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January 24, 2012

Fed. Dist. Court in NY Dismisses Malicious Prosecution Claims Against Town for Enforcing Zoning Violations

 

 

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Fed. Dist. Court in NY Dismisses Malicious Prosecution Claims Against Town for Enforcing Zoning Violations

by Patricia Salkin

The property in question had been used for commercial purposes.  In 2003, the town had rezoned the property as solely residential.  Plaintiffs purchased the property in 2005, under the assumption that the property could continue to be used as commercial under a qualified pre-existing use.  The defendant town asserted that the property was not a qualified pre-existing use, however, plaintiffs continued to use the property for commercial uses.  Subsequently, in January 2006, the town sent a letter to plaintiffs explaining that the commercial use was a violation of permitted uses.  Plaintiffs ignored this letter and in March 2006 and October 2006, court appearance tickets were issued to plaintiff.  Related to this action, plaintiff contributed to a campaign of a state assembly candidate beginning in June 2006. 

Criminal informations were filed against the plaintiff in December 2006.  Other court appearance tickets were issued to the plaintiffs through 2007, 2008, and again in 2010.  In 2008, the town reassessed plaintiff’s property and raised the taxes substantially.  Plaintiff filed this action alleging that there was no probable cause to issue the tickets and, further, that the sole purpose was retaliation for the plaintiff’s political support of the assembly candidate. 

First, plaintiff alleged defendant had no probable cause for issuing the tickets against plaintiff and, thus, it must have been based on plaintiff’s political support.  The court found that plaintiff was in violation of the zoning laws and further that defendant’s letter was sent prior to any campaign donations.  Although the plaintiff asserts support of the candidate before the first letter was sent, the court found this argument implausible and insufficiently plead.  Thus, the court found that the defendant had probable cause for issuing the tickets and informations.  

Next, the plaintiff alleged malicious prosecution by defendants.  The court explained that a malicious prosecution requires the plaintiff to show seizure.  Seizure can be shown by either proving a liberty was deprived or that an unreasonable search of property occurred.  Here, the court found plaintiff had shown neither, thus, there was no seizure and no basis for a malicious prosecution claim.  Similarly, the court found that probable cause existed and that the plaintiff failed to show malice by defendants.  Thus, the plaintiff failed to prove any element of malicious prosecution. 

The court quickly dismissed the plaintiff’s abuse of process claim because of plaintiff’s failure to allege any plausible facts of defendant’s intent to harm them.  The court next discussed plaintiff’s First Amendment retaliation claim; retaliation for political speech.  The court again dismissed this claim for two reasons.  First, the court found that purchase of a parcel of land is not protected speech under the First Amendment and also because plaintiff has failed to present a causal connection between the plaintiffs political support and alleged retaliation as defendant’s letter was sent prior to plaintiff’s contribution. 

The court dealt next with plaintiff’s claim of selective enforcement.  The court asserted that in a successful selective enforcement claim, the plaintiff must give specific persons who are similarly situated but treated differently.  Plaintiff, found the court, failed to present specific persons, instead making conclusory statements alleging selective enforcement.  Although the court found plaintiff has standing to bring a 1983 challenge to a tax assessment in the district court, the court held that they again failed to prove this claim.  Finally, the court found that the prosecutor had prosecutorial immunity and was acting in his official capacity in prosecuting the plaintiff’s zoning violations.  Thus, the prosecutor was immune from civil liability.  In concluding, the court said punitive damages were unavailable for 1983 actions against municipalities and refused to award them. 

Parkash v. Town of Southeast, 2011 WL 5142669 (S.D.N.Y. 9/30/2011) 

The opinion can be accessed at: http://web2.westlaw.com/find/default.wl?rs=WLW11.10&rp=%2ffind%2fdefault.wl&vr=2.0&fn=_top&mt=208&cite=2011+wl+5142669&sv=Split

Patricia Salkin | January 24, 2012 at 1:46 am | Categories: Current Caselaw - New York, Enforcement | URL: http://wp.me/p64kE-1za

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inversecondemnation

inversecondemnation

 

Fla App: Inverse Condemnation Triggers "Sword-Wielder" Venue Exception

Posted: 24 Jan 2012 12:01 AM PST

Here's a short one for you civil procedure mavens: in Pinellas County v. Baldwin, No. 2d11-2274 (Jan. 20, 2012), the District Court of Appeal (Second District) concluded that a property owner could bring an inverse condemnation action against the County of Pinellas in a court in the County of HIllsborough.

Under Florida procedure, when suing the government, the action must, generally speaking, be brought in the government's home court. Thus, when suing a county, the proper venue for the lawsuit is in the trial courts of that county. But there are exceptions to that rule.

Here, Pinellas County owned a borrow pit physically located in Hillsborough County. Baldwin alleged that her land was permanently flooded and thus taken when the borrow pit overflowed as a result of construction. She instituted her inverse condemnation lawsuit against Pinellas County in the courts of Hillsborough County, and Pinellas moved to dismiss by asserting its "home venue privilege." The trial court denied the motion and the County appealed.

The Court of Appeal concluded that an exception to the home venue rule with the ominous label "sword-wielder" applied, because the official act complained of was performed outside of the county's home turf, and:

whether the state is the initial sword-wielder in the matter, and whether the plaintiff's action is in the nature of a shield against the state's thrust. If so, then the suit may be maintained in the county wherein the blow has been or is imminently about to be laid on.

Slip op. at 5 (quoting Dep't of Revenue v. First Federal Savings & Loan Ass'n of Fort Meyers, 256 So.2d 524, 526 (Fla. Dist. Ct. App. 1971)). Here, the County maintained its borrow pit in another jurisdiction and "[t]he unusual nature of Ms. Baldwin's claim for inverse condemnation is its extraterritorial aspect." Slip op. at 6. The court rejected the County's argument that it was not exercising government powers outside of its home venue, because it didn't matter in the end: the fact that the County was alleged to have taken the property without compensation was the act alleged to have triggered liability, and this qualified as the County's initial "thrust." The court thus suggested that the inverse condemnation claim was merely a shield.

We're not sure about the intricacies of Florida procedure, but this seems like this case could have been resolved in much the same manner on the basis that the County could hardly be heard to complain about venue when the res alleged to have been taken is in another county and the action that was alleged to have caused the taking was the County's borrow pit. But whatever the rationale, the result seems about right to us.



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9th Cir: No Vested Rights Taken By Oregon's Measure 49

Posted: 23 Jan 2012 03:56 PM PST

We've been watching Bowers v. Whitman, No. 10-24966 (Jan. 12, 2012), the case which challenged Oregon's Measure 49, the statute adopted by initiative that replaced and modified the earlier Measure 37. Measure 37, for those not aware, was the initiative measure by which Oregon voters required the state to compensate owners whose private property was devalued by land use regulations. It essentially required the state to either allow development or pay, even if the regulation did not run afoul of the high thresholds of regulatory takings doctrine.  

Back to Measure 49. That statute, as the Oregon Supreme Court held, "conveys a clear intent to extinguish and replace the benefits and procedures that Measure 37 granted to landowners." Corey v. Dep't of Land Conservation & Dev., 184 P.3d 1109, 1113 (Or. 2008). But what of those landowners in process under Measure 37 when the voters adopted the new law? Measure 49 "exempted a property owner from pursuing compensation pursuant to the new provisions in Measure 49 if the property owner had "a common law vested right . . . to complete and continue the use described in the waiver.' . . . Measure 49 does not mandate any particular process for establishing vested rights. Claimants seeking a vested rights determination generally either applied for a local decision or sued for a declaratory judgment." Bowers, slip op. at 245.

Property owners who had started the Measure 37 process but had not recovered compensation and were thus halted in their tracks, sued in federal court asserting a taking of their right under Measure 37 to compensation and other vested rights:

First, Bowers Plaintiffs alleged that there had been a "taking" of protected property in violation of the Fifth Amendment due process clause. Bowers Plaintiffs asserted that those property interests were "statutory rights to monetary compensation," "vested and accrued claim[s] for compensation," "legal entitlements . . . in lieu" of monetary compensation, or "Measure 37 waivers and the entitlement to monetary compensation." Second, Bowers Plaintiffs alleged that Measure 49 violates equal protection guarantees under the Fourteenth Amendment. Third, Bowers Plaintiffs alleged that Measure 49 violates substantive due process under the 14th Amendment.

Slip op. at 247. The Ninth Circuit rejected each of these arguments, and the bulk of the opinion is devoted to analysis of whether the plaintiffs possess rights that have "vested" and are thus protected "property" under the Takings Clause. Id. at 249 ("Thus, the critical issue is whether Plaintiffs’ Measure 37 property interests have vested such that Oregon could not remove or modifythe right without committing a constitutional taking.").

The court professed confusion as to what interest they asserted was the property right that had vested, id. at 250 ("we emphasize that Plaintiffs failed to articulate any clear characterization of the exact property interest to which they are entitled"), and rejected three possibilities: (1) "accrued causes of action" under Measure 37 were not vested property rights because they had not been reduced to final judgment, id. at 251; (2) the right to statutory compensation under Measure 37 was not vested because it was not an "express and unequivocal promise" to pay compensation, id. at 252-53; and (3) Measure 37 did not give the plaintiffs any rights to a particular land use. Id. at 253-54,

On the final claim the court analogized the Measure 37 rights to land use permits, and concluded those claims were not ripe under Williamson County.

More here from lawprof Jonathan Zasloff at Legal Planet blog. Thanks to colleague Dwight Merriam for the heads up on this decision.

Bowers v Whitman, No. 10-35966 (Jan. 12, 2012)  



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January 22, 2012

Fed. Dist. Court in NY Denies Preliminary Injunction to Construct an Eruv Finding No First Amendment nor RLUIPA Violations

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Fed. Dist. Court in NY Denies Preliminary Injunction to Construct an Eruv Finding No First Amendment nor RLUIPA Violations

by Patricia Salkin

Plaintiff East End Eruv Association (“EEEA”) and individual plaintiffs sought to construct an eruv to aid practicing Jews in traveling on the Sabbath without carrying or pushing objects which is prohibited by Jewish law.  The plan involved the attachment of lechis, or wooden or plastic strips, to telephone or utility poles.  The EEEA formulated a plan for the eruv which was planned to go through three municipalities: Southampton, Westhampton Beach, and Quogue.  

EEEA entered into an agreement with Verizon by which Verizon allowed the plaintiffs to attach the lechis to utility poles in all the districts.  The town of Southampton has a sign ordinance which requires a permit for any sign in the village and prohibits signs on any telephone or utility pole.  Southampton asserts that the lechis is a sign both because it “demarks and area” and because it “sends a message” as part of the eruv.  Plaintiffs argues that Southampton does not strictly enforce its sign ordinance, and presented evidence that it allowed up to six signs to remain posted over an eight month period.  Defendant town sent Verizon a letter explaining their view that the addition of a lechis would fall under their sign ordinance and Verizon would need to obtain a permit to construct.  Neither Verizon nor the plaintiff, however, ever applied to Southampton for a permit.  

The village of Westhampton Beach determined that the lechis is not a sign under their ordinance, however, the village sent a similar letter to Verizon indicating that the village must approve the lechis.  Further, trustees of the village indicated previously that they opposed the construction of the eruv.  Finally, the village Quogue similarly argues that the plaintiff must obtain permission before attaching any lechis because the construction constitutes an encroachment.  Plaintiff argues that the lechis are not an encroachment and, thus, the village code should not apply and also that the village only selectively enforces its code.  After some perceived resistance from municipalities, plaintiffs filed a preliminary injunction seeking the court to allow the eruv. 

The court began its analysis by dealing solely with the Southampton defendants.  First, the court dealt with defendant’s contention that the claim is not ripe.  The court found that since neither Verizon nor the plaintiff had applied for a permit or variance, and subsequently have not appealed any decision, the claim is not ripe for the district court.  Although plaintiffs argued the claim is ripe because any attempt would have been futile, the plaintiffs failed to prove that the town was legally opposed to the eruv such that any application would be futile. 

Next the Court considered whether to grant the preliminary injunction, i.e. whether the plaintiffs have shown a likelihood of success on the merits.  First, the court considered the Free Exercise of Religion claim.  Since the sign ordinance in Southampton is neutral, to receive strict scrutiny, the court explained, the plaintiff must show that the town selectively enforced its sign ordinance.  The court found that plaintiff’s allegations of selective enforcement were unfounded and although there were some signs around the town, plaintiff showed no relation to religious purposes.  Thus, plaintiff had a low likelihood of success on the merits.  Next, the court looked at the preliminary injunction under the RLUPIA claims.  Here, the court found that the plaintiffs had no property interest in any land, and thus, the rule was inapplicable.  Although plaintiff had an agreement with Verizon, this sublicense, finds the court, does not grant a property interest in the land.  Thus, again, plaintiff’s likelihood of success on the merits was low.  Finally, the court examined plaintiff’s tortuous interference claims.  Since plaintiff had not shown any breach of the contract between EEEA and Verizon, again, the court finds plaintiff has a low likelihood of success on the merits.  Thus, the court dismissed the application for a preliminary injunction in Southampton.  

Finally, the court turned to the Quogue and Westhampton defendants.  The court explained that since the proposal had the eruv traveling through all three municipalities, the relief sought by the plaintiff depended on the outcome of the Southampton decision.  The refusal to allow the eruv in any one municipality effectively disallowed construction.  Thus, since the court had not granted the preliminary injunction in Southampton, they court dismisses plaintiff’s claims against Quogue and Westhampton without prejudice.  The court did indicate, however, that before re-filing with court, plaintiff should propose their eruv plan to each village.  

East End Eruv Ass’n, Inc. v. Village of Westhampton Beach, 2011 WL 6156802 (E.D.N.Y. 11/3/2011) 

The opinion can be accessed at: http://web2.westlaw.com/find/default.wl?rs=WLW11.10&rp=%2ffind%2fdefault.wl&vr=2.0&fn=_top&mt=208&cite=2011+wl+6156802&sv=Split

Patricia Salkin | January 22, 2012 at 1:26 am | Categories: Current Caselaw - New York, Religious Uses - Non-RLUIPA, RLUIPA, Signs | URL: http://wp.me/p64kE-1z4

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January 20, 2012

School Districts are Subject to Municipal Zoning

Municipal Minute

 

School Districts are Subject to Municipal Zoning

Posted: 20 Jan 2012 06:00 AM PST

The issue of whether school districts must comply with municipal zoning ordinances has been a subject of debate between the districts and municipalities for some time.  Under Illinois law, school districts are not subject to local building codes, and instead must follow the building regulations contained in the Illinois School Code.  Some school districts have taken the position that this preemption of local building control also extends to zoning.  The Illinois Attorney General recently addressed the issue of local zoning control in an opinion dated December 23, 2011, No. 11-005.

 

The question posed to the AG was "whether Illinois public school districts are subject to either municipal or county zoning ordinances."  The AG responded that "public school districts are subject to municipal and county zoning ordinances, except to the extent that compliance with local zoning would frustrate a school district's statutory objectives." 

 

The opinion began with a summary of relevant statutes granting authority to municipalities and counties over zoning within their jurisdictions.  The opinion then analyzed provisions in the School Code, including Section 10-22.13a that provides that school boards may "seek zoning changes, variations, or special uses for property held or controlled by the school district," as well Section 10-20 providing that the authority granted by the School Code "does not release a school board from any duty imposed upon it by this Act or any other law."  Reading these two statutory provisions together, the AG determined that these statutes would be rendered superfluous if school districts were completely exempt from local zoning. 

 

In short, according to the Illinois Attorney General, school districts are subject to municipal zoning ordinances.  If a local zoning ordinance would interfere or frustrate the school district's statutory objectives, however, a school district can seek judicial review.  There is no automatic exemption in these circumstances; instead, the issue of whether a zoning ordinance frustrates a school district's objectives is a question of fact for the judge to resolve. 

 

Post Authored by Julie Tappendorf.



 

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January 19, 2012

Fed. Dist. Court in NY Dismisses Takings Claim for Failure to First Seek Compensation in State Courts

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Fed. Dist. Court in NY Dismisses Takings Claim for Failure to First Seek Compensation in State Courts

by Patricia Salkin

Plaintiffs’ property is surrounded by one public road and several private roads, and part of the property was marked with decorative boulders, landscaping, and blocks.  In 2005, an action was commenced in New York State Supreme Court, Nassau County by the Village to have this “barricade” declared a public nuisance and removed.  The Village argued that this barricade was a public nuisance to the residents living south of the barricade because it interfered with their rights to fire protection and police, ambulance, and other emergency services.  While the state court declared the barricade to be a public nuisance, it declined to issue a mandatory injunction that the barricade be removed but did issue an injunction that prevented the plaintiffs from interfering with the efforts of the Village to remove the barricade.  The Village subsequently removed the barricade and constructed a road on a 100-foot-by-25-foot portion of the plaintiffs’ property.  The plaintiffs alleged that the Village of Bayville seized a portion of their real property without providing just compensation. 

The court noted that the plaintiff must show that prior to commencing the lawsuit: 1) it had “obtain[ed] a final, definitive position as to how it could use the property from the entity charged with implementing the zoning regulations,” and 2) that it sought compensation for the alleged taking before going to federal court.  This applies to both regulatory and physical takings.  Under this precedent, if a State provides an adequate procedure to seek just compensation, a property owner may not claim a violation until it has sought and been denied just compensation.  Under New York law there are two provisions under which a property owner may seek just compensation.  The New York State Eminent Domain Procedure Law and Article I, Section 7 of the New York State Constitution.  Therefore, the Court dismissed the plaintiffs’ takings claim for failure to allege that they had availed themselves of any state procedures to obtain just compensation for the alleged taking.

Viteritti v. Incorporated Village of Bayville, 2001 WL 5838485 (E.D.N.Y. 11/21/2011) 

The opinion can be accessed here

Patricia Salkin | January 19, 2012 at 1:50 am | Categories: Current Caselaw - New York, Takings | URL: http://wp.me/p64kE-1yS

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January 17, 2012

CLTA Publishes 2011 Edition of the Annual Summary of Legislation

CLTA News Express

An Express Article from the California Land Title Association

CLTA Publishes 2011 Edition of the Annual Summary of Legislation

Bulletin 11/12-62 - December 16, 2011


The California Land Title Association is releasing its annual Summary of Legislation in a high-resolution electronic format, complete with live hyperlinks to chaptered bill text and exclusive web content. Members who prefer to keep paper copies of the Summary on-hand are of course free to print their own at any time.

As published last year, the 2011 edition of the CLTA Summary also contains brief summations of new legal cases deemed to be of relevance to the title industry. The case summaries, complete with citations, contain live links to the full case text for those interested in more detailed reading.

As always, the CLTA would like to thank its Legislative Committee members for their time dedicated to making this production an informative tool in the title industry. The CLTA would also like to thank Roger Therien with Westcor Land Title Insurance Company for providing the case summary information.

2011 Summary of Legislation, Including New Cases (PDF)

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January 16, 2012

e Virginia Supreme Court issued

Today, the Virginia Supreme Court issued a number of opinions affecting the practice of Virginia local government law. These summaries are from the Virginia Supreme Court website....  http://www.jdsupra.com/post/documentViewer.aspx?fid=fefc4b7e-56f7-4ff1-ae19-abfda8788ff2&utm_source=jds&utm_medium=twitter&utm_campaign=realestate

 Campbell County v. Royal 01/13/2012 In an action by landowners for damages resulting from contamination of groundwater, the trial court erred in granting summary judgment for the plaintiffs under the “Discharge of Oil Into Waters” Law, Code § 62-1.44.34:14 through § 62.1-44.34:23, because those statutes do not apply to the passive, gradual seepage of leachate and landfill gas into groundwater. Since no damage instruction was tendered setting forth the proper measure of recovery on the plaintiff’s alternative claim for inverse condemnation, there is no basis on which the plaintiffs can pursue that claim or retain the jury’s award of damages. The judgment is reversed and final judgment is entered for the county.

101352 Jean Moreau & Assoc. v. Health Center Comm’n 01/13/2012 In an action by a contracting party against a county healthcare commission arising out of an agreement to plan and develop an independent-living community, the circuit court did not err in dismissing a breach-of-contract claim because plaintiff did not comply with the contractual claims procedure for timely submission of claims under the Virginia Public Procurement Act, Code §§ 2.2-4300 through 2.2-4377, and did not err in finding that a quantum meruit claim was barred by the doctrine of sovereign immunity because it arose out of the commission’s exercise of a governmental function. The judgment of the circuit court is affirmed....

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January 15, 2012

Fed. Dist. Court in NY Overturns Planning Board’s Denial of Cellular Tower Finding Board’s Reasons for Denial Meritless

New post on LAW OF THE LAND


 


Fed. Dist. Court in NY Overturns Planning Board’s Denial of Cellular Tower Finding Board’s Reasons for Denial Meritless

by Patricia Salkin

Cellco required the construction of a cellular tower to meet local demand in the area of the Town of Colonie, NY and determined it should build the new cellular tower on the property of a local church.  To disguise the cellular tower, the equipment was entirely enclosed by constructing a sixty foot bell-tower, resulting in a permanent physical improvement to the church.  Thus, the cellular tower would be camouflaged-wholly invisible to the public-and the tower would permanently enhance the church, even if the cellular operation ceased.

Upon review, the Zoning Board of Appeals granted Cellco’s application for both height and use variances.  Cellco then filed their Minor Site Plan Review with the Planning Board.  Despite the site plan’s compliance with the town code and Zoning Board of Appeals granting the use and height variances, the Planning Board denied the application based upon the concern (seemingly pretextual) that the construction of the camouflaged cellular tower/bell tower would fundamentally alter the neighborhood, welcoming commercial uses into the residential area. 

In addressing Cellco’s allegation that the Town violated the TCA as their denial of the minor site plan was not supported by substantial evidence in the record, the court explained that substantial evidence standard requires less than a preponderance of the evidence but more than a scintilla of evidence.  In reviewing both the record and the Planning Board’s decision, the court found that the decision and denial of the planning board was “absurd” and “was not only unsubstantiated, but also wholly incompatible with the findings of Verizon's experts, the ZBA,” the Planning and Economic Development Department, and the Town’s engineer.

The court found the Planning Board’s first reason for denial, the visual affect of the construction, was meritless.  This was because the bell-tower was designed to match the color and architecture of the church, the telecommunications equipment was completely camouflaged, and the bell-tower was not visible unless the person is standing directly beneath it. Thus, any visual concerns were without foundation.

The court likewise determined that the Town’s second reason for denial, that the cellular bell-tower would not conform to the district, was meritless.  This was because the Zoning Board of Appeals found no issue with the tower being in the particular district and granted the use variance.  This determination by the Zoning Board of Appeals was binding on the Planning Board, thus the Planning Board’s denial could not stand on this ground.

Lastly, court addressed the Planning Board’s concern that the bell-tower would impact the historic nature of the community.  Since the New York State Office of Parks, Recreation and Historic Preservation found there are no historic structures in the area, the court found this basis for denial was unfounded and meritless as well.

In sum, the United States District Court, Northern District of New York found the Planning Board’s reasons for denying the application were devoid of any merit and constituted a violation of the Telecommunications Act of 1996.  Thus the court found the Planning Board was required to approve the application and provided Cellco with the immediate injunctive relief sought.

Cellco Partnership v. Town of Colonie, 2011 WL 5975028 (U.S.D.C, N.D.N.Y. 11/28/2011)

The opinion can be accessed at:http://docs.justia.com/cases/federal/district-courts/new-york/nyndce/1:2010cv00581/80878/27/0.pdf?1322573313

Patricia Salkin | January 15, 2012 at 1:44 am | Categories: Current Caselaw - New York, Wireless Communications | URL: http://wp.me/p64kE-1xr

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January 14, 2012

New post on LAW OF THE LAND


 


NY Appellate Court Finds Challenge to Town Local Law Regarding Zoning Designation for Property Owned by City within the Town is not Moot

by Patricia Salkin

Petitioner City of Glen Falls (hereinafter the city) owns approximately 855 acres of land (hereinafter the property) within the borders of respondent Town of Queensbury (hereinafter the town). The property was originally zoned as PR-10A, which requires ten acres of developable land for every principal use or structure. However, In November 2004, the town enacted Local Law No. 10 (2004) which amended the zoning law and changed the property’s zoning designation to PR-42A, now requiring forty-two acres of developable land for every principal use or structure. The city brought an action pursuant to CPLR article 78 and an action seeking declaratory judgment challenging the Local Law.  In April 2005, the two parties entered into a stipulation, adjourning the litigation subject to certain conditions. Four years later, the town enacted Local Law No. 3 (2009), which repealed and replaced the zoning law then in effect but left the property zoned as PR-42A. The City then brought this action. The Supreme Court granted the Town’s motion to dismiss, finding the matter moot, and the City appealed. 

The appellate court held the matter is not moot. Noting first that Local Law No. 3 contains the same PR-42A designation as Local Law No. 10, and any declaration that the designation of the property as PR-42A “constitutes an unconstitutional taking speaks to the legality of the property’s current zoning designation . . .  and thus would have a direct effect on the rights of the parties.” Second, the invalidation of Local Law No. 3 would revive Local Law No. 10 which was the law at issue in the first dispute. The Court also opined that, in the interest of judicial economy, the two proceedings – the one challenging Local Law No. 3 and the one challenging Local Law No. 10 – be consolidated upon remittal. The Court therefore reversed the trial court and remitted the matter to the Supreme Court. 

City of Glen Falls v. Town of Queensbury, 933 N.Y.S.2d 762 (3 Dept 12/1/2011) 

The opinion can be accessed at: http://decisions.courts.state.ny.us/ad3/decisions/2011/512298.pdf

Patricia Salkin | January 14, 2012 at 1:41 am | Categories: Current Caselaw - New York, Rezoning | URL: http://wp.me/p64kE-1xE

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January 13, 2012

HAWSCT: Appellate Jurisdiction Triggered By Signed Water Commission Minutes

inversecondemnation

 


Movie Review: "You've Been Trumped" - Is "More" And "Better" Always Preferable?

Posted: 12 Jan 2012 10:02 PM PST

YouvebeentrumpedDonald Trump has more money than you. He's also a huckster, a self-aggrandizing showman, a judgmental snob, and an eminent domain abuser with more than a hint of mean lying just below the surface. And he has really weird hair.

But we already knew that, and if these are the only insights to be taken from You've Been Trumped (Montrose Pictures 2011), the new documentary by director Anthony Baxter, the film would add little to the conversation.

But at its core, You've Been Trumped demands more of its audience by posing an essential question: in the "supersized" consumerist culture epitomized by Mr. Trump, is "better" inherently preferable? The film highlights his belief that modest, traditional, and worn-at-the-heels should naturally give way to glitzy, contemporary, and grandiose.

The U.S. Supreme Court sided with Mr. Trump's philosophy in Kelo v. City of New London, the case where the Court's majority allowed the taking of modest homes because the government asserted that someone else might make a more economically intensive use of the property. As Justice Sandra Day O'Connor wrote in her Kelo dissent, "[n]othing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory." That's what unfolds in You've Been Trumped. But instead of being replaced by a Ritz-Carlton, a shopping mall, or a factory, the modest homes and farms stand in the way of what Mr. Trump calls, with typical hype, "the greatest golf course anywhere in the world." And the venue is Aberdeenshire, Scotland (because, you know, Scotland has a critical shortage of golf courses, especially those on which the cheapest greens fee is £120.00 ($185)).

The property owners in the way of the golf course resist. After the local council fails to approve the project and the Trump organization threatens to take it elsewhere, along with its promised jobs and economic development, in an unprecedented move, the Scottish government removes consideration of the project from the local council, and the green light to build soon follows. Some thought is given to "compulsory purchase" (eminent domain), but that is rejected by the government as "inappropriate."

If this all sounds familiar, it is. In Local Hero, a fictional account of the objections of the quirky residents of a Scottish town to an oil tycoon's plans to turn their village into a refinery, the story is played for subtle laughs -- we tend to idealize eccentric locals with quaint accents -- and that film has, inevitably, a happy ending. But that was fiction, and the outcome depicted in You've Been Trumped is much less satisfying.

Eventually, Mr Trump decides to build around the objectors. Each in turn confronts difficulties: in a particularly uncomfortable sequence, the farmer is derided by Mr. Trump as living in a "pig-like atmosphere -- it's disgusting" and his water is cut off, perhaps accidentally, perhaps not; another neighbor is informed that a portion of his garage was built on Trump land and is going to be removed; and even the director ends up in trouble when he is arrested by the local police and his camera and footage is confiscated, simply for filming.

The objectors seem as much disturbed by the lack of respect paid them and their way of life as by Mr. Trump's heavy-handedness -- a familiar theme in these kind of films, the most recent example of which is Battle for Brooklyn, another documentary bearing witness to a property-owners-vs-developer fight. That film was the product of a tight edit -- the filmmakers shot over 500 hours of footage which they reduced to 93 minutes -- and You've Been Trumped would benefit from similar treatment, because the film plays out as a series of loosely-connected vignettes rather than a cohesive narrative. We're initially led to believe this is shaping up as a compulsory purchase fight when the issues shift to the destruction of sand dunes, and then back to the property rights issue. That may be the way the situation actually played out, but it would have helped the film if we were provided a clearer picture of where the battle lines had been drawn, and how the fight progressed.

Even with these minor imperfections, the film excels at contrasting Mr. Trump's greed-is-good ethos with the simple lives of his adversaries who seem to want nothing more than to continue on as they had been before his private jet landed and he set his designs on yet another edifice bearing the Trump name. There's no mistaking on which side the filmmaker thinks you should come down.

The danger with this type of documentary is that it fails to provide a fair overview of the subject or the situation, and indeed, Mr. Trump has claimed that the film is factually inaccurate. But just when you sense that Mr. Baxter, the filmmaker, may have crossed the line from directing a traditional documentary to a Michael Moore-ish attack piece, Mr. Trump's attitude and his own words dispel whatever discomfort you may have begun to feel:

§ "When I look out in the ocean from the 18th hole of Trump International Golf Links, to be honest with you, I want to see the ocean, I don't want to see windmills."

§ "I look at Mr. Forbes [one of the objectors] and his disgusting conditions in which he lives, and that people have to look at that. ... For people to have to look at this virtual slum is a disgrace. Mr. Forbes is not a man that people in Scotland should be proud of."

§ "We've had tremendous support from the environmental groups ... I've received many environmental awards over the years. I think the greatest thing I've ever done for the environment is what I will be doing right here in Aberdeen."

§ Mr. Trump claims he is building the resort "for the people of Scotland," and that it will be "done environmentally perfect."

One suspects that any injury his image may suffer as a result of this film is an entirely self-inflicted wound.

Often lacking finesse and decidedly one-sided, You've Been Trumped is anything but subtle. If the film's goal is to make you think Mr. Trump is a jerk, it succeeds wildly. But perhaps that was inevitable in a documentary with him as its chosen subject.

-------------------------------------------

You've Been Trumped: Hawaii premiere, Friday, January 13, 2012 at 7:30 p.m. at the Doris Duke Theater at the Honolulu Academy of Arts. There is a pre-screening reception from 6:00 - 7:30, so please come early. I will be introducing the film and leading a Q-and-A session after the screening along with the Sierra Club's Anthony Aalto (journalist, writer and Chair of The Capitol Watch - the Sierra Club’s lobbying arm).



HAWSCT: Appellate Jurisdiction Triggered By Signed Water Commission Minutes

Posted: 12 Jan 2012 09:52 AM PST

At yesterday's Hawaii Water Law Conference, several presenters discussed what is known as the "East Maui water case" (that is easier to say than "In re Petition to Amend Interim Instream Flow Standards for Waikamoi, Puohokamoa, Haipuaena, Punalau/Kolea, Honomanu, West Wailuaiki, East Wailuaiki, Kopiliula, Puakaa, Waiohue, Paakea, Kapaula, and Hanawi streams"), which was up before the Hawaii Supreme Court on a certiorari application after the Intermediate Court of Appeals dismissed the case for lack of appellate jurisdiction. The Water Commission denied the petitioner's request for a contested case, and the ICA dismissed the appeal from the Water Commssion because under the Hawaii Admistraitve Procedures Act, there was no final order from which the petitioners could appeal.

But by the time we all returned to our offices late in the day, the Hawaii Supreme Court had granted the application for certiorari and summarily vacated the ICA's dismissal, and sent the appeal back to that court "for disposition" on the merits.

Under the Water Code, the ICA has appellate jurisdiction to review under section 91-14 of the APA a final decision of the Water Commission in a "contested case." The Hawaii Supreme Court has previously concluded that an order denying a request for a contested case is itself appealable from the "appeals from contested cases" provision in this statute.

The court concluded the ICA has appellate jurisdiction because the Acting Depty Director to the Chairperson of the Board of Land and Natural Resources certified the Water Commission minutes by signing them, and "[t]he decision, as reflected in the minutes of the Commission's October 18, 2010 meeting, is a final decision of the Commision for which judicial review may be sought pursuant to HRS § 91-14(a)." Order at 2.

In our view, the more interesting question to be resolved is whether the Water Commission's setting or amending interim instream flow standards under the Water Code must be accomplished by a "contested case" (a quasi-judicial administrative hearing). Under Haw. Rev. Stat. § 91-1, a "contested case" is an agency proceeding "in which the legal rights, duties, or privileges of specific parties are required by law to be determined after an opportunity for agency hearing." The issue of whether establishing the amount of water that must be in a stream in order to "protect the public interest in [that] particular stream" is one that determines the rights of specific parties and thus must be accomplished by litigation, or is more in the nature of a legislative determination, is one we will be following closely.

Disclosure: we represent the Hawaii Farm Bureau in this case, although we did not file a brief or take a position on the issue presented in the application for certiorari.
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January 12, 2012

Third Circuit Court of Appeals Holds Just Compensation Claim Is Not Precluded

 

 

New post on LAW OF THE LAND


 


Third Circuit Court of Appeals Holds Just Compensation Claim Is Not Precluded

by Patricia Salkin

In 1986, RACM and a developer sought to revitalize the waterfront in Conshohocken, Pennsylvania, and came to an agreement that RACM would condemn properties as blighted and transfer the properties to the developer.  Specifically, RACM could only condemn properties upon the direction of the developer.  In 1996, at the developer’s direction, RACM condemned the plaintiff’s property, which transferred titled to RACM.  The Pennsylvania Commonwealth Court found the condemnation to be unlawful on the grounds that RACM had delegated its eminent domain authority to a private party. 

After the plaintiff prevailed, just compensation was sought in federal court, as during the pendency of the litigation, spanning numerous years, RACM held title to the subject property.  The first action in federal court was dismissed because the claim was not ripe, as the plaintiff could seek recovery under state law.  The plaintiff then brought the second state action for just compensation, and in so doing reserved their federal claim for later resolution in federal court.  The Commonwealth Court dismissed the just compensation claim based on the state’s eminent domain law.  The plaintiff followed this defeat with the second federal action.  The district court then dismissed the second federal action as the claim was barred by issue preclusion. 

First addressing claim preclusion, or res judicata, the Third Circuit found no reason to dismiss. The court noted that the plaintiff separated the state and federal compensation issues at the outset of the second state action and the defendants failed to object.  Under Pennsylvania law, where the plaintiff splits a claim and the defendants acquiesce (such as by failing to object), the courts cannot find that claim preclusion should result in dismissal. 

The court then addressed the defendants’ contention that dismissal should still lie as the claim should be barred by issue preclusion.  The court dispensed with this ground, finding the claim should not be barred based on issue preclusion, as the Fifth Amendment just compensation issue had not been litigated in state or federal court, and there was never a determination on the issue.

Next, the defendants alleged the action should be dismissed due to failure to state a claim as there was no taking.  The court rejected this argument, finding that RACM’s acquisition of the subject property’s title resulted in a per se taking.  Further, the court provided that where the government takes the title of a property, the property owner is entitled to compensation.

Likewise, the court addressed and rejected the defendants claim that the just compensation claim should be dismissed as untimely.  The court stated that until just compensation has been denied, the landowner has not yet sustained an injury, and does not have a federal takings claim.  Since the action was brought within months of the state court’s denial of just compensation for the taking, the action was brought in a timely manner, according to any applicable statute of limitations, and should not be dismissed.

Having reversed the district court’s dismissal and rejecting the defendants’ supplemental grounds for dismissal, the Third Circuit also vacated the district court’s order dismissing the plaintiff’s pendent state law claims.  The court vacated this order because there is now a viable federal cause of action, and the district could is to determine whether to dismiss the state law claims based upon a different standard.

R & J Holding Co. v. Redevelopment Auth. of the County of Montgomery, 2011 WL 6117857 (C.A., 3rd Cir. 12/8/2011)

The opinion can be accessed at: http://www.ca3.uscourts.gov/opinarch/101047p.pdf

Patricia Salkin | January 12, 2012 at 1:47 am | Categories: Current Caselaw, Takings | URL: http://wp.me/p64kE-1yk

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January 10, 2012

NH Supreme Court Holds Lowering of Pond Water Level did not Constitute a Taking of Property

New post on LAW OF THE LAND


 


NH Supreme Court Holds Lowering of Pond Water Level did not Constitute a Taking of Property

by Patricia Salkin

The plaintiffs own land abutting a pond that is controlled by the State.  Additionally, the pond is part of a local park, including a beach and playing fields.  The pond’s water level is regulated by beaver dams.  In order to stabilize the water level of the pond, pipes were put into the beaver dams, and some of these pipes were inserted on beaver dams that were on the land of the plaintiffs and in other instances were within the setback to the plaintiffs’ land.  Two of these pipes where constructed without the required permits and notice was not provided to the plaintiffs.  Subsequently, the Town breached additional beaver dams and lowered the aforementioned pipes to lower the water level of the pond by almost two feet. The reduction in water level resulted in more beach area for the park, and also lessened the financial cost of improving the park’s playing fields.

Among other claims, the plaintiffs alleged the acts of the State and the Town of Lyme resulted in a taking of their property.  The Supreme Court began by stating that it would construe the case as a matter of inverse condemnation.  With respect to the taking allegation, the court looked to more than the property itself, also taking into account one’s use and enjoyment of the property.  Thus, interference with the use or enjoyment of the property may constitute a taking, but would it would need to be more than a mere annoyance and would need to be direct, peculiar, and of sufficient magnitude requiring the burden to be borne by the entire public, and not just the land owner. 

In addressing the merits of the claim, the Supreme Court found the allegations in the writ were not sufficient to state a claim for a taking of the plaintiffs’ property.  Allegations that the lowering of the water level adversely affected the plaintiff’s access to the water and interfered with the use of the property did not support the taking claim because such allegations did not sufficiently allege that the lowering of the water level substantially interfered with the use or enjoyment of the plaintiffs’ property.  As such, the Supreme Court of New Hampshire affirmed the Superior Court’s ruling, finding there was no unconstitutional taking of the plaintiffs’ land.

Morrissey v. Town of Lyme, 2011 WL 6188508 (NH 12/8/2011)

The opinion can be accessed at:  http://www.courts.state.nh.us/supreme/opinions/2011/2011130morrissey.pdf

Patricia Salkin | January 10, 2012 at 1:06 am | Categories: Current Caselaw, Takings | URL: http://wp.me/p64kE-1yr

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January 09, 2012

bills which affect the Office of Real Estate Appraisers

On October, 9, 2011, Governor Brown signed two legislative bills which affect the Office of Real Estate Appraisers and licensed appraisers. Both bills become law on January 1, 2012.
For information:

SB 6 by Senator Ron Calderon (D - Montebello)--Real estate: appraisal and valuation (Chapter 716, Statutes of 2011)

SB 706 by Senator Curren Price (D - Los Angeles)--Business and professions (Chapter 712, Statutes of 2011)

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Delaware Supreme Court Invalidates Use Variance Where ZBA was Not Properly Constituted

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Delaware Supreme Court Invalidates Use Variance Where ZBA was Not Properly Constituted

by Patricia Salkin

Following the granting of use variances to allow for partial demolition of a mansion to use as a 35-unit multi-family apartment building for senior housing, petitioners appealed and the superior court upheld the zoning board’s decision. The petitioners then appealed to the Supreme Court alleging that the variances were illegally issued because the zoning board was not properly composed, the variance conflicts with the City’s comprehensive plan, and because the record lacked substantial evidence to support the required finding of unnecessary hardship.

The Supreme Court of Delaware concluded that the zoning board was not properly constituted and that therefore it was without authority to act, and it reversed the judgment of the superior court. As a result, the Court had no reason to consider the remaining two claims. The zoning board of appeals was comprised of three city employees – an employee of the City Department of Real Estate and Housing, an employee of the Department of Public Works, and the First Assistant City Solicitor - and at the conclusion of the hearing on the variance application, the three members unanimously approved the requests.  According to state statute, in cities that do not have home rule charter (such as the City of Wilmington), the zoning board “shall consist of the chief engineer of the street and sewer department, the city solicitor and the mayor or an authorized agent of the mayor.  If the city or incorporated town has no city engineer or city solicitor, then the mayor or chief executive of such city or town shall appoint 2 members…”  Both sides agreed that neither the City Solicitor nor the City Engineer served on the ZBA for purposes of approving the use variance.  The First Assistant City Solicitor sat in for the Solicitor, and the public works employee sat in for the city engineer, while the Department of Real Estate and Housing employee was the mayor’s authorized agent.

The Supreme Court held that while the plain and unambiguous language of the statute allows for the mayor to appoint a designee, and that such language does not exist for the engineer or city solicitor. The court rejected the City’s argument that department heads could appoint someone to represent them.  With respect to the City’s argument that such an interpretation is onerous on the statutorily defined employees, the Court noted that the statute allows for an alternative composition only where the home rule charter city eschews the option of establishing a board of adjustment under the statutory section.  Therefore the statute gave the city a choice as to which option it wished to pursue.

Friends of the H. Fletcher Brown Mansion v City of Wilmington, 2011 WL 6148717 (De. 12/12/2011).

The opinion can be accessed at: http://courts.delaware.gov/opinions/download.aspx?ID=165020

Patricia Salkin | January 9, 2012 at 1:52 am | Categories: Current Caselaw, Zoning Boards of Appeal | URL: http://wp.me/p64kE-1yc

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January 08, 2012

inversecondemnation

inversecondemnation

 

Fla App: Indian-Owned Land Is Not "Aboriginal Land" Immune From Eminent Domain

Posted: 08 Jan 2012 12:34 AM PST

In Miccosukee Tribe of Indians of Florida v. Dep't of Environmental Protection, No. 2D11-2797 (Dec. 30, 2011), the Florida District Court of Appeal (Second District) held that land owned by the Miccosukee Tribe was not immune from being condemned by the State o Florida.

The tribe purchased three parcels but did not immediately take action to have the federal government take title in trust for the tribe (which apparently would have protected it). Six years later, it filed a "fee-to-trust" application with the feds, but before the Department of the Interior could take any action, Florida instituted an eminent domain action to take the parcels for an Everglades restoration project. The tribe asserted sovereign immunity, but the court allowed the taking.

The appeals court affirmed, concluding that because a condemnation action is "in rem" (against the land) and not "in personam," the tribe's immunity from lawsuits did not extent to an eminent domain action against its property. The court relied on Cass County Joint Water Resource District v. 1.43 Acres of Land in Highland Township, 643 N.W.2d 685 (N.D. 2002), "a case that is quite similar to the present case," holding that the tribe's status as a federally-recognized tribe did not mean that its property outside its "aboriginal land" is immune.

The Department of Environmental Protection does not need personal jurisdiction over the Tribe—it needs only in rem jurisdiction over the land. And the land in question is not tribal reservation land, is not within the aboriginal homelands of the Tribe, is not allotted land, and is not held in trust by the federal government for the Tribe. Therefore, on these facts, the Tribe's sovereign immunity is not implicated and does not bar this eminent domain action.

Slip op. at 6-7. The court also rejected the tribe's argument that federal law prohibited the taking, concluding that the Nonintercourse Act, which prohibits conveyance or purchase of indian lands unless accomplished by treaty, did not apply. This statute is inapplicable when a tribe acquires land from private parties:

Since this land was purchased on the open market in fee simple, is not within the confines of the Tribe's reservation, has apparently never been held in trust for the Tribe, and was privately owned for an extended period of time before the Tribe's purchase, the provisions of the Nonintercourse Act simply do not apply to this land. Thus, the protections of the Nonintercourse Act do not preclude this eminent domain proceeding.

Id. at 9.



