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Aggressive New Kauai Shoreline Setback Ordinance Adopted

In "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 policy that aims to protect coastal structures against 70 to 100 years of erosion.
. . . .

Under the new legislation, there are two potential ways of calculating how close to the water a structure can be erected.
. . . .

The Kaua'i bill is considerably stronger than the state's first such legislation, Maui's bill. The Maui setbacks are 25 feet plus 50 times the erosion rate.

For comparison, on a beach with one foot of erosion per year, a Maui home would be set back 75 feet from the certified shoreline (25 feet plus 50), while the same house on Kaua'i would be set 110 feet back (40 feet plus 70).

Read Jan's entire summary here on his Raising Islands blog.  One of his more interesting observations is:

One of the interesting features of the maps is that they indicate that on many shorelines, land is actually building up. Accretion and erosion both are features of Hawaiian shorelines, and some shores have some of both, depending on where along the coast you look.

As a result of this, on many coastlines, the dramatic Kaua'i setback legislation would not take effect. If there's no documented erosion, then the issue doesn't come into play.

The Garden Island newspaper earlier reported on the legislation here. 

Shoreline "setbacks" and other no-build zones must be applied carefully to avoid constitutional takings and due process problems.  After all, it was a shoreline development ban -- also based on erosion -- that resulted in the Lucas decision (Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).   That case confirmed that a regulation takes property when it deprives a property owner of "economically beneficial or productive use of land," even if the government's reasons for enacting the legislation are valid.

Nollan/Dolan in Federal Court Challenge to Maui's "Affordable Housing" Exaction Scheme

The 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). 

The Maui ordinance, enacted last year, imposes a 40% to 50% affordable requirement on new housing developments.  I posted on the case earlier here (contains a link to the complaint), and analyzed the legal problems with the ordinance under state law  here . 

The plaintiff's motion is posted here (1.5mb pdf).  It asks the court to declare the ordinance unconstitutional on its face under the Nollan/Dolan doctrine of unconstitutional exactions, which requires the government to show a substantial nexus between the exaction and some problem caused by the property owner before the government may demand tribute as a condition of development.  The exaction must also be roughly proportional to the problem.  See this post for more on the nexus analysis.

Update: the hearing on the motion is set for April 28, 2008, at 10:30 a.m. in Judge Ezra's courtroom.

[Disclosure: I presented testimony against an earlier version of the ordinance.]

They're Moving Father's Grave to Build a Sewer

In "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 there is precious little of that —  there is also a wonderful old British vaudeville song entitled “They’re movin’ father’s grave to build a sewer.” It was recorded by the Clancy Brothers and should be available on one of their CDs. It too is great fun.

I had not heard of the Clancy Brothers or the song before, but sure enough, their "Greatest Hits" album is available from Amazon (with free samples), and I downloaded one version of the song from Napster. 

They're moving father's grave to build a sewer,
They're moving him regardless of expense.
They dug up his remains,
To put in five-inch drains,
To irrigate some posh bloke's residence.

Now what's the use of having a religion,
If when you'd dead your troubles never cease.
If some posh city chap,
Wants a pipeline to his privy,
They'll never let a British workman rest in peace.

Now in his lifetime father never was a quitter,
I'm sure that he won't be a quitter now.
For when the job's complete,
He'll haunt that privy sweet,
And he'll only let them go when he'll allow.

Now won't there be some bloomin' consternation,
And won't these city chappies rant and rave,
Which is more than they deserve,
For having the bleedin' nerve,
To muck around with a British workman's grave.

More on "The Castle"

In "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 way, speaking of things Australian, we might mention that the Aussie term for eminent domain is “resumption.” It is derived from the fact that the original Crown land grants in Australia had a provision reserving to the the Crown the right to resume title upon payment of compensation.

Read the full post here.

Land Use Round Up

• Professor 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 injunction, seeking to prevent a property owner from removing trees on its property.

• In  Noghrey v. Town of Brookhaven, No. 2006-05365 (Feb. 13, 2008), the New York Supreme Court Appellate Division held that the downzoning of property was not a regulatory taking under Penn Central.  New York Zoning and Municipal Blog posts on the case here, and Professor Patty Salkin summarizes the opinion on Law of the Land here.

• An Indiana trial court has held that a public utility cannot use eminent domain to take property because it acted in bad faith.  As reported here by the Louisville, Kentucky Courier-Journal:

Wymberly's attempt to use eminent domain was "in bad faith" because it had promised, in asking the state for a territory expansion to include the Lynn developments, that it would serve "as many customers as possible." But Whitis said its plan was to serve a "single customer, Lynn," and the proposed route would allow only two or three other property owners besides Lynn to connect.

The court's Findings of Fact and Conclusions of Law can be downloaded here (6mb pdf).

