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Is Anyone On The Hook If a Volcano Gawker Ends Up In Trouble?

This photo and accompanying story ("Volcano officials concerned about risky activity at Kilauea ocean entry") reminded us of an article we did a few years ago about issues of liability in these cases, the "compensation culture," and a famous tort decision by the UK's House of Lords. 

Our article, "Common Sense and Common Law - Who Does the Balancing of Social Utility?," framed the issues in light of the situation at Hawaii Volcanoes National Park where visitors had (and apparently still have) the ability to simply walk out among the flowing lava:

Hawaii Volcanoes National Park is located on the island of Hawaii, and true to its name, its central attraction is one of the world’s most spectacularly active volcanoes, Kilauea. At the end of Chain of Craters Road, visitors may walk out past where it was cut off by a flow to witness a fresh lava flow firsthand and very close up. It’s a thrilling and humbling experience to watch and feel 1000-degree liquified rock make its way to the ocean through cracks in the brittle crust just beneath your feet. A smattering of National Park Service rangers wander around reminding viewers to keep to the ill-defined trail, and several warning signs are posted where the road ends and visitors must continue on foot.

The signs are dire enough: “Extreme Danger Beyond This Point!” “Bad Gases,” “Red Lava,” and “Methane Explosion Risk is HIGH Today.” But the signs are treated by visitors less as warnings and more as centerpieces of funny photographs to show the folks back home (especially the one about “methane explosion risk”). The rangers and the signs hardly deter hundreds of visitors a day. The tourist and the scientist marvel at witnessing so closely the creation of new land, but the lawyer is instinctively aghast: this is a public space after all, and park management just allows people to walk out day and night, mostly unsupervised, into a fresh lava field surrounded by molten rock and poisonous sulfur dioxide? Do they realize the exposure, the chance of someone being injured and suing? Are they insane?

This essay is not about the dangers that may lurk at Volcanoes National Park,or an analysis of the legal efficacy of the warning signs. The Kilauea example is highlighted simply to demonstrate that even in the age of risk management and litigation, some activities are deemed to have such value – whether scientific or esoteric – it is worth the risk of injury and lawsuits to continue them. This essay is about who determines that value.

Check it out if you are interested. 

Common Sense and Common Law - Who Does the Balancing of Social Utility?

Cal App Affirms Penn Central Temporary Regulatory Taking

Here's the opinion of the California Court of Appeal (1st District) in an appeal we've been following, Lockaway Storage v. County of Alameda, No. A30874 (May 9, 2013), affirming that the County of Alameda is liable for a temporary regulatory taking under Penn Central, and awarding the property owners nearly three-quarters of a million in attorney fees.

The entire opinion is worth reviewing, but here's the short story. Lockaway purchased agriculturally-zoned land in the East Bay area for use as a boat and RV storage facility, an alternate conditional use in ag-zoned land. For over a decade, the property had been used as such pursuant to a series of Conditional Use Permits. In 2000, however, the voters of the county approved an initiative which prohibited the development of storage facilties, unless approved by public vote. The ordinance contained a provision allowing "minimum development" if the prohibition would deprive an owner of its statutory or constitutional rights. It also contained a provision exempting existing developments, and parcels that have received "all necessary discretionary County and other approvals and permits" (in other words, those developments that have "vested").

When Lockaway applied for a new CUP, the County denied it because Lockaway had not obtained a building permit and started construction prior to the effective date of the initiative ordinance. After exhausting administrative remedies, Lockaway sued in California state court for a writ of mandate allowing it to proceed with development, and for inverse condemnation and civil rights violations. The Superior Court issued the writ, because the development was "squarely under the protections" of the vested exemption even though a building permit had not issued, because a building permit is ministerial and not "discretionary." Thus, Lockaway was allowed to proceed with development. After a trial on the damages for the temporary taking, the court held that under Penn Central, the Superior Court held "the County's regulatory action had a 'substantial, negative economic impact' on Lockaway's use of the property, had 'materially interfered with Plaintiffs' distinct, investment-backed expectations,' and that its conduct could not be justified as a normal regulatory mistake." Slip op. at 8. The court issued a verdict for $504,175 in lost profits, $324,954 in increased construction costs due to the 30-month delay in construction, and prejudgment interest. It also awarded $703,760 in attorney fees plus a 1.25 multiplier for a total award of $879,700.

The Court of Appeal affirmed the entire judgment. The most interesting part of the opinion begins at page 20. The court reviewed the three-part Penn Central test, rejected the County's argument that the right test is Landgate Inc. v. California Coastal Comm'n, 17 Cal. 4th 1006 (1998), and held that although the initiative did not render Lockaway's property worthless, it did deprive it of a "return on investment that it 'reasonably expected from the intended use.'" Slip op. at 23. The court also affirmed the "investment-backed expectation" prong, because Lockaway "purchased the property only after the County expressly confirmed that Lockaway could rely on the 1999 CUP to develop a storage facility." Slip op. at 24. Finally, the County's "showstopping U-turn" (first working with Lockaway to further its development plans, and then doing an about-face) satisfied the "character of the government action" factor:

On appeal, the County contends there is insufficient evidence to support the trial court's findings regarding the character of its regulatory action. We disagree. The following pertinent facts are supported by substantial evidence. The County did not take any action to shut down the Lockaway project in December 2000 when Measure D went into effect. Instead, it encouraged Lockaway to continue its development efforts for 18 months. Then, in September 2002 the County changed its position and announced that the project had been doomed since December 2000 because Lockaway had not obtained all permits and commenced construction before Measure D‟s effective date. In taking this new stand, the County refused to even consider whether Section 22 exempted the Lockaway project.

Slip op. at 25. The court concluded the County's behavior was "manifestly unreasonable."

Read the entire opinion for the details. Congratulations to colleague Timothy Kassouni on the win. 

Lockaway Storage v. County of Alameda, No. A30874 (Cal. App. May 9, 2013)

ABA Spring Conference: Public Use And Regulatory Takings Updates

We just wrapped up the spring meeting of the ABA's Section of State and Local Government Law in Nashville, which included our presentation of two updates, one on the latest in public use in eminent domain, the other on regulatory takings.

Here are the draft papers presented:

• Recent Developments in Eminent Domain: Public Use (coauthored with Mark Murakami and Bethany Ace)

• Recent Developments in Regulatory Takings

For those of you who attended, you already have these articles in your materials.

HAWSCT's Latest On The "Private Attorney General" Fee-Shifting Doctrine

Here's the latest decision from the Hawaii Supreme Court applying the "private attorney general" doctrine, which allows a prevailing party to recover fees and costs in certain limited circumstances. In Kaleikini v. Yoshioka, No. SCAP-11-0000611 (May 2, 2013), the court awarded attorneys' fees and costs incurred on appeal to the plaintiffs who prevailed in the case challenging the archaeological review for the $4+ billion Honolulu rail project. In its earlier opinion, the court held that the review could not be segmented, and that the city should not have started construction on any part of the project until archaeological review for the entire project had been completed.

Highlights:

• Ask the appellate court only for those fees and costs you incur in that court; if you want fees incurred in the trial court, seek them there.

• The going rate for highly skilled and experienced attorneys in Honolulu is darned reasonable when compared to other jurisdictions (see p. 39-40).

• The "lodestar" method (reasonable rate times reasonable time) is the default, and the court isn't going to allow "enhancement" in cases not involving a fee-shifting statute (the private attorney general is a judge-made doctrine), and not involving a contingency fee. The goal of the private attorney general fee-shifting doctrine is to allow reasonable compensation to the prevailing lawyer, not to reward plaintiffs or their attorneys, especially those who ask for a 100% enhancement (i.e, a doubling of the presumptively reasonable lodestar amount).

If this sort of thing is your bag, check it out.

Kaleikini v. Yoshioka, No. SCAP-11-0000611 (May 2, 2013)

Materials From Today's Virginia Eminent Domain Conference

For those of you attending the Virginia Eminent Domain Conference, here's the expanded papers on "Tough Takings Questions: Regulatory Takings, Zoning Issues and Judicial Takings" and Public Use issues.

Use the password provided at the conference to open the pdf's. It's the same p/w for both. If you forgot the password, email me.

• Regulatory Takings

• Public Use

For those who did not attend, sorry folks, there are some benefits to coming to a conference! Y'all are going to have to wait for a bit -- after a decent interval to allow the attendees to get their money's worth, we'll remove the password.

For more about the cases and books we discussed yesterday during my presentation on "Virginia's Place in National Eminent Domain Trends, check these out:

• More about Crenshaw v. Slate River Co., 27 Va. 245 (1828).

• Arlington National Cemetery and the Takings Clause.

• Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984) (private takings, Public Use Clause).

• Lingle v. Chevron, U.S.A., Inc., 544 U.S. 528 (2005) (gas station rent control, and the demise of the "substantially advance" test as a takings test).

• Kaiser Aetna v. United States, 444 U.S. 164 (1979) (navigable waters, regulatory takings).

• Livingston v. Virginia Dep’t of Transportation, 726 S.E.2d 264 (Va. 2012) (flooding and taking liability).

• James Ely, The Guardian of Every Other Right: A Constitutional History of Property Rights (1998) (read this book!).

 

Fifth Circuit: City Not Required To Give Notice Prior To Demolishing Building If It Merely Believed There Was An Emergency

A short one from the U.S. Court of Appeals for the Fifth Circuit. In RBII, L.P. v. City of San Antonio, No. 11-50626 (Apr. 23, 2013), the court overturned a jury verdict that the city violated the due process and Fourth Amendment rights of a property owner when the city demolished its building without first providing notice that it was going to do so.

The city believed a structure owned by the plaintiff was dilapidated and a danger, and needed to be demolished immediately. The city undertook environmental review, exhausted its internal procedures for demolition, notified the Historic Preservation office, turned off the utilities, and checked the permit register to see if any repairs were made. It accomplished this all in about two weeks. But it didn't notify the property owner before it took down the structure.

The owner filed suit in state court, and the city removed it to federal court. The owner asserted among other things that the city violated it procedural due process right to a predeprivation notice, and its Fourth Amendment right against unreasonable seizure. After a jury trial, the district court awarded the plaintiff $27,500 in damages.

The Fifth Circuit bacated the verdict and remanded the case. Predeprivation notice is unnecessary where an emergency presents a threat to public safety, and postdeprivation process is sufficient. If the city acted in accordance with its emergency procedures -- which it did here -- its determination that there was an emergency is "entitled to deference." Slip op. at 6. "In such cases, the relevant inquiry is not whether an emergency actually existed, but whether the State acted arbitrarily or otherwise abused its discretion in concluding that there was an emergency requiring summary action." Id. It doesn't matter whether there actually was an emergency. The court held that the district court wrongly instructed the jury that the city was only excused from providing predeprivation notice if there was an immediate danger to the public, not mentioning the part about discretion and compliance with its emergency procedures. Verdict vacated, sent back for a new trial.

