inversecondemnation.com

Hawaii Business Magazine Column: Using Blogs, Social Media To Connect

Hawaii Business magazine has published my column about how our firm is using web 2.0 tools to communicate and connect, "Connect with customers with blogs, Twitter." 

Ironically, the article is not (yet) available on-line, so here it is:

Connect with customers with blogs, Twitter
They're easy to use and effective

Take note, small- and medium- business owners: blogs, Twitter and other "social media" aren't for kids -- they're tools for taking on the big guys.

Learn how to use them, and you can leverage your lack of bureaucracy to communicate directly with potential clients, the media and your community.

Our 25-lawyer firm uses blogs and Twitter.

I started my blog on land-use and property law (www.inversecondemnation.com) more than three years ago.  Mark Murakami followed, focusing on maritime law (www.hawaiioceanlaw.com).  Soon, Tred Eyerly joined, writing about insurance issues (www.insurancelawhawaii.com).

We analyze court decisions and track new developments.  Blogs are more timely than static web sites, and also allow us to interact directly with our readers. Blogging has helped garner local and national media attention for cases, and improves the quality of the reporting by giving journalists an insider's view on the story.

Twitter limits you to 140-character messages and broadcases instantly, allowing you to enter an ongoing conversation with the other "thought leaders" in your areas.  Many CEOs blog, and it seems that half of the journalists and politicians in town have joined Twitter.

Some tips:

First, every culture has rules; social media is no different.  Listen in and ask questions, then seek out others of like interests -- locally, nationally or worldwide.

Second, don't just write about business. Transparency is expected; people want to know about you, not just what you do. It is "social" media, after all.

Third -- and most importantly -- share your passion.

Come, join us.

Robert H. Thomas, land-use attorney and director with Damon Key Leong Kupchak Hastert 

Conference: ABA Section Of State & Local Government Law Virtual Spring Meeting

Instead of an in-person Spring Meeting this year, the ABA Section of State & Local Government Law will be "meeting" virtually from March 31-April 2, 2009.  As part of the meeting, the Section will be featuring a series of teleconference and live audio webcasts on a variety of subjects including topics near and dear to us: workforce housing, condemnation, land use, and green regulations. You can register for all programs, or individual subjects. A complete list of programs is posted here.

I will be participating as faculty in two of the programs: Condemnation Hot Topics (April 1, 2009 from 2:00 - 3:30pm EDT) and Hot Topics in Land Use Law (April 2, 2009 from noon - 1:30 EDT).  I'll be speaking about the issue of public use and pretext in eminent domain, and recent cases questioning the government's ability to take property.

Registration information is available on the links. If you can't make it for the live programs, the ABA is making recordings available also.  I hope you can join in.

New Eminent Domain Book: Current Condemnation Law: Takings, Compensation & Benefits (2d ed.)

A recent book of interest to condemnation lawyers, Current Condemnation Law: Takings, Compensation & Benefits (2d ed.).

The book is co-edited by my Owner's Counsel of America colleague Alan T. Ackerman. (He also has a blog about eminent domain issues.)

From the blurb:

Condemnation of property is an especially topical subject after the U.S. Supreme Court's controversial decision in Kelo v. City of New London. This completely revised edition of Current Condemnation Law examines the many complexities involved in the practice of eminent domain law in order to assist lawyers in best protecting the clients' interests in these cases. The book brings together experts in the specialty to provide analysis of both major and specialty areas of condemnation law, providing "how to" tips along with current discussions of case law and theory.

The chapters in Current Condemnation Law provide a thought-provoking mix of articles covering the key topics of business valuation, contamination issues, the right to take, and payment for business damages. Written by some of the ablest practitioners in condemnation law, this book will assist both new and veteran practitioners to develop and maintain a successful condemnation law practice.

