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coexist_orig Flickr Photo SharingIn Harbor Missionary Church Corp. v. City of San Bueanaventura, 642 Fed. App. 726 (9th Cir., 2016), plaintiff had a church ministry serving the homeless. Defendant told Plaintiff it needed a conditional use permit (CUP) and, when it applied for the same, denied it. Plaintiff then brought a suit under the Religious Land Use and Institutionalized Persons Act (RLUIPA), requesting a preliminary injunction to keep its ministry available pending appeal. The trial court denied the injunction, finding the church suffered no substantial burden under RLUIPA because it could move its ministry elsewhere and that the denial of the CUP was the least restrictive means of meeting the City’s concerns.

A memorandum opinion in Neighbors for Fair Notice v. City of Seattle, 2016 WL 2754536 (9th Cir., 2016) disposed of a case in which Plaintiffs complained that Defendant City did not provide them with personal notice in approving a lot boundary line adjustment, contending that Washington’s Land Use Petition Act (LUPA) provided them with a protected property interest in the City’s proceedings in which a minimum lot size of 5000 square feet for single family homes could not be changed without those proceedings.  The trial court dismissed the case finding no cognizable property interest under the circumstances.  The trial court said that “only those rules and understandings that support legitimate claims of entitlement give rise to protected property interests” require notice and found that LUPA did not create such an interest so as to require notice.

The Ninth Circuit found the dismissal proper and affirmed.  Because there was a discretionary decision and no vested right created under state law, the decision appears to be correct from a due process point of view.  The due process clause of the Fourteenth Amendment protects “life, liberty and property” interests; thus, a plaintiff must show the existence of such an interest.  Because Plaintiffs could not show the existence of such an interest, there was no constitutional claim to pursue.

Neighbors for Fair Notice v. City of Seattle, 2016 WL 2754536 (9th Cir., 2016).

Yuma1Avenue 6E Investments, LLC v. City of Yuma, 2016 WL 1169080 (9th Cir.), involved the denial of a rezoning, notwithstanding the recommendation of approval by both the professional planning staff and the City’s Planning and Zoning Commission. Plaintiff developers brought these proceedings under both the Equal Protection Clause and the federal Fair Housing Act (FHA), alleging the denial was both intentional and also disproportionally deprived Hispanic residents of housing opportunities and perpetuated segregation. The subject denial was the first in three years and 76 rezoning applications.

iStock_000070594267_LargeHorne v. Department of Agriculture, No. 14-275 (June 22, 2015) was an "as applied" takings challenge to an almost 80-year old law that was enacted by Congress as part of President Franklin Roosevelt's New Deal. The Agricultural Marketing Agreement Act of 1937 established a marketing system for certain products. Under the Act, Defendant U.S. Department of Agriculture required raisin growers to set aside a percentage of their crop, as determined by the Raisin Administrative Committee (RAC), whose members consist of growers and others in the raisin business and are appointed by the Secretary of Agriculture. The required “set aside” has the effect of raising raisin prices and allowing the RAC to market and otherwise dispose of the set aside raisins. There are, at times, sufficient receipts from the set aside raisins to exceed their market value; however, there are also at other times insufficient revenues to equal their market value, including the year at issue.

In its January 12, 2012 opinion in Bowers v. Whitman, the Ninth Circuit Court of Appeals concluded that the State of Oregon (and Jackson County) did not violate Plaintiffs' property rights under the takings, due process, and equal protection clauses of the United States Constitution when the State modified the remedies available under Ballot Measure 37 through the enactment of Ballot Measure 49 (now codified as ORS 195.300 to 195.336). The Court held that any potential property interest the Plaintiffs had for compensation or for a specific type of land use based on their Measure 37 waivers had not vested, and therefore was not protected by the Fifth and Fourteenth Amendments.

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