The problem also infected the Fourth Amendment verdict, even though the jury instructions there were not in error. The erroneous due process instruction "would have led the jury to believe that such a decision can only be reasonable when there is actually 'an immediate danger to the public.'" Slip op. at 10-11.

RBIII, L.P. v. City of San Antonio, No. 11-50626 (5th Cir. Apr. 23, 2013)

Fla Fed Ct: Exaction Scheme Is "Constitutional Mischief" To Avoid "Nettlesome Payment of 'Just Compensation'"

Here's one to brighten your day, courtesy of the the U.S. District Court for the Middle District of Flordia (that's Tampa, to all you non-Floridians). In Hillcrest Property, LLP v. Pasco County, No. 8:10-cv-819-T-23TBM (Apr. 12, 2013), the court held the county's "Right of Way Preservation Ordinance" that allows it to land bank for a future road corridors by means of an exaction (more details on the ordinance below), is "both coercive and confiscatory in nature and constitutionally offensive in both content and operation." Slip op. at 4.

We've seen this situation before -- the government wants to build roads, but it either doesn't have the money to buy or condemn the necessary property to do so, or it simply figures it can get it another way. The county had such plans, and designated future transportation corridors on its comprehensive plans. In 2005, the county adopted the ordinance which "targets landowners who own property encroached by the corridor and who aspire to build on the property adjoining the corridor." Slip op. at 4. Here's how the court described the ordinance's operation:

 In exchange for a development permit, the Ordinance requires those landowners to agree to dedicate the corridor in fee simple to Pasco County. Under the Ordinance, Pasco County withholds the construction permit until the landowner dedicates the property "by recordation on the face of the plat, deed, grant of easement, or other method acceptable to the County." Code § 319.8(A); Code § 901.2(H). If the property owner declines the dedication, Pasco County declines the construction permit.

Once a landowner dedicates the land to Pasco County, the landowner may apply to Pasco County’s Development Review Committee for permission to use his former land until Pasco County needs to build the road. The Ordinance provides a list of specific and temporary “interim uses,” such as a produce stand or a bridal path for a residential zone or a boat storage yard or a ground to host “festivals, carnivals, community fairs, and the like” for a commercial zone. Code § 319.6(C)(1); Code § 901.2(F)(3). When and if Pasco County needs the land, the former landowner must remove any permitted, temporary use (for example, a lemonade stand, a Tilt-AWhirl, or a putt-putt course).

Slip op. at 4-5. A property owner who believes that the exaction is not "roughly proportional" to the transportation impacts its development may have may seek a waiver, sought via an application requiring myriad studies and experts. ("Roughly proportional? Looks like Justice Scalia was right and a smart staffer has read Dolan). If the Review Committee agrees, she gets 115% of the value of the excess, or other credits. The Review Committee may also waive the waiver requirements via a "variance" if the owner can show the application process would impose a hardship. The court noted the ordinance "is no model of clarity." See slip op. at 9-11 & n.3.

The transportation corridor protrudes into Hillcrest's undeveloped commercially-zoned property. Hillcrest wanted to build a shopping center and it submitted a plan to the Review Committee, which rejected the application because it did not account for the corridor. Hillcrest submitted a second plan which was rejected, and a third plan which was eventually approved. It required Hillcrest dedicate the right of way to the county, although Hillcrest reserved its right to object to the dedication. Hillcrest then filed the federal action seeking to invalidate the ordinance, asserting several claims including federal due process and a takings claim under Florida law. Hillcrest had not applied for a waiver or a variance.

The court first rejected the county's argument that the substantive due process claim was not ripe under Williamson County because Hillcrest had not pursued a waiver or variance. The court noted that Williamson County only applied to takings claims, although due process claims may be subject to a similar requirement depending on the remedy sought. But the exhaustion requirement was not applicable since Hillcrest was only claiming the county acted arbitrarily and capriciously when it used the ordinance as a way to avoid condemnation and compensation, and the remedy it sought was invalidation.

Starting at page 23, the court attempted a "clarifying account of the constitutional first principles," to distinguish due process claims from taking claims. We won't detail it here, but it is well worth a read in its entirety and, we think, for the most part correct. This section of the opinion is something everyone who follows this blog should read:

Instead of finding that the Ordinance deprives a landowner of property without paying just compensation, the magistrate judge finds that the Ordinance leverages the police power to compel a landowner to relinquish rights guaranteed by the Takings Clause – a finding that the Ordinance fails to advance a legitimate governmental purpose. Although not "set[ting] forth the applicable standard," Nollan and Dolan are central to understanding the Ordinance’s perverse scheme and Nollan and Dolan "inform the due process analysis."

Slip op. at 25. In other words, it is a due process violation to use the police power to avoid taking and paying for property. We made this point a few years ago in an amicus brief in Lingle, where we argued it was not a legitimate exercise of government power to try and get property without using eminent domain. As the court noted, "[t]he government's failure to satisfy [the Nollan and Dolan] requirements violates the Takings Clause. If taking an amount of land in excess of the amount that the government has proven necessary to mitigate the development's contribution to the public hardship, the government must proceed as it always has -- through condemnation, in which the government bears the burden of proof and a disinterested fact-finder determines 'just compensation.'" Slip op. at 35.

The court concluded the Right of Way Preservation Ordinance violated the Takings Clause because it shifts the burden to disprove rough proportionality to the property owner and empowers the county to obtain land in excess of what it would otherwise get in the absence of the ordinance:

Instead of proceeding through eminent domain, in which the government proves a public need and a disinterested fact-finder determines "just compensation," the Ordinance requires Pasco County to prove nothing and empowers Pasco County to determine the "just compensation," if any, Pasco County will pay.

Slip op. at 36. This is a due process problem because "by legislative fiat, Pasco County uses a development permit to compel a landowner either to convey valuable land for free or to submit to a regime catigated by Dolan. In other words, Pasco County wields the police power to compel a landowner's abandoning rights guaranteed by the Takings Clause." Id. at 37. The ordinance also offends due process because it was desiged to circumvent the requirements of the takings clause, and was a "misuse of the police power" to avoid exercising the county's eminent domain power. The court wrapped up its takings/due process analysis with this:

In sum, the Ordinance discriminates based on economic aspiration. Against the class of landowners who never attempt to develop, Pasco County will acquire land by eminent domain, beginning when and if Pasco County needs the land. A landowner without need of a permit enjoys the protection of condemnation and receives the "just compensation" guaranteed by the Constitution. A landowner who aspires to develop property and who aspires to a permit for a grocery store, a doctor’s office, an apartment building, or the like faces an immediate confiscation of land. For these landowners, a last but forlorn hope for just compensation is in Pasco County’s prolix, opaque, and overbearing Ordinance. Further, these landowners’ just compensation is an elusive contingency, held for ransom by a committee methodically acquiring property at a steep, aggregate discount. "[M]erely an attempt to circumvent the constitutional and statutory protections afforded private property ownership under the principles of eminent domain," the Ordinance improperly uses the police power and fails to advance a legitimate governmental purpose (taking by eminent domain is a legitimate governmental purpose; extorting landowners is not).

Slip op. at 46 (citation omitted).

Order, Hillcrest Property, LLP v. Pasco County, No 8:10-cv-819-T-23TBM (M.D. Fla. Apr. 12, 2013)

Strong Letter To Follow...

Yesterday, we posted our thoughts on a recent article in Hawaii Business magazine about land use, environmental law, and the Hawaii Supreme Court.

In "'Let 'Em Eat Cake' Comes to Hawaii, Professor Gideon Kanner has added his thought on the article. He comments on the article's conclusion that "[i]f we don't like the [environmental] laws anymore, we can elect officials to change them." by writing:

Hawaii Business magazine have never heard about the principle that statutes have to be constitutional? Would they make the same argument in the case of overreaching criminal laws? Racial segregation laws? Laws impairing the exercise of the First Amendment?

...

Moreover, under the "reasoning" of these idiots, no law need be constitutional because if the legislature disregards a provision of the Bill of Rights, we can tell the complaining citizens to be better electors next time and to elect more constitutionally sensitive representatives.

Lord in heaven! Is there no limit to these guys’ stupidity? Evidently not.

Read his entire commentary here. By the way, before you are tempted to dismiss Professor Kanner as an outlander (yes, Justice Scalia really did call out-of-staters "outlanders" in a recent oral argument), his ties to Hawaii and his knowledge of our ways go way, way back.

Hawaii Business Mag Story Misses The Big Issue On Development, Environmental Law, And Land Use

In "Why big development is so difficult in Hawaii," Hawaii Business magazine tackles an issue first raised by U. Hawaii lawprof David Callies in recently-published law review article (and follow-up interview), where he labeled the record of the 1993-2010 Hawaii Supreme Court on property issues "appalling" (80% overall success rate for environmental and native Hawaiian litigants, 65% of cases reversing the Intermediate Court of Appeals). As Callies said in an earlier presentation, "ninety percent of the time, government and the private sector are wrong? Give me a break." (Remember, this is the court that concluded that "western concepts" of property law such as exclusivity are "not universally applicable in Hawaii.")

Callies' conclusions sparked reaction from his academic colleague environmental lawprof Denise Antolini, who defended the court's environmental jurisprudence in an article on the grounds that it wasn't so much focused on outcome, but on process. Yes, plaintiffs happened to win a whole lot, but don't be fooled by the results, she wrote, because the court was only insuring that the doors to the courthouse remain open to all comers under the environmental standing doctrine. Callies' article also got a less measured response from two beneficiaries of the court's rulings who upped the ante by calling Callies a liar ("a lie told often enough [that it] becomes the truth") and a sell-out (listing all of the "bad" clients he's represented). Callies responded with a spirited defense of constitutional property rights: 

I make no apologies for attempting to defend the rights of all landowners to use their property. The U.S. Supreme Court has equated protection of such rights with civil rights like freedom of press, expression, and security against unreasonable search and seizure. I agree. The use of land is not a privilege but a right subject to governmental exercise of its police power for the protection of the health, safety and welfare of its citizens.

The Hawaii Business article rehashes that territory and contains comments by Callies, Antolini, and Sierra Club Hawaii Chapter Director Robert Harris, as well as a mini-debate on whether the State Land Use Commission remains necessary. The article concludes:

There’s another way to look at this. Maybe our regulatory system is working just as it was designed to work. Instead of complaining about our complicated land-use laws, or overzealous environmentalists, or policy-making by the state Supreme Court, we should look inward. These are laws, after all, that were written by elected officials: state legislators, county councilors and constitutional convention delegates. If we don’t like the laws anymore, we can elect officials to change them.

