This seminar will be extremely valuable to land use attorneys, developers, real estate professionals, planners and local government officials and staff.
The program will range from an overview of basic litigation affecting land use to a detailed analysis of how you can affect the entitlement process to achieve a favorable outcome, including, if necessary, in court.
Today, most litigation centers around three critical aspects which this course will cover.
- Judicial review of development applications for zoning and plan amendments (legislative), for discretionary permits and variances (administrative) and for issuance of permits (ministerial);
- Environmental review of plans, plan amendments and development projects (CEQA and occasionally NEPA, if federal funds are involved); and
- Constitutional litigation involving claims of takings (eminent domain and regulatory takings), due process, equal protection, and First Amendment under Section 1983 litigation.
Finally, the seminar will highlight how to prepare for litigation by making a good record before the approving agency and how to litigate successfully. Knowing enough to get the right help at the right time is a winning litigation strategy.
9:00 a.m. - 9:30 a.m.
I. Opening Remarks
9:30 a.m. - 10:15 a.m.
II. Current Developments In Land Use
Litigation California And National
10:15 a.m. - 10:30 a.m.
10:30 a.m. - 11:15 a.m.
III. Litigation Challenging Project Denial:
Rezoning, Subdivision Maps, CUPs,
Variances And CEQA
A. Pre-Litigation Considerations From The Lead Agency's Perspective
B. Pre-Litigation Considerations From The Disappointed Property Owner's Perspective
C. Choice Of Claims
E. Administrative Record
F. Legislative v. Administrative Determinations
G. Due Process Requirements
H. Statutes Of Limitations
11:15 a.m. - 12:00 p.m.
IV. Section 1983 Litigation
A. Procedural Due Process
B. Substantive Due Process And Equal Protection
C. First Amendment Clauses (Rluipa, Signs And Adult Uses)
D. Exhaustion Of Administrative Remedies (Williamson Requirements)
E. Access To Federal Courts Limited
F. Class Litigation (Olech)
G. Attorney's Fees (§1988)
12:00 p.m. - 1:15 p.m.
Lunch (On Your Own)
1:15 p.m. - 2:00 p.m.
V. Takings Litigation: Physical And Title
A. Loretto Physical Takes (Facial And Per-Se Claims)
B. Exactions And Dedications
C. Nollan Substantial Advancement Of Legislature State Interest
D. Dolan Rough Proportionality
E. Ehrlich Legislative v. Ad Hoc Exactions
F. Del Monte Dunes Only Dedications Or All Exactions
G. Non-Applicability Of 'Entirety Of Property' Rule
2:00 p.m. - 2:45 p.m.
VI. Takings Litigation: Penn Central
A. Administrative Exhaustion, Finality, State Court Litigation, Futility, Res Judicata (San Remo)
C. Meaning Of 'Entirety Of Property'
D. Investment Backed Expectations
E. Total Loss Of Use And Value (Lucas)
F. Partial Loss Of Use And Value (Penn Central)
2:45 p.m. - 3:00 p.m.
3:00 p.m. - 3:45 p.m.
VII. Public Purpose Challenges
A. Failure To Advance Legitimate State Interest (Nollan, Agins, Chevron)
B. Traditional Public Purpose Challenges (Berman, Hawaii Housing)
C. Economic Development v. Blight (Kelo v. City Of New London)
D. Critical Factors (Studies; Age Of Plans; Regulatory Contractual Ownership Controls)
3:45 p.m. - 4:30 p.m.
VIII. Defending Project Approvals: CEQA
And Planning And Zoning Law
A. Pre-Litigation Considerations:
B. Creating The Administrative Record
C. Substantial Evidence
D. Addressing Comments
E. Preparing Findings
F. Filing And Posting Nod
G. To Prepare Or Not To Prepare The Administrative Record
H. Working With The Lead Agency
I. Considerations Regarding Commencement Of Development
J. Venue Issues
K. TRO/Preliminary Injunction
M. Pursuit Of Claims Following Approval Of Project
N. Illegal Exactions (Nollan, Dolan And Recent Cases)
4:30 p.m. - 5:00 p.m.
IX. Questions And Answers With The