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.

Comments

[Carl C. Christensen]

The Divine v. Town of Nantucket scenario could easily play out here in Hawaii in condemnation cases involving land owned by multiple cotenants. Under Hustace v. Kapuni, 6 Haw. App. 241, 718 P.2d 1109 (1986), plaintiffs in quiet title actions bear a heavy due process duty of diligence to locate and properly serve out-of-possession cotenants, even if those cotenants have inherited their interests through a complex chain of title involving intestacy. There is no reason to believe that the plaintiff in an eminent domain action would bear a lesser burden. Furthermore, the fact that these inherited interests may have very little value where ownership of the land is highly fractionated does not deprive their owners of constitutional protection. Hodel v. Irving, 481 U.S. 704 (1987); Babbitt v. Youpee, 519 U.S. 234 (1997). Accordingly, plaintiffs in condemnation actions (as well as in quiet title actions) must ensure that they have in fact identified and made proper service upon all owners of such properties, including out-of-possession cotenants. In my experience, they don't always do so.

[rht]

I second Carl's thoughts. It is the condemnor's burden -- and no one else's, as the Divine case so starkly reminds -- to insure that every owner who has an interest in the property to be taken is provided due process notice. For a more recent case on this principle, see the 2006 SCOTUS decision in Jones v. Flowers.