Supreme Court will review Williamson County decision requiring exhaustion of state remedies before bringing a takings claim in federal court

/ Takings

The Supreme Court has taken certiorari in a case that will decide whether to affirm or overrule the holding of Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), which held that a property owner must exhaust state remedies before bringing a takings claim in federal court. Because proceedings in state court can be appealed to the Supreme Court, that rule means that the only way to get federal court review of a state takings claim is by getting the Court to accept review on a state supreme court decision, thereby precluding federal input into most takings claims against the states. The vehicle for reviewing Williamson County isKnick v. Township of Scott, 862 F.3d 310 (3d Cir. 2017), which involved a local law that allowed public officials to enter private property to determine whether a cemetery exists and that required all cemeteries to be open to […]

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New Orleans owners prevail on a takings claim against the US Army Corps of Engineers for taking their property without just compensation by the negligent design of a navigational channel

/ Takings

This is an older case now but worthy of being noted. The U.S. Court of Federal Claims held that the U.S. Army Corps of Engineers effected a taking of property without just compensation when it designed and maintained a navigational channel known as the Mississippi River Gulf Outlet (MRGO) in a manner that significantly increased storm surge and flooding on owners’ properties during Hurricane Katrina. St Bernard Parish Gov’t v. United States, 121 Fed Cl 687 (2015).

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Courts debate whether short term rentals (like Airnbnb) violate restrictive covenants limiting property to “residential uses”

/ Condominiums and Homeowners Associations, Real Estate Transactions, Servitudes

Some courts hold that short term rentals (such as Airbnb rentals) violate covenants that restrict the property to “residential use,” finding short-terms rentals to be closer to hotel use and thus commercial in nature. Vonderhaar v. Lakeside Place Homeowners Ass’n, 2014 WL 3887913 (Ky. Ct. App. 2014) Other courts find short term rentals to be compatible with “residential use” and not a violation of such restrictive covenants at all. Wilkinson v. Chiwawa Communities Ass’n, 327 P.3d 614 (Wash. 2014); Santa Monica Beach Property Owners Ass’n v. Acord, 219 So.3d 111 (Fla. Dist. Ct. App. 2017)

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An easement granted by a tenant ends when the tenancy terminates

/ Easements, Leaseholds

In Bedard v. City of Boise City, 403 P.3d 632 (Idaho 2017), the court recognized that a tenant who is empowered to grant an easement of access to property has no power to make that easement last beyond the term of the tenant’s rights in the property. Once the tenancy terminates, so does the easement. The tenant has no possessory rights once the tenancy terminates and you can only convey what you own.

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Vested right to keep a garage built on the basis of an erroneously granted special permit

/ Zoning

In Board of Supervisors of Richmond County v. Rhoads, 803 S.E.2d 329 (Va. 2017), the Virginia Supreme Court ruled that an owner who built a garage that violated the zoning law could maintain that use even though the permit was erroneously granted because the owner had invested in reasonable reliance on the permit grant.

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Hawaii Supreme Court recognizes property right to clean air

/ Due Process, Environmental Law, Nuisance

The Supreme Court of Hawaii ruled in In re Maui Elec. Co., 2017 Haw. LEXIS 284 (2017) (for majority opinion click here; for dissenting opinion click here) that the state constitution confers a property right to a clean and healty environment sufficient and that the Sierra Club has standing to bring a lawsuit challenging the granting of a power plant permit to a coal-fired plant because its emissions will contribute to air pollution and arguably violated standards contained in the federal Clean Air Act. Because the claim is based on state law and heard in state court, federal court prudential and constitutional limitiations in standing, such as led to similar claims being thrown out of federal court in cases like Kivalina, does not apply to the state court proceedings. The Hawaii Constitution guarantees each person “the right to a clean and healthful environment, as defined by laws relating to environmental quality.” Haw.

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Oregon Appeals Court affirms application of state public accommodations law to cake shop that refused to sell a wedding cake to a same-sex couple

/ Antidiscrimination Law, Consumer Protection, Sexual Orientation, Trespass

In Klein v. Or. Bureau of Labor & Indus., 2017 Ore.App. LEXIS 1598 (2017), the Court of Appeals of Oregon affirmed an administrative finding that Sweetcakes by Melissa violated the state public accommodations law when it refused to sell a wedding cake to a same-sex couple. The case is similar to the Masterpiece Cakeshop case currently being considered by the US Supreme Court because the cake shop based its claim on the first amendment’s protection of free speech (as well as a claim of religious freedom).  The owner gave religious reasons for denying service, quoting Leviticus and calling the customers “an abomination.” The court rejected the owner’s argument that the refusal to serve was “on account of” the owner’s religious convictions rather than on account of sexual orientation. It also rejected the argument that the refusal to serve was based on the “conduct” of getting married rather than the “status” of sexual

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Dog breeding as commercial use that violates covenant limiting property to residential purposes

/ Servitudes

The Massachusetts Land Court held that an owner who housed, bred, and sold dogs on his property (and obtained a commercial license to do so up to 12 dogs) violated a restrictive covenant limiting the property to residential use. Clish v. Paradise, 2017 Mass. LCR LEXIS 5, 2017 WL 72055, 25 LCR 13 (Mass. Land Ct. 2017). 

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Supreme Court denies certiorari in inclusionary zoning case

/ Takings, Zoning

As it has in the past, the Supreme Court has refused to review a state court opinion that upheld a local ordinance that required housing developers to pay a fee to be used for the development of affordable housing.  616 Croft Ave. LLC v. City of W. Hollywood, 207 Cal. Rptr.3d 729 (Ct. App. 2016), cert. denied, 2017 WL 1064331 (Oct. 30, 2017). The lower court opinion relied on an earlier ruling by the California Supreme Court that also upheld such ordinances and found them not to be takings of property without just compensation.  Cal. Bldg. Indus. Ass’n v. City of San Jose, 351 P.3d 974 (Cal. 2015). Cf., Common Sense Alliance v. Growth Mgmt. Hearings Bd., 2015 WL 4730204 (Wash. Ct. App. 2015) (general “legislative” regulations that apply to classes of property or development, rather than individualized permit conditions, are not subject to the Nollan/Dolan nexus requirements). These rulings have generally not applied the restrictive

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Option to purchase property valid if exercised within the USRAP 30 year period

/ Real Estate Transactions, Servitudes, Title Issues

The Massachusetts Land Court has held that a commercial option to purchase property may be exercised nine years after the right to exercise the option ripened (because of failure to fulfill a condition by a set date). Pinewood Road, Inc. v. Kuntz, 2017 WL 361172 (Mass. Land Ct. 2017). The court noted the traditional rule that an option to purchase real property “that does not supply a time limit for it exercise must be acted on within a reasonable period of time.” This modern rule softens the strict rule against perpetuities which traditionally invalidated options that had no time limit as executive interests that could vest too far into the future. Massachusetts adopted the Uniform Statutory Rule Against Perpetuities which requires an option to be exercised within 30 years, but since this option was created after the effective date of the statute, the option was valid and could be exercised.

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