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Agriculture And Property Rights: Why Hawaii Matters

Posted: 07 Jan 2012 09:50 PM PST

AFBF-annual
On Monday, January 9, 2012, I'll be speaking to my American Farm Bureau Federation colleagues, who are in town for the AFBF annual meeting.

The title of my presentation is "Agriculture and Property Rights: Why Hawaii Matters." I'll be talking water rights, GMO, right-to-farm, eminent domain, and other issues to the lawyers who represent farmers and ranchers. I'll record it and post it here on Monday.

Check out the AFBF's annual meeting blog here.



Redevelopment Developments

Posted: 07 Jan 2012 04:09 PM PST

Here's what we're reading today:

§ Blight barons of redevelopment plot comeback - Steven Greenhut (O.C. Register): "As of February, anyway, redevelopment is dead in California, the victim of an absurdly arrogant legal and political strategy pursued by redevelopment's chief defenders. This is wonderful news, made even better by the teeth-gnashing of public officials who have routinely abused their powers under redevelopment law. Cry me a river. But before I gloat too much, we need to remember that this victory already resembles one of those cheap horror movies where the Evil Thing has been vanquished, and all appears well, then its hand pokes out from the grave just as the credits begin."

§ RDA Timeline: Hatchet to Fall Feb. 1 - via California Planning & Development Report: "State senators Alex Padilla and Luis Alejo have reportedly introduced Senate Bill 659, which would extend the deadline for agencies' dissolution for several months. Though it will be heard soon in the Senate Local Government Committee, its chances of success remain unclear."

§ Supreme Court Upholds Elimination of Redevelopment in California - Now What? - from the California Eminent Domain Report - the archive of their presentation about the next possible steps.

§ As redevelopment death sentence nears, protest volume rises - via the Santa Rosa Press Democrat: "Sonoma City Manager Linda Kelly said the loss of redevelopment money is on the same scale as the passage of Proposition 13, the landmark 1978 ballot initiative that slashed property tax rates in California."



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inversecondemnation

inversecondemnation

 

Fla App: Indian-Owned Land Is Not "Aboriginal Land" Immune From Eminent Domain

Posted: 08 Jan 2012 12:34 AM PST

In Miccosukee Tribe of Indians of Florida v. Dep't of Environmental Protection, No. 2D11-2797 (Dec. 30, 2011), the Florida District Court of Appeal (Second District) held that land owned by the Miccosukee Tribe was not immune from being condemned by the State o Florida.

The tribe purchased three parcels but did not immediately take action to have the federal government take title in trust for the tribe (which apparently would have protected it). Six years later, it filed a "fee-to-trust" application with the feds, but before the Department of the Interior could take any action, Florida instituted an eminent domain action to take the parcels for an Everglades restoration project. The tribe asserted sovereign immunity, but the court allowed the taking.

The appeals court affirmed, concluding that because a condemnation action is "in rem" (against the land) and not "in personam," the tribe's immunity from lawsuits did not extent to an eminent domain action against its property. The court relied on Cass County Joint Water Resource District v. 1.43 Acres of Land in Highland Township, 643 N.W.2d 685 (N.D. 2002), "a case that is quite similar to the present case," holding that the tribe's status as a federally-recognized tribe did not mean that its property outside its "aboriginal land" is immune.

The Department of Environmental Protection does not need personal jurisdiction over the Tribe—it needs only in rem jurisdiction over the land. And the land in question is not tribal reservation land, is not within the aboriginal homelands of the Tribe, is not allotted land, and is not held in trust by the federal government for the Tribe. Therefore, on these facts, the Tribe's sovereign immunity is not implicated and does not bar this eminent domain action.

Slip op. at 6-7. The court also rejected the tribe's argument that federal law prohibited the taking, concluding that the Nonintercourse Act, which prohibits conveyance or purchase of indian lands unless accomplished by treaty, did not apply. This statute is inapplicable when a tribe acquires land from private parties:

Since this land was purchased on the open market in fee simple, is not within the confines of the Tribe's reservation, has apparently never been held in trust for the Tribe, and was privately owned for an extended period of time before the Tribe's purchase, the provisions of the Nonintercourse Act simply do not apply to this land. Thus, the protections of the Nonintercourse Act do not preclude this eminent domain proceeding.

Id. at 9.



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Agriculture And Property Rights: Why Hawaii Matters

Posted: 07 Jan 2012 09:50 PM PST

AFBF-annual
On Monday, January 9, 2012, I'll be speaking to my American Farm Bureau Federation colleagues, who are in town for the AFBF annual meeting.

The title of my presentation is "Agriculture and Property Rights: Why Hawaii Matters." I'll be talking water rights, GMO, right-to-farm, eminent domain, and other issues to the lawyers who represent farmers and ranchers. I'll record it and post it here on Monday.

Check out the AFBF's annual meeting blog here.



Redevelopment Developments

Posted: 07 Jan 2012 04:09 PM PST

Here's what we're reading today:

§ Blight barons of redevelopment plot comeback - Steven Greenhut (O.C. Register): "As of February, anyway, redevelopment is dead in California, the victim of an absurdly arrogant legal and political strategy pursued by redevelopment's chief defenders. This is wonderful news, made even better by the teeth-gnashing of public officials who have routinely abused their powers under redevelopment law. Cry me a river. But before I gloat too much, we need to remember that this victory already resembles one of those cheap horror movies where the Evil Thing has been vanquished, and all appears well, then its hand pokes out from the grave just as the credits begin."

§ RDA Timeline: Hatchet to Fall Feb. 1 - via California Planning & Development Report: "State senators Alex Padilla and Luis Alejo have reportedly introduced Senate Bill 659, which would extend the deadline for agencies' dissolution for several months. Though it will be heard soon in the Senate Local Government Committee, its chances of success remain unclear."

§ Supreme Court Upholds Elimination of Redevelopment in California - Now What? - from the California Eminent Domain Report - the archive of their presentation about the next possible steps.

§ As redevelopment death sentence nears, protest volume rises - via the Santa Rosa Press Democrat: "Sonoma City Manager Linda Kelly said the loss of redevelopment money is on the same scale as the passage of Proposition 13, the landmark 1978 ballot initiative that slashed property tax rates in California."



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January 07, 2012

Opinion And Oral Argument Recording In Hawaii Supreme Court Redistricting Case

inversecondemnation

 

Opinion And Oral Argument Recording In Hawaii Supreme Court Redistricting Case

Posted: 06 Jan 2012 05:56 PM PST

The Hawaii Supreme Court has issued its opinion in the redistricting casesHere it is.

More to come after a chance to digest it.

Here is the oral argument:

Stream it above or download it here.

Solomon v. Abercrombie, No. SCPW-11-0000732 (Haw. Jan 6, 2012)    



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January 03, 2012

S. D. Supreme Court Holds Developers Remain Liable for Improvements After Sureties Expire But Before City Accepts Ownership

 

 

New post on LAW OF THE LAND


 


S. D. Supreme Court Holds Developers Remain Liable for Improvements After Sureties Expire But Before City Accepts Ownership

by Patricia Salkin

Developers Doyle Estes, Big Sky, LLC, and Dakota Heartland, Inc., were in the process of developing the Big Sky subdivision in Rapid City, South Dakota.  Rapid City Municipal Code required that developers wishing to subdivide land within the City’s jurisdiction, as a condition for obtaining final plat approval, pay for public improvements or sureties promising to make improvements such as streets, curbs, gutters, property markers, sidewalks, street lights, traffic signs, water mains, sanitary sewers, and storm sewers.  The developers had applied for final plat approval on 15 subdivision plats, for which subdivision improvements had either been made or sureties had been posted guaranteeing their completion.  However, before the City had completed final inspections and issued approvals, the sureties expired, leaving a number of improvements in a deficient state such that the City was unwilling to formally accept their ownership and maintenance.  Developers claimed they had informed their sub-contractors of the deficiencies, but that efforts to remedy the deficiencies had either failed or were never undertaken.  While the developers claim they spent $5.16 million to install the public improvements, as well as $77,400 paid to the City for inspection of those improvements, the City had still not accepted ownership responsibility for the improvements. 

 In 2008, the City filed suit seeking to compel developers or satisfy their obligations to build or correct deficiencies in the promised public improvements, requesting either injunctive relief or an order from the court requiring that the developers specifically perform the terms of the agreement.  The state circuit court granted developers motion for summary judgment, agreeing with the developers that the expiration of the sureties had ended the developers’ liability for the improvements.  The City appealed.

 After reviewing the City’s ordinances, which set out the public improvement requirements and the process for obtaining final plat approval, the South Dakota Supreme Court determined that the circuit court had erred in granting summary judgment to the developers, principally on the basis of public policy.  The court noted that holding for the developers would mean endorsing a system in which “any time a surety is posted, a developer can do nothing and hope that the city will let the surety expire.”  Since such a result would thwart the purpose of the regulations, the court held that the developers remained liable for the improvements until the City accepted the improvements by final acceptance letter and agreed to take ownership of them.  The decision of the lower court was reversed and the case was remanded for further proceedings.

 City of Rapid City v. Estes, 2011 WL 5866214 (S.D. 11/16/11)

The opinion can be accessed at: http://statecasefiles.justia.com/documents/south-dakota/supreme-court/25868.pdf?ts=1323966998

Patricia Salkin | January 3, 2012 at 1:46 am | Categories: Current Caselaw, Performance Bond, Subdivision Regulation | URL: http://wp.me/p64kE-1xl

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January 01, 2012

New Article: New Media Strategies For Marketing Your Eminent Domain Practice

inversecondemnation

 

New Article: New Media Strategies For Marketing Your Eminent Domain Practice

Posted: 01 Jan 2012 12:01 AM PST

At the 2010 ALI-ABA eminent domain conference, Anthony Della Pelle (NJ Condemnation Law blog), Nancy Myrland (social media marketing consultant), and I presented a session on how condemnation lawyers can leverage social media to build their law practices.

This month's edition of The Practical Real Estate Lawyer includes my short article based on the materials I presented at the conference, The Social Lawyer: New Media Strategies For Marketing Your Eminent Domain Practice (Jan. 2012). 

The Social Lawyer: New Media Strategies For Marketing Your Eminent Domain Practice - The Practical Real Est...  



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post on LAW OF THE LAND

 

 

New post on LAW OF THE LAND


 


Fed. Dist. Ct in NY Dismisses Congregation’s Lawsuit Over Permit Revocation for Catering Operation on Collateral Estoppel Grounds

by Patricia Salkin

Yeshiva Imrei Chaim (Congregation), owner and operator of a religious school and synagogue in Brooklyn commenced a lawsuit in federal court alleging it experienced disparate treatment by the City of New York concerning the use of a catering establishment in the building.  The City Department of Buildings (DOB) issued a certificate of occupancy in 1999 to allow the basement to be used for the catering operation, but in 2002 the DOB reexamined the basement and determined that since the building was in a residential district, it could not include the catering operations.  In 2005, DOB filed an action before the Board of Standards and Appeals to revoke the designation.  Later the same year, the Congregation filed for a variance to allow it to continue the catering operation. The Board denied the Congregation’s request and approved DOB’s request to remove the designation. In 2007, the Congregation brought an action in state court challenging the removal of the designation, which was denied and they failed to continue to appeal the opinion. In 2010, the Congregation filed the present action in federal court. The District Court granted summary judgment to the City, holding that collateral estoppel applied, and it declined to exercise supplemental jurisdiction on the state law claims.

Yeshiva Imrei Chaim Viznitz of Boro Park v City of New York, 2011 WL 3273273 (S.D.N.Y. 7/27/2011).

Hat Tip to Environmental Law In New York (November 2011) from which this abstract is excerpted.

Patricia Salkin | January 1, 2012 at 1:00 am | Categories: Collateral Estoppel, Current Caselaw - New York | URL: http://wp.me/p64kE-1yI

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December 29, 2011

Minnesota Supreme Court Rules for Property Owners/Renters In Red Wing Challenge

Minnesota Supreme Court Rules for Property Owners/Renters In Red Wing Challenge

http://ij.org/about/4234
WEB RELEASE:
December 28, 2011
CONTACT: John Kramer (703) 682-9320

.social.dark .widget { clear:left; }

 

[Private Property]



Red Wing, Minn.
—Today the Minnesota Supreme Court handed down an important victory for Red Wing property owners and renters and for citizens across the state of Minnesota. The court allowed a property rights case to go forward that had been tied up by procedural hurdles for more than five years. The case challenges Red Wing’s rental inspection program, under which the city can enter and inspect people’s homes without any evidence that a code violation has taken place. The decision, which seriously examined the facts of the case and the practical impact of the law on plaintiffs’ rights, is a model of judicial engagement.

Nine landlords and two tenants from Red Wing, Minn.—who are represented by the public interest law firm the Institute for Justice—object to Red Wing’s rental inspection law. Many cities across Minnesota—including Minneapolis, St. Paul, Duluth and Rochester—have local laws like Red Wing’s that allow government officials to conduct housing inspections of all rented homes in the city, even if the tenant refuses to consent to the search and even if the government has no reason to believe there is a problem with the rental home or even with the building. The unusual alliance of landlords and tenants sued the city to prevent government inspectors from violating their rights.

“Red Wing’s unreasonable and unconstitutional inspection program allows government inspectors to poke around in practically every nook and cranny in your home—even closets and your bathroom,” said IJ Senior Attorney Dana Berliner. “Our clients sought to test the constitutionality of this law before it is used to illegally enter their homes. Now, thanks to the Minnesota Supreme Court, they will get an answer to that question. The courthouse door remains open for our clients.”

As the Minnesota Supreme Court pointed out, “The City has actually begun enforcing the rental inspection ordinance against appellants.” Therefore, there is a real dispute that affects plaintiffs’ rights, and the courts can go forward to address whether the law is unconstitutional.

Until today’s ruling, the city had announced its plan to continue to try to enter the plaintiffs’ homes without their consent and force the plaintiffs to engage in piecemeal litigation to protect themselves. With the ruling, the plaintiffs can settle the constitutionality of the law once and for all.

Landlord Robert McCaughtry, a plaintiff in the case, has had enough of the city’s inspection program. He said, “I’m not against the city having housing standards, but it’s wrong for the city to force its way into peoples’ homes without any evidence of a problem or code violation. I’m grateful that we’ll finally get our opportunity to show that this program is unconstitutional.”

“Increasingly local governments use ‘administrative warrant’ programs to skirt the protections of the Fourth Amendment and force their way into people’s homes,” said IJ Minnesota Chapter Attorney Anthony Sanders. “The Fourth Amendment, and the similar provision in the Minnesota Constitution, was intended to protect people’s property and privacy rights, and its standards—requiring probable cause of an actual violation of the law—are entirely reasonable and not something the government should be allowed to ignore.”

The court remanded the case to the Minnesota Court of Appeals to decide the issue the plaintiffs have been fighting for all along: whether the Minnesota Constitution allows inspections without probable cause.

“The Minnesota Supreme Court has regularly interpreted the Minnesota Constitution to provide greater protection for individual liberty than is provided by the U.S. Constitution,” said Berliner. “We believe this is an excellent opportunity to ensure all Minnesotans are free from unreasonable searches of their homes and properties.”

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Update On Redevelopment Law: The Supreme Court Makes it Official - Redevelopment Is Dead In California

Published By

Update On Redevelopment Law: The Supreme Court Makes it Official - Redevelopment Is Dead In California

By Michael Kiely and Phillip Tate

The California Supreme Court released its opinion today in California Redevelopment Association v. Matosantos, challenging the Legislature's adoption of AB 1X 26, providing for elimination of California redevelopment agencies (RDAs), and AB 1X 27, exempting from elimination any RDA that agrees to make its share of a $1.7 billion voluntary contribution of its revenues to other local government needs[1].



The Court has upheld the Constitutionality of AB 1X 26 and struck down AB 1X 27. The Court held that RDAs do not have a Constitutionally protected right to continue to exist, however, RDAs do have a protected right, pursuant to Proposition 22, to not be forced to make payments to other agencies. While the State argued that the payments under AB 1X 27 are voluntary, the Court disagreed. The Court found that the payments under AB 1X 27 are not in fact voluntary because an RDA would cease to exist if it did not make the payment. Because the defective provisions within AB 1X 27 cannot be severed, the entire bill fails. Conversely, AB 1X 26 can be severed from AB 1X 27.

As a result, AB 1X 26, which eliminates RDAs, remains in place and AB 1X 27, which would have allowed RDAs to make a payment and continue to exist, is struck down, meaning that RDAs are now effectively dissolved.

In its decision, the Court also upheld the “freeze” provisions of AB 1X 26, which suspended the ability of RDAs to use their funds or to incur new indebtedness. The Court’s opinion did not expressly address the effectiveness of the provisions of AB 1X 27 that purport to invalidate transactions entered into prior to the effective date of the bill.

The Court invoked its power of reformation to extend all applicable deadlines under AB 1X 26 by four months, the length of the stay imposed by the litigation. Accordingly, for example, RDA draft obligation schedules due on November 1, 2011 under AB 1X 27 will now be due on March 1, 2012.

The vote was 6-1. Chief Justice Cantil-Sakauye issued a concurring and dissenting opinion arguing that both AB 1X 26 and AB 1X 27 are Constitutional.

As the court noted, the legislative record shows that at least some legislators preferred to have the package of the two bills, and did not desire to end redevelopment. Therefore, it is possible that there may be a legislative attempt to revive AB 1X 27, or something similar to it, with changes to address the Court's concerns that the voluntary continuation payments were not voluntary. Perhaps an approach would be to require that such payments come from the local sponsor governments’ general fund, rather than from the agencies themselves. From a state fiscal perspective, the ruling is good news, in that now substantially more than $1.7 billion anticipated under AB 1X27 will be available for the state budget crisis. So it is uncertain whether there will be the votes necessary to resuscitate the continuation of redevelopment agencies. It is seems even less likely that the Governor, who started this by proposing to eliminate redevelopment altogether, would sign such a bill.

County and school district officials will now begin the process of forming successor agencies to begin the unwinding and disposition of RDA assets. We can anticipate that agency obligations that existed prior to January 1, 2011 will be fully paid and performed. Successor agencies may also try to attack and unwind RDA deals cut after that date, particularly protective transfers from agencies to their local governments. In addition, successor agencies may also try to avoid earlier conditional agency obligations, for example, the sale of property for les than fair market value where the sale obligation is conditioned upon other financing to be approved by the agency.

After a run of more than 50 years, redevelopment and tax increment financing for development in California have come to an end.

Neither the content on this blog nor any transmissions between you and Sheppard Mullin through this blog are intended to provide legal or other advice or to create an attorney-client relationship.

In communicating with us through this blog, you should not provide any confidential information to us concerning any potential or actual legal matter you may have. Before providing any such information to us, you must obtain approval to do so from one of our lawyers.

By choosing to communicate with us without such prior approval, you understand and agree that Sheppard Mullin will have no duty to keep confidential any information you provide.

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December 28, 2011

Redevelopment Agencies' Worst Nightmare Discussed before Supreme Court

Redevelopment Agencies' Worst Nightmare Discussed before Supreme Court

After yesterday’s California Supreme Court oral argument in California Redevelopment Association vs. Matosantos – the lawsuit challenging the state’s new pay-ransom-or-die redevelopment system – it’s still hard to tell where the court will go. But the biggest question that emerged was: What happens it the court upholds AB 1x 26, which abolishes redevelopment, but strikes down AB 1x 27, which permits redevelopment agencies to continue to exist if they pay a “remittance” to the state?

Apparently it’s a plausible scenario given the nature of Proposition 22, the successful 2010 initiative that sought to protect redevelopment funds from being raided by the state. AB 1x 26 might survive a constitutional challenge on the theory that, while Prop. 22 amended the constitution to prohibit raids, it didn’t explicitly protect redevelopment itself, meaning redevelopment agencies can be killed by statute. However, because AB 1x 27 calls for “remittances” to the state, that could be interpreted violating Prop. 22.

The net effect of upholding AB 1x 26 and striking down AB 1x 27, of course, would be to kill redevelopment completely – a worse outcome than the redevelopment agencies got from the Legislature and the governor.

The state’s lawyer, Deputy Attorney General Ross Moody, obviously would prefer that both laws be upheld. Steven Mayer of San Francisco’s Howard, Rice law firm – representing the California Redevelopment Association and the League of California Cities – said AB 1x 26 “is the whole ballgame to my clients”. Meanwhile, James Williams of the Santa Clara County Counsel’s office argued passionately to uphold AB 1x 26 and strike down AB 1x 27.

All three lawyers were pepped with questions during the 70-minute oral argument. Much of the questioning had to do with whether or not the remittances were truly voluntary and whether cities had any options for paying the remittance other than using tax-increment funding. AB 1x 27 could fall if the court found that the remittances are not voluntary and/or that the cities must use tax-increment funding to pay them – which would appear to be a violation of Proposition 22.

Moody argued that, in a facial challenge, the court had no choice but to accept the “voluntary” contribution idea at face value.

“It’s hard to argue it’s a voluntary payment,” Justice Carol Corrigan said.

“Everybody gets paid,” Moody responded. “Is that so bad?”

“It is if you want to keep doing redevelopment,” Corrigan said. “That’s a facile argument – they get to continue to exist just as long as they are wrapping things up.”

Moody called the remittance program not a ransom but, rather, “a legislative offer to participate in a program.” Not even all of the justices appeared to take that one seriously. “We’re from the government and we’re here to help you?” Justice Kathryn Werdegar gently mocked.

And a lot of the questioning focused on whether cities would any alternative in paying the remittances other than using tax-increment funding. Moody, of course, argued that it was entirely possible – and, in fact, heartily agreed with Chief Justice Cantil-Sakauye asked whether cities could pass a tax increase to pay the remittances.

Mayer, on the other hand, basically argued that most cities have no other source of funds, so the practical reality is that they will have to use tax-increment financing to pay the remittances, possibly in violation of Prop. 22.

Williams from Santa Clara County made a passionate pitch that AB 1x 27 is unconstitutional. That’s not surprising considering the pickle the county is in. The San Jose Redevelopment Agency – once of the richest and most powerful agencies in the state – does not appear to have the money to pay the remittance; but if San Jose can figure out how to do so, the county will be out an enormous amount of money.

Mayer spent his final presentation responding to Williams and making what appeared to be circuitous arguments about why the two laws could not be severed – even though there is a severability clause in the language. Mayer noted at one point that, regardless of the statute, "The Legislature designed 27 because they wanted agencies to op-in....the Legislature did not intend to end redevelopment."

The court is expected to rule by mid-January, when the first installment of the remittance payments is due.

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December 27, 2011

inversecondemnation

inversecondemnation

 

Year-End Opinion Dump

Posted: 26 Dec 2011 11:57 AM PST

Now that we've decked the halls, its time to clear the decks: the end of 2011 is on the horizon, and in order to start 2012 off on a fresh note, here are opinions of interest lined up in our "to post" queue, but that we've not found the time to actually digest and post:

§ MH New Investments, LLC v. Dep't of Transportation, No. 5D10-2697 (Fla. Ct. App. Dec. 23, 2011) - plaintiff who owned license to use property is not entitled to claim business damages when the property is taken by eminent domain.

§ 260 North 12th Street, LLC v. State of Wisconsin Dep't of Transportation, No. 2009AP1557 (Wis. Dec. 22, 2011) - evidence of environmental contamination, disclosure of expert witnesses, and jury instructions in eminent domain trials. More here

§ Miller v. Glacier Development Co, L.L.C., No. 191,097 (Kan. Dec. 23, 2011) - "If the compensation finally awarded on appeal in an eminent domain proceeding is less than the amount of the appraisers' award paid by the condemnor to the clerk of the district court, the judge shall enter judgment in favor of the condemnor for the return of the difference, with interest. If the appraisers' award has been withdrawn from the clerk pursuant to the court's order, as provided in K.S.A. 26-510(b), the distributee of the appraisers' award shall be subject to the condemnor's judgment for the return of the difference between the appraisers' award and the final award on appeal."

§ Ybanez v. United States, No. 09-172L (Fed. Cl. Dec. 5, 2011) - measurement of just compensation in a rails-to-trails case: "Plaintiffs contend that the proper measure of compensation is the difference between values of their estates with railroad easements on them, and values with no easements or other hindrances. According to the Government, the railroad had not abandoned its easement before the NITU was  issued; therefore, the railroad easement continued to burden plaintiffs’ property when the taking occurred. The proper measure of damages under defendant’s theory would  be the difference between the value of plaintiffs’ property encumbered by a railroad easement and property encumbered by an easement for recreational trail use. We  grant plaintiffs’ motion for the reasons discussed below."

§ Cadlerock Properties Joint Venture, L.P. v. Comm'r of Environmental Protection, No. AC 32864 (Conn. Ct. App. Nov. 15, 2011) -  in an inverse condemnation action, the property owner did not prove that its property was uncontaminated.

§ Armstrong v. County of Dixon, No. S10-235 (Neb. Oct. 28, 2011) - attorneys fees in inverse condemnation cases.

§ Texas General Land Office v. Porretto, No. 01-09-00520-CV (Tex Ct. App. Aug. 4, 2011) - ownership of submerged and beachfront property.



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ALI-ABA Annual Eminent Domain Conference, January 26-28, 2012, San Diego

Posted: 26 Dec 2011 10:41 AM PST

ALI-ABAGet ready, it's that time of year again: the annual eminent domain law conferences by the American Law Institute-American Bar Association, this year to be held in San Diego from January 26-28, 2012.

Here's the description of Eminent Domain and Land Valuation Litigation, the premiere program on condemnation law and related topics:

The power of eminent domain is being reshaped across the nation by court rulings and legislation. Much of the recent court activity and legislation has involved the controversial use, or attempted use, of eminent domain power to take private property for economic development by private parties. Redevelopment, however, is not the only fluid area in takings law. This national course of study addresses those areas where new developments in the law and procedure have and will reshape the practice. Learn what’s new in the cutting-edge areas of eminent domain law and how the practice in this field continues to evolve.

This popular and long running advanced course of study kicks off with a comprehensive update on eminent domain case law and legislation by a preeminent practitioner.

Each morning, the course focuses on hot issues and topics that affect practitioners today.

On Thursday and Friday afternoon, a dual track system addresses important substantive and practice topics in a series of breakout sessions. Registrants can learn about the key issues in substantive takings law from nationally recognized and experienced professionals. On the practice side, registrants can choose from another array of sessions chock full of practice pointers.

The course brings all the right participants together — lawyers, appraisers, condemning agencies, right-of-way professionals, and many others — to share valuable experiences and engage in healthy debate on these cutting-edge issues.

Networking opportunities are scheduled throughout the program, with breakfasts, networking breaks, a reception on Thursday afternoon, and social activities in the evenings arranged by a special Hospitality Committee. Come and meet with colleagues from around the nation, exchange ideas, enjoy the fellowship, and collect more than 16 hours of CLE credits.

This course runs concurrently with ALI-ABA's annual Course of Study, Condemnation 101: Making the Complex Simple in Eminent Domain. This unique format allows practitioners who are new in the field of eminent domain to network with many of the nation's most experienced condemnation lawyers, and to benefit from many of those same lawyers serving as their faculty. Special Offer: Attend Eminent Domain and Land Valuation Litigation and bring an associate to Condemnation 101 for 50% off.  ADD TO CART

We're on the faculty ("The Role of Hawaii's Unique Property Law in the U.S. Supreme Court's Takings Cases"with Professor David Callies), so if you attend either course, please stop by and say hi.



 

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December 23, 2011

inversecondemnation

inversecondemnation

 

Guest Post: Federal Courts Flashback - Takings And Vested Rights Challenge To Land Use Commission

Posted: 23 Dec 2011 12:01 AM PST

Once again, our old friend and colleague Paul Schwind is following an interesting ongoing case. We've been tracking the "Bridge Aina Le`a" litigation, but have not had the time to digest the latest developments in a comprehensive fashion and Paul attended the recent federal court hearing in the federal phase, and has kindly provided us with the details. 

The litigation is a series of two lawsuits that originated in state court in the Third Circuit (Big Island), one an original jurisdiction civil rights lawsuit, the other an administrative appeal (that's a writ of administrative mandate for you Californians). The State removed the civil rights lawsuit to U.S. District Court in Honolulu and promptly moved to dismiss, and this portion of the case nearly caused us to flash back to our Federal Courts class in law school, since it raised a host of procedural questions such as the effect of removal, whether certain defendants are "persons" under 42 U.S.C. § 1983, whether the federal court must abstain from addressing the federal takings claim, whether there is a state damage remedy for deprivation of constitutional rights, and zoning estoppel under Hawaii law, among others.

Many of these issues were brought about as a result of Hawaii's unusual state-based zoning scheme, whereby all land in the four of Hawaii's five counties that exercise home rule was initially "classified" by the State into one of four classifications (urban, agricultural, rural, conservation). The four counties are allowed to zone the land within the "urban" and "agricultural" districts into the more familiar Euclidean zones that we're familiar with). What most folks would call a "rezoning" is called a "boundary amendment" or "reclassification" when dealing with the State land use designations, and the Land Use Commission is the agency that takes action, not the counties.

With that short background, what follows is Paul's comprehensive look at the cases and the recent court proceedings.

A Primer on the Federal Court Challenge to the State of Hawaii Land Use Commission’s Power to Reclassify Land Upon an Order to Show Cause
 by Paul J. Schwind, Esq.*

Background

A summary of the lengthy and complex factual background in this case begins with the original reclassification of 1,060 acres on the Big Island "agricultural" to "urban" use in 1989, subject to the condition that the original owner develop 60 percent of the proposed 2,760 housing units as "affordable" units. After transfer of the property from Signal Puako Corp. to Puako Hawaii Properties, a limited partnership under Nansay Hawaii, Inc., the LUC Decision and Order was amended in 1991, reducing the project density to 1,560 housing units, provided that no less than 1,000 units be "affordable."

By 1997, PHP had constructed 107 affordable housing units. In November 2005, Bridge Aina Le`a, the successor owner, succeeded in further amending the 1991 D&O to reduce the minimum number of affordable units to 385, although the LUC required that certificates of occupancy be provided for all of these units within five years of the 2005 amendment. In October 2007 the County of Hawaii imposed a new requirement, namely that an environmental impact statement be prepared for plaintiff’s improvements within a public right-of-way, pursuant to Sierra Club v. Dep’t of Transp., 115 Haw. 299, 167 P.3d 292 (2007) (secondary effects of improvements to public transportation infrastructure are not exempt from environmental assessment).

LUC's Order to Show Cause

In December 2008, two years before Bridge’s deadline to provide the 385 affordable housing units, the LUC entered an Order to Show Cause, alleging failure to perform according to the conditions imposed. In April 2009, upon oral motion and voice vote, the LUC acted to reclassify the property to agricultural use. Shortly thereafter, DW Aina Le`a Development moved to become a co-petitioner with Bridge, and to stay entry of the reclassification action, while Bridge moved to rescind the show cause order. In September 2009, the LUC rescinded its previous orders and accepted DW as co-petitioner, but now required as a "condition precedent" that 16 affordable units be completed by March 31, 2010.

Upon the LUC’s request, DW submitted a written status report on June 10 showing its progress on this and other work on the property. Nevertheless, in evident response to comments by the State Office of Planning before and during a hearing on July 1, the LUC voted to keep the prior show cause order "in place," and on July 26 entered an "Order Finding Failure to Meet Condition Precedent for Rescinding Order to Show Cause."

On August 30, 2010, DW filed a Motion to Amend Conditions, and on November 12, Bridge filed a Motion re Order to Show Cause alleging multiple violations by the LUC of relevant statutes and administrative rules. On November 18, 2010 and January 20, 2011, the LUC held hearings on these motions together with the Office of Planning’s motion for a new show cause order. On January 20, the LUC voted 5-3 to reclassify the property back to agricultural use, notwithstanding that six affirmative votes are required for a boundary amendment.

The LUC then voted to deny Bridge’s motion to invalidate the show cause order. On April 25, after meetings earlier that month prior to which the LUC was advised it was exceeding its authority, the LUC executed an order reverting the petition area to agricultural use. 

State Court Complaint, Removal to Federal Court

In its complaint filed on June 7 in state court, Bridge filed suit against the LUC and the commissioners in their official and individual capacities, seeking damages of not less than $35.7 million and injunctive relief to allow it to continue developing the property. The State’s motion to dismiss, filed in federal court on July 27, 2011, after removal of the case on June 27, does not [and cannot, under court rules] contest the facts alleged by Bridge, and there is no separate answer that does so.

State's Motion to Dismiss

The State’s legal defenses against the federal and state law claims may be summarized as follows:

§ The LUC Commissioners are entitled to judicial immunity in their individual capacity as to claims for injunctive relief, and neither they in their official capacity nor the LUC itself are "persons" under § 1983 as to claims for damages for deprivation of constitutional rights.  

§ The federal court should refrain from entering any injunctive relief, pursuant to the abstention doctrines because the plaintiffs' administrative appeal (which was not removed) remains pending in state court. See Railroad Comm'n v. Pullman Co., 312 U.S. 496 (1941) (federal courts, when asked for the extraordinary remedy of injunction, will exercise sound discretion in the public interest to avoid needless friction with state policies); Younger v. Harris, 401 U.S. 37 (1971) (possible facial unconstitutionality of a [state] statute does not in itself justify an injunction against good-faith attempts to enforce it, absent any showing of bad faith, harassment, or any other unusual circumstance that would call for equitable relief).  

§ Finally, although the Aina Le`a project had obtained partial final subdivision approval from the County in 2009, the State argues that plaintiff had not received "official assurance" that it may safely proceed under Life of the Land, Inc. v. City Council of the City and County of Honolulu, 61 Haw. 390, 453, 606 P.2d 866, 902 (1980) (equitable estoppel arises when a land developer makes a substantial expenditure in reliance on official assurance of final discretionary approval of his project, such that further necessary ministerial approvals will be forthcoming in due course and he may safely proceed) [for a comprhensive overview on how Hawaii courts apply the vested rights/zoning estoppel tests, see this law review article].

Download the State's motion to dismiss here.

Developer's Arguments

Bridge’s memorandum in opposition argued, inter alia, that under Ninth Circuit law, the LUC Commissioners are entitled to neither absolute judicial immunity nor qualified immunity in their individual capacity, as they act both as lawmakers and monitors of compliance with their own rules and requirements. See Zamsky v. Hansell, 933 F.2d 677 (9th Cir. 1991) (state officials who unconstitutionally cause land to be rezoned are not absolutely immune from liability for the damage caused by their unlawful conduct, when they act in an executive rather than legislative or judicial capacity). Accordingly, Bridge argued it was entitled to seek declaratory and injunctive relief for its takings claim and just compensation for inverse condemnation, including prospective injuctive relief and damages from the Commissioners in their official and individual capacities.

It also argued that the federal court should hear the case and not abstain, because neither the Pullman nor the Younger abstention doctrines apply.  Pullman abstention is inapplicable because (1) the case involves no sensitive area of social policy; (2) plaintiff’s constitutional claims cannot be resolved in the agency appeal; and (3) there is no uncertain state law issue to be resolved. Younger abstention is not applicable because defendants removed the case to federal court. 

Finally, in addressing the vested rights/zoning estoppel claim, Bridge argued that the LUC’s reclassification of the project from agricultural to urban use was the "official assurance" required under Life of the Land, and upon which Bridge relied when incurring millions of dollars in expenses to develop the property.

State's Reply

The State’s reply memorandum began by distinguishing the Oregon Land Conservation and Development Commission at issue in Zamsky v. Hansell from the Hawaii Land Use Commission. It argued that Bridge’s reliance on Zamsky is misplaced because the LCDC members exercised executive functions, whereas the LUC process is explicitly quasi-judicial. The LUC is expressly authorized by statute to impose conditions and enforce them by way of a show cause order.  The fact that the Commissioners’ actions are under agency review in state court (in the separate administrative appeal) does not militate against absolute judicial immunity in federal court. The State argued that the problem with Bridge’s complaint for injunctive relief is that there is nothing to enjoin – the LUC intended no further action in this case.

The State responded to the developer's argument on absention by asserting that the case presents the Pullman factors: (1) whether the LUC can enforce its conditions is a sensitive issue of social policy and purely a matter of state land use planning law; (2) the constitutional issue (the plaintiffs' taking claim) will unquestionably be eliminated or materially altered upon resolution of the state court agency review; and (3) the final outcome of the state law questions to be resolved in that appeal is anything but certain, presently. abstention is also appropriate because Bridge offers no plausible, non-conclusory facts to support its naked claim that the LUC Commissioners acted on personal and political motivations revealing an irrational and malicious bias.

Finally, Bridge had no "official assurance" to expend funds on its project, because the State’s position is "[y]our development will be permitted provided that you meet conditions relating to affordable housing." [Author's note: this is a classic "Catch 22" – the developer had to expend funds to meet the affordable housing condition, and in effect had to gamble that it could "safely proceed" and receive its "official assurance" after that that expenditure!)

State Court Ruling

Bridge’s and DW’s separate state court agency appeals were consolidated in September in the Third Circuit, and oral argument was heard by Judge Strance on December 16, 2011. On the eve of the federal court hearing on the State's motion to dismiss, the state court concluded that the LUC could not reclassify the land from urban to agricultural, as reported here and here. However, the transcript and final written order in that case are not presently available, so we will have to wait for the details. See DW Aina Le'a Dev. LLC v. Bridge Aina Le'a LLC et al., 3CC11-1-00112K (Haw. 3d Cir., Apr. 7, 2011).

Federal Court Hearing

At the outset of the hearing on the motion to dismiss, U.S. District Judge Susan Oki Mollway asked whether the federal court may exercise jurisdiction over Bridge’s inverse condemnation claim. Prior to the hearing, Judge Mollway circulated to counsel her written inclinations (as is her practice) to dismiss with prejudice most of the action (claims for injunctive relief, money damage claims against the LUC and its Commissioners in their official capacity, and procedural claims against the Commissioners in their individual capacities), for lack of jurisdiction and for absolute judicial immunity. If the claims were not dismissed, the court would abstain and stay those claims pending the outcome of the state court agency appeal. Judge Mollway also asked counsel to come prepared to discuss whether removal of the case affects how the inverse condemnation claim may brought. See   Jachetta v. United States, 653 F.3d 898 (9th Cir. 2011) (in an Alaskan native lands claim, sovereign immunity barred the entire action against the state but only part of the action against the Bureau of Land Management),

During oral argument, Deputy Attorney General William Wynhoff argued for the State that the jurisdictional question raises Eleventh Amendment, Williamson County, and San Remo issues. See, e.g., San Remo Hotel, L.P. v. City and County of San Francisco, 545 U.S. 323, 346 (2005) (Williamson County ripeness requirements do not preclude state courts from hearing simultaneously a plaintiff's request for compensation under state law and the claim that, in the alternative, the denial of compensation would violate the Fifth Amendment of the Federal Constitution). Under San Remo, both federal and state takings claims must be brought in state court, but by removal, the State has arguably waived its Eleventh Amendment immunity, so that the federal court now has jurisdiction over the takings claim.  The seeming conflict between Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989) (official capacity state officials are not "persons" under 42 U.S.C. § 1983) and Ex parte Young, 209 U.S. 123 (1908) (allowing prospective injunctive relief) is reconciled by the “legal fiction” described in Cardenas v. Anzai, 311 F.3d 929, 935 (9th Cir. 2002). See also Colony Cove Prop., LLC v. City of Carson, 640 F.3d 948 (9th Cir. 2011) (absent factual allegations that reflect action that was arbitrary, irrational, or lacking any reasonable justification in the service of a legitimate government interest, dismissal of an applied substantive due process takings claim [denial of rent increase under a rent control scheme] was appropriate).

Bruce Voss argued for Bridge as respondent that the state claims should be remanded, given Judge Strance’s ruling for Bridge in the state court action. He is concerned about the delay in resolving the takings claim, and would like the state claims remanded to state court while preserving the federal claims for supplemental briefing. He cited to Potrero Hills Landfill, Inc. v. County of Solano, 657 F.3d 876, 889-90 (9th Cir. 2011) (federal courts are not required to send a case to state court if doing so would simply “impose expense and long delay upon the litigants without hope of its bearing fruit,” to the contrary, under such circumstances, "it is the duty of a federal court to decide the federal question when presented to it").

Judge Mollway concluded the hearing by requesting the parties to submit supplemental briefing by February 17, 2012, stating their positions on the question of how the state court's ruling (when available) may affect the issues before the federal court, including the jurisdictional question.

The hearing was continued until March 19, 2012.

----------------------------------------------

*inactive member of the Hawaii Bar



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U.S. Law School Curriculum vs. Chinese Law School Curriculum

Posted: 22 Dec 2011 11:46 AM PST

Here is what future lawyers are learning at the flagship U.S. law school: The Evidence Exam at Harvard Law That Requires No Evidence to Pass (via Above the Law).

Here is what future lawyers are learning at one of the premiere Chinese law schools:

IMG_5446



It's Others' Property, You Just "Own" It*

Posted: 22 Dec 2011 11:31 AM PST

Harmon

In Landlord’s Uphill Fight to Ease Rent Restrictions, The New York Times reports on the Harmon cert petition (we posted the petition and the amici briefs in that case here), a challenge to New York City's rent control ordinance.

We won't rehash our thoughts on the case, but wanted to point out what we thought was the most revealing passage from the Times article:

Mr. Harmon said he had appealed to his assemblywoman, Linda B. Rosenthal, a strong supporter of rent regulations. Ms. Rosenthal said Mr. Harmon had asked for an exception to rent regulations for his building, which she found untenable because it would, she said, extend to thousands of other people in "the vanishing middle class."

"I understand he thinks he could make more money, that he is being deprived," she said. "But I have so many constituents who would willingly trade his problems for theirs."

As for luck, she said, Mr. Harmon was "lucky enough to inherit a town house."

She said her views had nothing to do with the fact that she lives in a rent-regulated apartment, though she added, "If I didn’t, I probably wouldn’t be representing tenants in this district because I couldn’t afford to live in the city."

You see, rent control is designed to even out the way that the Fates distribute luck (especially good luck), and to level the playing field for those who would be willing to "trade up" their problems for the problems of others. We think it sounded better in the original German: "Jeder nach seinen Fähigkeiten, jedem nach seinen Bedürfnissen!"

-------------

*with apologies to Dean Martin, who apparently originated the quote about Frank Sinatra: "It's Frank's world, we just live in it."



Trial Lawyers' Amicus Brief In Filarsky: Common Law Did Not Recognize Private Attorney Immunity In 1871

Posted: 22 Dec 2011 09:28 AM PST

Here's the amicus brief of the American Association for Justice (fka Association of Trial Lawyers of America) supporting the respondent in Filarksy v. Delia, No. 10-1018 (cert. granted Sep. 27, 2011), the case in which the U.S. Supreme Court is considering whether a private lawyer hired by a local government is entitled to claim the same immunities from section 1983 lawsuits as his government-employed counterparts.

Earlier, we filed an amicus brief on behalf of the American Bar Association supporting the petitioner, and other organization also filed briefs in support (posted here). The petitioner's merits brief is posted here. Oral argument is set for January 17, 2012.

More on this case as it becomes available.



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NY Appellate Court Holds Town Board May Condition Site Plan Approval on Reduction of Size of Proposed Structure Even Where Proposed Size was Dimensionally Compliant with Zoning

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NY Appellate Court Holds Town Board May Condition Site Plan Approval on Reduction of Size of Proposed Structure Even Where Proposed Size was Dimensionally Compliant with Zoning

by Patty Salkin

This case addressed the issue of whether a town’s board of approval had the power to impose a condition that reduced the size of a proposed structure, even when that structure met dimensional code requirements.

Greencove Associates, LLC owned a 5.26 acre parcel of property  in the Town of North Hempstead, New York that was improved by a commercial shopping center. When the shopping center had first been constructed in 1959, a restriction was imposed requiring the maintenance of a landscaped buffer along a portion of the property. Following a 1999 expansion of the shopping center, the Buffer measured, on average, 22 feet in width. In 2010, Greencove sought to expand the shopping center. It submitted an application to the Nassau County Planning Commission for approval to construct a new 10,000-square-foot structure in the southwest corner of the property. As proposed, the structure would encroach on the Buffer, reducing it to a width of four or five feet.

The County Planning Commission recommended approval of the site plan application with a modification reducing the size of the new structure to approximately 6,800 square feet. The Commission said this would “enable the structure to better fit into the irregular-shaped site… while maintaining the existing [B]uffer.”  Eventually the Town Board of the Town of North Hempstead (the “Board”) approved Greencove’s site plan application, with the condition that the size of the proposed structure be reduced to 6,800 square feet. Greencove appealed noting that the proposed 10,000-square-foot building was dimensionally code compliant, and further that the condition requiring a reduction in the size of the building exceed the Board’s powers.

