the overzealous exercise of the police power can sufficiently deprive a landowner of rights in property so that the property has been “taken” by regulation, ever since Justice Holmes…

Continue Reading New Law Review Article Worth Reading: “Through a Glass Clearly: Predicting the Future in Land Use Takings Law”

Here’s the letter request which we sent today to the California Court of Appeal, Second Division, asking the court to publish its recent opinion in Brost v. City of Santa Barbara, No. B246153 (Mar. 25, 2015). In our post about the case, we wrote “we hope there’s a motion to publish and that the court grants it. This case should be citeable as precedent.”

But as a colleague reminded us, a request to publish an opinion isn’t limited to just the parties to the case, and the California Rules of Court provide that “any person” may ask the court to publish an unpublished opinion, and we certainly fit that description. So today, we — along with our colleagues at Owners’ Counsel of America — wrote to the court that the Brost decision is significant (among other reasons) because it correctly applies the futility exception to takings ripeness, and…

Continue Reading Recent California Court Of Appeal Regulatory Takings Opinion Should Be Published

PBN_rail

The cover story in Pacific Business News‘ recent edition, “Honolulu rail transit’s eminent domain” is worth reading. Most importantly, the PBN staff created maps which show how much property is targeted for acquisition, and where it is located, precisely. Yes, the full story is behind a partial paywall, but as we said last week, if you are in Honolulu you really should be a PBN subscriber. Plus, there are a few quotes from our side in the piece:

  • “’Eminent domain cases are rare in Hawaii,’” Thomas said. ‘Hardly anyone has a living memory — not the landowners, judges, lawyers or even the government officials — they can draw from when there are this many takings.'”
  • “However, this could hurt property owners who choose to sell later, as they’ll have to disclose the illegal status of their building. Future owners may be confronted with the cost of

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Continue Reading Pacific Business News Details The Rail’s Impact On Honolulu Property

In Kirby v North Carolina Dep’t of Transportation, No. COA14-184 (Feb. 17, 2015), the North Carolina held that state’s “Map Act,” which gives the DOT the ability to designate property for future highway use and prevent its development in the meantime, was a taking. There was great shouting and gnashing of teeth that making the DOT actually pay just compensation would crash the system and cost the state a lot of money, so we were not terribly surprised when the DOT recently filed this Notice of Appeal and Petition for Review posing three questions:

1. Did the Court of Appeals erroneously hold that the Map Act, N.C.G.S. § 136-44.50 et seq., empowered NCDOT to exercise the power of eminent domain and that NCDOT exercised that power and took Plaintiffs’ property rights when it recorded protected corridor maps?

2. Did the Court of Appeals erroneously remand this matter for…

Continue Reading State Appeals NC “Map Act” Takings Case

Brost v. City of Santa Barbara, No. B246153 (Mar. 25, 2015) is an unpublished opinion, but (1) we hope the property owners ask the court to publish it, and (2) even if it remains unpublished, it is worth reading, because the court correctly applies both Williamson County‘s futility exception, and the “background principles” exception to a Lucas “wipeout” regulatory taking. 

It’s a longer opinion, but here’s the short story: the plaintiffs’ properties are in a part of the city that is an active landslide area. The city adopted an ordinance that prohibited new construction in the area. The plaintiffs’ homes were destroyed in a wildfire (not a landslide, mind you), and the city refused to allow them to rebuild and refused to amend the ordinance. The trial court held that the total prohibition was a regulatory taking, and “[t]o avoid having to compensate plaintiffs for a permanent taking, …

Continue Reading Cal App (Unpub): Temporary Prohibition On Rebuilding In A Landslide Zone Is A Taking

A couple of noteworthy conferences upcoming, one in-person, the other a “webinar” format:

  • The first is “Kelo: A Decade Later” at the U. Connecticut Law School, Friday, March 20, 2015, from 8:30 am – 4:30 pm. The conference promises to “look back at the decision and its repercussions,” and includes the lawyers for Ms. Kelo and the City of New London. “The conference will then explore the role of eminent domain in government planning generally. What role does and should eminent domain play in economic development?  What is the impact of post-Kelo changes to state law?  Does eminent domain have distinctive impacts on low income communities?  Leading scholars and practitioners in law, planning, sociology, and economics will explore these questions.” We note that our Connecticut Owners’ Counsel colleague Dwight Merriam is one of those “leading practitioners,” and will be moderating a panel entitled “Eminent Domain and Economic Development”

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Continue Reading Upcoming Conferences – Kelo In Connecticut, APA And The ESA

Frequent readers know that we just love the Australian comedy film “The Castle,” which tells the tale of one man’s legal fight to save his family’s home from the abusive exercise of eminent domain power. (See “Kelo Down Under,” our review.) The case is played for laughs and in the end, the homeowner naturally prevails, the private benefit is quashed by Australia’s High Court, and all’s well that ends well.

Those of us who practice this kind of law understand that real life doesn’t always — or even often — work out the way it does in the movies: the good guys may not always prevail, and even when things are looking up, the road ahead may be filled with many unexpected bumps and turns. 

So it is in “Leviathan,” the latest film from Russia’s Andrey Zvyagintsev.

Not that we would expect…

Continue Reading Movie Review: Leviathan – “The Castle” Gone Bad

Check out State ex rel. Sunset Estate Properties, LLC v. Village of Lodi, No. 2013-1856 (Mar. 10, 2015),  a case in which the Ohio Supreme Court held that a local zoning ordinance was unconstitutional on its face.

The Village’s zoning code, adopted in 1987, banned manufactured home (trailer) parks. Of course, the ordinance could not ban those parks already in existence, which were allowed as nonconforming uses. Sunset Estates was one such park.

The ordinance also provided that if a nonconforming use was discontinued for six months, that was evidence of the owner’s intent to abandon the nonconforming use:

Whenever a nonconforming use has been discontinued for a period of six months or more, such discontinuance shall be considered conclusive evidence of an intention to legally abandon the nonconforming use. At the end of the six-month period of abandonment, the nonconforming use shall not be re-established, and any further…

Continue Reading A Zoning Due Process Violation From The Land Of Euclid: Owner Can’t Lose Nonconforming Use By Actions Of Tenant