• An additional hat tip to Professor Salkin for posting a summary of the New Mexico Supreme Court's opinion in Albuquerque Commons Partnership v. City Council, No. 29792 (Feb. 18, 2008), a case about big box rezoning and moratoriums, among other things.

Maui Vacation Rental Ban in the News

The San Francisco Chronicle posts "Maui County closes unlicensed bed and breakfasts and vacation rentals," with background on the issue and the pending Ninth Circuit appeal.

In what is becoming a divisive battle - both in court and in residential neighborhoods - the owners of the B&Bs and rental homes charge that the new leadership of Maui County, which encompasses all three islands, has broken promises made by their predecessors to allow unlicensed properties to remain open, pending an overhaul of the cumbersome licensing process.

County inspectors began their crackdown last July, when about 20 properties were ordered to close, mainly in the Upcountry and North Shore areas of Maui.

Complete story here.  Check out the public comments on the story here. 

Disclosure: I represent the Maui Vacation Rental Association in its Ninth Circuit appeal.

Movie Review: Kelo Down Under

The 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 installed a few -- ahem -- "unauthorized" additions including a greyhound kennel, a massive TV aerial, and a faux chimney. 

But despite its faults, it's home -- "The Castle" -- and tow-truck driver Darryl Kerrigan intends to protect it from "compulsory acquisition" (Australia's version of eminent domain) when the airport authority, backed by a large corporation, decides it needs to take the neighborhood for an expanded runway.  The family's peaceful existence is shattered by the take-it-or-leave-it offer from the local council for paltry compensation. 

I finally got my hands on an original Australian version of this 1997 comedy about a slightly offbeat family's attempt to resist a Kelo-like taking of their home.

Mr. Kerrigan isn't interested in selling. The family doesn't consider the adjacent airport to be a nuisance (it'll be conveniently within walking distance if they have to fly one day), and they optimistically view the overhead power lines as just "a reminder of man's ability to generate electricity." Their neighbor Farouk, a Lebanese immigrant, explains why he doesn't mind deafening airplane noise in his back yard: "They say the plane, they fly overhead, drop the value. I don't care. In Beirut, plane fly overhead, drop bomb. I like this plane."

At first, Kerrigan tries self-help in the local courts.

Judge:  What is the case you are putting?

Kerrigan: I told you.  I mean, you just can't walk in and take a man's house.

Judge:  Mr. Kerrigan, are you disputing the amount of compensation?

Kerrigan:  I'm not interested in compensation.  I'm saying you can't kick me out.

Judge:  What is your argument?

Kerrigan: That's it.  That's my argument.  You can't kick me out.

Judge:  And on what law do you base that argument?

Kerrigan: The Law of bloody common sense!

"You can't buy what I've got," he responds when asked whether the compensation offered is insufficient.  But predictably, these arguments get him nowhere, so he retains a well-intentioned but horribly inept local solicitor, who is, by his own estimation, over his head when it comes to eminent domain and constitutional law.  He only makes the case worse when he bases his argument on "the vibe" of the constitution.  Only when an experienced constitutional barrister takes on the case pro bono do things begin to look up.  The final act plays out in Australia's High Court, with the barrister arguing that the Constitution's requirement that takings be accomplished on "just terms" prohibits the seizure of family homes to satisfy corporate desires. 

The film doesn't gloss over the legal issues, and touches upon the Mabo and Tasmanian Dam cases, and article 51 of the Australian Constitution.  But whether the film is accurate from the standpoint of Australia's law of compulsory acquisition isn't really important, because it accurately catches "the vibe of the thing" (to paraphrase one of the film's more well-known lines) of why home and business owners resist eminent domain. 

Some things, I suppose, are universal.  The U.S. release is available at Amazon.

[follow up - Professor Gideon Kanner adds his thoughts about the film and Australia's eminent domain laws here]

KHPR ThinkTechHawaii Interview With Justice Stephen Breyer (mp3)

U.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 summary of Justice Breyer's speech to the Hawaii Bar.