The appellate court held that the challenged condition was within the Board’s power to impose noting that Town Law §274-a(2)(a) authorizes the Board to review site plans based on certain land use elements, including “screening,” “landscaping,” and “dimension of buildings.” Further, the Town Code provides that in making its considerations as to whether or not to approve a site plan, the Board must consider, among other things, “[o]verall impact on the neighborhood, including compatibility of design considerations and adequacy of screening from residential properties.” The court also noted that the Board could impose a condition upon property so long as there was a “reasonable relationship between the problem sought to be alleviated and the application concerning the property.”

Citing the Town Law and Town Code, the court found that the Board had authority to impose the contested condition. The court also found that the contested condition “was a reasonable means of assuring that the existing land buffer, which was designed to screen the adjacent residential neighborhood from the effects of the shopping center, would be preserved.” Thus, although the 10,000-square-foot proposed structure was dimensionally code compliant, it could not be placed on the Property without encroaching on the existing Buffer. The Board’s condition of reduction in the size of the proposed structure had a reasonable relationship to ensuring the shopping center remained screened from the residential neighborhood.

Greencove Associates, LLC v. Town Bd. of Town of North Hempstead, 929 N.Y.S.2d 325 (A.D. 2 Dep’t 9/20/2011)

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2011/D32268.pdf

This abstract is excerpted from the McQuillan Zoning Bulletin, November 10, 2011, vol. 5 no. 21.

Patty Salkin | December 23, 2011 at 1:24 am | Categories: Current Caselaw - New York, Site Plan Review | URL: http://wp.me/p64kE-1x2

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December 22, 2011

5th Circuit Court of Appeals Dismisses Regulatory Takings and Spot Zoning Challenges to Adult Business Ordinance in Unpublished Opinion

 

 

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5th Circuit Court of Appeals Dismisses Regulatory Takings and Spot Zoning Challenges to Adult Business Ordinance in Unpublished Opinion

by Patty Salkin

In September 2010, the Jefferson Parish Council passed zoning regulations and design standards for stand-alone bars and other businesses in a neighborhood of Metairie, Louisiana, known as “Fat City.”  The Ordinance targeted noise levels, security, parking, and aesthetics at adult-oriented establishments in the Fat City neighborhood, due to concerns about “higher crime rates, negative influences on children, physical blight and reduced property values.”  The Ordinance set a curfew for bars of midnight every day except Fridays and Saturdays, when bars must close by 1 a.m., and a requirement that bars not reopen the next morning until 11 a.m. or later.  In addition, bars were required to installed 24-hour time lapse surveillance cameras; remove litter found within 200 feet of their property lines; remove graffiti within 48 hours; maintain vegetation according to the Ordinance; install soundproofing; and report suspicious activity to law enforcement. 

Bar and business owners impacted by the Ordinance challenged its validity in two separate suits, combined here, claiming it was a regulatory taking of property and a violation of owners’ rights to substantive due process and equal protection.  The owners sought injunctive relief permanently barring the enforcement of the ordinance, as well as monetary and punitive damages and costs.  The Parish filed a motion to dismiss for failure to state a claim, which was granted by the district court.  The plaintiffs here appeal. 

The Fifth Circuit held that the business owners’ claims of both per se taking and a regulatory taking failed.  There was no per se taking because the plaintiffs failed to show that the regulation had resulted in permanent physical invasion of their property or that it had deprived them of all economically beneficial use of their land.  Using the balancing test set forth in Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978), the court held that the plaintiffs had also failed to plead a plausible claim of unconstitutional taking, noting that “the limitations imposed by the Ordinance might have some adverse economic effect on Appellants’ businesses . . . [however], most of Appellants’ possessory rights are left intact under the Ordinance.”  The court held that, since business owners were still able to operate their bars and sell alcohol therein, they had not been sufficiently deprived of property rights sufficient to make a takings claim. 

As to both the equal protection and due process claims, the court disagreed with the business owners’ claims that the Ordinance lacked a rational basis.  The court followed Shelton v. City of College Station, 780 F.2d 475 (5th Cir. 1986), which stated that “a zoning decision violates substantive due process only if there is ‘no conceivable rational basis’ under which the government might have based its decision.”  Since the Ordinance was passed in order to “enhance property values, promote economic development, and provide identity and a sense of community for Fat City,” the court felt there was a sufficient rational basis. 

Finally, the business owners claimed they had been subjected to “spot zoning,” arguing that the Parish had arbitrarily and capriciously singled out a small area of Fat City to target in the Ordinance, while other businesses outside of the four targeted blocks would not be subject to such regulations.  However, the court noted that zoning ordinances often involve drawing seemingly arbitrary geographical boundary lines, which in itself was not a basis for claiming an equal protection violation.  In order to prove spot zoning has occurred, the plaintiff would have had to prove either that there was a suspect classification at play, or that the zoning had been implemented for the sole or primary benefit of a particular party.  The court held that the plaintiffs had failed to show any obvious beneficiary of the Ordinance, other than the community at large, or that individual owners were targeted through a suspect classification.  

For all of those reasons, the court affirmed that the district court had acted properly in dismissing the business owners’ case. 

Yur-Mar, L.L.C. v. Jefferson Parish Council, 2011 WL 5840265 (5th Cir. 11/21/2011). 

The opinion can be accessed at: http://www.ca5.uscourts.gov/opinions/unpub/11/11-30196.0.wpd.pdf

Patty Salkin | December 22, 2011 at 1:06 am | Categories: Adult Entertainment Facilities, Current Caselaw | URL: http://wp.me/p64kE-1xi

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December 19, 2011

S. Carolina Supreme Court Upholds Ordinance Restricting Number of Unrelated People Living Together in a Single Dwelling Unit

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S. Carolina Supreme Court Upholds Ordinance Restricting Number of Unrelated People Living Together in a Single Dwelling Unit

by Patty Salkin

The zoning law in the City of Columbia, South Carolina restricts all properties zoned as single dwelling units to a maximum of three unrelated people.  The appellant in this case owns property in Columbia where he lived with three college students, none of whom are related.  Following a complaint and investigation, the appellant was given notice of his violation of zoning laws.  After the appropriate hearings and appeals, appellant subsequently challenged the City’s ordinance as alleging it violates the state constitution’s Due Process clause.  After the circuit court held for the city, the constitutional challenge went directly to the South Carolina Supreme Court.                                        

The State Supreme Court explained that all laws begin with a presumption of constitutionality and, thus, the burden is on the challenging party to prove a law’s unconstitutionality.  The standard for appellants to prove is whether the law bears a “reasonable relationship to any legitimate interest of government.”  The Supreme Court noted that the United States Supreme Court considered a similar case, Village of Belle Terre v. Boraas, and declined to extend due process protection, however, states have the ability to expand this right. 

The court next considered the ordinance in relation to the context of the community, namely the colleges and universities in the surrounding area, and upheld the validity of the ordinance based on the rational relationship between the ordinance and the government interest of “controlling the undesirable qualities associated with ‘mass student congestion.’”  Therefore, the ordinance limiting unrelated persons from living together, holds the court, is constitutional. 

McMaster v. Columbia Bd. of Zoning Appeals, 2011 WL 6156995 (S.C. 12/12/2011) 

The opinion can be accessed at: http://www.sccourts.org/opinions/displayOpinion.cfm?caseNo=27075

Patty Salkin | December 19, 2011 at 1:45 am | Tags: student housing | Categories: Current Caselaw, Family | URL: http://wp.me/p64kE-1wT

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December 18, 2011

Tennessee Court of Appeals Dismissed Billboard Challenge For Failure to Exhaust Administrative Remedies

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Tennessee Court of Appeals Dismissed Billboard Challenge For Failure to Exhaust Administrative Remedies

by Patty Salkin

Prime Locations, an advertising company that owns small billboards and free standing signs, challenged the denial of several building permits to expand their existing signs, alleging that the applicable zoning ordinances of the city and county which restrict the use of billboards are inconsistent with Tennessee state law. The city and county argued, among other things, that Prime Locations did not have standing to challenge the acts in court because they failed to exhaust remaining administrative remedies.  The trial court found for the city and county on other grounds. The appellate court reiterated the three prong test for standing: (1) a palpable injury; (2) a causal connection between the injury and purported conduct; and (3) that a court can remedy the injury.  Here, the court found that Prime Location’s injury was not palpable because there was no controversy.  A live controversy exists where there is a real dispute, meaning the matter is ripe for adjudication.  Since Prime Location failed to appeal the administrative decision as provided by the state statute, they lacked standing.                                                             

Prime Locations, Inc. v. Shelby County, 2011 WL 6140871 (Tenn. Ct. App. 12/8/2011) 

The opinion can be accessed at: http://www.tncourts.gov/sites/default/files/primelocationsopn.pdf


 

Patty Salkin | December 18, 2011 at 1:56 am | Categories: Current Caselaw, Exhaustion of Administrative Remedies, Standing | URL: http://wp.me/p64kE-1wW

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December 15, 2011

Supreme Court to Hear Argument in Environmental Dispute (Sackett v. EPA)

Municipal Minute

 

Supreme Court to Hear Argument in Environmental Dispute (Sackett v. EPA)

Posted: 15 Dec 2011 06:00 AM PST

In January, the U.S. Supreme Court will hear oral argument in a case involving governmental enforcement of federal environmental laws against private property owners.  In Sackett v. EPA, a property owner challenged the EPA’s use of so-called “administrative compliance orders.”  The EPA uses these administrative orders to allege that a property owner is in violation of an environmental law provision and to demand that the owner bring the property into compliance.  The Supreme Court will decide whether a property owner can immediately go to court to challenge the EPA's order or whether the owner must wait to challenge the order until after the EPA sues the property owner in a civil or criminal action. 

 

The case involved a challenge to an EPA compliance order that asserted that the Sacketts had violated the Clean Water Act when they filled in a wetland on their property without a permit.  The compliance order required the Sacketts to remove the fill material and restore the property to its original condition.  The owners requested a hearing before the EPA, which was denied.  The Sacketts then filed a lawsuit with the district court claiming that the compliance order was arbitrary and capricious, violated their due process rights, and was unconstitutionally vague.  The district court dismissed the Sacketts' case.  On appeal, the Ninth Circuit affirmed, concluding that the Sacketts were not entitled to pre-enforcement judicial review of the EPA compliance order. 

 

The question presented to the Supreme Court is deceptively simple - Is a property owner entitled to judicial review of an EPA administrative compliance order?  The issues surrounding that question, however, are far from simple and have kept quite a few environmental advocates and opponents (and their lawyers) busy.   In fact, 14 amici briefs were filed in support of the Sacketts, including briefs filed by the National Association of Home Builders and the American Civil Rights Union, among others.  A common theme among these briefs is the assertion of a conflict between these environmental laws and the Fifth Amendment right that no person be deprived of property without due process of law. 

 

Those of us who work in the land use field are very interested in seeing how the Court will resolve the alleged conflict between environmental protection and property rights. 

 

We will keep you posted on this case.  For more information about this case, visit Scotusblog.



 

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December 11, 2011

inversecondemnation

inversecondemnation

 

What's That Definition Of "Insanity" Again?

Posted: 11 Dec 2011 02:01 AM PST

Einstein460x276No less a light than Albert Einstein is reported to have said that the "definition of insanity is doing the same thing over and over again and expecting different results." That quote has always seemed more apocryphal than accurate to us, but it's a good definition regardless of who first uttered it.

Exhibit "A" appended to that definition might be New York City's "emergency" housing Rent Stablization Law, adopted for the first time in 1969 and renewed eleven times since. The RSL controls how much rent the owners of rent-stablized apartments may charge their tenants for rent (you know, to keep poor folk like Faye Dunaway in their apartments). The city's justification for the RSL is to deal with a series of housing "emergencies" (initially, the "effects of war and the aftermath of hostilities," and then any rise in the city's vacancy rate above 5%), and to allow a "transition from regulation to a normal market of free bargaining between landord and tenant" while encouraging the new construction of apartments.

But in the 40-plus years since the RSL's initial adoption (and serial re-adoptions) the vacancy rate has never been north of 5%, and the promised transition to a free market and new construction didn't happen either.

The owner of an apartment building sued in federal court, asserting that the RSL violates due process and is an unconstitutional taking. The District Court predictably dismissed, and the Second Circuit predicatably affirmed. We say "predictably," because as Richard Epstein notes, "[t]he court’s short and uninspired opinion was undeniably correct as a matter of current constitutional law. But for that very reason, it was also hopelessly defective as a matter of constitutional theory."

In October, the property owner filed a cert petition. The respondents declined to file briefs in opposition, and the Court was originally scheduled to consider the petition in Friday's conference. But on December 5, the Court requested responses, due January 4, 2012. The HuffPo report "New York City Landlord Takes Rent Regulation Fight To Supreme Court" wondered why the Court would ask for opposition briefs if the law is as clear as Professor Epstein says it is (it is), and speculated that perhaps the cert pool memo identified an issue that at least one Justice found of interest. Of course we don't know what might have spurrred the Court's request, but in scanning the petition and the three amicus briefs submitted in support (see below for all three), one really stood out by making a very interesting argument.  The amicus brief filed by two property owner organizations argued that the RSL's 40-year history of failing to accomplish its stated goals deprives it of its "rational basis" to which reviewing courts must defer:

This is a "back to the future case." The federal courts below failed to recognize the wisdom of hindsight available to them when considering whether to defer to the judgment of the City. Although transitioning from a regulated market to a free market while encouraging new construction may be a legitimate purpose, nearly half-a-century of history reveals that the RSL did not work, does not work, and will not work. Every three years, when the City again declares a housing emergency, it also acknowledges, as it must, that the RSL has again failed. The City cannot rationally believe that the RSL ever will achieve its goal. It is a sisyphean task doomed to failure and frustration that the RSL has laid on half the City's landlords. Enough is enough. Accordingly, this Court has a unique opportunity in this case to define the limits of judicial deference when there is a compelling history that a governmental program simply does not work.

Brief at 7. The brief highlights the Supreme Court's eminent domain trilogy (Berman, Midkiff, and Kelo), and argues "it is now apparent that the legitimate purposes of government action involved in those cases did not come to fruition in whole or in part. If the courts in Berman, Midkiff, and Kelo had the wisdom of hindsight available to them when considering whether to defer to the judgment of local government, they might have been decided differently." Br. at 10-11. The brief asserts that in those cases, the projected benefits of the takings were "colossal failure[s]." Br. at 13. To that list, the brief could have added the gas station rent control measure in Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005), which was ostensibly designed to lower gas prices, but did no such thing.

The brief makes sense, and seems designed to appeal to Justice Kennedy, who asserted in his Lingle concurring opinion that a regulation might be "so arbitrary or irrational as to violate due process. ...The failure of a regulation to accomplish a stated or obvious objective would be relevant to that inquiry."

But it's still a long shot in terms of constitutional law because a court applying the "rational basis" test as currently formulated will not likely care there's proof a government plan won't actually work, or that there's proof it hasn't worked. Because you never know, it might work. Cf. Einstein. As Gideon Kanner pointed out, the rational/conceivable basis test as currently applied by the courts means that judges simply will not examine the government's rationale for adopting a law:

In my post-Midkiff lectures, I have been using as an example of the absurdity inherent in this judicial formulation a hypothetical taking for senior housing for elderly Martians living among us. Would that pass muster as a "public use"? Hyperbole, you say? Be careful. In a prime example of Oscar Wilde’s dictum that life imitates art, I offer for your consideration the pertinent part of the transcript of an oral argument before the U.S. Court of Appeals for the Ninth
Circuit. There, the U.S. Justice Department asserted that, if Congress were to enact laws for the benefit of unseen and undetected "space aliens" among us, the courts would have no alternative but to approve it as consistent with the Constitution:

. . . .

JUDGE FLETCHER: . . . not related to this case. Is it conceivable that space aliens are visiting this planet in invisible and undetectable craft?

MR. YELLIN: Is it conceivable?

JUDGE FLETCHER: That’s my question.

MR. YELLIN: Yes, it’s conceivable.

JUDGE FLETCHER: And that would be a basis for sustaining Congressional legislation, if . . . the person sponsoring the bill said, "Space aliens are visiting us in invisible and undetectable craft, and that’s the basis for my legislation," we can’t touch it?

MR. YELLIN: If Congress made a finding of that sort?

JUDGE FLETCHER: That’s my question.

MR. YELLIN: Your Honor, I think if Congress made a finding of that sort, I think, Your Honor, it would not be appropriate for this Court to second guess that.

JUDGE FLETCHER: Okay, in other words, "conceivable" is "any piece of nonsense is enough."

Gideon Kanner, "Unequal Justice Under Law": The Invidiously Disparate Treatment of American Property Owners in Takings Cases, 40 Loyola L.A. L. Rev. 1065, 1080-81 & n.68 (2009). Oh yeah, the government won that case.

The Harmon case seems like a good vehicle by which to drive home the concept that the courts need not wear blinders in property cases any more than they do in cases involving other fundamental rights, and the RSA's amicus brief makes the point well; but given the state of the law, we're not holding out for a change of heart by the cert pool clerk.

Here are the other two amicus briefs in the case:

§ Brief Amicus Curiae of Atlantic Legal Foundation and Center for Constitutional Jurisprudence in Support of Petitioners

§ Brief Amicus Curiae of Pacific Legal Foundation, Cato Institute, and Small Property Owners of San Francisco Institute in Support of Petitioners James D. Harmon, Jr., and Jeanne Harmon

We'll post the BIO when it is available.

Brief Amici Curiae Rent Stabilization Assn of New York & Small Property Owners of New York in Support of Pe...  



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December 10, 2011

New Statute in New York Permits Extensions of Conditional Approval of Final Plats

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New Statute in New York Permits Extensions of Conditional Approval of Final Plats

by Patty Salkin

A new law in New York amends General City Law 32-7 and Village Law 7-728-7(c ) to permit city and village planning boards to grant more than 2 extensions of conditional approval of final plats if warranted by the particular circumstances. Conditional approval of a final plat expires after 180 days, with a maximum of two (2) ninety day extensions. This new law gives the planning board the discretion, upon a determination that it is warranted, to extend the duration of the conditional approval of the final plat. According to the sponsor’s memo, “The current economic climate, combined with the difficulty in obtaining project financing in many cases, argues for giving the planning board the discretion to extend conditional approval of the final plat. There are already significant hurdles and expenses generated in residential development which should not be compounded because of a time limitation that would effectively terminate a project.  The municipality has made a significant investment in reviewing the project and generating the conditions required for approval of the plat. If additional time is required with no negative consequences to the municipality, the planning board should have the appropriate discretion.” The new law was enacted on September 23, 2011 and took effect immediately.

Chapter 561 of the NY Laws of 2011 – A.7654(Lavine)/S.4226 (Lanza)

Patty Salkin | December 10, 2011 at 1:10 am | Categories: New Legislation, Subdivision Regulation | URL: http://wp.me/p64kE-1wp

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New NY Statute Expands Definition of Farm Operation to Include Commercial Equine Operations

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New NY Statute Expands Definition of Farm Operation to Include Commercial Equine Operations

by Patty Salkin

A new law in New York defines a commercial equine operation and includes commercial equine operation in the definition of a farm operation. The law amends Section 301 of Agriculture and Markets Law to include "commercial equine operations" within the definition of "farm operation," making such operations eligible for agricultural district protections and an agricultural assessment, provided that the commercial equine operation meets certain eligibility criteria. To gain agricultural district protections and an agricultural assessment, the operations must consist of at least seven acres and stable at least ten horses, regardless of ownership. They must also receive ten thousand dollars or more in gross receipts annually from fees generated through the provision of commercial equine activities including, but not limited to, riding lessons, trail riding activities or training of horses or through the production for sale of crops, livestock, and livestock products. According to the sponsor’s memo, “Commercial horse boarding operations already have access to agricultural district protections and agricultural assessment tax relief if they consist of at least seven acres, board ten horses and gross $10,000. This legislation would provide similar benefits to comparable operations that provide horse training, trail riding and riding lessons, in addition to boarding.”  The new law was signed August 3, 2011 and took effect immediately.

Chapter 384 of the NY Laws of 2011 – A. 7744-A (Magee)/S.5168-A (Ritchie)

Patty Salkin | December 10, 2011 at 1:17 am | Categories: Agricultural Uses, New Legislation | URL: http://wp.me/p64kE-1wv

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December 08, 2011

Mississippi Supreme Court Upholds City’s Denial to Rezone Property Finding Decision Was Not Arbitrary or Capricious


Mississippi Supreme Court Upholds City’s Denial to Rezone Property Finding Decision Was Not Arbitrary or Capricious

by Patty Salkin

The developer Roundstone acquired title to an area of land with the intent to subdivide the land and build homes on the property.  Roundstone planned on using a subsidy from the federal government to rent to lower income tenants.  Before purchasing the property, Roundstone received three letters informing him that the land was all zoned single family residential and assuring him that his plans would conform with the existing zoning laws.  The letters, however, wrongly characterized the zoning of some of the land which was actually zoned as open land.  

Roundstone presented its plan to the planning commission for approval.  The commission decided that the property must be re-zoned before they could approve the plan and, then, refused to allow a rezoning.  Roundstone appealed to the zoning board.  The board affirmed the commission’s decision.  On appeal to the circuit court, the circuit court affirmed the decision of the board as well.  

With respect to Roundstone’s argument that the re-zoning should not have been a prerequisite to the development, the court examined the city ordinance and determined that the ordinance can be read to require reclassification before or after the land is subdivided.  Since the city decided the ordinance requires reclassification before the subdivision, the court deferred to the city’s interpretation, finding it was not arbitrary or capricious.  

Next, the court dealt addressed Roundstone’s argument that the board’s denial to rezone the property was arbitrary and capricious.  The court began by looking at the city’s amendment procedure which allows rezoning of open land into development sites where it is necessary and desirable.  The court noted that whether the rezoning is necessary and desirable is largely in the discretion of the Board and the challenging party has the burden of proving the decision was arbitrary and capricious.  Here, the city noted some significant problems such as a prior chemical spill, traffic congestion, and the negative impact on citizen’s use and enjoyment of land.  Roundstone, however, offered expert reports asserting no traffic problems, limited environmental concerns, and argued the concerns regarding the impact was motivated by class and racial animus.  Although the court considered these arguments, they found that the board had heard both arguments and was not bound by Roundstone’s studies.  Again, the court held that Roundstone did not meet its burden to prove that the Board’s decision was arbitrary and capricious.  

As to Roundstone’s arguement that the city’s denial to rezone was a violation of the Fair Housing Act, the court explained that a claim under the Fair Housing Act is explored by a trial court and an appellate court will hear only the appeal.  Since this case came directly from the board’s decision, the court noted that they are not the correct forum for this challenge.  The court however, examined the complaint filed by Roundstone and found that they did not assert a proper claims since they simply made conclusory statements alleging a Fair Housing violation.  Since Roundstone has not presented a “meaningful argument,” the court held that Roundstone  waived the issue.  

Roundstone Dev., LLC v. City of Natches, Miss., 2011 WL 5529931 (Miss 11/15/2011) 

The opinion can be accessed at:  http://scholar.google.com/scholar_case?case=9972504339877292152&q=roundstone+development+v.+city+of+natchez&hl=en&as_sdt=2,33


 

Patty Salkin | December 7, 2011 at 1:02 am | Categories: Current Caselaw, Fair Housing Act Amendments, Rezoning | URL: http://wp.me/p64kE-1wf

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Mississippi Supreme Court Upholds City’s Denial to Rezone Property Finding Decision Was Not Arbitrary or Capricious


Mississippi Supreme Court Upholds City’s Denial to Rezone Property Finding Decision Was Not Arbitrary or Capricious

by Patty Salkin

The developer Roundstone acquired title to an area of land with the intent to subdivide the land and build homes on the property.  Roundstone planned on using a subsidy from the federal government to rent to lower income tenants.  Before purchasing the property, Roundstone received three letters informing him that the land was all zoned single family residential and assuring him that his plans would conform with the existing zoning laws.  The letters, however, wrongly characterized the zoning of some of the land which was actually zoned as open land.  

Roundstone presented its plan to the planning commission for approval.  The commission decided that the property must be re-zoned before they could approve the plan and, then, refused to allow a rezoning.  Roundstone appealed to the zoning board.  The board affirmed the commission’s decision.  On appeal to the circuit court, the circuit court affirmed the decision of the board as well.  

With respect to Roundstone’s argument that the re-zoning should not have been a prerequisite to the development, the court examined the city ordinance and determined that the ordinance can be read to require reclassification before or after the land is subdivided.  Since the city decided the ordinance requires reclassification before the subdivision, the court deferred to the city’s interpretation, finding it was not arbitrary or capricious.  

Next, the court dealt addressed Roundstone’s argument that the board’s denial to rezone the property was arbitrary and capricious.  The court began by looking at the city’s amendment procedure which allows rezoning of open land into development sites where it is necessary and desirable.  The court noted that whether the rezoning is necessary and desirable is largely in the discretion of the Board and the challenging party has the burden of proving the decision was arbitrary and capricious.  Here, the city noted some significant problems such as a prior chemical spill, traffic congestion, and the negative impact on citizen’s use and enjoyment of land.  Roundstone, however, offered expert reports asserting no traffic problems, limited environmental concerns, and argued the concerns regarding the impact was motivated by class and racial animus.  Although the court considered these arguments, they found that the board had heard both arguments and was not bound by Roundstone’s studies.  Again, the court held that Roundstone did not meet its burden to prove that the Board’s decision was arbitrary and capricious.  

As to Roundstone’s arguement that the city’s denial to rezone was a violation of the Fair Housing Act, the court explained that a claim under the Fair Housing Act is explored by a trial court and an appellate court will hear only the appeal.  Since this case came directly from the board’s decision, the court noted that they are not the correct forum for this challenge.  The court however, examined the complaint filed by Roundstone and found that they did not assert a proper claims since they simply made conclusory statements alleging a Fair Housing violation.  Since Roundstone has not presented a “meaningful argument,” the court held that Roundstone  waived the issue.  

Roundstone Dev., LLC v. City of Natches, Miss., 2011 WL 5529931 (Miss 11/15/2011) 

The opinion can be accessed at:  http://scholar.google.com/scholar_case?case=9972504339877292152&q=roundstone+development+v.+city+of+natchez&hl=en&as_sdt=2,33


 

Patty Salkin | December 7, 2011 at 1:02 am | Categories: Current Caselaw, Fair Housing Act Amendments, Rezoning | URL: http://wp.me/p64kE-1wf

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Supreme Court of the State of New York

Supreme Court of the State of New York

Appellate Division: Second Judicial Department http://www.planning.org/amicus/pdf/noghrey.pdf

 

 

______________________________________________

 

P

 

ARVIZ NOGHREY,

Plaintiff-Respondent-Appellant,

Appellate Division Docket No.

-against- 2006-05365

T

 

HE TOWN OF BROOKHAVEN and

T

 

HE PLANNING BOARD OF THE TOWN OF BROOKHAVEN

Defendants-Appellants-Respondents.

__________________________________________________________________

B

 

RIEF AMICUS CURIAE

__________________________________________________________________

Submitted by:

The Association of Towns for the State of New York,

The American Planning Association, &

The New York Metro Chapter of the American Planning Association

Michael E. Kenneally, Jr.

The Association of Towns

of the State of New York

150 State Street

Albany, NY 12207

(518) 465-7933

John D. Echeverria

Georgetown Environmental Law &

Policy Institute

Georgetown University Law Center

600 New Jersey Avenue, N.W.

Washington, D.C. 20002

(202) 662-9859

SUMMARY OF ARGUMENT

 

 

This $7.3 million “compensation” award puts at risk the ability of New York

cities, towns, and villages to continue to carry out their essential land use planning

and zoning functions. Under the standard applied by the trial court, local

governments face potentially enormous financial liability whenever an amendment

to their zoning regulations has a “significant” or “substantial” negative effect on

property values. This standard is so expansive and unpredictable that it would

have a major chilling effect on local officials attempting to review and update

zoning regulations, leading to the ossification of zoning in New York, and

undermining a vital legal protection for communities and property owners.

 

3

Contrary to the assumption of the trial court, regulatory takings doctrine

applies only in extreme circumstances, when regulations are so burdensome that

they are the “functional equivalent” of direct appropriations or, to use terminology

used by this Court, when an owner retains only a “bare residue” of value. This

interpretation (1) is supported by the original understanding of the Takings Clause;

(2) protects local democratic decision making; and (3) makes economic sense.

The trial court erred by instructing the jury that it could find that a taking

had occurred if Brookhaven’s zoning amendment had a “significant” or

“substantial” negative effect on the values of plaintiff’s two parcels. This liability

standard is inconsistent with the functional equivalence standard and, as plaintiff’s

counsel forthrightly explained to the jury, is so open-ended that it would support

liability for any burden that is “not peanuts.” This error was compounded by the

trial court’s incorrect suggestion that adverse economic impact, standing alone, can

be sufficient to establish a Penn Central taking.

Finally, the judgment must be reversed because plaintiff failed to establish

that the multi-factor Penn Central analysis supports a finding of a taking.

Application of the Penn Central factors involves a legal issue that this Court

reviews de novo on appeal. As to the economic impact factor, the evidence at trial

was contradictory, and the jury made no specific finding of fact. Furthermore, the

remaining Penn Central factors, the character of the government action and the

 

4

degree of interference with reasonable, investment-backed expectations, both

weigh heavily against a finding of a taking.

 

 

 

2. The record contains extensive – and highly contradictory – evidence

about the economic impact of the rezoning on the market value of Mr. Noghrey’s

two parcels. Four different estimates of the value of each property, zoned for

either commercial or residential use, were presented to the jury. Significantly, the

jury’s compensation awards do not line up with any of the appraisals.

Plaintiff’s appraiser, Elinor Brunswick, provided two estimates of the value

of the first parcel, subject to commercial zoning: $1,600,000 with a site plan filed,

and $1,450,000 without a site plan filed. JR. 160-61. These estimates were based

on the sale prices of several allegedly “comparable” properties and were

supposedly corroborated by a contract Mr. Noghrey negotiated for the sale of the

property for $1,600,000, contingent upon site plan approval for a strip shopping

7

center development. JR. 260-61, 1628.

 

1 Defendant’s appraiser, Mr. George

Veitch, also provided two estimates of parcel one’s value subject to commercial

zoning, $919,000 in a 2003 appraisal, JR. 935-36, and $766,500 in a 1990

appraisal. JR. 1106. Ms. Brunswick estimated that parcel one was worth only

$8,000 subject to residential zoning. JR. 159.

 

2 Mr. Veitch provided three

estimates of parcel one’s value under residential zoning, either $166,000 or

$130,000, depending on the number of lots that could be created, in his 2003

appraisal, JR. 946-47, and $171,000 in his 1990 appraisal. JR. 1106. Altogether,

these appraisals suggest that parcel one was worth between $1,600,000 and

$766,500 subject to commercial zoning and between $171,000 and $8,000 subject

to residential zoning.

Similar appraisals were offered for the second parcel, suggesting that it had a

value of between $1,990,000 and $958,500 subject to commercial zoning, JR. 160-

62, 936, 1106, and between $228,000 and $10,000 subject to residential zoning.

JR 160, 946-47, 1106.

1

 

Testimony offered by another of plaintiff’s witnesses, Mr. Eliud Custodio, suggests that the

evidence relating to this sales contract undermines, rather than corroborates, Ms. Brunswick

valuation. Mr. Custodio testified that property value can more than double when site plan

approval is granted. JR. 325. This suggests that the value of a property with site plan approval

should greatly exceed its value when a site plan has merely been filed. Ms. Brunswick’s

testimony regarding the second parcel is infected by the same discrepancy. JR. 260, 1637.

2

 

This estimate was not based on evidence from actual sales but calculated by taking the

property’s 2002 sale price of $185,000, discounted to 1989 dollars, and subtracting all taxes and

insurance expenses paid. JR. 155-57.

8

The jury made compensation awards of $757,000 for parcel one and

$890,000 for parcel two. JR. 1601, 1603. Because the trial court rejected the

Town’s request that the jury be instructed to make specific findings on the “before”

and “after” value of the properties, DB. 27, and because the jury evidently declined

to accept in toto the testimony of any of the expert appraisers, it is impossible, as

plaintiff acknowledges, to determine “what the jury found the property values to be

prior to, or after the rezoning.” PB. 34. As the Town has explained, DB. 35, if the

jury accepted the plaintiff’s highest “before” value, the verdict reflects a factual

determination that parcel one was reduced in value by 47% and parcel two by 44%.

In sum, the verdict leaves open the possibilities that the jury concluded that parcel

one lost between 47% and 98% of its value and that parcel two lost between 44%

and 92% of its value.

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December 05, 2011

REVISITING TERMINOLOGY OF FLORIDA'S NEW PROPERTY RIGHTS LAW: WILL IT ALLOW EQUITY TO PREVAIL OR GOVERNMENT TO BE "TAKEN" TO THE CLEANERS?

TERMINOLOGY OF FLORIDA'S NEW PROPERTY RIGHTS LAW: WILL IT ALLOW EQUITY TO PREVAIL OR GOVERNMENT TO BE "TAKEN" TO THE CLEANERS?

ELLEN AVERY[*]

Copyright © 1995 Journal of Land Use & Environmental Law

I. INTRODUCTION

In May of 1995, Florida became one[1] of approximately three dozen states[2] to adopt legislation that compensates private property owners when the value of their land is diminished inordinately by government actions that fall short of a constitutional taking.[3] Even the United States Congress has jumped on the bandwagon with its Contract With America, vowing to force the federal government to pay for property unjustly taken from landowners through environmental, land use and other regulations.[4]

Florida's new private property rights law took effect on October 1, 1995,[5] and speculation continues about the extent to which the new legislation will affect local and state governments' ability to regulate.[6] One commentator has called the law a "bugaboo" for the "big boys," insinuating that it will benefit large landowners like mining, sugar and phosphate companies, while small property owners will see little of its merit.[7] Others have heralded the legislation as a shield for private property owners, regardless of wealth, to fend off excessive governmental regulation of their land.[8]

Regardless of the side of the issue on which people fall, no one, including the lawmakers who adopted the bill, knows how the new law will affect private property rights.[9] The text of the law provides a cause of action to any private property owner whose existing or vested land use is "inordinately burdened" by a local or state governmental regulation adopted or amended after the close of the 1995 legislative session.[10] The stated intention of the law is to provide a cause of action separate and distinct from a compensable taking.[11]

Under the new statute, government agencies are required to compensate private property owners for the loss in fair market value caused by a permanent inordinate burden[12] placed on their land by a government action.[13] However, regulations that seek to control activities that are public nuisances at common law, or noxious uses of private property, are exempt.[14]

In effect, the new law provides landowners with a remedy when they sustain some unacceptable burden due to a governmental action that may not constitute a constitutional taking. Fifth Amendment constitutional takings actions often are complex and present many obstacles for landowners seeking compensation.[15] It has been noted that:

[T]he continuing misty nature of takings cases through the decades led Charles Haar to comment: "The attempt to distinguish 'regulation' from 'taking' is the most haunting problem in the field of contemporary land-use law—one that we have encountered many times already, one that may be the lawyer's equivalent of the physicist's hunt for the quark."[16]

 

The new law is an attempt to lessen the hardship on a landowner who wishes to bring suit over an alleged burden placed by government on his or her property,[17] and to expressly provide relief in those instances where a property owner has suffered an injury that falls short of a constitutional taking.[18] Although the new law provides a separate and presumably less burdensome cause of action for the landowner to prove than a taking, it borrows its language from takings cases. Given this, takings jurisprudence can provide foresight about how courts may interpret the language of the law. This is not to imply that the substance of takings jurisprudence will simply be substituted for the new law, but rather that an understanding of takings law can provide guidance for understanding the language of the new law and, subsequently, how courts will apply it.

Part II of this article will examine the statutory term "inordinate burden," using Florida cases and United States Supreme Court jurisprudence in an attempt to predict judicial interpretation of the lan guage.[19] Part III will analyze the essential elements of nuisance in common law, as well as the requirements for a noxious use of private property under current Florida law, in an attempt to point to regulations that may be exempt from the new law.[20] Finally, Part IV will discuss the issue of burden of proof under the new law.[21] That section will explore the issue of who bears that burden and will examine the level of proof necessary in establishing whether an "inordinate burden" has been caused by a governmental action.

Although Florida's Private Property Rights Protection Act claims to create a cause of action distinct from a taking under the Florida and United States Constitutions,[22] it is not yet clear whether the law will be entirely distinct. While the Legislature has created a separate cause of action, its use of takings terminology may lead judicial interpretations and applications of the law to become intimately wed to the use of similar terms in takings cases.[23] Statutory interpretation will be the key element in determining how the new law is implemented. Under Florida law, if the language of a statute is clear on its face, courts must confine themselves to the plain meaning unless such an interpretation would lead to a ridiculous result.[24] Conse quently, if courts determine that the language of the property rights law is clear on its face, they will be confined to using the plain meaning of the law in deciding claims filed by affected private property owners for compensation.

However, the inherently vague terms used in the statute will inevitably lead courts to determine that the language of the property rights law is ambiguous,[25] and therefore requires judicial interpre tation.[26] Any judicial interpretation is likely to borrow heavily from current takings jurisprudence, since the language of the statute itself reiterates many of the well-known phrases that have been established in this area of the law.[27] Under this scenario, the new property rights law could become intertwined with takings law—lost in the fog of uncertainty that currently engulfs that area of juris prudence—rather than establishing a new cause of action as the Legislature intended. Alternately, if the courts choose to devise new tests for analyzing cases under the property rights law, it will be some time before such analyses become established as precedent.

In short, courts soon will be called upon to analyze claims under the new law. It will be several years before enough decisions have been rendered to determine whether Florida's private property rights act is an extension of current property law or just a rehashing of regulatory takings jurisprudence.[28]

II. WHEN IS A LANDOWNER "INORDINATELY BURDENED?"

Florida's property rights law allows landowners to be compensated when government regulations place "inordinate burdens" on their property.[29] The statute establishes a disjunctive definition of inordinate burden: a government action that keeps landowners from attaining their reasonable, investment-backed expectation for the existing or future use of the real property;[3]0 or an action that puts a "disproportionate share of a burden imposed for the good of the public" on landowners.[31] Since the statutory definition is disjunctive, each part alone constitutes an inordinate burden, and therefore, each part of the definition must be analyzed separately to determine the meaning of "inordinately burdened."

A. The Loss of Reasonable, Investment-Backed Expectations

The first inordinate burden definition contained in the property rights law states that government agencies cannot directly restrict or limit the use of real property in a way that permanently prevents the landowner from attaining "the reasonable, investment-backed expectation for the existing use of the real property or a vested right to a specific use of the real property with respect to the real property as a whole."[32] The law defines "existing use" as an actual, present use or a reasonably foreseeable, nonspeculative use of the land that is suitable for the property and compatible with adjacent land uses,[33] and states that "vested rights" in land should be determined by applying principles of equitable estoppel or substantive due process under the common law or state statute.[34]

1. "Going Too Far:" Pennsylvania Coal Co. v. Mahon[35]

The United States Supreme Court first addressed the issue of investment-backed expectations in Pennsylvania Coal Co. v. Mahon,[36] when it attempted to determine to what extent land value must be diminished in order for a state regulation to constitute a regulatory taking.[37] The Court recognized the need for the exercise of police power by local or state governments in order to prevent certain undesirable activities, but it also held that these powers were limited.[38] "The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking."[39]

Pennsylvania Coal offers very few specifics to aid a court in deter mining whether a regulation "goes too far."[40] "As we already have said, this is a question of degree—and therefore cannot be disposed of by general propositions."[41] The Private Property Rights Protection Act appears to remedy this problem by affording property owners a cause of action where land is inordinately burdened "without amounting to a taking."[42] Yet the same problems inherent in determining whether a regulation has gone "too far" may be found in determining if the same regulation places an "inordinate burden" on property. Thus the analysis enunciated in Pennsylvania Coal is useful in determining whether compensation is due when the land has lost some market value but no per se taking of private property has occurred.[43]

2. "Investment-Backed Expectations:" Penn Central Transportation Co. v. New York City[44]

The language used in Penn Central Transportation Co. v. New York City[45] also is echoed in the Florida private property law. The "ration al basis" test set forth in Penn Central requires courts to review three factors, in an ad hoc analysis, to determine if a taking has occurred: (1) the character of the government action; (2) the regulation's economic impact on the landowner; and (3) the extent to which the regulation interferes with distinct investment-backed expectations.[46]

The Court in Penn Central added an economic-based rationale to traditional nuisance and reciprocal public/private benefits tests to determine whether a regulatory taking had occurred.[47] The Court observed that the government regulation would still allow the land owners to use their property as it had been used for the past 65 years —as a railway terminal—and that Penn Central would still be able to obtain a "reasonable return" on its investment.[48] The Court also noted that the regulation's stated rationale would benefit the owners of the terminal in that it "benefit[s] all New York citizens and all structures, both economically and by improving the quality of life in the city as a whole."[49]

The language of Florida's property rights law owes a great deal to Penn Central. The "reasonable, investment-backed expectation" term was incorporated into the Florida law's definition of inordinate burden.[5]0 While Penn Central set out a three part inquiry, Florida's legislators apparently chose to use only the language of the third inquiry in defining what type of government action would violate the law: Property is inordinately burdened when government agencies directly restrict or limit the use of real property in a way that permanently prevents the landowner from attaining "the reasonable, investment-backed expectation for the existing use of the real property or a vested right to a specific use of the real property with respect to the real property as a whole."[51] Although takings cases use more inquiries than those required by this new law, Penn Central's analysis of reasonable investment-backed expectations, the third inquiry, is instructive of how Florida courts may interpret "inordinate burden." Quite different from diminution of value analysis, which looks at the economic loss, reasonable investment-backed expectation analysis looks at what property rights, both economic and non-economic, the regulation takes away.[52] Florida's property rights law prohibits the award of business damages,[53] yet the idea of investment-backed expectations is generally the same as that established in Penn Central: property owners may have well-thought-out plans for their land that are thwarted by government regulation.

Legislators have said that Florida's property rights law is aimed at easing the economic impacts of government regulations on private landowners whose reasonable expectations for the use of their property are thwarted by such regulations.[54] However, legislators made exceptions in the law to allow government regulation of nuisances and noxious uses.[55] It is apparent that Florida lawmakers borrowed key language and rationales from Penn Central for their property rights bill. Yet the law expressly addresses only one part of the Supreme Court's three part test. The maxim expressio unius est exclusio alterius dictates that the inclusion of one thing in a statute is the exclusion of another.[56] Hence, under the new law, if a governmental action has too great an impact on permanent reasonable investment-backed expectations, compensation is due, regardless of diminution in value.[57]

3. A Landowner's "Reasonable Expectations:" Lucas v. South Carolina Coastal Council[58]

While Lucas v. South Carolina Coastal Council[59] centers around a taking of all economically beneficial use of land, which is not neces sary under the property rights law, the case nonetheless provides instructive analogies for analyzing the language of the law. The Lucas Court recognized that compensation for a landowner may not be available where a valid use of the government police power does not take all of the property's value, or where a property owner did not have the right to undertake the proposed use.[60] "The answer to this difficult question may lie in how the owner's reasonable expectations have been shaped by the State's law of property."[61]

The "reasonable expectations" language of Lucas also is used in the definition of "inordinately burdened" in Florida's property rights law.[62] In the law, the term "existing use" means

an actual, present use or activity on the real property, including periods of inactivity which are normally associated with, or are incidental to, the nature or type of use or activity to such reasonably foreseeable, nonspeculative land uses which are suitable for the subject real property and compatible with adjacent land uses and which have created an existing fair market value in the property greater than the fair market value of the actual, present use or activity on the real property.[63]

 

In determining reasonably foreseeable, nonspeculative land uses, courts may look to those uses that "have been shaped by [Florida's] law of property."[64] Therefore, courts that hear cases under Florida's property rights law should use the same analysis hinted at in Lucas[65] to determine whether property has been inordinately burdened.

