inversecondemnation.com

▪ Upholding The Right to Exclude: Rare Judicial Smackdown of California Coastal Commission

Hat tip to May it Please the Court for alerting us to a recent decision by the Second District Court of Appeals in California, LT-WR, L.L.C. v. California Coastal Comm'n (No. B187666, May 25, 2007).

In that case, the CCC denied a property owner's request for a permit to allow it to maintain a fence around its property and post "no trespassing" signs, among other things.  The Coastal Commission's rationale was stunning in its audacity:

The Commission also denied the gates and signs by finding that there are 'potential' public prescriptive rights, that the gates are not 'necessary', and that the gates and signs are akin to a 'gated community.'

Slip op. at 37.  ("Public prescriptive rights" is another way of saying that if an owner does not prevent the public from traversing property for a fixed period of time, the public may gain a permanent right to "adverse possession" of an access easement across the property.) 

The court of appeals did not publish the portions of the opinion dealing with vested rights, but did publish the critical analysis of the owner's right to exclude the public by fencing its property.  The court held the CCC erred by basing its denial on the mere "potential" for public prescriptive rights:

The Commission did not deny a permit on the ground the gates would have an adverse environmental impact in terms of movement of wildlife or otherwise. Rather, the Commission based its decision on the existence of potential prescriptive rights in favor of the public. The Commission found “[e]vidence exists . . . of public use of Newton Canyon Motorway for hiking and equestrian use, including potential prescriptive rights, which would be affected by the proposed  development.” (Italics added.) Based on letters submitted “describing historic use, the Commission [found] that potential exists to establish prescriptive rights for public use of this road.” (Italics added.) The Commission further found “[t]he area surrounding the subject site . . . is rural in nature . . . . The proposed gate will convey to visitors the message: keep out, visitors are not welcome. This impact is inconsistent with the fact that the site is located within the [Santa Monica Mountains National Recreational Area], an area devoted to providing visitors with recreational opportunities and protecting natural habitats. . . . [T]erritorial reinforcement, such as a security gate, defines public and private spaces, and ‘serves as a warning and deters entry by an offender.’ ” (Italics added.)

Slip op. at 40 (emphasis original).  The court of appeal rejected the Commission's rationale:

Inherent in one’s ownership of real property is the right to exclude uninvited visitors. (See Black’s Law Dictionary (5th ed. 1979) p. 1095 [definition of property]; General Dynamics Corp. v. County of L. A. (1958) 51 Cal.2d 59, 71 (conc. opn. of McComb, J.).) The Commission’s decision would deny LT-WR that right. In precluding LT-WR from barring the public from traversing its property on the theory that “potential exists to establish prescriptive rights for public use of this road,” the Commission in effect decreed the existence of such prescriptive rights.

We recognize one of the basic mandates of the Coastal Act is to maximize public access and recreational opportunities within coastal areas. Public Resources Code section 30210 provides: “In carrying out the requirement of Section 4 of Article X of the California Constitution [access to navigable waters], maximum access, which shall be conspicuously posted, and recreational opportunities shall be provided for all the people consistent with public safety needs and the need to protect public rights, rights of private property owners, and natural resource areas from overuse.” (Italics added.) However, the Commission is not vested with the authority to adjudicate the existence of prescriptive rights for public use of privately owned property. In denying LT-WR a permit for the gates and no trespassing signs due to the possibility of prescriptive rights, the Commission in effect gave credence to the claimed prescriptive rights. The Commission’s denial of a permit for the gates and signs, premised on the existence of “potential” prescriptive rights, was speculative and properly was overturned by the trial court.

Slip op. at 41 (emphasis original).  What was left unstated by the court's opinion is that the Commission effectively took (or ignored) the property owner's right to exclude the public by both giving effect to the "potential" of a public prescriptive easement, and by denying the owner the right to interfere with the prescription.  I suppose every parcel of land is "potentially" subject to a public prescriptive easement, which makes the Commission's rationale all the more suspect, and this case appears to me to be a brazen attempt at a land grab, couched in the language of regulation.  Given that the excesses of the California Coastal Commission resulted in the Nollan case, that scenario isn't much of a stretch to imagine.