Chapters include: Bulldozers at Your Doorstep: The Debris of Kelo v. City of New London; Taking Rights Away: Ripeness, Abstention, and Res Judicata Principles in Takings Cases; Condemnation Blight: Analysis and Suggested Solutions; Calculation of Damages in Temporary Takings; The Relevance of Rezoning and Comparable Sales Occurring After the Date of Taking; and Public Use Acquisitions: The Experience in England and Wales. Several chapters are authored by OCA's New York member Michael Rikon. View the complete table of contents here. Purchase your copy from the ABA here.

2008 Land Use In Review: The Ninth Circuit Rediscovers Substantive Due Process

In a development that began in November 2007 (2005 actually, if the starting point is seen as the U.S. Supreme Court's decision in Lingle v. Chevron, U.S.A., Inc., 544 U.S 528 (2005)), the Ninth Circuit finally ditched Armendariz v. Penman, 75 F.3d 1311 (9th Cir. 1996) (en banc), and recognized that property owners are not limited to regulatory takings claims when challenging land use regulation, and the government can violate substantive due process as well.  In 2008, the Ninth Circuit issued a number of decisions in which it recognized that Armendariz's forced election of a regulatory takings remedy has been truly overruled. 

Rather than plow through multiple posts, it would be easier to just download a recently published article I wrote on the subject, collecting all the cases, The Ninth Circuit Rediscovers Substantive Due Process In Land Use Cases (31 Zoning and Planning Law Report (Thomson | West Dec. 2008)). It's all in there.

New Article: The Ninth Circuit Rediscovers Substantive Due Process In Land Use Cases

The Zoning and Planning Law Report (Thomson | West) has published my article about the post-Lingle developments in substantive due process in the Ninth Circuit. Download a pdf of the article here.

From the introduction:

Substantive due process asserted as a claim for relief has a whiff of danger about it. After all, a plaintiff claiming a violation of substantive due process is asking a court to override the judgment of the political branches and invalidate an ordinance, statute, or an administrative determination because the action is somehow illegitimate. After the demise of Lochner, courts are understandably reluctant to be seen as second-guessing the policy choices made by the elected branches of government, and a suggestion that a court is "Lochnering"—legislating from the bench by invalidating economic regulations based on a judge’s contrary economic or social beliefs—can be the equivalent of judicial kryptonite.

In part because land use actions can be characterized as economic regulation, until recently, many courts preferred to resolve constitutional challenges under the Takings Clause, which seemed to provide a more defined analytical framework, at least when compared to the more generalized standards applicable to substantive due process challenges. The Ninth Circuit, for example, forced property owners to challenge land use regulations exclusively as regulatory takings under the Fifth Amendment. When regulatory takings analysis under the two-part Agins v. City of Tiburon standard included both legitimacy and diminution of value components, this forced election of remedies had at least a semblance of intellectual consistency since a landowner could challenge an action as illegitimate under the "substantially advance" test—at least theoretically—and was not limited to seeking compensation under the second part. The two-part test, however, did not survive the Supreme Court’s unanimous ruling in Lingle v. Chevron, U.S.A., at least as one of takings. Lingle clarified that the "substantially advance" prong of Agins was not a "takings" test and that courts should review the legitimacy of land use regulations under the Due Process clause.

After Lingle, the Ninth Circuit revisited its forced election of remedies requirement and expressly overruled it. This article summarizes the Ninth Circuit’s post-Lingle cases which reinvigorated substantive due process as a vehicle for reviewing land use regulations, and suggests several areas for further inquiry when asserting the claim in land use and property cases.

Two Recent Law Review Articles (Water Law and Shoreline Issues)

Two recent U. Hawaii Law Review articles worth mentioning.  Although neither is available free on the web, they can be obtained through legal research services such as Westlaw or Lexis, or through the U. Hawaii Law Review.  If you don't have a UHLR subscription, you should. It's only $30 per year for US addresses.