4. Florida's Take on Takings: Graham and Reahard

Lawmakers also apparently borrowed language from the landmark Florida case Graham v. Estuary Properties, Inc.[66] to draft the property rights law. The Graham court enunciated a six-part test to determine whether a taking had occurred: (1) whether there is a physical invasion of the property; (2) the degree to which there is a diminution in value of the property; (3) whether the regulation confers a public benefit or prevents a public harm; (4) whether the regulation promotes the health, safety, welfare, or morals of the public; (5) whether the regulation is arbitrarily and capriciously applied; and (6) the extent to which the regulation curtails investment-backed expectations.[67] Although the six-part test need not be applied for compensation under the new property rights law, the elements of public harm, i.e., nuisance and noxious uses, valid and invalid regulations, and investment-backed expectations set forth in Graham, are reflected in the law.[68]

The reasoning in Graham[69] and its subsequent application may be used in interpreting the property rights law to determine whether a government regulation deprives a property owner of a reasonable, investment-backed expectation. Therefore, courts that decide cases under the new law may borrow parts of the analysis used by the Graham court to determine whether a government agency must pay compensation.

Florida courts also may borrow from the eight-part test set forth in Reahard v. Lee County[70] in reviewing cases under the new law. The Reahard court said that a proper takings analysis should include the following factors: (1) the history of the property; (2) the history of the development; (3) the history of zoning and regulation; (4) how, if any, the development changed when title passed; (5) the present nature and extent of the property; (6) the reasonable expectations of the landowner under state common law; (7) the reasonable expec tations of the neighboring landowners under state common law; and (8) the diminution in the investment-backed expectations of the landowner, if any, after passage of the regulation.[71]

The Legislature apparently borrowed many ideas and terms from Reahard in drafting the property rights law. The themes of investment-backed expectations, diminutions in value, and existing and vested uses of property and their relation to past, present, and future government regulations are interspersed throughout the law.[72] Therefore, the interpretation of such language under the new law is likely to be somewhat similar to the analysis in Reahard.

5. Summary

Florida courts that hear cases under the new property rights law likely will borrow from the analyses that have been used in takings cases to determine whether a government regulation constitutes an inordinate burden under the first definition. In the cases discussed above, courts have borrowed language and rationales from one another in deciding takings claims. Florida courts will be hard-pressed to come up with alternate ways to sort out future claims under the property rights law than those laid out in takings jurisprudence. While Florida property owners are not required to jump through as many hoops under the new law as they would have with constitutional takings law, their cases will be decided in much the same way.[73]

B. The Disproportionate Share of a Public Burden

The second part of the disjunctive definition of "inordinate burden" states that a regulation imposes too great a burden on the land if the property owner is left with unreasonable uses and bears a "disproportionate share of a burden imposed for the good of the public, which in fairness should be borne by the public at large."[74] To determine whether compensation should be paid under this sec tion of the "inordinate burden" definition, courts will need to determine what a disproportionate share of a public burden is and what portion of an affected parcel should be used in deciding whether the landowner is bearing too great a public burden.

The underlying basis for this second prong of the test appears to be equity. The Legislature has mandated that property owners should only be responsible for bearing their "fair share" of the burden that regulatory limitations place on their property to promote the public good. Although there are a multitude of ways in which courts may engage in this balancing test, it is yet uncertain which method the courts will adopt. One issue that the courts may consider in determining if a landowner is bearing a disproportionate share is the essential nexus and rough proportinality requirements of takings jurisprudence. Another issue that may arise is whether to assess the entire property, or just a portion of the tract, in considering whether the property owner is bearing a disproportionate share. Accordingly, both of these issues will be explored below.

1. "Essential Nexus" and "Rough Proportionality"

 

To determine what a disproportionate share of a public burden would constitute under the property rights law, Florida courts might look to the rationales behind Nollan v. California Coastal Commission[7]5 and Dolan v. City of Tigard[76] to determine whether a regulatory condition placed on a landowner is a legitimate exercise of police power or an attempt to force a property owner to concede to an unfair demand for the public's benefit.

In Nollan, the Supreme Court held that in order for a government to make a permit approval contingent upon the granting of a public easement by a property owner, there must be an "essential nexus" between the condition placed on the landowner and the purpose of the restriction: that is, the condition must "further the end advanced as the justification for the prohibition."[77]

If no nexus exists, the regulation will be held invalid as an unreasonable exercise of police power. A regulation found to be invalid is void. However, the remedy for the property owner in such an instance is an order enjoining the governmental agency from enforcing the regulation. The result is that no property right or interest is lost by the property owner. Therefore, under Nollan, a governmental regulation that does not bear a rational nexus to advancing a legitimate governmental interest will entitle the property owner to compensation.[78] Alternately, if a nexus does exist, the regulation will be upheld.[79]

The holding in Nollan was expanded seven years later. In Dolan, the Supreme Court held that in addition to an "essential nexus," a government must make some sort of individualized determination that the condition requested by the agency is related "in both nature and extent to the impact of the proposed development."[80] This determination need not be precise, but it must be sufficient to establish that the proposed development will occasion a need for the concessions required.[81]

The rationale behind the essential nexus[82] and rough propor tionality[83] tests is the same as that of the property rights law: to prevent government agencies from demanding unreasonable concessions from private landowners for the public good.[84] However, a property owner filing suit under the Private Property Rights Protec tion Act still may be entitled to compensation where a governmental action, such as an exaction placed on a permit, bears a rational nexus to a legitimate governmental end and is roughly proportional to that end. Since the spirit of the new property law and that of takings jurisprudence is similar—to ensure that a private landowner is not forced to carry a disproportionately high burden—the analysis used in those takings cases may be utilized in determining whether compensation is due under the new law. Therefore, Florida courts hearing cases under the property rights law likely will look to the rationales of Nollan and Dolan to determine whether a property owner "bears permanently a disproportionate share of a burden imposed for the good of the public."[85]

2. The Denominator Problem

Florida's private property law affords landowners compensation if government restricts use of property such "that the property owner is left with existing or vested uses that are unreasonable such that the property owner bears permanently a disproportionate share of the burden imposed for the good of the public."[86] Although the basic consideration under this prong of the inordinate burden definition seems to be one of equity, balancing the burden of the regulation against the proportion of the burden that the landowner ought to bear, the law fails to indicate what portion of the property must be looked at in making such a determination. Other parts of the bill discuss the parcel "as a whole,"[87] yet this part of the definition offers no guidance.

The law defines "real property" as land and any improvements made to it, including any other relevant property in which the owner has an interest.[88] However, the public benefit section of the "inor dinate burden" definition does not say whether courts assessing such governmental actions should look at the entire parcel or just the section affected by the regulation to determine whether the burden is disproportionate and, therefore, if compensation is due.[89] Federal and state courts have, in the last decade, sought to resolve this dilemma, which is often called the denominator problem.

The Supreme Court addressed the denominator problem in Keystone Bituminous Coal Association v. DeBenedictis.[90] "Because our test for regulatory taking requires us to compare the value that has been taken from the property with the value that remains in the property, one of the critical questions is determining how to define the unit of property 'whose value is to furnish the denominator of the frac tion.'"[91] The Court determined that the denominator in Keystone must be the entire quantity of coal owned by the association's members, not the two percent required by state statute to be left underground.[92]

Although the decision in Lucas v. South Carolina Coastal Council involved a per se taking, the Court mentioned but failed to resolve the question of when the regulation of a portion of property that does not constitute a categorical taking either takes a section of the tract or, alternately, the entire tract.[93] "Regrettably, the rhetorical force of our 'deprivation of all economically feasible use' rule is greater than its precision, since the rule does not make clear the 'property interest' against which the loss of value is to be measured."[94]

In Graham v. Estuary Properties, Inc., the Florida Supreme Court held there was no taking when Lee County refused to permit the filling of 1800 acres of wetlands, forcing a developer to scale back a proposed project from 26,500 to 12,968 residences.[95] The court found that when Estuary bought the property, "it did so with no reason to believe that the conveyance carried with it a guarantee from the state that dredging and filling the property would be permitted."[96] Thus, the court based its takings decision on the entire tract, not just the portion affected by the county's regulation.[97]

Another Florida court stated that "the focus is on the nature and extent of the interference with the landowner's rights in the parcel as a whole in determining whether a taking of private property has occurred. Prohibition of development on certain portions of the tract does not in itself effect an unconstitutional taking."[9]8 In Florida Department of Environmental Regulation v. Schindler, the Second District Court of Appeal held that the entire 3.5-acre parcel should be considered in determining whether the DER's refusal to allow Schindler to develop a 1.85-acre portion of the tract, which contained wetlands, constituted a taking.[99]

Although many courts have held that all economically viable uses of an entire parcel should be considered in determining whether a regulatory taking has occurred,[100] some have ruled otherwise.[10]1 In Loveladies Harbor, Inc. v. United States, the court held that only the portion of Loveladies' property affected by a federal government regulation should be considered in determining whether a taking had occurred.[102]

It would seem ungrateful in the extreme to require Loveladies to convey to the public the rights in the 38.5 acres in exchange for the right to develop 12.5 acres, and then to include the value of the grant [to the public] as a charge against the givers. This leaves the conclusion that the relevant property for the takings analysis is the 12.5 acres . . . .[103]

 

Florida courts have come to similar conclusions. In Vatalaro v. Florida Department of Environmental Regulation, the court held that denial of a permit took all economically viable use of Vatalaro's land because virtually no use could be made of the property.[104] "Generally, the denial [of a permit] will not render the land useless in the economic sense. Although development of one segment of rights or uses has been precluded, other uses may continue to exist . . . . On the other hand, where the owner is left with no viable economic use of the land, a taking has occurred."[105]

While the denominator problem has yet to be resolved, it seems that courts consider all economically viable uses of the whole tract as the base of the takings fraction unless: (1) the government has required some portion of the property be deeded to the public in exchange for a permit;[106] or (2) there is a per se taking of all economically viable use of the land. Florida courts are likely to follow precedent and use the whole parcel as the denominator in analyzing most claims made under the state's new property rights law. If courts use the entire tract as the denominator of the fraction, they are less likely to find that a regulation has "inordinately burdened" a landowner than if the denominator were only a portion of the tract. Therefore, there will be fewer successful claims under the property rights law if the entire parcel is used as the denominator.

3. Summary

The second section of the definition of inordinate burden in the Private Property Rights Protection Act is first and foremost a balancing test, under which the court should employ notions of equity and fairness. Although the approach courts will take in answering the question of how to determine whether a landowner has been called upon to bear a disproportionate share of the burden caused by a regulation that seeks to promote the public good is yet uncertain, several issues may be considered. First courts may look to the essential nexus and rough proportionality standards set out by the United States Supreme Court to determine if such a burden placed on a landowner is disproportionate. Second, courts may grapple with the issue of whether to look at the property as a whole to determine if the burden is disproportionate.

Hence, Florida courts are likely to look to the rationales behind two distinct types of takings analyses in deciding whether a regulation inordinately burdens private property for the public good. For the last eight years, courts have reviewed cases in which government agencies imposed conditions on property owners for the public good with an eye toward whether those contingencies were closely and logically related to the impact of the proposed development. Because regulations that benefit the public at large often help affected landowners as well, courts are likely to determine that if there is a logical relationship between the imposed condition and the development impact, the condition does not cause a disproportionate burden on the property owner. If, however, courts find no nexus between the condition and the impact, they are likely to find an inordinate burden and award compensation.

The public burden portion of the definition does not state whether courts must look at the entire parcel or just the portion impacted by a regulation in determining whether there is an inordinate burden. Most courts that have dealt with the denominator problem in takings cases have used the entire parcel as the denominator of the takings fraction because the whole tract was impacted by a regulation. Florida courts are likely to do the same in suits filed under the property rights law, especially given that other language in the law indicates that the property should be looked at as a whole. For instance, the first portion of the "inordinate burden" definition explicitly states that courts should look at the parcel "as a whole" in determining whether to award compensation. The public burden portion of the definition contains no such language. Although the sections of the "inordinate burden" definition are disjunctive, courts likely will construe the public benefit portion of the definition to include the entire parcel as well. Therefore, decisions made under the second part of the "inordinate burden" definition are likely to be based on the whole parcel, not just the portion affected by an ordinance or regulation.

III. WHAT ARE NOXIOUS USES AND PUBLIC NUISANCES UNDER FLORIDA'S COMMON LAW?

The property rights law does not provide compensation for land that is inordinately burdened by local or state regulations aimed at abating common law public nuisances or noxious uses of private property.[107] A nuisance is an unprivileged interference with a person's use of his or her land.[108] Nuisances that interfere with the private enjoyment of land are private nuisances. Nuisances that interfere with a common right general to the public are public nui sances.[109] There are two types of nuisances that are premised on the amount of harm they create. A nuisance per se is a nuisance no matter how reasonable the defendant's conduct.[110] A nuisance per accidens, or a nuisance in fact, is an activity that is unreasonable under certain circumstances.[111] The issue is to determine what activities constitute public nuisances and noxious uses under Florida's common law.

Courts nationwide have long held that states have the authority, under their police powers, to protect their populations from harm by prohibiting public nuisances and noxious uses.[112] Even the Supreme Court reaffirmed recently that states can control or abate certain actions as common law nuisances, even if they deprive a landowner of all economically viable use of his or her property.[113]

Florida common law has, for nearly eighty years, given state and local governments police powers to regulate private property to prevent public harm.[114] One of the earliest cases to discuss the theory behind Florida's nuisance law was Cason v. Florida Power Co.[115] "All property is owned and used subject to the laws of the land. Under our system of government property may be used as its owner desires within the limitations imposed by law for the protection of the public and private rights of others."[116]

Some 25 years later, the Florida Supreme Court provided some examples of a state's police powers:

Organic rights "to acquire, possess and protect property" are subject to the lawful exercise of the inherent sovereign police power of the State to provide for and to conserve the safety, health, morals, comfort and general well being of human life and activities. Private rights may be regulated and restricted for the public welfare and without compensation when not done arbitrarily, needlessly or oppressively. Nuisances caused by the possession or use of property may be abated as provided by valid law without violating organic property rights, when that remedy is necessary to protect public welfare.[117]

 

Similar language was used in a more modern case, Graham v. Estuary Properties, Inc.,[118] to explain why both public harms and benefits may legitimately be controlled by state and local governments:

As previously stated, the line between the prevention of a public harm and the creation of a public benefit is not often clear. It is a necessary result that the public benefits whenever a harm is prevented. However, it does not necessarily follow that the public is safe from harm when a benefit is created.[119]

 

The court in Graham also reaffirmed the rule that exercise of the state's police power must relate to the health, safety, welfare or morals of the public and may not be arbitrarily and capriciously applied.[120]

The rationales of the cases stated above lay a firm foundation for the state to regulate and abate a gamut of public nuisances and noxious uses at common law. In National Container Corp. v. State ex rel. Stockton, one of the state's earliest environmental cases, the Florida Supreme Court stopped a paper mill from polluting a local river.[12]1 In Pompano Horse Club, Inc. v. Bryan, the court enjoined the operation of a horse track and betting parlor because it was a nuisance to surrounding residents.[122] The court upheld the Legislature's ability to tax the storage of gasoline because of its noxious and highly flammable properties in Sheip Co. v. Amos.[12]3 In Philbrick v. City of Miami Beach, the court upheld the enjoining of the operation of a funeral parlor in a residential district in violation of a zoning ordinance as a public nuisance.[12]4 In Demetree v. State ex rel. Marsh, the court enjoined a house of prostitution as a public nuisance.[125] There are dozens more cases decided by Florida courts in the last eight decades that have upheld the state's power to regulate and abate nuisances.[126]

The United States Supreme Court said recently in Lucas v. South Carolina Coastal Council that if a state could prove that a particular use of property was a nuisance under background principles of state nuisance law, then the state could regulate the use, regardless of whether it worked a taking of all economically viable use of the property.[127] Therefore, it could be argued that Florida has the right, under its police powers, to regulate as public nuisances new activities or practices that courts have never specifically determined were noxious uses of property. However, the state will likely be required to prove that the common law nuisance principle existed prior to the enactment of the property rights act.[128] If that is the case, then agencies could regulate new technologies or activities as public nuisances, even though they have never been deemed public nuisances by courts.

Although it will be up to Florida courts to ultimately decide what state and local governmental actions can be justified as legitimate exercises of police power under the property rights law, clearly a wide variety of activities have been regulated as nuisances and noxious uses. Because the Legislature excluded regulations that seek to control public nuisances at common law and noxious uses of private property from the purview of the private property rights law, lawmakers must have intended that the state retain its traditional police powers to control some uses of private property. Ultimately, it will be up to the courts to decide how liberally or conservatively they will construe common law nuisance cases in reviewing compensation claims under the new law.

IV. WHO MUST PROVE THAT A REGULATION IMPOSES AN "INORDINATE BURDEN" AND BY WHAT EVIDENCE?

The property rights law allows landowners to be compensated for the loss of fair market value if government regulations "inordinately burden" their property.[129] The law requires a property owner who files an action in circuit court to also provide the court with a "bona fide, valid appraisal that supports the claim and demonstrates the loss in fair market value to the real property."[130] The law then allows the government to issue a ripeness decision identifying allowable uses of the property under the contested regulation[131] and to make an offer of settlement to the property owner.[132] The law lists eleven possible settlement offers: (1) adjustments of land development or permit standards controlling the development or use of land; (2) increases or modifications in the density, intensity, or use of areas of development; (3) transfers of development rights; (4) land swaps or exchanges; (5) mitigation, including payments in lieu of on-site mitigation; (6) location on the least sensitive portion of the property; (7) conditions on the amount of development or use permitted; (8) requirements that issues be addressed on a more comprehensive basis than a single proposed use or development; (9) issuance of a development order, a variance, special exception or other extraordinary relief; (10) purchase of the real property, or an interest therein, by an appropriate government agency; and (11) no changes to the action of the government agency.[133]

If one of the parties rejects the settlement offer or a counter-offer, then the claim goes to circuit court in the county in which the property that is the subject of the suit is located.[134] During the hearing, both the landowner and the government present evidence.[135] This is when the issue of which party will bear the burden of proof becomes a factor.

In most Florida civil trials, the plaintiff bears the burden of proof, or in other words, has the duty of establishing the truth of a given proposition.[136] The term "burden of proof," however, also means the duty of a party to produce evidence at the beginning or a subsequent stage of the trial.[137] Under the second definition of burden of proof, the burden can shift from plaintiff to defendant and back again.[138]

Both uses of the term "burden of proof" were addressed by the Florida Supreme Court in Board of County Commissioners of Brevard County v. Snyder.[13]9 In Snyder, the court held that a landowner who seeks to rezone property has the burden of proving that the proposal is consistent with the comprehensive plan and complies with all procedural requirements of the zoning ordinance. Once the plaintiff establishes that the proposed rezoning is consistent with the com prehensive plan, the burden shifts to the government to show with competent substantial evidence that maintaining the existing zoning classification with respect to the property accomplishes "a legitimate public purpose" and is not "arbitrary, discriminatory, or unreason able."[140] If the government carries its burden, then the application should be denied.[141]

Prior to Snyder, the property owner bore the burden of proof throughout a trial.[142]

In order to sustain its zoning decision, the local government need only present enough substantial competent evidence to place the validity of its decision in reasonable dispute or controversy. On the other hand, the rule places a heavy burden on the challenger of a local zoning decision. In order to show that the zoning decision is not fairly debatable, the challenger must "conclusively" show or present clear and convincing evidence that the zoning decision is not valid.[143]

 

While the Snyder decision applies to zoning matters, it is instructive as to what burden of proof courts might require in cases heard under the property rights law. Florida courts may determine that a property owner should bear the entire burden of proof in showing that a regulation or ordinance "inordinately burdened" land because it is the landowner who is seeking compensation for a loss in market value of his or her property. Under that scenario, the government would not carry a heavy burden of proving that its regulations do not "inordinately burden" a landowner's property. The government would only have to rebut the landowner's evidence.

However, courts might determine that property owners should bear only the initial burden of showing that their land has been affected in some way by a governmental action. Then the courts could shift the burden of proof to the government to prove that such action was not unfair or unreasonable. Under that scenario, the government would bear the heavy burden of proving that its regulations did not "inordinately burden" the landowner's property.

The property rights law seems to give deference to landowners in deciding if compensation is due. The law begins with a statement about the existence of an important state function in "protecting the interests of private property owners" from "inordinate burdens" placed upon them by local or state government regulations.[144] It continues by stating that:

it is the intent of the Legislature that, as a separate and distinct cause of action from the law of takings, the Legislature herein provides relief, or payment of compensation, when a new law, rule, regulation, or ordinance of the state or a political entity of the state, as applied, unfairly affects real property.[145]

 

In its discussion of judicial review of settlement offers, the law states "the relief granted shall protect the public interest served by the regulations at issue and be the appropriate relief necessary to prevent the governmental regulatory effort from inordinately burdening the real property."[146]

The Florida House of Representatives Judiciary Committee's fiscal analysis of the property rights bill is telling of what impact lawmakers think the property rights law will have. The analysis states:

Section 1 [the government regulation portion] of the bill may have a significant fiscal impact upon state agencies and state funds and on local governments on both a non-recurring and recurring basis. Whether the government's response to the bill is to halt all actions which could possibly affect property values, to grant all requests for the use of property, or to take a middle position and deny some and grant others, it may have to pay compensation to the property owners. In addition, section 1 of the bill would likely have a fiscal impact upon the judicial branch. The bill would increase the class of cases for which there must be jury trial. The cost to the state and local governments as a result of the increased jury trials and potential increase in litigation is unknown.[147]

 

Based on the discussion above, Florida courts are likely to shift the burden of proof to local and state government agencies, requiring them to prove that their regulations are not inordinately burdensome.[148] That shifting of the burden of proof may make government agencies more wary of going to court under the new law, thereby forcing them to make settlement offers they might not otherwise have made to avoid a lawsuit. On the other hand, government agencies could begin amassing evidence in every action they take under regulations enacted or amended after May 11, 1995,[149] thereby preparing in advance for any court challenge to their decisions filed under the new law. Either way, agency officials will have to change the way they conduct day-to-day business in anticipation of being sued under the property rights law.

V. CONCLUSION

Florida's new private property rights law will have a mixed impact on local and state governments' ability to regulate land use. Courts that hear cases under the law likely will borrow from takings analysis to determine whether private property has been "inordinately burdened" by a regulation. Although the Legislature intended the law to provide a separate cause of action from present takings jurisprudence, it is unlikely that courts will be able to draw a bright line between the new cause of action and takings juris prudence. Takings jurisprudence has evolved a great deal over the last 70 years, and while it is still fairly muddy, it is clearer than decades ago. The age and logic of takings jurisprudence will make it impossible for courts hearing cases under the property rights law to ignore when determining whether property has been "inordinately burdened" by government regulations.

The courts also have grappled with the denominator problem of takings law for years, and Florida judges will be hard-pressed to ignore such precedent in deciding cases under the public benefit part of the "inordinate burden" definition. In most cases, courts will look at the entire parcel in deciding whether property has been "inordinately burdened" by a regulation. As a result, there may be fewer successful claims under the new law than if courts looked only at portions of a parcel in making their judgments.

The state's wide and varied history of regulating and abating nuisances and noxious uses also will allow state courts to refuse to award compensation for many claims under the property rights law. The wording of the law suggests that the Legislature intended for the state to be allowed to continue using its traditional police powers to regulate uses of property that are public nuisances at common law and noxious uses of private property. Lawmakers specifically prohibited landowners from being compensated for regulation of nuisances and noxious uses under the new law, and courts likely will defer to the state's extensive nuisance abatement precedent in deciding cases under the law.

Agencies will likely be required to bear the substantial burden of proof in cases filed under the property rights law. They will deal with that burden either by succumbing to property owners' settlement demands or by amassing large quantities of evidence in every action they take in anticipation of fighting lawsuits filed under the new law.

In summary, Florida's new private property rights law will have a moderate impact on local and state government regulation of land. The courts will use established takings analyses to determine whether a regulation is inordinately burdensome and compensation should be awarded. However, a heavy burden may be placed on governments to prove that regulations do not "inordinately burden" real property. The courts' decision regarding which party will bear the burden of proof ultimately will determine how great an impact the law will have on environmental, land use and other types of private property regulations.

APPENDIX 1

CHAPTER 95-181

Committee Substitute for House Bill No. 863

An act relating to real property; creating the "Bert J. Harris, Jr., Private Property Rights Protection Act"; providing legislative intent; providing remedies for real property owners whose property has been inordinately burdened by governmental action; providing definitions; providing requirements for a property owner who seeks compensation; requiring the governmental entity to provide notice of the claim; authorizing certain settlement offers; requiring that the governmental entity and property owner file a court action if a settlement agreement contravenes the application of state law; providing for judicial review, notwithstanding the availability of administrative remedies; authorizing the property owner to file a claim of compen sation upon rejection of a settlement offer; requiring the court to determine the percentage of responsibility for an inordinate burden imposed by multiple governmental entities; providing for a jury to determine the amount of compensation to the property owner; pro viding for costs and attorney fees; providing that the right for which compensation is paid is a transferrable development right; providing exceptions; providing application of the act; creating the Florida Land Use and Environmental Dispute Resolution Act; providing definitions; providing procedures that a property owner may take when the property owner believes that a development order has inordinately burdened use of the property; providing for a special master to conduct a hearing on the request for relief; specifying parties that may participate in the proceeding; authorizing the special master to subpoena witnesses; providing notice requirements; providing for the conduct of the hearing; requiring the special master to file a recommendation; providing for a governmental entity to accept, modify, or reject the recommendation; requiring governmental entities to adopt rules; providing for construction of the act; providing application; amending s. 163.3181, F.S.; providing for mediation or other dispute resolution upon denial by a local government of an owner's request for an amendment to a comprehensive plan; amending s. 163.3184, F.S.; providing for mediation or other dispute resolution upon issuance of a notice by the state land planning agency that a comprehensive plan or plan amendment is not in compliance with the Local Government Comprehensive Planning and Land Development Regulation Act; providing an effective date.

Be It Enacted by the Legislature of the State of Florida:

Section 1. (1) This act may be cited as the "Bert J. Harris, Jr., Private Property Rights Protection Act." The Legislature recognizes that some laws, regulations, and ordinances of the state and political entities in the state, as applied, may inordinately burden, restrict, or limit private property rights without amounting to a taking under the State Constitution or the United States Constitution. The Legislature determines that there is an important state interest in protecting the interests of private property owners from such inordinate burdens. Therefore, it is the intent of the Legislature that, as a separate and distinct cause of action from the law of takings, the Legislature herein provides for relief, or payment of compensation, when a new law, rule, regulation, or ordinance of the state or a political entity in the state, as applied, unfairly affects real property.

(2) When a specific action of a governmental entity has inordinately burdened an existing use of real property or a vested right to a specific use of real property, the property owner of that real property is entitled to relief, which may include compensation for the actual loss to the fair market value of the real property caused by the action of government, as provided in this section.

(3) For purposes of this section:

(a) The existence of a "vested right" is to be determined by applying the principles of equitable estoppel or substantive due process under the common law or by applying the statutory law of this state.

(b) The term "existing use" means an actual, present use or activity on the real property, including periods of inactivity which are normally associated with, or are incidental to, the nature or type of use or activity or such reasonably foreseeable, nonspeculative land uses which are suitable for the subject real property and compatible with adjacent land uses and which have created an existing fair market value in the property greater than the fair market value of the actual, present use or activity on the real property.

(c) The term "governmental entity" includes an agency of the state, a regional or a local government created by the State Constitution or by general or special act, any county or municipality, or any other entity that independently exercises governmental authority. The term does not include the United States or any of its agencies, or an agency of the state, a regional or a local government created by the State Constitution or by general or special act, any county or municipality, or any other entity that independently exercises governmental authority, when exercising the powers of the United States or any of its agencies through a formal delegation of Federal authority.

(d) The term "action of a governmental entity" means a specific action of a governmental entity which affects real property, including action on an application or permit.

(e) The terms "inordinate burden" or "inordinately burdened" mean that an action of one or more governmental entities has directly restricted or limited the use of real property such that the property owner is permanently unable to attain the reasonable, investment-backed expectation for the existing use of the real property or a vested right to a specific use of the real property with respect to the real property as a whole, or that the property owner is left with existing or vested uses that are unreasonable such that the property owner bears permanently a disproportionate share of a burden imposed for the good of the public, which in fairness should be borne by the public at large. The terms "inordinate burden" or "inordinately burdened" do not include temporary impacts to real property; impacts to real property occasioned by governmental abatement, prohibition, prevention, or remediation of a public nuisance at common law or a noxious use of private property; or impacts to real property caused by an action of a governmental entity taken to grant relief to a property owner under this section.

(f) The term "property owner" means the person who holds legal title to the real property at issue. The term does not include a governmental entity.

(g) The term "real property" means land and includes any appurtenances and improvements to the land, including any other relevant real property in which the property owner had a relevant interest.

(4)(a) Not less than 180 days prior to filing an action under this section against a governmental entity, a property owner who seeks compensation under this section must present the claim in writing to the head of the governmental entity. The property owner must submit, along with the claim, a bona fide, valid appraisal that supports the claim and demonstrates the loss in fair market value to the real property. If the action of government is the culmination of a process that involves more than one governmental entity, or if a complete resolution of all relevant issues, in the view of the property owner or in the view of a governmental entity to whom a claim is presented, requires the active participation of more than one governmental entity, the property owner shall present the claim as provided in this section to each of the governmental entities.

(b) The governmental entity shall provide written notice of the claim to all parties to any administrative action that gave rise to the claim, and to owners of real property contiguous to the owner's property at the addresses listed on the most recent county tax rolls. Within 15 days after the claim being presented, the governmental entity shall report the claim in writing to the Department of Legal Affairs, and shall provide the department with the name, address, and telephone number of the employee of the governmental entity from whom additional information may be obtained about the claim during the pendency of the claim and any subsequent judicial action.

(c) During the 180-day-notice period, unless extended by agreement of the parties, the governmental entity shall make a written settlement offer to effectuate:

1. An adjustment of land development or permit standards or other provisions controlling the development or use of land.

2. Increases or modifications in the density, intensity, or use of areas of development.

3. The transfer of developmental rights.

4. Land swaps or exchanges.

5. Mitigation, including payments in lieu of onsite mitigation.

6. Location on the least sensitive portion of the property.

7. Conditioning the amount of development or use permitted.

8. A requirement that issues be addressed on a more comprehensive basis than a single proposed use or development.

9. Issuance of the development order, a variance, special exception, or other extraordinary relief.

10. Purchase of the real property, or an interest therein, by an appropriate governmental entity.

11. No changes to the action of the governmental entity.

 

If the property owner accepts the settlement offer, the governmental entity may implement the settlement offer by appropriate development agreement; by issuing a variance, special exception, or other extraordinary relief; or by other appropriate method, subject to paragraph (d).

(d)1. Whenever a governmental entity enters into a settlement agreement under this section which would have the effect of a modification, variance, or a special exception to the application of a rule, regulation, or ordinance as it would otherwise apply to the subject real property, the relief granted shall protect the public interest served by the regulations at issue and be the appropriate relief necessary to prevent the governmental regulatory effort from inordinately burdening the real property.

2. Whenever a governmental entity enters into a settlement agreement under this section which would have the effect of contravening the application of a statute as it would otherwise apply to the subject real property, the governmental entity and the property owner shall jointly file an action in the circuit court where the real property is located for approval of the settlement agreement by the court to ensure that the relief granted protects the public interest served by the statute at issue and is the appropriate relief necessary to prevent the governmental regulatory effort from inordinately bur dening the real property.

(5)(a) During the 180-day-notice period, unless a settlement offer is accepted by the property owner, each of the governmental entities provided notice pursuant to paragraph (4)(a) shall issue a written ripeness decision identifying the allowable uses to which the subject property may be put. The failure of the governmental entity to issue a written ripeness decision during the 180-day-notice period shall be deemed to ripen the prior action of the governmental entity, and shall operate as a ripeness decision that has been rejected by the property owner. The ripeness decision, as a matter of law, constitutes the last prerequisite to judicial review, and the matter shall be deemed ripe or final for the purposes of the judicial proceeding created by this section, notwithstanding the availability of other administrative remedies.

(b) If the property owner rejects the settlement offer and the ripeness decision of the governmental entity or entities, the property owner may file a claim for compensation in the circuit court, a copy of which shall be served contemporaneously on the head of each of the governmental entities that made a settlement offer and a ripeness decision that was rejected by the property owner. Actions under this section shall be brought only in the county where the real property is located.

(6)(a) The circuit court shall determine whether an existing use of the real property or a vested right to a specific use of the real property existed and, if so, whether, considering the settlement offer and ripeness decision, the governmental entity or entities have inordinately burdened the real property. If the actions of more than one governmental entity, considering any settlement offers and ripeness decisions, are responsible for the action that imposed the inordinate burden on the real property of the property owner, the court shall determine the percentage of responsibility each such governmental entity bears with respect to the inordinate burden. A governmental entity may take an interlocutory appeal of the court's determination that the action of the governmental entity has resulted in an inordinate burden. An interlocutory appeal does not automatically stay the proceedings; however, the court may stay the proceedings during the pendency of the interlocutory appeal. If the governmental entity does not prevail in the interlocutory appeal, the court shall award to the prevailing property owner the costs and a reasonable attorney fee incurred by the property owner in the interlocutory appeal.

(b) Following its determination of the percentage of responsibility of each governmental entity, and following the resolution of any interlocutory appeal, the court shall impanel a jury to determine the total amount of compensation to the property owner for the loss in value due to the inordinate burden to the real property. The award of compensation shall be determined by calculating the dif ference in the fair market value of the real property, as it existed at the time of the governmental action at issue, as though the owner had the ability to attain the reasonable investment-backed expecta tion or was not left with uses that are unreasonable, whichever the case may be, and the fair market value of the real property, as it existed at the time of the governmental action at issue, as inordi nately burdened, considering the settlement offer together with the ripeness decision, of the governmental entity or entities. In determining the award of compensation, consideration may not be given to business damages relative to any development, activity, or use that the action of the governmental entity or entities, considering the settlement offer together with the ripeness decision has restricted, limited, or prohibited. The award of compensation shall include a reasonable award of prejudgment interest from the date the claim was presented to the governmental entity or entities as provided in subsection (4).

(c)1. In any action filed pursuant to this section, the property owner is entitled to recover reasonable costs and attorney fees incurred by the property owner, from the governmental entity or entities, according to their proportionate share as determined by the court, from the date of the filing of the circuit court action, if the property owner prevails in the action and the court determines that the settlement offer, including the ripeness decision, of the governmental entity or entities did not constitute a bona fide offer to the property owner which reasonably would have resolved the claim, based upon the knowledge available to the governmental entity or entities and the property owner during the 180-day-notice period.

2. In any action filed pursuant to this section, the governmental entity or entities are entitled to recover reasonable costs and attorney fees incurred by the governmental entity or entities from the date of the filing of the circuit court action, if the governmental entity or entities prevail in the action and the court determines that the property owner did not accept a bona fide settlement offer, including the ripeness decision, which reasonably would have resolved the claim fairly to the property owner if the settlement offer had been accepted by the property owner, based upon the knowledge available to the governmental entity or entities and the property owner during the 180-day-notice period.

3. The determination of total reasonable costs and attorney fees pursuant to this paragraph shall be made by the court and not by the jury. Any proposed settlement offer or any proposed ripeness decision, except for the final written settlement offer or the final written ripeness decision, and any negotiations or rejections in regard to the formulation either of the settlement offer or the ripeness decision, are inadmissible in the subsequent proceeding established by this section except for the purposes of the determination pursuant to this paragraph.

(d) Within 15 days after the execution of any settlement pursuant to this section, or the issuance of any judgment pursuant to this section, the governmental entity shall provide a copy of the settlement or judgment to the Department of Legal Affairs.

(7)(a) The circuit court may enter any orders necessary to effectuate the purposes of this section and to make final determinations to effectuate relief available under this section.

(b) An award or payment of compensation pursuant to this section shall operate to grant to and vest in any governmental entity by whom compensation is paid the right, title, and interest in rights of use for which the compensation has been paid, which rights may become transferrable development rights to be held, sold, or otherwise disposed of by the governmental entity. When there is an award of compensation, the court shall determine the form and the recipient of the right, title, and interest, as well as the terms of their acquisition.

(8) This section does not supplant methods agreed to by the parties and lawfully available for arbitration, mediation, or other forms of alternative dispute resolution, and governmental entities are encouraged to utilize such methods to augment or facilitate the processes and actions contemplated by this section.

(9) This section provides a cause of action for governmental actions that may not rise to the level of a taking under the State Constitution or the United States Constitution. This section may not necessarily be construed under the case law regarding takings if the governmental action does not rise to the level of a taking. The provisions of this section are cumulative, and do not abrogate any other remedy lawfully available, including any remedy lawfully available for governmental actions that rise to the level of a taking. However, a governmental entity shall not be liable for compensation for an action of a governmental entity applicable to, or for the loss in value to, a subject real property more than once.

(10) This section does not apply to any actions taken by a governmental entity which relate to the operation, maintenance, or expansion of transportation facilities, and this section does not affect existing law regarding eminent domain relating to transportation.

(11) A cause of action may not be commenced under this section if the claim is presented more than 1 year after a law or regulation is first applied by the governmental entity to the property at issue. If an owner seeks relief from the governmental action through lawfully available administrative or judicial proceedings, the time for bringing an action under this section is tolled until the conclusion of such proceedings.

(12) No cause of action exists under this section as to the application of any law enacted on or before the date of adjournment sine die of the 1995 Regular Session of the Legislature, or as to the application of any rule, regulation, or ordinance adopted, or formally noticed for adoption, on or before that date. A subsequent amendment to any such law, rule, regulation, or ordinance gives rise to a cause of action under this section only to the extent that the application of the amendatory language imposes an inordinate burden apart from the law, rule, regulation, or ordinance being amended.

(13) This section does not affect the sovereign immunity of government.

[Section 2, the "Florida Land Use and Environmental Dispute Resolution Act," and Sections 3-5 omitted].

Section 6. This act shall take effect October 1, 1995.

Approved by the Governor May 18, 1995.

Filed in Office Secretary of State May 18, 1995.

_______________________________

[*] J.D. expected May 1997, Florida State University College of Law; B.S. in Journalism, 1988, University of Florida. Legislative intern for the Florida House of Representatives Select Committee on Water Policy, June 1995 to present. Return to text.

[1] 1995, Fla. Laws ch. 95-181. The text of the law is reprinted at the end of this comment as Appendix 1. The law was adopted as Fla. CS for HB 863 (1995). The first section of the bill is entitled The Bert J. Harris, Jr., Private Property Rights Protection Act. 1995, Fla. Laws ch. 95-181, § 1. The second part of the bill creates the Florida Land Use and Environmental Dispute Resolution Act. 1995, Fla. Laws ch. 95-181, § 2. Because the Florida Legislature did not intend for these two sections of Fla. CS for HB 863 to be construed in pari materia, this article will examine only the property rights act found in section one. Id. For the purposes of this article, the terms "property" and "land" will mean real property. Return to text.

[2] See, e.g., Texas Private Real Property Rights Preservation Act, 1995 Tex. Sess. Law Serv. Ch. 517 (S.B. 14) (Vernon) (to be codified at TEX. GOV'T CODE § 2007); Protection of Private Property Act, WASH. REV. CODE § 36.70A.370 (Supp. 1992). Return to text.

[3] Larry Morandi, Takings for Granted, STATE LEGISLATURES, June 1995, at 22 (examining the conflicts between environmental protection and private property rights in states from coast to coast). Return to text.

[4] S. 503, 104th Cong., Reg. Sess. (1995); S. 145, 104th Cong., Reg. Sess. (1995); H.R. 490, 104th Cong., Reg. Sess. (1995). See also Bob Benenson, GOP Sets the 104th Congress on New Regulatory Course, 24 CONG. Q. WKLY. REP. 1693; Charles McCoy, Private Matter: The Push to Expand Property Rights Stirs Both Hopes and Fears, WALL ST. J., Apr. 4, 1995, at A1; Morandi, supra note 3. Return to text.

[5] 1995, Fla. Laws ch. 95-181, § 6. Return to text.

[6] See, e.g., David Hackett, Property Rights? Save Your Pity for Home Buyers, ST. PETERSBURG TIMES, Mar. 12, 1995, at B2; Bob LaMendola, Law Allows Suits Over Land Rules; Frivolous Claims for Government Compensation Ahead, Foes Say, FT. LAUDERDALE SUN-SENTINEL, May 10, 1995, at B7. Return to text.

[7] Hackett, supra note 6, at B2. ("The property rights bugaboo is for the benefit of the big boys, the ones who don't need our help. Mining companies, pipeline companies, sugar producers and a host of bottom-liners would all cash in on this mindless regulatory rollback."). Return to text.

[8] See LaMendola, supra note 6, at B7. Return to text.

[9] Id. Return to text.

[10] 1995, Fla. Laws ch. 95-181, §1(12). The 1995 legislative session ended on May 11, 1995, and therefore the law applies to any new state or local regulation, or amendment to an existing regulation, adopted after that date. "A subsequent amendment to any such law, rule, regulation, or ordinance gives rise to a cause of action under this section only to the extent that the application of the amendatory language imposes an inordinate burden apart from the law, rule, regulation, or ordinance being amended." Id. The law applies only to state, regional, and local actions that affect Florida landowners, thus excluding actions of federal agencies. Id. § 1(3)(c). Return to text.

[11] Id; see infra note 17. Takings causes of action are based on the Fifth Amendment of the United States Constitution. U.S. CONST. amend. V. The complexity of this constitutional litiga tion makes it less attractive to property owners than statutory causes of action such as that set out in the new private property rights act. Return to text.

[12] The governmental action must be such that "the property owner is permanently unable to attain the reasonable, investment-backed expectation" for the existing use or vest right in that property. 1995, Fla. Laws ch. 95-181, § 1(3)(e). Or the regulation must make the property owner bear a "disproportionate share of a burden imposed for the public good." Id. In takings analysis, if a taking is found by a court, and the government lifts the regulation, the government must still compensate the landowner for the time the property was taken. First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987). Apparently, the law would not provide similar compensation if the government lifts a regulation found to inordinately burden the landowner. 1995, Fla. Laws ch. 95-181, § 1(3)(e). Return to text.

[13] Loss of fair market value is the difference between the market value of the property before imposition of the regulation and the market value of the property after application of the regulation. 1995, Fla. Laws 95-181, § 1(6)(b). "In determining the award of compensation, consideration may not be given to business damages relative to any development, activity, or use that the action of the governmental entity or entities . . . has restricted, limited, or prohibited." Id. The compensation award also must include prejudgment interest from the date the claim was filed to the conclusion of the matter. Id. Return to text.

[14] 1995, Fla. Laws ch. 95-181, § 1(3)(e). Cf. Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2897 (1992). The law also specifically exempts those regulations that relate to operation, maintenance, or expansion of transportation facilities and do not affect existing law regarding eminent domain actions involving transportation. 1995, Fla. Laws ch. 95-181, § 1(10). Return to text.

[15] As Supreme Court Justice Thomas explained, "[t]he lower courts should not have to struggle to make sense of this tension in our case law. In the past, the confused nature of some of our takings case law and the fact specific nature of takings claims has led us to grant cer tiorari in takings cases without the existence of a conflict." Parking Assoc. of Georgia v. City of Atlanta, 1995 WL 136847 (U.S. May 30, 1995) (Thomas, J. dissenting). Return to text.

[16] Richard J. Grosso & David J. Russ, Takings Law in Florida: Ramifications of Lucas and Reahard, 8 J. LAND USE & ENVTL. L. 431, 432-33 (1993) (quoting CHARLES M. HAAR, LAND-USE PLANNING 766 (3d ed. 1976), cited in Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 199 n.17 (1985) (Blackmun, J., concurring)). Return to text.

[17] The staff analysis of the bill discusses the law of takings and then concludes:

In any case, the constitutional right to a jury trial in eminent domain cases is not available in inverse condemnation [regulatory takings] cases. In addition, a property owner must exhaust all administrative remedies before a takings claim will be ripe for judicial review.

 

Fla. H.R. Comm. on Judiciary, HB 863 (1995) Staff Analysis 3 (final May 23, 1995) (on file with comm.). Return to text.

[18] 1995, Fla. Laws ch. 95-181, § 1(1). Return to text.

[19] See infra notes 30-106 and accompanying text. Return to text.

[20] See infra notes 107-128 and accompanying text. Return to text.

[21] See infra notes 129-149 and accompanying text. Return to text.

