Land Use And Takings Cases Discussed At The HSBA Real Property Session
By Robert Thomas
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<blockquote>The week before last, the <a href="http://www.rpfss.org/index.html" target="_self">Hawaii State Bar Association's Real Property and Financial Services Section</a> held a session on recent developments in land use law of interest to local dirt lawyers.</blockquote>
<blockquote>We were not able to attend (we were teaching a <a href="http://www.inversecondemnation.com/inversecondemnation/2010/11/materials-and-links-from-integrating-water-law-and-land-use-planning-seminar.html" target="_self">seminar on water law</a>), but our Damon Key colleagues <a href="http://www.hawaiioceanlaw.com/" target="_self">Mark Murakami</a>, <a href="http://www.hawaiilawyer.com/index.php/attorneys/gregory_w._kugle_director/" target="_self">Greg Kugle</a> (who Chairs the Section), and <a href="http://www.hawaiilawyer.com/index.php/attorneys/kenneth_r._kupchak_director/" target="_self">Ken Kupchak</a> were able to go, and reported that the following decisions were discussed and debated:</blockquote>
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<li><em><a href="http://www.inversecondemnation.com/hawaiiappellate/2009/07/save-diamond-head-waters-llc-v-hans-hedemann-surf-inc.html">Save Diamond Head Waters LLC v. Hans Hedemann Surf, Inc.</a></em>, No. 27804 (July 13, 2009), a case on nonconforming uses that we detailed in <a href="http://www.inversecondemnation.com/inversecondemnation/2009/07/hawsct-no-valid-change-in-nonconforming-use-when-no-proof-of-prior-use.html" target="_self">this post</a>.</li>
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<li><a href="http://www.inversecondemnation.com/files/27707.pdf" target="_self"><em>County of Hawaii v. Ala Loop Homeowners</em></a>, No. 27707 (July 9, 2010). In that case, the Hawaii Supreme Court concluded that state zoning statutes are "environmental laws" as defined in the Hawaii Constitution, and therefore a private right of action exists. We suggested that the opinion "has fundamentally rewritten Hawaii land use law" in <a href="http://www.inversecondemnation.com/inversecondemnation/2010/07/hawsct-finds-zoning-statutes-are-environmental-laws-and-creates-a-private-right-of-action-to-enforce.html" target="_self">this post</a> and <a href="http://www.inversecondemnation.com/inversecondemnation/2010/08/state-zoning-statutes-as-environmental-laws-more-on-hawscts-ala-loop-decision.html" target="_self">this post</a>.</li>
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<li><em><a href="http://www.inversecondemnation.com/files/ica28175.pdf">Maunalua Bay Beach Ohana 28 v. State of Hawaii</a></em>, 122 Haw. 34, 222 P.3d 441 (Haw. Ct. App. 2009). This is the "accretion" case in which the Hawaii Intermediate Court of Appeals affirmed a trial court's decision that a statute in which the legislature redefined beachfront accretion as public property was, at least in part, a regulatory taking. The ICA, however, also concluded that the statute did not take what it called "future accretion," or the accreted land that did not exist when the statute was enacted. The Hawaii Supreme Court and the U.S. Supreme Court both denied review. We filed amicus briefs urging both courts to review the "future accretion" holding, since the right to accretion is presently existed and vesting, and is a property interest protected from <em>ipse dixit</em> acquisition by the State. Here's our U.S. Supreme Court <a href="http://www.inversecondemnation.com/inversecondemnation/2010/10/amicus-brief-in-in-hawaii-beach-takings-case-is-the-right-to-accretion-a-property-interest.html" target="_self">amicus brief</a> which spells out the argument in more detail. More on the case <a href="http://www.inversecondemnation.com/inversecondemnation/2010/11/cert-denied-in-hawaii-beach-taking-case.html" target="_self">here</a>.</li>
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<li><em><a href="http://www.inversecondemnation.com/files/009809170.pdf">County of Hawaii v. C & J Coupe Family Ltd. P'ship</a></em>, No. 29887 (Nov. 10, 2010). The decision in which the Hawaii Supreme Court concluded that a condemnation was not "a pretext for a primarily private benefit." Disclosure: we represent the property owner in that case. More <a href="http://www.inversecondemnation.com/inversecondemnation/2010/11/hawaii-supreme-court-no-per-se-rule-.html" target="_self">here</a>.</li>
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<li><em><a href="http://www.inversecondemnation.com/files/090387.pdf">Severance v. Patterson</a></em>, No. 09-0378 (Texas, Nov. 5, 2010). The Texas Supreme Court concluded that the public's beachfront easement does not "roll" with the vegetation line. After a storm pushed the vegetation line landward, the State claimed that the public easement over the beach seaward of the vegetaton line also moved. No dice held the Texas Supreme Court, as we noted <a href="http://www.inversecondemnation.com/inversecondemnation/2010/11/texas-publics-beachfront-easement-does-not-roll-with-the-vegetation-line.html" target="_self">here</a>.</li>
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<li><em><a href="http://www.inversecondemnation.com/files/a909longbranchvliu.pdf">City of Long Branch v. Liu</a></em>, No. A-9-09 (N.J., Sep. 21, 2010). In that case, the New Jersey Supreme Court concluded that a beachfront property owner was not entitled to compensation for the city's taking of his property -- a beach created by the city's beach replenishment program -- because the replenished beach was a common law "avulsion" and therefore belonged to the public. We discussed the opinion in <a href="http://www.inversecondemnation.com/inversecondemnation/2010/09/jersey-shore-belongs-to-the-public-not-private-owners.html" target="_self">this post</a>.</li>
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