Real Estate & Property Law
inversecondemnation 
Devoted to recent developments and commentary on regulatory takings, eminent domain, inverse condemnation, property rights, and Hawaii land use law.
Post Frequency: 1.9/day Last Entry: November 20, 2009 at 03:11:18 Recent Entries: 605
By Robert Thomas
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Thursday's Links
Posted on November 20, 2009Things we were reviewing today: Check out the just-launched Hawaii Civil Procedure blog. It's a welcome addition to the blogroll for Hawaii civil practitioners. My colleague Mark Murakami has set up a resource page for all things about the McDonald...
Links From ABA Condemnation Committee Conference Call (11/18/2009)
Posted on November 18, 2009Another very interesting conference call today, focusing on the upcoming arguments in the Stop the Beach Renourishment case, the New York Court of Appeals' decision in Aspen Creek, and the New Jersey Supreme Court's decision to review Klumpp v. Borough...
Programming Note: Condemnation Committee Conference Call 11/18/2009, 2 pm EST
Posted on November 17, 2009Just a reminder: tomorrow (Wednesday, November 18, 2009), from 2:00 - 3:00 p.m. (Eastern Standard Time), we will be holding the next "recent developments" conference call for members of the Condemnation Law Committee (ABA Section of State & Local Government...
Reply Brief: Must A Property Owner Seek A Change In The Law In Order To Ripen A Takings Claim?
Posted on November 17, 2009Here's the Reply Brief filed last month by the property owner in Leone v. County of Maui, No.29696,an appeal in the Hawaii Intermediate Court of Appeals which is considering, among other issues, the question of when a regulatory takings claim...
New Jersey Supreme Court Will Review The "Bizarre Condemnation"
Posted on November 16, 2009According to this order dated November 19, 2009, the New Jersey Supreme Court has granted the property owners' petition (available here), and will review the unpublished decision by the Appellate Division in Klumpp v. Borough of Avalon, No. A-2963-07 (per...
Final Brief In Maui Councilmember Residency Appeal: What Is "Immediate Forfeiture And Vacancy?"
Posted on November 16, 2009Today, we filed the Reply Brief in DeJetley v. Kahoohalahala, No. 29929, the appeal now pending in the Hawaii Supreme Court regarding the Lanai member of the Maui Council who is alleged to not be a resident of Lanai as...
Opening Brief In Kona Eminent Domain Abuse Case: Pretext, Actual Purposes, And Private Benefit
Posted on November 13, 2009Today, we filed the Opening Brief in the latest phase of County of Hawaii v. C&J Coupe Family Ltd. P'ship, two condemnation cases arising out of the County of Hawaii's attempts to take a Kona family's property. This brief addresses...
Friday Eminent Domain Round-Up
Posted on November 13, 2009Here's what we've been reading today: A Turning Point for Eminent Domain? - The NY Times "Room for Debate" forum posts the thoughts of six property law experts on the meaning of Pfizer's decision to close its research headquarters in...
Beachfront Taking Case (HAWICA) Oral Argument Recording
Posted on November 12, 2009The judiciary web site has posted the recording of the November 10, 2009 Intermediate Court of Appeals oral arguments in Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175 (HAWICA) here (caution, it is a massive 88 MB...
Petitioner's Reply Brief In SCOTUS Beachfront Takings Case
Posted on November 10, 2009The property owners have filed their Reply Brief in Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009), the case about "judicial takings" and the rights of littoral owners to accretion...
Guest Post: Carlos Kelly on What Does The Florida Supreme Court's Ruling in System Components Corp. v. Florida Department of Transportation Mean?
Posted on November 10, 2009In July 2009, the Florida Supreme Court issued an opinion in System Components Corp. v. Florida Dep't of Transportation, No. SC08-1507, which resolved resolved a conflict in the lower Florida courts regarding the application of business damages in a condemnation...
Answering Brief In Maui Councilmember Residency Appeal: What Is "Immediate Forfeiture And Vacancy?"
Posted on November 05, 2009Here's the Answering Brief filed by a Maui Councilmember in the case in which Lanai residents and voters assert he forfeited the Lanai seat on the Maui County Council under section 3-3 of the Maui Charter since he is not...
Upcoming Oral Arguments Of Interest
Posted on November 03, 2009The Hawaii Supreme Court and Intermediate Court of Appeals will be hearing two appeals of note: Tuesday, November 10, 2009, 9:00 a.m. - Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175 (HAWICA). The issue is whether the...
Mark Your Calendars: ABA Condemnation Law Conference Call - November 19, 2009
Posted on November 02, 2009Mark your calendars for Wednesday, November 18, 2009, from 2:00 - 3:00 p.m. (Eastern Standard Time). That's when we will be having the next "recent developments" conference call for members of the Condemnation Law Committee (ABA Section of State &...
Latest On Rumber v. DC
Posted on October 31, 2009On October 16, the U.S. Court of Appeals for the D.C. Circuit heard oral arguments in Rumber v. District of Columbia, No. 09-7035, the appeal challenging an attempt to take a shopping center by the District of Columbia and the...
Latest HAWSCT Decision In "Ceded Lands" Case: Standing? Yes, Ripe? No.
Posted on October 28, 2009Remember the "ceded lands" case? The one where the U.S. Supreme Court held 9-0 that the U.S. had absolute fee simple title to the ceded lands, and that the Apology Resolution was hortatory fluff? See Hawaii v. Office of Hawaiian...
Latest Additions To The Blogroll
Posted on October 28, 2009Here are the latest blogs we've added to our list: California Eminent Domain Report - A fairly new, and very active blog from the Nossaman firm's Eminent Domain and Valuation Group. Section 1983 Blog - A fun blog about our...
Latest Interesting Opinions
Posted on October 27, 2009Here are some recently-released opinions; none so earth-shattering that they merit their own post, but definitely worth reading: People ex rel. Dep't of Transportation v. Acosta, No. C059064 (Cal. Ct. App. Oct. 26, 2009) - In an eminent domain case,....
New Article: Recent Developments in Public Use and Pretext in Eminent Domain
Posted on October 23, 2009Each summer, The Urban Lawyer (the ABA's Section of State and Local Government Law's peer-reviewed law review), devotes an issue to recent developments in various areas of law. A subscription to the journal, which is published each quarter, is among....
More On New Jersey's "Bizarre Condemnation"
Posted on October 22, 2009More about Klumpp v. Borough of Avalon, the decision from New Jersey's Appellate Division which held that the government can assert inverse condemnation in order to take property without compensation. In Avalon stole land, appeal to New Jersey high court...
Media Reports On HAWSCT "Residency" Decision
Posted on October 21, 2009Here are a couple of reports about yesterday's decision by the Hawaii Supreme Court in Dupree v. Hiraga, No. 29646 (Oct. 20, 2009): Kaho?ohalahala not a Lanai resident (The Maui News) Activist is not a Lanai resident, court says (Honolulu...
Solicitor General To Get Face Time In Judicial Takings Case
Posted on October 20, 2009In an order issued yesterday, the U.S. Supreme Court granted the SG's motion for leave to participate in oral argument as amicus curiae and for divided argument in Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection, No...
HAWSCT: "Residency" Requires Physical Presence Plus Intent
Posted on October 20, 2009In an opinion issued today, the Hawaii Supreme Court held that in order to register as a voter, a person must have a fixed habitation in the district in which he is attempting to register, as well as a "physical...
"A Bizarre Condemnation"
Posted on October 19, 2009Remember a while back when we noted that a property owner has asked the New Jersey Supreme Court to review what we called a "Kafkaesque" decision by the Appellate Division which held that the government can assert inverse condemnation in...
U.S. Supreme Court Considering Whether To Review New Case: Is Gov't Grab Of 50% Of Punitive Damage Award A Taking?
Posted on October 18, 2009On Monday, October 19, 2009, the Supreme Court is scheduled to consider whether to review the Alaska Supreme Court's decision in Reust v. Alaska Petroleum Contractors, Inc., 206 P.3d 437 (Alaska, Apr. 10, 2009). The case is listed on SCOTUSblog's...
HAWSCT Oral Aguments Scheduled In Turtle Bay/Kuilima EIS Case: Is A Change In "Context," But Not The Project, Enough To Trigger Supplemental EIS?
Posted on October 17, 2009On Thursday, November 19, 2009 at 11:00 a.m., the Hawaii Supreme Court is scheduled to hear oral arguments in Unite Here! Local 5 v. City and County of Honolulu, the case in which the Intermediate Court of Appeals held that...
Atlantic Yards Oral Argument Media (And Other) Reports
Posted on October 15, 2009Yesterday, the New York Court of Appeals heard oral arguments in the latest case involving the controversial Atlantic Yards project in Brooklyn. We blogged the arguments as we followed along on the live video feed (video archived here). According to....
Video Of Atlantic Yards Oral Arguments
Posted on October 14, 2009Launch in external player Missed the live blog and video of the oral arguments in Goldstein v. New York State Urban Development Corp., the latest case involving the controversial Atlantic Yards development and Kelo-like claims of eminent domain abuse in...
HAWSCT To Review Turtle Bay/Kuilima EIS Case: Is A Change In "Context," But Not The Project, Enough To Trigger Supplemental EIS?
Posted on October 14, 2009Today, the Hawaii Supreme Court agreed to review Unite Here! Local 5 v. City and County of Honolulu, 120 Haw. 457, 209 P.3d 1271 (Haw. Ct. App. 2008), in which the Intermediate Court of Appeals held that unless the project...
Live Blog Of NY Court Of Appeals Atlantic Yards Eminent Domain Abuse Case Oral Arguments
Posted on October 14, 2009On Wednesday October 14, we followed the arguments in Goldstein v. New York State Urban Development Corp., the latest case involving the controversial Brooklyn Yards development and Kelo-like claims of eminent domain abuse in an economic development taking...
Wednesday, October 14, 2009, 2 pm EDT: Live Blog Of NY Court Of Appeals Atlantic Yards Eminent Domain Abuse Case Oral Arguments
Posted on October 13, 2009It appears that the New York Court of Appeals live streams oral arguments, so tomorrow, for the second day in a row, we'll go live with real-time blogging of an important and fascinating case (today we're blogging oral arguments in...
Live Blog Of HAWSCT Oral Arguments: Are State Zoning Laws "Environmental" Statutes?
Posted on October 13, 2009Our live blog of the Hawaii Supreme Court oral arguments in County of Hawaii v. Ala Loop Homeowners, No. 27707 (cert. granted Sep. 2, 2009). The mp3 recording of the argument is posted here. More details on the case below...
Government Brief: Landowner Must Seek To Change Land Use Designations To Ripen Federal Takings Claim
Posted on October 13, 2009The County of Maui has filed its Answering Brief in Leone v. County of Maui, No. 29696, an appeal in the Hawaii Intermediate Court of Appeals which is considering, among other issues, the question of when a regulatory takings claim...
NY Court Of Appeals Oral Arguments In Atlantic Yards Eminent Domain Case
Posted on October 12, 2009Beginning at 2pm EST on Wednesday, October 14 (thanks, noLandGrab) the New York Court of Appeals will hear oral arguments in Goldstein v. New York State Urban Development Corp., the latest case involving the controversial Brooklyn Yards development and Kelo-like...
Ninth Circuit: Let It Erode - Littoral Owners Have No Right To Install Shore Defense Structures On Their Land
Posted on October 09, 2009In United States v. Nicholson, No. 05-35802 (Oct. 9, 2009), a panel of the Ninth Circuit held that littoral (waterfront) property owners in Washington state may be liable for common law trespass and for violations of the Rivers and Harbors...
Upcoming Live Blog Of HAWSCT Arguments In Ala Loop Homeowners Appeal: Are State Zoning Laws "Environmental" Statutes?
Posted on October 09, 2009On Tuesday, October 13, starting at 10:00 am (Hawaii Standard Time), the Hawaii Supreme Court will hear oral arguments in County of Hawaii v. Ala Loop Homeowners, No. 27707 (cert. granted Sep. 2, 2009) (order here). We will be covering...
Response To Amicus Briefs In Kuilima/Turtle Bay HAWSCT Cert Application
Posted on October 08, 2009The property owner has filed a brief responding to the amici brief supporting the application for writ of certiorari which urges the Hawaii Supreme Court to review the Intermediate Court of Appeals' decision in Unite Here! Local 5 v. City...
Ninth Circuit Weighs In On England Reservations In Williamson County Ripeness
Posted on October 07, 2009With apologies to Jeff Foxworthy, you might be a regulatory takings maven if...you instantly understood this post's headline, and eagerly clicked through to read the story. But you don't have to be a takings nerd to appreciate the import of...
NY Times On Gov't Amici In Florida Beach Judicial Takings Case
Posted on October 06, 2009In "Supreme Court's Regulatory Takings Case Draws Widespread Interest," the New York Times reports about yesterday's filings by amici supporting the government in the beachfront taking case, Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection, No...
Amicus Briefs Supporting The Gov't In Florida BeachTakings Case (aka Judicial Takings Case)
Posted on October 05, 2009Several amicus briefs have been filed supporting the government's position in the beachfront taking case, Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009): Amicus brief of the United States Amicus...
Upcoming Hawaii Appellate Court Oral Arguments In Beach Takings Case
Posted on October 05, 2009On Thursday, November 10, 2009, at 9:00 a.m., the Hawaii Intermediate Court of Appeals will hear oral arguments in Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175. The arguments will take place in the Supreme Court courtroom...
Professor Callies' Response To Little Pink House Book Review: New London's Kelo Taking Was Not To Entice Pfizer
Posted on October 04, 2009In today's Honolulu Star-Bulletin, University of Hawaii lawprof David L. Callies responds to my September 20, 2009 review of Jeff Benedict's book about the U.S. Supreme Court's infamous Kelo eminent domain case, Little Pink House: a True Story of Defiance...
Condemnation Law Committee - Come Join The Conversation
Posted on October 03, 2009As I mentioned here, in August, I became the Chair of the Committee on Condemnation Law, a part of the ABA's State and Local Government Law Section. The Committee includes some very experienced practitioners and scholars, private and government attorneys,...
Government Merits Briefs In Florida Beach Takings Case aka The Judicial Takings Case
Posted on October 02, 2009Here are the respondents' merits briefs in the beachfront taking case, Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009): Brief for Respondents, Florida Department of Environmental Protection & Board of...
Cross-Motions On Due Process Issue Denied In Maui Affordable Housing Exaction Case - Next Up, Jury Trial
Posted on October 01, 2009The District Court has denied cross-motions for summary judgment on the due process claims in the case challenging Maui County's 40-50% affordable housing exaction, Kamaole Pointe Development LP v. County of Maui, No. 07-00447 DAE (D. Haw.). The court's order...
Amicus Brief Supporting Gov't In Beachfront Takings Case: Statute Didn't Eliminate Common Law Rights, It Enhanced Them
Posted on September 30, 2009Brevard County, Florida, has filed an amicus brief supporting the government in the beachfront taking case, Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). In Walton County v...
Brief In Maui Councilmember Residency Appeal: What Is "Immediate Forfeiture And Vacancy?"
Posted on September 30, 2009Yesterday, we filed the Opening Brief on behalf of Lanai residents and voters in their appeal from the Maui circuit court's dismissal of their complaint that Council member Kahoohalahala, who purports to occupy the Lanai residency seat on the Maui...
Amicus Briefs Supporting Cert: Is Forcing A Property Owner To Allow Adverse Speech A Taking?
Posted on September 29, 2009Four amicus briefs have been filed in Macerich Management Co. v. United Brotherhood of Carpenters and Joiners of America Local 568, No. 09-235 (cert. petition filed Aug. 24, 2009), urging the Supreme Court to review United Brotherhood of Carpenters and...
New Ninth Circuit Case: Mobile Home Rent Control Ordinance Takes Property
Posted on September 28, 2009In a lengthy opinion -- it comes in two volumes -- the Ninth Circuit again takes on a mobile home rent control ordinance, this time with a better result than usual for the property owners. The court determined the ordinance...
Upcoming HAWSCT Oral Arguments: Are State Zoning Laws "Environmental" Statutes?
Posted on September 28, 2009On Tuesday, October 13, 2009 at 10:00 a.m., the Hawaii Supreme Court will hear oral arguments in a case considering whether Haw. Rev. Stat. § 205-1 et seq., gives rise to a private right of action. The core issue in...
Sunday Round-Up
Posted on September 27, 2009Here's what we're reading today: From the Wall Street Journal "Of Blight and Men," a piece about settlement in the attempt to "redevelop" in Long Branch, NJ The Land Use Prof blog is back with a new cast of lawprof...
D.C. Circuit To Consider Challenge To Use Of Eminent Domain To Replace "Lowbrow" Shopping Center With "Gentrified Shopping Experience"
Posted on September 26, 2009On October 16, 2009, the U.S. Court of Appeals for the D.C. Circuit will hear arguments in Rumber v. District of Columbia, No. 09-7035, an appeal challenging an attempt to take property by the District of Columbia and the National...
Washington Supreme Court Enacts Blanket Rule: Condemnor Liable For Attorneys Fees Even If Condemnee Claims Alternatives
Posted on September 24, 2009Remember that kid in grade school, the one who misbehaved behind teacher's back and then when teacher turned around, he sat back silently while you took the blame? If like me you still remember that kid, we've got a case...
New Issue Of The Urban Lawyer Posted
Posted on September 23, 2009The Spring 2009 edition of The Urban Lawyer, the ABA Section of State & Local Government Law's peer-reviewed quarterly law review, is now available on-line. This edition focuses on fair housing testing and Fair Housing Act issues. Abstracts of the...
Final Briefs On Due Process Motions In Maui Affordable Housing Exaction Case
Posted on September 22, 2009The property owners and the County of Maui have filed their opposition and reply briefs regarding the cross motions for summary judgment in the Maui affordable housing case now being litigated in the U.S. District Court, Kamaole Pointe Development LP...
Book Review: Little Pink House - A True Story of Defiance and Courage
Posted on September 20, 2009Story behind court ruling resonates in isles [This review was originally published in the Honolulu Star-Bulletin on September 20, 2009] You remember that line in the Stevie Wonder classic -- "For once I can say this is mine, you can't...
Amicus Brief In Kuilima/Turtle Bay Appeal: Change In "Context," But Not Project, Enough To Trigger Supplemental EIS
Posted on September 18, 2009Environmental groups led by Earthjustice have sought leave to file an amici brief supporting the pending application for a writ of certiorari in the case involving the EIS for the Turtle Bay/Kuilima resort development, United Here! Local 5 v. City...
New Brief: Must A Property Owner Seek A Change In The Law In Order To Ripen A Takings Claim?
Posted on September 15, 2009Today, we filed an amicus brief in Leone v. County of Maui, No. 29696, an appeal in the Hawaii Intermediate Court of Appeals which is considering, among other issues, the question of when a regulatory takings claim is ripe for...
Upcoming Seminar: Practical Guide to Zoning and Land Use Law (9/16/2009)
Posted on September 10, 2009On Wednesday, September 16, 2009, I'll be on the faculty of "Practical Guide to Zoning and Land Use Law," a day-long seminar in Honolulu. This is an annual program dealing with zoning approvals, constitutional limitations on land use regulations, and...
Connecticut Property Rights Ombudsman Falls To Budget Axe
Posted on September 09, 2009We've just received word that the Office of Ombudsman for Property Rights is closed effective September 8, 2009 "[b]ecause of budgetary constraints." The office was created two years ago "to assist[] private property owners and public agencies in understanding and...
Kansas Supreme Court: Property Damaged For Public Use Requires Compensation
Posted on September 08, 2009The constitutions and statutes of most states require just compensation to be paid whenever property is taken or damaged for public use. See, e.g., Cal. Const. art. I, § 19 ("Private property may be taken or damaged for a public...
Can Government Use Inverse Condemnation To Take Property Without Compensation?
Posted on September 07, 2009We can't figure out this Kafkaesque decision from the Appellate Division of the New Jersey Superior Court. We really can't. In Klumpp v. Borough of Avalon, No. A-2963-07 (per curiam), the court held that the government can assert inverse condemnation...
Our Amicus Brief In The Florida Beachfront Takings Case aka The Judicial Takings Case
Posted on September 04, 2009Today, on behalf of Owners' Counsel of America, we filed an amicus brief in Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). In Walton County v. Stop the Beach Renourishment,...
Amicus Brief In NY Court Of Appeals In Goldstein/Atlantic Yards Case: NY's Public Use Clause Prohibits Judicial Rubber Stamp Of Takings
Posted on September 02, 2009Willets Point United has filed an amicus brief supporting their fellow New York City property owners in the public use case now pending in the New York Court of Appeals regarding the Atlantic Yards "redevelopment" project in Brooklyn, Goldstein v....
Kelo Reality Check: "Belief" And "Hope" Aren't All They're Cracked Up To Be
Posted on September 01, 2009Justice Stevens' majority opinion in Kelo v. City of New London, 545 U.S. 469 (2005) held the government's public use determination is off-limits if the determination was the result of a "comprehensive plan," regardless of whether than plan has any...
Entering Our Fourth Year
Posted on August 31, 2009Happy Birthday to us: we uploaded our first posts on this blog three years ago this day. In lawblog years, that's quite a while. If you can't already tell by the nearly 900 posts during this time, we enjoy doing...
Sunday Round-Up
Posted on August 30, 2009What we're reading today: "Setting boundaries for property rights" -- an opinion piece in the National Law Journal by our friend Timothy Sandefur about the Florida beachfront takings case, Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection,...
New Cert Petition: Is Requiring Shopping Centers To Allow Adverse Speech A Taking?
Posted on August 29, 2009In United Brotherhood of Carpenters and Joiners of America Local 848 v. National Labor Relations Bd., 540 F.3d 957 (9th Cir. 2008), the Ninth Circuit held that six rules applied by shopping centers to restrict picketing and handbilling by union...
