inversecondemnation.com

New Article Published: "Because They Can: Judicially Excising the People from the Definition of 'County' in the Hawaii Constitution"

The ABA Section on State & Local Government has published my article "Because They Can: Judicially Excising the People from the Definition of “County” in the Hawaii Constitution" in the State & Local Government Law News (Spring 2008). 

The article is a summary and analysis of County of Kauai ex rel. Nakazawa v. Baptiste, 165 P.3d 916 (Haw. 2007), the 3-2 decision in which the Hawaii Supreme Court creatively overcame justiciability problems to hold that the term "the counties" in the Hawaii Constitution's provisions regarding property taxes means "county councils."  In doing so, the court invalidated a voter-enacted Kauai charter amendment that would have rolled back property taxes to 1998 levels, and set a yearly cap on increases.  The dissenting justices accused the majority of "subverting the judicial process," and would have dismissed the case for lack of standing. 

The article is posted on the ABA's web site here.  For those of you who are not section members and don't receive a copy in the mail, the article is reposted here.  More on the case, including the majority and dissenting opinions, a Wall St. Journal story about the decision, and the briefs and oral arguments, is posted here.   

Cert Petition in Ceded Lands Case

In a very short (17 page) petition, the State of Hawaii has asked the U.S. Supreme Court to review a decision by the Hawaii Supreme Court regarding "ceded lands."  The petition argues that by basing its decision in Office of Hawaiian Affairs v. Housing and Community Dev. Corp. of Hawaii, No. 25570 (Jan. 31, 2008) on the "Apology Resolution," the Hawaii Supreme Court "effectively insulated its decision from any political check at the state level," an error only the U.S. Supreme Court can correct.  The cert petition is posted here.

The petition was filed filed by heavy-hitter Seth Waxman, a former U.S. Solicitor General, so despite its brevity, it should be taken seriously.  It asks the Court to review a single question: 

In the Joint Resolution to Acknowledge the 100th Anniversary of the January 17, 1893 Overthrow of the Kingdom of Hawaii, Congress acknowledged and apologized for the United States' role in that overthrow.  The question here is whether this symbolic resolution strips Hawaii of its sovereign authority to sell, exchange, or transfer 1.2 million acres of state land-29 percent of the total land area of the State and almost all the land owned by the State-unless and until it reaches a political settlement with native Hawaiians about the status of that land.

Petition at (i).  The petition notes, but does not focus on, a key point -- the ceded lands are supposed to be held in trust by the State "for the benefit of all citizens of Hawaii."   

First, the practical impact of this decision is enormous: it bars the State from prudently managing, for the benefit of all citizens of Hawaii, more than 1.2 million acres of State-owned land-29 per cent of the total land area of the State and almost all the land owned by the State.

Petition at 11 (emphasis added).  This point has been glossed over in recent decisions on ceded lands, and this petition gives the U.S. Supreme Court an opportunity to correct it. The petition obviously does not suggest that the usual route to SCOTUS review -- the "circuit split" -- is present, since the case presents facts and law that are unique, and have not expressly arisen in another case.  Instead, it argues that the Hawaii Supreme Court grossly misinterpreted federal law and that there is no other remedy available:

Absent review by this Court, this injunction will continue to hold the State hostage to the Hawaii Supreme Court's deeply flawed analysis of federal law.  The error and the injury in this case are unmistakable, and only this Court has the power to correct them. It should exercise that power.

Petition at 17.  Download the entire petition here.

Update: Pacific Legal Foundation filed an amicus brief in support of the State of Hawaii, available here.

The Euclidization of Public Use - A Dose of Reality For the Kelo Majority

In Kelo v. City of New London, 545 U.S. 469 (2005), the majority opinion authored by Justice Stevens, framed the issue presented in terms of the validity of "the development plan," and not whether the particular takings at issue were "for public use."

The disposition of this case therefore turns on the question whether the City's development plan serves a "public purpose."

Relying upon Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926), the case which upheld a municipality's power to zone provided it is exercised in the context of a "comprehensive plan," the Kelo majority upheld the New London taking because it was supposedly the product of a well-considered plan of "comprehensive character."

The City has carefully formulated an economic development plan that it believes will provide appreciable benefits to the community, including--but by no means limited to--new jobs and increased tax revenue. As with other exercises in urban planning and development, the City is endeavoring to coordinate a variety of commercial, residential, and recreational uses of land, with the hope that they will form a whole greater than the sum of its parts. To effectuate this plan, the City has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development. Given the comprehensive character of the plan, the thorough deliberation that preceded its adoption, and the limited scope of our review, it is appropriate for us, as it was in Berman, to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment.

Failing to see the differences between comprehensive planning (looking at land uses as a whole, rather than spot-zoning) and "comprehensive eminent domain" (I guess the more the government plans to take, the more deference its plan is due?), the Court seems to have a rather romantic vision of economic development and urban renewal plans. 