Water Regulation, Land Use and the Environment
David L. Callies and Calvert G. Chipchase; 30 U. Haw. L. Rev. 49 (Winter 2007)

In this article, the authors assert that the "public trust" doctrine, as misconstrued by the Hawaii Supreme Court, has distorted water law and the land use process:

Problems arise in the planning process when water and non-economic uses of water are given a sacrosanct status that abjures private use for the benefit of "the public." This is increasingly happening under flawed interpretations of the public trust doctrine.

p. 49 (citing In re Water Use Permit Applications (Waiahole), 84 Haw. 97, 9 P.3d 409 (2000); In re Water Use Permit Applications, 105 Haw. 1, 93 P.3d 643 (2004); In re Water Use Permit Applications, 113 Haw. 52, 147 P.3d 836 (2006)). The article continues:

Many courts have forgotten that the jus privatem is as much a part of the public trust doctrine as the jus publicum. Certainly water should be available for future use, but is also should be readily available for current use. When the balance between current private and abstract or future public needs is distorted, water use and availability of water becomes the primary, or even sole, consideration in the process. This leads to the preservation of water for such uses as "minimum stream flows" and non-beneficial use by selected segments of the public and, ultimately, an elitist, communitarian regime that bears no relationship to either traditional notions of water rights or constitutionally protected rights in property.

Id. The authors analyze the multi-layered land use planning laws in Hawaii, the state Water Code (Haw. Rev. Stat. ch. 174C), and the Hawaii Supreme Court's extension of the public trust doctrine beyond navigation and commerce to the promotion of reasonable and beneficial use of water resources in Waiahole.  p. 70.  The article also discusses how Arizona, Colorado, and New Mexico regulate their water resources, and what lessons these jurisdictions may provide for Hawaii.  pp. 77-92.

More Than a Line in the Sand: Defining the Shoreline in Hawai'i After Diamond v. State
Simeon L. Vance and Richard J. Wallsgrove; 29 U. Haw. L. Rev. 521 (Summer 2007)

In this article, the authors analyze the differences in the various definitions of the "shoreline" under Hawaii law, and the Hawaii Supreme Court decision in Diamond v. State, 112 Haw. 161, 145 P.3d 704 (2006) .  As detailed in this post about the Diamond case, the term "shoreline" is used to define both the boundary between public and private property as well as the baseline for measuring the shoreline setback (a no-build zone on beachfront property).

The difference between a  certified shoreline  and a  seaward boundary line  has become a confusing and potentially divisive issue. Confusion is predictable because the definition of  shoreline  for certification purposes is essentially identical to the definition Hawai'i courts have used to determine property boundary lines. Despite their similarity, however, the two lines  are not necessarily the same because their purposes, the impacts and the processes for determining these  lines' are uniquely and significantly different.

The most critical of these differences is that shoreline certifications are not designed to determine ownership.  Instead, the line of ownership dividing public and private coastal property is the seaward boundary. Markedly different from the shoreline certification process outlined above, determinations of seaward boundary lines often take the form of quiet title actions, eminent domain actions, or land court petition actions.  The state's responsibility to uphold the public trust and preserve its interest in property triggers the need for  a more rigorous and cautious approach.  In these situations, the state does not rely on shoreline certifications, but conducts its own survey in recognition of the "importance of lateral [shoreline] access over state-owned lands for recreation, native gathering practices and other purposes."

p. 532 (footnotes omitted).  The article is a good introduction to Hawaii's unique approach to shoreline law, and a worthy read.  And I'm not just saying that because it cites several posts from this blog as authority (See, e.g., notes 92, 146, 179, and 180, and accompanying text).

Land Use Round Up

Some interesting items, worth reading:

• According to this story, the preferred developer of the New London, Connecticut project that gave us Kelo apparently is on the ropes.  Professor Gideon Kanner's take on the latest misstep is here.

• From Dean Patty Salkin's Law of the Land blog, a summary of Agripost, LLC v. Miami-Dade County, No. 05-16499 (11th Cir. Apr. 22, 2008), the latest case on the Williamson County ripeness/res judicata Catch-22. 