First Circuit: Requiring Hospital To Provide "Free" Medical Services Not A Taking
Posted on August 27, 2009In a case that's highly topical given the current health care debate, in Franklin Memorial Hospital v. Harvey, No. 08-2550 (Aug. 5, 2009), the U.S. Court of Appeals for the First Circuit held that Maine's requirement that hospitals provide free...
NY Times On Property Owner Amici In Beachfront Takings Case
Posted on August 26, 2009The New York Times' Greenwire blog posts Property Rights Groups Assemble Support in Regulatory Takings Case, about amici support in Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009)...
Op-Ed On Eminent Domain Abuse At NY's Atlantic Yards
Posted on August 25, 2009In yesterday's New York Daily News, Dana Berliner of the Institute for Justice -- the good folks who brought us Kelo -- published "End eminent domain abuse: N.Y.'s highest court should rule against Bruce Ratner." The latest Atlantic Yards case,...
HAWSCT Oral Argument Recording In Voter Registration Residency Appeal
Posted on August 24, 2009The recording of the oral argument in Dupree v. Hiraga, No 29464 has been posted. It is available here (caution, massive 34mb mp3 download). (Oral arguments in Hawaii's appellate courts are not reduced to a written transcript, and the electronic...
Amici Briefs Supporting The Property Owners In Beach Takings Case
Posted on August 21, 2009More briefs have been filed in support of the Petitioner/property owner in Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). Oregonians in Action Legal Center Save Our Beaches and the...
Even More Amici Supporting The Property Owners In Beach Takings Case
Posted on August 21, 2009Confirming that Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009) is shaping up to be one of the most interesting cases in the Supreme Court's term, even more amici briefs...
NJ Appeals Ct: Eminent Domain Pretext Determined Objectively, By Context
Posted on August 21, 2009In an expansive opinion in Township of Readington v. Solberg Aviation Co., No. A-3083-07T3 (Aug. 19, 2009), the Appellate Division of the New Jersey Superior Court determined that a municipality abused its condemnation power when it attempted to take property...
Appellate Oral Argument: Is Intending To Live Somewhere Enough To Be "Residing" There?
Posted on August 20, 2009The Supreme Court of Hawaii will hear oral arguments on Thursday, August 20, 2009, from 9:00-10:00 in Dupree v. Hiraga, No 29464, the appeal regarding whether the State Board of Registration (County of Maui) correctly concluded that a Maui County...
Follow Hawaii Supreme Court Oral Argument Live By Twitter On Voter Registration Case
Posted on August 20, 2009My colleague Mark Murakami who blogs at hawaiioceanlaw.com will be covering today's oral argument in the Hawaii Supreme Court case Dupree v. Hiraga, No 29464, the appeal regarding whether the State Board of Registration (County of Maui) correctly concluded that...
Cato Institute And Pacific Legal Foundation Amicus Brief In Beach Takings Case
Posted on August 20, 2009The Cato Institute, the National Federation of Independent Business Legal Center, and the Pacific Legal Foundation have filed this amicus brief supporting the property owners in t Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection, No...
Petitioner's Merits Brief In SCOTUS Beachfront Takings Case
Posted on August 14, 2009The property owners have filed their merits brief in the beachfront takings case, Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). The case presents three questions: The Florida Supreme Court...
Latest In Maui Affordable Housing Exaction Case: Cross-Motions On Due Process
Posted on August 10, 2009Here's the latest in the Maui affordable housing case now being litigated in the U.S. District Court, Kamaole Pointe Development LP v. County of Maui, No. 07-00447 DAE (D. Haw.). The case is a challenge to the County of Maui's...
Navigational Servitude May Not Be A "Blanket Exception" To The Takings Clause...But It's Still A Big One
Posted on August 08, 2009In Kaiser Aetna v. United States, 444 U.S. 164 (1979), a case won by my Damon Key partners Charlie Bocken and Diane Hastert, the Court held the navigational servitude does not create a "blanket exception to the Takings Clause whenever...
New Hawaii Appellate Law Blog
Posted on August 08, 2009Kauai attorney Charles A. Foster, who already covers legal issues (and more) on his Planet Kauai blog, has been lured over completely to the Dark Side and has launched a law-only blog about Hawaii appellate law, named -- appropriately enough...
Report: Beachfront Takings Case May Be Sotomayor's First Test
Posted on August 07, 2009From The Destin Log, the hometown newspaper from the location of the U.S. Supreme Court case on judicial takings and beachfront land (Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009)), comes the...
Programming Note: hawaiilawyer.com email servers are up
Posted on August 06, 2009Update: 8/6/2009, 8:00 a.m. HST: our servers are up. If you sent something earlier but didn't get a response, please resend. ++++++++++++++++++++++++++++++++++ 8/6/2009, 5:00 a.m. HST: We're not ignoring you: the hawaiilawyer.com email servers are down for the second night...
Property Owner's Brief In Atlantic Yards Appeal
Posted on August 03, 2009A press release from Develop Don't Destroy Brooklyn links to the opening brief filed recently by the property owners who object to the taking of their property for the Atlantic Yards "redevelopment" project in Brooklyn in Goldstein v. New York...
ABA Section Of State & Local Gov't Law - Condemnation Law Committee
Posted on August 03, 2009These past few days, I've been attending the annual meeting of the ABA in Chicago. It was a chance to meet new colleagues, associate faces with those whom I've only had e-contact, and reacquaint myself with old friends. I'm also...
"Shoot, Move & Communicate" En Route To The ABA Annual Meeting
Posted on July 31, 2009Years ago, during my brief foray in the army, we employed a pretty simple job description: shoot, move, and communicate. This same axiom is an apt summary of our core mission as lawyers: win the case, go where the action...
Second Circuit: State Court Statute Of Limitations Dismissal No Bar To Federal Claim
Posted on July 30, 2009In Cloverleaf Realty of New York, Inc. v. Town of Wawayanda, No. 07-3405-cv (July 15, 2009), the Second Circuit held that a dismissal by a state court on statute of limitations ground does not preclude the plaintiff from bringing the...
Wisconsin Supreme Court: The Whole Is Lesser Than The Sum Of Its Parts
Posted on July 29, 2009When considering a redevelopment authority's condemnation of what is assumed by all litigants to be a valuable leasehold interest, how does a court determine the lessee is owed nothing, and conclude that nothing is "just" compensation (and indeed, the lessee...
ABA Annual Meeting - State & Local Govt Law Section
Posted on July 28, 2009If you're heading to the ABA annual meeting later this week in Chicago, I'll be (mostly) at the Section of State & Local Government Law sessions. Stop by an say hello -- I'll probably be the guy in the back...
Friday Round-Up
Posted on July 24, 2009Here's what piquing our interest today: Not! - It looks like our grandiose prediction that "Feds Likely To Seek Cert In Casitas (Water Rights Taking Case)" turned out to be wrong since nothing is showing on the SCOTUS docket and...
Must A Property Owner Seek A Change In The Law In Order To Ripen A Takings Claim?
Posted on July 20, 2009In a notable case worth following, the Hawaii Intermediate Court of Appeals is considering a new appeal involving whether a per se regulatory takings claim is ripe under Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473...
Do Judges "Make" Law? The Sotomayor Nomination And The Beachfront Takings Case
Posted on July 17, 2009We've been loosely following the Senate Judiciary Committee's hearings on the nomination of Judge Sonia Sotamayor as an Associate Justice of the Supreme Court, and reading selected testimony and commentary on the subject. We say "loosely" since confirmation hearings are...
Wisconsin Supreme Court: Property Valueless, So Lessee Not Entitled To Compensation
Posted on July 17, 2009"Would that John Adams could rise from his grave to speak for the VFW, and for property rights in twenty-first century America. I believe he would observe that, if the VFW's property can be taken without compensation, no property is...
National Constitution Center Podcast On Kelo
Posted on July 14, 2009The National Constitution Center regularly posts "We The People Stories," podcasts of "nationally recognized leaders debating and discussing the Constitution." The latest is about Kelo and eminent domain, and is well worth a listen. Here's the summary: A conversation about...
HAWSCT On Nonconforming Uses: You Can't Change What You Didn't Establish
Posted on July 14, 2009What do you call an appeal in which the Supreme Court doesn't address any of your five questions presented? If you are the petitioner's attorneys in Save Diamond Head Waters LLC v. Hans Hedemann Surf, Inc., No. 27804 (July 13,...
Sotomayor On Takings And Property Rights Issues
Posted on July 13, 2009The Senate's hearings on Circuit Judge Sonia Sotomayor's nomination as an Associate Justice of the U.S. Supreme Court begin today. Here's our summary of cases in which she was involved as a circuit and district judge on the issue. If...
Field Of (Broken) Dreams In New London?
Posted on July 12, 2009That now-cliched line from Field of Dreams, "if you build it they will come" (actually, it's "he will come," but work with us here) seemed to be the driving force behind the New London Development Corporation's plans for the Fort...
Florida Supreme Court: Property Owner's Off-Site Mitigation Taken Into Account In Calculating Business Damages From A Partial Take
Posted on July 10, 2009In System Components Corp. v. Florida Dep't of Transportation, No. SC08-1507 (July 9, 2009), the Florida Supreme Court resolved a conflict in the lower Florida courts regarding the application of business damages in a condemnation case under Florida Statutes §...
The Verified Complaint In Equity: The Declaration Of Independence
Posted on July 04, 2009We know lawyers are easy targets (we enjoy lawyer jokes as much as the next person, i.e., What's the difference between a good lawyer and a great lawyer? A good lawyer knows the law; a great lawyer knows the judge.)....
HAWSCT To Review Residency Challenge: Is Intending To Live Somewhere Enough To Be "Residing" There?
Posted on July 03, 2009The Hawaii Supreme Court has agreed to hear the appeal regarding whether the State Board of Registration (County of Maui) correctly concluded that a Maui County councilperson who registered to vote as a Lanai resident is actually a resident of...
PropertyProf's Summary Of The SCOTUS Beachfront Takings Case
Posted on July 02, 2009In What's At Stake in Stop the Beach Renourishment, Lawprof D. Benjamin Barros posts a comprehensive summary of "judicial takings" case accepted for review by the US Supreme Court, Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection,...
Tuesday Round-Up
Posted on June 30, 2009Here are items which we've been reviewing today: Dwight Merriam's thoughts on SCOTUS nominee, Second Circuit Judge Sonia Sotomayor. A report that the "Florida Hometown Democracy" initiative has made the 2010 ballot. According to the report "[i]f the proposal gets...
Cert Denied Update
Posted on June 26, 2009Last week's cert grant by the Supreme Court in Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted, June 15, 2009) got us to thinking about other petitions in takings and land use cases...
Links From ABA Condemnation Committee Conference Call
Posted on June 25, 2009A very interesting conference call today, focusing on the property-related decisions by SCOTUS nominee Sotomayor and the takings case recently accepted for review by the U.S. Supreme Court. Here are the links to some of the cases and other topics...
On Judicial Takings, And The Hawaii Water Rights Backstory In Stop The Beach Renourishment
Posted on June 24, 2009The U.S. Supreme Court last week agreed to review the Florida Supreme Court's decision in Walton County v. Stop the Beach Renourishment, Inc., 998 So.2d 1102 (Fla. Sep. 29, 2008), which held that a state statute prohibiting "beach renourishment" without...
Feds Likely To Seek Cert In Casitas (Water Rights Taking Case)
Posted on June 23, 2009It looks like the federal government will likely seek U.S. Supreme Court review of Casitas Municipal Water District v. United States, 543 F.3d 1276 (Fed. Cir. 2008). As noted here, the SG's office has sought and received two extensions of...
Eminent Domain Academic Round-Up: Pretext And Compensation
Posted on June 21, 2009I've been reading some noteworthy law journal articles on the subject of eminent domain -- two on the issue of pretext, and one on just compensation. Worth reviewing. Daniel S. Hafetz, Ferreting Out Favoritism: Bringing Pretext Claims After Kelo, 77....
ABA Condemnation Law Committee Conference Call On Beach Takings Case And Sotomayor Nomination
Posted on June 20, 2009Head's up to all members of the ABA's Section of State and Local Government Law's Condemnation Law Committee: you should have received an email about next week's conference call (Thursday, June 25, 2 p.m. EDT) to discuss recent developments and...
NY Times On Judge Sotomayor And Property Rights
Posted on June 19, 2009Adam Liptak reports Issue of Property Rights Is Likely to Arise in Sotomayor?s Confirmation Hearings in the June 14, 2009 edition of the New York Times, comparing SCOTUS nominee Sotomayor's decision in an infamous (at least in eminent domain circles)...
Federal Circuit: Plaintiff Alleged Property Right To Develop Land
Posted on June 17, 2009The US Court of Appeals has reversed the Court of Federal Claims' dismissal of a takings case, holding the right to develop land is property protected by the Takings Clause. In Schooner Harbor Ventures, Inc. v. United States, No. 2008-5084...
More Background On The Supreme Court's Beachfront Takings Case
Posted on June 16, 2009The Eminent Domain Law Blog, published by our colleagues at Owners' Counsel of America, has summarized Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11, the takings and due process case which the U.S. Supreme Court...
Further Thoughts On Property Taxes And Voting
Posted on June 15, 2009I've received a few interesting comments and e-mails on an earlier post ("Why Hawaii Can't Vote On Property Taxes") about the Ohana Kauai property tax charter amendment and how it was declared unconstitutional by a 3-2 Hawaii Supreme Court. Here's...
SCOTUS Beachfront Takings Case Links
Posted on June 15, 2009Here are links and other items of interest about Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009): Cert petition, BIO's and amicus briefs (via SCOTUSblog) ABA Journal: Surprise: Supreme Court...
SCOTUS To Review Beachfront Takings Case: Can A Court Decision "Take" Property?
Posted on June 15, 2009In Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009), the US Supreme Court agreed to review a case that raises several important takings issues, including the issue of whether a...
Report On Residency Challenge Appeal: Is Intending To Live Somewhere Enough To Be "Residing" There?
Posted on June 13, 2009In High court ruling on residency requested, the Maui News reports on Dupree v. Hiraga, No. 29464, the appeal of the decision by the State Board of Registration (County of Maui) which concluded that a Maui County councilperson who registered...
Cert Denied In Ninth Circuit Legislative Exactions Case
Posted on June 12, 2009Earlier this week, the Supreme Court declined review of the Ninth Circuit's decision in McClung v. City of Sumner, 548 F.3d 1219 (9th Cir. 2008). In that case, the Ninth Circuit held: This case presents an issue of first impression...
Why Hawaii Can't Vote On Property Taxes
Posted on June 11, 2009Faced with a budget shortfalls and declining revenue projections (and what level of government these days isn't?), the Honolulu City Council voted today to raise property taxes and eliminate a property tax credit that would have softened the raise for...
Opposite Sides Join Forces To Protect Property RIghts
Posted on June 10, 2009As reported here, the American Civil Liberties Union of Florida has joined forces with the American Center for Law and Justice to help protect a property owner. It's good to see that these two organizations -- usually on opposite sides...
Election Law: Is Intending To Live Somewhere Enough To Be "Residing" There?
Posted on June 09, 2009Yesterday, my Damon Key colleagues and I filed this brief on behalf of a Lanai voter, asking the Hawaii Intermediate Court of Appeals to affirm a decision by the State Board of Registration (County of Maui) which concluded that a...
New Article On Redevelopment And "Blight" - Proposal For Reform
Posted on June 09, 2009I just finished reading a recently-published law review article by Missouri Court of Appeals Judge Harold L. Lowenstein, Redevelopment Condemnations: A Blight or a Blessing upon the Land?, 74 Mo. L. Rev. 30 (2009) (available here). Despite the efforts of...
The Ames Brothers On Eminent Domain Negotiations
Posted on June 08, 2009Remember that song Undecided, recorded by the Ames Brothers (and countless others)? First you say you do, and then you don't And then you say you will, and then you won't You're undecided now So what are you gonna do?...
Video Of Kelo's New London Neighborhood With Author Jeff Benedict
Posted on May 31, 2009A short video with Jeff Benedict, author of Little Pink House - A True Story of Defiance and Courage (Grand Central Publishing 2009), which tells the backstory to the infamous Supreme Court eminent domain decision Kelo v. City of New...
More On McMansions
Posted on May 28, 2009Our thanks to Dwight Merriam for responding to yesterday's post on "Maui Mansionism" and noting the more common terms "McMansion," "starter palace," and (my favorite) "garage Mahal." He's also kindly forwarded two powerpoint presentations on regulation of big and tall...
Mansionism Discouraged On Maui ..."Mansionism?"
Posted on May 27, 2009I learned a new -ism word today thanks to an article in the Maui News forwarded by my Damon Key colleague Mark Murakami. Currently, Maui's "Hotel" zoning allows the property owner to build an apartment or a single-family residence as...
SCOTUS Nominee Sotomayor On Takings Issues
Posted on May 26, 2009Second Circuit Judge Sonia Sotomayor, the nominee to fill Justice David Souter's seat on the U.S. Supreme Court, has served as either a federal District or Circuit Judge for 18 years during which she's either authored or sat on panels...
HAWSCT: Property Owners Entitled To Attorneys Fees & Costs In Failed Taking, Even If Gov't Prevails In Intermediate Steps
Posted on May 23, 2009Under Haw. Rev. Stat. § 101-27, when a condemnation action is "abandoned or discontinued before reaching a final judgment, or if, for any cause, the property concerned is not finally taken for public use," the condemnor is liable for: all...
It Is Good To Be The King: Councilmembers Personally Immune From Charges Of Retaliatory Eminent Domain Abuse
Posted on May 21, 2009You may remember Mel Brooks' History of the World: Part I, where Brooks, as King Louis XIV, turns to the camera and exclaims "it's good to be the King!" each time he takes advantage of one of his subjects. Well,...
Minn Court Of Appeals: Redevelopment Agency Exceeded Delegation Of Eminent Domain Authority
Posted on May 20, 2009In Eagan Economic Development Authority v. U-Haul Company of Minnesota, No. A08-0767 (May 19, 2009), the Minnesota Court of Appeals held that when a delegation of eminent domain power from a municipality requires a redevelopment agency to enter into a...
Government Must Pay 100% Of Owner's Defense Fees In Illegal Condemnation
Posted on May 18, 2009Under Haw. Rev. Stat. § 101-27, when a condemnation action is "abandoned or discontinued before reaching a final judgment, or if, for any cause, the property concerned is not finally taken for public use," the condemnor is liable for: all...
Monday Eminent Domain Round-Up
Posted on May 18, 2009Here's what we're reading today: Government to condemn land for Flight 93 memorial - the latest controversy in the land in Somerset, Pennsylvania (photo at left) where United 93 impacted on September 11, 2001. Flight 93 panel member resigns over...
Materials And Links From Today's Water Law Seminar
Posted on May 14, 2009To those who attended today's seminar "Integrating Water Law and Land Use Planning," thank you. The materials from my session on "Water Rights, Property Rights and the Law of Settled Expectations" are below. Kaiser Aetna v. United States, 444 U.S....
Damages Flowing From A Failed Condemnation: Motion For Reconsideration
Posted on May 11, 2009On behalf of the property owner, we've filed a Motion for Reconsideration (filed May 1, 2009) of the Hawaii Supreme Court's latest opinion in which the court held that a condemnee who appeals the denial of damages for a failed...
Upcoming Water Law Seminar - Integrating Water Law and Land Use Planning
Posted on May 11, 2009There's still time to register for the upcoming seminar "Integrating Water Law and Land Use Planning," being held in Honolulu at the Ala Moana Hotel on Thursday, May 14, 2009 from 9am - 4:30pm. I'll be leading the session on...
Monday Eminent Domain Round-Up
Posted on May 04, 2009Here's what we've been reading today: There Goes the Neighborhood: A Fight Over Defining "Blight" - the Wall Street Journal focuses on the blight issue, which in most jurisdictions is a case of the tail wagging the dog: if the...
WA Court Of Appeals: Delegations Of Eminent Domain Power To Municipalities Strictly Construed
Posted on April 30, 2009A state law providing that airport boards may exercise the powers of the municipalities which appoint them, but which also requires a condemnation action by an airport board "be instituted in the names of the municipalities jointly," prohibits an airport...
The Nerve Of Those Californians, Vindicating Federal Constitutional Rights In Texas Federal Courts!
Posted on April 28, 2009As we noted in this post, the recent U.S. Court of Appeals for the Fifth Circuit decision in Severance v. Patterson, No. 07-20409 (Apr. 23, 2009) is garnering a lot of commentary for the dissenting judge's opening ad hominem and...
Op-Ed: Money Is Property - Monetary Exactions And Nollan/Dolan
Posted on April 28, 2009The Washington Examiner has published an op-ed about McClung v. City of Sumner, 548 F.3d 1219 (9th Cir. 2008), petition for cert. filed May 2, 2009, "When the Government Takes Your Money, It Takes Your Property," by Cato Institute's Ilya...
Fifth Circuit: Fourth Amendment Seizure Of Beachfront Land Claim Not Subject To Williamson County Ripeness
Posted on April 27, 2009A very interesting decision from the U.S. Court of Appeals for the Fifth Circuit in Severance v. Patterson, No. 07-20409 (Apr. 23, 2009). While much of the commentary about the case (see, e.g., here, here, and here) has focused on...
West Hawaii Today On Latest HAWSCT Opinion In Eminent Domain Abuse Cases
Posted on April 23, 2009The Big Island's West Hawaii Today reports "Both sides claim win in latest ruling" about the Hawaii Supreme Court's recent opinion in the cases involving the County of Hawaii's attempt to take the property of a Kona family to meet...
HAWSCT: Property Owners Entitled To Attorneys Fees & Costs On Appeal
Posted on April 22, 2009In the latest reported decision arising out of the County of Hawaii's attempt to take property, the Hawaii Supreme Court held that a condemnee who appeals the denial of damages for a failed taking is entitled to damages it sustains...