[22] 1995, Fla. Laws ch. 95-181, § 1(1). "The Legislature recognizes that some laws, regulations, and ordinances of the state and political entities in the state, as applied, may inordinately burden, restrict, or limit private property rights without amounting to a taking under the State Constitution or the United States Constitution." Id. The Fifth Amendment of the United States Constitution states that private property cannot be taken for public purposes without just compensation. U.S. CONST. amend. V. This amendment is applicable to the states through the Due Process Clause of the 14th Amendment. U.S. CONST. amend. XIV. The Florida Constitution has a provision similar to the Fifth Amendment of the United States Constitution. "No private property shall be taken except for a public purpose and with full compensation therefore paid to each owner . . . ." FLA. CONST. art. X, § 6. However, Article Two of the Florida Constitution also requires protection of the state's natural resources: "It shall be the policy of the state to conserve and protect its natural resources and scenic beauty. Adequate provisions shall be made by law for the abatement of air and water pollution and of excessive and unnecessary noise." FLA. CONST. art. II, § 7. Return to text.

[23] Although the law states that "[t]his section may not necessarily be construed under the case law regarding takings if the governmental action does not rise to the level of a taking," it is uncertain to what level the courts will borrow from takings jurisprudence in interpreting the new law. 1995, Fla. Laws ch. 95-181, § 1(9). Even the above quoted section seems to suggest that courts can adopt the reasoning utilized in current takings jurisprudence and leaves open the possibility that they will do so. Return to text.

[24] City of Miami Beach v. Galbut, 626 So. 2d 192, 193 (Fla. 1993) (holding that a statute's ordinary meaning must be used unless it would lead to a ridiculous or unreasonable result); Johnson v. Presbyterian Homes, Inc., 239 So. 2d 256, 262 (Fla. 1970) (holding that ordinary meaning must be given to statutory language unless such meaning would lead to a ridiculous or unreasonable result). Return to text.

[25] If the language of a statute is not so clear as to "fix the legislative intent and leave no room for interpretation and construction," then the statute is ambiguous. Osborne v. Simpson, 114 So. 543, 544 (Fla. 1927). "Where the language used in a statute has a definite and precise meaning, the courts are without power to restrict or extend that meaning." Graham v. State, 472 So. 2d 464 (Fla. 1985); see also Fine v. Moran, 77 So. 533 (Fla. 1917). Return to text.

[26] Id. Return to text.

[27] "The primary guide to statutory interpretation is to determine the purpose of the legislature." Tyson v. Lanier, 156 So. 2d 833, 836 (Fla. 1963). Legislative use of phrasing that appears in takings cases can by extension be interpreted as legislative approval of the rationales used in those cases. For an analysis of the language used in the bill, see discussion infra at part II; Sylvia R. Lazos, Florida's Property Rights Act: A Political Quick Fix Results in a Mixed Bag of Tricks, 23 FLA. ST. U. L. REV. (forthcoming 1996). Return to text.

[28] Although the law purports to provide a cause of action separate and distinct from constitutional takings, it adopts the terminology used in takings jurisprudence. See 1995, Fla. Laws ch. 95-181. Thus, the Legislature may have condemned landowners to litigation over the same terms disputed in takings claims. Return to text.

[29] 1995, Fla. Laws ch. 95-181, § 1(2). Return to text.

[30] 1995, Fla. Laws ch. 95-181, § 1(3)(e). The statute states that an existing use is "an actual, present use or activity on the real property; including periods of inactivity which are normally associated with, or are incidental to, the nature or type of use or activity or such reasonably foreseeable, nonspeculative land uses . . . ." Id. § 1(3)(b). The existence of a vested use is to be determined by applying the principles of equitable estoppel or substantive due process under the common law or by applying Florida law. Id. § 1(3)(a). For an analysis of when rights vest in Florida, see Hollywood Beach Hotel Co. v. City of Hollywood, 329 So. 2d 10 (Fla. 1976); Sakolsky v. City of Coral Gables, 151 So. 2d 433 (Fla. 1963); City of Key West v. R.L.J.S. Corp., 537 So. 2d 641 (Fla. 3d DCA 1989); Smith v. City of Clearwater, 383 So. 2d 681 (Fla. 2d DCA 1980). Return to text.

[31] 1995, Fla. Laws ch. 95-181, § 1(3)(e). Return to text.

[32] Id. Return to text.

[33] Id. § 1(3)(b). Although "existing uses of property" may be relatively easy to define, there can be several interpretations of the meaning of "reasonably foreseeable, nonspeculative land uses." Examining the varying interpretations the courts have put on this phrase is beyond the scope of this article. Return to text.

[34] Id. § 1(3)(a); see also supra note 30 for cases analyzing vested rights in Florida. Return to text.

[36] Id. Return to text.

[37] Id. Return to text.

[38] Id. at 415-16. The controversy arose when the state enacted legislation barring the mining of coal in such a way as would cause the subsidence of a house. Id. at 412-13; see also Peter F. Neronha, A Constitutional Standard of Review for Permit Conditions, Exactions, and Linkage Programs: Nollan v. California Coastal Commission, 30 B.C.L. REV. 903 (1989). The coal company had sold the surface rights to a parcel of property, while retaining the mineral rights. Thus, if the company could not mine, it had no other use for the retained mining rights. Justice Holmes, writing for the majority, held that this regulation went "too far" and must be compensated. Pennsylvania Coal, 206 U.S. at 416. Return to text.

[39] Id. at 415 (holding that a government regulation that prohibited exploitation of mineral rights under certain circumstances went too far and constituted a diminution in value great enough to be a regulatory taking of land). Return to text.

[40] "[T]he question at bottom is upon whom the loss of the changes desired should fall. So far as private persons or communities have seen fit to take the risk of acquiring only surface rights, we cannot see that the fact that their risk has become a danger warrants the giving to them greater rights than they bought." Id. at 416. Return to text.

[41] Id. Return to text.

[42] 1995, Fla. Laws ch. 95-181, § 1(1). Return to text.

[43] The United States Supreme Court has identified two instances in which per se takings occur. The first is when there is a permanent, government-authorized, physical invasion of property. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 440 (1982) (holding that a government could not authorize a cable television company to permanently place cable lines on an apartment building without paying the owner compensation). The second is when a regulation deprives the landowner of all economically beneficial use of his or her property. Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2895 (1992) (holding that a state commission could not completely prohibit development of a beachfront parcel without paying compensation for a taking). Return to text.

[45] Id. Return to text.

[46] Id. at 136-38. Return to text.

[47] Id. Return to text.

[48] Id. at 136. Return to text.

[49] Id. at 134. Return to text.

[50] 1995 Fla. Laws ch. 95-181, § 1(3)(e). Return to text.

[51] 1995, Fla. Laws ch. 95-181, § 1(e). Return to text.

[52] Illustrative of this distinction is Pennsylvania Coal, where the property owner sold the surface rights to his property, but expressly reserved the right to remove the coal thereunder. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922). After these transactions, the state passed a statute which forbade any mining of coal that caused the subsidence of a house, unless the house was the property of the owner of the underlying coal and was more than 150 feet from the improved property of another. Id. This statute was found invalid as effecting a taking without just compensation because the statute made it commercially impracticable to mine the coal, and thus had nearly the same effect as the complete destruction of rights the property owner had reserved from the owners of the surface land. Id. at 414-15.

A further illustration of the difference between the diminution in value analysis and the reasonable investment-backed expectation analysis is borne out in Penn Central, 438 U.S. 104 (1987), in which the landowner wanted to build a structure on top of Grand Central Station. The surrounding buildings were already built up, but these structures had been finished before the municipality extended its landmark preservation law to include the station and thus prohibited the landowner from further development.

The landowner argued that the municipality had taken his land because it deprived him of the economic viable use in the space above his existing structure, space which surrounding landowners were able to use in an economically beneficial manner. The Court stated that a landowner may not establish a taking simply by showing that he has been denied the ability to "exploit a property interest that [he] heretofore had believed was available for development." Id. at 130. In holding that no taking occurred, the Court stated that "[t]aking jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated." Id. The Court went on to state that "[i]n deciding whether a particular governmental action has effected a taking, this Court focuses . . . both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole." Id. at 130-31 (emphasis added). However, in a footnote, the Court stated that to believe the landowner's argument would be to suggest that deprivation of investment-backed expectations, "irrespective of the impact of the restriction on the value of the parcel as a whole," is the sole inquiry of takings analysis. Id. at 130 n.27. Thus, if deprivation of investment-backed expectations was the sole inquiry in takings analysis, the government in Penn Central would have taken the landowner's land. Since this is the sole inquiry under "inordinate burden," a case similar to Penn Central under the property law would come out opposite to that of the famous case. Return to text.

[53] 1995, Fla. Laws ch. 95-181, § 1(6)(b). Return to text.

[54] "Under this new remedy, you can receive compensation for regulatory actions which lessen your property values even if you retain some profitable uses." Rep. Ken Pruitt, (R., Port St. Lucie) (May 11, 1995) (on file with the Florida House of Representatives Judiciary Committee). Return to text.

[55] 1995, Fla. Laws ch. 95-181, § 1(3)(e). Return to text.

[56] TVA v. Hill, 437 U.S. 153, 188 (1978). Return to text.

[57] Although not explicitly part of the test, courts may consider the diminution in value resulting from the regulation in order to further the equitable principles of the law; i.e., if a regulation interferes with a property owner's reasonable investment-backed expectations, but only diminishes the value of the property by one percent, the court may find the law not violated. Return to text.

[59] Id. Return to text.

[60] Id. at 2894, n.7 & 2901-02. Return to text.

[61] Id. The Court defined this issue as "whether and to what degree the State's law has accorded legal recognition and protection to the particular interest in land." Id. For further discussion of this issue, see notes 128-129 and accompanying text. Return to text.

[62] 1995, Fla. Laws ch. 95-181, § 1. Return to text.

[63] 1995, Fla. Laws ch. 95-181, § 1(3)(b). Return to text.

[64] Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2894 n.7 (1992). Return to text.

[65] Id. at 2895, n.8. The Court noted that "restrictions that background principles of the State's law of property and nuisance already place upon land ownership" should be considered. Id. at 2900. Return to text.

[66] 399 So. 2d 1374 (Fla. 1981) (holding that a county commission's requirement that a developer not develop half of its property did not constitute a compensable taking). Return to text.

[67] Id. at 1380-81. Return to text.

[68] 1995, Fla. Laws ch. 95-181. The law seeks to compensate landowners whose "investment-backed expectations" for their property are "inordinately burdened" by regulations. However, the law does not provide compensation for any diminution in property value caused by a government regulation that seeks to curb or eliminate a noxious use or public nuisance. Id. § 1(1)(e). Return to text.

[69] The Court held that where the landowner has only a subjective expectation that the land could be developed in the manner proposed, the landowner's expectations were not properly backed. 399 So. 2d at 1382. Cf. Zabel v. Pinellas County Water & Navigation Control Auth., 171 So. 2d 376 (Fla. 1965) (holding that a property owner's expectation to fill the lands in question was properly backed by a statutory right to fill). Return to text.

[70] 968 F.2d 1131, 1136 (11th Cir. 1992) (involving a challenge to a local government's decision to allow a landowner to build only one single-family home on a 40-acre tract comprised mostly of wetlands). Return to text.

[71] Id. Return to text.

[72] 1995, Fla. Laws ch. 95-181. Return to text.

[73] Fla. H.R. Comm. on Judiciary, HB 863 (1995) Bill Analysis & Economic Impact Statement (final May 23, 1995) (on file with comm.). The committee report states: "In any case, the constitutional right to a jury trial in eminent domain cases is not available in inverse condemnation cases. In addition, a property owner must exhaust all administrative remedies before a takings claim will be ripe for judicial review. The theory underlying this condition precedent is that government must reach a final decision regarding the use of the property at issue before the courts may accurately assess whether a takings has occurred and the amount of compensation for that taking." Id. The property rights law deviates from the standing and ripeness problems of inverse condemnation cases by allowing landowners to file suit in circuit court without first exhausting administrative remedies and giving them a jury trial. 1995, Fla. Laws ch. 95-181. Return to text.

[74] 1995, Fla. Laws ch. 95-181. This prong will be referred to as the public burden definition. Return to text.

[75] 483 U.S. 825 (1987). Return to text.

[76] 114 S. Ct. 2309 (1994). Return to text.

[77] Nollan v. California Coastal Comm'n, 483 U.S. 825, 836-37 (1987). Return to text.

[78] However, under current takings jurisprudence, courts can order the government to pay compensation for temporary takings. See First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 321 (1987) (holding that a government must pay for a temporary taking when a regulation deprived a church of the use of its property for a short period of time). The property rights bill does not allow compensation for temporary takings. However, it does allow local and state governments to make settlement offers to rescind or amend development orders or permits to avoid paying compensation under the new law. 1995, Fla. Laws ch. 95-181. Return to text.

[79] Nollan, 483 U.S. at 837. Return to text.

[80] Dolan v. City of Tigard, 114 S. Ct. 2309, 2319 (1994). Return to text.

[81] Id. "'The distinction, therefore, which must be made between an appropriate exercise of the police power and an improper exercise of eminent domain is whether the requirement has some reasonable relationship or nexus to the use of which the property is being made or is merely being used as an excuse for taking property simply because, at that particular moment, the landowner is asking the city for some license or permit.'" Id. at 2139, quoting Simpson v. North Platte, 292 N.W. 2d 297, 301 (Neb. 1980). Return to text.

[82] Nollan, 483 U.S. at 837. The Court said that unless the permit condition serves the same purpose as the requirement of the building restriction, the condition is nothing "but an out-and-out-plan of extortion." (quoting J.E.D. Associates, Inc. v. Atkinson, 432 A.2d 12, 14-15 (N.H. 1981)). Return to text.

[83] Simpson v. North Platte, 292 N.W. 2d 297, 301 (Neb. 1980). To quantify a finding that an exaction is necessary to protect a public interest, the government must prove that:

the requirement has some reasonable relationship or nexus to the use to which the property is being made [rather than that the requirement] is merely being used as an excuse for taxing property simply because at that particular moment the landowner is asking the city for some license or permit.

 

Id. Return to text.

[84] 1995, Fla. Laws ch. 95-181, 1651. "The Legislature determines that there is an important state interest in protecting the interests of private property owners from such inordinate burdens." Id. at 1652. Return to text.

[85] 1995, Fla. Laws ch. 95-181, § 1(3)(e). Return to text.

[86] 1995, Fla. Laws ch. 95-181, § 1(3)(e). Return to text.

[87] For example, the first prong of the inordinate burden definition instructs courts to look to the property as a whole, and yet the second prong of the definition is silent on that point. Return to text.

[88] 1995, Fla. Laws ch. 95-181, § 1(3)(e). Return to text.

[89] Id. Return to text.

[90] 480 U.S. 470 (1987) (holding that a state regulation that required coal mines to leave support pillars of coal in place to prevent subsidence did not constitute a taking because the pillars represented only two percent of the impacted coal). Return to text.

[91] Id. at 497 (quoting Frank Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of Just Compensation Law, 80 HARV. L. REV. 1165, 1192 (1967)). Return to text.

[92] Id. "When the coal that must remain beneath the ground is viewed in the context of any reasonable unit of petitioners' coal mining operations and investment-backed expectations, it is plain that petitioners have not come close to satisfying their burden of proving that they have been denied the economically viable use of their property." Id. at 499. Return to text.

[93] 112 S. Ct. 2886, 2894-95 nn.7-8. Return to text.

[94] Id. at 2894 n.7. The Court continued: "When, for example, a regulation requires a developer to leave 90% of a rural tract in its natural state, it is unclear whether we would analyze the situation as one in which the owner has been deprived of all economically beneficial use of the burdened portion of the tract, or as one in which the owner has suffered a mere diminution in value of the tract as a whole . . . ." Id. Return to text.

[95] 399 So. 2d 1374, 1382 (Fla. 1981). Return to text.

[96] Id. at 1379 (footnote omitted). The court also said that "[a]n owner of land has no absolute and unlimited right to change the essential natural character of his land so as to use it for a purpose for which it was unsuited in its natural state and which injures the rights of others." Id. at 1382 (quoting Just v. Marinette County, 201 N.W.2d 761, 768 (Wis. 1972)). Return to text.

[97] Id. Return to text.

[98] Florida Dep't of Envtl. Regulation v. Schindler, 604 So. 2d 565, 568 (Fla. 2d DCA 1992) (quoting Fox v. Treasure Coast Regional Planning Council, 442 So. 2d 221, 225 (Fla. 1st DCA 1983)) (emphasis added). Return to text.

[99] 604 So. 2d 565, 568 (Fla. 2d DCA 1992). Return to text.

[100] See Deltona Corp. v. United States, 657 F.2d 1184, 1193 (1981), cert. denied, 455 U.S. 1017 (1982) (holding that a developer did not suffer an uncompensated taking when the U.S. Army Corps of Engineers refused to grant permits for the company to develop two of its three tracts); Graham v. Estuary Properties, Inc., 399 So. 2d 1374, 1382 (Fla. 1981); Florida Game and Fresh Water Fish Comm'n v. Flotilla, Inc., 636 So. 2d 761, 765 (Fla. 2d DCA 1994) (holding that restriction on development of 48 acres of a 173-acre parcel to protect bald eagle nesting sites did not constitute a compensable taking); Florida Dep't of Envtl. Regulation v. Schindler, 604 So. 2d 565, 568 (Fla. 2d DCA 1992); Namon v. Florida Dep't of Envtl. Regulation, 558 So. 2d 504 (Fla. 3d DCA 1990) (holding that a person who purchases land that cannot be built upon without approval under state regulations that existed at the time of the purchase cannot claim a taking based on a permit denial under the regulation). Return to text.

[101] See Loveladies Harbor, Inc. v. United States, 28 F.3d 1171 (D.C. Cir. 1994) (holding that a federal government regulation constituted a taking because the landowner had been deprived of all economically beneficial use of a portion of the land); Vatalaro v. Florida Dep't of Envtl. Regulation, 601 So. 2d 1223 (Fla. 5th DCA 1992) (holding that a government regulation deprived a landowner of all economically viable use of her property). Return to text.

[102] 28 F.3d 1171, 1180 (D.C. Cir. 1994) (holding that a portion of the land that would be deeded to the government could not be included in the denominator used in the takings analysis). Return to text.

[103] Id. at 1181. Return to text.

[104] 601 So. 2d 1223, 1229 (Fla. 5th DCA 1992) (holding that because the permit denial meant Vatalaro could not build anything other than a boardwalk on her land, she was entitled to compensation for a regulatory taking). For a discussion of Vatalaro see Valerie A. Collins, Vatalaro v. Department of Environmental Regulation: The Mysterious Takings Rule; 8 J. LAND USE & ENVTL. L. 612 (1993). Return to text.

[105] Id. (construing United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985)). Return to text.

[106] For discussion of the constitutionality of governments' power to put conditions on issuance of permits for land development, see supra notes 75-82 and accompanying text; see also J. Peter Byrne, Ten Arguments for the Abolition of the Regulatory Takings Doctrine, 22 ECOLOGY L.Q. 89 (1995); Theodore C. Taub, Exactions, Linkages, and Regulatory Takings: The Developer's Perspective, 20 URB. LAW. 515 (1988). Return to text.

[107] 1995, Fla. Laws ch. 95-181. Return to text.

[108] RICHARD R. POWELL, POWELL ON REAL PROPERTY 64-40 (Patrick R. Rohan et al. eds., 1993); Jacobs v. City of Jacksonville, 762 F. Supp. 327 (M.D. Fla. 1991) (holding that a public nuisance is an activity which violates public rights, subverts public order, decency or morals, or causes inconvenience or damage to the public generally); Beckman v. Marshall, 85 So. 2d 552 (Fla. 1956) (holding that a nuisance in law consists in so using one's property as to injure the land or some incorporeal right of one's neighbor). Return to text.

[109] POWELL, supra note 108 at 40-64; Beckman, 85 So. 2d 552. Return to text.

[110] POWELL, supra note 108, at 40-64; Jacobs, 762 F. Supp. 327. Return to text.

[111] Id. Return to text.

[112] See Hadacheck v. Sebastian, 239 U.S. 394, 414 (1915) (holding that the city of Los Angeles had the right, under its police powers, to prohibit the operation of an existing brick yard in a residential neighborhood); Mugler v. Kansas, 123 U.S. 623 (1887) (holding that the state could prohibit the operation of a brewery because it was a public nuisance). Return to text.

[113] Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2901 (1992) (holding that states must identify background principles of nuisance and property law to prohibit all economically viable uses of land). Return to text.

[114] See Hav-A-Tampa Cigar Co. v. Johnson, 5 So. 2d 433 (Fla. 1941); Sheip Co. v. Amos, 130 So. 699 (Fla. 1930); Pompano Horse Club, Inc. v. Bryan, 111 So. 801 (Fla. 1927). Return to text.

[115] 76 So. 535 (Fla. 1917) (recognizing that one landowner cannot interfere with another landowner's property by creating a nuisance). Return to text.

[116] Id. at 536. Return to text.

[117] Hav-A-Tampa Cigar, 5 So. 2d at 437 (holding that the state's prohibition of advertising billboards near highways was a valid exercise of its police power because the statute was aimed at motor vehicle safety). Return to text.

[118] 399 So. 2d 1374 (Fla. 1981). Return to text.

[119] Id. at 1382. Return to text.

[120] Id. at 1381. Return to text.

[121] 189 So. 4, 10 (Fla. 1939) (recognizing a citizen's right to bring suit based on private and public nuisance law theories to prevent an environmental nuisance from a paper mill polluting the St. Johns River). Return to text.

[122] 111 So. 801 (Fla. 1927) (recognizing the state Legislature has great leeway in declaring certain activities or uses that were not nuisances at common law to nevertheless be public nuisances). Return to text.

[123] 130 So. 699, 708 (Fla. 1930) (recognizing that there is no inherent right to use property if the use is adverse to the public welfare). Return to text.

[124] 3 So. 2d 144 (Fla. 1941). Return to text.

[125] 89 So. 2d 498 (Fla. 1956). Return to text.

[126] See, e.g., Graham v. Estuary Properties, Inc., 399 So. 2d 1374 (Fla. 1981); Orlando Sports Stadium, Inc. v. State ex rel. Powell, 262 So. 2d 881 (Fla. 1972); Cason v. Florida Power Co., 76 So. 535 (Fla. 1917). Return to text.

[127] 112 S. Ct. 2886 (1992) ("Any limitation so severe cannot be newly legislated or decreed [without compensation], but must inhere in the title itself, in the restrictions and background principles of the State's law of property and nuisance already in place upon land ownership."). Return to text.

[128] Id. Return to text.

[129] 1995, Fla. Laws ch. 95-181. Return to text.

[130] Id. § 1(4)(a). Return to text.

[131] Id. § 1(5)(a). If the government agency fails to issue a ripeness decision within 180 days of the landowner filing the action, the issue automatically becomes ripe for judicial review, notwithstanding the availability of other administrative remedies. Id. Return to text.

[132] Id. § 1(4)(c). If there is a settlement agreement, the relief granted "shall protect the public interest served by the regulations at issue and be the appropriate relief necessary to prevent the governmental regulatory effort from inordinately burdening the real property." Id. § 1(4)(d)(1). Return to text.

[133] Id. § 1(4)(c). Return to text.

[134] Id. § 1(5)(b). If the court determines that a regulation has inordinately burdened the property that is the subject of the suit, the court must empanel a jury to determine how much compensation is to be awarded. Compensation is limited to the difference in the fair market value of the property before and after enactment of the regulation. Id. §§ 1(6)(a)-(c) Return to text.

[135] Id. The law allows for the party who prevails in court to collect attorney's fees if the losing party's reason for going to court is unreasonable. Id. §§ 1(6)(c)(1)-(2). Return to text.

[136] See Estate of Ziy v. Bowen, 223 So. 2d 42, 43 (Fla. 1969) (holding that "burden of proof" can mean both the plaintiff's duty of establishing the truth and the shifting duty of pro ducing evidence at certain stages of the a trial, which can shift from plaintiff to defendant and back). Return to text.

[137] Id. Return to text.

[138] Id. Return to text.

[139] 627 So. 2d 469 (Fla. 1993) (involving an application to rezone a one-half acre tract on Merritt Island from zoning that permitted one single-family residence to zoning that allowed a density of fifteen units per acre). Return to text.

[140] Id. at 476. Return to text.

[141] Id. Return to text.

[142] Thomas G. Pelham, Quasi-judicial Rezonings: A Commentary on the Snyder Decision and the Consistency Requirement, 9 J. LAND USE & ENVTL. L. 243 (1994). Return to text.

[143] Id. at 258 (construing Watson v. Mayflower Property, Inc., 177 So. 2d 355, 372 (Fla. 2d DCA 1965)). Return to text.

[144] 1995, Fla. Laws ch. 95-181, § 1(1). Return to text.

[145] Id. (emphasis added). Return to text.

[146] Id. Return to text.

[147] Fla. H.R. Comm. on Judiciary, HB 863 (1995) Staff Analysis 10 (final May 23, 1995). Return to text.

[148] Board of County Comm'rs of Brevard County v. Snyder, 627 So. 2d 469, 474 (Fla. 1993). Return to text.

[149] 1995, Fla. Laws ch. 95-181, § 1(12). The law applies to any regulation adopted or amended after the last day of the 1995 legislative session, which ended May 11, 1995. Return to text.

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Fed. Dist. Court Dismisses RLUIPA Claim Where Church Did Not Prove It’s Use Was Anything Other than Secular (e.g., Not Religious Exercise)

New post on LAW OF THE LAND


 


Fed. Dist. Court Dismisses RLUIPA Claim Where Church Did Not Prove It’s Use Was Anything Other than Secular (e.g., Not Religious Exercise)

by Patty Salkin

Calvary Christian Center sought a special use permit to relocate the Fairwinds Day School, a small private day school for youths with mental and emotional disabilities, to a building where the church group already operated a before- and after-school day care facility.  The group planned to operate the Precious Moments Day Care on the first floor of the building between the hours of 6 a.m. and 8:15 a.m. and 3:30 p.m. and 6 p.m., while the Fairwinds Day School would meet on the second floor of the building between the hours of 8:30 a.m. and 3 p.m.  When the City of Fredricksburg denied Calvary’s special use permit, citing concerns about the number of group homes and facilities already located in Fredricksburg; the fact that the school would be serving special-needs students from outside t he area; the nature of the disabilities of Fairwinds students; the proposed operation of the day school; and the safety of the children in the site’s existing day care program, Calvary filed a five-count suit against the City.  The American Civil Liberties Union (ACLU) filed an amicus brief in favor of Calvary in this case. 

In its complaint, Calvary alleged that the City of Fredricksburg violated the Americans with Disabilities Act (ADA); the Rehabilitation Act (RA); the Religious Land Use and Incarcerated Persons Act (RLUIPA); as well as the church group’s Free Exercise and Free Speech rights under the First Amendment.                           

On the first two counts, Calvary argued that the City had discriminated against the children because of “actual of perceived physical or mental impairment,” and that the decision not to approve the special use permit was based on “animus toward the children” and not on a more legitimate, nondiscriminatory basis.  The court had expressed doubt as to Cavalry’s standing to bring both of these claims the first time it heard the case (see: http://lawoftheland.wordpress.com/2011/08/29/fed-dist-court-finds-no-violation-of-ada-rehabilitation-or-rluipa-in-permit-denial-for-secular-day-school-operating-in-property-owned-by-religious-group/) and held in this second hearing of the case that standing was not met, since the church could neither claim standing as an association nor establish third-party standing to pursue the claim on the students’ behalf.  Thus, the ADA and RA claims were dismissed for lack of standing. 

As for the RLUIPA claim, the court relied on holdings from several other jurisdictions that “structures used by religious organizations for secular purposes are not necessarily protected as religious exercise.”  Here, while Calvary expressed its belief that it had been “called by God to provide services to children,” the church group had not provided sufficient evidence to prove the Fairwinds Day School was anything but a secular use of the facility.  Without a showing that the activity in question was a religious exercise, the court dismissed the RLUIPA claim.  

Calvary’s Free Exercise claim was dismissed on similar grounds.  Absent a showing that allowing the day school to relocate to its building was a religious exercise within the meaning of the Free Exercise Clause, the claim was dismissed. 

The Free Speech claim was also dismissed, on the grounds that Calvary’s activities could not fairly be characterized as “speech.”  To define speech for these purposes, the court relied on the rule from IOTA XI Chapter of Sigma Chi Fraternity v. George Mason Univ., 993 F.2d 386 (4th Cir. 1993), which said that speech involved expression through which the actor intended to convey a particular message, which an observer was likely to understand.  The court held that Calvary’s actions failed both parts of this test, primarily because allowing a day school to operate on its premises was not a “particularized” message that any observer could have discerned.  Therefore, the court held that the First Amendment was not implicated, and dismissed that claim. 

Calvary had also claimed that the City’s ordinance was violative of its First Amendment rights because it was not content neutral, that the ordinance restricted speech based on viewpoint and content, and that it left Calvary without alternative channels of communication.  The court held that, even assuming Calvary was engaged in expressive conduct – which the court believed it was not – the ordinance was still content neutral, since it regulated the use of land, not the speech made on that land.  The ordinance served a number of important and legitimate governmental interests, from protecting the integrity and enjoyment of neighborhoods to shaping the growth of the community, and imposed only an “incidental inconvenience on Calvary” with regard to its speech, according to the Court.  Therefore, the court found n o violation of the First Amendment. 

Also tacked on to Calvary’s claims was a charge of overbreadth and vagueness in the City’s ordinance, but the court noted that Calvary had “failed to explain how the overbreadth doctrine applies in this case,” and found that the vagueness challenge must fail because the court had already found that the actual burden on Calvary’s speech was incidental. 

The court granted the City’s motion to dismiss all of Calvary’s claims. 

Calvary Christian Center v. City of Fredericksburg, Va., 2011 U.S. Dist. LEXIS 134290 (E.D. Va. 11/21/11).

Patty Salkin | December 5, 2011 at 1:37 am | Categories: Current Caselaw, RLUIPA | URL: http://wp.me/p64kE-1w5

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If The City Wasn't Taking Steps To Condemn The Property, What Was It Doing?

inversecondemnation

 

If The City Wasn't Taking Steps To Condemn The Property, What Was It Doing?

Posted: 04 Dec 2011 10:12 PM PST

In Joffe v. City of Huntington Park, No. B222880 (published Dec. 2, 2011), the California Court of Appeal affirmed the trial court's dismissal (technically, the trial court "demurred" --  remember, this is California) of the plantiffs' claim for inequitable precondemnation activities under Klopping v. City of Whittier, 8 Cal.3d 39 (1972). 

Plaintiff manufactures furniture at its property in Huntington Park, California, and

[b]eginning in 2002, the City defendants and the developer defendants repeatedly expressed the intent and desire to acquire and develop two adjacent 40 acre sites for the purpose of building and developing 920,000 square feet of buildings which would include numerous retailers, shops and restaurants. . . . It specifically included the property owned by Joffe, where Plycraft conducted its furniture manufacturing business. The project development was designated "El Centro de Huntington Park" (hereafter, the project).

During the period 2002 through 2008, plaintiffs were repeatedly informed by both the City defendants and the developer defendants that the project was on track and that Joffes property was going to be acquired by the City defendants and utilized as part of the project.

Slip op. at 3-4. As a result, the plaintiff lost customers and eventually went out of business at that location, See slip op. at 7-8. They sued under an inverse condemnation theory. The trial court, as noted above, dismissed.

The Court of Appeal affirmed. It concluded that under Klopping (in which the California Supreme Court "held that a valid claim for inverse condemnation could be based on governmental actions preceding an actual, or even a de facto, taking of property," slip op. at 14 (emphasis original)), the plaintiffs did not "unreasonably delay" filing an eminent domain action, and did not undertake "other unreasonable conduct." The court first contrasted the facts in Klopping, asserting in that case "there was no doubt that the city of Whittier has announced its intent to condemn" and actually commenced with with condemnation. Slip op. at 17. By contrast, "[i]n the instant case, however, the City defendants' conduct is not quite so clear." Id.  Huntington Park had not adopted a resolution of necessity, and the court concluded the city had not undertaken enough action that resulted "in a special and direct interference with the owner's property." Id. In other words, the plaintiff must have been singled out from other landowners.

Putting it another way, the Klopping court explained that precondemnation announcements alone should not subject public entities to liablity, and that landowners must bear some incidental loss resulting from such general planning announcements. Thus, liability can attach only when the public entitys conduct has passed from the planning stage into the acquiring stage.

....

The great bulk of the conduct of the City defendants, on which plaintiffs seek to base their Klopping cause of action, constitutes general planning with no specific and direct interference with plaintiffs' property.

Slip op. at 18-19 (emphasis original). The court concluded that none of the activities undertaken by the city went from "mere" planning into actual acquisition, and it did not matter that the city had appraised the property (and caused the plaintiff to appraise the property), and the mayor told the property owner that it would either have to sell or be taken.  "Thus, obtaining an appraisal of plaintiffs' land and business constituted a necessary preliminary step toward possibly acquiring the property. We are not prepared to hold that when a public entity obtains an appraisal of a property with an eye toward potential acquisition, the public entitys conduct has evolved from '“planning' to 'acquiring.'" Id. at 20.

Nor did the plaintiffs state a claim for other unreasonable conduct. Acknowledging that "the law is unclear as to whether Klopping requires an announcement of intent to condemn if liablity is based on unreasonable conduct other than postannouncement delay," slip op. at 23, the court held that the plaintiffs had not alleged anything but delay.

Plaintiffs allege only that the City defendants announced a project, sought a grant to fund the project, obtained an appraisal preliminary to making an offer for a parcel for the project, and informally told a landowner that the property would be acquired for the project. None of these acts can possibly constitute unreasonable conduct – at least, not in the absence of additional allegations.

Slip op. at 25. Finally, the court held that the plaintiffs had not alleged promissory estoppel. Id. at 26-28.

This is the same Court of Appeal that reached a similar conclusion in a similar case (different Division, however), and this case raises the same question: if these actions were not the city making the preliminary steps to take the property by eminent domain, then just what are we supposed to imagine the city was doing?

These were typical ("mere," in the court's view) "planning" activities, which, in order to remain above the due process and takings baselines, are supposed to only be considering regulation of property and not acquisition, since the government's exercise of its police power is not the same as an exercise of the eminent domain power. Despite Midkiff's conflation of the two powers, they remain distinct and are (supposed to) be subject to distinct limitations. Do municipal government routinely inform property owners that they intend to take their land, that appraisals are necessary, and that it's best to sell because otherwise we will take? Yes, when they intend to take property. But that doesn't sound like planning--mere or otherwise--to us, unless the court is really just reminding us all that we should understand that our property really isn't ours and is always subject to condemnation, so until the government takes some formal step to acquisition, the distinct economic losses that stem from these actions are just something that comes with the territory. While it is undoubtedly true as a general proposition that private property is always subject to being condemned for public use, the city's activities in this case seemed to go well beyond that general understanding and cross over into concrete steps towards actual acquisition.

What seems to have driven this decision is a desire to keep the government from having to actually pay for the damage it causes when it clouds the use of property. We're guessing that when the city started down this party, it had the funds to pay for the property, but that in the intervening time those funds dried up, and it put the redevelopment on hold. And if happy days are here again? We're betting that the project starts right up again.

And the very real damages resulting from the cloud on use while the government gets it act together? Why that's just incidental.

Joffe v. City of Huntington Park, No. B222880 (published 12/2/2011)  

 

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December 04, 2011

NY Appellate Court Upholds Board’s Denial of Challenge to Granted Certificate of Occupancy

 

 

New post on LAW OF THE LAND


 


NY Appellate Court Upholds Board’s Denial of Challenge to Granted Certificate of Occupancy

by Patty Salkin

Procopio purchased a plot of land in 2001 that abutted a lake.  The original house on the lake was declared unsafe by the town building director.  Procopio obtained a building permit to tear down the existing structure and rebuild a house on the property.  A neighboring owner objected and  commenced a proceeding to reverse the issuance.  This was denied, appealed, and ultimately denied by the appeals court.  In 2009, Procopio had completed construction on his building and sought a certificate of occupancy.  Once again, the neighbor opposed the issuance and, once the certificate was issued, brought a proceeding to rescind the certificate.  The board dismissed the action finding that they lacked jurisdiction to hear the claim.  When petitioner filed with the trial court, the court fo und that the board did have jurisdiction. 

The board, upon hearing the case, found, first, that the lake the house was build on was not a public water source and, second, that the septic system installed by Procopio was only a replacement system and thus did not need to be inspected.  On appeal, the trial dismissed the petitioner’s action, holding it was barred by laches. 

Petitioner appealed.  The court began by finding that the proceeding was not barred by laches because petitioner had challenged the building during the entire process and, thus, Procopio had notice of a potential challenge.  The court next explored the two specific findings by the board. 

First, regarding whether the lake is a public source of water, the court found that none of the letters submitted to the board explicitly stated or clearly implied that the lake is a public source of water.  Thus, since it is petitioner’s burden to prove that the city’s decision was arbitrary and capricious, his use of unequivocal letters failed to prove that the lake is used as a public source of water.  Thus, the board’s decision was not arbitrary and capricious. 

Next, regarding whether Procopio’s sewage system was a new system, the court noted that a certificate of occupancy may only be issued if a new sanitary system is inspected.  No inspection is necessary, however, where the septic system is merely a replacement.  Here, noting the court’s role to give deference to a city’s own findings and interpretations of its ordinances, the court found that the pipes and general system was similar to that of the prior dwelling.  Thus, the court held that the board did not act arbitrarily or capriciously in its determination that the septic system was a replacement and not a new system. 

Letourneau v. Town of Berne, 931 N.Y.S.2d 810 (N.Y. A.D. 3 Dept. 11/3/2011) 

The opinion can be accessed at: http://decisions.courts.state.ny.us/ad3/Decisions/2011/512105.pdf

Patty Salkin | December 4, 2011 at 1:46 am | Categories: Current Caselaw - New York, Standards of Review | URL: http://wp.me/p64kE-1w9

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December 03, 2011

EVIDENCE CODE

EVIDENCE CODE
SECTION 810-824

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=evid&group=00001-01000&file=810-824 810. (a) Except where another rule is provided by statute, this article provides special rules of evidence applicable to any action in which the value of property is to be ascertained. (b) This article does not govern ad valorem property tax assessment or equalization proceedings. 811. As used in this article, "value of property" means market value of any of the following: (a) Real property or any interest therein. (b) Real property or any interest therein and tangible personal property valued as a unit. 812. This article is not intended to alter or change the existing substantive law, whether statutory or decisional, interpreting the meaning of "market value," whether denominated "fair market value" or otherwise. 813. (a) The value of property may be shown only by the opinions of any of the following: (1) Witnesses qualified to express such opinions. (2) The owner or the spouse of the owner of the property or property interest being valued. (3) An officer, regular employee, or partner designated by a corporation, partnership, or unincorporated association that is the owner of the property or property interest being valued, if the designee is knowledgeable as to the value of the property or property interest. (b) Nothing in this section prohibits a view of the property being valued or the admission of any other admissible evidence (including but not limited to evidence as to the nature and condition of the property and, in an eminent domain proceeding, the character of the improvement proposed to be constructed by the plaintiff) for the limited purpose of enabling the court, jury, or referee to understand and weigh the testimony given under subdivision (a); and such evidence, except evidence of the character of the improvement proposed to be constructed by the plaintiff in an eminent domain proceeding, is subject to impeachment and rebuttal. (c) For the purposes of subdivision (a), "owner of the property or property interest being valued" includes, but is not limited to, the following persons: (1) A person entitled to possession of the property. (2) Either party in an action or proceeding to determine the ownership of the property between the parties if the court determines that it would not be in the interest of efficient administration of justice to determine the issue of ownership prior to the admission of the opinion of the party. 814. The opinion of a witness as to the value of property is limited to such an opinion as is based on matter perceived by or personally known to the witness or made known to the witness at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion as to the value of property, including but not limited to the matters listed in Sections 815 to 821, inclusive, unless a witness is precluded by law from using such matter as a basis for an opinion. 815. When relevant to the determination of the value of property, a witness may take into account as a basis for an opinion the price and other terms and circumstances of any sale or contract to sell and purchase which included the property or property interest being valued or any part thereof if the sale or contract was freely made in good faith within a reasonable time before or after the date of valuation, except that in an eminent domain proceeding where the sale or contract to sell and purchase includes only the property or property interest being taken or a part thereof, such sale or contract to sell and purchase may not be taken into account if it occurs after the filing of the lis pendens. 816. When relevant to the determination of the value of property, a witness may take into account as a basis for his opinion the price and other terms and circumstances of any sale or contract to sell and purchase comparable property if the sale or contract was freely made in good faith within a reasonable time before or after the date of valuation. In order to be considered comparable, the sale or contract must have been made sufficiently near in time to the date of valuation, and the property sold must be located sufficiently near the property being valued, and must be sufficiently alike in respect to character, size, situation, usability, and improvements, to make it clear that the property sold and the property being valued are comparable in value and that the price realized for the property sold may fairly be considered as shedding light on the value of the property being valued. 817. (a) Subject to subdivision (b), when relevant to the determination of the value of property, a witness may take into account as a basis for an opinion the rent reserved and other terms and circumstances of any lease which included the property or property interest being valued or any part thereof which was in effect within a reasonable time before or after the date of valuation, except that in an eminent domain proceeding where the lease includes only the property or property interest being taken or a part thereof, such lease may not be taken into account in the determination of the value of property if it is entered into after the filing of the lis pendens. (b) A witness may take into account a lease providing for a rental fixed by a percentage or other measurable portion of gross sales or gross income from a business conducted on the leased property only for the purpose of arriving at an opinion as to the reasonable net rental value attributable to the property or property interest being valued as provided in Section 819 or determining the value of a leasehold interest. 818. For the purpose of determining the capitalized value of the reasonable net rental value attributable to the property or property interest being valued as provided in Section 819 or determining the value of a leasehold interest, a witness may take into account as a basis for his opinion the rent reserved and other terms and circumstances of any lease of comparable property if the lease was freely made in good faith within a reasonable time before or after the date of valuation. 819. When relevant to the determination of the value of property, a witness may take into account as a basis for his opinion the capitalized value of the reasonable net rental value attributable to the land and existing improvements thereon (as distinguished from the capitalized value of the income or profits attributable to the business conducted thereon). 820. When relevant to the determination of the value of property, a witness may take into account as a basis for his opinion the value of the property or property interest being valued as indicated by the value of the land together with the cost of replacing or reproducing the existing improvements thereon, if the improvements enhance the value of the property or property interest for its highest and best use, less whatever depreciation or obsolescence the improvements have suffered. 821. When relevant to the determination of the value of property, a witness may take into account as a basis for his opinion the nature of the improvements on properties in the general vicinity of the property or property interest being valued and the character of the existing uses being made of such properties. 822. (a) In an eminent domain or inverse condemnation proceeding, notwithstanding the provisions of Sections 814 to 821, inclusive, the following matter is inadmissible as evidence and shall not be taken into account as a basis for an opinion as to the value of property: (1) The price or other terms and circumstances of an acquisition of property or a property interest if the acquisition was for a public use for which the property could have been taken by eminent domain. The price or other terms and circumstances shall not be excluded pursuant to this paragraph if the proceeding relates to the valuation of all or part of a water system as defined in Section 240 of the Public Utilities Code. (2) The price at which an offer or option to purchase or lease the property or property interest being valued or any other property was made, or the price at which the property or interest was optioned, offered, or listed for sale or lease, except that an option, offer, or listing may be introduced by a party as an admission of another party to the proceeding; but nothing in this subdivision permits an admission to be used as direct evidence upon any matter that may be shown only by opinion evidence under Section 813. (3) The value of any property or property interest as assessed for taxation purposes or the amount of taxes which may be due on the property, but nothing in this subdivision prohibits the consideration of actual or estimated taxes for the purpose of determining the reasonable net rental value attributable to the property or property interest being valued. (4) An opinion as to the value of any property or property interest other than that being valued. (5) The influence upon the value of the property or property interest being valued of any noncompensable items of value, damage, or injury. (6) The capitalized value of the income or rental from any property or property interest other than that being valued. (b) In an action other than an eminent domain or inverse condemnation proceeding, the matters listed in subdivision (a) are not admissible as evidence, and may not be taken into account as a basis for an opinion as to the value of property, except to the extent permitted under the rules of law otherwise applicable. 823. Notwithstanding any other provision of this article, the value of property for which there is no relevant, comparable market may be determined by any method of valuation that is just and equitable. 824. (a) Notwithstanding any other provision of this article, a just and equitable method of determining the value of nonprofit, special use property, as defined by Section 1235.155 of the Code of Civil Procedure, for which there is no relevant, comparable market, is the cost of purchasing land and the reasonable cost of making it suitable for the conduct of the same nonprofit, special use, together with the cost of constructing similar improvements. The method for determining compensation for improvements shall be as set forth in subdivision (b). (b) Notwithstanding any other provision of this article, a witness providing opinion testimony on the value of nonprofit, special use property, as defined by Section 1235.155 of the Code of Civil Procedure, for which there is no relevant, comparable market, shall base his or her opinion on the value of reproducing the improvements without taking into consideration any depreciation or obsolescence of the improvements. (c) This section does not apply to actions or proceedings commenced by a public entity or public utility to acquire real property or any interest in real property for the use of water, sewer, electricity, telephone, natural gas, or flood control facilities or rights-of-way where those acquisitions neither require removal or destruction of existing improvements, nor render the property unfit for the owner's present or proposed use.