To inject a dose of reality, take read of a story entitled Urban renewal project in L.A. begets blight instead, the L.A. Times tells the tale of urban renewal gone wrong,

It was supposed to have been a model of urban renewal -- a mix of housing and classy stores to replace a decaying 20-acre shopping center at the foot of the affluent Baldwin Hills.

Instead, more than a year after the project was to be completed, Santa Barbara Plaza is a collection of dead or dying businesses surrounding a vast parking lot with weeds pushing through large cracks. Most of the housing was never built; none of the retailers ever came. The largely middle-class, African American area is stuck with a mostly deserted commercial slum.

Los Angeles leaders gambled on a check-bouncing, politically connected developer to shepherd the project. And after $15 million in government subsidies and more than $30 million in private investment, taxpayers -- and the community -- have lost.

Complete story here.  In somewhat the same vein as the L.A. Times story, read this op-ed from Professors David Beito and Ilya Somin, on how eminent domain has an "outsized impact on the constitutional rights of minorities."

I wish I could say that the Santa Barbara Plaza story was atypical, but it isn't.

Kauai Springs Zoning Permit Appeal

Today we filed the Opening 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.

The case is an appeal from an agency decision under the Hawaii Administrative Procedures Act (a procedure known in other jurisdictions as a petition for a writ of administrative mandate or a petition for a writ of mandamus).  I won't go into the details of the case in this post, since the brief spells out the facts and the arguments in support.   

For more information about the case, here are some links to earlier media coverage:

• A May 2006 story about the case from the Honolulu Star-Bulletin

• A story from the Kauai newspaper about the TRO that halted the County's attempt to shut the business down while the appeal was being considered.

• Another story about the preliminary injunction that allowed Kauai Springs to stay open.

• "Kauai Springs: Still Open for Business" from Hawaii Reporter.

The Opening Brief is posted here (2.5mb pdf).

County Motion in Maui Affordable Housing Exaction Case

The County of Maui has filed a motion for summary judgment in the federal court challenge to the County's affordable housing exaction ordinance.  The memorandum in support of the motion is posted here (215k pdf).

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 landowner earlier filed a motion for partial summary judgment (1.5mb pdf) asking 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.  The plaintiff's motion is posted here.  See this post for more on the nexus analysis.

The hearing on both motions is currently set for June 2, 2008, at 9:45 a.m., before District Judge Ezra.

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

Upcoming Land Use and Eminent Domain Seminars

Head's up to two upcoming seminars worth attending: "Planning Zoning and Eminent Domain" (May 8-9, 2008), and "Planning and Zoning 101" (May 7, 2008), both of which will be put on by the Center for American and International Law, in Plano, Texas.  Registration information for both seminars is here.  The faculty is first-rate, and includes many of the stars in our field -- Gideon Kanner, Dwight Merriam, and Robert Freilich.  I won't be able to attend, but I have in the past, and highly recommend it.

New Federal Court Land Use Case Against County of Maui

A Lahaina business owner has sued the County of Maui in federal court in Honolulu.  In Goo v. County of Maui, CV 08-00172 DAE (filed Apr. 17, 2008), the Complaint alleges the County and Planning Department officials drove the International Open Market Place, a gift and craft fair, out of business by deliberately favoring a use prohibited under the zoning (a bank/credit union) over uses permitted under the zoning (plaintiff's business). 

The plaintiff also brings federal constitutional claims as well as claims for civil rights violations under 42 U.S.C. § 1983 and a Monell "deliberate indifference" theory.  The Complaint is posted here.

Cert Petition in Ninth Circuit Case on Reserved Powers, Contracts Clause in Repeal of Eminent Domain Ordinance (Matsuda)

The City and County of Honolulu has filed a petition for writ of certiorari in Matsuda v. City and County of Honolulu, No. 06-15337 (9th Cir. Jan. 14, 2008), asking the U.S. Supreme Court to review the case.  We don't have a copy of the cert petition yet, but when we do, we'll post it.  The Supreme Court docket report is here (No. 07-1305).

Matsuda involved th repeal of "chapter 38," Honolulu's version of the Hawaii Land Reform Act at issue in Hawaii Housing Auth. v. Midkiff, 467 U.S. 229 (1984).  Chapter 38 allowed for conversion of condominium interests to fee simple, via a condemnation process. 

In Matsuda, apartment owners applied to the city to "convert" (condemn) their apartment leases, and entered into written contracts with the city, in which the apartment owners each agreed to pay the city $1,000, in return for which the city promised that after its acquisition of the lease, it would convey it to the apartment owner.  The owners subsequently received the city's approvals, but final approval by the City Council was withheld because the council was already considering repealing chapter 38, which it did in 2005. 