Guest Post: Of Shoes and Ships, Eggs and Farms; Or, Penn Central Through the Looking Glass
Posted on April 21, 2009Our friend Bill Wade offers his thoughts on the recent (and latest) Rose Acre decision by the Federal Circuit, a case we summarized here. __________________________________ Of shoes and ships, eggs and farms; Or, Penn Central through the Looking Glass by...
Weekend Round-Up
Posted on April 20, 2009Items of note from around the web: Professor Gideon Kanner's thoughts on recent New York Times report on Susette Kelo, "At Long Last, The New York Times Reveals a Secret" In "Penny Wise And Pound Foolish," the Connecticut Law Tribune...
Minn Court Of Appeals: No Taking Of Church Property For Sidewalk Without Consent
Posted on April 20, 2009In City of Jordan v. Church of St. John the Baptist of Jordan, No. CV-07-24976 (Apr. 14, 2009), the Minnesota Court of Appeals held that a state law requiring the consent of a church's governing board before its land can...
New York Times Profiles Kelo, The "Eminent Domain Crusader"
Posted on April 18, 2009In "Spotlight Finds Eminent Domain Crusader," the New York Times profiles Susette Kelo, the name behind the infamous eminent domain decision Kelo v. City of New London, 545 U.S. 469 (2005), and the subject of a recent book about the...
Coming Soon To A City Near You: "We Want To Emphasize That This Is In People's Interest" - Berkeley To Mandate $34k+ Draconian Energy Efficiency
Posted on April 18, 2009University Avenue in Berkeley, California -- the main entry to the city hosting the flagship campus of the University of California system -- is not exactly a grand introduction: the street is rutted with potholes (a trip west of San...
Little Pink House Event Report
Posted on April 15, 2009I was fortunate enough yesterday to attend an event with Jeff Benedict, who spoke about his recently-published book Little Pink House - A True Story of Defiance and Courage (Grand Central Publishing 2009) (available from Amazon here). Little Pink House...
Monday Round-Up
Posted on April 13, 2009Several diverse items, for your consideration: Columnist George Will opines about the Empress Casino Joliet case -- the one where the Illinois Supreme Court held that a regulation imposing a 3% "surcharge" on Illinois casinos with gross receipts over $200...
Rail Taking Valuations In A Flat To Declining Market
Posted on April 12, 2009Sean Hao at the the Honolulu Advertiser reports "Land prices for Hawaii rail route jump $100 million since 2006," with the lede: "Honolulu real estate prices are expected to fall over the next three years, but the estimated cost of...
Professor Van Dyke's Who Owns The Crown Lands Of Hawaii - Book Review By Paul Sullivan, Esq.
Posted on April 12, 2009Attorney Paul M. Sullivan, currently a lawyer for the U.S. Navy but formerly an adjunct professor at the U. Hawaii Law School and a member of the Hawaii State Advisory Committee to the U.S. Commission on Civil Rights, has reviewed...
So. Cal. Heads-Up: Jeff Benedict/Little Pink House In Santa Barbara On Tuesday 4/14
Posted on April 12, 2009For those of you within striking range of Santa Barbara on Tuesday, April 14, Jeff Benedict, the author of Little Pink House - A True Story of Defiance and Courage (Grand Central Publishing 2009) (available from Amazon here) will be...
Federal Circuit: Commercial Fishing Ban Frustrated Contract, But Is Not A Taking
Posted on April 11, 2009Thanks to my fellow Damon Key land user Greg Kugle for letting me know the Federal Circuit has affirmed Palmyra Pacific Seafoods, L.L.C. v. United States, 80 Fed. Cl. 228 (Jan. 22, 2008), a case we summarized here. The Federal...
Hawaii's Good Friday Holiday: It's Like Thanksgiving And Christmas
Posted on April 10, 2009If you are wondering why your calls to State and County offices go unanswered tomorrow, it is because it is Good Friday, a legal holiday in the State of Hawaii pursuant to Haw. Rev. Stat. § 8-1. The day of...
Pretext In Eminent Domain: Law Of The Land On The Coupe Opinion
Posted on April 10, 2009Dean Patty Salkin's Law of the Land blog posts James Lawlor's summary of the Hawaii Supreme Court's decision in County of Hawaii v. C&J Coupe Family Ltd. P'ship, 119 Haw. 352, 198 P.3d 615 (2008), "Court Must Decide If Public...
Two Interesting Eminent Domain Decisions
Posted on April 08, 2009Our thanks to Dwight Merriam for letting us know about these two decisions. Gold v. Town of East Haddam, No. 18067 (Conn. Mar. 24, 2009) - On one hand, this is a fairly straightforward summary judgment case: are material facts...
Hawaii Business Magazine Column: Using Blogs, Social Media To Connect
Posted on April 08, 2009Hawaii Business magazine has published my column about how our firm is using web 2.0 tools to communicate and connect, "Connect with customers with blogs, Twitter." Ironically, the article is not (yet) available on-line, so here it is: Connect with...
New Article: Is Eminent Domain Reform Just Window Dressing?
Posted on April 08, 2009A new article from the ABA Journal "Where's the Revolution" about whether post-Kelo reforms of eminent domain law have any real effect on the law. According to the summary of the article on the Geo. Mason U. law school web...
Tuesday Round-Up: Forced Farming, Tax Or Taking, RLUIPA Loophole
Posted on April 07, 2009Several items of interest: California Coastal Commission: "You must farm" - As a condition of allowing a Northern California family to build a home, the California Coastal Commission demanded that they dedicate an "agricultural easement" on their 143-acre parcel...
New Cert Petition And Amicus Brief On Nollan/Dolan Applicability To Legislative Exactions, In-Lieu Fees
Posted on April 06, 2009A cert petition has been filed seeking review of the Ninth Circuit's decision in McClung v. City of Sumner, 548 F.3d 1219 (9th Cir. 2008), the case in which the court held: This case presents an issue of first impression...
2009 Update Of Hawaii Chapter In Law & Procedure Of Eminent Domain In The 50 States Available
Posted on April 05, 2009I've updated the Hawaii chapter in Law and Procedure of Eminent Domain in the 50 States, a compendium of individual states' condemnation laws put together by the ABA Section on Litigation - Committee on Condemnation, Zoning & Land Use. The...
Links From Today's ABA Teleconference: Hot Topics In Land Use Law 2009
Posted on April 02, 2009Thank you to those who were able to join us live for today's teleconference. Here are the links to the additional cases and other items I mentioned (or wanted to mention) in my session on Public Use and Pretext Update:...
Links From Today's ABA Condemnation Hot Topics Teleconference
Posted on April 01, 2009Thank you to those who were able to join us live for today's teleconference. Here are the links to the additional cases and other items I mentioned (or wanted to mention) in my session on Public Use and Pretext Update:...
Book Review: Little Pink House, Eminent Domain - Time To Change The Law
Posted on March 31, 2009Our thanks to Robert S. Poliner, the Connecticut Ombudsman for Property Rights for permitting us to republish his review of Jeff Benedict's Little Pink House - A True Story of Defiance and Courage (Grand Central Publishing 2009) (available from Amazon...
Three Takeaway Points From The "Ceded Lands" Decision
Posted on March 31, 2009What to make of the U.S. Supreme Court's unanimous opinion in the "ceded lands" case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (Mar. 31, 2009), beyond the narrow holding that the Apology Resolution had no legal effect? Think about...
Sorry Seems To Be The Hardest Word: U.S. Had "Absolute Fee Simple" Title To Ceded Lands, Apology Resolution Had No Legal Effect
Posted on March 31, 2009The U.S. Supreme Court held that a Congressional resolution apologizing for the United States' role in the overthrow of the Hawaiian kingdom was just an apology, and had no legal effect. In an opinion for a unanimous Court authored by...
Unanimous SCOTUS: Apology Resolution No Legal Effect
Posted on March 31, 2009A unanimous Supreme Court, in an opinion authored by Justice Alito has reversed and remanded the Hawaii Supreme Court in the "ceded lands" case. The opinion is posted here. More to follow after a chance to read the opinion, but...
Spinning The Ceded Lands Decision
Posted on March 31, 2009Here's a collection of the reports and commentary beginning to come in about the U.S. Supreme Court's unanimous opinion in the "ceded lands" case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (Mar. 31, 2009): Supreme Court backs Hawaii in...
Court Of Federal Claims Round-Up
Posted on March 30, 2009Here are the latest opinions of interest from the Court of Federal Claims, which has nationwide jurisdiction over inverse condemnation and regulatory takings claims against the federal government where the compensation sought exceeds $10,000: Energy Security of America Corp...
Cert Denied In Agripost (Williamson County)
Posted on March 30, 2009The U.S. Supreme Court has denied review to Agripost, LLC v. Miami-Dade County, Florida, No. 08-567 (cert. petition filed Oct. 27, 2008), another case asking the Court to overrule Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City,...
Upcoming ABA Condemnation, Land Use Teleconferences
Posted on March 27, 2009There's still time to register for two teleconferences that are a part of the ABA State and Local Government Section's "Virtual Spring Meeting." I hope you can join us for at least one of the programs. Wednesday, April 1, 2:00...
Federal Circuit: 35k SF Government Borrow Pit On Your Property Not "Inherently Unknowable"
Posted on March 27, 2009In 1999, without asking the owner's permission, the federal government constructed a 35,000 square foot "borrow pit" on a parcel in a remote corner of Texas. The owner did not learn about the government's activities until 2004, when a migrant...
Hawaii Superferry II: Rooting Out Pretext In Legislative Actions
Posted on March 26, 2009"Unlike Bulgo, in this case there is no evidence in the record that any company, other than Superferry, met the definition provided by section 2 when Act 2 was enacted." Sierra Club v. Dep't of Transportation, No. 29035 slip op....
New Cert Petition - Dolan Proportionality And Individualized Determination Applies To In-Lieu Fees
Posted on March 24, 2009A cert petition has been filed seeking review of Joy Builders, Inc. v. Town of Clarkstown, 11 N.Y.3d 863 (2008). That decision was summarized by Professor Patty Salkin on the Law of the Land blog here. The New York Court...
James Ely: Report Card On Post-Kelo Eminent Domain Reforms
Posted on March 24, 2009Professor James Ely (who, among other things, is the author of The Guardian of Every Other Right: A Constitutional History of Property Rights) writes "A Report Card on Post-Kelo Eminent Domain Reforms" at the Oxford University Press blog. He notes...
More On Pretext In Eminent Domain
Posted on March 24, 2009Following up on this story, West Hawaii Today reports "Attorneys argue against Supreme Court ruling on bypass," about whether a second attempt to condemn property ostensibly for a road is pretextual when the court determined the first attempt was unconstitutional...
Cert Denied In Amerisource (Taking Of Property As Evidence)
Posted on March 23, 2009The U.S. Supreme Court today issued an order denying review in AmeriSource Corp. v. United States, No. 08-497 (cert. petition filed Oct. 15, 2008), the case which asked "[w]hether it is a taking compensable under the Fifth Amendment for the...
Determining Eminent Domain Pretext In Serial Takings
Posted on March 22, 2009As reported in this story from West Hawaii Today, a Hawaii trial court is considering whether a second attempt to condemn property ostensibly for a road is pretextual when it determined the first attempt was unconstitutional. Disclosure: we represent the...
PBS Hawaii Posts Vid Of Ceded Lands "Conversation"
Posted on March 21, 2009For those who couldn't watch it live, the Hawaii public television station has posted a video of yesterday's broadcast of a discussion about the "ceded lands" case. The program includes Hawaii Attorney General Mark Bennett who argued the case for...
Weekend Round-Up
Posted on March 21, 2009Several diverse items of interest for your weekend reading enjoyment: "Impact Fees" - a response to this commentary about impact fees and the legality of "fair share" exactions by the County of Hawaii. "Substantive Due Process at Work" - analysis...
Overrule Williamson County: Agripost Cert Petititon A "Petition To Watch"
Posted on March 20, 2009Thank you to several of our readers for pointing out that SCOTUSblog has determined that Agripost, LLC v. Miami-Dade County, Florida, No. 08-567 (cert. petition filed Oct. 27, 2008) is a "petition to watch" for the Supreme Court's March 27,...
Out-Of-Proportion In-Lieu Affordable Housing Exaction Opinion Modified
Posted on March 20, 2009The modified opinion in Building Industry Ass'n of Central California v. City of Patterson, No. F054785 (Cal. Ct. App. Mar. 2, 2009), a case we summarized here, has been further modified in this order. The latest modifications do not alter...
Lessons For Superferry From The Kelo Aftermath?
Posted on March 19, 2009"One more victory such as this and we shall be ruined." So lamented Pyrrhus, the king of the eponymous victory -- a win so costly it cannot be savored. It's a term the New London Development Corporation, which prevailed in...
Additional Amicus Briefs In Empress Casino (Can The Gov't "Take" Money?)
Posted on March 19, 2009Three more amicus briefs supporting the petition for writ of certiorari in Empress Casino Joliet Corp. v. Giannoulias, No. 08-945 (cert. petition filed Jan. 21, 2009). In that case, the Illinois Supreme Court held (896 N.E.2d 277 (Ill. 2008) that...
Cato Institute Video Explaining Kelo
Posted on March 18, 2009"Susette Kelo's legal battle with New London, Conn. brought about one of the most controversial and troubling Supreme Court rulings in many many years. But her fight also spurred a backlash among property owners and state legislatures. Dozens of states...
HAWSCT Agrees To Review Case About Planning Director's Authority And Nonconforming Uses
Posted on March 18, 2009The Hawaii Supreme Court has accepted an application for writ of certiorari to review the Intermediate Court of Appeals' decision in Save Diamond Head Waters LLC v. Hans Hedemann Surf, Inc., No. 27804 (Haw. ICA Dec. 19, 2008). In that...
Coming Attraction: Superferry Part II
Posted on March 17, 2009We've read all 124 pages of the Hawaii Supreme Court's opinion and the concurring opinion in the "Hawaii Superferry" case, Sierra Club v. State Dep't of Transportation, No. 29035 (March 16, 2009), and will post about it soon. In the...
Conference: ABA Section Of State & Local Government Law Virtual Spring Meeting
Posted on March 17, 2009Instead of an in-person Spring Meeting this year, the ABA Section of State & Local Government Law will be "meeting" virtually from March 31-April 2, 2009. As part of the meeting, the Section will be featuring a series of teleconference...
A Lucasesque View Of The Superferry Saga
Posted on March 17, 2009The saga of the Hawaii Superferry has always seemed to be touched by George Lucas. A certain segment of Hawaii's population has from the get-go considered the interisland vehicle ferry as nothing less than the Death Star: a whale-killer, a...
More On "Little Pink House"
Posted on March 15, 2009Little Pink House - A True Story of Defiance and Courage, the recently-published book about the infamous 2005 eminent domain case Kelo v. City of New London, 545 U.S. 469 (2005) (available from Amazon here), is generating interest: From CSPAN-2's...
Preview of "Battle of Brooklyn" Doc About Atlantic Yards
Posted on March 13, 2009A teaser for The Battle of Brooklyn, produced by the Moving Picture Institute (which "nurtures promising filmmakers who are committed to protecting and sustaining a free society") about the ongoing redevelopment dispute in Brooklyn over the Atlantic Yards project...
Federal Circuit: Eggonomic Impact Not Eggregious Enough To Require Feds To Shell Out Compensation
Posted on March 13, 2009Okay, we've decided to surrender to temptation and let fly with bad (and obvious) egg puns. But at least they're out of our system in the beginning. After that, no more yolks. We promise. In Rose Acre Farms, Inc. v....
New Chief Judge For The Court Of Federal Claims
Posted on March 13, 2009According to this story from the BLT (Blog of Legal Times), President Obama has appointed Judge Emily C. Hewitt as the new Chief Judge of the Court of Federal Claims. This is of interest to readers of this blog, of...
NY Times Sunday Book Review Of "Liitle Pink House"
Posted on March 13, 2009Thanks to Dwight Merriam for the heads-up on "Driven Out," the upcoming New York Times book review of Little Pink House - A True Story of Defiance and Courage, about the infamous 2005 eminent domain case Kelo v. City of...
Impact Fees And "Fair Share" Guest Commentary: "Who Pays For Impacts: You Do"
Posted on March 09, 2009Thank you to Kamuela attorney Margaret Wille for allowing us to post the commentary she published in West Hawaii Today (Mar. 7, 2009), but which is not available on line. Posting on inversecondemnation.com is not an endorsement of the views...
Eminent Domain Round-Up
Posted on March 09, 2009A few of the items recently crossing my screen about one of our favorite subjects, eminent domain: A review of "Little Pink House," the recently-published book about the Kelo case (available from Amazon here) from the New Haven Independent. I...
Might Makes Blight In The New York Appellate Division
Posted on March 08, 2009Develop Don't Destroy 104597/07 (Brooklyn) v. Urban Dev. Corp., 2009 NY Slip Op 01395 (Feb. 26, 2009) is the latest decision involving Brooklyn's Atlantic Yards redevelopment project. See "A Hole Grows In Brooklyn" from the Wall Street Journal for more...
More Amicus Briefs In Empress Casino (Can The Gov't "Take" Money?)
Posted on March 06, 2009Two more amicus briefs supporting the petitioner in Empress Casino Joliet Corp. v. Giannoulias, No. 08-945 (cert. petition filed Jan. 21, 2009) are available. In that case, the Illinois Supreme Court held (896 N.E.2d 277 (Ill. 2008) that a regulation...
New Cert Petition - Corps' Clean Water Jurisdiction Determination Is Reviewable Now
Posted on March 03, 2009Cal. Court of Appeal Strikes Down Out-Of-Proportion In-Lieu Affordable Housing Exaction
Posted on March 02, 2009Argument To SCOTUS: "Don't Taze Me, Bro!" -- What Was Really Going On In The "Ceded Lands" Oral Arguments?
Posted on February 27, 2009New Eminent Domain Book: Current Condemnation Law: Takings, Compensation & Benefits (2d ed.)
Posted on February 26, 2009A recent book of interest to condemnation lawyers, Current Condemnation Law: Takings, Compensation & Benefits (2d ed.). The book is co-edited by my Owner's Counsel of America colleague Alan T. Ackerman. (He also has a blog about eminent domain issues...
"Ceded Lands" Case Information
Posted on February 26, 2009If you're looking for information about the "ceded lands" case, start here.
State's Argument In SCOTUS "Ceded Lands" Case
Posted on February 25, 2009The transcript of today's oral arguments in the "ceded lands" case is posted here. Hawaii Attorney General Mark Bennett argued for the State. He began by asserting that the Apology Resolution did not alter the state's right to transfer the...
Oral Argument in "Ceded Lands" Case - Transcript And Summary
Posted on February 25, 2009The Supreme Court's courtroom reporter has provided the raw transcript of today's oral arguments in the "ceded lands" case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert. granted Oct. 1, 2008. The transcript is posted here. For a primer/FAQ...
Reply Brief In AmeriSource: Is Destruction of Evidence Seized From Innocent Third Party A Taking?
Posted on February 25, 2009Thanks to Columbia lawprof Ronald Mann for forwarding his reply brief in AmeriSource Corp. v. United States, No. 08-497 (cert. petition filed Oct. 15, 2008). Responding to the arguments in the federal government's brief in opposition, the reply argues: The...
Federal Goverment's Arguments In SCOTUS "Ceded Lands" Case
Posted on February 25, 2009This continues our summary of today's oral arguments in the "ceded lands" case. The summary of the state's argument is posted here, the summary of OHA's argument is posted here, and the transcript is posted here.What Issues Are Presented?Assistant to...
Zoning Permit Case Update
Posted on February 25, 2009Here's the latest on the Kauai Springs cases. As reported in The Garden Island (Kauai's daily), the Kauai Planning Commission issued the remaining zoning permit -- "Final Kauai Springs permit approved." More than three years after first submitting permit applications...
OHA's Argument In SCOTUS "Ceded Lands" Case
Posted on February 25, 2009This continues our summary of today's oral arguments in the "ceded lands" case. The summary of the state's argument is posted here, and the transcript is posted here. Washington, D.C. attorney Kannon Shanmugam argued for OHA. He began by asserting...
Another "Ceded Lands" Case Round-Up
Posted on February 24, 2009U.S. Supreme Court cases -- especially when they arise in your back yard -- always garner a lot of attention, and the ceded lands case being argued on Wednesday, February 25 is no exception. Here's a run down of the...
Report On Oral Arguments In Atlantic Yards Eminent Domain Appeal
Posted on February 24, 2009Atlantic Yards Reports post this summary of the recent oral arguments in the appeal in the state court fight over the massive redevelopment project in Brooklyn. More on the case here and here.
The Latest On The "Ceded Lands" Case
Posted on February 24, 2009We will be posting the transcript -- perhaps with some analysis thrown in -- of tomorrow's Supreme Court oral arguments as soon as it becomes available, but in the meantime, here is the latest: David Shapiro posts "Senate sends mixed...
Cert Denied In California Nollan/Dolan $5.3 Million Seawall "Mitigation Fee" Case
Posted on February 24, 2009Thanks to James Lawlor of the Land Use Legal Report for letting us know that the U.S. Supreme Court has declined to review Ocean Harbor Homeowners Ass'n v. California Coastal Comm'n, 163 Cal. App. 4th 215, 77 Cal. Rptr. 432...
Hawaii House Passes Resolution Urging "Withdrawal" Of The "Ceded Lands" Case
Posted on February 23, 2009Thanks to @georgettedeemer, the Communications Director of the Hawaii House of Representatives for getting word out that the Hawaii House has passed S.C.R. No. 40, a resolution "Urging the Governor and the Attorney General to withdraw the appeal to the...
Cert Denied In Ripeness And Penn Central Case
Posted on February 23, 2009It's easy to blog a case when you or your colleagues win it, and we've had plenty to talk about lately in that department in eminent domain and zoning law. On the other hand, it's not so easy to write...
