inversecondemnation.com

▪ New Articles on Eminent Domain (Kelo & Midkiff)

• "Public Use And Zoning Intertwined" by Professor Richard Epstein, comparing the eminent domain power and the zoning power, and how, especially after Kelo, these two powers have been melded:
  

Now, the tight connection between public use and zoning issues becomes clear. Any local government that uses heavy zoning restrictions courts public use fiascos down the road. A constitutional regime that curbed the excesses of local zoning would give greater security of property rights to insiders and outsiders alike, and thus obviate the need for government land grabs like Kelo. Regrettably, our Supreme Court has washed its hands of oversight for both zoning and public use decisions. But state courts, and state legislators should work to rein in these dangerous tendencies, which requires a stronger and more systematic defense of private property. To get this right, we must disabuse ourselves of the supposed conflict between private property and some ill-defined notion of the public interest. These two are not in opposition. In the long run, the systematic protection of private property advances any viable conception of the public interest.

• "Book 'em, Danno!" by Professor Gideon Kanner, recommending the recent law review article by Debra Pogrund Stark, How Do You Solve a Problem Like in Kelo?, 40 John Marshall L. Rev. 609 (2007), which Professor Kanner cites as explaining the facts behind the infamous U.S. Supreme Court Midkiff decision on Hawaii's Land Reform Act:

Prof. Stark tells the factual story of what the situation was like on the ground when the U.S. Supreme Court decided the notorious Hawaiian land redistribution case, Hawaii Housing Authority v. Midkiff (1984) 467 U.S. 229.

It turns out that the big, bad lessor trust whose land was taken in that case for redistribution to its downtrodden residential tenants was actually a charitable entity that used the land rents for the support of the Kamehameha schools that provide a quality education to underprivileged Hawaiian children. The tenants who were the beneficiaries of low land rents were not satisfied with paying below-market rents and wanted their lessor’s title too. Thus, the beneficiaries of this land grab were upper middle-class and wealthy haoles who got a good deal by ripping off a charitable trust, at the expense of native Hawaiian children.

▪ Nollan/Dolan Challenge to Maui's Forty Percent Affordable Housing Exaction

The Maui News reports that Maui's "workforce housing" ordinance has been challenged:

Lawyers for a Canadian condominium developer, who is seeking to build two multiunit projects in the Kamaole area, are seeking a court order to block the county from implementing the law that the developer says is defective.

The lawsuit alleges the housing policy adopted by the council last year failed to include a “close nexus” between new developments and the need for affordable housing, is “an arbitrary, unreasonable impairment” of property rights and violates due process rights.

It also charges that the county policy does not meet the standards for imposing impact fees allowed by a state law.

Complete story here.  The Maui ordinance, enacted last year, imposes a 40% to 50% affordable requirement on new housing developments. 

The Complaint for Declaratory and Injunctive Relief (filed Aug. 23, 2007) is posted here.

I also discussed the ordinance earlier here and here. 

▪ Superferry EIS Appeal: Hawaii Supreme Court Briefs

Here are the briefs of the parties in the "Hawaii Superferry EIS" appeal, decided by the Supreme Court of Hawaii last week.  These should clear up any questions about what the litigation is about, and what the parties argued. 

• Opening Brief of Plaintiffs-Appellants [Sierra Club, Maui Tomorrow, Kahului Harbor Coalition] (filed Oct. 21, 2005) (2 mb pdf)

• Defendants-Appellees Hawaii Superferry, Inc. and the State of Hawaii's Answering Brief (filed Dec 27, 2005) (1.2 mb pdf)

• Reply Brief of Appellants (filed Jan. 20, 2006) (650 kb pdf)

Update: Charley Foster at Planet Kauai has posted a succinct summary of the briefs and the legal arguments, and included some thoughts about the future:

The question left wide open – and that will definitely find its way back into the courts – is what will be the scope of an environmental assessment. The state and Superferry will argue that it ought to be limited to the harbor improvements that brought the project within state environmental legislation in the first place. The plaintiff groups will argue that, once the requirements of the law are triggered by the harbor improvements, then everything about the ferry’s operation ought to be examined for its environmental impact.

Well worth reading his whole post.

▪ New Ninth Circuit Regulatory Takings Case Has It All

The Ninth Circuit recently decided Vacation Village, Inc. v. Clark County, No. 05-16173 (July 23, 2007), a case that has just about everything in terms of regulatory takings issues in federal court: the Penn Central standard for regulatory takings, Williamson County ripeness, Rooker-Feldman, exhaustion of administrative remedies, federal preemption, choice of law under Erie, and independent and adequate state law grounds.

I won't go into the details, which are set forth here and in the opinion.  The basic issue in the case is whether airport-related height and use restrictions are regulatory takings under the Nevada Constitution.  The most interesting aspect to the opinion is that the court held the plaintiff complied with Williamson County's requirement that a landowner first seek state remedies before seeking federal remedies.  The court noted that the plaintiff only asserted state law claims, and the case was in federal court only because it was ancillary to a bankruptcy. Thus, the plaintiff was pursuing state law remedies first, even though the case was in federal court.