The laws’ main obstacle to development may not be that they’re too restrictive, it may be that they’re too democratic. Callies complains that the Moon Court vastly extended the concept of ‘standing,’ which defines who can bring a case to court. Extensive public participation and access to information is hard to revoke, especially in an arena as contentious as land use.

While an interesting read, the article unfortunately missed the opportunity to address the biggest looming issue: if, as Professor Antolini and Harris argue, the way things are is truly the way the system is supposed to work and is just a reflection of the codified popular sentiment, then where are you going to put people? Is it simply a matter of "I got mine" so the heck with those who come after me? Others can live in Hong Kong-style apartments so I can enjoy my place in the country? But that's a very closed viewpoint, because, after all, very few people in Hawaii live in homes that were not built by a "developer" on land that was at one time pristine, so very few of us are not tainted with that brush. If you make development -- especially residential development -- too painful, should you be surprised that the median price of a single-family Oahu residence is 600 grand, that "you would need 2.4 full-time jobs at the mean renter wage to afford a two-bedroom place in Hawaii," or that Hawaii leads the nation in the highest numbers of multi-generation households? Or are we just counting on people to vote with their feet by seeking greener pastures in places where home ownership isn't some distant dream, where the public schools are decent and the cost of living not as crushing, thus making the environment better for those who have the means to remain in Hawaii?

We don't know how to answer these questions. But it can't be that more of the same is what we need, because if we just keep doing what we're doing, the present situation surely is not "sustainable" to use the current terminology, and Hawaii will end up as Fiji writ large.

One final comment: expansion of the judicial standing doctrine is not "democratic." Since when is a panel of unelected judges deciding that public policy is better served by making it easier to file lawsuits "democratic?" The Moon Court, after all, was the court that expanded the standing doctrine to give government officials standing to sue other government officials to overturn a popularly-enacted county charter provisions the officials didn't like. Throwing open the courthouse doors to certain plaintiffs may be a good thing, or it may not be. But sorry, it's not "democracy" either way you cut it.

J.R. (Or Major Nelson) Adversely Possesses Neighbor's Land

Here's one of those owner-puts-up-a-fence-that-is-actually-on-his-neighbor's-property situations, this time with a very Hollywood twist.

The owner, you see, was Larry Hagman, of Dallas and I Dream of Jeannie fame. Seems the fence between his Ojai, California property and that of his neighbors, a religous group, was .44 acres into their land, and Hagman claimed it by adverse possession. In Hagman's quiet title action, the trial court granted him summary judgment.

In Hagman v. Meher Mount Corp., No. B239014 (Apr. 3, 2013), the Court of Appeal affirmed. The court held that Meher Mount's property is not immune from adverse possession by virtue of it being owned by a "public benefit corporation," because that is not the same as a "public entity." The latter are "vested with some degree of sovereignty." Slip op. at 4. Even though public benefit corporations like Meher Mount require government approval, "[t]hey are not owned or operated by the government. They do not possess any of the traditional incidents of soverign authority such as the power to tax or to condemn property." Id. at 5.

As for Meher Mount's argument that J.R. had not shown that he paid the property taxes and mosquito assessments on the land during the prescription period, the court held that Meher Mount did not pay property taxes, so Hagman was not required to either. And the mosquito assessment? Not a "tax" according to the court. See id. at 9-10.

Hagman v. Meher Mount Corp., No. B239014 (Cal. App. Apr. 3, 2013)

Wednesday Round-Up: Houseboat Redux, Backtracking Post-Kelo, Arkansas Game Remand, Big Gulps

Here's what's on our reading list today:

• Here's the latest chapter in the saga of one Fane Lozman, whose titling at windmills got some Supreme Court love recently when the Court held that his floating home was not a "vessel" under admiralty law, and a Florida city was wrong to seize it. My Damon Key colleague Mark Murakami reports on the 11th Circuit's recent ruling in Lozman's related federalcivil rights case. Houseboat Redux - Eleventh Circuit Reinstates Lawsuit (via Hawaiioceanlaw.com). 

• Arkansas Game & Fish did not overturn the well-settled physical takings test - from PLF's Liberty Blog, Brian Hodges writes about the amici brief that PLF and others filed yesterday in the Federal Circuit.

• Ilya Shapiro at Cato writes about the same issue in U.S. Can't Use Supreme Court's Property Rights Ruling to Rewrite Takings Law (via Cato at Liberty blog). 

• Lawprof Ilya Somin writes that Alabama Undermines its Post-Kelo Eminent Domain Reform Law at Volokh Conspiracy. 

• Let Them Drink Big Sodas from Dean James Huffman (via Defining Ideas - Hoover Institution).

• One more from PLF: Yes, the Due Process Clause covers property owners, by Daniel Himebaugh, pointing out that the "property" being deprived when a local government denies a development permit is not the "new property" right to the permit process, but the "old property" right to use and develop land.

Amici Brief: The Tenth Amendment, The Property Clause, And The "Town Too Tough To Die"

Today, on behalf of the Cato Institute and a coalition of Western-state public policy and research foundations, we filed this amicus brief in supporting the City of Tombstone's cert petition in City of Tombstone v. United States, No. 12-1069 (cert. petition filed Feb. 27, 2013).

In that case, in 2011 a forest fire in the Coronado National Forest and later monsoon rains damaged the city's sources of municipal water. The city and the State of Arizona declared a State of Emergency, but the U.S. Forest Service limited repair efforts by requiring the city to apply for a special permit and placing limitations on its use of equipment. Because it alleged the loss of water from these sources limited its ability to repond to fires, Tombstone sought a preliminary injunction prohibiting the Service from impeding its repair efforts. The District Court denied the injunction, and the Ninth Circuit affirmed, agreeing with the District Court that the federal government had not "comandeered state property or improperly regulated the State."

Here's the summary of our brief's argument:

If the states have the power to regulate private uses of federal land to further "environmental" goals -- as this Court held in California Coastal Comm’n v. Granite Rock Co., 480 U.S. 572 (1987) -- then surely under the powers reserved to them by the Tenth Amendment, states also possess the right to access and use federal land to respond to emergencies to protect the lives and properties of their residents, without undue interference from federal bureaucrats. The national government’s expansive authority to regulate federal property is thus not exclusive, particularly when states act under their emergency powers to protect life and property. Without clear guidelines delimiting the scope of the federal government’s authority in such cases,  states and municipalities will be left wandering the virtual desert, relying on the sufferance of federal administrators alone for their continued existence.

This brief addresses a single issue: whether the City of Tombstone is likely to succeed on its claim that its ability to access and repair the sources of its municipal water located on federal land is not trumped by the federal government’s authority under the Property Clause, but rather is a traditional government function reserved to the states. Amici respectfully argue that it is, so this Court should review the important issues raised in Tombstone’s petition.

The case is scheduled for the Supreme Court's conference of April 12, 2013.

Here's more from Ilya Shapiro at Cato.

Brief of the Cato Institute, the Rio Grande Foundation, the Montana Policy Institute, the Idaho Freedom Fou... b

Texas: A Future Interest Is A Property Interest

Our state courts may be closed on this Good Friday, but the courts of most other states' are not, Texas courts included. So here's an opinion issued today by the Texas Supreme Court, El Dorado Land Co. v. City of McKinney, No. 11-0834 (Mar. 29, 2013).

[Update: more on the case here from the Supreme Court of Texas Blog, including links to the briefs and the oral arguments.]

El Dorado sold the city some land for use as a park. The conveyance required that the land "shall be used only as a Community Park," and if not used for that purpose, then El Dorado would have the right to buy the land back.

Ten years later the city built a public library on part of the land, which resulted in El Dorado reminding the city about that "park" use requirement by giving notice that it was going to buy the land back. "El Dorado's letter further asked the City within ten days to acknowledge its obligations under the deed and to suggest an acceptable closing date." Slip op. at 1. Cheeky buggers!

When the city predictably did not respond as El Dorado suggested, El Dorado brought an inverse condemnation lawsuit, claiming that the reversionary interest was property which had been taken by the city's failure to sell. It could not sue the city for breach of contract because the city had not waived its immunity. The trial court dismissed the case for failure to state a claim because El Dorado's interests were mere contract rights, and not property. The court of appeals affirmed.

The Texas Supreme Court held in El Dorado's favor that the deed restriction was a "right of reentry," which is a conditional future interest, and "property" under Texas law. The court relied on the reasoning of Leeco Gas & Oil Co. v. Nueces County, 736 S.W.2d 629 (Tex. 1987), a case with similar facts which held that "a future interest in real property is compensable" under the Texas Constitution's Takings Clause. Slip op. at 6-7. In Leeco, the deed provided that the property would automatically revert if the county did not use it as a park. The court rejected the city's attempt to distinguish the future interest at issue in Leeco from El Dorado's, holding that it made no difference that in Leeco the interest was self-executing, and El Dorado's interest gave it the right to repurchase.

While we agree that Leeco’s possibility of reverter and El Dorado’s right of reentry are different types of reversionary interests, it is not apparent why their technical differences make one a compensable property interest and the other a worthless right. In both, the termination of the possessory estate rests on the occurrence of a condition subsequent imposed upon the conveyance. That a right of reentry requires its holder to make an election does not make it any less a property right, particularly where as here the holder has made the required election.

Slip op. at 7.

The court also rejected the city's argument that the fact that it purchased the land from El Dorado, while in Leeco the property had been donated to the county, made a difference.

Finally, the opinion closed with a good quote if you need to explain to your courts what "inverse condemnation" is:

When private property is taken for a public purpose, our constitution requires that the government compensate the owner. Tex. Const. art I, § 17. A condemnation proceeding is the formal process by which that compensation is determined. But when the government takes private property without paying for it, the owner must bring suit for inverse condemnation. Westgate, Ltd. v. State, 843 S.W.2d 448, 452 (Tex. 1992). The action is termed “inverse” because it is initiated by the private property owner instead of the government, but its purpose and procedure are generally no different. Stewart, 361 S.W.3d at 567.

Slip op. at 10-11.

Besides the holiday schedule for Good Friday, another diffrence between Texas' courts and Hawaii's is the approach to contingent future interests. Contrast El Dorado with the opinion of the Hawaii Intermediate Court of Appeals in a case asking whether the right to future littoral accretion is "property." The Hawaii court held it was not, because the accretion might never take place and thus was not "vested." The Hawaii Supreme Court denied review, as did the U.S. Supreme Court, despite our amicus brief arguing that the property being taken was not the future accreted land, but rather the present right to future accretion, itself a recognized and compensable property right. Shoulda brought the case in Texas!

El Dorado Land Co. v. City of McKinney, No. 11-0834 (Tex. Mar.29, 2013)

HAWICA Appeal: Is A Mineral Right An Inherent Servitude, Or Must It Be Reflected In Torrens Title?