Eminent Domain Round-Up
Posted on February 23, 2009Eminent domain in the news: From the Virginian-Pilot comes "Government's power to take private property to go on trial," about a property owner's objection to a redevelopment taking: It's a stark contrast between new and old, progress and past. The...
Obama Administration Granted SCOTUS Face Time In "Ceded Lands" case
Posted on February 21, 2009Although it was mostly a formality, the US Supreme Court today granted the acting US Solicitor General's motion to present oral argument and for divided oral argument in the "ceded lands" case at next week's arguments. The Obama Administration had...
"Ceded Lands" Case, Land Use Round-Up
Posted on February 21, 2009text here Oral Argument in Atlantic Yards Eminent Domain Case Monday - the latest chapter in Brooklyn's "Atlantic Yards" redevelopment project (via Gowanus Lounge). More on the arguments from Atlantic Yards Report here. Hawaiians urge Obama to step in on...
County Of Hawaii "Fair Share"/Impact Fees - What Did The Court Decide?
Posted on February 21, 2009Thanks to Kona Blogger Aaron Stene for pointing out an article from West Hawaii Today, "County lawyers say fair share legal." The article reports: Council members who say Judge Ronald Ibarra's 2007 ruling in a contested condemnation case invalidated the...
SCOTUSblog's Preview Of The "Ceded Lands" Oral Arguments
Posted on February 20, 2009SCOTUSblog posts "Argument Preview: Hawaii v. Office of Hawaiian Affairs," which is a summary of the case and the briefs of the parties:This case has attracted considerable attention. Including the United States?s brief, seven amicus briefs were filed in support...
Materials From 2/20/2009 Land Use Seminar
Posted on February 20, 2009Here 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...
"Ceded Lands" Case Round-Up
Posted on February 19, 2009As the Supreme Court oral argument in the "ceded lands" case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert. granted Oct. 1, 2008), draws nigh, public interest in the case is peaking. We will be covering the arguments, which...
Federal Government's Brief In Opposition In AmeriSource: Is Destruction of Evidence Seized From Innocent Third Party A Taking?
Posted on February 18, 2009The Solicitor General has filed the United States' Brief in Opposition in AmeriSource Corp. v. United States, No. 08-497 (cert. petition filed Oct. 15, 2008). In that case, a pharmaceutical company whose legal prescription drugs were seized as evidence against...
State & Local Government Condemnation Committee Links
Posted on February 18, 2009Here are links to some of the cases discussed on the conference call this morning: 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: No Need For A Comprehensive Taking Plan
Posted on February 17, 2009In a brief memorandum opinion, the New York Court of Appeals (the state's highest court) today affirmed the Appellate Division's decision in Aspen Creek Estates, Ltd. v. Town of Brookhaven, a case challenging a municipality's ability to take property for...
Land Use Round-Up
Posted on February 17, 2009Some interesting reports filtering across my screen today: Thanks to Charley Foster for sending notice about a post at Volokh Conspiracy about whether the Takings Clause was incorporated against the states by the Due Process Clause, "Regulatory Takings and the...
Federalist Society Debate On Akaka Bill And Apology Resolution
Posted on February 16, 2009The Federalist Society has posted audio of a January 24, 2009 debate -- The Apology Resolutions and the Akaka Bill -- between Professor Gail Heriot and Professor Davianna McGregor which was held at the recent Western Conference at the Reagan...
Cal. Court of Appeal: No Public Use In "Case Of Condemn First, Decide What To Do With The Property Later"
Posted on February 14, 2009A very important decision by California's Third District Court of Appeal, exposing the fantasy behind the Kelo majority's conclusion that decisions to take property are most often the result of an objective process and comprehensive and carefully considered planning...
Pretext In Compensation Determinations: 11th Circuit Holds Landowner's Burden To Show Government Intent To Depress Value By Regulation
Posted on February 13, 2009In United States v. 480.00 Acres of Land, No. 07-13584 (Feb. 11, 2009), the US Court of Appeals for the Eleventh Circuit (which covers Alabama, Florida, and Georgia), held "in order for a fact finding body to ignore a regulation...
"Ceded Lands" Case Debate: Did The Hawaii Supreme Court Rewrite The Terms By Which Hawaii Became The 50th State?
Posted on February 12, 2009The Hawaii Federalist Society sponsored a debate today at the University of Hawaii Law School on issues in the ceded lands case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert. granted Oct. 1, 2008). One one side, U.H. lawprof...
Property Owner's Blog: My Land is Mine
Posted on February 11, 2009It looks the one of the landowners under the threat of eminent domain in New York City's Manhattanville (aka West Harlem) neighborhood has a blog about his fight. Check out My Land is Mine, with posts by Nick Sprayregen, owner...
Hawaii Appellate Courts - New RSS Feed
Posted on February 11, 2009Thanks to Damon Key colleague and fellow law blogger Mark Murakami for letting us know about the new RSS feed launched by the Hawaii appellate courts. The feed contains links to newly published opinions, memorandum opinions, summary disposition orders, grants...
Legal Information Institute's Summary Of "Ceded Lands" Case
Posted on February 10, 2009The Legal Information Institute at Cornell Law School -- which previews of U.S. Supreme Court cases -- has published its summary of the "ceded lands" case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert. granted Oct. 1, 2008). The...
CFC: Trial Needed On Whether Wrongful Assertion Of Clean Water Act Jurisdiction Is "Extraordinary Delay"
Posted on February 10, 2009Head's up on an interesting case from the Court of Federal Claims, Resource Investments, Inc. v. United States, No. 98-419L (Court of Federal Claims, Jan. 23, 2009), a massive opinion (84 single-spaced pages) with what at first glance seems to...
Upcoming Seminar: Zoning, Subdivision And Land Development Law
Posted on February 09, 2009There's still time to register for the Zoning, Subdivision and Land Development Law seminar, to be held in Honolulu on February 20, 2009. I'm presenting a session on "U.S. Supreme Court, Regulatory Takings and Eminent Domain Update." My Damon Key...
Zoning And Land Use Round-Up
Posted on February 09, 2009A collection of interesting reports on land use and zoning topics: Mission residents reject American Apparel (San Francisco Chronicle) - "Congratulations to the residents of Valencia Street. After a rowdy and sometimes misleading campaign, they managed to stop American Apparel...
State Of Hawaii's Reply Brief In SCOTUS "Ceded Lands" Case
Posted on February 09, 2009The State has filed the final brief in the "ceded lands" case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert. granted Oct. 1, 2008), available here. The State argues that the Office of Hawaiian Affairs' (and a majority of...
Kelo Backlash: Media Hype?
Posted on February 07, 2009In "Positioning Politics: Kelo, Eminent Domain, and the Press," an article in "Land and Power: The Impact of Eminent Domain in Urban Communities," published by the Policy Research Institute for the Region (Princeton), the author asserts that the reporting on...
Ninth Circuit In Honolulu Next Week
Posted on February 06, 2009A panel of the Ninth Circuit (Judges Reinhardt, Brunetti, and Thomas) is riding circuit to Honolulu next week and will be hearing oral arguments at the downtown courtroom as well as at the U. Hawaii Law School. The court's calendar...
Forbes On The SCOTUS "Ceded Lands" Case
Posted on February 06, 2009Forbes.com posts "Supreme Court Cheat Sheet," summarizing "five business cases" pending in the Supreme Court worth following. Included among those cases are Hawaii's own "ceded lands" case. (Scroll 2/3 down the page .Also included is "In Pictures: Five Cases to...
Even More On Hawaii County's Impact Fee ... Whoops, I Mean "Fair Share"
Posted on February 05, 2009Thanks to Kona Blogger Aaron Stene for sending this next item my way, a follow up to the previous two days' reports from West Hawaii Today (posted here and here) about Hawaii County's so-called "fair share" exaction system. In "Council...
More On Hawaii County's "Fair Share" Impact Fees
Posted on February 04, 2009Following up on yesterday's post about the West Hawaii Today series on the legality of Hawaii County's "fair share" impact fee system, the paper posts two stories about the issue:Council members divided on fair share (noting that several council members...
USSG's Motion To Participate In Oral Argument In "Ceded Lands" Case
Posted on February 04, 2009Following up on the earlier post New SG Unlikely To Alter Fed Gov't's SCOTUS Arguments In Ceded Lands Case, which noted that the new Solicitor General has sought leave from the Supreme Court to participate in oral argument and for...
Florida Takings Links
Posted on February 03, 2009Florida's appellate courts have been active lately in the regulatory takings arena. Here are links to summaries and analysis of the decisions. First, from the Florida Land Use Law blog: 5th DCA - Landmark Takings Case: Off Site Exaction a...
New SG Unlikely To Alter Fed Gov't's SCOTUS Arguments In Ceded Lands Case
Posted on February 03, 2009Several people have wondered whether the change in presidential administrations may alter the federal government's position supporting the State of Hawaii in the "ceded lands" case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert. granted Oct...
West Hawaii Today Series: Is County Practice [About "Fair Share" And Impact Fees] Legal?
Posted on February 03, 2009Worthwhile article today from West Hawaii Today (the daily newspaper of the Kona side of the Big Island), "Is county practice legal?" The story details the County's practice of demanding "fair share" payments from property owners and developers who wish...
Further Amicus Briefs Supporting OHA In The "Ceded Lands" Case
Posted on February 03, 2009Two more amicus briefs in the "ceded lands" case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert. granted Oct. 1, 2008): Sovereign Councils of the Hawaiian Homelands Assembly, Na A Ahuhiwa, the Native Hawaiian Bar Association, Hui Kakoo Aina...
West Hawaii Today Series: Is County ["Fair Share" And Impact Fee] Practice Legal?
Posted on February 03, 2009Worthwhile article today from West Hawaii Today (the daily newspaper of the Kona side of the Big Island), "Is county practice legal?" The story details the County's practice of demanding "fair share" payments from property owners and developers who wish...
Florida Regulatory Takings Links
Posted on February 03, 2009Florida's appellate courts have been active lately in the regulatory takings arena. Here are links to summaries and analysis of the decisions. First, from the Florida Land Use Law blog: 5th DCA - Landmark Takings Case: Off Site Exaction a...
Federal Circuit To Bikini Islanders: Get In Line Behind The Auto Companies, The Banks, And Executive Bonuses
Posted on January 30, 2009How's this for a raw deal: not only does the federal government seize both your land and your home, but it also takes your entire country with the intention of detonating multiple thermonuclear weapons where you once lived. Meaning you...
"Ceded Lands" Case Update: Solicitor General Seeks Participation, More Amicus Briefs
Posted on January 30, 2009Here's the latest developments in the "ceded lands" case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert. granted Oct. 1, 2008): The U.S. Solicitor General, who filed an amicus brief supporting the State of Hawaii's arguments, has asked the....
CFC: No Taking Of Attorney's Contingency Fee Agreement By Congressional Limitation Of Fees
Posted on January 30, 2009In Zaid v. United States, No. 08-020C (Jan 22, 2009), the Court of Federal Claims held that an attorney who had a one-third contingent fee arrangement with his client did not have a claim for a taking when Congress placed...
"Ceded Lands" Case Update: More Amicus Briefs, Solicitor General Seeks Oral Argument Participation
Posted on January 30, 2009Here's the latest developments in the "ceded lands" case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert. granted Oct. 1, 2008): The U.S. Solicitor General, whose predecessor filed an amicus brief supporting the State of Hawaii's arguments, has asked...
No Cal. Supreme Court Review Of San Francisco Redevelopment Initiative
Posted on January 29, 2009According to this report from the San Francisco Chronicle, the California Supreme Court has denied review of Defend Bayview Hunters Point Committee v. City and County of San Francisco, 167 Cal. App. 4th, 84 Cal. Rptr. 3d 486 (Cal. Ct....
Cal. Supreme Court Won't Review San Francisco Redevelopment Initiative
Posted on January 29, 2009According to this report from the San Francisco Chronicle, the California Supreme Court has denied review of Defend Bayview Hunters Point Committee v. City and County of San Francisco, 167 Cal. App. 4th, 84 Cal. Rptr. 3d 486 (Cal. Ct....
Cato Institute Podcast: A Story Of Eminent Domain Abuse Featuring Susette Kelo
Posted on January 28, 2009Thanks to Charley Foster for pointing out this podcast of Susette Kelo's recent appearance at the Cato Institute's forum about the book Little Pink House: A True Story of Defiance and Courage, by Jeff Benedict (available from Amazon here): The...
Columbia Takes Manhattan(ville) Update
Posted on January 27, 2009Columbia University in the City of New York (as it calls itself -- is there another?), one of my alma maters, has gone into the eminent domain business (as noted in this post), and is acting on its plans to...
Latest Developments In Maui Affordable Housing Exaction Case
Posted on January 27, 2009For a while now, we've been meaning to post the latest order in the Maui affordable housing case from the U.S. District Court, Kamaole Pointe Development LP v. County of Maui, No. 07-00447 DAE (D. Haw.), but for one reason...
Hawaii Governor On The SCOTUS "Ceded Lands" Case
Posted on January 26, 2009In her state of the state address today, Hawaii Governor Linda Lingle had this to say about the "ceded lands" case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert. granted Oct. 1, 2008):Before concluding I want to take a...
Schedule In Kona Eminent Domain Pretext Case
Posted on January 24, 2009The circuit court has scheduled the next steps in County of Hawaii v. C & J Coupe Family Limited Partnership, No. 28882 (Haw. Dec. 24, 2008), the case in which the Hawaii Supreme Court held that the government must pay...
California Court of Appeal: No TKO Of Eminent Domain Challenge (Video)
Posted on January 23, 2009A delay in publication of a legal notice won't knock out a challenge to the legality of a city's blight designation. In Community Youth Athletic Center v. City of National City, No. D052584 (Jan. 22, 2009), the California Fourth District...
OHA Brief In Ceded Lands Case
Posted on January 23, 2009The Office of Hawaiian Affairs has filed its Brief for the Respondents in the "ceded lands" case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert. granted Oct. 1, 2008). The U.S. Supreme Court is reviewing the Hawaii Supreme Court's...
Reply In Support Of Petition In Pratt v. Cal. Coastal Comm'n - Penn Central And Williamson County
Posted on January 23, 2009The property owner has filed its Reply in Support of Petition for a Writ of Certiorari in Charles A. Pratt Const. Co. v. California Coastal Comm'n, No. 08-668 (cert. petition filed Nov. 18, 2008) (SCOTUS docket report here). The petition...
Federal Circuit: No Taking For Forest Fire
Posted on January 21, 2009In a case we first analyzed here when the lawsuit was dismissed by the Court of Federal Claims, the U.S. Court of Appeals for the Federal Circuit in Cary v. United States, No. 2008-5022 (Jan. 16, 2009) held that the...
Ceded Lands Case Debate - Feb. 12, 2009 - U Hawaii Law School
Posted on January 21, 2009Mark your calendars for Thursday, February 12, 2009. That's the date the Hawaii Federalist Society is sponsoring a debate on the ceded lands case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert. granted Oct. 1, 2008),. The case is...
Cal. Court of Appeals Revisits (Sort of) Landgate: Of Regulatory Takings, Means-End Analysis, and Due Process
Posted on January 20, 2009In a lengthy (70 page) opinion, the California Court of Appeals (Sixth District), in Shaw v. County of Santa Cruz, No. H031108 (filed Dec. 19, 2008, ordered published Jan. 16, 2009), held that the government's denial of a ministerial permit...
Mortgage Modification As A Taking
Posted on January 20, 2009Worth reading: Government's Promise: Taking Away Property?, commentary from U. Chicago lawprof Randy Picker on a NY Times editorial which argues "[t]he first step toward providing the [economic] relief is to include in the package a measure to allow hard-pressed...
A Blustery Day Office Swag Contest
Posted on January 16, 2009In the winter, everywhere else has "snow days." But Hawaii -- obviously -- has not. We have "windy days." Very windy days. Today is one of those days. Schools closed. Sporting events canceled. People evacuated. Even the state courts are...
State & Local Government Condemnation Committee Links
Posted on January 15, 2009Here are links to the cases discussed on the conference call this morning: 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...
Materials From Hawaii Land Use Law Conference
Posted on January 15, 2009To those who attended today's sessions, thank you. Here are the cases and other materials I mentioned in my portion: Shoreline setbacks and equitable estoppel - Brescia v. North Shore Ohana 115 Haw. 477, 168 P.3d 929 (2007) State shoreline...
California Coastal Commission's Brief In Opposition In Charles A. Pratt Construction Co. Cert Petition (Penn Central and Williamson County)
Posted on January 15, 2009The California Coastal Commission has filed its Brief in Opposition to the cert petition in Charles A. Pratt Const. Co. v. California Coastal Comm'n, No. 08-668 (cert. petition filed Nov. 18, 2008) (SCOTUS docket report here). The California Court of...
2008 Land Use In Review: Ripeness Games In Regulatory Takings
Posted on January 14, 2009In 2008, we continued to castigate the Williamson County ripeness rules, culminating in December when we filed an amicus brief urging the Supreme Court to take a harder look at how the "final determination" aspect of the rule is being...
Admin Note: hawaiilawyer.com Email Back Online
Posted on January 13, 2009Thanks to everyonefor your patience while our tech people worked through our email issues. You can resume sending email to us at hawaiilawyer.com.
Latest Gambit In SCOTUS Ceded Lands Case
Posted on January 13, 2009Here's the latest in the "ceded lands" case, now being briefed in the U.S. Supreme Court. The Honolulu Advertiser writes that "OHA looks for some backup," and has drafted a bill, to be considered by the Hawaii Legislature in its...
Owners' Counsel Of America
Posted on January 12, 2009I'm honored to have been designated as the Hawaii member of the Owners' Counsel of America. OCA is "a voluntary network of experienced eminent domain attorneys from every state of the nation, representing property owners facing condemnation or other infringement...
Admin Note: hawaiilawyer.com Email Servers Down
Posted on January 12, 2009If you're trying to reach me (or any of my Damon Key colleagues) via email at the hawaiilawyer.com domain, please note that our email servers are down. The tech people are working on the problem but in case you don't...
Upcoming: Hawaii Land Use Law Conference
Posted on January 12, 2009It's not too late to register to attend the Hawaii Land Use Law Conference, taking place January 15 and 16, 2009, in Honolulu. Items on the agenda include eminent domain, environmental law, transit-oriented development, subdivision requirements, and cultural impact statements...
New York Court Of Appeals To Hear Appeal Challenging Reason For Taking
Posted on January 12, 2009Thanks to Professor Patty Salkin's Law of the Land blog for letting us know that on January 14, 2009, the New York Court of Appeals (that state's highest court) will be hearing oral arguments in Aspen Creek Estates, Ltd. v....
Admin Update: FAIL Mail
Posted on January 12, 2009It looks like the hawaiilawyer.com email outage is lasting longer than anticipated. If you need to email me, use inversecondemnation@gmail.com instead for the time being.
2008 Land Use In Review: The Ninth Circuit Rediscovers Substantive Due Process
Posted on January 10, 2009In a development that began in November 2007 (2005 actually, if the starting point is seen as the U.S. Supreme Court's decision in Lingle v. Chevron, U.S.A., Inc., 544 U.S 528 (2005)), the Ninth Circuit finally ditched Armendariz v. Penman,...
At The ALI-ABA Conference On Eminent Domain And Land Valuation
Posted on January 08, 2009Currently at the annual conference on eminent domain law - as always, well worth attending.In the morning's session, Professor Kanner mentioned the recent decision in County of Hawaii v. C & J Coupe Family Limited Partnership, No. 28882 (Dec. 24,...
Cert Petition Asks: Does Spraying Recycled Sewage Water On A Sacred Mountain "Substantially Burden" Religious Exercise?
Posted on January 07, 2009Thanks to SCOTUSblog for posting the cert petition, filed on January 5, 2008, in Navajo Nation v. United States Forest Service, No. 08A368. The petition seeks review of an en banc Ninth Circuit panel decision holding it was not a...
New Article: The Ninth Circuit Rediscovers Substantive Due Process In Land Use Cases
Posted on January 07, 2009The Zoning and Planning Law Report (Thomson | West) has published my article about the post-Lingle developments in substantive due process in the Ninth Circuit. Download a pdf of the article here. From the introduction:Substantive due process asserted as a...
2008 Land Use In Review: Public Use And Pretext In Eminent Domain
Posted on January 07, 2009One of the bigger developments, at least in Hawaii law, came in the last week of the year. We're talking about the Hawaii Supreme Court's decision in County of Hawaii v. C & J Coupe Family Limited Partnership, No. 28882...
Thank You, Star-Bulletin: Corrections And Clarifications
Posted on January 07, 2009Following up on this post, where we pointed out several errors in a headline and subheadline in a Honolulu Star-Bulletin story on the Hawaii Supreme Court's landmark eminent domain decision in County of Hawaii v. C & J Coupe Family...
2008 Land Use In Review: Shoreline Law
Posted on January 06, 20092008 saw no blockbuster court decisions on shoreline law, just a continuation of existing trends. SetbacksShoreline setback are a "no build" zone on private beachfront property, measured from a "setback line." Hawaii state law establishes a minimum shoreline setback, and...
2008 Land Use In Review: Contested Cases Refined
Posted on January 05, 2009The Hawaii Supreme Court clarified when an agency hearing will be deemed to be a "contested case" in E & J Lounge Operating Co. v. Liquor Comm'n of the City & County of Honolulu, No. 27940 (July 29, 2008). The...
2008 Land Use In Review: Environmental Law
Posted on January 04, 2009We aren't officially an "environmental law" blog, and when we do cover the issue, it is mostly on the periphery. However, in 2008, we hit a couple of significant issues that had some relevance to land use law. First, in...