The Ninth Circuit held that under a Nevada Supreme Court decision, the height restriction was a physical invasion, and therefore a per se regulatory taking.  Even though the court noted that "[w]e respectfully disagree with our colleagues on the Nevada Supreme Court concerning their interpretation of federal takings jurisprudence," it held there was a taking under Nevada law, and "the Nevada Supreme Court is the final arbiter of that fundamental state charter."  With respect to the use restrictions, the Ninth Circuit held that under Nevada law applying the Penn Central factors, there was no ad hoc regulatory taking.  There was no per se regulatory taking because there was no wipeout of economically beneficial use. 

Hat tip to the Law of the Land blog for bringing this case to our attention.

▪ 9th Cir: Rock Climbing Ban at Lake Tahoe Not Motivated by Religion

In The Access Fund v. United States Dep't of Agriculture, No. 05-15585 (Aug. 27, 2007), the Ninth Circuit upheld the prohibition by the US Forest Service of recreational rock climbing at the culturally and religiously significant Cave Rock on the eastern shore of Lake Tahoe.  The rock is many things to many people:

To the Washoe Tribe, it is a site of powerful religious and cultural significance. To historians and archaeologists, it sheds light both on historical Washoe culture and on the history of American transportation. And, to rock climbers, it offers some of the most challenging climbing in the nation.

Slip op. at 10528-29.  A rock climbing advocacy group challenged the prohibition as a government establishment of religion, prohibited by the First Amendment's Establishment Clause.  Government action violates the prohibition on the establishment of religion if (1) it has no secular purpose; (2) its principal effect is to advance religion; or (3) it involves excessive entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).  The Ninth Circuit held that the Forest Service's ban was not an endorsement of the Washoe Tribe's religious beliefs, and there was a secular purpose in banning rock climbing.  Professor Howard Friedman's summary of the issues here on his Religion Clause blog.

Opinion posted here.  The Forest Service's summary of the litigation here.  Write up from the Reno Gazette-Journal here.

Sidebar: The Ninth Circuit also recently decided a case involving a local government's ability to settle RLUIPA claims, as I posted about here.  The Establishment Clause and the RLUIPA issues are different, of course (the Establishment question going to whether the government has gone too far in accommodating religion, while the RLUIPA issue generally is whether the government has not gone far enough), but it appears that the intersection of land use and religion may be becoming a hot issue. 

▪ Is The Statute of Limitations in Federal Inverse Condemnation Claims Jurisdictional?

Back in May 2007, the US Supreme Court granted review in John R. Sand & Gravel Co. v. United States, No. 06-1164.  Docket listing here.  The issue, as I mentioned here is:

The statute of limitations codified in 28 U.S.C. § 2501 provides: “Every claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues.  The question presented is:

Whether the statute of limitations in 28 U.S.C. § 2501 limits the subject matter jurisdiction of the Court of Federal Claims.

The petitioner's brief has been posted here (500kb pdf).  The issue of whether a time limit is merely "procedural" or "jurisdictional" goes to whether it may be waived by the defendant.  Procedural time limitations are lost if the defendant fails to assert them.  Issues of subject matter jurisdiction, however, cannot be waived, and may be raised at any time (even on appeal) and on the court's own initiative.  Big difference. 

The federal government's brief is not due until September 28, 2007.   

▪ "Hawaii Superferry EIS" — Or "Kahului Harbor EA"?

Much of the discussion about the recent Hawaii Supreme Court order in the "Superferry" case seems to overlook a few things:

• HAWSCT did not order the Hawaii Superferry to do an Environmental Impact Statement (EIS) for operating, at least as far as I can tell.  The lawsuit is to force the State to accomplish an Environmental Assessment (EA) for the improvements made to Kahului Harbor to accommodate the Superferry.  So it is not the "Hawaii Superferry EIS," at least directly, and I've been guilty of the mislabeling.  Maybe under HRS ch. 343 that is a distinction without much of a difference, but at least let's get the terms right.  I have posted the briefs of the parties here, where the legal claims and arguments are detailed.
  

• There is little chance the circuit court will enjoin Superferry from returning people and their cars to their points of origin, even if the court enters an injunction ordering Superferry to halt operations.  "The life of the law has not been logic, it has been experience," said Justice Oliver Wendell Holmes a long time ago, and he's still pretty much right.  Any injunction should take into account the practicalities, and the fact that passengers would need to get home with their cars.  It appears that the ferry's inaugural public run went OK, so no harm in at least one more.  Courts are practical, and should not create a group of castaways who would either have to start renting one of those unlicensed vacation rentals we hear so much about, abandon their cars on Maui or Kauai, or start living in them.
  • Aug. 28 update: temporary restraining order issued, with the instruction that customers may be returned to their "home" port before ceasing Kahului operations.