Before the title of this post causes you to flee, please bear with us.

Oral arguments have just concluded in the Hawaii Intermediate Court of Appeals in a fascinating case involving the nature of "Torrens" title and, in a broader sense, the nature of property rights themselves. Disclosure: we filed an amicus brief in the case in support of the property owner. But more on that below.

Hawaii is one of the few remaining states retaining its Torrens system of title registration (two others are Massachusetts and Minnesota). We call it "Land Court," a system in which the State guarantees indefeasible title to the rights and interests reflected in the title register.  

In In re Trustees Under the Will of the Estate of James Campbell, No. 30006, the State of Hawaii claims that title to property on Oahu's north shore which was registered and confirmed to the Campbell Estate by the Land Court in 1938, is subject to the State's ownership of "all mineral and metallic mines of every kind or description on the property, including geothermal rights," and is subject to a flowage easement in favor of the State.

As background (for those of you who, like me, weren't paying attention on the day it was discussed in your Property class) Torrens title derives its name from Sir Robert Torrens, an Australian by way of Ireland who became the first premier of South Australia. Largely through his efforts, South Australia adopted a system of land registration which was adopted by other common law jurisdictions, including several in the United States.  

The Torrens system, in general, is a method of creating a certificate of title and then registering a legal and basically absolute title to real property. This procedure, utilizing none the less, a judicial hearing to adjudicate all claims at the outset, was at one time in effect in 20 states. At the present time only ten states still utilize the (one step) Torrens system. Eleven states have repealed the Torrens statutes. In the remaining ten, in which the Torrens system is still in effect, the system is voluntary, and it functions side by side with the "old style," evidence of title recording system. The ten states are Colorado, Georgia, Hawaii, Massachusetts, Minnesota, North Carolina, Ohio, Virginia, Pennsylvania and Washington. New York recently repealed its registration of title law. In New York State around Buffalo and on Long Island there has been some use of the registration procedure. The registration system, until fairly recently at least, was in substantial use only in Massachusetts, Minnesota and Hawaii.

Todd Barnet, The Uniform Registered State Land and Adverse Possession Reform Act, A Proposal for Reform of the United States Real Property Law, 12 Buff. Envt'l. L.J. 1, 19-20 (2004) (footnotes omitted). Hawaii first adopted the Torrens Land Act in 1903, and it is currently codified at Haw. Rev. Stat. ch. 501.

Back to the case. It arose when the Campbell Estate submitted a petition to the Land Court in 2009 to consolidate and subdivide the land, and the State appeared and asserted its claims. The State argued that despite the 1938 Land Court registration, Campbell's title never included interests which the State reserved, even though the State's predecessor (the Territory of Hawaii) appeared in the 1938 proceedings and asserted other claims, and Campbell's title was confirmed to be free of all unregistered interests, including the Territory's.

The Land Court disagreed, and held that the State's claim of mineral rights was extinguished by the court's 1938 judgment (decree), and that Campbell's title was free of a flowage easement. The State appealed to the Intermediate Court of Appeals, arguing in its Opening Brief that the original grantor of the land (the King as an individual) did not own the mineral rights, so could not have conveyed them to Campbell, and that the government's reservation of mineral rights is "self-effectuating" whether noted in the land grant or not. It also claims that the government always possesses a flowage easement as a function of the public trust in water resources.

Campbell's Answering Brief countered that the State was bound by a Land Court title like any other party, and the fact that its claimed mineral rights and flowage easement was not noted in the certificate of title means that it does not exist. It also argues that the 1938 proceedings were res judicata to the State regarding interests the Territory could have raised, but did not. To impose these interests now, 70 years after its title was confirmed and registered, would be a taking without compensation.

Here's our amicus brief's summary of the issues:

This appeal presents an issue left unaddressed by the Hawaii Supreme Court in In re Robinson, 49 Haw. 429, 421 P.2d 570 (1966). Namely, whether the government waives a reservation of mineral and mining rights when it fails to raise and protect it in a Land Court title registration case, or whether government’s mineral and mining rights are inherent servitudes that need not be reflected in a Land Court decree.

Under Hawaii’s Torrens Land Act – codified at Haw. Rev. Stat. § 501-1, et seq., – the State of Hawaii (State) guarantees indefeasible title to the rights and interests reflected in the register. Land Court registration insures that interests which are not reflected on title do not exist, and persons who are wrongfully deprived of land or their interest through registration or the act or omission of the registrar are entitled to be paid by an indemnity fund, and the State's guarantee operates against all claims, including claims by the State itself.

. . . .

This brief addresses two issues.

First, even if in the original land grants the State of Hawaii’s predecessor did not convey – or reserved to itself – mineral and mining rights, they are not "burdens and incidents which attach by law" inherent in all Hawaii land titles. A reservation of mineral and mining rights could have been raised when the Territory appeared asserted other interests in the 1938 Land Court proceeding. Because the 1938 Land Court decree confirming title in Campbell's predecessor did not reflect a reservation of mineral and mining rights to the Territory, any claims to such rights by the State of Hawaii (State) were extinguished. The fact the State asserted mineral and mining rights claim in the present case seriously undermines its argument that the reservation of this claim is inherent and that it need not have been raised in Land Court at all.

Second, the State’s public trust powers do not include the imposition of flowage easements. The State’s duty to "protect, control and regulate the use of Hawaii's water resources for the benefit of its people," Haw. Const. art. XI, § 7, does not include a right to physically invade all property with water. If it does, the public trust is a per se physical taking.

Again, here are the party merits briefs:

• State of Hawaii's Opening Brief

• Campbell Estate's Answering Brief

• State of Hawaii's Reply to Amicus Brief

The case are worth following because the State's position seems to undercut the nature of Torrens title and the entire Land Court registration process. It is also especially interesting for those who want a crash course in the underpinnings of Hawaii's property law.

Brief Amicus Curiae of Pacific Legal Foundation in Support of Appellee, In re Trustees Under the Will of th...

Tail Gunner Christie: What's Next, The Pillory And The Stock?

If this article -- Christie tells beachfront owners to sign easement for dunes or face ridicule -- accurately relays the entire context of the situation, then something is seriously off here.

The article quotes New Jersey Governor Chris Christie as declaring that if shoreline property owners do not voluntarily surrender easements and allow the construction of sand dunes on their land (presumably without compensation) very soon, then he's going to "call them out" and publicly name them:

"We’re going to start calling these folks out in the next few weeks if they haven’t signed the easements to let us build the dunes because they need to be called out and they need to be told that there is something more important than their own self interests," he said during a town hall-style event in Middlesex Borough.

He followed that up with his reasoning:

"I’m not going to put up with people that decide their view of the Atlantic Ocean is more important than the lives and the properties of their neighbors," he said.

Well, let's assume that the science behind his statement is correct, that the building of dunes would prevent or lessen hurricane damage in the future and protect "the lives and properties of their neighbors" (and, presumably, the economic engine that is the Jersey Shore, the protection of which benefits every New Jerseyite). We have no reason to doubt that it would. If that's the case, Governor Christie is actually making the case for compensation, not donation. Because the building of dunes protects everyone -- even those living away from the shoreline -- then the shoreline property should not be forced to shoulder the entire economic burden of this public benefit. As the Supreme Court has repeatedly reminded us, the Takings Clause is "designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Armstrong v. United States, 364 U.S. 40 (1960).

Govenor Christie acknowledges that he might have to use eminent domain, but would prefer not to: "'Every dollar that I spend to do that, in rewarding homeowners who are being selfish, is money I can’t spend on victims who have been harmed and so I’m very reluctant to do that,' Christie said." But the same could be true in most every other situation where the public might benefit if only it could get the land it needs for free, no? A highway is coming and you don't donate your land? Selfish! Susette Kelo and her neighbors didn't donate their homes so that all New London could thrive? The nerve!

The whole vibe of this seems off to us, especially the part about holding property owners up to public ridicule and shaming if they don't "volunteer" to impress their land into public service. That seems so ... medieval, so McCarthy-esque. Is this really the state of things, where property owners are subject to Soprano-like "suggestions," and public disfavor if they don't cave in? We had hoped for better.

For more on this issue -- particularly the details of New Jersey law -- you can't do better than the blog of our colleague Tony Della Pelle, New Jersey Condemnation Law. There are lessons there for every jurisdiction with a shoreline.

Zugzwang Thwarted: Florida Property Rights Act Claim Timely Filed

No, the title to this post is not based on a character from a future Harry Potter book, but a wonderful phrase borrowed from German into the world of chess. "Zugzwang," for those of you who are neither German-speakers nor chess players, describes a situation in which a player is in a good position, but any move will put her in a worse position. And move she must.

That's what many property owners' lawyers feel like when that regulatory takings case walks though their doors and they are asked "do we file now or later, and in which court?" You file now, and you may spend years litigating whether the case is ripe because it is alleged that you acted too soon. Wait, and you will be facing an argument that the statute ot limitations has run. Zugzwang. Same goes for which court, state or federal. File in federal court and you're up against Williamson County and ripeness and the argument that the taking "without just compensation" has not yet even occurred because you haven't been denied compensation by a state court. File in state court, and when you get to federal court on your federal claims, you will be deemed to have unwillingly litigated them. Zugzwang.

That might have been the situation our Owners' Counsel of America colleague Andrew Brigham was facing when he represented the property owners in a case under Florida's "Bert J. Harris, Jr., Private Property Rights Protection Act," a statute allowing owners to be compensated if a regulation "inordinantly burdens" an existing use of property. While not a "takings" claim, its subject to much of the same analysis. Fortunately, in Wendler v. City of St. Augustine, No. 5D12-2563 (Mar. 15, 2013), the Florida District Court of Appeal (5th District) agreed with Andrew's approach, holding that the Harris Act claim was timely filed.

In 2007, the city denied Wendlers' request for demolition permits to take down seven buildings on their land, so they could construct a small hotel. The city asserted removal of the existing buildings would be detrimental to the city's historic character. The Wendlers filed a Harris Act claim, but the trial court dismissed and concluded they should have initiated the process within one year of the 2005 amendment to the demolition permit ordinance because the impact of the 2005 amendment was "readilty ascertainable" to affected property owners.  

A Harris Act claim "must be presented within one year from the time the law or regulation is first applied by the governmental entity to the subject property." Slip op. at 5 (emphasis original). The court held that the Wendlers would not have known of the impact of the amended demolition ordinance:

The Ordinance, as amended, put property owners on notice of the procedure they must follow when applying for a permit for demolition or relocation of any of the three building types newly designated in the amendment and sets forth the general standards for the demolition or relocation of historic structures. However, these provisions constituted only general restrictions that applied to the Wendlers’ structures, just as they potentially applied to other structures in the historic district.