The full opinion is posted here (100kb pdf) and here (130kb MS Word doc).

▪ Designing "Transit Villages" in Honolulu's Rail Project

"Sustainability," "smart growth" and "transit-oriented development" are the catchwords du jour these days in Honolulu, as we anticipate the $4B+ fixed guideway mass transit project.  But from the San Francisco Chronicle comes this "cautionary tale" of a Bay Area Rapid Transit (BART) transit village gone. . .not quite right:

The basic moves are great: Three and four-story buildings filled with apartments and retail space are on busy El Camino Real instead of somewhere on the region's outskirts. There's a BART station next door, and 70 of the 361 apartments are reserved for lower-income residents. There's even a Trader Joe's, a grocery chain of cultlike status.

But this showcase of so-called smart growth comes packaged in the most generic structures imaginable, an inept cross between Stanford University and Orange County. The best thing about Solaire is that, with luck, it will be a wake-up call to other cities  --  reminding them that the quality of what gets built is every bit as important as the planning theories involved.

▪ Cert Grant in Inverse Condemnation Case - Are Statutes of Limitations Jurisdictional?

The US Supreme Court today granted review to an inverse condemnation case against the US government.  The issue in John R. Sand & Gravel Co. v. United States, is whether the Tucker Act's six-year statute of limitations is a jurisdictional bar to an inverse condemnation claim.  Apparently, the government on appeal did not assert that the claims were barred by the statute of limitations.  But the court of appeals did, and dismissed because the statute of limitations goes to jurisdiction, and cannot be waived. 

Whether the statute of limitations is a "jurisdictional" bar, or whether it is waiveable is an issue for us legal wonk types, and probably will not rile up the public one way or the other like Kelo, for example.  However, the Court's decision should clarify an area of procedural law that lawyers often presume they understand the basis for, but nearly as often do not.  (The canon being that statutes of limitations are jurisdictional, especially in claims against the government -- the theory being that although "the King can do no wrong," sovereign immunity can be waived, but such waivers are read narrowly.)

The Federal Circuit opinion is here (300kb pdf).  It does not appear that the cert. petition is yet on line, but here is the United States' brief in opposition.  Summaries of the case from SCOTUSblog, and from Supreme Court Times.

Note: the New Jersey Superior Court, Appellate Division, recently analyzed a similar issue, holding the six year statute of limitations barred a property owner's inverse condemnation claim under state law.  Opinion available here.

▪ Hawaii Land Use Roundup

Last week was a busy one -- quite a few local stories about land use and property law.  Here's a rundown:

• "It's a tale of 2 ridges - and 17,500 homes" -- The Advertiser reports on, and contrasts, two large-scale residential projects in Central Oahu.  One of the projects, Koa Ridge, resulted in a Hawaii Supreme Court decision on the trigger points to an Environmental Impact Statement, Sierra Club v. State of Hawaii Office of Planning, 109 Haw. 411, 126 P.3d 1089 (2006), which I blogged about here. Compare this story to the next one, from Kauai, and there is the same dynamic at play: we all complain about the lack of "affordable" housing, but often complain when new housing is built because it isn't going in the "right" place, will increase traffic, and on and on.

• "Kauai passes ban on big-box stores" from the Honolulu Advertiser reports on the Kauai County Council's ordinance prohibiting wholesale or retail establishments in excess of 75,000 square feet.  We've got a lot of "big box" stores, and consumers seem to like them, but it appears that at least the council is saying "no mas."  There is a slightly different dynamic regarding location of these stores in Hawaii versus the mainland US.  Many times, when mainland communities reject such stores, they simply locate over the city/county line in a neighboring community that welcomes the influx of spending and tax revenue.  Local shoppers simply go next door.  In Hawaii, however, where the jurisdictional breakdown is by island, if one county rejects the stores there is nowhere else to go to allow that island's shoppers to patronize them.   UC Hastings published a good summary of the legal and policy issues in 2004 in "California Responds to Supercenter Development - A Survey of Ordinances, Cases and Elections."