• The Hawaii Supreme Court did not "go further" than the plaintiffs requested.  A Maui News editorial claims so because the the Court "retained jurisdiction" over the case to allow it to issue its opinion, it is acting "as a watchdog over the Department of Transportation."  This reflects a misunderstanding of appellate jurisdiction -- after remand, the Maui circuit court has jurisdiction, and that is where the plaintiffs will probably seek their injunction.  As I noted in this post, there is nothing terribly unusual about an appellate court issuing a quick order with the note of "opinion to follow."  The appellate court has to "retain jurisdiction" specifically so that there is no confusion; generally speaking, when a court of appeals remands a case to a lower court, the appellate court automatically loses jurisdiction over the case, so it is a mistake to read too much into the fact that the Supreme Court retained "concurrent jurisdiction" to allow it to issue an opinion, and conclude that this means it is a "watchdog" over the DOT. 

The editorial also surmises that the Court "went further" because it not only reversed the standing issue, but ordered that the State DOT should have required an EA as a matter of law.  This probably does not, in itself, reflect any sort of strong statement by the Supreme Court or "going further."  Generally, the Supreme Court is the final arbiter of all legal questions on Hawaii law, and there would have been little point to remanding the case to the circuit court without legal guidance.  The Court's opinion, when issued, should clarify this point.

▪ Article on the Kauai Property Tax Decision

Kauai's newspaper posts "Ohana amendment decision the result of classic Hawaii politics," a commentary by Walter Lewis, one of the Kauai homeowners who intervened in the County vs. County lawsuit, an effort by county officials to strike down a voter-enacted property tax relief charter amendment.

The typical lawsuit involves a real controversy between the plaintiff and the defendant or defendants with actual or threatened injury to the plaintiff. These fundamental conditions did not exist in the Ohana measure case. Ever. The plaintiff and all the defendants wanted the same result and, as we all know, had no dispute among them and prosecuted this lawsuit with over $250,000 of taxpayer money to get political cover. And the County was unable to point to anything in the Ohana measure that was or would be injuring it.

Complete commentary here.  [Note: I represent the homeowners.] 

Sunday update:  Charley Foster's letter to the editor responding to the commentary.

▪ Analysis of Arguments in Hawaii Superferry EIS Case

Charley Foster over at Planet Kauai posts a summary of yesterday's HAWSCT oral arguments in the Hawaii Superferry EIS case.  He posts analysis as well as some thoughtful questions on "what next?" 

The Supreme Court briefs of the parties are posted here.  Planet Kauai has also posted a succinct summary of the briefs and the legal arguments.

▪ More on 9th Circuit RLUIPA Settlement Case

In The League of Residential Neighborhood Advocates v. City of Los Angeles, No. 06-56211 (Aug. 21, 2007), which I first discussed here a few days ago, the Ninth Circuit invalidated an agreement between the city of Los Angeles and a congregation to settle the congregation's federal RLUIPA claim.  As part of the settlement, the city agreed to issue the congregation a Conditional Use Permit (CUP).  The League objected, asserting its members had been deprived of their right to a public hearing on the CUP.  More details on the case at Professor Patty Salkin's Law of the Land blog here. 

The Ninth invalidated the agreement because the usual procedure to issue a CUP under California law includes public hearings, which had not been held in this case due to the settlement agreement.  While a federal district court has broad powers to settle litigation, those powers could not be invoked because the court had not found an "actual violation" of federal law, merely a "potential violation."  As is usual in settlement agreements, the city did not admit it had breached RLUIPA, or violated the congregation's rights.  The court found that fact dispositive.

However, this decision does not necessarily spell the end for settlement of federal land use litigation by procedures that may not conform precisely to state law.  Federal courts have extensive authority to settle litigation, especially lawsuits involving federal constitutional issues by way of settlement agreements between the parties or consent decrees. 

Under a federal court's consent decree authority, its inherent supervisory powers, and its power to remedy constitutional violations, it may command a state or local government to do things that they could not do under their own laws (like issue CUP's without a public hearing, for example). 

I like to think of consent decrees as settlement agreements on constitutional steroids.  The US Constitution's Supremacy Clause is a very potent tool, after all.  The seminal article on the subject was written by University of Hawaii Law School professor David Callies: The Use of Consent Decrees in Settling Land Use and Environmental Disputes, 21 Stetson L. Rev. 871 (1992). There are important differences between a settlement agreement and a consent decree that could distinguish League of Residential Neighborhood Advocates, and allow comprehensive (and creative) settlement of land use disputes. 

First, settlement agreements are merely contracts to end litigation, while consent decrees are federal court judgments (albeit agreed to by the parties) over which the court retains jurisdiction to supervise and enforce.  The fact that a consent decree is a judgment means that the limitation set forth in the Ninth Circuit decision -- that the court finds an "actual violation" of federal law -- is met. 

Second, the due process undercurrents in the Ninth Circuit case may not be present in the consent decree process, as courts generally hold at least one hearing prior to entering a consent decree at which third parties who may be impacted may object.

Update 10/22/2007 - the Congregation has filed a petition for rehearing/en banc with the Ninth Circuit.