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Just Compensation is Determined at Time of Taking, Not Filing of Condemnation Action

Municipal Minute

 

Just Compensation is Determined at Time of Taking, Not Filing of Condemnation Action

Posted: 02 Dec 2011 01:22 PM PST

On December 1, 2011, the Illinois Supreme Court decided Forest Preserve of DuPage County v. First National Bank of Franklin Park, 2011 IL 110759 (2011).  The case involved a challenge to a condemnation action filed by the District to take 204 acres of land consisting of an existing public golf course and undeveloped land.  The landowners challenged the condemnation on a number of grounds, including the jury’s determination of value as of the date of the filing of the action.  In this decision, the Supreme Court determined that the taking occurs when the government (1) deposits the amount of compensation that has been ascertained and awarded and (2) acquires title and the right to possess the property and not at the time of filing of the action.

 

This case began with the filing of the condemnation action by the District in 1999.  The next seven years were spent sorting out the legal rights and responsibilities between the landowners.  No final action could be taken on the condemnation action until the landowners’ legal issues were resolved.  Finally, in 2007, a jury trial on the condemnation action was held where it was determined that the fair market value of the property was approximately $11 million, a valuation only slightly above what the District offered the landowners in 1999.  The jury based the property valuation on the value as of the filing date in 1999.  The landowners challenged that valuation, contending that the property had increased in value from 1999 to 2007 to be more than twice that amount or $25.5 million. The appellate court vacated the jury verdict on the issue of fair market value, and sent the case back to the trial court to determine whether the jury verdict awarded just compensation to the landowners as required under the state and federal constitutions.  On appeal, the Supreme Court affirmed the appellate court.

 

The dispute as to fair market valuation arose because provisions of Illinois’ Eminent Domain Act suggest that the date of valuation is the date on which the condemnation action is filed.  In vacating the jury’s valuation, the Illinois Supreme Court relied on the U.S. Supreme Court’s decision in Kirby Forest Industries, Inc. v. United States, 467 U.S. 1 (1984), which held that the constitutional fifth amendment right to just compensation entitles a landowner to fair market value on the date of taking, which it defined as payment and the passing of title.  The Illinois Supreme Court explained that establishing a taking at this point in time would (1) enable Illinois trial courts to hold post-trial Kirby hearings to ensure that just compensation is properly awarded to landowners and (2) align Illinois eminent domain law with federal eminent domain law, ensuring its constitutionality. 

Post authored by David Silverman.



 

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December 02, 2011

Publications for Appraisers from the American Bar Association

Publications for Appraisers from the American Bar Association

http://apps.americanbar.org/abastore/index.cfm?section=BestSellers&fm=Product.Search&type=b&sgcd=&k=appraiser

 

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Links From Today's Webinar "Eminent Domain: Redevelopment Challenges for Local Government"

inversecondemnation

 

Links From Today's Webinar "Eminent Domain: Redevelopment Challenges for Local Government"

Posted: 01 Dec 2011 01:12 PM PST

For those who tuned in to today's webinar Eminent Domain: Redevelopment Challenges for Local Government, here are the cases I spoke about during my session:

§ Amy Lavine's law review article with the backstory of Berman v. Parker - Urban Renewal and the Story of Berman v. Parker, 42 Urban Lawyer 423 (2010) (article posted here).

§ Franco v. National Capital Revitalization Corp., 930 A.2d 160 (D.C. 2007) (pretextual takings under Kelo).

§ County of Hawaii v. C&J Coupe Family Ltd. P'ship, 198 P.3d 615 (Haw. 2008) (under Kelo, trial courts presented with prima facie evidence that the stated public use is a pretext to cover up private benefit must look to the real motive for a taking even if the taking is for a "classic" use).

§ County of Hawaii v. C&J Coupe Family Ltd. P'ship, 242 P.3d 1136 (2010) (the above case after remand - affirming the legal test but finding that the property owner did not prove pretext, ), cert. denied (2011).

§ Goldstein v. Pataki, 516 F.3d 50 (2d Cir. 2008) (pleading pretext under the Iqbal/Twombly standard), cert. denied (2008).

§ Goldstein v. New York State Urban Dev. Corp., 921 N.E.2d 164 (N.Y. 2008) (the other Atlantic Yards case; the NY Court of Appeals treats -- or, more accurately, doesn't treat -- blight designations under state law).

§ 49 Wb, LLC v. Village of Haverstraw, 44 A.D.3d 226 (2007) ("Courts are required to be more than 'rubber stamps' in determining whether a taking furthers a public use.").

§ Kaur v. New York State Urban Dev. Corp., 15 N.Y.3d 235, --- N.E.2d ---- (2010) (New York courts still cannot figure out "blight"), cert. denied sub nom (2011)

§ Uptown Holdings, LLC v. City of New York, No. 2882 (App. Div. Oct. 12, 2010) ("Unfortunately for the rights of the citizens affected by the proposed condemnation, the recent rulings in [Goldstein and Kaur] have made plain that there is no longer any judicial oversight of eminent domain proceedings.").

§ Battle For Brooklyn, the Oscar-contending documentary about the Atlantic Yards fight. 

§ Texas Rice Land Partners, Ltd. v. Denbury Green Pipeline-Texas, LLC, No. 09-0901 (April 19, 2011) (under Texas Constitution, courts make an actual and factual inquiry into the company's claim that the pipeline would be available for use by the public).

§ Eminent Domain - A Handbook of Condemnation Law (ABA 2011) (save yourself the entire Nichols set - here's a deskbook overview).

§ Gallenthin Realty Dev., Inc. v. Borough of Paulsboro, 924 A.2d 447 (N.J. 2007) ("blight" means more than "not fully productive"). 

§ Middletown Township v. Lands of Stone, 939 A.2d. 331 (Pa. 2007) (takings outside of a comprehensive plan).



 

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Oregon Appeals Court Upholds Sign Ordinance Holding Prior Determination of Unconstitutional Provision was Severable

New post on LAW OF THE LAND


 


Oregon Appeals Court Upholds Sign Ordinance Holding Prior Determination of Unconstitutional Provision was Severable

by Patty Salkin

Clear Channel Outdoor, Inc. had sought permits to build several new billboards in the City of Portland, Oregon.  Since the proposed billboards exceeded the 200 square foot size limitations contained in the city’s sign code, the permits were denied.  The city’s sign ordinance regulated the size of billboards and painted wall signs, but exempted from regulation similarly-sized painted murals which fulfilled the community’s desire to inspire that type of artistic expression.  Clear Channel filed suit requesting an injunction ordering that the city grant its permits; seeking a declaration that the sign ordinance violated the company’s right to free speech under state and federal law; and requesting damages.  The Circuit Court found partially in favor of Clear Channel, holding that t he sign ordinance’s exemption for painted murals was an unconstitutional content-based restriction on speech, but declined to grant Clear Channel its requested injunctive relief, damages, or attorney fees.              

Clear Channel here appeals, contending that, in light of the unconstitutionality of the sign codes, the entire code was void.  The company also claimed the court had erred in refusing to grant the requested injunctive relief and damages.  On appeal, Clear Channel made three pleas for relief, asking the court to issue an injunction mandating the issuance of the requested billboard permits and awarding damages and attorney fees.  

The company argued that, because the sign code had drawn an unconstitutional distinction between the definition of “signs” and that of “painted wall decorations,” the entire sign code was void because it was based on these unconstitutional definitions.  Even without that defect in the sign code, Clear Channel claimed that additional sections of the sign code, such as those regulating the size and height of signs in the city, were also unconstitutional, also rendering the entire sign code void.  Plaintiff further claimed the unenforceability of the entire sign code entitled Clear Channel to injunctive relief and damages, since the City had improperly denied the permits based on an unconstitutional code.  

The Oregon Court of Appeals held that the unconstitutional exemption of painted murals from the code was impliedly severable from the code, because the City had clearly expressed its intent that the remainder of its ordinances should be severed in the event that a portion of the code was found unconstitutional.  Further, the court noted that the City had previously adopted versions of the code without the language exempting murals, and had added all of the mural language in an amendment to the code.  Thus, the unconstitutional provisions wholly contained in that amendment were easily severable, allowing the code to simply revert back to a prior version.  Therefore, the court declined to find the entire sign code void. 

On the issue of the constitutionality of the time, place, and manner restrictions contained in the sign ordinances size restriction, the court rejected the plaintiff’s argument that the city’s size and height restrictions failed to leave ample alternative channels for communication.  The court noted that Clear Channel had access to 499 available structures, which gave the company 692 available spaces to place billboards which, changed monthly, accounted for a total of 8,304 possible messages per year.  In addition to those options, the company was also free to use smaller signs, radio, and television to disseminate its advertising messages.  The court felt there were ample existing alternatives and rejected as speculative Clear Channel’s additional argument that, as billboards were retired and new ones were not cons tructed to replace them because of the restrictions, adequate ample opportunities might not be available at some time in the future.  For those reasons, the court held that the time, place, and manner restrictions in the sign code were not unconstitutional. 

Clear Channel also challenged the City’s sign adjustment criteria and design review guidelines as impermissibly content-based or, alternatively, facially overbroad, because they failed to provide adequate standards to guide city officials in decision-making.  The City’s adjustment criteria are essentially variances that are allowed for “otherwise impermissible signs” which the City will allow if they fall under a limited class of circumstances, including signs which will not create traffic or safety hazards, and signs that are consistent with the architecture and development of a site.  Design review is “an independent process triggered by a proposed sign’s location” which is not focused on the content of the message but on the physical structure of the installment.  Like the adjustment criteria, the guideli nes for design review allow structures which are deemed to do things such as “enhance the identity of Special Districts by incorporating small-scale features that add to the District’s identity and ambiance.”  

The court ruled that both the adjustment criteria and design review were facially content-neutral, since they were guidelines regulating the appearance, structure, and function of the signs, regardless of their message.  Because the criteria assessed under either scheme were the “objective, nonexpressive physical features” of the signs, excluding any consideration of the “subjective content of the sign’s message,” the court also held that the criteria were not overbroad.  Further, the court rejected the plaintiff’s argument that, because the sign codes prohibited certain signs, they functioned as an unconstitutional prior restraint to speech because the codes gave city officials flexible but fair guidelines—such as the fact that signs should be “compatible with the style or character” of the areas near th e proposed location, and stipulations on the preferred colors, styles, and construction materials to be used.  Since the discretion required of city officials in applying the criteria were objective considerations based on the appearance of the sign and not on its message, the discretion posed “no danger of official censorship.”   Clear Channel did not raise any claims that the sign ordinances were discriminatory as applied, so the court did not touch on those issues.  For those reasons, the court found that the adjustment criteria and design review were not unconstitutional. 

The Court of Appeals upheld the decisions of the court below, finding that Clear Channel was not entitled to damages, attorney fees, or the issuance of permits for over-sized, nonconforming signs.  The court noted that Clear Channel had already received all of the relief to which it was entitled—the lower court’s declaration that the exemption for painted murals was unconstitutional. 

Clear Channel Outdoor, Inc. v. City of Portland, Oregon, 262 P.3d 782 (Or. Ct. App. 5/25/11).  

The opinion can be accessed at: http://www.publications.ojd.state.or.us/A135896.htm

Patty Salkin | December 2, 2011 at 1:56 am | Categories: Current Caselaw, Signs | URL: http://wp.me/p64kE-1vW

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December 01, 2011

The Continuing Clash Between Eminent Domain Deposits and Right-to-Take Challenges

The Continuing Clash Between Eminent Domain Deposits and Right-to-Take Challenges

One of the peculiarities with California's eminent domain law lies with the way it addresses situations in which an agency makes a deposit of probable compensation in a case in which one or more of the defendants raise a right-to-take challenge.

The issue came to a head yet again, with the California Supreme Court holding that a lender's withdrawal of a condemnation deposit does not result in a waiver of the property owner's right to take challenge. The decision, Los Angeles County Metropolitan Transpiration Authority v. Alameda Produce Market (November 14, 2011), chronicles the long and twisted history of this area of the law, but in the end, the Court struggles with the real problem: the law, as written, fails to address properly the two key policy concerns at play.

The deposit of probable compensation plays a key role in eminent domain cases. It establishes the date of value in most cases, but we sometime forget why the deposit is used to set the date of value. The deposit represents an approximation of the property's value. By the agency's making a deposit which quickly becomes available to the property owner, the owner gains the chance to keep those funds in the real estate market.

This is crucial, because it allows - at least theoretically - the owner to maintain its position in the real estate market. The idea is simple: the owner can withdraw the deposit of probable compensation, invest that money in another property, and still enjoy the benefits of market appreciation. Thus, by providing the owner with the capital to reinvest as of the deposit date, it is "fair" to use that date as the date of value.

Of course, it doesn't always work this way, and agency's are often accused of making woefully inadequate deposits that prevent the owner from investing in comparable property. And, of course, there is always a delay between the date of deposit and the date on which the owner has the funds available and can secure replacement property. But conceptually at least, the idea makes sense.

Where a right-to-take challenge combines with a deposit, however, another key policy concern comes into play. Condemning agencies have a legitimate interest in not having deposits withdrawn only to later lose a right-to-take challenge, leaving them trying to pursue the party that withdrew the deposit. This risk is unfair to the agency.

Thus, the basic rule: for a party to withdraw a condemnation deposit, they must waive their right-to-take challenge. (See Code of Civil Procedure section 1255.260.) But this rule misses both key policies. On the one hand, it prevents someone with a legitimate right-to-take challenge from withdrawing the deposit and using that money to invest in replacement property. Yet this does not prevent the deposit from establishing the date of value, meaning the owner can "miss" a rising market.

On the other hand, as the Court held in the Alameda Produce case, where the party withdrawing the deposit is not the same as the party making the right-to-take challenge, no waiver occurs. Thus, the agency faces the real risk that Party A will walk away with the money, never to be seen again, while Party B pursues its right-to-take challenge which, if successful, places the agency at huge financial risk.

http://www.californiaeminentdomainreport.com/2011/12/articles/court-decisions/the-continuing-clash-between-eminent-domain-deposits-and-righttotake-challenges/?utm_source=twitterfeed&utm_medium=twitter&utm_campaign=CA+Eminent+Domain+Report&utm_content=CA+Eminent+Domain+Report

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November 29, 2011

Ohio Supreme Court Holds Application for Referendum Untimely

New post on LAW OF THE LAND


 


Ohio Supreme Court Holds Application for Referendum Untimely

by Patty Salkin

Under Ohio law, a property owner within a township may seek a zoning amendment by providing an application to the planning commission.  This application is then sent to a county or regional planning authority, and this body must submit a recommendation.  The township planning commission makes its recommendation, and sends both the regional and township planning commission recommendations to the board of township trustees.  The trustees must then make a decision, which becomes effective in thirty days unless a referendum petition is filed within the thirty days to the county board of elections.

Following this procedure, an application was made for a zoning amendment to rezone 216.3 acres of land from the designation of Farm Residence District to Planned Residence District.    The Liberty Township planning commission voted to recommend approval of the zoning amendment on January 26, 2011.  On April 4, 2011, the Liberty Township Board of Trustees orally amended portions of the zoning resolution and unanimously voted for the approval of the zoning amendment application.  On May 4, 2011, the board met again and approved the minutes from the April 4th meeting, thereby recording the April 4, 2011 oral amendment in writing.  On June 3, 2011, a group of citizens petitioned for a referendum on the rezoning application, which was 60 days from the April 4th oral amendment, and 30 days from the approval of the minutes, o n May 4th.  The Realtor submitted a protest to the petition application, claiming, among other things, that it was untimely, and an appropriate map of the subject parcel was not included in the application.  The county proceeded to put the referendum question on the ballot.

In determining whether the referendum request was timely, the court had to determine what the term “adoption” meant, as the time period to apply for a referendum accrues upon the adoption of the amendment, and must be made within 30 days of the accrual.  The court determined that “adoption” meant the date in which the application was approved.  The approval of the application occurred during the oral vote to approve, which was held on April 4, 2011.  The court held that a written recordation is not required; the vote itself constituted the approval as municipalities have no legal obligation to record their approvals in written documents.  Given that the application for referendum was not filed until 60 days after the April 4, 2011 adoption, it was held to be untimely.  Since it was untimely, the court found the respondent board of elections abused its discretion in submitting the question to the ballot, and the Realtor’s writ of prohibition was granted.

Three justices dissented, finding the adopting of the zoning amendment did not occur until the written recordation, as citizens seeking a referendum on the matter would not have an adequate opportunity to petition until they had a copy of what they were opposing.

State ex rel. Edwards Land Co. v. Delaware Cty. Bd. of Elections, 129 Ohio St.3d, 580, 2011-Ohio-4397 (2011)

The opinion can be accessed at: http://www.sconet.state.oh.us/rod/docs/pdf/0/2011/2011-ohio-4397.pdf.

Patty Salkin | November 29, 2011 at 1:31 am | Categories: Current Caselaw, Referenda | URL: http://wp.me/p64kE-1vN

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November 28, 2011

3rd Circuit Court of Appeals Holds Redevelopment Plan in Jeopardy as Anti-Discrimination Issues Loom


3rd Circuit Court of Appeals Holds Redevelopment Plan in Jeopardy as Anti-Discrimination Issues Loom

by Patty Salkin

Defendant, Township of Mount Holly, proposed a redevelopment plan that would remove existing homes in the Gardens neighborhood, which is primarily low income housing, and replace these structures with housing options that were more expensive.  The plaintiff community group filed suit claiming the plan violated anti-discrimination laws, but the District Court granted summary judgment in favor of the Township.  The U.S. Court of Appeals, Third Circuit reversed, finding the District Court failed to apply the correct standard and failed to provide reasonable inferences in favor of the plaintiff.

The plaintiff community group first sought relief from the Township’s plan in state court.  The New Jersey courts found no violation of state law and also ruled that the antidiscrimination claims were not ripe as the plan had not yet been implemented.  The plaintiffs then brought suit in federal court, alleging violations of the Fair Housing Act, Title VIII of the Civil Rights Act 1968, the Civil Rights Act of 1866 and the Equal Protection Clause of the 14th Amendment.  During the course of the state and federal litigation, much of the property subject to the plan had been acquired and demolished by the Township in order to remove the blighted neighborhood, clearing the land for future development under the plan.  Even with relocation funds and resources being made available, many of the displaced residents were forces to move outside the Township.  Many of these displaced residents where low-income and African-American or Hispanic.

The plaintiffs could have made a prima facie case of discrimination if they meet the disparate impact standard.  This standard requires less than intentional discriminatory conduct, being satisfied where there is a “necessary and foreseeable consequence of furthering segregation[.]”  This can be found where the effect of the government act disproportionately impacts a certain group of people.  In this case, the Third Circuit found that such a disproportionate impact was present as the demolition of the neighborhood affected African-Americans residents eight times more likely than White residents, and it affected Hispanic residents eleven times more likely than White residents.  Additionally, White residents of the county would be much more able to live in the area once the plan is finalized.  Given this disproportio nate effect, the Third Circuit found there was a disparate impact and a prima facie case.

In addition to the District Court’s failure in not finding a disparate impact, which would have precluded summary judgment in favor of the Township, the Third Circuit also corrected numerous instances in which the District Court made incorrect inferences that should have been made in favor of the plaintiffs.  Given these deficiencies, the summary judgment in favor of the Township was vacated, and the matter was submitted back to the District Court for further pleadings and discovery.  At this point, the parties and the court would need to explore whether there was a legitimate government interest in the redevelopment plan and if there where alternatives to the plan that would have had less of a discriminatory affect on the Township’s minority residents.

Mt. Holly Gardens Citizens in Action, Inc. v. Township of Mount Holly, 658 F.3d 375 (3d Cir. 2011),

The opinion can be accessed at: http://www.ca3.uscourts.gov/opinarch/111159p.pdf.
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November 26, 2011

Asset Forfeiture, Civil Procedure, Property Law & Real Estate, Remedies

November 14, 2011 FindLaw.com Daily Opinion Summaries Newsletter

Table of Contents

LATEST SUMMARIES

Asset Forfeiture, Civil Procedure, Property Law & Real Estate, Remedies
LA County Metro. Trans. Authority v. Alameda Produce Market, LLC

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Asset Forfeiture, Civil Procedure, Property Law & Real Estate, Remedies
LA County Metro. Trans. Authority v. Alameda Produce Market, LLC, No. S188128
In an appeal from a judgment of the court of appeals concerning the scope of the waiver provisions of California's "quick-take" eminent domain procedure, Code Civ. Proc. sections 1255.010, 1255.410, judgment is reversed because if a lender holding a lien on condemned property applies to withdraw a portion of a Section 1255.210 deposit, and the property owner does not object to the application, the lender's withdrawal does not constitute a waiver of the property owner's claims and defenses under Section 1255.260. Read more...
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November 25, 2011

California Appeals Court Rules Individual does not have Standing to Oppose Medical Marijuana Dispensary Ban

New post on LAW OF THE LAND


 


California Appeals Court Rules Individual does not have Standing to Oppose Medical Marijuana Dispensary Ban

by Patty Salkin

Plaintiff, Malinda Traudt, brought an appeal to the California Court of Appeal, Fourth District, Division Three, seeking to overturn the City of Dana Point’s banning of medical marijuana dispensaries.  The trial court dismissed the case and the court of appeals affirmed, finding the plaintiff did not have standing to challenge the City’s actions.

The plaintiff brought suit against the City for actions that constituted a ban on medical marijuana dispensaries within the community.  The City opined that since medical marijuana dispensing facilities are not expressly listed as a permitted land use within the City, such uses constitute a nuisance and are prohibited.  The plaintiff claimed this action was preempted by state law, namely the Compassionate Use Act of 1996 and the Medical Marijuana Program Act.

The Court did not reach the merits of the plaintiff’s assertion, rather finding that the plaintiff lacked standing since to seek relief from the prohibition, the petitioning party must represent a group or facility and here the plaintiff was suing as an individual.

The Court based this determination on rules governing corporate standing because much like corporations, dispensaries, operating as collectives or cooperatives, are legal organizations required to incorporate with the state.  As such, action seeking relief for a harm inflicted upon the dispensary would need to be brought by the dispensary itself.  This is similar to the shareholder not having the right to bring a direct action in the name of the corporation, absent a derivative action.  Since the plaintiff did not own this dispensary, nor does the plaintiff assert that she is representing all the members of the dispensary, she could not have brought a direct action.  In fact, the court stated that “while she is a member of [the dispensing facility], she has no ownership or potential other control over how it or any oth er dispensary or potential cooperative or collective association of qualified persons will react to a decision on the merits.”  Thus, the court found to appeal the determination was a right of the dispensing facility – a right the dispensary has exercised – and affirmed the dismissal.

 Traudt v. City of Dana Point, 11 Cal.App.4th 886 (4th Dist. 2011),

The opinion can be accessed at: http://scholar.google.com/scholar_case?case=16121933460245612616&hl=en&as_sdt=2&as_vis=1&oi=scholarr.

For an article on the land use aspects of medical marijuana see: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1635438

Patty Salkin | November 25, 2011 at 1:01 am | Categories: Current Caselaw, Medical Marijuana, Standing | URL: http://wp.me/p64kE-1vn

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November 22, 2011

2011 FEWA Orange County Holiday Cruise




2011 FEWA Orange County Holiday Cruise
December 8, 2011


Location: Newport Harbor, aboard the Spirit of Newport Yacht

 

       We will be hosting a wonderful Newport Harbor Cruise Event on December 8, 2011 from 6-9pm aboard the Spirit of Newport Yacht, which can be seen at SpiritofNewport.net.  We will be the only group on board so that, in the event of rain or inclement weather, there will be plenty of room inside to accommodate everyone comfortably.

       Our evening will begin with sumptuous appetizers, followed by a complete dinner.  An assortment of homemade desserts will complete our holiday feast .  While we tour Newport Harbor and view all the Holiday décor, guests can take advantage of the complimentary soda and juice bar or the cash alcoholic beverage bar.  Music will be provided for your listening and dancing pleasure.

       This is a great opportunity to invite not only your significant other, but your valuable clients as well! The evening will offer an excellent time to cement relationships and create new ones

 

Please respond by December 6th, as we anticipate a large turnout for this event!

 

FEWA Members & their Guests: $125 each

Address: 2901 W. Coast Highway, Newport Beach, 92663.  Look for The Spirit of Newport on the waterfront side.  For more info, visit the spiritofnewport.net.

Times: 6:00-9:00pm
Dinner is included with salad, entrée, and dessert.  Please inform us if you prefer vegetarian options before the reservation deadline.

Reservation: Please PRINT THE RESERVATION FORM and return by mail, fax: (562) 692-3425 or email: RSVP@forensic.org

 

Cancellations are refundable prior to the reservation deadline.  Cash, Check, MasterCard, Visa, AmericanExpress accepted.
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November 21, 2011

Idaho Supreme Court Finds Procedural Due Process Violation from Insufficient Findings of Fact and Conclusions of Law by Zoning Commission

New post on LAW OF THE LAND


 


Idaho Supreme Court Finds Procedural Due Process Violation from Insufficient Findings of Fact and Conclusions of Law by Zoning Commission

by Patty Salkin

Patrick Dunn, a developer, seeking to develop land into residential lots, submitted an application the Zoning Commission.  After holding public hearings on the application, the Commission recommended that the Board of Commissioners deny the application.  The main concerns of the Commission were that there was no access to a public road because there was only an easement, that the road was a cul-de-sac and, thus, subject to further restrictions, and finally, that the application was incomplete for failure to discuss flood mitigation.  After some revision by Dunn, the Board approved the subdivision plan in a memorandum of findings of fact and conclusions of law. 

Two property owners, Jasso and Gorringe, who opposed the development, petitioned for judicial review.  The district court, after hearing the case, found that the road was a cul-de-sac, thus extra restrictions were necessary, and that the decision by the Board was arbitrary and capricious.  The district court further ordered the Board to pay Jasso and Girringe’s attorney fees.  The board appealed. 

The Supreme Court began by examining part of the Idaho Code which requires local decision makers to craft a written decision, discussing the “facts found and conclusions reached” and the “rationale underlying those findings and conclusions.”  After exploring prior case law on this section of the code, the court found that the statement must clearly state: its resolution of factual disputes, the evidence in support of its findings, and its legal support by identifying certain applicable laws or regulations.  Although the Board argued that an inadequacy may be overlooked if there is evidence to support the decision-maker’s legal and factual conclusions, the court pointed out that only the case where the decision offered by the decision-maker provides enough guidance and reasoning for their conclusions.  Here, the court found that the Board  submitted only conclusory statements with no “reasoned explanation” or grounds for their decision.  Thus, the Board’s findings did not satisfy the requirements under the Idaho Code.                              

The court then examined whether this failure by the Board violated Jasso and Gorringes’ procedural due process rights.  Procedural due process, explained the court, requires not only the opportunity to be heard, but also opportunity for judicial review.  Since the Board failed to provide Jasso and Gorringe with a basis for their decision, no court had the basis to review the decision.  Thus, procedural due process rights were violated here. 

Having decided the substance of the case, the court gave some guidance to the lower court on the actual issues.  First, the court determined that the Board lacked jurisdiction to determine the nature of any easement—regarding access to a public road—and, therefore, this determination must be made by a district court.  Second, the court determined that based on the definition of cul-de-sac, the statute is clear that the Board could have properly reached the conclusion that the street was not a cul-de-sac and, therefore, not subject to the extra requirements.  Third, the court advised the Board to make a determination concerning whether any subdivision is actually on a floodplain.  Finally, the court noted that a recent legislative amendment limits the award of attorney fees in proceedings which initiated as a civil complaint, thus, the award of attorney fees was error. 

Jasso v. Camas Ctny., 2011 WL 5299710 (Idaho 11/02/11) 

The opinion can be accessed at: http://www.isc.idaho.gov/opinions/Jasso%2037258.pdf

Patty Salkin | November 21, 2011 at 1:38 am | Categories: Current Caselaw, Due Process, Findings | URL: http://wp.me/p64kE-1vt

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Cell Towers, Shot Clocks, and Zoning: 2 Years Later

Municipal Minute

 

Cell Towers, Shot Clocks, and Zoning: 2 Years Later

Posted: 21 Nov 2011 05:00 AM PST

Most municipalitiesunderstand that cellular facilities are necessary to serve the needs ofresidents who increasingly rely on their cell phones. The need to site antennafacilities in a particular community can, however, conflict with amunicipality’s desire to preserve and protect property values and the aestheticcharacter of a community. The Telecommunications Act of 1996 was intended tostrike a balance between respect for local land use control and promotion ofcompetitive telecommunication services by establishing certain procedural andsubstantive regulations for local land use decisions on cellular facilities.

 

Two years ago, the FCCissued a ruling that clarified certain provisions in the Act. The rulingaddressed three principle issues: (1) the time-frame for local zoning authorities toact on cellular zoning applications; (2) the right of cellularservice providers to non-discriminatory treatment; and (3) whether ordinancesrequiring all cellular zoning proposals to apply for a variance are per se unreasonable.

One of the most significantissues addressed in the ruling was the establishment of a “shot clock” for amunicipality’s evaluation and decision on a zoning application. The rationalebehind the new time limits was that language in the Act requiring localgovernments to “act on any request…within a reasonable period of time,” was toovague.  A local zoning authority has 90 days (co-locations) or 150 days (allother applications) to make a final, written decision on a zoning application fora cellular facility. Once a zoning application is deemed complete, the shotclock begins to run. A municipality can have an additional 30 days to requestadditional information for the application, which tolls the clock. If amunicipality fails to act within the time frames, there is a rebuttablepresumption that the municipality has acted, or failed to act, unreasonably andthe cellular provider can bring suit.


Cases in the past two years have considered a variety of challenges by cellular providers, including claims of shot clock violations and discrimination and bias on the part of municipal officials.  Based on these cases, there are a few tips that municipalities should consider in processing, reviewing, and deciding zoning applications for cellular facilities. 


One way to avoid aclaim of unreasonable delay is for a zoning official to obtain the provider’sconsent to extensions of time. While repeated delays might test the bounds of aprovider’s patience, limited extensions for substantive purposes should begranted if the parties are acting in good faith. In at least one case, a courtheld that a provider that agreed to an extension of time was barred from makinga claim for unreasonable delay so long as a final decision was made within theextended time.

As a generalrule, courts have upheld zoning decisions by municipalities that have treatedcellular zoning applications similarly to other applications, and have appliedobjective standards in a non-discriminatory manner.  Courts have also beenreluctant to grant injunctive relief to a cellular provider solely because amunicipality violated the shot clock requirements.  However, a court might bemore favorably inclined to issue an injunction if it finds that themunicipality's delay in processing an application is based on some bias againstthe provider.  For that reason, municipalities should remind their zoning board, plan commission, and corporate authorities to review cellular zoning applications dispassionately since courts have easily seen through decisions that are rooted in a pre-existing bias against wireless facilities.  

 

Post Authored by Adam Simon.



 

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November 20, 2011

Utah Supreme Court Finds No Takings Claim Where Council Properly Rescinded Ordinance

New post on LAW OF THE LAND


 


Utah Supreme Court Finds No Takings Claim Where Council Properly Rescinded Ordinance

by Patty Salkin

While in the process of finalizing purchase of a 15.359 acre parcel in Salt Lake County, Utah, L.C. Canyon requested that County officials rezone 3.543 acres of the parcel from FR 20 to FR 2.5, which would have allowed plaintiffs to construct a single-family residence on the property.  On October 18, 2005, the Salt Lake County Council approved amending the zoning map to reflect the zoning redesignation of the L.C. Canyon parcel to FR 2.5.  However, before the change took effect – which would have occurred 15 days after the ordinance’s passage—the Council decided to reconsider the approval after learning that the property was closer to Little Cottonwood Canyon than they had believed when initially voting to rezone.  One day before the change would have taken effect, the Council vote d to rescind it.  L.C. Canyon later sought a variance from the County Board of Adjustment, but the variance was denied.

L.C. Canyon filed suit against the Council, alleging that application of the FR 20 zoning designation to L.C. Canyon’s property lacked a rational basis; that the Council had overstepped its authority when it rescinded its own rezoning ordinance; and that the decision to rescind constituted a taking of L.C. Canyon’s property.  The district court found in favor of the Council, holding first that the FR 20 zone was rationally related to the County’s legitimate interests in protecting its environmental and scenic resources near Little Cottonwood Canyon.  The district court also upheld the Council’s authority to rescind its previous rezoning decision because the rescission occurred before the ordinance had become effective.  Lastly, the district court rejected the takings claim on the basis that the ordinance had not y et become effective at the time of rescission, thus any protectable interest that might have been created by the ordinance had not yet vested.  L.C. Canyon here appeals the district court’s decision.

The Utah Supreme Court upheld the district court on all three issues.  Regarding the rationality of the FR 20 zone, the court reiterated the County’s legitimate interests in protecting natural and scenic resources and noted that L.C. Canyon’s best recourse in challenging the designation was to apply for a variance.  L.C. Canyon had applied for a variance that was denied, but it never appealed that decision, which would have given it the opportunity to challenge the County’s alleged failure to consider its particularized challenge to the FR 20 zone.  However, that issue was not before the court on appeal.

On the matter of whether the County had the authority to rescind the rezoning ordinance, the court also upheld the district court’s decision.  The County had incorporated Robert’s Rules of Order into the County Code to address any procedural issues not explicitly covered by state or local law.  L.C. Canyon had challenged that ruling by pointing out that Robert’s Rule 36 should have applied to the situation, which would have given the Council only a one-day window to reconsider the rezoning ordinance.  However, the court sided with the Council, agreeing that Robert’s Rule 37 applied, which authorized the Council to rescind a vote either by a majority vote where notice of the motion to rescind has been given or by a two-thirds vote where no such notice had been given.  Since notice of the motion had been given at a prior meeting and the rescission vote received a majority vote, the rescission vote was proper.  The court pointed out that fairness was also on the side of this decision, since L.C. Canyon had not acted in reliance on the initial rezoning decision and had not incurred any liability or expense.

Regarding the takings claim, the court upheld the district court’s reasoning that any property interest created by the initial rezoning decision had not yet vested in L.C. Canyon because the necessary 15 day statutory period had not lapsed for the ordinance to become law.  Thus, at the time of rescission, L.C. Canyon had no protectable property interest which could be the subject of a takings claim.

L.C. Canyon Partners, L.L.C. v. Salt Lake County, 2011 WL 4917040 (Utah 2011). 

The opinion can be accessed at: http://www.utcourts.gov/opinions/supopin/LCCanyon101811.pdf 

For a more in depth 3-part examination of this case, see the Utah Appellate Blog at: http://www.utahappellateblog.com/2011/11/17/utah-supreme-court-l-c-canyon-partners-l-l-c-v-salt-lake-county-takings-and-changing-zoning-rules  


 

Patty Salkin | November 20, 2011 at 1:07 am | Categories: Current Caselaw, Rezoning, Robert's Rule of Order, Takings, Variances, Zoning Administration | URL: http://wp.me/p64kE-1vl

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November 19, 2011

New post on LAW OF THE LAND

FL Supreme Court Finds No Exactions Taking Where Permit Was Never Issued

by Patty Salkin

In 1994, Koontz sought a permit from the St. Johns River Water Management District to develop 3.7 acres of his commercial land, 3.4 acres of which were designated as wetlands. St. Johns initially agreed to recommend approval of the permit on the condition that Koontz agree to conservation and mitigation measures, either by deeding the remainder of his property to conservation and performing drainage work on other property or by reducing the amount of wetlands he planned to develop and turning the remaining wetlands into conservation areas. Koontz would not agree to the stipulations and St. Johns denied the permit.

Koontz brought an inverse condemnation claim in 1998, arguing that St. Johns had imposed an improper exaction in violation of the takings standards laid out in Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994). The issues in Koontz’s case reached the Fifth District Court of Appeal four times, with courts ultimately determining that a taking had occurred and requiring that St. Johns take one of three actions: issue the permit; compensate Koontz for the taking; or modify its conditions to avoid a taking. St. Johns issued the permits after Koontz demonstrated his property contained a smaller portion of wetlands than originally thought. A circuit court then awarded $376,154 in damages to Koontz for the temporary taking of his property by St. Johns.

In St. Johns River Water Management Dist. v. Koontz, 5 So.3d 8 (Fla. 5th DCA 2009) (Koontz IV), St. Johns appealed the damage award, asserting that there had been no exaction because “nothing had been taken from Mr. Koontz,” and that the elements of an inverse condemnation had not been satisfied because the permit had been denied – St. Johns had not ultimately required any physical dedication of land because the permit negotiations involving the proposed dedication had failed. Despite these arguments, the Fifth Circuit affirmed the judgments in favor of Koontz and St. Johns filed a motion for certification of the case’s central question as one of great public importance.

In this case, the Supreme Court of Florida addressed the certified question on the applicability of the Nollan/Dolan regulatory takings rules to circumstances where the government had denied the permit sought. The question the court sought to reach was whether the Fifth Amendment recognized an exactions taking under Nollan/Dolan “where there is no compelled dedication of any interest in real property to public use and the alleged exaction is a non land use monetary condition for permit approval which never occurs and no permit is ever issued.” After examining at length the Supreme Court’s takings jurisprudence, the court concluded that the Nollan/Dolan standard applied in cases where government entities had issued a permit. However, the court declined to extend the Nollan/Dolan doctrine to situations where a permit was never issued and the exactions never implemented. The court stated that Nollan/Dolan will only apply “where the condition/exaction sought by the government involves a dedication of or over the owner’s interest in real property in exchange for permit approval; and only when the regulatory agency actually issues the permit sought, thereby rendering the owner’s interest in the real property subject to the dedication imposed.”

Since St. Johns never issued the permit to Koontz, and Koontz never undertook performance of the mitigation suggested by St. Johns, the court held that Nollan/Dolan had been erroneously applied and a taking had not occurred. Public policy also weighed in favor of this interpretation, according to the court, because finding a taking even where a permit was denied would unduly restrict government agencies’ land use regulation abilities by dramatically increasing the threat of costly litigation.

The Florida Supreme Court answered the certified question in the negative, quashed the Fifth District Court of Appeal decision in Koontz IV, and remanded the case for further proceedings.

St. Johns River Water Mgmt. Dist. v. Koontz, 2011 WL 5218306 (Fla. 11/3/2011)

The opinion can be accessed at: http://www.floridasupremecourt.org/decisions/2011/sc09-713.pdf

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November 18, 2011

Handouts Available for Municipal Law Seminar

Handouts Available for Municipal Law Seminar

Posted: 18 Nov 2011 01:27 PM PST

Ancel Glink attorneys conducted a municipal law training session for local government officials in Normal, Illinois, on November 17, 2011.  The presentations included the following topics:

 

1.  Five Easy Pieces to Employment Litigation

2.  Council and Board Practices & Procedures

3.  Zoning:  Best Practices and Legal Update

4.  Code Enforcement/Property Maintenance

 

You can download a copy of the handout materials for each of the sessions by clicking on the topic link above.
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November 17, 2011

MA Land Court Finds No Violation of Parking and Sign Regulations

New post on LAW OF THE LAND


 


MA Land Court Finds No Violation of Parking and Sign Regulations

by Patty Salkin

Snyder, a concerned resident, claimed city zoning officials had failed to address his neighbor’s alleged violations of residential parking and sign ordinances.  The parking ordinances mandated that property owners provide parking space for at least two vehicles per dwelling unit, but precluded landowners in residential zones from providing parking which exceeded 200 percent of the minimum requirements.  The sign ordinances put restrictions on certain types of signs, but exempted from these regulations directional signs which are installed for the purpose of “guiding, directing, warning, or regulating traffic.”

Under the city parking ordinances, the property, a single family residence with a detached two-car garage, was required to provide at least two parking spaces, but was prohibited from providing more than four spaces.  After being sued previously, and in order to comply with the parking regulations, the owners had striped the parking lot, designating four parking spots and marking “NO PARKING” on the other areas of the lot where there was space for cars to park.

Snyder had made 21 separate requests that the city enforce the parking and sign regulations, which he believed his neighbor had violated by painting “NO PARKING” on the pavement and by maintaining a parking lot which contained sufficient space to park more than four vehicles, despite the “NO PARKING” signs.  Snyder claimed that in painting “NO PARKING” on the pavement, the owners of the property had created “visual clutter and blight” which he could see from his property, that the writing constituted a sign that should have been prohibited under the city ordinances, and that the writing diminished his property value.  After the parking lot had been striped to contain only four spaces, Snyder provided photographic evidence showing that more than four vehicles had been parked there on several occasions, in vi olation of the ordinance.  Snyder also pointed out that the garage, which was unused at the time, could still accommodate two additional cars, meaning that the spaces provided on the paved lot could exceed the number allowed by the ordinance if the garage was in use.  Thus, he claimed that the property owners should be prohibited from maintaining a parking area with space sufficient to accommodate more vehicles than permitted by the statute.

On the issue of the sign, the court held that the city had acted reasonably in classifying the “NO PARKING” sign as a “directional sign” exempted from municipal sign ordinances, especially since the city had been concerned that construing the ordinance otherwise would have drawn into the purview of regulation many commonplace signs often found at residential properties, such as those containing instructions on where to leave packages or those warning visitors about dogs.  Thus, the court held that the city’s decision on the sign was entitled to deference and should be sustained.

On the issue of the parking area, the court also upheld the city’s decision to decline taking further action after receiving assurances from the property owner that the garage would not be used to store any vehicles.  The court pointed out that, contrary to what Snyder had suggested, “the ordinance does not contemplate, and certainly does not require, that every flat surface on a residential lot which might be used to park a vehicle be rendered physically unavailable for parking should the flat surface make possible the parking of a vehicle beyond the maximum number the parking area is required to provide.”  So long as the property owner did not park, or allow others to park, more than four vehicles in the parking area, the goals of the ordinance would be achieved, the court noted.  Therefore, the commitment not to park cars in the garage and her willingness to limit parking on the property to four vehicles was sufficient to meet the goals of the ordinance, and the city’s decision not to take further action on the matter was reasonable and proper.

The property owners had challenged Snyder’s standing to bring the suit and argued that their efforts to paint over the “NO PARKING” letters rendered moot Snyder’s claims about the alleged nonconforming sign.  With regard to Snyder’s standing, the court held that, since Massachusetts statute creates a presumption of aggrievement in persons such as Snyder who are entitled to notice of zoning board hearings, and since the property owners had failed to provide sufficient evidence to rebut that presumption of aggrievement by showing that Snyder suffered no particularized injury, there was standing in this case.  On the question of whether the sign violation was rendered moot by the efforts to paint over the sign, the court simply noted that the painted lettering was still visible despite the efforts to cover it.  The refore the motion to dismiss that issue for mootness was denied.