Links From Today's Seminar

Thank 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 Bivens claim for retaliation against property owner
• My Honolulu Advertiser op-ed on Wilkie
• Crown Point Development, Inc. v. City of Sun Valley - Ninth Circuit jettisons the Armendariz doctrine.  A follow up post here.
• Cine SK8, Inc. v. Town of Henrietta - how to prove a substantive due process case
• Franco v. National Capital Revitalization Corp. - DC Court of Appeals on evidence of pretext in Public Use challenges
• Goldstein v. Pataki - Second Circuit on pleading pretext in Public Use challenges
• Divine v Town of Nantucket - Massachusetts court invalidates 40 year old taking for lack of proper notice (includes my limerick!)
• Brody v. Village of Port Chester - "conspicuous mention" of time limitations in eminent domain
• Silva v. City & County of Honolulu - Hawaii Supreme Court lowers the bar in equal protection "rational basis" analysis
• Diamond v. State Board of Land and Natural Resources -  the shifting sands of the definition of "shoreline"
• Brescia v. North Shore Ohana - estoppel and shoreline setbacks (ps - it was the Red Hot Chili Peppers)
• Here's the money quote from the other case I mentioned, Waianae Model Neighborhood Area Ass'n v. City & County of Honolulu, 55 Haw. 40, 514 P.2d 861 (1973):

[A]n act of an administrative official which is without any semblance of compliance with or authorization in an ordinance, is beyond his competence and is utterly void; but if an act of such official, done in good faith and within the ambit of his duty, upon an erroneous and debatable interpretation of an ordinance, is no more that an irregularity, and the validity of such act may not be questioned after expenditures have been made and contractual obligations incurred in reliance thereon in good faith.

• Everything you ever wanted to know about the Hawaii Superferry case.

Court of Federal Claims: Commercial Fishing License Not "Property"

In 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 in waters around Palmyra Atoll and Kingman Reef did not take the plaintiffs' licenses for  commercial fish processing facilities on the atoll.

The plaintiffs were exclusively licensed by the owners of Palmyra Atoll (located approximately 1,000 miles south of Hawaii) to commercially fish the nearby waters, and to use the atoll's airstrip, dock, harbor, and base came for their commercial fishing enterprise.  In reliance on the licenses, the plaintiffs invested several millions of dollars in on-island infrastructure, and actually began commercial fishing operations.  Slip op. at 2 & n.1.   

In 2001, however, the Secretary of the Interior designated the waters surrounding Palmyra and Kingman Reef as National Wildlife Refuges. The plaintiffs asserted that its licenses were taken when the federal government, "working in tandem with an influential environmental lobby," enacted regulations that barred commercial fishing, which had the effect of rendering the plaintiff's licenses worthless:

Plaintiffs assert a property interest in “a series of contractual licenses grant[ing] Plaintiffs the right to use Palmyra for commercial fishing and related transport and support operations.” Pls.’ Br. filed Aug. 10, 2007, at 3 (internal quotation marks omitted). Plaintiffs contend that the licenses are private, exclusive, transferrable contract rights that qualify as property interests protected by the Fifth Amendment. In support of the proposition that contract rights are property interests protected by the Fifth Amendment, plaintiffs rely on Lynch v. United States, 292 U.S. 571, 579 (1934) (“Valid contracts are property, whether the obligor be a private individual, a municipality, a state, or the United States.”); United States Trust Co. of N.Y. v. New Jersey, 431 U.S. 1, 19 n.16 (1977) (“Contract rights are a form of property and as such may be taken for a public purpose provided that just compensation is paid.”); and Cienega Gardens v. United States, 331 F.3d 1319, 1329 (Fed. Cir. 2003) (“[T]here is also ample precedent for acknowledging a property interest in contract rights under the Fifth Amendment.”).

Slip op. at 5. The court rejected the claim that the licenses were property.  The court held that the private owners of Palmyra Atoll could only license activities on the atoll, and not in the surrounding waters:

Accordingly, the [owners of the Atoll] lacked authority to grant any license in the tidal lands, submerged lands, or surrounding waters, and the government could not have taken any tidal lands, submerged lands, or surrounding waters.”). As plaintiffs admit, the governmental restrictions designating the refuge and closing it off to commercial fishing were imposed upon the “tidal lands, submerged lands, and waters” of Palmyra – the interests to which plaintiffs disavow any claim.

Slip op. at 7.  Since the designation of the water as National Wildlife Refuges did not directly regulate or affect the on-atoll activities of the plaintiffs, the court held that the devastating economic impact they suffered were merely consequential damages, and the regulations were a frustration of business expectations, not a taking of property:

[P]laintiffs’ complaint conflates the licenses with their subject matter. The licenses permit plaintiffs to use the emergent land of Palmyra for the purpose of establishing a commercial fishing operation. The Government’s closure of the waters surrounding Palmyra to commercial fishing frustrated the purpose of the licenses, but did not appropriate a contractual right to commercial fishing granted thereby, as such a right could not have been granted. The Government is not liable to plaintiffs for a taking because the government actions at issue did not address plaintiffs or their licensors or regulate plaintiffs’ operations under their licenses. The designation of the Palmyra National Wildlife Refuge and subsequent closure of the refuge to commercial fishing neither appropriated plaintiffs’ contract rights for public use nor removed plaintiffs’ right to enforce their contractual licenses or to seek a contractual remedy with their licensors.

Slip op. at 9.