• "Development projects affecting Garden Isle style," reports on the growing conflict between current residents and permitted or proposed development on Kauai's south shore.  It's a common dynamic -- those that have, seeking to preserve a community's "character" (i.e., the community as they found it), against "developers."  We all get a bit conservative when it comes to changing our neighborhoods, I suppose.  The reason I say "common dynamic" is that this story constantly repeats itself across Hawaii -- and in any other popular locale for that matter -- many of which can become victims of their own success.  As long as Hawaii remains beautiful, temperate, and populated by very nice people, others will want to relocate here.  The question is, where will they go?  Loihi, perhaps (see next story)?

• "Parcels on Loihi for sale in spoof" -- the Star-Bulletin also reports a parody web site is selling lots on Hawaii's newest land, Loihi, for $40 a pop.  Now, before you run out and plunk down your hard earned cash for your piece of the rock, realize that Loihi is currently 3,000 feet underwater, and isn't expected to break the surface, according to the story, for another 10,000 years.  Talk about the time value of money.  Anyhow, the "developer" of Loihi has probably forgotten that even once it breaks the surface, Loihi can't be privately sold, except by the State of Hawaii (if it's around then, or led by Dr. Zaius), since according to the Hawaii Supreme Court in State ex rel. Kobayashi v. Zimring, 58 Haw. 106, 566 P.2d 725 (1977), new land formed by volcanic eruptions is public land, belonging to the State. 

• "Suit: County discriminating against small farmer" in the Maui News tells of the opening shots in a newly filed federal civil rights lawsuit against the County of Maui and several of its land use officials.  Can't say much about it until I actually see the pleadings, but the news report sure makes it appear to be a fascinating case involving claims of racial discrimination, disparate treatment, and assorted land use claims. 

• "Artificially expanded beachfronts lots to be halted" in Kauai's newspaper details a resolution by the Kauai County Council to prevent the introduction of "artificially induced vegetation" on beachfront land.  My thoughts here. 

• "Ewa Beach vexed by airplane traffic" -- reports on property owners whose homes are in the landing path of Honolulu International Airport objecting to airplane noise caused by jets using one runway (the one over their homes) versus the other, which is entirely over water.  Overflight noise, aviation easements, and disturbances can create issues of eminent domain and governmental noise liability, but it's hard to tell from the report whether those issues may be present in this case.   

▪ "Artificial" Vegetation and the Shoreline Boundary

The Garden Island reports that the Kauai County Council has passed a resolution purportedly designed to prevent the planting of "artificial" vegetation to expand private property onto the public beach:

The Kaua‘i County Council wants to halt the practice of beachfront owners to artificially expand their properties seaward with vegetation,

Through a resolution, five of seven council members threw their support behind a “weed-the-beach” program to remove “artificially induced vegetation.”

The council and its supporters view the legislation as a way to protect public access, but some beachfront owners have said the plantings would help deter erosion of the beach in front of their properties.

An official version of the resolution has not yet been posted on the County's web site, but the fact that the term "artificially induced vegetation" is in quotes leads me to believe that's the language used in the reso.  There are a couple of troubling aspects if so. 

First, the idea that the vegetation line defines the "shoreline," and the boundary between private property and the public beaches.  It does not.  The Hawaii Supreme Court held:

according to ancient tradition, custom and usage, the location of a public and private boundary dividing private land and public beaches was along the upper reaches of the waves.

The vegetation line -- like the debris line -- is only one possible indicator of the location of the "upper reaches of the waves," not the demarcation line itself.  Thus, if the upper reach is more inland than the vegetation line, then the public beach extends further inland.  By the same token, planting vegetation, especially if it is done on land mauka of the upper reach, seems well within the private property rights of the owner.

Second, the notion that we can distinguish between "artificially induced" vegetation and other types of vegetation seems an impossible standard to apply over time.  I suppose the opposite of "artificially induced" is "naturally induced," but it's hard to see how such a distinction could be a useful guide, especially when indigenous naupaka -- a plant whose "seeds sprout readily and seedlings grow moderately quickly" is involved.  Will there be a "fruit of the poisonous tree" doctrine when it comes to such vegetation if it can be shown that vegetation was planted by human hands, even if the portion that extends past the upper reach spread "naturally?"  The Hawaii Supreme Court ventured into this topic last year in Diamond v. Bd. of Land and Nat. Res., 112 Haw. 161, 145 P.3d 704 (2006), a case which I posted about here.   