Snyder v. Arena, 2011 WL 4905590 (Mass. Land Ct. 10/17/11)                                    

The opinion can be accessed at: http://masscases.com/cases/land/2011/2011-09-404400-JUDGMENT.html

Patty Salkin | November 17, 2011 at 7:30 am | Tags: parking | Categories: Current Caselaw, Signs, Standing | URL: http://wp.me/p64kE-1vg

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November 15, 2011

Cal Supremes: Lender's Withdrawal Of Condemnation Deposit Does Not Waive Property Owner's Defenses

Cal Supremes: Lender's Withdrawal Of Condemnation Deposit Does Not Waive Property Owner's Defenses

Posted: 14 Nov 2011 06:53 PM PST

This just in: In Los Angeles County Metro. Trans. Auth. v. Alameda Produce Market, LLC, No. S188128 (Nov. 14, 2011), the California Supreme Court held:

Under California's "quick-take" eminent domain procedure, a public entity filing a condemnation action may seek immediate possession of the condemned property upon depositing with the court the probable compensation for the property. (Mt. San Jacinto Community College Dist. v. Superior Court (2007) 40 Cal.4th 648, 653 (Mt. San Jacinto); see also Code Civ. Proc., §§ 1255.010, 1255.410.) Any defendant in the condemnation action — which includes anyone the public entity knows to have or claim an interest in the property (§ 1250.220, subd. (a)) — may apply to the court to withdraw all or any portion of the deposit (§ 1255.210). Section 1255.260 provides that, "[i]f any portion" of the deposit "is withdrawn, the receipt of any such money shall constitute a waiver by operation of law of all claims and defenses in favor of the persons receiving such payment except a claim for greater compensation." The Court of Appeal in this case held that, under this statute, if a lender holding a lien on condemned property applies to withdraw a portion of the deposit, and the property owner does not object to the application, the lender’s withdrawal of a portion of the deposit constitutes a waiver of the property owner’s claims and defenses, except a claim for greater compensation. We find that the Court of Appeal‘s conclusion is inconsistent with the relevant statutory language and framework. We therefore reverse the Court of Appeal's judgment.

Slip op. at 1-2 (footnote omitted).

We'll review the opinion and post more when we get a chance. But this looks about right.

Los Angeles County Metro. Trans. Auth. v. Alameda Produce Market, LLC, No. S188128 (Nov. 14, 2011)  

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November 13, 2011

NY Appellate Court Finds Adjacent Property Owners Have Standing to Enforce Conditions in Special Use Permit

NY Appellate Court Finds Adjacent Property Owners Have Standing to Enforce Conditions in Special Use Permit

by Patty Salkin

The Plaintiffs, adjacent property owners along the driveway on Defendant’s 12 acres of land leased to a tennis and surf club, brought suit to enjoin the defendants from maintaining and operating the club on the property on the grounds that they have failed to comply with conditions in the special use permit issued in 1961 allowing the operation of the club. Specifically, the plaintiffs claimed that the defendants are in violation of the condition that requires them to construct and maintain a private roadway leading to the club. The appellate court denied the Defendant’s motion to dismiss on the grounds that the Plaintiffs lacked standing since they failed to demonstrate that the plaintiffs lacked the legal capacity to sure on the ground that they were not aggrieved by the alleged vio lations of the special use permit. Further, the court found that the defendants failed to prove plaintiffs lacked standing to maintain a common-law action to enjoin a violation of a special use permit.

Goldman v A & E Club Properties, LLC, 2011 WL 5222873 (N.Y.A.D. 2 Dept 11/1/1011)

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2011/D32754.pdf

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NY Appellate Court Finds Adjacent Property Owners Have Standing to Enforce Conditions in Special Use Permit

NY Appellate Court Finds Adjacent Property Owners Have Standing to Enforce Conditions in Special Use Permit

by Patty Salkin

The Plaintiffs, adjacent property owners along the driveway on Defendant’s 12 acres of land leased to a tennis and surf club, brought suit to enjoin the defendants from maintaining and operating the club on the property on the grounds that they have failed to comply with conditions in the special use permit issued in 1961 allowing the operation of the club. Specifically, the plaintiffs claimed that the defendants are in violation of the condition that requires them to construct and maintain a private roadway leading to the club. The appellate court denied the Defendant’s motion to dismiss on the grounds that the Plaintiffs lacked standing since they failed to demonstrate that the plaintiffs lacked the legal capacity to sure on the ground that they were not aggrieved by the alleged vio lations of the special use permit. Further, the court found that the defendants failed to prove plaintiffs lacked standing to maintain a common-law action to enjoin a violation of a special use permit.

Goldman v A & E Club Properties, LLC, 2011 WL 5222873 (N.Y.A.D. 2 Dept 11/1/1011)

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2011/D32754.pdf

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November 11, 2011

BVWire News

BVWire News

 

IRS expert presents new fractional interests model tomorrow!

Posted: 10 Nov 2011 08:43 AM PST

When we first broke the news about the IRS’s fractional interest model at the most recent ASA IRS National Symposium last spring, the halls were buzzing with appraisers’ debate, discussion, and even dismay. As the BVWire reported, the “minority premium model” takes fractional interest calculations through several levels of minority vs. majority ownership, and concludes that even when the owners are equally split, the 50% interest may not warrant a fractional interest discount any greater than 30%.

But then—why do empirical market data suggest that fractional interests routinely trade at discounts of 30% and higher? Aren’t the facts and circumstances of many such holdings much more complicated than the IRS model suggests? But consider this question: Would a court ever be persuaded that, for example, a 99% owner would be willing to sell at a 30% discount if he can buy out the 1% owner at the equivalent of a 1%-2% discount?

Get the answers to these and many more questions in Part IV, the last session of BVR’s Tax Summit: Valuing a Majority Fractional Interest. The event features Neil Mills-Mazer (Internal Revenue Service), who will introduce and describe his controversial model this Friday, Nov. 11.


Four days left to comment on USPAP discussion draft

Posted: 10 Nov 2011 08:39 AM PST

Last month the Appraisal Standards Board (ASB) issued the discussion draftCommunication and Reporting in the Uniform Standards of Professional Appraisal Practice (USPAP), requesting comments by Nov.14, 2011.

As Rick Warner, editor of the BVC’s weekly e-letter to members, points out in the latest issue, one of the questions that the discussion draft addresses is the general issue of “draft reports” and what changes, if any, need to be made to USPAP regarding the practice of providing draft reports to clients, particularly in litigation settings. “This is a topic where ‘words’ really are important,” Warner says, “so I encourage you to review this ASB discussion draft and consider how your business valuation practice might be affected by some of the changes being considered to USPAP.”

Chris Mercer (Mercer Capital) and the Standards Subcommittee of the ASA BV Committee are also aware of the discussion draft and are crafting a response on behalf of their constituencies, Warner notes. “However, you may want to consider reviewing this ASB document and responding on your own.”


 

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November 09, 2011

10th Annual Land Use and Sustainable Development Conference:Sustainable Development in Tough Economic Times

New post on LAW OF THE LAND


 


10th Annual Land Use and Sustainable Development Conference:Sustainable Development in Tough Economic Times

by Patty Salkin

On December 2, 2011, the Land Use Law Center of Pace Law School will present its annual land use and sustainable development conference.

Proponents of sustainable development have been dealt a tough hand by current economic conditions. This year, the program will focus on how the economy has altered the feasilbility of land use and development strategies. Sessions include the remediation of distressed properties, rethinking large projects that have failed, redevelopment readiness, small-scale solutions, and projects that embody cost and energy efficiency. Join the more than 200 lawyers, professionals, business leaders, and local leaders that attend this event yearly.The Conference Registration Fee is $ 100.00 for general admission and $75.00 for Student/Not for Profit/Government.  The agenda is available here: http://www.pace.edu/school-of-law/sites/pace.edu.school-of-law/files/LULC/Sus-Dev_Conf/Conf%20Agenda.pdf

CLE Credits (1.5 Ethics and 4.5 Practice) will be available at an additional cost of $120 for those that choose to downloaded the CLE Book from our website and $150 for those that choose to pick up printed material at the conference.

 For more information please contact:  Ann Marie McCoy at (914) 422-4262 or amccoy@law.pace.edu.

Patty Salkin | November 9, 2011 at 10:49 am | Categories: Uncategorized | URL: http://wp.me/p64kE-1uU

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Calculated Risk

Calculated Risk

 

Housing: REO and Mortgage Delinquencies

Posted: 09 Nov 2011 09:11 AM PST

Yesterday Fannie Mae reported their third quarter results. Fannie's REO inventory fell to 122,616 houses from 135,719 at the end of Q2. Fannie's REO inventory has declined for four straight quarters.

Below is a graph of Fannie Mae REO acquisitions (completed foreclosure or deed-in-lieu) and dispositions (sales).

Note the slowdown in REO acquisitions in Q4 2010, and the increase in sales.

Since sales have been higher than acquisitions, REO inventory has been falling. However there are many properties delayed in the foreclosure process, and acquisitions will pick up when the mortgage servicer settlement is reached.

Fannie Mae REO
Click on graph for larger image.

If we just looked at REO inventory, we might think that the situation is getting better pretty quickly. However there are a large number of properties in the "90 days delinquent" and "in foreclosure" buckets.

The second graph shows the delinquent and REO buckets over time. The delinquency data is from LPS, and the REO estimates are based on work by Tom Lawler and my own calculations.

Delinquency and REOThe dashed lines are "normal" historical levels for each bucket. The 30 day bucket is only slightly elevated (as of September), and the 60 day buckets is somewhat elevated. But the glaring problems are in the 90 day and in-foreclosure buckets.

There are 4.1 million seriously delinquent loans (90 day and in-foreclosure). This is about 3.1 million more properties than normal. Probably when the mortgage settlement is announced, some of these loans will cure as part of the settlement with loan modifications that include principal reduction, but many of these properties will become REOs fairly quickly.

So even though REO inventory is declining, there are still many more to come.





Ceridian-UCLA: Diesel Fuel index increased 1.1% in October

Posted: 09 Nov 2011 06:00 AM PST

This is the UCLA Anderson Forecast and Ceridian Corporation index using real-time diesel fuel consumption data: Pulse of Commerce Index Increased 1.1 Percent in October, Offsetting the 1.0 Percent Decline in September

The Ceridian-UCLA Pulse of Commerce Index®(PCI®), issued today by the UCLA Anderson School of Management and Ceridian Corporation, rose 1.1 percent in October after three consecutive months of negative numbers.

Over the past three months, compared to the prior three months, the PCI declined at an annualized rate of 5.8 percent and the PCI remains lower than it was during most of the first half of 2011. “The October data offer some welcome relief from the double-dip fears that were rampant a month ago, but one month does not mean a new trend. Until we get a series of positive months, it remains a she-loves-me, she-loves-me-not economy with bad news followed by good followed by bad,” said Ed Leamer, chief economist for the Ceridian-UCLA Pulse of Commerce Index and director of the UCLA Anderson Forecast.

On a year-over-year basis, the PCI was up 1.3 percent in October compared to the -0.2 percent decrease in the prior month. ... Based on the latest PCI data, our forecast for October Industrial Production is a 0.12 percent increase when the government estimate is released on November 16.

Pulse of Commerce IndexClick on graph for larger image.

This graph shows the index since January 2000.

This index declined sharply in late summer and this small rebound only offsets some of the recent decline.

Note: This index does appear to track Industrial Production over time (with plenty of noise).

All current Transportation graphs





Italian Bond Yields hit 7.4%

Posted: 09 Nov 2011 04:58 AM PST

• The Italian 10 year yield is at 7.32% after hitting 7.48% this morning.

• From Reuters: LCH.Clearnet Raises Initial Margin Call on Italian Debt

LCH.Clearnet increased the margin on debt from the [Italy] at a time when its bonds yields are close to levels deemed unsustainable.
...
When LCH.Clearnet Ltd took similar action on Portuguese and Irish debt as bond yields soared, it added to selling pressure on the paper. Both countries were later forced to seek bailouts.

European stocks are off today with the FTSE down 2%, and the DAX down 3%.





MBA: Mortgage Purchase Application Index increased

Posted: 09 Nov 2011 04:40 AM PST

From the MBA: Mortgage Applications Increase in Latest MBA Weekly Survey

The Refinance Index increased 12.1 percent from the previous week. The seasonally adjusted Purchase Index increased 4.8 percent from one week earlier to the highest level since August 2011.
...
"Treasury rates dropped last week, as renewed turmoil in Europe once again led to a flight to quality, and 30-year mortgage rates dropped to their second lowest level of the year," said Mike Fratantoni, MBA's Vice President of Research and Economics. "Refinance applications jumped more than 12 percent to their highest level in a month and some lenders experienced even larger increases. As has been the case all year, many refinance applicants are opting to deleverage by choosing 15-year mortgages."
...
The average contract interest rate for 30-year fixed-rate mortgages with conforming loan balances ($417,500 or less) decreased to 4.22 percent from 4.31 percent.

The following graph shows the MBA Purchase Index and four week moving average since 1990.

MBA Purchase Index
Click on graph for larger image.

Although the purchase index increased, the index is still sharply below the levels of June and July - and at about the same level as in 1996. This does not include cash buyers, but this suggests weak home sales over the next couple of months.

All current Existing Home Graphs





Greek Politics

Posted: 08 Nov 2011 06:45 PM PST

An apt headline from the Athens News: Sinking with no captain

The European Union’s shattered trust in Greece and interparty wrangling have delayed the announcement of Greece’s new coalition government ...

The humiliating demand by EU Economic and Monetary Affairs Commissioner Olli Rehn that the next tranche of loans will not be disbursed unless New Democracy leader Antonis Samaras signs a declaration that he will support full implementation of the October 27 bailout threw his party into a tailspin.

The demand came a day after ND issued a nonpaper saying that the party will support the new government’s policies, only to reverse them when the conservatives come to power.

Designed to beat Samaras into complete submission, Rehn’s demand triggered an uproar in the ND party base ...

I don't know if this story is accurate, but if the plan is to default - just say so.





Fannie, Freddie and FHA REO Inventory declines in Q3

Posted: 08 Nov 2011 02:45 PM PST

Important: REO inventories have declined over the last few quarters. This is a combination of more sales and fewer acquisitions due to the slowdown in the foreclosure process. However there are many more foreclosures coming (I'll have more on this later).

From Fannie Mae today: Fannie Mae Reports Third-Quarter 2011 Results

Fannie Mae today reported a net loss of $5.1 billion in the third quarter of 2011, compared to a net loss of $2.9 billion in the second quarter of the year. The company’s third-quarter loss was driven primarily by two factors: $4.9 billion in credit-related expenses, the substantial majority of which were related to its legacy (pre-2009) book of business; and $4.5 billion in fair value losses driven primarily by losses on risk management derivatives due to a significant decline in swap interest rates during the quarter. These losses were partially offset by $5.5 billion in net revenues.
...
The Acting Director of the Federal Housing Finance Agency (“FHFA”) will submit a request to Treasury on Fannie Mae’s behalf for $7.8 billion to eliminate the company’s net worth deficit.

The combined REO (Real Estate Owned) inventory for Fannie, Freddie and the FHA1 decreased to 226,961 at the end of Q3 from 249,501 units at the end of Q2. The "F's" REO inventory decreased 23% compared to Q3 2010 (year-over-year comparison).

1 FHA is for August, not Q3. The FHA is having system problems and hasn't reported for September yet.

Fannie Freddie FHA REO Inventory
Click on graph for larger image.

This graph shows the REO inventory for Fannie, Freddie and FHA1 through Q3 2011.

The REO inventory for the "Fs" increased sharply in 2010, but may have peaked in Q4 2010. However there may be a new peak when the foreclosure dam eventually breaks - however I expect quite a few modifications as part of the settlement, and probably a bulk REO selling program from Fannie and Freddie.

I'll update the FHA data when it is released, and add the PLS and FDIC REO inventory.





Las Vegas: 100,000 foreclosures and counting

Posted: 08 Nov 2011 01:10 PM PST

From Steve Green at the Las Vegas Sun: Las Vegas house prices continue to slide, down 9 percent from year ago

“In less than four years, more than 100,000 homes in Las Vegas have been lost through foreclosure. That’s 18 percent of our privately owned housing stock: that’s nearly one home in five. And we’re nowhere near finished with foreclosures. In all likelihood, we have another 100,000 yet to go, and at the current rate, that’s another four years,” [housing analyst and SalesTraq President] Larry Murphy said.

According to Case-Shiller, house prices have declined almost 60% from the peak in Las Vegas ... no wonder foreclosure are so high.

And according to Core Logic, there were 426 thousand first mortgages in Las Vegas at the end of Q2 - and 270 thousand of these were in negative equity (about 63%). Another 100,000 foreclosures might be low.





 

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November 08, 2011

ABA Journal

http://sblog.s3.amazonaws.com/wp-content/uploads/2011/05/Brief-05-19-11-154113.pdf

U.S. Supreme Court, ABA Journal

Supreme Court Accepts Case Claiming Property Code Cuts Affordable Rentals, Violates Fair Housing Act

Posted Nov 8, 2011 8:24 AM CST
By Debra Cassens Weiss

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The U.S. Supreme Court agreed Monday to decide a case involving a claim that a Minnesota city’s housing code clashes with the Fair Housing Act.

Rental property owners in St. Paul are arguing that housing code requirements will increase their costs and decrease the number of properties they are able to rent to African Americans, who make up a disproportionate number of low-income households, according to the petition for certiorari (PDF). The property owners claim city officials are violating the Fair Housing Act by aggressively enforcing the city code.

The St. Louis-based 8th U.S. Circuit Court of Appeals had allowed the disparate impact suit by the property owners. The threshold issue, according to the cert petition, is whether disparate impact claims are recognizable under the Fair Housing Act. Most appeals courts allow such claims, the cert petition says, but they are divided on the analysis.

City officials argue in the cert petition that it is the property owners who are seeking to thwart the Fair Housing Act. “Respondents seek to avoid fixing up their properties to meet the minimum housing code because it will cut their profits and prevent them from renting out dilapidated homes,” the cert petition says. “This defeats the goal of the Fair Housing Act.”

SCOTUSblog has highlighted the case, Magner v. Gallagher, as a petition of the day

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November 07, 2011

Better Government

Better Government

 

Will the Supreme Court Resolve the Takings Issue?

Posted: 07 Nov 2011 01:31 PM PST

The U.S. Supreme Court is expected to decide soon whether it will consider the appeal of the Ninth Circuit’s decision in West Linn Corporate Park, LLC v. City of West Linn that refused to extend Nollan/Dolan’s nexus and rough proportionality test to a municipality’s requirement that a developer construct off-site public improvements.

 

Since Nollan/Dolan, lower courts have struggled with the following question -- is the nexus and rough proportionality test limited to physical exactions of real property?  Some lower courts have decided that the test applies to all exactions, including impact fees and exactions that do not involve the dedication of land.  Other courts have disagreed, finding that the test only applies to a demand for dedication of land, most recently in the Florida Supreme Court’s decision in St. Johns River Water Management Dist v. Koontz. 

 

Thanks to Robert Thomas and his blog, Inverse Condemnation, for his summary of an issue of importance to land use attorneys, developers, and local governments across the country.



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New post on LAW OF THE LAND

New post on LAW OF THE LAND


 


MA Supreme Judicial Court Holds Plaintiff Failed to Timely Object to Issuance of Building Permit

by Patty Salkin

Defendant owned property surrounded by plaintiff’s property.  Defendant notified the plaintiff that he planned to knock down the two-family house on his property and replace it with a new, bigger, two-family house, and he filed applications for a building permit on July 28th.  While visiting the building department, plaintiff found out that defendant had filed his applications.  Consequently, on August 20th, plaintiff sent a letter to the building commissioner, opposing the issuance.  The building permits were issued on September 15th.  Although plaintiff was not given notice of the issuance, he discovered it while visiting the building department on September 25th

Thirty-five days after the issuance of the building permits, on October 20th, plaintiff filed an appeal with the board.  The board held that plaintiff lacked jurisdiction because the statute requires an appeal within thirty days.  This decision was upheld by the land court and then affirmed by the Appeals Court.

Although plaintiff argues he had six years to file a request to enforce a zoning ordinance under Section 7 of the Zoning Act, the court disagreed, explaining that the six year limit in that Section is only available when the aggrieved person does not have notice of the issuance of the permit.  Here, plaintiff knew within ten days that the permit had been issued, and that Section 8 of the Zoning Act is clear that an aggrieved person must seek an appeal within thirty days of the issuance of the permit.  

Finally, plaintiff purports that his August 20th letter was an enforcement request.  The court denied this contention.  An enforcement request, explains the court, must be made after the violation has occurred.  Since the letter pre-dated the issuance of the permit, there was not yet a potential violation of plaintiff’s rights.  The claim is thus properly dismissed for lack of jurisdiction.

Connors v. Annino, 460 Mass. 790 (10/26/2011)

This opinion can be accessed at: http://massachusettssupremecourtopinions.justia.com/2011/10/26/connors-jr-v-annino 

For more information about this decision see the Massachusetts Land Use Monitor Blog at:  http://www.massachusettslandusemonitor.com/add-category/sjc-confirms-30-day-appeal-period-for-building-permits-where-abutter-has-adequate-notice

Patty Salkin | November 7, 2011 at 1:44 am | Categories: Current Caselaw, Statute of Limitations | URL: http://wp.me/p64kE-1uJ

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inversecondemnation

inversecondemnation ________________________________________ Final Cert Briefs In West Linn Case: Are Nollan And Dolan Limited To Exactions Of Land? Posted: 06 Nov 2011 04:30 PM PST We've been thinking a lot about exactions lately. First, it was the petition for certiorari in West Linn Corporate Park LLC v City of West Linn, No. 11-299 (petition for cert. filed Sep. 6, 2011), which asks whether the nexus and "rough proportionality" tests for a regulatory taking in Nollan and Dolan are limited to government demands for land. Then, late last week the Florida Supreme Court disagreed with the California and Texas Supreme Courts, and held in St. Johns River Water Management Dist v. Koontz, No. SC09-713 (Nov. 3, 2011) that Nollan and Dolan analysis is limited to real estate exactions, and do not apply to demands for offsite mitigation. Now we're back to the West Linn case, since the parties have filed their final briefs, and the Court is scheduled to decide whether to take the case at its upcoming November 10, 2011 conference. So here are the city's Brief in Opposition and the property owner's Reply Brief. We're following this case closely, so will have more after the Court releases its order from the conference. This seems like an issue that is ripe for resolution so to us the chances of a grant are as good as they can be. This posting includes an audio/video/photo media file: Download Now
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November 06, 2011

NY Appellate Court Finds Right-of-Way Easement is Not a Paper Street

New post on LAW OF THE LAND


 


NY Appellate Court Finds Right-of-Way Easement is Not a Paper Street

by Patty Salkin

Defendant Valentine had proposed to improve Terrace Place, a right-of-way easement which benefitted his parcel and burdened parcels owned by plaintiffs, the Blums.  Following an Article 78 proceeding seeking to invalidate site plan approval given to Valentine’s plan, see Valentine v. McLaughlin, 930 N.Y.S.2d 51 (N.Y.A.D. 2 Dept. 2011), the Blums filed this action seeking a judgment that Terrace Place is not a “paper street” and to enjoin Valentine and town officials from developing it by virtue of its characterization as a “paper street.”  

In a related proceeding, the state Supreme Court, Westchester County, had remarked in dicta that it believed Terrace Place to be a street, and thus held that the Blums were collaterally estopped from challenging the legal status of Terrace Place.  However, the Appellate Division held that the Blums did not have a fair opportunity to litigate the legal status of Terrace Place, and that the injunctive relief they sought was not available to them in the original Article 78 proceeding.  Therefore, the state Supreme Court erred in holding that the Blums were collaterally estopped from seeking such relief, and the challenge to the legal status of Terrace Place could proceed.                    

On the matter of the legal status of Terrace Place, the Appellate Division noted that town law prohibited the issuance of a building permit for a parcel without access to a “street or highway,” and that Valentine’s property lacked access to any established “street or highway,” since it only had access to streets via the Terrace Place right-of-way.  Since the plaintiff failed to provide any evidence that Terrace Place was listed on any official town documents as a “paper street,” the court held that Terrace Place was not a “paper street” which would satisfy the requirements of town law.  Therefore, the state Supreme Court had also erred in denying the Blums’ motion for summary judgment declaring that Terrace Place was a “right-of-way,” not a “paper street,” and enjoining defendants from developin g Terrace Place as a paper street.  The case was remitted to the trial court for an entry of judgment in favor of the Blums. 

Blum v. Valentine, 2011 WL 4507168 (N.Y.A.D. 2 Dept. 9/6/2011) 

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2011/D32374.pdf

Patty Salkin | November 6, 2011 at 1:21 am | Categories: Current Caselaw - New York, Paper Streets | URL: http://wp.me/p64kE-1uk

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November 05, 2011

DOJ Announced Consent Decree Reached in Virginia Mosque Dispute

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DOJ Announced Consent Decree Reached in Virginia Mosque Dispute

by Patty Salkin

The following is excerpted from the U.S. DOJ’s Religious Freedom in Focus Newsletter (October 2011)

On September 12, a federal court in Virginia approved a consent decree resolving the United States' lawsuit alleging that the County of Henrico, Virginia violated RLUIPA when it denied a request for rezoning by a Muslim organization to construct a mosque. The settlement, which was approved by the United States District Court for the Eastern District of Virginia in Richmond, resolved a suit by the United States filed on September 6.

The case arose from the county's denial of a 2008 application for construction of a mosque by 1241 Associates, LLC, a Muslim organization. The government's complaint, which was filed with the court along with a proposed consent decree, alleged that the county's denial of the rezoning application was based on the religious bias of county officials and to appease members of the public who, because of religious bias, opposed the construction of the mosque. The complaint further alleged that the county treated the Muslim organization differently than non-Muslim groups that regularly have been granted similar rezoning requests.

As part of the settlement, the county agreed to treat the mosque and all religious groups equally and to publicize its non-discrimination policies and practices. The county also agreed that its leaders and various county employees will attend training on the requirements of RLUIPA. In addition, the county will report periodically to the Justice Department.

On September 1, 2011, the Department reached a similar consent decree in federal court in Georgia, resolving allegations that the City of Lilburn violated RLUIPA when it denied an Islamic Center's requests for rezoning to expand its mosque. The United States' complaint in that case also alleged that th e city's denials of the rezoning requests were based on religious bias of city officials and to appease members of the public opposed to the mosque because of religious bias.

Patty Salkin | November 5, 2011 at 1:03 am | Categories: RLUIPA | URL: http://wp.me/p64kE-1uB

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DOJ Closes RLUIPA Investigation After NY Town Allows Church to Meet and Amends Zoning Code

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DOJ Closes RLUIPA Investigation After NY Town Allows Church to Meet and Amends Zoning Code

by Patty Salkin

The following is excerpted from the U.S. DOJ’s Religious Freedom in Focus Newsletter (October 2011)

On October 27, the Civil Rights Division closed its investigation of Schodack, New York under the Religious Land Use and Institutionalized Persons Act (RLUIPA) after the town agreed to allow a church to move into space it had rented and amended its zoning code to treat religious assemblies equally with nonreligious assemblies. The Civil Rights Division had opened an investigation in November 2010, after receiving a complaint that the town had told the Immanuel Church that it had to obtain a variance to rent space in a commercial zone where nonreligious assemblies were permitted as of right, and then denied the church's variance request.

Immanuel Church is a small Christian church with less than 80 members. In late 2009, the church began a search for property to rent in the Town of Schodack for Sunday worship, offices, and religious education classes. The church entered into a lease for office space in a building in a commercial district that previously had been used as a training center. At the time, Schodack's zoning ordinance only allowed churches in three residential districts, and then only with a special use permit. Churches were barred from commercial districts, although non-religious assemblies such as membership clubs and lodges, funeral homes, libraries, and museums could locate as a matter of right in those districts. Certain other nonreligious assemblies, including recreational facilities, indoor and outdoor amusement businesses, civic centers, a nd theaters, could locate in a commercial zone with a special use permit.

The Civil Rights Division opened an investigation to determine whether the city's actions were in violation of Section 2(b)(1) of RLUIPA, which provides that "no government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution."

In response to the investigation, the town granted the Immanuel Church a five-year special use permit to rent the space. The town also revised its zoning ordinance on August 25, 2011. It now treats religious assemblies equally with membership clubs and lodges, permitting them as of right or with a special use permit in the vast majority of zoning districts.

Patty Salkin | November 5, 2011 at 1:58 am | Categories: RLUIPA | URL: http://wp.me/p64kE-1uy

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November 04, 2011

Fed. Dist. Court in NY Dismisses Claims Already Addressed by State Court

New post on LAW OF THE LAND


 


Fed. Dist. Court in NY Dismisses Claims Already Addressed by State Court

by Patty Salkin

To build a shed and a single family residence on his property, Plaintiff sought easement rights to access the parcel with a motor vehicle.  Defendants, Bond and Bootey live near the Plaintiff’s land and, along with the Village, opposed the application.  The Village ultimately refused to issue zoning permits, imposed restrictions because the parcel was considered a “corner lot”, and refused to grant the easement. 

Plaintiff built the shed anyway and subsequently commenced litigation in the state courts.  The state courts resolved three separate issues: that Plaintiff’s property is not a corner lot and, therefore is not subject to extra restrictions; affirmed the Village’s easement denial; and declared that the Plaintiff’s construction of the shed impedes the rights of Bond and Bootey. 

After this decision was rendered by the state court, Plaintiff filed this case in the federal court alleging violations of the Fourteenth Amendment for differential treatment in allowing other property owners to build; asking the court to revisit denial of the easement from the state court; alleging a constitutional challenge to the Village code; accusing the village of retaliation for exercising First Amendment rights; claiming sewer trespass by the village; and claims for  various injunctions to remove structures on Bond and Bootey’s land.  

The court began by dealing with the application of the Rooker-Feldman doctrine which prohibits cases brought to the federal courts by those who lost their case at the state level and are seeking rejection of the state court’s holdings.  The court found that the first three claims asserted by the Plaintiff in this federal action resemble the claims decided by the state court.  Even if the Rooker-Feldman doctrine did not apply, the court points out, alternatively, the actions would be barred under the doctrine of res judicata because the claims either were or should have been raised at the state court. 

Regarding the alleged First Amendment violation, the Court found that the Plaintiff had not pled any information to satisfy its claim.  The court deduced that plaintiff was arguing that because of his victory in the corner-lot issue, actions by the village were in retaliation.  The court found that Plaintiff merely reiterated his issues from the state courts and that the Village had simply taken a position against the issues presented by Plaintiff.  The Plaintiff did, said the court, have two allegations that may be re-pleaded: allegations that the village posted an advertisement criticizing plaintiffs and that an amendment to the Code was meant to target the Plaintiff.  

Since this court dismissed all the federal claims brought by the Plaintiff, they decline to extend supplemental jurisdiction to any remaining state law claims but allowed plaintiff to reassert them at the state court.  

Turner v. Village of Lakewood, 2011 WL 4899965 (W.D.N.Y. 10/14/2011).  

The opinion can accessed at: http://scholar.google.com/scholar_case?case=11665571315498801366&q=turner+v.+village+of+lakewood&hl=en&as_sdt=2,33

Patty Salkin | November 4, 2011 at 6:20 am | Categories: Current Caselaw - New York, Res Judicata, Retaliation, Rooker-Feldman Doctrine | URL: http://wp.me/p64kE-1uw

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November 03, 2011

VT Supreme Court Holds Individual Board Members Need Not Disclose Records Under State Disclosure Law Directly to Plaintiff, but Rather May Comply Through the Zoning Administrator


VT Supreme Court Holds Individual Board Members Need Not Disclose Records Under State Disclosure Law Directly to Plaintiff, but Rather May Comply Through the Zoning Administrator

by Patty Salkin

Plaintiff owns land that abuts a proposed subdivision.  The Development Review Board approved the subdivision application in 2009 and Plaintiff appealed to the Environmental Division.  In connection with the appeal, the Plaintiff made various pro se written requests for public records to the Town’s Zoning Administrator and the individual Board members.  

One of the members responded personally to the Plaintiff by sending the records sought, but indicated that she regularly deleted emails due to volume of email, and emails prior to a specific date had been deleted.  Everyone else on the Board responded through the Zoning Administrator, who sent a letter to Plaintiff stating that some of the records requested were exempt under the State’s Public Records Act, but that all non-exempt records would be provided on a certain date.  Plaintiff did not show up at the Town Offices to retrieve the records on the date indicated by the Zoning Administrator (and the Plaintiff conceded he did not show up).
The Town then filed for a protective order to enjoin the Plaintiff from requesting additional records or contacting Board members other than through counsel, arguing these were nothing more than discovery requests and therefore the Plaintiff’s attorney should be involved in the requests. The Environmental Court granted the protective order in part, noting that so far as the requests were public records requests under State statute, those requests must be addressed in Superior Court.  The Town then filed a motion to remand the Board’s decision back to the Board, which the Environmental Division granted.  

The Plaintiff then appeared at a Town Board meeting and alleged that the engineering firm tasked with evaluating the proposed subdivision had a conflict of interest.  He was told his comments were inappropriate for the meeting due to the pending litigation, and that he should take up his concern up with the Town attorney.  Plaintiff then filed a series of complaints against the Town and the Board.  One complaint sought the same records originally requested under the State records law, the second was to enjoin the Town from taking any action to intimidate him from exercising his right to petition the Town for a redress of grievances (arguing that the Town was retaliating against him by seeking a protective order); and third, sought an injunction against the Town. His complaint against the Board sought an order to compel production, alleging that the Zoning Administrator’s participation in deliberations waived the public records exception and violated the Municipal Administrative Procedures Act’s prohibition on ex parte communication when the Board allowed the Zoning Administrator to participate in the Board’s deliberative sessions as its clerk.  

Plaintiff issued discovery requests to both the Town and the Board that contained requests to admit which Defendants did not respond to in a timely manner, which prompted the Plaintiff to file a motion for summary judgment, alleging that that since the Defendants had not replied, they therefore admitted the facts as alleged in the requests to admit and that he was therefore entitled to summary judgment.  The Defendants, however, said that they were not aware of the requests to admit because Plaintiff buried them in the document that they did not read carefully enough.  The Town and the Board then requested an extension to respond to the discovery requests and file their own motions for summary judgment. 

At a status conference, the Plaintiff was provided with a copy of all remaining public records and the Board and Town told the court that they had responded to the request in full.  After the Court said that the Plaintiff was entitled to that representation in writing, the Defendants sent two letters to Plaintiff so stating.  The court later granted the Defendants’ motions to enlarge time, and after responding to the requests, they filed cross motions for summary judgment.   

The Plaintiff objected to the Defendants’ cross-motions, asserting that the grant of the motion to enlarge time didn’t include permission to file cross-motions.  Defendants then filed additional motions to enlarge time, specifically requesting leave to file cross-motions for summary judgment.  The trial court noted that such motions were unnecessary, but granted them regardless, and then granted the Defendants’ motions for summary judgment finding that they had complied with the State’s record access law, and that litigation immunity applied with respect to the protective order.  The court did conclude, however, that the board chair violated Plaintiff’s rights to free speech at the meeting when Plaintiff was not permitted to continue discussing his concern over the alleged conflict of interest.  But, the Court said, the violation was cured with future open meetings and the opportunity to appeal to the Environmental Division.  

Plaintiff then appealed, first alleging that the trial court erred in granting summary judgment because the Board failed to comply with the state records law by responding to his requests through the clerk, rather than through individual members, and because the Town Zoning Administrator does not qualify as the clerk.  Yet the Plaintiff had already conceded that he was provided with all requested documents. 

The Vermont Supreme Court noted that the statute refers to the “custodian” of a public record—a word not defined in the statute and that the trial court consulted Black’s Law Dictionary to define “custodian” and concluded that the Zoning Administrator fit the definition.  Although the Plaintiff asserted that the statute must be liberally construed to afford disclosure, the Court found the trial court’s approach reasonable and noted that the Plaintiff did not explain how this interpretation hindered or injured him.  With respect to the Plaintiff’s argument that the Board members should have responded directly to him and not through the Zoning Administrator, the Court said such had no basis in law.  

With respect to Plaintiff’s argument that his free-speech rights were violated when he was quieted during an open meeting, the Supreme Court said any violation had been cured by subsequent open meetings, and noted that the Plaintiff did not seek any monetary damages, so the Court found no error. With respect to Plaintiff’s claim that his due process rights were violated because he did not get a fair hearing before the Board on the subdivision application, the Supreme Court noted that the appropriate remedy was an appeal to the Environmental Division, and that since this occurred and the Environmental Division remanded, any violation was cured.  

Pease v. Windsor Development & Review Board, 2011 WL 4634240 (VT. 9/29/2011) 

The opinion can be accessed at:  http://info.libraries.vermont.gov/supct/current/eo2010-286.html
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VT Supreme Court Holds Individual Board Members Need Not Disclose Records Under State Disclosure Law Directly to Plaintiff, but Rather May Comply Through the Zoning Administrator


VT Supreme Court Holds Individual Board Members Need Not Disclose Records Under State Disclosure Law Directly to Plaintiff, but Rather May Comply Through the Zoning Administrator

by Patty Salkin

Plaintiff owns land that abuts a proposed subdivision.  The Development Review Board approved the subdivision application in 2009 and Plaintiff appealed to the Environmental Division.  In connection with the appeal, the Plaintiff made various pro se written requests for public records to the Town’s Zoning Administrator and the individual Board members.  

One of the members responded personally to the Plaintiff by sending the records sought, but indicated that she regularly deleted emails due to volume of email, and emails prior to a specific date had been deleted.  Everyone else on the Board responded through the Zoning Administrator, who sent a letter to Plaintiff stating that some of the records requested were exempt under the State’s Public Records Act, but that all non-exempt records would be provided on a certain date.  Plaintiff did not show up at the Town Offices to retrieve the records on the date indicated by the Zoning Administrator (and the Plaintiff conceded he did not show up).
The Town then filed for a protective order to enjoin the Plaintiff from requesting additional records or contacting Board members other than through counsel, arguing these were nothing more than discovery requests and therefore the Plaintiff’s attorney should be involved in the requests. The Environmental Court granted the protective order in part, noting that so far as the requests were public records requests under State statute, those requests must be addressed in Superior Court.  The Town then filed a motion to remand the Board’s decision back to the Board, which the Environmental Division granted.  

The Plaintiff then appeared at a Town Board meeting and alleged that the engineering firm tasked with evaluating the proposed subdivision had a conflict of interest.  He was told his comments were inappropriate for the meeting due to the pending litigation, and that he should take up his concern up with the Town attorney.  Plaintiff then filed a series of complaints against the Town and the Board.  One complaint sought the same records originally requested under the State records law, the second was to enjoin the Town from taking any action to intimidate him from exercising his right to petition the Town for a redress of grievances (arguing that the Town was retaliating against him by seeking a protective order); and third, sought an injunction against the Town. His complaint against the Board sought an order to compel production, alleging that the Zoning Administrator’s participation in deliberations waived the public records exception and violated the Municipal Administrative Procedures Act’s prohibition on ex parte communication when the Board allowed the Zoning Administrator to participate in the Board’s deliberative sessions as its clerk.  

Plaintiff issued discovery requests to both the Town and the Board that contained requests to admit which Defendants did not respond to in a timely manner, which prompted the Plaintiff to file a motion for summary judgment, alleging that that since the Defendants had not replied, they therefore admitted the facts as alleged in the requests to admit and that he was therefore entitled to summary judgment.  The Defendants, however, said that they were not aware of the requests to admit because Plaintiff buried them in the document that they did not read carefully enough.  The Town and the Board then requested an extension to respond to the discovery requests and file their own motions for summary judgment. 

At a status conference, the Plaintiff was provided with a copy of all remaining public records and the Board and Town told the court that they had responded to the request in full.  After the Court said that the Plaintiff was entitled to that representation in writing, the Defendants sent two letters to Plaintiff so stating.  The court later granted the Defendants’ motions to enlarge time, and after responding to the requests, they filed cross motions for summary judgment.   

The Plaintiff objected to the Defendants’ cross-motions, asserting that the grant of the motion to enlarge time didn’t include permission to file cross-motions.  Defendants then filed additional motions to enlarge time, specifically requesting leave to file cross-motions for summary judgment.  The trial court noted that such motions were unnecessary, but granted them regardless, and then granted the Defendants’ motions for summary judgment finding that they had complied with the State’s record access law, and that litigation immunity applied with respect to the protective order.  The court did conclude, however, that the board chair violated Plaintiff’s rights to free speech at the meeting when Plaintiff was not permitted to continue discussing his concern over the alleged conflict of interest.  But, the Court said, the violation was cured with future open meetings and the opportunity to appeal to the Environmental Division.  

Plaintiff then appealed, first alleging that the trial court erred in granting summary judgment because the Board failed to comply with the state records law by responding to his requests through the clerk, rather than through individual members, and because the Town Zoning Administrator does not qualify as the clerk.  Yet the Plaintiff had already conceded that he was provided with all requested documents. 

The Vermont Supreme Court noted that the statute refers to the “custodian” of a public record—a word not defined in the statute and that the trial court consulted Black’s Law Dictionary to define “custodian” and concluded that the Zoning Administrator fit the definition.  Although the Plaintiff asserted that the statute must be liberally construed to afford disclosure, the Court found the trial court’s approach reasonable and noted that the Plaintiff did not explain how this interpretation hindered or injured him.  With respect to the Plaintiff’s argument that the Board members should have responded directly to him and not through the Zoning Administrator, the Court said such had no basis in law.  

With respect to Plaintiff’s argument that his free-speech rights were violated when he was quieted during an open meeting, the Supreme Court said any violation had been cured by subsequent open meetings, and noted that the Plaintiff did not seek any monetary damages, so the Court found no error. With respect to Plaintiff’s claim that his due process rights were violated because he did not get a fair hearing before the Board on the subdivision application, the Supreme Court noted that the appropriate remedy was an appeal to the Environmental Division, and that since this occurred and the Environmental Division remanded, any violation was cured.  

Pease v. Windsor Development & Review Board, 2011 WL 4634240 (VT. 9/29/2011) 

The opinion can be accessed at:  http://info.libraries.vermont.gov/supct/current/eo2010-286.html
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Contamination Valuation: Oral Arguments heard before the Wisconsin Supreme Court

Contamination Valuation: Oral Arguments heard before the Wisconsin Supreme Court

November 3, 2011 · 0 comments

in Articles on Eminent Domain

Dan Biersdorf presented oral arguments before the Wisconsin Supreme Court on November 1st, 2011 regarding the determination of contamination value in 260 N 12th Street, LLC and Basil Ryan Jr., vs. Dep’t of Transp., No. 2009AP001557 (Wis. filed 2010)

Our firm initially became involved with this case in March 2008 after Ryan’s initial attorney withdrew from the case. Given the complexity of his issues, he was advised to hire an attorney with extensive eminent domain experience and was referred to our firm shortly thereafter. Given our past experience handling valuation contamination cases, (Dealers Manufacturing Co. vs. County of Anoka, No. C9-99-1869 (Minn., 2000) and several favorable interim rulings in two New York cases) we agreed to represent Ryan.

Upon initial review of the case documents, we discovered a significant valuation issue associated with the subject property caused by a claim of environmental contamination. This claim had an impact upon the damage assessment made by the DOT in excess of $600,000.

One of the key issues in this case is the admission of contamination and remediation evidence in Chapter 32 condemnation cases. I’d like to address two key issues on this matter:

  1. Should contamination and remediation evidence be admitted in Chapter 32 condemnation cases where: just compensation remedies must be liberally construed in favor of the property owner; there exists separate statutory frameworks (both federal and state) to address contamination and remediation costs; and there are due process concerns and the danger of a double taking where the State reduces the amount of just compensation by contamination remediation estimates while it still can assess penalties for remediation under other regulations?
  2. Should speculative evidence of the impaired value of the property be admitted into evidence in a condemnation case where Respondent relied on estimates that had no basis of fact?

The attached brief details our stance on the issues above and others. With the intention of keeping this article brief (no pun intended), I’ll merely address a few arguments.

Regarding #1 above, if contamination/remediation evidence is allowed (especially in this case where no rebuttal contamination/remediation evidence was allowed), then the property owner is assessed with all the costs without any due process to determine whether the property owner was the responsible party. The property owner is penalized (in this case $645,000) without any determination or due process as to responsibility. In addition (the double dip) the property owner loses the ability to recover the loss in value which the State can still do because it can collect remediation costs. That is the definition of violation of due process.

Additionally, since the cleanup costs being deducted against the fair market value for the subject property were created only because of the public improvement being built by the WisDOT, the determination of just compensation for Ryan had been wrongfully diminished in violation of his rights under W.S.§32.09z95)(b). In order to comply with this statute, the costs associated with contamination remediation must not be considered in determining just compensation in this case.

Regarding #2 above, admitting contamination and remediation costs into this case would be especially egregious where the appraiser has ignored USPAP methodology, typical market norms, and failed to provide a nexus between the remediation costs and the value reductions. The WisDOT’s cost discount is entirely speculative, and we believe their appraisal report, or at least any reference to the Site Conditions adjustment, must be excluded. At trial, the WisDOT’s appraiser acknowledged that he did not use the impaired value analysis prescribed in the USPAP Advisory Opinion 9 (AO-9) or by the Appraisal Institute.

