Real Estate & Property Law

Cert Petition: Overrule Williamson County

Posted on October 31, 2008
What 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, 2008
I 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, 2008
In 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, 2008
This 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...

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Key Player in Penn Central Case Obit

Posted on October 24, 2008
The 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, 2008
A 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, 2008
Thanks 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, 2008
In 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, 2008
A 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, 2008
Interesting 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, 2008
Here 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, 2008
Farmers 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, 2008
West 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, 2008
You 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, 2008
You 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, 2008
You 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, 2008
The 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, 2008
Just 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, 2008
The 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, 2008
Mr. 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, 2008
In 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, 2008
The 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, 2008
More 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, 2008
The 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, 2008
The 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, 2008
Monday 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, 2008
To 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, 2008
Well, 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, 2008
A 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...

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