Full story here.  Other posts on shoreline public/private boundary here, on the impossibility of the "artificial" vegetation standard here, and on the Diamond case here.

▪ Honolulu's Rail Project: Podcast of Hawaii Public Radio Program (mp3)

ThinkTech Hawaii, Jay Fidell's Hawaii Public Radio program on FM89.3 KIPO, has posted both the show (20mb mp3) and the aftershow podcast (13mb mp3) of  yesterday's "Honolulu's Fixed Guideways - How Will The Surrounding Areas be Developed."  I was a guest along with UH Law Professor David Callies, and Honolulu attorney and developer Vernon Woo.

Jay led a wide-ranging discussion on legal, land use, and political issues related to Honolulu's $4B "fixed guideway" mass transit system.  We talked about public-private development partnerships, eminent domain, transit-oriented development and other related subjects.  Jay's final question: "if you were King, what would you do about the rail?"  Food for thought.

Honolulu City Councilperson Charles Djou and transit expert Cliff Slater also called in with their thoughts.

▪ Tune In, Turn On: KIPO FM89.3 Wed., May 23 @ 5pm HST

A heads up: from 5 - 6 pm on Wednesday, May 23, I will be a guest on Jay Fidell's ThinkTech Hawaii program on Hawaii Public Radio, KIPO. 

The topic? "Oahu's Light Rail - How Will the Surrounding Areas be Developed."   KIPO can be tuned in at FM89.3, or streaming audio is available here.  ThinkTech also posts a podcast of the show a couple of days afterwards, and I will post a link when it becomes available.

Joining me as guests will be Professor David Callies of the UH Law School, and Honolulu City Councilperson Charles Djou.  Hope you can listen in.

▪ More on Kauai Springs Zoning Permit Injunction

Hawaii Reporter posts "Kauai Springs: Still Open for Business," a story about the injunction preventing the County of Kauai from shutting down the island's only drinking water company while its appeal is pending.  Full story here.

▪ Government's Creative Assault on Property Tax Relief

California Political Review has posted an op-ed about the Kauai real property tax appeal, currently awaiting a decision by the Hawaii Supreme Court.

Californians will recall that Proposition 13, with its promise of relief from crushing property taxation, was opposed by most of the state’s political establishment. Even after its approval by voters at the polls, various forces fought a rearguard campaign against full implementation.

But no strategy to undercut tax-limitation in California has been quite so brazen as what has happened in Hawaii, where local government officials on one island have actually sued themselves in an audacious effort to smother a voter-approved measure to aid hard-pressed homeowners. It is a reminder of how creative government can be when bureaucrats see their self-interest at risk. Government officials on the Island of Kauai evidently think the amount of property tax homeowners pay is a decision too important to be trusted to the people who pay the tax.

Full article here.

▪ Preliminary Injunction in Kauai Zoning Permit Case

A story from today's Garden Island News, about the Kauai Springs case, reporting that the circuit court has granted the company's request for a preliminary injunction, preventing the County from putting Kauai Springs out of business while the appeal is being considered. 

The case is the appeal by Kauai's only bottled water company of the Kauai Planning Commission's denial of a request for a permit to use agriculturally zoned land for a small bottling facility (pictured).  The Planning Commission denied the request because it had "concerns" that the State Commission on Water Resource Managment and State Public Utilities Commission might regulate Kauai Springs, despite the fact that both agencies expressly told the Planning Commisssion that they had no problem at all.

A state judge has verbally approved a preliminary injunction to allow Kaua‘i Springs to continue operating a water-bottling plant in Koloa as it appeals a county decision to shut down the facility.

The island’s only water company that draws from a local spring is appealing a decision by Kaua‘i County Planning Commission in March denying its request for a use permit, a special permit and a Class IV Zoning permit.

* * * *

Robert Thomas, an attorney with Damon Key Leong Kupchak Hastert, representing Kaua‘i Springs, has said the commission doesn’t have the right to decide on water matters, only land matters.

The company requested approval of the commission permits after a competitor complained it conducted an industrial activity on agricultural lands, Thomas said.

Company owner Jim Satterfield said he secured federal, state and county approvals when he opened his business in 2004.

Full story here.