Real Estate & Property Law

Kauai Springs Zoning Permit Appeal: Reply Brief

Posted on June 17, 2008
Yesterday, 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, 2008
Today 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, 2008
A 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, 2008
Today'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...

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More on Amicus Brief of 29 States in Ceded Lands Case

Posted on June 11, 2008
Today'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, 2008
Today'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, 2008
The 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, 2008
The 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, 2008
Keep 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, 2008
My 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, 2008
The 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, 2008
Here'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, 2008
The 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, 2008
Pacific 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, 2008
Heads 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, 2008
Today, 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, 2008
In "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, 2008
An 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, 2008
The 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, 2008
Two 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, 2008
Administrative 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, 2008
In 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, 2008
As 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, 2008
Following 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, 2008
The 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, 2008
In 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, 2008
In 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, 2008
An 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, 2008
The 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, 2008
My 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...

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