Headline On Kona Condemnation Cases - Not In The Ballpark
Posted on January 03, 2009I usually try to not take too seriously the headlines attached to a newspaper story or op-ed. After all, an editor -- and not the reporter or op-ed author -- may have written the headline, and it may be designed...
2008 Land Use In Review: Zoning
Posted on January 02, 2009A round up of interesting and notable zoning decisions: Zoning inspectors need a warrant - The US Court of Appeals for the Sixth Circuit, in Jacob v. Township of West Bloomfield, 531 F.3d 385 (6th Cir. July 3, 2008), held...
2008 Land Use In Review
Posted on January 01, 2009Yet another year has come and gone -- our third at this blog, -- so it's time to start off our annual summary of the past year's highlights (or lowlights, depending on your point of view) in land use law...
Pa Court: No Public Use Because Residential Use Is Not "Blight"
Posted on December 31, 2008You own a home built in 2002. A couple of years later, the county redevelopment authority decides that your home, and the properties your neighbors own, would together make a grand site for an industrial park. Your properties are "shovel-ready"...
HAWSCT Declines To Review ICA Decision: No Private Standing To Enforce Land Use Law
Posted on December 30, 2008In a brief order available here, the Hawaii Supreme Court has rejected an application for writ of certiorari, declining to review the Intermediate Court of Appeals' decision in Pono v. Molokai Ranch, Ltd., 119 Haw. 163, 194 P.3d 1126 (2008)....
More Amici Supporting Grant of Cert in Pratt (Penn Central and Williamson County)
Posted on December 30, 2008There have now been a total of five briefs amicus curiae filed supporting the petition for writ of certiorari in Charles A. Pratt Construction Co. v. California Coastal Commission, No. 08-668 (cert. petition filed Nov. 18, 2008) (SCOTUS docket report...
Cal. Court of Appeals: No Record And No Findings By Coastal Commission = No Consideration
Posted on December 30, 2008Section 30010 of California's Public Resource Code provides that the California Coastal Commission may grant a development permit that otherwise could not be granted in order to avoid a taking:The Legislature hereby finds and declares that this division is not...
Further Amici Supporting Grant of Cert in Pratt (Penn Central and Williamson County)
Posted on December 29, 2008Here is the brief amici curiae of the National Association of Home Builders, California Building Industry Association, Building Industry Association Legal Defense Foundation, and Home Builders Association of Northern California urging the U.S. Supreme Court to review the California Court...
Op-Ed Previewing OHA Arguments In SCOTUS Ceded Lands Case: Independent and Adequate State Grounds?
Posted on December 28, 2008It's not often that you see an opinion piece previewing an attorney's arguments in a pending case being published before his or her brief has been filed. Most commonly, if counsel publishes in the op-ed pages about a case, it...
A Holdout
Posted on December 27, 2008The New York Times posts a story, "House Stands as Legacy to Fight Against Developers," about one woman's refusal to sell her modest Seattle, Washington area home to a redeveloper, even when offered $1 million. If a picture is worth...
Show Me The Money (In The Court of Federal Claims), Williamson County Ripeness, And A Possible Circuit Split
Posted on December 26, 2008When the case is captioned "Jerry McGuire v. United States," and involves an inverse condemnation claim seeking compensation from the government, how could anyone resist making a reference to Jerry Maguire, the 1996 Cameron Crowe film that added "show me...
HAWSCT Opinion in Eminent Domain Abuse Cases - Kona Bypass Highway
Posted on December 24, 2008In a major decision regarding eminent domain, the Kelo standard, and whether a taking is for public use, the Hawaii Supreme Court today issued an opinion in County of Hawaii v. Richards, No. 28882, the consolidated appeal from two eminent...
Office Swag Contest
Posted on December 24, 2008For those of you stuck in the office today, a contest: I'll send to the first three people who email me today their very own "limited edition" of my firm's just-released extra-large, cobalt blue coffee mug, shown below. (Don't forget...
Cal. Court of Appeals: No Ongoing Business On Parcel Taken, No Goodwill
Posted on December 23, 2008In City and County of San Francisco v. Coyne, No. A118222 (Cal. Ct. App. 1st Dist. Dec. 5, 2008), the court held that in order to be compensated for goodwill under California law when a parcel is taken by eminent...
HAWSCT: Separation of Powers Prohibits Legislative Transfer of Agency's Regulatory Fees to General Fund
Posted on December 22, 2008How often in an appellate opinion does the court use the term "glom?" [The Appellee] gloms onto the "police power" aspect of the definition [of regulatory fees] in arguing that "Medeiros plainly concern[ed] the 'police power' of 'criminal investigative services,'...
Our Amicus Brief in Pratt Construction Co. v. California Coastal Commission
Posted on December 22, 2008Today, on behalf of the Western Manufactured Housing Communities Association, we (me and my Damon Key colleagues Christi-Anne Kudo Chock and Matt Evans) filed an amicus brief brief urging the U.S. Supreme Court to accept for review the California Court...
Hawaii Appeals Court: Let's Go Surfin' Now, Everybody's Learning How...
Posted on December 19, 2008The Intermediate Court of Appeals (Judges Foley, Nakamura, Fujise on the panel) today issued an opinion in Save Diamond Head Waters LLC v. Hans Hedemann Surf, Inc., No. 27804 (Haw. ICA Dec. 19, 2008), a case about the administrative authority...
Audio Recording of Hawaii Superferry Supreme Court Oral Arguments (mp3)
Posted on December 18, 2008The Court has released the audio recording of this morning's oral arguments in the Hawaii Superferry (part II) case. Download the mp3 here (caution, it is a 40mb file). The archive of this morning's live blog of the arguments is...
More Superferry Round 2 Briefs
Posted on December 17, 2008Just in case you wanted even more to read tonight before tomorrow's Hawaii Supreme Court oral arguments in the Hawaii Superferry appeal redux, posted below is a nearly complete set of briefs. Some are upwards of 2 MB, so you...
Live Blogging The HAWSCT Superferry Oral Arguments 12.18.08
Posted on December 17, 2008Another reminder: tomorrow morning, the "Hawaii Superferry" litigation is back in the Hawaii Supreme Court Round 2, with oral arguments scheduled to commence at 9 a.m. I'll be attending the arguments, and technology and typing skills permitting, live blogging it...
Cal. Court of Appeals: Extension of Ordinance Allows New Inverse Condemnation Challenge
Posted on December 16, 2008When must a landowner challenge a land use regulation she claims illegally impact her property? Talk to a lawyer, and they're usually going to say that you should act sooner than later, and often the time limitations are very short....
The Dark Side of Zoning
Posted on December 15, 2008An interesting op-ed piece in today's Honolulu Star-Bulletin, "Thank zoning laws for your peaceful home," extols the virtues of zoning:It has now been more than 85 years since the residents and city council of the little village of Euclid, Ohio,...
Final Amicus Brief Supporting the State of Hawaii in Ceded Lands Case
Posted on December 15, 2008The State of Washington, along with 31 others have filed an amicus brief in support of the State of Hawaii in the ceded lands case (available here) which argues: The amicus curiae states are deeply concerned with the lower court?s...
Hawaii Superferry Supreme Court Briefs
Posted on December 15, 2008The case that would not go away, the "Hawaii Superferry" litigation, is back in the Hawaii Supreme Court this week for Round 2, with oral arguments scheduled for 9 a.m. on Thursday, December 18, 2008. The Court generally allocates 1/2...
HAWSCT Opinion In U.H. Regents Case
Posted on December 15, 2008The Hawaii Supreme Court today issued an opinion in the case involving holdover University of Hawaii Regents, Hanabusa v. Lingle, No. 29391, posted here.
Cal. Supreme Court: Anti-SLAPP Suit Exemption Not Applicable Unless Entirety Of Case For Public Benefit
Posted on December 15, 2008A "SLAPP suit" is a "strategic lawsuit against public participation," and many states have anti-SLAPP suit statutes designed to thwart retaliatory lawsuits that may chill the public's willingness to exercise First Amendment rights. For example, California's statute defines SLAPP suits...
Book Review: The Complete Guide To Zoning
Posted on December 14, 2008Ever wished you'd have the chance to sit down over a cup of coffee and talk one-on-one with an expert in his or her area of law, especially our favorite topic, Land Use Law? Well, here's your chance to come...
Federal Government in Ceded Lands Case: Sorry Seems To Be The Hardest Word
Posted on December 13, 2008In a significant development and unexpected move, the Solicitor General has filed in the U.S. Supreme Court an amicus brief on behalf of the United States strongly supporting the State of Hawaii's position in the ceded lands case, asserting the...
Intermediate Court of Appeals Land Use Decision Summarized
Posted on December 12, 2008Thanks to Professor Patty Salkin for posting a summary of the Hawaii Intermediate Court of Appeals decision in Pono v. Molokai Ranch, Ltd., 119 Haw. 163, 194 P.3d 1126 (2008), in which "the court concluded, a private citizen does not...
Ceded Lands Case: Federal Government Files Amicus Supporting Hawaii
Posted on December 12, 2008In an significant development, on December 11, 2008, the Solicitor General filed an amicus brief in the ceded lands case now pending before the U.S. Supreme Court. We'll post the brief shortly. The federal government's participation was not expected. This...
SCOTUS Ceded Lands Case: Another Amicus Briefs
Posted on December 11, 2008The Grassroot Institute of Hawaii and the Southeastern Legal Foundation filed an amicus brief in the Hawaii ceded lands case, available here. The brief argues:Hawaii is justly admired as an integrated, racially blended society. It has been called a model...
More Amicus Briefs in SCOTUS Ceded Lands Case
Posted on December 11, 2008The brief of the Commissioner of Public Lands for the State of New Mexico is posted here. The brief of the Center for Constitutional Jurisprudence is posted here.The New Mexico brief explains:Because the express trust created under the Hawaii Admission...
Ceded Lands Case: Pacific Legal Foundation, Cato Institute, Center for Equal Opportunity Amicus Brief
Posted on December 11, 2008Today, we filed an amicus brief in the ceded lands case on behalf of Pacific Legal Foundation, the Cato Institute, and the Center for Equal Opportunity, available here.The core issue of this case is whether a state court, interpreting federal...
Ceded Lands Case: Mountain States Legal Foundation Amicus Brief
Posted on December 11, 2008The Mountain States Legal Foundation, "a nonprofit, public-interest law firm . . . dedicated to bringing before the courts those issues vital to the defense and preservation of individual liberties, the right to own and use property, the free enterprise...
The Fifth Amendment is Not Enough: Bulldozing Free Speech
Posted on December 10, 2008Following up on our earlier post, "'No, I'm Spartacus!'" about the latest foul turn in the Bulldozed saga, the Institute for Justice (the folks who represented Susette Kelo) today announced that they are representing Carla T. Main, Bulldozed's author, in...
Overlawyered on Bulldozed: Royall pain to his critics
Posted on December 10, 2008Overlawyered (chronicling the high cost of our legal system, it proclaims its mission to be) posts an item about the Bulldozed case, which we mentioned earlier today. In Royall pain to his critics, Walter Owens references a post by Jacob...
Procedural Chutzpah: Williamson County in Action
Posted on December 09, 2008Let me make sure I am understanding this properly: a property owner does the right thing under the rules of Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), and brings her federal regulatory...
NY Times on Land and Power on Molokai
Posted on December 08, 2008Worth reading: "In an Age-Old Quest for Balance, an Uncertain Shift" from the New York Times, a story about the land use "Battle of Molokai Ranch" (as the story puts it). If you want to begin to understand the land...
SCOTUS Sets Argument Date for Ceded Lands Case
Posted on December 08, 2008Mark you calendars for Wednesday, February 25, 2009. That's the date the U.S. Supreme Court will hear arguments in the ceded lands case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert. granted Oct. 1, 2008). The argument transcript should...
HAWSCT Cert Briefs in Jurisdiction Case
Posted on December 08, 2008Following up on a post from earlier today, here are the briefs in the Pono v. Molokai Ranch, Ltd. cert petition, which seeks HAWSCT cert review of the Intermediate Court of Appeals' decision, reported at 119 Haw. 163, 194 P.3d...
The Brief Amicus Curiae: How To Win Friends, And Influence Courts
Posted on December 07, 2008Good article at Slate by an ex-SCOTUSblogger, advocating for more "liberal group" amicus participation at the cert stage in cases before the U.S. Supreme Court, "The Early Brief Gets the Worm" --When left-leaning groups ignore an opportunity to tell the...
Hawaii Agriculture at Risk: Water Law and Land Use
Posted on December 06, 2008In theory, Hawaii reveres agriculture: pre-western contact Hawaii was primarily an agrarian society, many of us trace our family's history to the post-contact "plantation days," and today, even environmental groups proclaim they support farmers and ranchers and want to "keep...
State of Hawaii's Merits Brief in SCOTUS Ceded Lands Case
Posted on December 05, 2008The State of Hawaii filed its merits brief in the "ceded lands" case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert. granted Oct. 1, 2008). Download the brief here.The U.S. Supreme Court is reviewing the decision of the Hawaii...
Our Honolulu Advertiser Op-ed on Navy Sonar Case
Posted on December 04, 2008Along with my Damon Key colleague Mark Murakami, I authored a commentary published today by the Honolulu Advertiser about the recent U.S. Supreme Court decision in the Navy sonar case, Winter v. Natural Resources Defense Council, Inc., No. 07-1239 (Nov...
9th Circuit: Revised Opinion in McClung v. City of Sumner
Posted on December 02, 2008A panel of the Ninth Circuit has revised its earlier opinion in McClung v. City of Sumner, No. 07-35231 (Sep. 25, 2008), adding a footnote:On slip Opinion page 13750, insert a new footnote 3 at the bottom of the page...
Cert Denied in Braun
Posted on December 01, 2008The U.S. Supreme Court today issued an order denying review of the Sixth Circuit's decision in Braun v. Ann Arbor Charter Township, 519 F.3d 564 (6th Cir. 2008), a case we discussed here. The petition expressly asked the Court to...
Teleconference on How to Deal With NIMBYs
Posted on December 01, 2008Check this out: an upcoming teleseminar on "Not in My Backyard (NIMBY): Development Resistance." "This teleconference will provide practical, actionable tools to anticipate and avoid community resistance to controversial land use projects and to actively build community enthusiasm for the...
New California Law: You Shall Live Near Transit
Posted on November 28, 2008Given that Honolulu voters recently approved a $4B-plus rail system, an article from the San Francisco Chronicle about a new California law encouraging "local governments and builders to concentrate growth in urban areas or close to public transportation hubs in...
9th Circuit Takes Belt and Suspenders Approach to Takings and Due Process Challenge to Cal. Rent Control Ordinance
Posted on November 28, 2008Revisiting a decision from September 2007, the Ninth Circuit revised the opinion in Equities Lifestyle Prop., Inc., v. County of San Luis Obispo (No. 05-55406), a decision we originally analyzed here. In the original decision, the Ninth Circuit affirmed the...
Too Late For "Never Mind" in the Ceded Lands Case
Posted on November 25, 2008On October 1, 2008, the U.S. Supreme Court agreed to review the Hawaii Supreme Court's decision in Office of Hawaiian Affairs v. Housing and Community Dev. Corp. of Hawaii, 117 Haw. 174, 177 P.3d 884 (Jan. 31, 2008). That decision...
Property Law Blog of Note
Posted on November 25, 2008Head's up on a property law blog I've been following for a while, but haven't had a chance to "review" until now. It's Grand Theft Property, the blog authored by Florida attorney James S. Mattson. His posts include some of...
"No, I'm Spartacus!"
Posted on November 22, 2008Thanks to Alan Ackerman for alerting us to the latest horrible development in the eminent domain cases out of Freeport, Texas. Recall that in Western Seafood Co. v. United States, No 04-41196 (5th Cir., Oct. 11, 2006), the court held...
Best Plaintiff Group Name: Association of Irritated Residents
Posted on November 19, 2008An opinion today from the California Fifth District Court of Appeals: Association of Irritated Residents v. San Joaquin Valley Unified Air Pollution Control Dist., No. F03956 (Nov. 11, 2008). The case involves whether a local air pollution control agency must...
Sierra Club Hawaii's New Executive Director
Posted on November 18, 2008The Sierra Club of Hawaii has named my former Damon Key colleague Robert D. Harris as its new Executive Director, as reported by Pacific Business News here. Robert is one heckuva attorney, and no doubt he will lead the organization...
New Cert Petition on Penn Central and (Yet Again) Williamson County
Posted on November 18, 2008When four justices of the U.S. Supreme Court tell you that a case needs to be overruled, and district judges acknowledge the case "has led to a number of serious problems," you know something is seriously wrong. Yes, we're back...
SCOTUS "Ceded Lands" Case Update
Posted on November 17, 2008Last week, the U.S. Supreme Court extended the time for filing merits and amicus briefs in the "ceded lands" case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert. granted Oct. 1, 2008). Here's the revised briefing schedule:The time within...
Upcoming Event: "Ninth Circuit Practice Tips"
Posted on November 17, 2008On Thursday, November 20, 2008 from 1:15 to 2:00 p.m., the Hawaii Chapter of the Federal Bar Association is sponsoring "Ninth Circuit Practice Tips," featuring three judges of the U.S. Court of Appeals for the Ninth Circuit:Hon. Mary M. SchroederHon....
Presenting: the Intermediate Court of Appeals of Hawaii (ICA)
Posted on November 16, 2008Check out today's Honolulu Star-Bulletin for "Change in law gives panel new influence," a story about the Intermediate Court of Appeals, which is now the court of first impression for appeals-of-right in the Hawaii state court system. Until 2006, when...
Resistance is Futile: Inversecondemnation.com Now on Twitter
Posted on November 15, 2008In 1994, at the dawn of mass public use of the internet, I wrote an article for the Journal of Legal Education about the benefits and dangers of using technology as a pedagogical crutch in law schools: ?Hey, Did You...
Overrule Williamson County
Posted on November 14, 2008On November 25, 2008, the Supreme Court will consider whether to review the Sixth Circuit's decision in Braun v. Ann Arbor Charter Township, 519 F.3d 564 (6th Cir. 2008), a decision we analyzed here. The petition expressly asks the Court...
Navy Sonar Case Round-up
Posted on November 13, 2008Yesterday's Supreme Court decision in Winter v. Natural Resources Defense Council, Inc., No. 07-1239 has generated a fair amount of media and blog coverage, both nationally and in Hawaii. Why do we care about a case involving the Navy's use...
Ninth Circuit Coming to Honolulu Nov. 17 - 21
Posted on November 13, 2008A panel of the U.S. Court of Appeals for the Ninth Circuit is riding circuit to Honolulu next week to hear oral arguments. The arguments will be held in the sixth floor courtroom at 1132 Bishop Street each day but...
Decision in Navy Sonar Case
Posted on November 12, 2008The U.S. Supreme Court issued a ruling today in Winter v. Natural Resources Defense Council, Inc., No. 07-1239, the case about the Navy's use of mid-frequency active sonar in training exercises off the California coast. The Court vacated the injunction...
Two New Categories: Equal Protection, 42 U.S.C. § 1983/Civil Rights
Posted on November 08, 2008Administrative note: I've added two new categories for indexing posts:Equal Protection 42 U.S.C. § 1983 | Civil Rights Equal protection comes up often in land use litigation when the government discriminates against a person for belonging to a protected class,...
New Blog on State and Municipal Government and Land Use Law
Posted on November 08, 2008So much of "land use" and eminent domain law also involves the law of state, local, and municipal law. Thus, its good to see the folks at the International Municipal Lawyers Association have started blogging. Check out IMLA's Local Government...
Pleading Class of One Equal Protection Land Use Claims
Posted on November 07, 2008The most easily recognizable equal protection claim is one in which the plaintiff claims membership in a protected group, and some form of discrimination against the class. Another type of equal protection claim is the "class of one" claim under...
Kauai Springs Update: Civil Rights Case, Kauai Planning Commission Appeals
Posted on November 05, 2008The latest on the Kauai Springs cases. In the civil rights case, we've filed a motion for Kauai Springs seeking summary judgment on the substantive due process, permit approval, and 42 U.S.C. § 1983 claims. Download a copy here. The...
Land Use Law Round-Up
Posted on November 05, 2008Several interesting land-use law related posts from other law bloggers worth noting: The Real Estate and Construction Law Blog posts a detailed summary and analysis of the Save Tara case from the California Supreme Court about development agreements and CEQA...
D-Day Draws Nigh For Honolulu Rail, Condemnations
Posted on November 02, 2008On November 4, 2008, Honolulu voters are being asked to say yes or no to a proposed amendment to the Honolulu charter: Shall the powers, duties, and functions of the city, through its director of transportation services, include establishment of...
Clearing Up Myths About Hawaii Eminent Domain Law and the Rail
Posted on November 02, 2008In reviewing some of the comments posted on the Honolulu Advertiser's November 1 report "Rail study doesn't list all affected properties," it seems several of the commenters have fairly severe misconceptions about how eminent domain law works in Hawaii...
Cert Petition: Overrule Williamson County
Posted on October 31, 2008What more could we possible say about the bizarre ripeness/issue preclusion Catch-22 brought on by Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985) that we haven't said before, several times? The rule is...
When Considering The Environmental Impacts of Tara, Tomorrow is Not Another Day
Posted on October 30, 2008I don't pretend to be an expert on the California Environmental Quality Act -- 1700-page treatises are devoted to CEQA's nuances -- but I know enough to realize that the California Supreme Court's decision in Save Tara v. City of...
HAWSCT Curtails Definition of "Use of State or County Lands" in Environmental Law
Posted on October 29, 2008In Nuuanu Valley Ass'n v. City & County of Honolulu, No. 28599 (Oct. 24, 2008), the Supreme Court of Hawaii clarified when a project that is not being built on state or county land meets the definition of "use" of...
Charles W. Key (1929-2008)
Posted on October 28, 2008This post is not about inverse condemnation, eminent domain, or land use law. It is about my colleague, law partner, and friend Charles W. Key. Charlie died at home September 10, 2008. He was 79. Charlie was a man of...