The ordinance repealing chapter 38 eventually contained a provision allowing any conversion proceeding which has been approved by the City Council to be completed, but because Matsuda's had not received final council approval, the taking was denied.  Matsuda and others filed suit against the city in federal court, alleging that the repeal of chapter 38 was a violation of the U.S. Constitution's Contracts Clause.  The Ninth Circuit held that the district court should have viewed the repeal of Chapter 38 with "heightened scrutiny" because the repeal of Chapter 38 was the city voiding its own contracts.  A complete summary of the Ninth Circuit's opinion is posted here.

Tim Sandefur added his thoughts about Matsuda here, and Professor Gideon Kanner's are posted here.  More to follow when we receive a copy of the cert petition.

Book Review: Bulldozed - "Kelo," Eminent Domain, and the American Lust for Land

"If you can fight blight, why not create beauty?  If not beauty, why not bounty?"

With that phrase, author Carla T. Main, in Bulldozed: "Kelo," Eminent Domain, and the American Lust for Land, accurately and succinctly sums up the devolution of the Supreme Court's view of the role of judicial review in eminent domain from Berman, to Midkiff, to Kelo.

Bulldozed is accessible to both lawyers and non-lawyers, and is no dull scholarly summation of the current state of Public Use Clause law.  Rather, it places the issues in an understandable context by framing the legal details with the story of the Gore family of Freeport, Texas, and their straight-out-of-Forrest Gump shrimp processing business.  The taking of the Gore's property and business for Freeport's "economic development" resulted in the case Western Seafood Co. v. United States, No. 04-41196 (5th Cir. Oct. 11, 2006) (a case I blogged about here). Main provides more details and background than the court's dry recitation of the facts ever could, and in between recounting the Gore family's story, provides the reader with an understanding of how we ended up with a case like Kelo, a decision that seemed to baffle a majority of the public. 

Main begins at the birth of the Fifth Amendment and James Madison's concern that private property rights would not be respected by the newly formed United States, and tells the stories behind many of the seminal cases on eminent domain:

• West River Bridge Co. v. Dix, 47 U.S. 507 (1848), Daniel Webster's case in which the Court held that the Contracts Clause was no impediment to a state condemning an exclusive bridge franchise. 

• Berman v. Parker, 348 U.S. 26 (1954), the case in which the U.S. Supreme Court first equated the condemnation power with the police power, and held, in sweeping language by Justice Douglas, that "public use" under the Fifth Amendment includes takings for 

• Poletown Neighborhood Council v. City of Detroit, 304 N.W.2d 455 (Mich. 1981), overruled, County of Wayne v. Hathcock, 684 N.W.2d 765 (Mich. 2004), the case which opened the door to economic development takings, where an entire neighborhood was cleared to make way for a General Motors plant, based only on Detroit's hope that what was good for GM was good for Detroit.

The only case really missing from the lineup is Hawaii Housing Auth. v. Midkiff, 467 U.S. 229 (1984), the opinion authored by Justice O'Connor that set up her dramatic turnabout in her dissenting opinion in Kelo.  Midkiff is a fascinating story and could be the subject of another book, so on the whole, it's a minor omission from Bulldozed.

Main also details how beginning in 2001, the courts began to take public use objections seriously, especially in the context of economic development takings, where one person's private property is transferred to another because the new owner promises to make more intense use of it.  This awakening by the courts culminates in the Supreme Court litigation in Kelo v. City of New London, 545 U.S. 469 (2005).

Of course, given the title of the book, an entire chapter is devoted to the arguments in Kelo, the case which brought eminent domain squarely to the American public's consciousness.  The Kelo backlash is the subject of another entire chapter.  These sections are among the more enjoyable and accessible in the book.  They detail the high drama of legal cases that make their way to the Supreme Court, and highlight the depth of emotion and passion aroused when people's homes, businesses, and neighborhoods are threatened.

Anyone who may wonder why property owners fight the taking of their property and businesses, despite the often overwhelming array of government power leveled at them need to read Bulldozed.  Bulldozed is available from Amazon.

Condemnation Blight and Clouding Use

On the topic of the Willets Point case, inequitable precondemnation activities, and condemnation blight, thanks to Professor Gideon Kanner for reminding us of his seminal article on the subject, Condemnation Blight: Just How Just Is Just Compensation?, 48 Notre Dame Law Review 765 (1973) (the Notre Dame Law Review was then called the Notre Dame Lawyer).

I read it a while ago, but it's worth revisiting.  It received the Shattuck Prize from the American Institute of Real Estate Appraisers (now the Appraisal Institute) and it was the sole authority relied on by the Oregon Supreme Court in rejecting the New York Clement rule.  More about the subject here (Professor Kanner's Gideon Trumpet blog).  Check it out.