Slip op. at 7. This makes sense because, as the government always argues, the very existence of a permitting system implies that an application may be granted. Apparently, the city wanted the Wendlers to see the future, or just assume that their permit application would be denied, even thoughout of the 162 applications for demolition made in a 10-year period, the city denied only seven indefinitely -- the seven applications by the Wendlers. And you just know, don't you, that had the Wendlers instituted a claim upon adoption of the amended ordinance, instead of a claim that they filed too late, they would have been dealing with the argument that their claim was not ripe, because the ordinance was only a "general restriction," and they might be granted a permit.

Zugzwang thwarted.

Wendler v. City of St. Augustine, No. 5D12-2563 (Fla. App. Mar. 15, 2013)

60 Minutes On China's (Possible) Housing Bubble

Update: we removed the embedded video that was posted above, since CBS kept replacing it with other clips. Here's a direct link to the video.

As our readers know, we follow with keen interest events in the People's Republic of China (does anyone call it that, anymore?), especially those issues related to property and a budding system of private rights. Here's the latest from CBS's venerable 60 Minutes, about the housing and real estate markets there. If true, it's scary stuff, especially when you consider we live in a global economy, with so much of our goods supplied by the PRC.

China has been nothing short of a financial miracle. In just 30 years, this state-controlled economy became the world's second largest, deftly managed by government policies and decrees.

One sector the authorities concentrated on was real estate and construction. But that may have created the largest housing bubble in human history. If you go to China, it's easy to see why there's all the talk of a bubble. We discovered that the most populated nation on earth is building houses, districts and cities with no one in them.

Here's the full text of the story if you prefer not to sit through the video (but you really should, some of it is eye-opening). But we're not so sure China is bound for the same trouble that the U.S.and European housing markets are enduring. Unlike those economies, China's is primarily built on cash and savings, not credit and leverage. There are a few banks and their deposits are high. People there purchase property for different reasons than people here. China's massive population creates huge demand. Debt is internal, not external.

Will those factors make a difference? We'll see. 

Enviro Lawyers Off Target With Criticism Of Callies, Says Callies

The other shoe has dropped, and in "Environmental Lawyers Off Target With Criticism Of Callies," U. Hawaii lawprof David Callies responds to and rebuts an earlier op-ed by the Director of the Sierra Club and an Earthjustice lawyer which criticized Professor Callies' recently-published law review article (and follow-up interview) detailing the stunning success rates certain parties such as the Sierra Club and Earthjustice enjoyed in the Hawaii Supreme Court from 1993-2010.

In that article, Callies labeled the record of the court on property issues "appalling" (80% overall success rate, 65% of cases reversing the Intermediate Court of Appeals). As Callies said in an earlier presentation, "Ninety percent of the time, government and the private sector are wrong? Give me a break." (Remember, this is the court that held "western concepts" of property law such as exclusivity "is not universally applicable in Hawaii.")

The responsive op-ed by the environmental lawyers upped the ante by calling Callies a liar ("a lie told often enough [that it] becomes the truth"), and a sell-out (listing all of the "bad" clients he's represented).

We believed the response in the law review to Callies by his U.H. Law colleague Professor Denise Antolini that defended the Supreme Court's record on an opinion-by-opinion basis was a more effective comeback than ad hominems, but what do we know.

Given the attack, it shouldn't be surprising that Callies has offered up an response, writing in Honolulu Civil Beat:

There they go again, vilifying and attacking the messenger rather than sticking to the issues. In response:

I have never ever suggested that the Hawaii Supreme Court is corrupt, as Harris and Moriwake clearly imply. Previously biased, yes. Consistently ruling in favor of the Sierra Club, Native Hawaiian Legal Corporation and Earth Justice and similar NGO interest groups and against property owners and government nearly 90 percent of the time speaks for itself.

I make no apologies for attempting to defend the rights of all landowners to use their property. The U.S. Supreme Court has equated protection of such rights with civil rights like freedom of press, expression, and security against unreasonable search and seizure. I agree. The use of land is not a privilege but a right subject to governmental exercise of its police power for the protection of the health, safety and welfare of its citizens. That does not mean any landowner can develop at any level or density anywhere, and for Harris and Moriwake to suggest otherwise is a gross mischaracterization of my position, as I expect they know.

Read Callies' entire rebuttal here.

Will this prompt a sur-reply? We doubt it, since, as we noted earlier, perhaps the best response when you have a 90% Supreme Court success rate is no response at all. But we were wrong before, so maybe this is one of those "stay tuned" stories.

New Cert Petition: Tombstone v. United States

This one is not about takings, but this cert petition does relate to land and water, and come on, when the case involves Tombstone, Arizona calling out the federal government to a showdown -- not at High Noon, but in the High Court -- do you think we could have passed up the opportunity to post it? No way, hombre.

Here are the Questions Presented. It's one of those QP's with a short introduction which lays out the facts, so we won't repeat them here:

Most fundamentally, this petition asks whether a state has any right to exist under the Tenth Amendment. Under the authority of a State of Emergency declared by the Governor of Arizona, the historic City of Tombstone sought to freely restore its municipal water supply infrastructure inholdings, located within Arizona’s Coronado National Forest, after they were destroyed by a natural disaster. Even though the City faced a serious public health and safety emergency consisting of the loss of adequate water for public consumption and fire suppression, the Forest Service refused to allow the City to restore its essential infrastructure without first obtaining special use authorizations. The specific questions presented for review are:

1. Whether the City of Tombstone is likely to succeed on the merits of the claim that the Forest Service violated the Tenth Amendment by directly regulating the City in such a way as to impede restoration of essential municipal infrastructure during a State of Emergency, and thereby threaten the continued existence of a political subdivision of the State of Arizona.

2.  Whether the City of Tombstone is likely to succeed on the merits of the claim that this Court has implicitly overturned Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985), and that, under the traditional governmental functions test applied in National League of Cities v. Usery, 426 U.S. 833 (1976), the U.S. Forest Service violated the Tenth Amendment by preventing the City from freely restoring its essential municipal infrastructure during a State of Emergency.

3.  Whether the City of Tombstone is likely to succeed on the merits of the claim that the Forest Service violated the Tenth Amendment by preventing the City from freely restoring its essential municipal infrastructure during a State of Emergency because the Property Clause, like all other delegated powers of the federal government, is limited by the principle of state sovereignty.

When the Tenth Amendment is involved, who knows what is in the cards, and we'll leave it up to others who can more accurately predict what the Court will do with this petition.

Will Tombstone continue to be "The Town Too Tough to Die?" Stay tuned.

Petition for a Writ of Certiorari, City of Tombstone v. United States, No. 12-1069 (Feb. 27, 2013) 

Indiana App: No Temporary Taking In Seventeen-Month Loss Of Use

In Midwest Materials, Inc. v. Wilson, No. 84A04-1205-MI-258 (Feb. 27, 2013), the Indiana Court of Appeals held that Midwest did not suffer a taking for the loss of its property during the time a requirement that it provide water service to neighboring residences as a condition of a "special exception" needed to build a "molecular methane gas processing unit" on its own property was in force. The trial court eventually struck down the condition, and Midwest then alleged it suffered a temporary taking under Indiana law (only) for the time in which the permit condition was in effect.

On the inverse condemnation claim, the trial court held that Midwest had not been deprived of use of its property, and the Court of Appeals affirmed under Indiana's version of the multi-factor Penn Central test. "The trial court did not err when it concluded that the seventeen-month period from the time that the public water condition was implemented until it was reversed did not constitute inverse condemnation." Slip op. at 19.

Although Midwest asserted only a claim for inverse condemnation under the Indiana Constitution and the court did not apply federal law and has now ripened its federal takings claim under Williamson County, any bets on how successful it will be if it goes to federal court to pursue that federal takings claim? San Remo, anyone?

Read all about the case at "Company loses inverse condemnation claim" from the The Indiana Law Journal.

Podcast And Video: The PLDC And Property Rights In Hawaii - A Panel Discussion

(We're not sure who captured and posted the above video -- wasn't us -- but to whomever did so, thank you.)

Earlier this week, our colleague Mark M. Murakami spoke at the University of Hawaii Law School on a panel about "The PLDC and Property Rights in Hawaii." PLDC refers to the Public Land Development Corporation, a state agency created in 2011 to develop state-owned lands, primarily in concert with private entities. Since its formation, the PLDC has become highly controversial, and the Hawaii Senate recently voted to repeal it.

Joining Mark on the panel were Professor Shelley Saxer (Pepperdine); Marti Townsend, Executive Director of the Outdoor Circle; and Chris Lee, State House of Representatives member.

In the event you don't want to view the entire session, we've put Mark's remarks and his responses to audience questions in a separate (high-quality) audio file, which you can steam or download here (59 minute/28mb mp3): 

The PLDC and Property Rights in Hawaii 2-26-2013

To save on your local drive, right click on the above and choose "Save link as" or similar.

HNL Planning Director: "Public, Along With Private Property Rights, Are Our Top Priority" In Building Permit Review

A quick one. An op-ed from yesterday's Honolulu Star-Advertiser by the newly-appointed Director of Honolulu's Department of Planning and Permitting. In "City followed law in issuing Hao Street development permit," he makes some good points in this piece about building permits for two single-family homes in east Honolulu, points we don't usually see being made by government officials. Unfortunately, its mostly behind a firewall (come on, you should subscribe to Hawaii's paper of record), but here are the most interesting bits:

Building and grading permits are ministerial, meaning the city cannot lawfully deny them if the plans meet applicable codes. Residents may object to new homes being built in their neighborhood, but the owner is allowed by right to do so under the law.

For example, assume your lifetime dream is to build a family home. You then purchase a property zoned for residential use; however, your neighbors object and demand that the city prevent you from building on this property after you have expended money, time and resources. By law, we must treat every property owner equally and cannot deny one's rights, while allowing the same rights to others.

A recent letter to the editor ("Project raises many questions," Star-Advertiser, Feb. 20) accused DPP of denying requests for information until after the permits were approved. Unlike discretionary permits, where public input is openly sought from the beginning, building and grading permit applications are ministerial and there is no requirement of prior public notification.

...

We understand the concerns of residents near the development, but we can assure them that the health and safety of the public, along with private property rights, are our top priority when we review and approve building permit applications.

For more about the "ministerial vs. discretionary" distinction and the "vested rights" doctrine under Hawaii law, check out this law review article we did a few years ago on the subject.