Key Player in Penn Central Case Obit
Posted on October 24, 2008The New York Times posts the obituary of Dorothy Miner, a key player in the case that resulted in Penn Central Trans. Co. v. New York City, 438 U.S. 104 (1978), the U.S. Supreme Court case that gave us the...
Cert Petition in AmeriSource: Government Destruction of Evidence Seized From Innocent Third Party A Taking?
Posted on October 22, 2008A pharmaceutical company whose legal prescription drugs were seized as evidence against a third party by the federal government which then let the expiration date pass rendering the drugs worthless, has petitioned the U.S. Supreme Court to review the Federal...
US Seeks Cert Review in the Mojave Cross Case
Posted on October 22, 2008Thanks to Professor Friedman's Religion Clause blog for the post about the federal government seeking Supreme Court review of the Ninth Circuit's decision in Buono v. Kempthorne, No. 05-55852 (Sep. 6, 2007). In that case, the Ninth Circuit invalidated a...
HAWICA: No Private Right of Action to Enforce Land Use Laws
Posted on October 21, 2008In a lengthy opinion, the Hawaii Intermediate Court of Appeals in Pono v. Molokai Ranch, Ltd., No. 28359 (Oct. 21, 2008), held that the State Land Use Law, Haw. Rev. Stat. ch. 205, does not create a private right of...
Settling Land Use Litigation: Private Agreements and Public Process
Posted on October 20, 2008A worthwhile article in the latest edition of The Urban Lawyer about settling land use disputes with processes that may not adhere strictly to the usual permit consideration procedures. Here's the summary from the ABA's site:Paul D. Wilson, Of Synagogues...
California Court of Appeals: Property Owners Have Constitutional Rights!
Posted on October 17, 2008Interesting decision from the California Second District Court of Appeals in Manufactured Home Communities, Inc. v. County of San Luis Obispo, No. B196426 (Oct. 15, 2008). The case involves a writ of administrative mandate (administrative appeal for you non-Californians) reviewing...
Hawaii Farm Bureau Federation: Materials From Today's Discussion
Posted on October 17, 2008Here are the materials from today's discussion: a summary of Hawaii's "buffer bill" -- printable 1-page pdf here. text of the buffer bill a short article summarizing Hawaii's Right to Farm Act from Hawaii Agriculture magazine the Hawaii Right to...
Hawaii's "Buffer Bill"
Posted on October 17, 2008Farmers and ranchers should be aware of a new law passed by the Legislature last session that adds another layer of protection for Hawaii agriculture. A new section was added to the Land Use Law (chapter 205) requiring that before...
Oral Arguments in Kona Eminent Domain Abuse Appeals: Damages for Failed Condemnations, Abatement, and Pretext
Posted on October 17, 2008West Hawaii Today reports on yesterday's oral arguments in the Supreme Court of Hawaii in County of Hawaii v. Richards, the appeal from two eminent domain actions on the Big Island of Hawaii. [Disclosure: my Damon Key colleagues Ken Kupchak,...
Ninth Circuit: No Taking of Interest on Abandoned (Escheated) Property
Posted on October 15, 2008You snooze, you lose. That's the lesson from Turnacliff v. Westly, No. 07-15287 (Oct. 15, 2008), where the Ninth Circuit rejected a claim that California's escheat statute, which sets a rate for interest on abandoned property, violated the Takings Clause...
The Navy Sonar Case and Kelo
Posted on October 13, 2008You may have been wondering why we've been closely following the U.S. Supreme Court arguments in Winter v. Natural Resources Defense Council, Inc., No. 07-1239, the case about the Navy's use of mid-frequency active sonar in training exercises off the...
California Court of Appeals: Development Moratorium Challenge Not Ripe
Posted on October 09, 2008You have to wait until the government enacts a lousy law before you can run to court to challenge it.That's the lesson from Stonehouse Homes v. City of Sierra Madre, No. B195552 (Oct. 9, 2008), in which California's Second District...
Oral Arguments in Navy Sonar Case
Posted on October 08, 2008The US Supreme Court heard oral arguments today in Winter v. Natural Resources Defense Council, Inc., No. 07-1239, the case about the Navy's use of mid-frequency active (MFA) sonar in training exercises off the California coast. My Damon Key colleague...
Government Reply Brief in Navy Sonar Case
Posted on October 06, 2008Just a couple of days before oral argument, the U.S. government has filed its Reply Brief in the U.S. Supreme Court case involving the Navy's use of sonar off the California coast. We filed an amicus brief in the case...
Honolulu Star Bulletin: Court Should Reverse Ceded Lands Case
Posted on October 06, 2008The title for today's editorial in the Honolulu Star Bulletin about the "ceded lands" case now before the U.S. Supreme Court says it all: "Court should reverse freeze on land sales." The Lingle administration should be encouraged by the U.S....
Ninth Circuit: Owner Has No Right of Access to Property From Federal Land
Posted on October 02, 2008Mr. McFarland's property is surrounded by Glacier National Park in Montana. The only way to get to the property in the winter is by Route 7 (the Park Service prohibits snowmobiles). The Service closes the road to the public, but...
Ninth Circuit: Post-Taking Sales Admissible in Federal Condemnation
Posted on October 01, 2008In United States v. 4.85 Acres of Land, No. 07-35310 (Sep. 29, 2008), the US Court of Appeals for the Ninth Circuit held that the trial court should not have refused to admit evidence of sales at properties nearby the...
Cal. Court of Appeals: Development Moratorium a Taking Under Lucas
Posted on October 01, 2008The California Court of Appeals, Second District (Los Angeles) today struck down a municipal moratorium on development, which in some cases prevented landowners from developing their properties for 30 years:We conclude that the resolution, by implementing the moratorium and continuing...
Media Coverage of Supreme Court Ceded Lands Case Review
Posted on October 01, 2008More on the U.S. Supreme Court's decision to review Hawaii's "ceded lands" case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert. granted Oct. 1, 2008): The Honolulu Advertiser's report. The Star-Bulletin's report is here. Hawaii Attorney General's press release:...
Hawaii Ceded Lands Case: U.S. Supreme Court Grants Cert Review
Posted on October 01, 2008The U.S. Supreme Court has granted the State of Hawaii's petition for a writ of certiorari to review the Hawaii Supreme Court's decision in the "ceded lands" case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert. petition filed Apr....
Brief in Opposition in Navigational Ban Case
Posted on September 30, 2008The State of Hawaii has filed its Brief in Opposition in UFO Chuting of Hawaii, Inc. v. Thelen, No. 07-1427 (petition for cert. filed May 12, 2008). The petition seeks review of the Ninth Circuit's decision in UFO Chuting of...
Supreme Court to Decide Monday Whether to Review Ceded Lands Case
Posted on September 28, 2008Monday is the first day of the U.S. Supreme Court's new term, and it will decide whether to review a slew of cases, including the "ceded lands" case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert. petition filed Apr....
Links From UH Historic Preservation Workshop
Posted on September 27, 2008To those who attended today's workshop at the University of Hawaii law school, Hawaii State Historic Preservation Laws: Reclaiming the Past, Shaping the Future, thank you. Here are links to the cases I mentioned in my presentation. Penn Central Trans...
New Eminent Domain Law Blog
Posted on September 26, 2008Well, not exactly new (its been on line for a couple of months, but I only discovered it recently). With posts by some of the more stellar practitioners of the fine art of eminent domain defense. The Eminent Domain Law...
Federal Circuit: Government Diversion of Water For Fish Ladder is Per Se Taking
Posted on September 25, 2008A very important decision today from the US Court of Appeals for the Federal Circuit. In Casitas Municipal Water District v. United States, No. 2007-5153 (Sep. 25, 2008), the court held that contractual water rights were taken when the federal...
Ninth Circuit: Legislative Exactions Not Subject to Nollan/Dolan
Posted on September 25, 2008"This case presents an issue of first impression in this Circuit ? whether a legislative, generally applicable development condition that does not require the owner to relinquish rights in the real property, as opposed to an adjudicative land-use exaction, should...
HAWSCT: Order Denying Expungment of Lis Pendens is Appealable Collateral Order
Posted on September 19, 2008Title says it all. Canales v. Artiga, No. 28908 (Sep. 19, 2008) (per curiam).
Cal. Court of Appeals: Public Trust Extends to Wildlife, Plaintiffs Must Sue Enforcement Agency for Breach
Posted on September 18, 2008The California Court of Appeals, First District (San Francisco and other Northern California counties) in Center for Biological Diversity, Inc. v. FPL Group, Inc., No. A116362 (Sep. 18, 2008) held thatThe plaintiffs brought suit against the owners and operators of...
The Fifth Amendment and the Eighth Commandment
Posted on September 18, 2008Professor Kent Schooland has posted "Eminent Domain and the Eighth Commandment," a piece with his thoughts about the morality of condemning property and the system of "just compensation."Given the realities of eminent domain, perhaps we should prepare our children with...
Further (Final?) Amicus Briefs in Navy Sonar Case
Posted on September 17, 2008Three more amicus briefs have been filed in Winter v. Natural Resources Defense Council, Inc., No. 07-1239, the case about the Navy's use of mid-frequency active (MFA) sonar in training exercises off the California coast: Brief of two UCLA law...
Land Use Law Round-up
Posted on September 16, 2008Some interesting items from around the land use law blogosphere: A write up of an Eleventh Circuit (which covers Alabama, Florida, and Georgia) decision striking down as unconstitutional a municipal ordinance that prohibited national chain retail stores because it violates...
Ecological Society Amicus Brief in Navy Sonar Case
Posted on September 15, 2008The Ecological Society of America has filed a brief amicus curiae urging the Supreme Court to uphold the Ninth Circuit's injunction in Winter v. Natural Resources Defense Council, Inc., No. 07-1239, the case about the Navy's use of mid-frequency active...
Transcript of Arguments in Maui Affordable Housing Exaction Case
Posted on September 14, 2008The transcript of the June 2, 2008 arguments in the federal lawsuit challenging Maui's affordable ("workforce") housing exaction have been released. That hearing resulted in a lengthy opinion by the District Court holding that the plaintiff's Nollan/Dolan claims were not...
Insurance Law Hawaii Named a "Top 50 Blog for Insurance"
Posted on September 14, 2008Insurance Law Hawaii, the law blog authored by my Damon Key colleagues Robert Harris and Tred Eyerly which covers insurance coverage issues, has been selected as one of LexisNexis' Top 50 Blogs for Insurance. "These blogsites contain some of the...
Court Strikes Facial Due Process and Equal Protection Claims in Maui Affordable Housing Exaction Case
Posted on September 13, 2008The US District Court for the District of Hawaii has granted (in part) the County of Maui's motion for reconsideration of the court's earlier order granting in part and denying in part the County's summary judgment motion. Here's a copy...
Upcoming UH Law School Workshop on Preservation Laws
Posted on September 13, 2008Mark your calendars for Saturday, September 27, 2008. Ka Huli Ao Center for Excellence in Native Hawaiian Law at the University of Hawaii School of Law will be presenting a workshop "Hawaii State Historic Preservation Laws: Reclaiming the Past, Shaping...
Ninth Circuit: Court Has No Jurisdiction to Review Corps' Clean Water Act Jurisdictional Determination
Posted on September 12, 2008In a determination by the Corps of Engineers that property contains "waters of the United States" and is therefore subject to regulation under the Clean Water Act a "final agency action" subject to judicial review under the Administrative Procedures Act?...
Ninth Circuit: Local Zoning Ordinance Does Not Conflict With Federal Statute
Posted on September 11, 2008District Court: San Diego county's zoning ordinance -- which "imposes restrictions and permit requirements on the construction and location of wireless telecommunications facilities" -- conflicts with federal law, and is preempted. The county is permanently enjoined from enforcing the zoning...
NRDC Brief in Navy Sonar Case
Posted on September 09, 2008The Natural Resources Defense Council has filed its brief in the US Supreme Court case about the Navy's use of mid-frequency active (MFA) sonar in training exercises off the California coast, Winter v. Natural Resources Defense Council, Inc., No. 07-1239:The...
California Coastal Commission Brief in Navy Sonar Case
Posted on September 08, 2008The California Coastal Commission today filed its brief in the U.S. Supreme Court case about the Navy's use of mid-frequency active (MFA) sonar in training exercises off the California coast, Winter v. Natural Resources Defense Council, Inc., No. 07-1239...
Kanner on Midkiff
Posted on September 07, 2008For an interesting take on Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229 (1984) (the pre-Kelo case that equated the Public Use Clause with the police power) check out Professor Gideon Kanner's summary of the case in his recent post...
9th Circuit: No First Amendment, NEPA Violation in Kauai Superferry Protest
Posted on September 05, 2008In a brief opinion (the case was decided without oral argument), the Ninth Circuit affirmed the Hawaii district court's dismissal of claims that the security zone established by the U.S. Coast Guard violated the protester's First Amendment rights. Even if...
Oral Argument Scheduled in Ninth Circuit Maui Vacation Rental Appeal
Posted on September 04, 2008The Ninth Circuit has scheduled oral arguments in Maui Vacation Rental Association, Inc. v. County of Maui, No. 08-15251, the Ninth Circuit appeal from the Hawaii district court's dismissal of MVRA's complaint which sought to declare Maui's shut down of...
My So-Called Exaction Case: More on Action Apartment
Posted on September 04, 2008When a court labels the Nollan/Dolan line of decisions "so-called exaction cases" (and your claim is that an exaction is not related or proportional) you know right away you are in trouble.First, the dry summary. In Action Apartment Ass'n v....
Eminent Domain and the Holy Rail: "Dear Homeowner" Letters in the Mail?
Posted on August 29, 2008In a story titled "Honolulu notifying landowners in way of planned rail route," the Honolulu Advertiser reports "The city has started notifying residents living in the path of the planned $3.7 billion elevated commuter rail that all or part of...
California Court Rejects Facial Nollan/Dolan Claim to Affordable Housing Exaction
Posted on August 29, 2008In Action Apartment Ass'n v. City of Santa Monica, No. B201176 (Aug. 28, 2008), the California Court of Appeal (Second District) denied a facial challenge to the city of Santa Monica's affordable housing exaction ordinance. The court relied upon the....
Ninth Circuit: City's (Alleged) Failure to Enforce the Zoning Code Is Not A Substantive Due Process Violation (Oh, And Armendariz is Still Overruled)
Posted on August 28, 2008In Shanks v. Byrd, No. 06-35665 (Aug. 27, 2008), the Ninth Circuit held that a municipality's alleged failure to enforce its zoning laws was not a violation of the Fourteenth Amendment.Developers who convert homes into student residents apparently did not...
Ninth Circuit: Unions Have Right Under California Constitution to Picket and Handbill in Shopping Centers
Posted on August 26, 2008In a 2-1 decision applying California law, the U.S. Court of Appeals for the Ninth Circuit held in United Brotherhood of Carpenters and Joiners of America Local 848 v. National Labor Relations Bd., No. 05-75295 (Aug. 25, 2008), held that...
Cert Petition Asks Supreme Court to Overrule Williamson County
Posted on August 26, 2008The property owners have asked the U.S. Supreme Court to review the Sixth Circuit's decision in Braun v. Ann Arbor Charter Township, 519 F.3d 564 (6th Cir. 2008), a decision we analyzed here. The cert petition contains three Questions Presented:1....
Latest Developments in Maui Affordable Housing Exaction Case
Posted on August 25, 2008New filings in the federal district court litigation challenging the County of Maui's "workforce housing" ordinance. Enacted in 2006, the Maui ordinance imposes a 40% to 50% affordable requirement on most development, including the subdivision of land...
HAWSCT: Contested Case Broadly Defined
Posted on August 24, 2008In a decision that at first blush seems to have little to do with land use law, the Hawaii Supreme Court reiterated the standard for when an agency hearing is a "contested case" under the Administrative Procedures Act. The issue...
More on Oral Arguments in Kona Eminent Domain Abuse Appeal
Posted on August 22, 2008As noted in this post, the Supreme Court of Hawaii has scheduled oral arguments in the consolidated appeal from two eminent domain lawsuits filed by the County of Hawaii in 2000 and 2005. Today's West Hawaii Today has this story...
More on Kauai Springs Zoning Permit Appeal Victory
Posted on August 22, 2008From today's Honolulu Star-Bulletin: Judge approves company's permits
Victory in Kauai Springs Zoning Permit Appeal
Posted on August 21, 2008Yesterday, the Kauai circuit court granted a permanent injunction, and ordered that Kauai Springs's applications for three zoning permits should not have been denied by the Kauai Planning Commission in January 2007. The case is an appeal from an agency...
Oral Argument Scheduled in Kona Eminent Domain Appeals: Damages for Failed Condemnations, Abatement, and Pretext
Posted on August 20, 2008The Supreme Court of Hawaii has scheduled oral arguments in County of Hawaii v. Richards, No. 28882, the consolidated appeal from two eminent domain lawsuits filed by the County in 2000 and 2005. The issues in the case include: application...
Washington Supreme Court: Growth Board Can't Grow Its Powers
Posted on August 17, 2008How much growth is "too much," and who gets to make that decision under Washington law? In Thurston County v. Western Washington Growth Management Hearings Board, No. 80115-1 (Aug. 14, 2008), the Washington Supreme Court issued an interesting -- but....
Additional Amicus Briefs in Navy Sonar Case
Posted on August 16, 2008Three more amicus briefs have been filed in the U.S. Supreme Court case about the Navy's use of mid-frequency active (MFA) sonar in training exercises off the California coast, Winter v. Natural Resources Defense Council, Inc., No. 07-1239. The California...
Zoning Inspectors Need A Warrant
Posted on August 14, 2008An interesting Sixth Circuit case summarized on Law of the Land by Professor Patty Salkin, Jacob v. Township of West Bloomfield, 531 F.3d 385 (6th Cir. July 3, 2008), which held that zoning inspectors are required by the Fourth Amendment's...
Admirals' Amicus Brief in SCOTUS Navy Sonar Case
Posted on August 14, 2008Today, we filed a brief amicus curiae in the case now pending in the U.S. Supreme Court about the Navy's use of mid-frequency active (MFA) sonar in training exercises off the California coast, Winter v. Natural Resources Defense Council, Inc.,...
Three Times The Pain, And Your Own Self To Blame*
Posted on August 13, 2008So the federal government tells you that the device you are making is not a "machine gun" and you go ahead and start to manufacture them. Times change, though, and three years later "upon further review" (as they say in...
Coastal Land Use Law Seminar
Posted on August 12, 2008There is still time to sign up to attend an upcoming seminar, Coastal Engineering and Land Use Issues, in Honolulu. It's being held on Thursday, August 14, 2008, at at Hilton Waikiki Prince Kuhio Hotel. My colleagues and fellow law...
New Jersey: Blight Not Right
Posted on August 08, 2008In a case a lot of folks have been following, a New Jersey appellate court yesterday struck down an attempt to declare properties "blighted." Turns out these properties in a residential neighborhood which was proposed to be cleared for luxury...
Cal. Court of Appeals: Goverment Does Not Have To Own The Entire Faulty Drainage System To Be Liable For Inverse Condemnation
Posted on August 04, 2008An interesting decision from the California Court of Appeals (First Appellate District) about a distinct branch of inverse condemnation law -- government liability for flooding and erosion. Generally, any physical invasion of property by or caused by the government, no...
Takings Claim Goes From State Court To Federal Court, And Now Back To State Court
Posted on August 03, 2008Here is what the ripeness requirements of Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985) have brought us: a seemingly endless procedural game where property owners are forced to keep guessing which shell the pea is...
Opposition To Reconsideration Motion In Maui Affordable Housing Exaction Case
Posted on July 31, 2008The property owner has filed its brief in opposition to the County of Maui's motion for reconsideration of the court's recent decision in the federal court challenge to the County's 40-50% affordable housing exaction, Kamaole Pointe Development LP v. County...
Ninth Circuit: "Lawyers Must Eat, So They Generally Won?t Take Cases Without A Reasonable Prospect Of Getting Paid."
Posted on July 29, 2008In Moreno v. City of Sacramento, No. 06-15021 (9th Cir. July 28, 2008), the Ninth Circuit clarified the rules for calculating "prevailing party" attorneys fees in civil rights cases under 42 U.S.C. § 1988. The district court rejected the plaintiff's....
Zoning Can Regulate Use Of Property, Not Ownership
Posted on July 25, 2008A noteworthy case from the North Carolina Court of Appeals about the limits Euclidean zoning. Although the decision was issued in March 2008, it seems no one else has posted on the case, so we will. In City of Wilmington...
County Motion For Reconsideration in Maui Affordable Housing Exaction Case
Posted on July 23, 2008The County of Maui has asked the federal court to reconsider its recent order granting in part and denying in part the County's summary judgment motion. A Maui property owner challenged the County's "workforce housing" exaction ordinance, which requires a...
State's Reply in Ceded Lands Case
Posted on July 18, 2008The State of Hawaii has filed its Reply Brief to the Office of Hawaiian Affairs' Brief in Opposition in the "ceded lands" case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert. petition filed Apr. 29, 2008). The State has...
CFC: No "Border Patrol" Servitude
Posted on July 14, 2008In D & D Land Holdings v. United States, No. 06-877L (filed under seal: June 25, 2008, reissued: June 30, 2008), the Court of Federal Claims held the landowner's claim that the Border Patrol's activities on its land resulted in...
Protesting Eminent Domain Abuse
Posted on July 13, 2008An interesting story in the LA Times about eminent domain abuse and free speech in St. Louis, Missouri, "Political protest hits a brick wall." The story details the conflict between a property owner who commissioned a two-story mural on the...