For those interested in reading more, we’ve included our Supreme Court brief. We’ll provide an update once a decision has been made.

http://www.condemnation-law.com/blog/articles-eminent-domain/2379/contamination-valuation-oral-arguments-heard-before-the-wisconsin-supreme-court/

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November 02, 2011

New Takings Article Answers the Question - Are Raisins Property for Purposes of a Takings Claim?

New Takings Article Answers the Question - Are Raisins Property for Purposes of a Takings Claim?

Posted: 02 Nov 2011 06:54 AM PDT

Check out the recently published article by Robert Thomas on regulatory takings law, "Recent Developments in Regulatory Takings Law:  What Counts as “Property," 34 Zoning & Planning Law Report 1 (Thomson West 2011).  You can read the entire article on the author's blog, Inverse Condemnation.  The article takes an interesting look at unique takings claims around the country, such as whether a court-appointed attorney’s services is property for purposes of a takings claim in South Carolina  (spoiler alert: it is) or whether a set-aside requirement for raisin producers is an unconstitutional takings in California  (it is not).
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RECENT DEVELOPMENTS IN REGULATORY

RECENT DEVELOPMENTS IN REGULATORY

TAKINGS LAW: http://www.inversecondemnation.com/files/41048522appvd.pdf

WHAT COUNTS AS “PROPERTY?”.............................1

I. Introduction.................................................................... 1

II. Court-Appointed Attorney’s Service Is Property for

Purposes of the Takings Clause........................................... 1

III. No Right to Own Property Free of Regulation................. 3

IV. Substantial Decrease in Value is a Regulatory

Taking … Under the State Constitution.............................. 6

V. Conclusion..................................................................... 8

OF RELATED INTEREST............................................10

RECENT CASES........................................................10

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inversecondemnation

inversecondemnation

 

New Article: What Counts As "Property" In Regulatory Takings Law?

Posted: 02 Nov 2011 12:58 AM PDT

ZPLR_11_2011Here's an article I recently published in the Zoning and Planning Law Report, Recent Developments in Regulatory Takings Law: What Counts as "Property?", 34 Zoning & Planning Law Report (Thomson | West 2011).

If you subscribe to ZPLR, look for it in the mail (and if you don't, you should).

If you are not a subscriber (and again, you really should not be, it is one of the better ways, along with Gideon Kanner's Just Compensation, to keep up with the latest goings-on), the good people at West provide this freebie, as authors are allowed to post their own articles on their web site. So here you go.

Thomas, Recent Developments in Regulatory Takings Law: What Counts as "Property?" 34 Zoning & Planning Law ...  



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Podcast: Sackett v. EPA - SCOTUS Preview: Immediate Judicial Review, Or Death By A Thousand Days?

Posted: 02 Nov 2011 12:57 AM PDT

Yesterday, I gave an informal presentation to the Natural Resources Section of the Hawaii State Bar Association about the case currently pending in the U.S. Supreme Court regarding the ability of property owners to challenge a determination by the U.S. Environmental Protection Agency that their property contained "wetlands" under the Clean Water Act, Sackett v. United States, No. 10-1062 (cert. granted June 28, 2011).

We videotaped the session, and (if tech cooperates) we will post the video. But in the meantime, stream the audio below, or download the 45mb mp3 here:

Here are the links to the briefs that have been filed in the case (so far):

§ Petitioner's Brief

§ Amici briefs supporting Petitioner (except the States' brief)

§ The amici brief filed by several states, including Hawaii, in support of the property owners.

§ Here are the cert stage briefs.

Here's the Court's docket report. We will post the Respondent's Brief when it becomes available, and any amicus brief filed supporting the Respondent. Below are links with more video and information about the case:

§ Pacific Legal Foundation (my colleagues who represent the property owners) resource page.

§ Video of a recent congressional hearing. 

§ NPR's story, with photos and audio.



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Epstein On Kelo's Rational Basis Test: "You think two plus two equals five, and I don't know how to add."

Posted: 01 Nov 2011 10:56 AM PDT

Whenever a judge turns to rational-basis analysis, he's basically saying, 'You think two plus two equals five, and I don't know how to add.' -

Professor Richard Epstein, at an interesting debate sponsored earlier this evening by the Columbia Law School Federalist Society. Professor Epstein and Chief Judge Alex Kozinski (9th Cir.) debated the merits of Kelo v. City of New London (2005). Professor Epstein attacked Kelo and Chief Judge Kozinski defended the decision.

Via Above the Law and Dwight Merriam.



 

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November 01, 2011

KS Supreme Court Finds Board’s Annexation and Rezoning of Land From Agricultural Use to Industrial Use Arbitrary and Capricious

New post on LAW OF THE LAND


 


KS Supreme Court Finds Board’s Annexation and Rezoning of Land From Agricultural Use to Industrial Use Arbitrary and Capricious

by Patty Salkin

In early 2008, the owners of 155 acres of land on Douglas County petitioned the City requesting the voluntary annexation of the land, as well as a rezoning of the property from agricultural to industrial use, in order to create an industrial park.  City Planning Staff raised concerns with the annexation proposal, based on the fact that utility service did not reach that area and the fact that environmental requirements such as a watershed plan remained undeveloped.  Despite the strong urging of staff, and despite the fact that the developer could not provide a more specific description of the proposed use of the property beyond the general “industrial” characterization it envisioned, the Board voted to annex the property, holding that the annexation and development would not “hinder or prevent proper growth and development of the area,” but would instead provide much-needed industrial space and create jobs and tax revenue for the city.  Individual homeowners residing in parcels adjacent to the property in question opposed the annexation and appealed, but the district court upheld the Board’s decision.  The homeowners appealed. 

The Board’s failure to evaluate the potential impacts of changing the acreage to industrial use was the Court’s principal reason for finding the annexation decision was arbitrary and capricious, and that it lacked sufficient basis in evidence provided on the record.  The Court noted that the annexation decision was inconsistent with the city’s previous formal planning policy statements and recommendations contained in its growth management plan.  Further, the Court agreed with plaintiffs that the developer’s request to change the property use to “industrial” could allow development in a broad range of areas, since the City maintained several industrial zoning types, each more permissive than the last.  The most permissive, a general industrial district zone, would allow many activities “commonly recognized a s nuisance[s],” including explosive storage, blasting operations, and ready-mix cement operations.  The court agreed with plaintiffs that converting what had previously been considered “prime farmland” to such heavy industrial use would almost certainly impact neighbors, and concluded that the Board had failed to consider those and other potentially incompatible uses.  Such a failure showed that the Board could not possibly have had a sound basis from which to conclude that the annexation and zoning changes would not “hinder or prevent proper growth and development” of the existing area.  Therefore, the Board’s finding was merely conclusory and unsupported by the record, making it “inherently arbitrary and capricious.”  Thus, the court held that “where the developer of land in an island annexation cannot specify the intended uses of the land but provides only a category of potential uses, the Board must examine those potential uses – or at least the most deleterious uses—and determine whether those potentially deleterious uses would ‘hinder or prevent the proper growth and development of the area.’”  Since the Board failed to do so in this case, the state Supreme Court reversed the district court’s decision and remanded the case for further proceedings. 

Baggett et al. v. Board of County Commissioners of Douglas County, Kansas, 2011 WL 4505571 (Kan. 9/30/2011) 

The opinion can be accessed at: http://www.kscourts.org/cases-and-opinions/opinions/CtApp/2011/20110930/104441.pdf

Patty Salkin | November 1, 2011 at 1:13 am | Categories: Annexation, Current Caselaw, Rezoning | URL: http://wp.me/p64kE-1ui

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Another Good Decision From The Court Of Federal Claims

inversecondemnation

 

Another Good Decision From The Court Of Federal Claims

Posted: 01 Nov 2011 03:01 AM PDT

This has been a pretty good week for my St. Louis colleague Thor Hearne.

First, he obtained summary judgment in the Court of Federal Claims for the property owners in a rails-to-trails case, Dana R. Hodges Trust v. United States, No. 09-289 L (Oct. 25, 2011). Next, his Cardinals come back from the edge to take the World Series. And now comes Rogers v. United States, No. 07-273L (Oct. 31, 2011), another good decision for property owners from the CFC. 

Rogers involves the appraisal standard applied in a partial takings case. As Thor writes:

The case involves a partial taking of an easement. Under the National Trails Act the federal government converted an abandoned railroad easement into a public recreational trail. Under Florida law the owner of the fee estate had the right to exclusive and unencumbered use and possession of their land. But, the federal law – and the Surface Transportation Board's order – destroyed and effectively eliminated the landowner’s state-law right to their land.

Today's decision involved the appropriate appraisal standard to value the property interest that the government had taken. The landowners and the DOJ both agreed on the before and after method.  [The parties] also – originally – had agreed that the "before-taken" condition of the property was as an unencumbered fee parcel and the "after-taken" condition was the same parcel now encumbered with an easement for public recreation and "railbanking" allowing the STB possibility to authorize a new railroad across the land in the future. 

But, literally at trial the DOJ changed their position. They argued everyone – including the DOJ themselves – had gotten it wrong. The DOJ argued the land needed to be reappraised using a new "before-taken" condition. Under the DOJ’s new "before-taken" condition the land was to be appraised assuming the property was still encumbered by the railroad right-of-way easement. This, the DOJ argued, means the government needed to only pay for the "nominal" or "incremental" cost of putting a public trail across an existing railroad easement.

Judge Williams entirely rejected the DOJ’s argument. Judge Williams called the DOJ’s arguments "wholly inappropriate," "misguided" and a "red herring."  By making this argument, the DOJ delayed resolution of this case more than 14 months and caused the taxpayer’s interest liability to increase by more than an additional $1.4 Million.

Read the entire opinion below.

Rogers v. United States, No 07-273L (Oct. 31, 2011)  



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October 31, 2011

Fed. Dist. Court Dismisses Most of RLUIPA Claims by Church of Scientology but Allows Substantial Burden and First Amendment Claims to Proceed

 

 

New post on LAW OF THE LAND


 


Fed. Dist. Court Dismisses Most of RLUIPA Claims by Church of Scientology but Allows Substantial Burden and First Amendment Claims to Proceed

by Patty Salkin

The Church of Scientology of Georgia, Inc. (herein after the Church, Plaintiff) sued the City of Sandy Springs (herein after the City), alleging that the City had violated the Church's statutory rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA). The Church bought a 32,053 square foot building that was zoned in an Office and Institutional district. The Church sought to rezone the building  to convert the 11,863 square foot basement/garage in accordance with the Church of Scientology doctrine that the Church required a building that was at least 40,000 square feet. However, doing so would eliminate 30 parking spaces. The City's relevant parking ordinance provides that parking requirements be calculated based on the proportion that each use contributes to the tota l. Because the Church focuses more on individualized study rather than congregational gatherings, the City used a multi-use formula rather than the formula typically used for churches to determine how many parking spaces were needed. Based on the multi-use formula, the City determined the conversion of the basement/garage would leave the Church with inadequate parking and denied the Church's application for expansion though the application for rezoning was approved. The Church later filed suit, and both parties moved for summary judgment. 

The Church alleged that the City's denial of their proposed conversion substantially burdened its religious exercise in violation of RLUIPA because it encroached on its use of the building in accordance with Scientology scripture. However, the Court stated that not being able to operate a church on the scale desired is not a substantial burden.  A government may regulate the number of parking spaces required for a church facility or restrict the size of assemblies or institutions, and as long as such restrictions are unrelated to the religious characterization of the property, RLUIPA is not implicated. Moreover, where a religious organization fails to show that its property carries religious significance, the inability to relocate a religious facility is not a substantial burden under RLUIPA. 

Here, the Church does not assert that the City's actions have coerced or forced it into foregoing practicing the religious precepts of Scientology. The Church also failed to assert that the subject property had any religious significance. The court found that the Church did not suffer a substantial burden. However, the Court did find that the City's application of the parking ordinance was based on consideration of the Church's individual case. Thus, the court denied summary judgment on that issue. 

Plaintiff's remaining RLUIPA claims under the equal terms provision of RLUIPA § (b) alleged several instances where is believed that the City treated other similarly situated religious organizations more favorably with regards to the parking ordinance.  The Court noted, however, that RLUIPA’s equal terms provision does not require all religious entities be treated similarly. Summary judgment on this issue is granted to the City.                                                                     

Under RLUIPA’s nondiscrimination provision, the Church claimed the City has engaged in "religious gerrymandering" and selective enforcement of its parking requirements. The Court held that the Church failed to show that the parking ordinance separates permissible from impermissible assemblies or institutions in a way that burdens "almost only" religious uses. The court found no evidence of religious gerrymandering, even noting that the ordinance was passed before the Church purchased the property.  Though the court found no religious gerrymandering, they  noted that the Church has introduced evidence of a similarly situated comparator that may have received more favorable treatment than the Church at the hands of the City. Accordingly, summary judgment was denied on this claim. 

In determining whether the City acted with a  discriminatory purpose, the court noted that all zoning laws inherently create some level of selection and categorization. However, the court found that the City did not intentionally discriminate against the Church on the basis of religion, as a matter of law. The Court pointed out that the City found the conversion may have been recommended for approval if the Church had applied for a variance or could demonstrate that the on-site parking was sufficient. 

In regards to the Church's freedom of speech claim, the court denied the City's motion for summary judgment finding genuine issues of material fact about whether the City substantially burdened the Church's religious exercise by effectively barring its use of the property for its particular form of religious  expression and assembly. 

The Church also alleged an unconstitutional taking under the Fifth Amendment. However, the Court notes that this claim was not ripe as it is currently pending in state court. 

Finally, the Church also alleged that the City violated their substantive due process rights under the Georgia State Constitution. The court found that the Church failed to show that the City's application of the multi-use parking standard was arbitrary and capricious, noting that the City's interpretation and application of the parking ordinance was a reasonable exercise of its zoning authority. 

Church of Scientology of Georgia, Inc. v. City of Sandy Springs, Ga.,  2011 WL 4793144 (N.D. Ga. 9/30/2011)


 

Patty Salkin | October 31, 2011 at 1:12 am | Categories: Current Caselaw, Due Process, RLUIPA, Takings | URL: http://wp.me/p64kE-1uo

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Calculated Risk

 

Visible Existing Home Inventory continues to decline year-over-year in October

Posted: 30 Oct 2011 06:27 AM PDT

I've been using inventory numbers from HousingTracker / DeptofNumbers to track changes in inventory. Tom Lawler mentioned this back in June (Tom also discussed how the NAR estimates existing home inventory - they don't aggregate data from local boards!)

• In a few months, the NAR is expect to release revisions for their existing home sales and inventory numbers for the last few years. The sales revisions will be down (the NAR has pre-announced this), and the inventory is expected to be revised down too.

• Using the deptofnumbers.com for monthly inventory (54 metro areas), it appears inventory will be back to late 2005 / early 2006 levels this month. Unfortunately the deptofnumbers only started tracking inventory in April 2006.

NAR vs. HousingTracker.net Existing Home Inventory
Click on graph for larger image.

This graph shows the NAR estimate of existing home inventory through September (left axis) and the HousingTracker data for the 54 metro areas through October. The HousingTracker data shows a steeper decline in inventory over the last few years (as mentioned above, the NAR will probably revise down their inventory estimates in a few months).

HousingTracker.net YoY Home InventoryThe second graph shows the year-over-year change in inventory for both the NAR and HousingTracker.

HousingTracker reported that the October listings - for the 54 metro areas - declined 16.4% from last year. Inventory was down 16.7% year-over-year in September.

This is just "visible inventory" (inventory listed for sales). There is a large percentage of distressed inventory, and various categories of "shadow inventory" too.

Yesterday:
Summary for Week ending Oct 28th
Schedule for Week of Oct 30th





Unofficial Problem Bank list increases to 985 Institutions

Posted: 29 Oct 2011 06:23 PM PDT

Note: this is an unofficial list of Problem Banks compiled only from public sources.

Here is the unofficial problem bank list for Oct 28, 2011. (table is sortable by assets, state, etc.)

Changes and comments from surferdude808:

The OCC finally released some information on its actions since September 23rd. This week, also, the FDIC released its actions through September. These releases contributed to many changes to the Unofficial Problem Bank List. In all, there were seven removals and 16 additions, which leaves the list with 985 institutions with assets of $406.6 billion. A year-ago, the list had 894 institutions with assets of $410.7 billion. For the month, there were 18 additions and 19 removals with 11 from failure, seven from action termination, and one unassisted merger. It was the fourth consecutive month for the list to have fewer institutions since its month-end peak of 1,001 in June, but the serial monthly decline was only a single institution.

Among the seven removals this week is the failed All American Bank, Des Plaines, IL ($38 million). Other removals were from action termination including Marathon National Bank of New York, Astoria, NY ($818 million); West Pointe Bank, Oshkosh, WI ($371 million); Ojai Community Bank, Ojai, CA ($125 million Ticker: OJCB); Parkway Bank, Rogers, AR ($116 million); Regal Financial Bank, Seattle, WA ($101 million); and First National Bank and Trust, Barron, WI ($44 million).

Among the 16 additions are United Central Bank, Garland, TX ($2.6 billion); Falcon International Bank, Laredo, TX ($841 million); Valley Community Bank, Pleasanton, CA ($196 million Ticker: VCBC); and Americas United Bank, Glendale, CA ($106 million Ticker: AUNB). It looks like the OCC issued its first formal action against a thrift on September 15 to Stephens Federal Bank, Toccoa, GA ($196 million).

Other changes include the FDIC issuing Prompt Corrective Action orders against Fidelity Bank, Dearborn, MI ($867 million Ticker: DEAR); and Heartland Bank, Leawood, KS ($129 million Ticker: MBR).

Earlier:
Summary for Week ending Oct 28th
Schedule for Week of Oct 30th





Lawler to Census on Housing Data: "Splainin" Needed Not Just on Vacancy Rate

Posted: 29 Oct 2011 01:31 PM PDT

This is a very long article from economist Tom Lawler. The introduction is below. Here is the entire article in word format (typos and all).

In looking at the “disparities” between recent Census 2010 housing data and other Census “housing” reports, many folks have focused the most on differences in the Census 2010 vacancy rates and the Housing Vacancy Survey vacancy rates, and the possible implications of these disparities on measuring the “excess” supply of housing. Indeed, Census officials, reacting to numerous stories on this issue (thank CR for this), agreed that they had “some splainin’” to do, and said that they are “actively investigating” the differences in Census 2010, ACS 2010, and HVS 2010 vacant housing unit estimates, and plan to report the results of this research at the 2012 Federal Committee on Statistical Methodological Research Conference this coming January.

In looking at the advance program for that conference, the session devoted to this topic is labeled “Evaluation of Gross Vacancy Rates from the Decennial Census Versus Current Surveys.”

Census officials have been “mum,” however, about other “honkingly big” differences between Census 2010 and both the CPS/HVS and the CPS/ASEC, including big differences in household growth by age group, and sizable differences in homeownership rates by age group. There has also been no discussion about the growth in the housing stock as measured by Census 2010 and Census 2000 compared to other Census estimates of total housing production, and how the apparent “net loss” in the housing stock related to various factors (demolitions, disasters, conversions, etc.) last decade was MASSIVELY lower than that implied by the biennial “Component of Inventory Change” (CINCH) report using American Housing Survey Data (all aspects of which are inconsistent both with decennial Census data and ACS data).

Officials have also not said much if anything about how some of these disparities are not new, but in fact have been evident as far back as at least 2000. Stated another way, the “measurement” issues are not just a “point in time,” issue, but there are time series issues as well, which make macroeconomic “analysis” of the housing market [difficult].

CR comment: The entire article is here and a must read for anyone using Census data to analyze the housing market. Hopefully we will have better data to work with in the future!

Earlier:
Summary for Week ending Oct 28th
Schedule for Week of Oct 30th





 

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Tuesday State Bar Session On Sackett v. EPA

Posted: 31 Oct 2011 12:01 AM PDT

A reminder: on Tuesday, November 1, 2011, from noon to 1:00 p.m., I'll be making a presentation to the Natural Resources Section of the Hawaii State Bar Association about the case currently pending in the U.S. Supreme Court about the ability of property owners to challenge a jurisdictional determination by the U.S. Environmental Protection Agency, Sackett v. EPA, No. 10-1062 (cert. granted June 28, 2011).

The venue is the HSBA conference room, located on the 10th floor of Alakea Corporate Tower, 1100 Alakea Street. We'll talk about the case, the arguments of the parties and amici (the State of Hawaii joined an amici brief in support of the property owners), and what the Court might do.

We may also discuss other pending cases of interest, if there's time. Please join us and bring your questions. Non-members are welcomed to join on a space available basis.

Also, for those who are not able to be there, we will be videotaping the session, and if the quality of the recording is acceptable, we will post it on the blog.



The Eminent Domain One-Percenter

Posted: 30 Oct 2011 12:26 PM PDT

gilmartinWe're not all that down with the "occupy movement." It seems too unfocused, too anti-competition, too anti-success for us to get on board with the idea that equality of result is what the American dream and our system are based on.

But things like this profile of MaryAnne Gilmartin, executive vice president of commercial and residential development at Forest City Ratner Companies in this month's Westchester magazine, make us want to go down to Zuccotti Park and set up a tent.

An "innovative and tenacious builder" who has "left her mark" on the New York skyline, "she’s helping to shape Atlantic Yards, a complex of residential and commercial buildings that will also be the new home of the New Jersey Nets."

The profile details how she got her start, interning and then working for the New York City Economic Development Corporation for seven years before sliding over to Forest City, where her first grand project was the New York Times building, which like Atlantic Yards needed the government's power of eminent domain to make it happen. Are you starting to see the pattern? 

"In my business, you need to be comfortable with chaos, with staring at the Rubik’s cube and figuring out how all the pieces should come together." Of course, in New York City almost no development takes place on a blank slate, especially things when someone is trying to "leave their mark," so much of the Cube-twisting effort is put into acquiring the eminent domain "piece" to compel property owners to give up their their homes and businesses by government force when the free market cannot. Learn how the game is played while at the "public" agency, then move to the other side (and we use the term "other side" loosely) and work the system by capturing the government's power of eminent domain. The New York courts, after all, won't stop you. See Rosenthal & Rosenthal, Inc. v. New York State Urban Dev. Corp., 771 F.2d 44 (2d Cir. 1985) ("However, the condemnation of appellants' building to make way for the redevelopment [for the New York Times] of the blighted area is a classic example of a taking for a public use or purpose within the law of eminent domain. It makes no difference that the property will be transferred to private developers, for the power of eminent domain is merely the means to the end.").

The profile also deals with the Atlantic Yards controversy, which to the courts looked no different than Times Square, and ended up much the same way for the property owners, and the profile gives equal time to the project's opponents:

Then why all the fuss? Atlantic Yards has been the subject of several lawsuits and numerous protests. A journalist, Norman Oder, maintains a blog, atlanticyardsreport.com, that chronicles Forest City Ratner’s every move on the project. Another blog run by the anti-Yards group Develop Don’t Destroy Brooklyn (dddb.net) is highly critical. There’s even a movie, Battle for Brooklyn, about locals taking a stand. "The issue for many of these people is the way that some of the land was assembled through eminent domain," Gilmartin says. "Some other people think it will make the area’s population too dense. And others don’t want a stadium in their backyard. I won’t speak in detail for the opposition."

The opposition can speak for itself. "Forest City’s successes are inextricably related to the acquisition of public subsidies," Norman Oder says. "Their successes are also related to major spending on lobbying, and substantial political and charitable contributions, as well as hardball tactics." Oder also points out how initial grand promises for the Yard have been scaled back (architect Frank Gehry is no longer involved) and how many of the promised union construction jobs didn’t pan out. He cries foul on slick money-saving moves he feels Ratner made, such as convincing authorities to condemn certain land parcels in stages rather than at once.

...

Gilmartin admits she won’t be buying a ticket to Battle for Brooklyn anytime soon. "It’s always a little dicey to do what I do so close to home," she says.

While the opponents and property owners may cry foul, the law currently allows those with influence and experience to work the system that way, and at least for the time being, neither the New York Court of Appeals nor the U.S. Supreme Court gives a hoot. If those folks down in the park and occupying the other public spaces across the country want to start getting real, this seems as good a place as any. 



 

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October 28, 2011

inversecondemnation

inversecondemnation

 

Yosemite Seminar Summary - Regulatory Takings: Looking Back And Looking Forward

Posted: 28 Oct 2011 12:13 AM PDT

IMG_6999

"Yosemite," according to California Place Names, Erwin Gudde's seminal work on the origins of (surprise) California place names, means "they are killers." It was "[e]vidently a name given to the Indians of the valley by those outside it.

I raise this historical tidbit because I must admit to feeling a little like "those outside it" when I was invited to speak about regulatory takings at the California State Bar's Environmental Law Conference at Yosemite. I figured as a conference devoted to environmental law, it was a going to be a decidedly skeptical audience, given my advocacy for property owners and property rights. I accepted the invitation nonetheless, heartened that this conference wasn't going to be an echo chamber and that they were at least open to hearing competing ideas.

It turns out that my prediction about "they are killers" was not accurate -- the audience, while not exactly sympathetic to my viewpoints, was was certainly open and friendly and welcoming while I spoke about "Regulatory Takings: Looking Back and Looking Forward" with U.C. Berkeley law professor Joseph Sax and Deputy California Attorney General Daniel L. Siegel. We focused on seminal regulatory takings cases from the recent past, and each made predictions of what might be next. "The panelists, who have been involved in several of the most significant takings cases since even before the founding of the annual Yosemite Environmental Law Conference twenty years ago, will highlight key decisions, offer their views on the evolution of takings law, and discuss cutting-edge issues raised by more recent court decisions."

Sidebar: if you were not able to attend, the audio recording is now available for purchase for a very modest price ($34 gets you the two CD set and the written materials, and includes the 1.5 hours of MCLE credit) from Versa Tape. Go here to order (if that link does not work, go here and enter "11ELC-15AB" in the search box). I've posted some short sound bytes of each presentation to give you a flavor of the session.

To start us off, Clem Shute provided us with a quick history of regulatory takings law over the last 40-plus years since Penn Central. He also moderated the panel discussion. Listen to his introduction here:

I was up next. I focused on five takings issues that I predict will be important to watch: (1) the definition of "property" (including the judicial takings question); (2) how courts define "regulatory taking," and whether those cases holding that a government action is not a taking simply because the government is not purporting to exercise its eminent domain power will survive close scrutiny; (3) the growing body of state court decisions on takings under state constitutions; (4) what to do with the Penn Central three-part standard now that the Court has reaffirmed is as the default test; and (5) will the Court abandon or modify the Williamson County ripeness test, as four Justices suggested in the San Remo Hotel case?

IMG_6365

What it looked like from where I sat.

I also mentioned one "non takings" issue that is worth watching: whether substantive due process will become more important now that the Supreme Court has removed the "substantially advance" test from takings analysis, and moved it over to due process (more detail on this issue here). In this area, Justice Kennedy is the one to watch, as his concurring opinions in Kelo and Lingle both telegraph his notion that on questions of the legitimacy of government actions that impact property, the due process clause is more critical than the takings clause. Links to all of the cases I discussed and that are referenced in my written materials are posted here.

Next, Dan Siegel noted the sharp decline in the number of regulatory takings/inverse condemnation cases heard by the Supreme Court since the mid-1980's.

IMG_6360

Dan Siegel (Deputy California Attorney General)

Dan also noted areas he believes are still unresolved: (1) whether the nexus and rough proportionality standards of Nollan and Dolan are limited to exactions of real property, an issue the subject of a pending cert petititon; (2) whether water use restrictions are analyzed as physical or regulatory takings (see the Casitas decision from the Federal Circuit for an example of a court treating it as a physical take); (3) Williamson County's future; (4) is there such a thing as a "judicial taking;" and (5) the parcel-as-a-whole question. On whether these issues are open, I agree wholeheartedly with Dan; our differences are on how the Court should resolve them.

Professor Sax ended the session by providing his scholarly view. He rightly suggested that the law of regulatory takings has largely escaped clear doctrinal development. Thus, it appears that decisions in which the Court has found a taking are driven more by the apparent unfairness of the situation than by the application of clear or consistent rules. See, e.g., the government's repeated rejections of development proposals while informing the property owner that it might approve its application if only it returned with a more modest proposal in the Del Monte Dunes case.

IMG_6364

Professor Joseph Sax sums it all up.

Professor Sax concluded that the Court will be reluctant in the next few years to take up cases in order to articulate "large general principles or major doctrinal theories of property," but that if a situation appears to involve "serious over-reaching by regulators (especially land use regulators)," the Court will step in. He also agreed with Dan and I that the judicial takings issue is an open question, as are issues involving the boundary between public and private property at the shoreline. Of course, this being Professor Sax, the public trust issue and the question of what are "background principles" of state property law were never far from our minds.

In sum, it was an enjoyable and informative session (as was the remainder of the presentations at the Conference).I appreciate the invitation to speak, as well as the warm welcome I received.

PICT0002

The written materials were not distributed on paper, but
on a USB drive. With a faux wood casing, no less. Very green.
There was a lot of quality swag at the conference: backpacks,
water bottles,
flashlights, and more post-its and pens
than you could possibly take.

IMG_6595

This photo has nothing to do with the conference, except that we
passed by this sign on the drive out of the mountains via the National
Park. Call it "bad marketing," since I am not going anywhere near
any body of water labeled "Mosquito Creek."



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Cal App: City May Enter Rental Property To Make Inspections

Posted: 27 Oct 2011 01:41 PM PDT

The City of Hayward, California, was concerned that residential rentals within its borders were "decent, safe, and sanitary," and by ordinance required the owners or tenants of such units to allow city officials to inspect them. If an owner or tenant refused, the "Enforcement Official" was authorized to procure an "inspection warrant" and levy a monetary fine on the property owner.

An association of rental owners sought a writ of mandate, challenging the ordinance because it violated the Fourth Amendment, among other reasons. The trial court granted the writ and held the ordinance facially invalid because it compels a property owner to provide access to a tenant's residence without tenant consent, and violates the substantive due process rights of the property owners because it levies a monetary penalty on a property owner even when the tenant is the one refusing to allow inspection.The court enjoined enforcement of the ordinance.

The city then amended it to require the owner to make a "good faith effort to obtain the consent of the tenant" for an inspection, and asked to discharge the writ (welcome to California practice) because the amendment addressed the court's problems. Although it overruled most of the property owners' objections, the court agreed that the requirements that a property owner in good faith seek the tenant's permission and be present at the inspection made the property owner an "involuntary agent" of the government, and that the fines made an owner responsible for the inaction of a tenant.

The Court of Appeal reversed. In Rental Housing Owners Ass'n of Southern Alameda County, Inc. v. City of Hayward, No. A128168 (Sep. 30, 2011) (published Oct. 25, 2011), the court concluded that the city's ordinance is not facially invalid. The court held that property owners were not forced to be agents of the government, since under California law an agency relationship is created only with mutual assent, and the "good faith" requirement did not result in any kind of agreement between the owners and the government. Slip op. at 9-10.

Nor did the good faith requirement violate the Fourth Amendment. Property owners do not have standing to assert a tenant's rights against unreasonable searches and seizures, and in any event, the ordinance does not allow the city to enter a residence without either consent or a warrant. The court also rejected the contention that the ordinance conflicted with the landlord-tenant code, a state law establishing the conditions under which a property owner may enter leased premises to inspect and repair. The court concluded that the ordinance only set the terms by which the city inspector could enter a residence, and does not affect a landlord's.Slip op. at 10-11.

Finally, the court rejected the substantive due process argument. The property owners asserted that the fine provision lacked a "conditional nexus between a recalcitrant tenant's non-cooperation and a consequential monetary sanction against the owner." Slip op. at 13.  Because the ordinance does not contemplate fining an owner for a tenant's refusal to allow inspection in every case ("or even in a vast majority of cases"), a facial challenge could not be sustained. Slip op. at 13. In other words, because there may be some circumstances where the owner could not be fined, or there may be situations where the city may not choose to impose it, the ordinance was not facially invalid. The court did not mention the possibility that the fine provisions could be challenged "as applied" to a particular circumstance in a future case, although it did not mention that.

Rental Housing Owners Ass'n of Southern Alameda County, Inc. v. City of Hayward, No. A128168 (Sep. 30, 2011...  



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October 27, 2011

NH Supreme Court Upholds Denial of Subdivision Application Finding No Due Process Violation and a Sufficient Record to Support the Board’s Decision

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NH Supreme Court Upholds Denial of Subdivision Application Finding No Due Process Violation and a Sufficient Record to Support the Board’s Decision

by Patty Salkin

Limited Editions Properties proposed building a subdivision on a 112.5-acre parcel it owned which would have required construction of a 2,600-foot road at a 10% grade for at least 1,600 to 1,700 feet, including a sharp “switchback” with a 150-goot curve radius.  The road would have also required the installation of three substantial retaining walls, topped with metal fences, all uphill from Hebron Bay.  Before seeking the appropriate state and federal permits to construct the project, Limited Editions approached the Hebron Planning Board for preliminary conditional approval of the project’s “overall concept.”  

The Board declined to engage in a “bifurcated” process of providing a preliminary approval, then reviewing the project after state and federal permits were obtained, deciding instead to either conditionally approve or deny the application.  Public hearings were held, then the Board entered into a discussion about the proposal and raised a number of issues members had with the project, including aesthetics, safety concerns, and environmental concerns related to potential erosion and damage to Hebron Bay, particularly during construction of the roadway.  For those reasons, Board members voted 3-2 to deny the application.  The developer appealed to the superior court, which upheld the Board’s decision, and this appeal followed.

Petitioner charged that the board had failed to provide a record for meaningful review; that the Board had denied it a full and fair opportunity to be heard; that the trail court erred in concluding that a preliminary conditional approval would preclude the Board from subsequent review of the project; and that the trial court had erred in finding that the Board acted reasonably in denying the application.  The court rejected the contention that the trail court had rendered a legal ruling regarding the Board’s ability to reconsider the application later in the process if it provided a conditional approval.  Rather, the appellate court held that the trial court was simply articulating the Board’s concerns and not actually making any kind of legal decision regarding the conditional approval ability.  Thus, the appellate court dispensed with that contention, and engaged each of the petitioner’s questions in turn, ultimately upholding the trial court’s and the Board’s decisions.

On the question of the record, plaintiffs charged that the Board did not have an adequate record that would enable it to approve or deny the application, based on the standard set in Motorsports Holdings v. Town of Tamworth, 160 N.H. 95 (2010).  However, the court noted that Motorsports involved a planning board decision which gave insufficient written information on the reasons for denying the application; this was distinguishable from the present case because the Hebron Board had given at least three concrete reasons for denying the permit – aesthetics, safety, and environmental concerns.  Further, the Board had raised these concerns in a deliberative session and described those same reasons in its decision to deny the application.  For those reasons, the court held that the Board acted with a suffic ient and adequate record, and that it gave proper reasons for its decision to deny the application.

On the matter of whether the developer was afforded a full and fair hearing, the trial court had found that the board had not prevented the petitioner from introducing information to refute its concerns; that the petitioner could have sought the federal and state permits without coming to the Board for preliminary conditional approval; and that the board considered the possibility of a conditional approval based on the information provided by the developer.  The appellate court upheld these findings, noting that the petitioner had ample opportunity to present the Board with additional information to address its concerns and that the Board was within its rights to refuse to engage in a bifurcated review that would have required providing approval before and after the petitioner obtained federal and state permits.  For these reasons, the appellate court held that petitioner was afforded a full and fair hearing prior to the Board’s decision to deny its application.

 Finally, the court upheld the trial court’s finding that the Board had acted reasonably with regard to consideration of the application.  The Board’s findings were supported by evidence in the record, such as the environmental impact report, which urged the need for oversight during construction to prevent environmental harms, and the evidence that the extraordinary length of the steeply-pitched road presented potential dangers, such as the risk that emergency personnel could not access the property in times of inclement weather.  Further, the Board was unconvinced by some of the evidence, which did not fully address its concerns and which ultimately led to its decision not to approve.  The court held that because the Board had considered the evidence available and determined the evidence did not address its articul ated concerns, which were also supported by the record, it had engaged in a reasonable deliberative process and had not denied the application arbitrarily or capriciously.  Therefore, the trial court did not err in upholding the Board’s decision as reasonable. 

 Limited Edition Properties, Inc. v. Town of Hebron, 2011 WL 4398544 (N.H. 9/22/2011)

The opinion can be accessed at: http://www.courts.state.nh.us/supreme/opinions/2011/2011101limited.pdf

Patty Salkin | October 27, 2011 at 1:42 am | Categories: Current Caselaw, Due Process, Subdivision   

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October 26, 2011

Idaho Supreme Court Holds That County May Approve Two Rezonings in a Single Application and Did Not Constitute Illegal Contract Zoning

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Idaho Supreme Court Holds That County May Approve Two Rezonings in a Single Application and Did Not Constitute Illegal Contract Zoning

by Patty Salkin

Various landowners (hereinafter “appellants”) appeal from an order granting summary judgment for respondents Kootenai County Board of County Commissioners, Coeur D’Alene Paving, Inc., and Beacon West, LLC (hereinafter “the BOCC,” “CDA,” and “BW,” respectively, collectively “Respondents”), which held that the Kootenai County Board of County Commissioners (hereinafter “the BOCC”) had authority to rezone two parcels of property based on a single rezone application. 

 CDA leased several parcels of real property, located in Kootenai County (hereinafter “the County”), from BW, thirty acres of which were used for rock crushing and open pit mining (hereinafter “Open Pit Lots”) at the time of their rezone application.  CDA maintained an interest in two undeveloped parcels located south of the Open Pit Lots, which were initially zoned for agricultural activity (hereinafter “Agricultural Lots”).  The Agricultural Lots and the Open Pit Lots are contiguous parcels.  They also had an interest in two other parcels, which are located southwest of the Agricultural Lots and were initially zoned for mining activity (hereinafter “Mining Lots”).  All four additional parcels were identified as Rural Residential land in the County Comprehensive Plan.  In early 2008, CDA submitted one rezone application to the County, requesting that the Agricultural Lots be rezoned for mining and that the Mining Lots be rezoned for agriculture.  Because rezoning in this way would create one contiguous parcel, mining activity on the Agricultural Lots would have direct access to the highway through the Open Pit lots.  Therefore, CDA argued, the change would decrease traffic and disturbances as well as affect fewer residential neighbors.  The application was approved, and the BOCC approved Ordinance No. 417, which amended the zoning map to reflect the changes and repealed conflicting provisions.

 Appellants, who own property in the vicinity of the zoning changes, sought a declaratory judgment that the zone change was invalid.  On appeal, the parties disagreed over (1) whether appellants had standing, (2) whether the BOCC had the authority to rezone the parcels based on a single zoning application, (3) whether the consideration and subsequent approval of two changes under one notice and hearing procedure violated appellants’ due process rights, and (4) whether the approval constituted an illegal zoning contract, impermissibly limiting the BOCC’s legislative discretion. 

 The Court held that Ciznek had sufficiently alleged interference with the use and enjoyment of her property and economic harm to establish standing.  She, as an owner of property adjacent to the new mining rezone, claimed that the changes would increase dust, noise, and traffic and diminish the value of her property.  Respondents argued that a favorable judgment would not remedy these harms.  Because Ciznek alleged heath risks and economic harm as a result of the rezone, not as a result of the existing activities on the Open Pit Lots, the Court found that a ruling that the rezone was invalid would likely prevent these disturbances.  The Court found that the BOCC’s grant of two rezones in a single application to be lawful.  Specifically, it was lawful because the BOCC had the authority to do so without violating appellants’ due process rights, and because the decision did not constitute an illegal zoning contract or deprive the BOCC itself of its legislative authority. 

Appellants argued that the plain language of the Idaho Code (§§ 67-6502, 67-6511, 67-6522) prohibited the BOCC from granting two rezones in one application, consequently invalidating the changes.  The Court found that the provisions authorized the governing board to “combine related permits” where “practical and convenient for the applicants.”  This language, in conjunction with the concepts of “practicality, common sense, and fundamental fairness,” which were expressly delineated in the statutes, led the Court to find that the BOCC maintained the authority to grant two rezones in a single application.  As to appellants’ due process claims, the Court emphasized that a zoning authority must only “substantial[ly] compl[y]” with the applicable zoning ordiance and show no prejudice to demonstrate that due process rights were not violated.  Because appellants did not allege improper notice, failure to maintain records, or failure to make written findings of fact, they provided no basis for a finding that they were denied due process. 

Appellants then argued that in combining the rezone requests, the BOCC “pre-agreed to change the zoning” of the land, creating an illegal contract to zone.  The Court found no evidence of an oral or written agreement suggesting that the BOCC promised to rezone the parcels before conducting the proper procedure.  As a result of this contract to zone, appellants contend, the BOCC was deprived of legislative powers.  That is, the BOCC impermissibly limited its range of options under the law because the application was submitted on the assumption that it had to be approved or denied in full.  The Court stated that this argument loses any merit because it had already determined no illegal zoning contract existed.  The Court affirmed summary judgment in favor of respondents. 

Ciznek et al. v. Kootenai County Board of Commissioners et al., 2011 WL 2040837, (Idaho 5/26/2011)

The opinion can be accessed at: http://www.isc.idaho.gov/opinions/Ciszek%2037562.pdf

Patty Salkin | October 26, 2011 at 11:20 am | Categories: Contract Zoning, Current Caselaw, Due Process, Rezoning | URL: http://wp.me/p64kE-1u5

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October 25, 2011

VT Supreme Court Strictly Construes Deemed Approve Language Reiterating its Intent Was to Remedy Indecision

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VT Supreme Court Strictly Construes Deemed Approve Language Reiterating its Intent Was to Remedy Indecision

by Patty Salkin

Applicants’ request to subdivide their property was denied by the zoning administrator for failure to comply with side and rear yard setbacks and minimum lot width requirements.  The zoning board of adjustment held a hearing on Nov. 9, 2009 and after emerging from an executive session voted to deny the application’s request. One board member was tasked with writing the decision and the zoning administrator was instructed to inform the applicants of the board’s decision. The zoning administrator claimed he left a message about the outcome of the vote on Smith’s cell phone voicemail and Smith denies receiving it.  The board member tasked with drafting the decision did so on Jan. 11, 2010 and after review by board members, they signed it on Jan. 15, 2011, 67 days after the board hear ing had adjourned.  The applicants then received a written copy of the decision and appealed to the environmental court asserting that the variance should be deemed approved due to the board’s failure to timely notify them of the decision as required under state and local law. The Environmental Court granted summary judgment to the Town, ruling that even if the Town failed to notify the applicants of its decision prior to Jan. 15, 2010, a deemed approved remedy was not warranted as a matter of law.

The Supreme Court noted that Section 4464(b)(1) of Title 24 of V.S.A. provides that a panel reviewing land development application must issue a decision within 45 days after the adjournment of the hearing and that failure to issue a decision within that time period shall deem the application approved on the 46th day. The next sentence in the statute requires that decision be made in writing and the statute further requires that the decisions be sent by certified mail within the 45-day time period. The Town ordinance has essentially the same language.  The applicant points out that neither the statute nor the ordinance provide for notification by phone.  The Supreme Court noted that the Environmental Court’s finding that the Board made its decision on Nov. 9, 2009 was undisputed.

The appeal boiled down to whether the applicants were entitled to deemed approval of their application where the board made a decision on or before the statutory deadline but did not notify them of the decision or provide them with a written decision within 45 days. The Court noted that prior precedent regarding the remedy of deemed approval statutory language is to remedy indecision and protracted deliberations on the part of zoning boards.  Since the board here made its decision within the required time period, the Court said it would follow prior precedent and strictly construe the deemed approval remedy to apply only when the decision was not made within the prescribed time period. Therefore, the decision of the Environmental Court was affirmed.

 In re Appeal of Morrill House LLC and Smith Variance, 2011 WL 4634242 (VT 9/30/2011)

The opinion can be accessed at: http://info.libraries.vermont.gov/supct/current/eo2010-376.html

Patty Salkin | October 25, 2011 at 1:19 am | Categories: Current Caselaw, Notice of Decision, Procedural Issues, Variances | URL: http://wp.me/p64kE-1u2

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October 24, 2011

Calculated Risk

Calculated Risk