Thursday's Worth Reading List

Here's what we're reading today:

• Remember Lavan v. City of Los Angeles, No. 11-56253 (Sep. 5, 2012), a 2-1 decision from a Ninth Circuit panel holding that the City of Los Angeles could not presume that property owned by homeless people in the Skid Row area was abandoned, and prohibited the City from seizing and destroying it when the owner was "momentarily away" from it? Looks like the City is going to seek SCOTUS review. The LA Times reports, "L.A. to ask high court to overturn ruling on homeless belongings."

• In the same vein, check out "Property Rights Help the Poor" by Professor Burt Folsom.

• "Critical habitats proposal raises concerns" - from the Maui News, about a U.S. Fish and Wildlife proposal to designate "271,062 acres of privately owned and state, county and federal land in Maui County as critical habitat. ... Federal officials said Monday that "generally" there will be no impacts to private landowners who may be subject to federal restrictions only if their properties and businesses have federal funding or permitting issues. But the nine council members on the committee, led by its Chairman Riki Hokama, were skeptical."

• "Regulatory Takings and 'Lochnerism': An Observation" - from lawprof Jonathan H. Adler at Volokh. 

• "Judge Upholds LUC Ruling on Koa Ridge" -  a post at Civil Beat about Sierra Club, Hawaii Chapter v. Castle & Cooke Homes Hawaii, a recently-decided case about agricultural lands (we posted on the case here).

Guest Post: Status Of Appeal Of Land Use Commission’s Koa Ridge Approval

Last year, the Hawaii Land Use Commission granted district boundary amendment effecting the reclassification of land from the “agricultural” district to the “urban” district for Castle & Cooke Homes' proposed Koa Ridge development, sited on agricultural land on the island of Oahu. Under Hawaii’s statewide zoning, a "boundary amendment" is a reclassification of land, similar to a rezoning at the county level. The Hawaii Chapter of the Sierra Club filed an agency appeal challenging the boundary amendment in state court under the Administrative Procedures Act. 

Our friend Paul Schwind -- who has guest blogged here on many occasions before on this case, the rail, and others -- attended the agency appeal hearing at circuit court, and his report follows.

It's good that Paul has stepped up. We haven't been commenting on this case because we've got a stake in the game (our partner Greg Kugle is lead counsel for one of the parties).  Since we're involved in this case, our usual disclaimer is probably more applicable than usual: these aren't our words, our thoughts, or those of our clients.

We're not sure if we have formally introduced Paul to our audience before, but in the event we haven't, here is more about him. Paul is an old hand in Hawaii land use and agricultural policy. Before he was called to the Bar in 2001, Paul was Chief Planner for the Hawaii Department of Agriculture for 15 years. Then, after graduating law school (from our alma mater the University of Hawaii), he served for four years he was Director of Research and Legal Affairs for the Land Use Research Foundation in Hawaii. In both positions he was heavily involved with Important Agricultural Land issues, including the enactment of the IAL legislation referred to in his post below. He has experienced the IAL conversation from the government, private sector, and legal perspectives. Paul had a life before the law, and has a Ph.D. from the University of Chicago.

Here's his write up of the latest.

+++++++++++++++++++++++++++++++++++++++++++

Status of Appeal of Land Use Commission's Koa Ridge Approval

by Paul J. Schwind*

In keeping with a long tradition in Hawaii that land use cases are litigated in court on procedural rather than substantive grounds, the agency appeal in Sierra Club, Hawaii Chapter et al. v. Castle & Cooke Homes Hawaii et al., No. 1CC-12-1-001999 (Haw. 1st Cir. 2012) was decided based on whether the appeal met the statutory tests for appeal under the Administrative Procedures Act, rather than on public policy grounds. Appellant Sierra Club Hawaii Chapter had earlier been granted intervenor status during the Land Use Commission’s (LUC) quasi-judicial hearings on developer Castle & Cooke Homes’ petition for district boundary amendment from agricultural to urban for its property at Koa Ridge on Oahu.

On July 20, 2012, Sierra Club appealed of the LUC’s decision and order granting the land use reclassification. On February 15, 2013, Circuit Judge Rhonda Nishimura heard argument on the appeal, and issued her ruling orally. The written Order will be drafted by counsel for the lead prevailing party (Castle & Cooke Homes).

Judge Nishimura began by asking Eric Seitz, Esq. (counsel for the Sierra Club) which of the LUC findings of fact and conclusions of law were in error, as a basis for vacating the decision and order. He responded "all of them." The judge then asked Mr. Seitz whether designation of important agricultural land (IAL) was not before the court. He answered "yes" (i.e., designation of IAL was not the issue).

With the foregoing established on the record, Mr. Seitz began by stating that this is a case of first impression, in that it requires interpretation of Article XI, Section 3 of the Hawaii State Constitution, which requires that important agricultural lands be identified, conserved, and protected:

Section 3.  The State shall conserve and protect agricultural lands, promote diversified agriculture, increase agricultural self-sufficiency and assure the availability of agriculturally suitable lands. The legislature shall provide standards and criteria to accomplish the foregoing.

Lands identified by the State as important agricultural lands needed to fulfill the purposes above shall not be reclassified by the State or rezoned by its political subdivisions without meeting the standards and criteria established by the legislature and approved by a two-thirds vote of the body responsible for the reclassification or rezoning action.

Haw. Const. art. XI, § 3. Mr. Seitz conceded that the Sierra Club has no standing to reclassify land, but argued that the LUC members take an oath to follow the state constitution, and therefore cannot ignore Art. XI sec. 3 and its derivative statutory provisions. He acknowledged that the Hawaii Supreme Court has ruled that the constitutional provision is not self-executing. See Save Sunset Beach Coalition v. City and County of Honolulu, 102 Haw. 465, 78 P.3d 1 (2003) (until legislative standards and criteria are adopted, the constitutional section is legally inoperative). But standards and criteria both for identification and for reclassification and rezoning of IAL were in fact enacted by the Hawaii Legislature in 2005. See Haw. Rev. Stat. §§ 205-44, 205-50.

Since legislatively-enacted standards and criteria are now in place, Mr. Seitz argued that the LUC cannot now say that these standards and criteria are themselves inoperative just because the LUC has thus far failed to promulgate implementing administrative rules, and because the City and County of Honolulu has only begun the process of actually mapping IAL pursuant to Haw. Rev. Stat. § 205-47. The lands to be mapped by the City are then to be designated as IAL by the LUC pursuant to § 205-49. Note:  the only explicit reference to administrative rules in chapter 205 part III is in § 205-45 relating to petitions for IAL designation by farmers or landowners, and that provision is discretionary, not mandatory. See Haw. Rev. Stat. § 205-45 (a) (k).

So can – and should – the LUC go forward or not, given that legislative standards and criteria for IAL are in place, rules are not explicitly required for reclassification of IAL, but actual maps of designated IAL are not yet available?

Judge Nishimura asked whether anything exists that does set forth the procedure the LUC should follow in this case. Mr. Seitz responded, no, but it’s implied. That is, the LUC should refuse to reclassify IAL until both rules and maps are in place. The LUC ignored what he described as the constitutional mandate to "wait." He added that other findings of the LUC – such as the existence of other IAL (besides the subject property) that could be farmed – are purely hypothetical, as such "other" lands have no infrastructure for agriculture and have never been farmed.

Judge Nishimura then asked whether there was expert testimony during the LUC hearings in this case. Mr. Seitz responded that the testimony was exhaustive, and the LUC was entitled to make credibility determinations, but they deferred critical issues to other agencies down the road, such as whether the need for the project outweighs the need to conserve and protect IAL. He added that the record does not justify the "destruction of IAL forever." Aloun Farms (currently on the subject property) "cut their own deal" for relocation, but there are no other productive alternative lands sitting around where relocation of agricultural production would be viable. Mr. Seitz went out of his way to emphasize that Castle & Cooke has asked for designation of some of its other lands as IAL. They are a responsible developer, but even the most responsible developer is bound by the constitutional mandate and should not be allowed to develop IAL.

Wyeth Matsubara, Esq. (co-counsel for Castle & Cooke Homes) argued that the appeal filed in this case is more a weighing of constitutional requirements than an appeal of findings of fact and conclusions of law, as allowed by Haw. Rev. Stat. § 91-14. Judge Nishimura noted that an issue on the record was the weighing of housing need versus the availability of alternative agricultural lands. Mr. Matsubara continued that the LUC is required to act, and that there was uncontroverted testimony on the record that suitable alternative agricultural lands were offered by the developer to their tenant, Aloun Farms. There was also ample uncontroverted  testimony as to the need for urban growth, and as to Castle & Cooke Homes’ mitigating measures in this case.

Sarah Hirakami, Esq. argued for the LUC that nothing in Act 183 requires the LUC to act sua sponte to designate IAL. See Haw. Rev. Stat. § 205-49(a). The LUC must first receive maps from the counties, with recommendations from the Department of Agriculture (DOA) and the Office of Planning (OP). Judge Nishimura added that under § 205-44.5, the DOA and the Department of Land and Natural Resources (DLNR) were to identify public lands for designation as IAL, by the end of 2009. The LUC can also act to designate these public lands only after it receives the maps from DOA and DLNR. Ms. Hirakami continued that the DOA did not oppose the district boundary amendment petition in this case, and because the LUC imposed conditions on the boundary amendment, only the LUC has jurisdiction to revert the reclassification. Determination of the credibility of witness testimony is also for the LUC, not the court. Ultimately, the LUC must show that its decision and order is supported by the facts on the record.

Dawn Takeuchi, Esq. argued for the City and County of Honolulu that the City may employ the urban growth boundaries in its Sustainable Community Plans as part of the IAL designation process. See Haw. Rev. Stat. §§ 205-44(c)(6) (IAL designation must be consistent with county plans). See also City Council Resolution 12-23 CD1, FD1 (Feb. 15, 2012).  Accordingly, it is unlikely that the subject property would be designated IAL by the City.

Bryan Yee, Esq. argued for the State of Hawaii Office of Planning that although a two-thirds affirmative vote of the LUC is required to reclassify designated IAL, the land of the subject property has not been so designated yet. And the replacement land offered to Aloun Farms does have water infrastructure.

In rebuttal, Mr. Seitz responded that mitigation of Aloun Farms is not at issue here, since they were taken care of. The issue is the preservation of IAL for the long-term agricultural productivity of Hawaii.  The long-term agricultural sustainability of this State was the obvious objective of the framers of the constitutional amendment and, later, the Legislature.  No one else in this proceeding is concerned about that. Even the DOA, which is mandated (§ 205-44.5) to identify public lands that are IAL, hasn’t done it. But there is the City Council resolution, supra, that asks the City to move more rapidly to identify IAL, including lands within the urban growth boundary.