Washington (State) Court Of Appeals: One-Size-Fits-All Open Space Regulation Is Not Roughly Proportional
Posted on July 10, 2008In Citizens' Alliance for Property Rights v. Sims, No. 59416-8-1 (Wash. Ct. App. July 7, 2008), the Court of Appeals of the State of Washington held that a county ordinance which prohibited a landowner from clearing 50% to 65% of...
Brief in Opposition in Ceded Lands Case
Posted on July 09, 2008The State of Hawaii Office of Hawaiian Affairs has filed its Brief in Opposition, arguing the U.S. Supreme Court should not review the "ceded lands" case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert. petition filed Apr. 29, 2008)....
Op-Ed on GMO Algae Case
Posted on July 07, 2008Check out Jay Fidell's op-ed in the Honolulu Advertiser, "Appeals court decision threatens our biotech sector" about the recent Intermediate Court of Appeals decision in Ohana Pale Ke Ao v. Bd. of Agriculture, State of Hawaii, No. 27855 (May 21,...
Nollan/Dolan Challenge to Maui's 50% Housing Exaction Is A Takings Claim Subject To Williamson County
Posted on July 03, 2008Relying on Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985), the US District Court for the District of Hawaii today denied a property owner's motion for summary judgment in a case challenging the County of Maui's...
Professor Tribe on Wilkie v. Robbins: Death by a Thousand Cuts
Posted on June 30, 2008I've finally had a chance to read the article posted on SSRN by Professor Laurence Tribe about the Supreme Court's decision in Wilkie v. Robbins, 127 S. Ct. 2588 (2007), "Death by a Thousand Cuts: Constitutional Wrongs without Remedies after...
Calling Bill Clinton: the Ninth Circuit Has Your Answer About What The Meaning of "Is" Is
Posted on June 26, 2008This is only tangentially related to the usual topics of this blog, but given the first sentence in the Ninth Circuit's opinion in Guidiville Band of Pomo Indians v. NGV Gaming, Ltd., No. 05-17066 (June 26, 2008), I could not...
Seminar: Land Use Institute - Planning, Regulation, Litigation, Eminent Domain and Compensation (August 13-16)
Posted on June 25, 2008Get ready for this year's Land Use Institute conference on "Planning, Regulation, Litigation, Eminent Domain, and Compensation," to be held in Boston on August 13-16, 2008. I can't attend this year, but have in the past, and like all ALI-ABA...
Ninth Circuit Rejects Public Use Challenge to Taking for Power Grid
Posted on June 24, 2008In United States v. 14.02 Acres of Land, More or Less in Fresno County, No. 05-17347 (Jun. 24, 2008), the Ninth Circuit upheld a taking by the federal government for the Western Area Power Administration against challenges that the taking...
Note to Self: Avoid June 23 at the Supreme Court
Posted on June 23, 2008If my office ever takes another Fifth Amendment case up to the U.S. Supreme Court (my Damon Key colleagues Charlie Bocken and Diane Hastert argued and won Kaiser Aetna v. United States, 444 U.S. 164 (1979)), we're going to do...
Cert Denied in Three Cases
Posted on June 23, 2008The US Supreme Court today denied review to three cases we've been following: Goldstein v. Pataki, No. 07-1247 (petition for cert. filed Mar. 31, 2008) (pleading pretext post-Kelo) - Justice Alito would have granted the petition. Justice Alito had not...
Reply Brief in Ninth Circuit Maui Vacation Rental Appeal
Posted on June 23, 2008Today we filed the Reply Brief (925kb pdf) in Maui Vacation Rental Association, Inc. v. County of Maui, No. 08-15251, the Ninth Circuit appeal from the Hawaii district court's dismissal of MVRA's complaint which sought to declare Maui's shut down...
Court of Federal Claims Awards Compensation for Taking of Vested Water Rights
Posted on June 22, 2008The speed of information on the internet sure is fast. I was preparing a post summarizing the recent Court of Federal Claims decision in Estate of Hage v. United States, No. 91-1470L (May 6, 2008), which awarded Nevada property owners...
Honolulu Star-Bulletin Features Damon Key Law Blogs
Posted on June 22, 2008In "Blogs are not just for venting anymore," Erika Engle's "TheBuzz" column features four Damon Key attorneys who blog about the law: Mark Murakami, Robert Harris, Tred Eyerly, and me. Our firm is pretty "bloggish," and between the four of...
Federal Circuit En Banc Petition in AmeriSource
Posted on June 18, 2008The property owner has filed a Petition for Rehearing and Suggestion for Rehearing En Banc in AmeriSource Corp. v. United States, No. 07-1521 (Fed. Cir. May 1, 2008). In that case, the Federal Circuit held that when an innocent party's...
Public Use/Kelo Round Up
Posted on June 17, 2008Several items today with a common theme of eminent domain and public use - PropertyProf Blog posts a link to Professor Richard Epstein's latest article, "Public Use in a Post-Kelo World." I agree with Professor Barros' recommendation: "Given the author,...
Kauai Springs Zoning Permit Appeal: Reply Brief
Posted on June 17, 2008Yesterday, we filed the Reply Brief in Kauai Springs' appeal from the January 2007 decision by the Kauai Planning Commission to deny three zoning permits to the small, Kauai-family-owned water bottling company. For more information about the case, here are...
Amicus Brief: A State May Not Ban Navigation For Five Months Without Interfering With Federal Navigation Rights
Posted on June 16, 2008Today my Damon Key colleagues Mark Murakami, Christi-Anne Kudo Chock, and I filed for the Ocean Tourism Coalition a brief amicus curiae (88kb pdf) in the US Supreme Court supporting the petition for writ of certiorari filed in UFO Chuting...
Hawaii Blog: Hawaii Firm Spotlights Legal Blogs
Posted on June 12, 2008A little shameless self-promotion, as well as well-deserved recognition for my fellow Damon Key law bloggers Mark Murakami, Robert Harris and Tred Eyerly: Ryan Ozawa has posted a summary of our firm's adventures in law blogging on his Hawaii Blog...
Honolulu Paper on Ceded Lands Case: "Hawaii Supreme Court ruling tampers with federalism"
Posted on June 12, 2008Today's editorial in the Honolulu Star Bulletin's is about the "ceded lands" case: Hawaii's Supreme Court ruled in January that a 1993 joint resolution by Congress apologizing for the overthrow of the monarchy a century earlier requires that ceded lands...
More on Amicus Brief of 29 States in Ceded Lands Case
Posted on June 11, 2008Today's Honolulu Star-Bulletin reports "29 other state oppose ruling on ceded lands," about the amicus brief filed by the State of Washington and 28 other states urging the US Supreme Court to review the decision of the Hawaii Supreme Court...
More on Ceded Lands Cert Petition and Amicus Briefs
Posted on June 11, 2008Today's Honolulu Advertises runs a story, "Bennett receives support on ceded lands," about the amicus brief of 29 states supporting Hawaii's request for US Supreme Court review of the "ceded lands" decision, Office of Hawaiian Affairs v. Housing and Community...
Amicus Brief in Goldstein v. Pataki Eminent Domain Pretext Case
Posted on June 09, 2008The Institute for Justice, the attorneys who represented Susette Kelo in Kelo v. City of New London, 545 U.S. 469 (2005), the decision in which the US Supreme Court held that economic development takings were not per se invalid, has...
Commissioner of Public Lands Supports Cert Petition in Ceded Lands Case
Posted on June 09, 2008The New Mexico Commissioner of Public Lands has filed a brief amicus curiae urging the US Supreme Court to review the "ceded lands" case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert. petition filed Apr. 29, 2008). In that...
Cert Petition Asks: Is There A Federal Avigational Servitude?
Posted on June 08, 2008Keep an eye out on June 19, 2008: that's the date the US Supreme Court will consider whether to grant review of the Ninth Circuit's decision in Vacation Village, Inc. v. Clark County, No. 05-16173 (July 23, 2007), a decision...
Shoreline Boundaries And Shoreline Setbacks
Posted on June 06, 2008My colleague Mark Murakami posted a link to a recent newspaper article about lateral beach access; that article spurred the Star-Bulletin editorial "State upholding public policy in Kahala beach access issue." It seems that vegetation growing on private property is...
Another Amicus Brief Supporting Cert in Ceded Lands Case
Posted on June 06, 2008The State of Washington, along with 28 other states and commonwealth, have filed an amicus brief in support of the State of Hawaii's petition for a writ of certiorari in the ceded lands case, Hawaii v. Office of Hawaiian Affairs,...
A Message From Susette Kelo
Posted on June 05, 2008Here's a video message from Susette Kelo, the homeowner who lent her name as shorthand for all that's wrong with eminent domain. It's a plea to donate on "Kelo day" (June 23, the third anniversary of the date the Court...
County of Maui's Brief in Ninth Circuit Vacation Rental Appeal
Posted on June 04, 2008The County of Maui has filed its Answering Brief in Maui Vacation Rental Association, Inc. v. County of Maui, No. 08-15251, the Ninth Circuit appeal from the Hawaii district court's dismissal of MVRA's complaint which sought to declare Maui's shut...
Amicus Brief Supporting Cert in Ceded Lands Case
Posted on June 03, 2008Pacific Legal Foundation has filed a Brief Amicus Curiae in Support of Petitioners (the State of Hawaii and state officials) in the "ceded lands" case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert. petition filed Apr. 29, 2008). In...
Takings Round Up
Posted on June 03, 2008Heads up for an upcoming teleconference of interest - Supreme Court Rules on Eminent Domain for Private Development. It will be held on July 16, 2008 starting at noon EDT, and features some of the A-listers in our area of...
Property Owner's Reply Brief in Kona Eminent Domain Appeals: Damages for Failed Condemnations, Abatement, and Pretext
Posted on June 02, 2008Today, we filed the Reply Brief for the property owner in County of Hawaii v. Richards, No. 28882, the consolidated appeal from two eminent domain lawsuits filed by the County in 2000 and 2005. I won't go into detail about...
Honolulu Rail Takings
Posted on June 01, 2008In "189 Hawaii properties in transit's path," the Honolulu Advertiser's Sean Hao writes about the potential use of eminent domain to take private property along the path of Honolulu's proposed $4B rail transit project: Some landowners in the path of....
Update on Federal Court Nollan/Dolan Challenge to Maui's "Affordable Housing" Exaction
Posted on May 29, 2008An update on the latest filings in the federal court challenge to Maui County's affordable housing exaction ordinance. Kamaole Pointe Development LP v. County of Maui, Civ. No. CV07-00447 DAE LEK (D. Haw. filed Aug. 23, 2007). First, some background....
Petition for Rehearing in Pratt Construction v. Cal. Coastal Comm'n
Posted on May 27, 2008The property owner has filed a Petition for Rehearing asking the California Court of Appeal (2d District) to reconsider its decision in Charles A. Pratt Constr. Co., Inc. v. Cal. Coastal Comm'n, No. B190122 (May 8, 2008). In that case,...
Two Recent Law Review Articles (Water Law and Shoreline Issues)
Posted on May 25, 2008Two recent U. Hawaii Law Review articles worth mentioning. Although neither is available free on the web, they can be obtained through legal research services such as Westlaw or Lexis, or through the U. Hawaii Law Review. If you don't...
New Category: Court of Federal Claims | Federal Circuit
Posted on May 24, 2008Administrative note: I've created a new category for indexing posts, "Court of Federal Claims (CFC) | Federal Circuit." The decisions by these courts are worth following because the CFC is the Article I court that has exclusive nationwide jurisdiction over...
CFC: Takings Claim For Flooding Not Barred By Statute of Limitations
Posted on May 24, 2008In Richard A. Forsgren Revocable Living Family Preservation Trust v. United States, No. 07-14L (May 12, 2008), the Court of Federal Claims (the court which has exclusive jurisdiction over inverse condemnation claims against the federal government in excess of $10,000)...
Can a City Bind Itself to Exercise Eminent Domain? Cert Petition in Ninth Circuit Case on Reserved Powers, Public Use, and Contracts Clause (Matsuda)
Posted on May 22, 2008As noted in this post, the City and County of Honolulu has sought US Supreme Court review of Matsuda v. City and County of Honolulu, 512 F.3d 1148 (9th Cir. Jan 14, 2008). I've finally obtained a copy of the...
Can a City Bind Itself to Exercise Eminent Domain? Brief Opposing Cert in Matsuda
Posted on May 22, 2008Following up on the earlier post about the cert petition in Matsuda v. City and County of Honolulu, 512 F.3d 1148 (9th Cir. Jan 14, 2008), the Brief in Opposition is posted here (1.7mb pdf). The Supreme Court docket report...
HAWICA: EA Required For Importation of GMO Algae
Posted on May 22, 2008The Hawaii Intermediate Court of appeals has issued an opinion in Ohana Pale Ke Ao v. Board of Agriculture, State of Hawaii, No. 27855 (May 21, 2008). The court ruled on two issues related to the importation of genetically-modified algae...
Federal Circuit: No Property in Contract for Airport Screening Service
Posted on May 21, 2008In Hunteigh USA Corp. v. United States, No 2007-5118 (May 15, 2008), the US Court of Appeals for the Federal Circuit held that a company which provides passenger and baggage screening services at airports did not have a protectable Fifth...
Cal. Court of Appeals: Taking Claim For Denial of Coastal Development Permit Not Ripe
Posted on May 19, 2008In Charles A. Pratt Constr. Co., Inc. v. Cal. Coastal Comm'n, No. B190122 (May 8, 2008), the California Court of Appeal (2d District) held the property owner's right to develop was not vested, and that a takings claim was not...
Wait, I Thought The Police Power and the Public Use Clause Were "Coterminous"
Posted on May 18, 2008An interesting decision on the Public Use Clause from the Court of Appeals for the Federal Circuit. In Amerisource Corp. v. United States, No. 07-1521 (May 1, 2008), the court held that when an innocent party's property is seized for...
Government Brief in Kona Eminent Domain Appeals: Damages for Failed Condemnations, Abatement, and Pretext
Posted on May 17, 2008The County of Hawaii filed its Answering Brief (2.5mb pdf) in County of Hawaii v. Richards, No. 28882, the consolidated appeal from two eminent domain lawsuits filed by the County in 2000 and 2005. The issues in the case include:...
New Hawaii Law Blog: Insurance Law Hawaii
Posted on May 16, 2008My Damon Key colleagues Robert Harris and Tred Eyerly have launched the new and improved version of their law blog, Insurance Law Hawaii. The subject of the blog is (quite naturally) Insurance Law. It focuses on coverage issues under Hawaii...
Eminent Domain Round Up
Posted on May 16, 2008A couple of interesting eminent domain-related items appeared on my screen today: Related to my earlier post on The Euclidization of Public Use - A Dose of Reality for the Kelo Majority, comes a report "Plans Stall In Fort Trumbull"...
Water Law Seminar Links and Materials
Posted on May 15, 2008To all who attended today's Integrating Water Law and Land Use Planning seminar, thank you. Here are links to the cases and statutes I discussed: In re Water Use Permit Applications (Waiahole), 94 Haw. 97, 9 P.3d 409 (2000) (the...
9th Circuit: Substantive Due Process in Land Use Cases (Armendariz is Still Dead)
Posted on May 15, 2008Thanks to David Breemer at Pacific Legal Foundation for calling our attention to this recent Ninth Circuit case. In North Pacifica, LLC v. City of Pacifica, No. 05-16069 (May 13, 2008), a northern California landowner claimed the city's delays in...
I Just Saved A Ton Of Money On My Eminent Domain Insurance
Posted on May 14, 2008Thanks to Dwight Merriam for forwarding this item, a story that an insurance underwriter is planning to offer -- get this -- eminent domain insurance: For less than $300 per year, the policy provides up to $200,000 loss of market...
Upcoming Water Law Seminar
Posted on May 13, 2008There's still time to sign up for the "Integrating Water Law and Land Use Planning in Hawaii," to be held on May 14, 2008. I'm on the faculty, leading a session on "Water Rights, Property Rights and the Law of...
Two Big Island Planning Commissions?
Posted on May 07, 2008Following up on this post. West Hawaii Times is reporting (free registration may be required) the County of Hawaii is one step away from putting to voters the question of whether to have two Planning Commissions. The County Council's Planning...
Opening Brief Filed in Ninth Circuit Maui Vacation Rental Appeal
Posted on May 06, 2008Today we filed the Opening_Brief (250kb pdf) in Maui Vacation Rental Association, Inc. v. County of Maui, No. 08-15251, the Ninth Circuit appeal from the Hawaii district court's dismissal of MVRA's complaint which sought to declare Maui's shut down of...
Land Use Round Up
Posted on May 02, 2008Some interesting items, worth reading: According to this story, the preferred developer of the New London, Connecticut project that gave us Kelo apparently is on the ropes. Professor Gideon Kanner's take on the latest misstep is here. From Dean Patty...
Cert Petition in Ceded Lands Case
Posted on April 30, 2008In a very short (17 page) petition, the State of Hawaii has asked the U.S. Supreme Court to review a decision by the Hawaii Supreme Court regarding "ceded lands." The petition argues that by basing its decision in Office of...
New Article Published: "Because They Can: Judicially Excising the People from the Definition of 'County' in the Hawaii Constitution"
Posted on April 30, 2008The ABA Section on State & Local Government has published my article "Because They Can: Judicially Excising the People from the Definition of ?County? in the Hawaii Constitution" in the State & Local Government Law News (Spring 2008). The article...
The Euclidization of Public Use - A Dose of Reality For the Kelo Majority
Posted on April 28, 2008In Kelo v. City of New London, 545 U.S. 469 (2005), the majority opinion authored by Justice Stevens, framed the issue presented in terms of the validity of "the development plan," and not whether the particular takings at issue were...
Kauai Springs Zoning Permit Appeal
Posted on April 26, 2008Today we filed the Opening Brief in Kauai Springs' appeal from the January 2007 decision by the Kauai Planning Commission to deny three zoning permits to the small, Kauai-family-owned water bottling company. The case is an appeal from an agency...
County Motion in Maui Affordable Housing Exaction Case
Posted on April 22, 2008The County of Maui has filed a motion for summary judgment in the federal court challenge to the County's affordable housing exaction ordinance. The memorandum in support of the motion is posted here (215k pdf). The Maui ordinance, enacted last...
Upcoming Land Use and Eminent Domain Seminars
Posted on April 22, 2008Head's up to two upcoming seminars worth attending: "Planning Zoning and Eminent Domain" (May 8-9, 2008), and "Planning and Zoning 101" (May 7, 2008), both of which will be put on by the Center for American and International Law, in...
New Federal Court Land Use Case Against County of Maui
Posted on April 19, 2008A Lahaina business owner has sued the County of Maui in federal court in Honolulu. In Goo v. County of Maui, CV 08-00172 DAE (filed Apr. 17, 2008), the Complaint alleges the County and Planning Department officials drove the International...
Book Review: Bulldozed - "Kelo," Eminent Domain, and the American Lust for Land
Posted on April 18, 2008"If you can fight blight, why not create beauty? If not beauty, why not bounty?" With that phrase, author Carla T. Main, in Bulldozed: "Kelo," Eminent Domain, and the American Lust for Land, accurately and succinctly sums up the devolution...
Cert Petition in Ninth Circuit Case on Reserved Powers, Contracts Clause in Repeal of Eminent Domain Ordinance (Matsuda)
Posted on April 18, 2008The City and County of Honolulu has filed a petition for writ of certiorari in Matsuda v. City and County of Honolulu, No. 06-15337 (9th Cir. Jan. 14, 2008), asking the U.S. Supreme Court to review the case. We don't...
Blighting Property by Inequitable Precondemnation Activities
Posted on April 13, 2008Thanks to No Land Grab for informing us of the latest eminent domain action from New York City, this time with an interesting twist. In Willets Point Industry and Realty Ass'n v. City of New York, No. 08-1453 (E.D.N.Y. filed...
Condemnation Blight and Clouding Use
Posted on April 13, 2008On the topic of the Willets Point case, inequitable precondemnation activities, and condemnation blight, thanks to Professor Gideon Kanner for reminding us of his seminal article on the subject, Condemnation Blight: Just How Just Is Just Compensation? 48 Notre Dame...
The View From the Office (a few minutes ago)
Posted on April 12, 2008Apropos of nothing relating to the usual topics of this blog is this view from my office window a few minutes ago. But I thought I would share it anyway.
Opening Brief in Kona Eminent Domain Appeals: Damages for Failed Condemnations, Abatement, and Pretext
Posted on April 10, 2008We filed today the Opening Brief today in County of Hawaii v. Richards, No. 28882, the consolidated appeal from two eminent domain lawsuits filed by the County in 2000 and 2005. I won't go into detail about the case and...
Oral Arguments in ICA Appeal on Kuilima EIS (mp3)
Posted on April 09, 2008The recording of today's oral arguments in Unite Here! Local 5 v. City and County of Honolulu, No. 28603 has been posted here. (Be prepared -- it's a 93mb file). The briefs of the parties are posted here. A report...
Seminar Links
Posted on April 04, 2008Links from the April 3 Practical Guide to Zoning and Land Use seminar here.
Merits Briefs in Upcoming ICA Appeal on Kuilima Resort Environmental Impact Statement
Posted on April 04, 2008On April 9, 2008, the Hawaii Intermediate Court of Appeals will be hearing oral arguments in Unite Here! Local 5 v. City and County of Honolulu, No. 28603, the appeal involving the question of whether the City should have required...
Cases and Links From Today's Seminar
Posted on April 03, 2008To all those who attended today's seminar, thank you. Here are the links to the cases I mentioned. From the morning session on Case Law Update: Wilkie - Government Gone Wild! - no comprehensive federal remedy for federal interference with...
Discretion Wins Out Over Valor in Half Moon Bay Inverse Condemnation Case
Posted on April 02, 2008Remember that whopping $36.8 million inverse condemnation judgment against the City of Half Moon Bay, California by the U.S. District Court back in November 2007? The city said at the time it was going to appeal, and it hired some...
