Property rights advocates suffered a second setback when the U.S. Supreme Court declined to hear a takings case from Florida.
A man and his mother had purchased 40 acres, including 32 acres of swampland, in 1973 and began attempting to develop a housing tract and marina in 1980. They received state and U.S. Army Corps of Engineers permits in the early 1980s, but one state agency asked Monroe County to reconsider the project. The landowners sued and won, and the county again granted approvals in 1989. In the meantime, however, the original Corps of Engineers dredge-and-fill permit expired. The Corps refused to issue a new permit because of concerns about the Lower Keys marsh rabbit and the silver rice rat, both of which had been listed as endangered species since the corps issued the first permit.
The landowners sued for damages, arguing that they had been deprived of all economically viable uses of their property. But the 11th U.S. Circuit Court of Appeals ruled that the property owner had no "reasonable, investment-backed expectations of developing his land" because the Corps of Engineers had long considered environmental factors when reviewing permit applications. Thus, the landowner was not entitled to payment for a government taking.
The landowners' attorneys argued that "consideration of investment-backed expectations plays no role in per se takings" and that the 11th Circuit misread Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), a landmark takings case that required compensation when regulations prohibit "all economically beneficial use of the land."
The case is Good v. United States, 99-881.
When two companies contribute to groundwater pollution, one company cannot avoid cleanup costs by arguing that the other company would have spent money on the cleanup anyway, the U.S. Ninth Circuit Court of Appeals has ruled. The decision came in an Oregon case interpreting the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), better known as the Superfund law.
To let one company avoid cleanup costs "would encourage parties to avoid investigating and cleaning up con...
Parcels delineated in pre-1893 subdivisions do not exist as separate lots unless there has been a transfer of title at some point, the Second District Court of Appeal has ruled.
In addressing the status of antiquated subdivisions, the court ruled squarely in favor of local governments that have fought to prevent legal recognition of "paper subdivisions" created prior to laws regulating the subdivision of land. In answering an unresolved issue of state subdivision law, the court said that the ti...
A City of Los Angeles home occupation permit fee has survived a legal challenge from the Howard Jarvis Taxpayers Association. The Second District Court of Appeal ruled that the Jarvis lawsuit was filed too late, that the organization failed to follow administrative procedures for refunds and that a later repeal of the fee made claims for injunctive and declaratory relief moot.
The court said a lawsuit challenging such fees must be brought within 90 days of their enactment so municipalities can have fi...
The U.S. Ninth Circuit Court of Appeals has ordered preparation of an environmental study on an already-completed freeway interchange in Washington state. On a 2-1 ruling, the three-judge panel said that the project was not exempt under the National Environmental Policy Act.
"While we decline to order the interchange torn down, we direct the district court to order the requisite environmental review …" the court concluded.
In 1985, the City of DuPont, between Seattle and Tacoma, identified t...
The U.S. Supreme Court has declined to review a takings case involving a San Francisco housing law, but Associate Justice Antonin Scalia issued a scathing dissent in which he equated San Francisco's law with extortion and questioned a state appellate court's willingness to follow "takings" precedents.
Ten years ago, San Francisco rejected the application of Claude and Micheline Lambert, who asked to convert 24 units of their Cornell Hotel from residential to tourist use. San Francisco's hotel c...
The U.S. Supreme Court let stand another 11th U.S. Circuit Court of Appeals ruling, thus one striking down a zoning ordinance aimed at adult businesses. The 11th Circuit said the City of Jacksonville, Florida, impinged on businesses' free speech by requiring so-called lingerie shops — actually nightclubs with nude dancers — to get a special exemption before they could open in any but two locations in the city.
The 11th Circuit said Jacksonville's zoning law gave city officials too much discreti...
A garbage company does not have legal standing to file a lawsuit regarding the environmental review of a competing company's landfill plans, the Third District Court of Appeal has ruled.
The three-judge panel unanimously voted to dismiss a suit filed by Waste Management of Alameda County. Waste Management argued that Alameda County should have required environmental impact report before allowing Browning-Ferris Industries to accept "designated wastes" because the county required Waste Manageme...
The Department of Fish & Game's flat fees for reviewing documents under the California Environmental Quality Act do not constitute taxes even though the fees do not reflect the exact cost of the CEQA review in every case, the Third District Court of Appeal has ruled.
In rejecting a Shasta County landowner's argument to the contrary, the Third District reaffirmed a longstanding principle of "takings" law that property-rights advocates have unsuccessfully sought to overturn: the courts should no...
Claims that Sacramento County violated the California Environmental Quality Act while approving a commercial development have been dismissed by the Third District Court of Appeal because the project opponent did not submit a written request for a hearing within 90 days of filing a lawsuit.
The attorney for opponent Forster-Gill, Inc., argued that a telephone call to the court clerk within the 90-day period was adequate, but the appellate court disagreed, ruling that the law "plainly contemplates a written request that can be, and is, filed with the court."
A state appellate court has upheld the California Coastal Commission's denial of a development permit for a small mixed-use project in Morro Bay.
The court rejected developer Dan Reddell's arguments that the commission violated his due process and equal protection rights, and that its decision was a regulatory taking of property. Instead, the Second District Court of Appeal ruled that substantial evidence supported the commission's finding that Reddell's project was inconsistent with Morro Bay's local coastal plan (LCP).
A state appellate court has thrown out an Inyo County general plan amendment that the county argued was nothing more than a clarification of a longstanding policy.
A unanimous three-judge panel of the Fourth District Court of Appeal, Division Two, concluded that the amendment was more than a mere clarification and that the county should have completed an environmental impact report before approving the amendment.
A City of West Hollywood moratorium on new multi-family housing development has been declared invalid by the Second District Court of Appeal. The court ruled that the city had not made required findings for the moratorium.