Real Estate & Property Law

Materials From 2/20/2009 Land Use Seminar

By Robert Thomas (inversecondemnation.com)

Here are the links to the cases that I spoke about in my session in today's seminar "Supreme Court, Regulatory Takings and Eminent Domain Update. Not all of the cases we discussed today are included below, so if you would like a link or more information about a case that we discussed but that is not listed, please email me at rht@hawaiilawyer.com and I will send it to you.

• County of Hawaii v. C & J Coupe Family Limited Partnership, No. 28882 (Dec. 24, 2008) - public use, pretext, and damages for failed taking

The majority opinion by Justice Acoba, joined by Justices Nakayama and Duffy is posted here:

We hold that (1) a landowner in a condemnation action is entitled to damages under HRS § 101-27 where the property at issue is not finally taken in the context of a particular condemnation proceeding, irrespective of whether the government attempts to take the land through subsequent condemnation proceedings; (2) abatement does not apply where the relief sought in two concurrent actions is not the same; and (3) although our courts afford substantial deference to the government's asserted public purpose for a taking in a condemnation proceeding, where there is evidence that the asserted purpose is pretextual, courts should consider a landowner's defense of pretext.  Therefore, (1) automatic denial of statutory damages under HRS §101-27 in Condemnation 1 is vacated and the case remanded for a determination of damages, (2) the court's conclusion that Condemnation 2 was not abated by Condemnation 2 is vacated and the case remanded for a determination of whether the public purpose asserted in Condemnation 2 was pretextual.

Slip op. at 5. Here's the concurring and dissenting opinion by Chief Justice Moon joined by Justice Levinson. The briefs in the case are available here:  Opening Brief, Answering Brief of the County of Hawaii, Reply Brief. Disclosure: we represent the property owner.

• When a project not being built on state or county land meets the definition of "use" of such lands triggering chapter 343 environmental review - Nuuanu Valley Ass'n v. City & County of Honolulu, No. 28599 (Oct. 24, 2008)

• Is destruction of evidence seized from an innocent third party a taking? AmeriSource Corp. v. United States, No. 08-497 (cert. petition filed Oct. 15, 2008)

• Development Moratorium a Taking Under Lucas - Monks v. City of Rancho Palos Verdes, No. B201280 (Cal. Ct. App. Oct. 1, 2008)

• No private right of action to enforce zoning - The Hawaii Intermediate Court of Appeals, in Pono v. Molokai Ranch, Ltd., 119 Haw. 163, 194 P.3d 1126 (2008), held that a private party had no standing to enforce the state's land use laws. The Hawaii Supreme Court rejected certiorari review of the case.  Disclosure: we represent the landowner. More here.

• Charles A. Pratt Constr. Co. v. California Coastal Comm'n (cert petition on Williamson County and Penn Central)

• Aspen Creek Estates, Ltd. v. Town of Brookhaven - New York Court of Appeals  (comprehensive taking plan)

• City of Stockton v. Marina Towers LLC - Cal. Court of Appeal (details required in resolution of necessity)

• Resource Investments, Inc. v. United States - Court of Federal Claims (massive opinion and primer on regulatory takings - erroneous exercise of jurisdiction as a temporary taking)

• Florida regulatory takings cases - Florida Supreme Court and District Courts of Appeals

• Substantive due process in the Ninth Circuit after Lingle - The Ninth Circuit Rediscovers Substantive Due Process in Land Use Cases

Full post as published by inversecondemnation on February 20, 2009 (boomark / email).