Land Use Seminar This Week
Posted on April 01, 2008There's still time to sign up for the "Practical Guide to Zoning and Land Use Law" seminar, to be held Thursday, April 4, 2008, in Honolulu. I will be leading sessions on Current Case Law and Legislative Update, and Appealing...
Cert Petition in Goldstein v. Pataki: How to Plead Kelo Pretext
Posted on April 01, 2008The homeowners threatened with eminent domain for the Atlantic Yards project in Brooklyn, New York have filed a petition for a writ of certiorari in Goldstein v. Pataki, 516 F.3d 50 (2d Cir. 2008). The petition points out the schizophrenic...
The First Amendment, the Ninth Circuit, and the Ten Commandments
Posted on March 26, 2008While not exactly on the usual topics of this blog, the Ninth Circuit's opinion in Card v. City of Everett, No. 05-35996 (Mar. 26, 2008) is worth a read. It involves the question of whether the placement of a reproduction...
Epstein on the Didden Case --
Posted on March 24, 2008In Forbes, law prof Richard Epstein writes "The Taking of Port Chester" about the Didden v. Village of Port Chester case. The facts of Didden are particularly egregious -- in return for a private developer's promise to withhold an exercise...
Well, What Do You Know: Condemnees Have Due Process Rights!
Posted on March 24, 2008In a series of decisions that in any context but eminent domain would be unsurprising, the New Jersey Superior Court, Appellate Division, held that a property owner whose land is targeted for involuntary acquisition is entitled to be told about...
Florida Court Invalidates Short Term Rental Restrictions
Posted on March 21, 2008According to this report, a Florida state court has invalidated a municipality's attempt to regulate short-term rentals: Milo [the property owner] bought more than a dozen homes on or near the island beginning in 2005 and started renting them out...
New Article: Property Rights in the Ninth Circuit, And Beyond
Posted on March 21, 2008The Federalist Society has posted a new edition of Engage - The Journal of Federalist Society Practice Groups, a newsletter-format publication with short scholarly articles on topics such as Administrative Law, Environmental Law and Property Rights, and Civil Rights, among...
Order in Florida Short Term Rental Case
Posted on March 21, 2008Here's the written order (1.8mb pdf) in Milo v. City of Venice, Case No. 2008 CA 552 SC (Mar. 17, 2008), the Florida case invalidating a municipality's restrictions on short term rentals that I posted earlier. The case arose after...
Missouri Supreme Court: Both Large and Small Cities May Use Eminent Domain for Redevelopment
Posted on March 19, 2008Disappointing news out of the Missouri Supreme Court. In City of Arnold v. Tourkakis, No. SC88647 (Mar. 18, 2008), the court held that both chartered and non-chartered Missouri cities have the power to use eminent domain to take property for...
Epstein Blogs His New Takings Book
Posted on March 19, 2008In a post at PrawfsBlawg, "Takings, a Second Time," University of Chicago Law Professor Richard Epstein discusses his new book Supreme Neglect: How to Revive the Constitutional Protection for Private Property, a follow-up to Takings: Private Property and the Power...
Land Use Seminar - April 3, 2008
Posted on March 17, 2008On April 3, 2008, I will be on the faculty of "Practical Guide to Zoning and Land Use Law" in Honolulu. I'll be presenting two subjects, "Current Caselaw and Legislative Update," and "Appealing an Administrative Zoning Decision. Also on the...
6th Circuit: We Have No Jurisdiction, But We Rule Against The Property Owner Anyway
Posted on March 14, 2008If you picked up and read a copy of Braun v. Ann Arbor Charter Township, No. 07-1370 (Mar. 13, 2008), an opinion by the US Court of Appeals for the Sixth Circuit without having read the briefs of the parties...
9th Cir: Senior Citizens Are Not Automatically Considered "Disabled"
Posted on March 12, 2008With a name like Carefree, Arizona, who wouldn't want to spend the golden years there? That appears to have been what was on the mind of one F.G. Budnick, a developer, when he decided he wanted to build the "Residences...
Inverse Condemnation and the Border Patrol
Posted on March 11, 2008Here's another post involving property rights along the U.S. - Mexico border, but the issue is somewhat different than last week's US v. 1.04 Acres case. The issue this time is not the border fence, and it's not about an...
9th Cir: Due Process "Hassle"
Posted on March 11, 2008How often do you see a published opinion from a federal court of appeals that uses the word "hassle" to describe needless litigation? Well, thanks to the irrepressible Chief Judge Kozinski, we now have citeworthy precedent from Clement v. City...
Eminent Domain and the Border Fence
Posted on March 09, 2008What does a fence along the U.S. - Mexico border to deter illegal crossings have to do with eminent domain law? Well, when the government is condemning property for the fence, a lot. When it decided to put up a...
Associated Press: "Hawaii: Tourists Make Lousy Neighbors"
Posted on March 08, 2008In a story titled "Hawaii: Tourists Make Lousy Neighbors," the Associated Press summarizes the "transient vacation rental" issue that's been making waves on Oahu, Maui, and Kauai. Only one county, the Big Island of Hawaii, does not actively regulate vacation...
NIMBYs, BANANAs, CAVEs and DUDEs
Posted on March 07, 2008Jesse Souki's post on his Hawaii Land Use Law blog, "NIMBY Group Stymies 700 Home Affordable Housing Project on Maui," about a state-court challenge to a housing project, brings up a topic that is fun to revisit every now and...
Legal Challenge to Sedona, Arizona Short-Term Rental Bar
Posted on March 06, 2008As reported here, a lawsuit was filed in Arizona state courts seeking to invalidate Sedona, Arizona's prohibition on short-term rentals (less than 30 days): Approximately 450 short-term rental properties in Sedona have been impacted by the new Ordinance making it...
Cert Petition to Overrule Williamson County Denied
Posted on March 03, 2008The US Supreme Court has denied a petition to review a Seventh Circuit opinion which dismissed a property owner's regulatory takings challenge on ripeness grounds under Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985). The questions...
Nollan/Dolan in Federal Court Challenge to Maui's "Affordable Housing" Exaction Scheme
Posted on February 29, 2008The plaintiff property owner has filed a motion for partial summary judgment in the federal court challenge to Maui County's "affordable housing" requirement. Kamaole Pointe Development LP v. County of Maui, Civ. No. CV07-00447 DAE LEK (filed Feb. 28, 2008)...
Aggressive New Kauai Shoreline Setback Ordinance Adopted
Posted on February 29, 2008In "New Kauai shoreline erosion bill among the nation's most conservative," Jan TenBruggencate summarizes the recently enacted Kauai ordinance adopting a variable shoreline setback: Kaua'i County has adopted the most aggressive shoreline building setback law in the state, a powerful...
They're Moving Father's Grave to Build a Sewer
Posted on February 27, 2008In "Defend the Castle!," Professor Gideon Kanner referenced a British vaudeville song by the Clancy Brothers, "They're Moving Father's Grave to Build a Sewer." He wrote: And speaking of entertaining stuff that?s related to eminent domain ? and Lord knows...
More on "The Castle"
Posted on February 26, 2008In "Defend the Castle!" Professor Gideon Kanner adds to my recent review of "The Castle," a comedy about an Australian family's fight to preserve their home from a Kelo-esque taking. Professor Kanner clarifies the Australian condemnation law: And by the...
Land Use Round Up
Posted on February 25, 2008Professor Ilya Somin posts "Once Blighted, Always Blighted" about how long-lasting "blight" designations are more likely to impede development, not encourage it." Charley Foster at Planet Kauai posts "Monkeypod preliminary injunction motion," his analysis of a pending motion for preliminary...
Maui Vacation Rental Ban in the News
Posted on February 23, 2008The San Francisco Chronicle posts "Maui County closes unlicensed bed and breakfasts and vacation rentals," about the background on the issue and the pending Ninth Circuit appeal. In what is becoming a divisive battle - both in court and in...
KHPR ThinkTechHawaii Interview With Justice Stephen Breyer (mp3)
Posted on February 22, 2008U.S. Supreme Court Associate Justice Stephen Breyer was a guest on Jay Fidell's ThinkTechHawaii radio program yesterday. KHPR has posted the podcast of the interview here (21mb mp3). The interview begins at the 17:30 mark. Mark Murakami earlier posted a...
Movie Review: Kelo Down Under
Posted on February 22, 2008The Kerrigan home will never make the pages of Australian House Beautiful: it sits in the flight path of the Melbourne airport, massive power lines run overhead, the back yard used to be a toxic landfill, and the owner has...
Links From Today's Seminar
Posted on February 21, 2008Thank you to all those who attended today's Advanced Land Use Seminar. Here are the links to the cases I discussed. Also, for anyone who wants the Powerpoint presentation from the first session, email me. Wilkie v. Robbins - no...
Court of Federal Claims: Commercial Fishing License Not "Property"
Posted on February 19, 2008In Palmyra Pacific Seafoods, L.L.C. v. United States, No 07-35L (Jan. 22, 2008), the U.S. Court of Federal Claims (the article I court that hears inverse condemnation claims against the federal government) held that federal regulations which prohibited commercial fishing...
Williamson County Cert Petition and Supporting Briefs
Posted on February 16, 2008Mark your calendars for February 29, 2008. That's the day the US Supreme Court will decide whether to grant review to a case which calls for the overruling of Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172...
Land Use Seminar: February 20, 2008
Posted on February 14, 2008There's still time to register for the "Advanced Land Use and Zoning Law" seminar to be held on Wednesday, February 20, 2008 at the Ala Moana Hotel in Honolulu. Topics include vacation rentals, big box zoning, affordable housing exactions, landowner....
New Category: Williamson County / Ripeness
Posted on February 14, 2008Admin note: I've added a new category to the post classifications: Williamson County / Ripeness. The recent Reagan case got me to thinking, and it seems that the issue is continually cropping up again after the concurring opinion of four...
Hawaii Public Radio on Transit, Land Use, and Growth (mp3)
Posted on February 14, 2008Hawaii Public Radio has posted a three-part series of reports on "Transit and Growth in Hawaii," the third of which is the most interesting since it focuses on Honolulu's proposed $4 billion+ rail system. Each of the segments, however, is...
Williamson County Illustrated: You're Either Too Early, or You're Too Late
Posted on February 12, 2008Thanks to Professor Patty Salkin for calling attention to a recent case from a Missouri federal court that provides a good (if that word can be used) illustration of the weird shell game that is played by the federal courts...
County Withdraws Motion to Dismiss Land Use Civil Rights Complaint
Posted on February 10, 2008The Garden Island reports that a property owner's appeal of the County of Kauai's approval of its permits with allegedly illegal conditions is going forward after the County withdrew its motion to dismiss. The County Attorney?s Office filed for the...
The Right to Exclude Others From Gated Communities
Posted on February 09, 2008The Garden Island reports that the Kauai County Council is considering a ban on "gated communities" -- A stalled plan to ban gated communities should return to County Council?s agenda by the end of February, Mayor Bryan Baptiste said yesterday....
Land Use Round Up
Posted on February 08, 2008A collection of interesting stories and posts regarding land use law: West Hawaii Today reports on a brewing dispute over the definition of land uses. When is a use of land that involves golf balls and golf clubs not a...
Nonconforming Uses and "Grandfathering" of Land Uses
Posted on February 07, 2008I promised back in this post to digest the Hawaii Supreme Court's opinion in Colony Surf, Ltd. v. Director of the Dep't of Planning and Permitting, No 26037 (Dec. 26, 2007). However, because the opinion is so opaque it is...
Pleading Kelo Pretext: What About Justice Kennedy?
Posted on February 06, 2008In Goldstein v. Pataki, No. 07-2537-cv (Feb. 1, 2008), the US Court of Appeals for the Second Circuit held that a property owner failed to state a claim for Kelo "pretext." While paying lip service to the notion that in...
Federal Circuit: No Taking Due to "Federal Beet Lien Servitude"
Posted on February 06, 2008In Bair v. United States, No. 2007-5049 (Feb. 5, 2008), the US Court of Appeals for the Federal Circuit held that a federal statute that effectively wiped out liens possessed by beet growers was not a taking. The court held...
Justice Breyer on Judicial Independence
Posted on February 04, 2008My colleague Mark Murakami has posted a summary of a recent speech by US Supreme Court Associate Justice Stephen Breyer on hawaiioceanlaw.com: So, what is judicial independence? He said that every judge knows what it means, some lawyers do, and,...
Federal Equal Protection Land Use Case Filed
Posted on February 01, 2008A complaint has been filed in U.S. District Court against the mayor of Kauai County, the county Department of Planning, and the Planning Commission over the Coconut Beach development. The complaint seeks relief for violations of equal protection, and federal...
Setting the Record Straight in Eminent Domain Battle
Posted on January 28, 2008Check out this site, www.branfordtaborrecord.com. It's published by the property owners in a Connecticut eminent domain fight, and contains the entire trial record. More on the case and the $12.4 million jury verdict from the New York Times here.
Butterfly Effects and Environmental Impact Statements
Posted on January 25, 2008The Honolulu Advertiser reports that the Chamber of Commerce of Hawaii is advocating in favor of a bill limiting the "use" of a state or county road as a trigger to chapter 343 environmental review: The state Department of Transportation,...
Post-Kelo Reform Panel Discussion
Posted on January 23, 2008The Federalist Society has posted video and audio files of the January 3, 2008 faculty panel on post-Kelo reform. Video is below, audio posted here (21mb mp3).
Eminent Domain and Land Use Round-up
Posted on January 18, 2008Professor Gideon Kanner comments on the Ninth Circuit's recent Matsuda case in "When is an Unenforceable Contract to Condemn, Enforceable?." I commented on the decision here and here. Today's oral arguments in Missouri Supreme Court in the Tourkakis appeal, a...
Somin on Kanner on Toobin on Kelo
Posted on January 18, 2008An interesting discussion is going on over at Volokh Conspiracy about Professor Gideon Kanner's critique (posted here and here) of journalist Jeffrey Toobin's new book on the Supreme Court, particularly the section dismissing the reaction to Kelo as the product...
Amendariz: "You're Dead Son. Get Yourself Buried."
Posted on January 17, 2008Are rumors of the demise of the Ninth Circuit's Armendariz doctrine greatly exaggerated, or is J.J. Hunsecker (Burt Lancaster)'s advice to Sidney Falco (Tony Curtis) in the noir classic Sweet Smell of Success more appropriate? What brings this to mind...
New Hawaii Law Blog
Posted on January 14, 2008My Damon Key colleagues Robert Harris and Tred Eyerly are publishing a blog (or is that "blawg?") on Hawaii insurance law issues which is named, appropriately enough, Insurance Law Hawaii. Robert and Tred can be found at www.insurancelawhawaii.com. Pay a...
Deal Or No Deal: Ninth Circuit Says Honolulu May Have to Live Up to Its Eminent Domain Promises
Posted on January 14, 2008I've had a chance to review Matsuda v. City and County of Honolulu, No. 06-15337 (Jan 14, 2008), a decision by the Ninth Circuit on the Contracts and Due Process clauses, but which also involves how local governments exercise the...
More on Matsuda (Ninth Circuit)
Posted on January 14, 2008Tim Sandefur at PLF on Eminent Domain adds his thoughts about Matsuda v. City and County of Honolulu, No. 06-15337 (Jan 14, 2008).
9th Cir. on Due Process and Contracts Clause
Posted on January 14, 2008The US Court of Appeals for the Ninth Circuit has issued an opinion in Matsuda v. City and County of Honolulu, No. 06-15337 (Jan 14, 2008), a case involving the city's repeal of Chapter 38, Honolulu's version of the "land...
Nevada SCT: Upon Further Review, It's a Per Se Regulatory Taking
Posted on January 14, 2008Thanks to Patty Salkin's Law of the Land blog for summarizing the recent Supreme Court of Nevada opinion in Hsu v. County of Clark, No. 46461 (Dec. 27, 2007). Read Professor Salkin's summary or the opinion itself for the complete...
2007 in Review: Taking Substantive Due Process Seriously Again
Posted on January 11, 2008After Lingle v. Chevron, U.S.A., Inc., 544 U.S. 528 (2005) informed us that the "substantially advance a legitimate state interest" test was one of substantive due process, not regulatory takings, the courts began revisiting the long-neglected topic of substantive due...
How Appealing
Posted on January 11, 2008The Maui News reports "Vacation rental group planning to appeal ruling" -- The Maui Vacation Rental Association will appeal U.S. District Judge Michael Seabright?s dismissal of its suit against Maui County to the 9th Circuit Court of Appeals. President David...
2007 Land Use in Review: Due Process Notice in Eminent Domain
Posted on January 08, 2008Several cases focused on the issue of due process notice in eminent domain. In Divine v Town of Nantucket, 449 Mass. 499, ___ N.E.2d ___ (July 19, 2007), the Supreme Judicial Court of Massachusetts invalidated the town's 1968 exercise of...
2007 Land Use in Review: Hawaii Supreme Court Lowers the Bar in Equal Protection "Rational Basis" Analysis
Posted on January 08, 2008It's a pretty rare event when a court invalidates a law for violating the Equal Protection clauses of either the Hawaii or U.S. Constitution under rational basis review. In Silva v. City & County of Honolulu, No. 27385 (Aug. 10,...
2007 Land Use in Review: Estoppel and Shoreline Setbacks
Posted on January 08, 2008In Brescia v. North Shore Ohana (No. 27211, July 12, 2007), the Hawaii Supreme Court held that a property owner was not entitled to rely upon a county planning commission's determination of the location of a shoreline setback when the...
2007 Land Use in Review: CARD v. ZBA - Administrative Procedures in Land Use Cases
Posted on January 08, 2008Administrative Procedures in Land Use Cases: In Citizens Against Reckless Development v. Zoning Bd. of Appeals of the City and County of Honolulu (No. 27264, May 31, 2007), the Hawaii Supreme Court tackled the issue of when a request for...
2007 Land Use in Review: Venue in Declaratory Actions on Legality of Agency Rules is Jurisdictional
Posted on January 08, 2008In Hawaii Home Infusion Assoc. v. Befitel, (No. 27256, Apr. 16, 2007), the Hawaii Supreme Court held that the venue provisions in the declaratory judgment section of the Hawaii Administrative Procedures Act, Haw. Rev. Stat. § 91-7, are jurisdictional, and...
Supreme Court: Getting It Right Doesn't Matter - Statute of Limitations in Inverse Condemnation Claims Against the Federal Government is Jurisdictional
Posted on January 08, 2008In John R. Sand & Gravel v. United States, No. 06-1164 (Jan. 8, 2008), the U.S. Supreme Court held that the six year statute of limitations in the Tucker Act is "jurisdictional," and must be ruled upon by a court...
PA Supreme Court on Public Use and Pretext - Take That, Kelo
Posted on January 07, 2008An important case from the Pennsylvania Supreme Court. In Middletown Township v. The Lands of Josef Seegar Stone, No 64 MAP 2006 (Dec. 28, 2007), the court upheld the power of a local government to take property "for any legitimate...
2007 in Review: Post-Kelo Claims of Pretext
Posted on January 04, 2008In 2007, the courts started to apply the U.S. Supreme Court's decision in Kelo v. City of New London, 545 U.S. 469 (2005), especially how to mesh the Court's deferential standard of review with property owner claims of pretext. Kelo...
Commentary on Kauai Real Property Tax Charter Amendment Decision
Posted on January 04, 2008California's Flash Report posted my op-ed "Hawaii Government Sues Itself to Quash Property Tax Relief -- And Wins" about the Kauai real property tax charter amendment appeal.
Land Use Round Up
Posted on January 04, 2008A round up of posts of possible interest to readers: Koloa Creekside sues county -- a developer is suing the County of Kauai for civil rights violations, and unlawful exactions: The 18-page lawsuit names as defendants the county of Kaua?i,...
Regulatory Takings Claims in Federal Court?
Posted on January 04, 2008A federal regulatory takings claim being litigated in the first instance in federal court? Why, that's as rare as hen's teeth. Here's the deal: under Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985), a federal regulatory...
Fourth Circuit on Open Primaries
Posted on January 02, 2008Following up on a recent post about a possible legal challenge to Hawaii's system of "open" primaries: the U.S. Court of Appeals for the Fourth Circuit (Maryland, W. Virginia, Virginia, North and South Carolina) has denied rehearing/en banc review to...
2007 in Review: Hawaii Supreme Court Rewrites the Constitution
Posted on January 02, 2008In August, by a 3-2 vote, the Hawaii Supreme Court determined that the term "county" in article VIII, section 3 of the Hawaii Constitution means "county councils." The majority held that only county councils may establish property tax policies, and...
2007 in Review: All Superferry All The Time
Posted on January 01, 2008The Hawaii Supreme Court's decision in the Hawaii Superferry case, coming as it did mere hours after oral argument and just days before the ferry was scheduled to sail, certainly was the issue dominating the headlines in the last quarter...
2007 in Review: Private Agreements and Public Process
Posted on January 01, 2008These seemingly unrelated court decisions were tied together with a common thread: private agreements for the most part are not substitutes for public processes, whether it is eminent domain, rezoning, or the granting of permits. Several courts determined that agreements...
Administrative Appeal or Original Jurisdiction Lawsuit?
Posted on January 01, 2008Jesse Souki has some interesting thoughts on the recent Intermediate Court of Appeals decision in E & J Lounge Operating Co. v. City and County of Honolulu, No. 27940 (Dec. 24, 2007), over at his Hawaii Land Use Law blog:...
2007 in Review: Government Gone Wild
Posted on December 31, 2007Government Gone Wild: the sad case of Wilkie v. Robbins. In perhaps the low point of 2007, the U.S. Supreme Court held that a landowner who was subject to systematic harassment by government officials because he had the temerity to...
2007 Land Use in Review
Posted on December 31, 2007Another year has come and gone. In Hawaii, two of the hottest "land use" related topics in the public arena remain public beach access and transient vacation rentals. Yet, there wasn't much to report in the way of developments in...
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