Judge Nishimura then announced her ruling as soon as the parties concluded their oral arguments. She stated that the court is constrained by the record on appeal and therefore cannot grant injunctive relief, as the appellant apparently had requested. Reversion of the LUC decision and order based on policy grounds is also not for the court. The court is limited to deciding whether the decision and order of the LUC is consistent with its findings of fact and conclusions of law, and whether these were arbitrary and capricious. There was no challenge in the record on appeal to the credibility of witnesses, nor was there evidence in the record contrary to the findings of fact and conclusions of law enunciated by the LUC.  Accordingly, the LUC’s decision and order is affirmed, and the appeal is dismissed.

The take-away from this proceeding? Notwithstanding the elegant and articulate passion of appellant’s counsel, you win or lose depending on whether you can raise objections to the decision below within the jurisdiction of the appellate court. In this case, the bottom line seems to be that despite all the constitutional and statutory policy in place, no important agricultural lands have yet been officially mapped and designated pursuant to Act 183.  Absent that result, it is difficult if not impossible to overturn a land use district boundary amendment as contrary to such a designation, when it does not yet exist. The Sierra Club’s appeal may be prescient, but it does not, and cannot yet, lead to a dispositive ruling grounded in the constitutional requirement to conserve and protect important agricultural lands. 

Next stop, the Court of Appeals?

---------------------------------------

*voluntarily inactive member of the Hawaii Bar

Links And Materials From Today's ABA Takings Teleconference

Here are the links to the materials and briefs from the Supreme Court's three taking cases which we are discussing at today's teleconference sponsored by the ABA's Section on Litigation's Environmental Litigation Commitee and the Condemnation, Zoning, and Land Use Committee. 

Post-telecon note: thanks to everyone for joining us. I will be posting up the briefs in the Big Oak case now pending in the Court of Federal Claims that Rob Meltz mentioned in his "what's next" talk about Arkansas Game. Update: here are the Big Oak briefs.

Still Time To Join Us Tomorrow For ABA Takings Roundable (Free!)

Did we say free? (If you are an ABA member, that is.)

Join us for a teleconference jointly sponsored by the ABA's Section on Litigation's Environmental Litigation Commitee and the Condemnation, Zoning, and Land Use Committee to discuss the latest and greatest in takings law, specifically the three cases the U.S. Supreme Court is ruling on this Term.

Moderated by Dwight Merriam (Robinson & Cole, Hartford), panelists include me, Amy Bourlris (Gunster, Yoakley & Stewart, Miami, Professor Steven Eagle (George Mason School of Law, Arlington), and Robert Meltz (Attorney-Adviser, American Law Division, Congressional Research Service, Adjunct Professor of Law, Georgetown Law, Washington)

Date: Tuesday, February 26, 2013

Time: Noon - 1:00 p.m. Eastern Time

Register here.

More information here. See you there. Come with your questions or comments.

Portland: Planning Utopia Or Hipster Paradise?

Having recently attended the 7th International Conference of the Academic Association on Planning, Law, and Property Rights in Portland, Oregon, we offer this irreverent view of that city's culture, "Insufferable Portland," by Mark Hemingway at the Weekly Standard. The landscape he portrays should be familiar to anyone who knows Portland, Berkeley, the Upper West Side, Santa Monica, Boulder, Chapel Hill, or Ann Arbor. Some highlights:

Case in point: One of the most commented-on sketches from the show [Portlandia] is a scene from the first episode in which Armisen and Brownstein are sitting in a restaurant. After asking their waitress a series of absurd questions about whether the chicken they are about to eat is local​—​"the chicken is a heritage breed, woodland raised chicken that’s been fed a diet of sheep’s milk, soy, and hazelnuts. .  .  . His name was Colin, here are his papers"​—​the couple ends up leaving the restaurant and driving to the farm to see the environment where the chicken was raised in order to assuage their guilt about eating it.

Hemingway's piece is not limited to skewering Portland's culture, but includes a look at the city's (and the state's) vaunted land use planning:

Things began to unravel in 1973, when the Oregon legislature required cities in the state to set development boundaries with the goal of preserving farmland from "leapfrog development"​—​that is, new subdivisions not adjacent to established developments. Portland became the first major city with an "urban growth boundary."

This fact opened up a world of possibilities that are still being inflicted upon us. "Urban planners have long believed in a land-use-transportation connection that would allow them to manipulate one through the other," writes Cato Institute senior fellow Randal O’Toole in a damning policy paper on the failure of Portland’s growth policies. "So Portland plans land uses to try to reduce the amount of driving people do while it plans transportation to try to slow the conversion of rural land to urban purposes."

In the same vein, at the conference, John Charles from the Cascade Policy Institute gave an eye-opening presentation on "Transit-Oriented Development as a Growth Management Tool in Portland: Comparing the Vision with Reality," about whether TOD has lived up to its promise. We won't attempt to paraphrase his findings, but let's just say that in some cases it has not, and "TOD" and "smart growth" are not the be-all-end-all solution to traffic and population issues.

For a view less tongue-in-cheek's than Hemingway's of Oregon's land use planning program, see The Quiet Revolution Goes West: The Oregon Planning Program 1961-2011, 45 John Marshall L. Rev. 357 (2012), authored by our ABA colleague Edward Sullivan.

Upcoming Event: The PLDC and Property Rights in Hawaii

On Tuesday, February 26, 2013 from 7:15 - 8:309 p.m. in Classroom #2, the University of Hawaii Law School is sponsoring a talk about "The PLDC and Property Rights in Hawaii," which will feature our Damon Key colleague Mark M. Murakami.

PLDC refers to the Public Land Development Corporation, a state agency created in 2011 to develop state-owned lands, primarily in concert with private entities. As Honolulu Civil Beat's information page on PLDC notes:

The corporation has broad powers for entering into private partnerships and establishing its own governing objectives and policies. It also is tasked with identifying state lands under DLNR that are suitable for development. The Board of Land and Natural Resources must approve all land transfers.

The corporation, with the approval of the governor, can also issue revenue bonds for constructing, acquiring and renovating public facilities, as well as for the acquisition of non-public lands.

Since its formation, the PLDC has become highly controversial, and the Hawaii Senate recently voted to repeal it. We moderated a panel on the issue at the Hawaii Land Use Conference in January, so the U.H. program will be a good update. 

The panel will discuss three issues: the different perspectives on the PLDC issue itself, how the controversy over the PLDC reflects the tensions underlying the property rights regime in Hawaii, and (in an unrelated but pressing subject for law students) the speakers' views on how to thrive in law school and the legal job opportunities after graduation.

Joining Mark on the panel are Professor Shelley Saxer (Pepperdine); Marti Townsend, Executive Director of the Outdoor Circle; and Chris Lee, State House of Representatives member.

For more details on how to attend download the flyer, contact Mark, or RSVP here.

Public Land Development Corporation and Property Law in Hawaii 

Tuesday Tidbits

Here's what we're reading on this Tuesday-after-a-long-weekend:

• "Economic Impact in Regulatory Takings Law," a forthcoming article by lawprof Steven J. Eagle about one of the prongs of the Penn Central takings test. Professor Eagle "concludes that unresolved issues and complexities in adjudicating the 'economic impact of the regulation on the claimant' test provide an additional reason why the conceptually incoherent Penn Central doctrine must be replaced."

• Jacob Cremer posts "The Constitutional Issues at Stake in Koontz, Simplified" on his blog. 

• "Are Property Rights Human Rights?" from Forbes. 

• "NY Fed report sees cracks in eminent domain proposals" - "... a new blog from researchers at the Federal Reserve Bank of New York suggests such a plan would have proved to be ineffective anyway. Their reasoning for this conclusion is that many of the targeted borrowers have already benefited from either falling interest rates, loan modifications or voluntary prepayments and foreclosures" - via Housingwire.

• "Wukan's dilemma stems from land property rights" - the latest on this story about property protests in southern China.

PLF's Jim Burling To Discuss Property Rights And The Environment At U.H. Law School

Mark your calendars: on Thursday, February 21, 2013, James Burling, director of the Pacific Legal Foundation and principal attorney at PLF's Property Rights practice group and U. Hawaii lawprof Maxine Burkett will discuss "Do Property Rights Matter When The Environment Is Going To Hell In A Handbasket?"

The forum -- presented by the Environmental Law Program and the Federalist Society -- will begin at 12:15 p.m. in CR1. Light refreshments will be served. Please RSVP to elp@hawaii.edu.

More below.

Do Property Rights Matter When the Environment is Going to Hell in a Handbasket?

Getting Past No In Land Use Disputes

Yesterday, our ABA and Owners' Counsel of America colleague Dwight Merriam gave the keynote address at the 7th International Conference of the Academic Association on Planning, Law, and Property Rights, in Portland, Oregon.  Dwight's presentation, "Getting Past "Yes or No" – Linking Police Power Decision-making with Just Compensation," centered on the idea that many of the frustrations in land use and environmental law might be avoided by the establishment of a compensation fund which would be drawn upon to offset the negative externalities of development proposals that otherwise might draw fire. So instead of objecting, landowners who suffer losses because of a project that will benefit the public -- a nearby wind farm, for example -- could obtain compensation.

Here's a summary of his presentation:

Land-use and environmental decision-making under the police power is usually a zero-sum game. When neighbors complain about the negative externalities of a development project, public decision-makers end up weighing the police power objectives of promoting the public health, safety, and general welfare against the private losses which may be substantial, yet small in comparison to the public benefit. Such decision-making characterizes many types of traditional developments, the siting of wind farms, development of low-level radioactive waste sites, and virtually all other activities with adverse off-site impacts, but which land uses are essential to the greater good. The same problem is inherent in public and private nuisance actions and protective legislation, such as right-to-farm laws. This presentation proposes a system by which those who suffer negative externalities would be able to make their claims to be compensated with funding provided by the beneficiaries of the development. In terms of public decision making, officials would no longer need to consider, or be biased in their decision-making by, the economic impacts on surrounding property owners, but would be able to make their determinations solely on the basis of whether the use is appropriate for the site.

We haven't made up our own mind about whether such an approach is feasible, although its underpinnings remind us of one of theories of development agreements which allow property owners and regulating authories to trade off for more than each might have obtained by simply applying the law. But the idea intrigues us, especially since, as Dwight correctly notes, the land use/environmental game these days is characterized as a "zero sum" situation where one side wins, the other loses, and there is very little chance for another outcome. 

The PLPR conference has a fascinating lineup of similar speakers and topics with a focus on planning and property rights, much of it from an international perspective. And be sure to click on the photo above to see an enlarged version -- yes, Dwight's tie is a subway map of New York City.

Book Review - Names on the Land

It's easy to forget that place names are not "real" in the sense that they exist other than in our collective minds, but are impermanent markers bestowed on places by man. There's nothing that commands New York is "New York," the Mississippi River to be so named, or the island of Molokai to be called that.