• From the Court of Federal Claims comes Schooner Harbor Ventures, LLC v. United States, No. 06-87L (Apr. 15, 2008), where the landowner sought compensation after the Fish and Wildlife Service designated property as critical habitat for the Mississippi Sandhill Crane.  The landowner asserted that the designation killed a deal for it to sell the property to the Navy.  Too bad said the CFC, the right to sell the property to the Navy without restrictions is not a "property" right subject to Fifth Amendment protections:

The plaintiff’s argument fails in that the plaintiff is asserting that it had the right to sell its property to the government, without conditions imposed, in this instance to meet regulatory burdens  imposed on the Navy, by obtaining the mitigation parcel. Whereas, the right to alienate the property is a cognizable property interest, the right to sell the property to the government at a particular price and without conditions is not a cognizable property interest which is protected by the Fifth Amendment. 

Slip op. at 13. 

• The LA Times has commentary on California's upcoming Propositions 98 and 99, two items on the ballot regarding the exercise of eminent domain power and property rights:

Your decision on Prop. 98 may come down to how you answer two questions: Is it worth risking future public works projects, including water? Is rent control bad? If the answer is yes to both questions, vote yes on 98. If the answer is no to either question, vote no -- then yes on 99.

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.   

▪ Meditations on the Practice of Law

This post has nothing whatsoever to do directly with land use law or property rights, but there's an interesting article on the San Francisco Chronicle's web site that is too good to resist.  "Zen and the art of lawyering" reports on Bay Area lawyers who combat job-related stress by meditation. 

▪ Vested Rights/Zoning Estoppel Dispute Brewing on Kauai

Two stories in today's Honolulu papers, "Wal-Mart fights Kauai ban on 'big-box' stores," "Wal-Mart says it will fight for Kauai expansion," contain all the buzzwords indicating a vested rights and zoning estoppel dispute may be on the horizon.  The Advertiser writes:

A recent Kaua'i County ban on new "big-box" stores shouldn't apply to a planned expansion of Wal-Mart's existing store to a supercenter with a full-line grocery store, according to the retailer.

Wal-Mart yesterday announced it believes its project was approved before the ban because the county approved a masterplan years ago for its 119,000-square-foot Lihu'e store that included future phases to enlarge the store up to 185,000 square feet.
. . .

The County Council in May passed an ordinance prohibiting development of any retail or wholesale establishment bigger than 75,000 square feet.

Councilman Jay Furfaro said he was surprised by Wal-Mart's position, especially since the company did not raise the issue before the ordinance was passed.

"You can't reach back and say, 'We're grandfathered,' " Furfaro said. "They have not received their final permit (for expansion), so it should be subject to the ordinance."

Wal-Mart in a statement said the ban shouldn't apply to a project that was already approved.

The Star-Bulletin story:

In May, the Kauai County Council passed a law prohibiting any retail or wholesale store larger than 75,000 square feet -- the first ban of its kind in the state.

But Wal-Mart Stores says it had already won the county's legal approval of the existing Lihue Wal-Mart's expansion long before the new ban went into effect. Therefore, the county should not be able to withdraw that approval.

"When we originally built the Lihue Wal-Mart, the county approved a master plan for the site that called for expanding the store to approximately 185,000 square feet," said Wal-Mart spokesman Kevin Loscotoff. "The County Council has now acted to stop development of any new large-format retail stores on the island, but the ban should not apply to a project that was already approved."

Zoning estoppel and vested rights -- sometimes referred to as "grandfathering" -- are legal doctrines prohibiting the government from changing its official mind after it has provided "official assurances" to a property owner that it may use its property in a particular way.  I described these doctrines in a 2006 law review article, Arrow of Time, Vested Rights, Zoning Estoppel, and Development Agreements in Hawaii:

Once an owner's rights have "vested," the owner possesses development rights, and these development rights are property rights that "cannot be taken away by government regulation."  If the government is estopped, it is prevented from applying any future incompatible, albeit legal, regulations to the property.  Vested rights and zoning estoppel thus counterbalance the government's unfettered ability to use its police power to regulate land uses, providing some insulation of the land development process from shifting political winds.

More on the article here and here, or for a copy of the article, drop me an email.

More to follow, as today's reports do not look like the last chapter in Kauai's attempt to prohibit Wal-Mart's expansion.