I'm reminded of this each time I fly. From 35,000 feet you can see many natural barriers and landmarks, but there are no labels on the land as on a map. This gives a fleeting sense of perspective which reduces political distictions -- which are bolstered by names and labels -- to a somewhat random convention, and makes the age-old fights over land and territory seem a bit trivial.

If you didn't already possess that sense, then Names on the Land by George R. Stewart (originally published in 1945, republished in 2008), should give you the long view. Stewart, who was a professor at the University of California, provides the history of place naming in the United States (there's even a section on why our country is the "United States of America," and not "Columbia" or "Alleghania"). Starting in prehistory and a fanciful section on why we bestow names on places, progressing from the first Spanish names in the continent in the early 1500's (Florida), through the Dutch and English periods, and taking us to the modern era, Stewart chronicles the major periods in U.S. history, and how each contributed new names and new conventions to the naming rite. Two chapters, added after the book's initial publication, detail the sources of place names in Alaska and Hawaii. 

This no dry etymology, and the book at times reads like a novel, as befitting the author of the post-apocalyptic science-fiction classic Earth Abides. It is also filled will subtle humor, as in this passage discussing why English names, so common in New England, did not spread elsewhere:

Thus early, the more insular of the English began to carp, and such judgments were to be frequent in later centuries. But this book will pay them no more attention, because they all followed the stupid pattern set by Master Dudley Carleton. They assumed that the traditional names and ways or naming of the little island were the only proper ones. They made no allowance for different landscapes and racial strains, or for new ideals and an ever-flourishing imagination. They are much, however, for "good taste" and for linguistic purity, as was natural for the inhabitants of a country blessed with Maidenhead, Fryup, Sizergh, Great Snoring, Shitlington, and Ashby de la Zouche.

Each chapter contains a series of little mysteries, and Stewart unfolds each story slowly, until finally revealing a familiar name. Some of the more enjoyable tales:

• Pennsylvania might have been "New Wales" if the King's secretary, a Welshman, had his way (p. 103).

• The mystery surrounding what "Oregon" means: oregano? "big ear?" Aragon? The Abenaki "orighen?" (p. 154-55).

• Why is the Chief Executive the "President of the United States of America," yet in the oath of office required to "faithfully execute the office of President of the United States?" Why aren't we Columbia, or Appalachia, or, heaven forbid, Usona? (p. 172). 

• You might assume that the Royalist names in the colonies would not survive the Revolution, yet they did. Why? (p. 188).

• How the name of Portland, Oregon was settled with a flip of a coin (it might have been Boston) (p. 253).

There's similar tidbits every few pages.

This is a book that every property lawyer should find fascinating. I sure did -- the moment I finished it, I picked it up and started reading it again.

A Partial Rebuttal To Professor Callies: 1993-2010 HAWSCT Environmental Record Most Concerned With Public Participation

In a recently-published law review article, U. Hawaii lawprof David Callies found that "the Moon Court [1993-2010] decided some of the state’s most important property and related environmental and Native Hawaiian rights cases in favor of the various non-governmental organizations bringing them (Sierra Club, Earthjustice, Hawaii’s Thousand Friends, and the Native Hawaiian Legal Corporation) approximately eighty-two percent of the time, sixty-five percent of which reversed the Intermediate Court of Appeals," a result he concluded was "appalling."

Well here's the counterpoint, a paean to the Moon Court from another U.H. lawprof, who asserts that the court's environmental jurisprudence wasn't so much focused on outcome, but rather on process. Yes, plaintiffs won a whole lot, but don't be fooled the results, she writes, because the court was only insuring that the doors to the courthouse remain open to all comers under the environmental standing doctrine:

At first blush, the Hawai‘i Supreme Court’s environmental review jurisprudence under the leadership of Chief Justice Ronald T.Y. Moon—twelve major decisions from 1993 until 2010—appears "pro-environmental" in terms of the classic "environment versus development" paradigm. In eight of those decisions, the citizens challenging state or county agencies for evading the public review process required by Hawai‘i Revised Statutes (H.R.S.) chapter 343 won major, sometimes stunning, victories. On deeper examination of all twelve cases, however, the environmental review jurisprudence of the Moon Court appears to be concerned less with substantive results than with process, focusing on the likely benefits to agencies and all stakeholders of more robust public participation, a core value of chapter 343. In its vigorous enforcement of chapter 343, the court has identified sensible boundaries to the law, while implicitly rejecting objections from the losing agencies (and the private developers) about the short-term economic implications of its rulings. The court has stayed true to the original intent of the law even when that meant squaring off against other branches of state government. Despite the criticism, the Hawai‘i Supreme Court, under the leadership of Chief Justice Moon, maintained its judicial independence and bravely protected public participation in the environmental review process.

Denise E. Antolini, The Moon Court's Environmental Review Jurisprudence: Throwing Open the Courthouse Doors to Beneficial Public Participation, 33 U. Haw. L. Rev. 581, 582 (2011) (footnotes omitted).

We commented on the Hawaii court's loose environmental standing rules in this post, which Professor Antolini cited as us "criticiz[ing] [the doctrine] as 'throwing open the barn door after the horses have been let out.'" Id. at 607 & n. 190. We stand by that assessment, since in Hawaii environment cases, plaintiff standing is pretty much an exercise in clever pleading and not a realistic check on the courts becoming entwined in policy disputes.  And it's been that way for a while. 

The article is a quick and enjoyable read, and even contains a few "locals only" touches that we appreciate, including this passage:

The story of the Superferry itself after Justice Duffy’s blockbuster decision is a legal, political, economic, and social tale almost beyond belief. The controversy included protests in the water and on land, heated and over-heated debates in high circles, a circuit court injunction against Superferry operations, painful legislative arm-twisting, a gubernatorial power-grab, a dissolved injunction, headlines galore, and neighbors arguing with neighbors in Longs Drugs.

Id. at 608. You know you're from Hawaii if you get the Longs reference. 

The article concludes with a reference to the court's opinion in County of Hawaii v. Ala Loop Homeowners, 235 P.3d 1103 (Haw. 2010), suggesting that because it was authored by current Chief Justice Mark Recktenwald, the "judicial generosity toward citizen participation" so pronounced in the Moon era will continue "for the foreseeable future." Id. at 634.

Epstein's Podcast On Koontz: "The Vexed Doctrine Of Unconstitutional Conditions"

Worth listening: a 17-minute podcast by Professor Richard Epstein, with his thoughts -- apparently without a script and seemingly in a single breath -- on the oral arguments in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012). 

Download the mp3 here. If that doesn't work, go here.

Aloha, Martin Luna

I did want to make a mention of a sad milestone I wish we didn't have to come to, the passing of Maui's irreplaceable land use lawyer B. Martin Luna. Here's the report from the Maui News.

Having dealt with Martin over the years, he was a true gentleman, and everything that you conjure up when you think about "old school" lawyer: smart, cordial, well-armed with facts, generous, courtly. And something that is a rarity today -- a lawyer whom I never heard utter a bad word about anyone, even his opponents.

Maui and the rest of our state are not going to be the same without Martin. I'm going to miss him.

Wednesday Round-Up: Grand Central, Oysters No More, And Originalist Takings

What we're reading today:

• Grand Central Station and The Takings Clause - from the Constitutional Law Prof Blog, a link to a WNYC/NPR podcast about Grand Central Terminal and the Penn Central takings case. Worth listening, if only to hear the money quote near the end: "you see New Yorkers all the time staking claim in this building, pointing up at cerulean blue sky saying 'hey, this belongs to us.'" Yes, we guess it does. And you know what? You didn't pay for it.

• Another one about the 100th anniversary of Grand Central: Gideon Kanner writes Calling All Grand Central Junkies!, linking to the NY Times's republication of its 1913 special celebrating the opening of the terminal.

• In that vein, a snarky commentary about the wonders of Pennsylvania Station. Who needs a cerulean blue sky?

• In what reads more like a redeveloper's press release, the Washington Post reports about the Skyland Shopping Center project -- a series of cases that generated more heat than light -- in Skyland Shopping Center re-development will come at a price. The narrative of the story is those darn property owners made it really difficult for the D.C. mayor's pet project to evict the existing property owners and tenants from the site and put in a Wal-Mart. "Skyland's developers, selected in May 2002, have spent $3 million of their own money[.]" The horror!

• Remember that case we posted about a few weeks ago about an oyster farming operation in a Marin County, California National Seashore? Well, the other shoe has dropped. The court has denied the company's request for a preliminary injunction allowing the farm to remain open while the issues are litigated. See this story from the San Francisco Chronicle, and this story from the Santa Rosa Press Democrat for more, including this quote from a spokesman for the "National Parks Conservation Association," that the decision "affirms that our national parks will be safe from privatization schemes, and that special places like Drakes Estero will rise above attempts to hijack Americans' wilderness." We're not sure how an operation that was there prior to the existence of the National Seashore can be considered "hijacking" of wilderness or a "privatization scheme," but there you have a reflection of a certain mindset in a tidy little quote.

• "Screwed by the Town" - When land use codes kill free speech - from J. David Breemer at PLF's Liberty Blog. In the Fourth Circuit, painting a motto on your house could be a violation of local sign and zoning ordinances, the First Amendment notwithstanding.

• From the Legal Planet blog, If the Constitution is Dead, where does that leave Takings? A critique of the originalist theory of construction.

Upcoming Hawaii Appellate Arguments Of Interest

The oral argument calendar of the Hawaii Supreme Court  looks pretty interesting:

• Thursday, February 7, 2013, 11:00 a.m. - Sierra Club v. Land Use Comm'n, No SCWC-11-0000625, a case about the qualifications of holdover Land Use Commissioners, which we previewed here. 

• Thursday, February 21, 2013, 10:00 a.m. - Kanahele v. Maui County Council, No. SCWC-29649, a case involving the "Sunshine Law" and the council's consideration of a development project on Maui. More here from Record on Appeal.

• Thursday, February 21, 2013, 11:00 a.m. - County of Hawaii v. UNIDEV, LLC, No. SCWC-10-0000188, a case about contracts between a private developer and the County to build affordable housing. It's more about arbitration and appellate jurisdiction, but an interesting case nonetheless. More here from Record on Appeal.

• Thursday, March 14, 2013, 9:30 a.m. - State of Hawaii v. Woodhall, No. SCWC-11-0000097, in which the court is considering what proof a person who raised a medical-use-of-marijuana defense must bring forward in order to prove his case. 

• Thursday, March 21, 2013, 9:00 a.m. - NST Holdings Corp. v. Budget Hawaiian Holidays, No. SCWC-28917, a case involving when a Notice of Appeal is timely filed. More here from Record on Appeal.

• Thursday, March 21, 2013, 10:00 a.m. - Blake v. County of Kauai Planning Comm'n, No. SCWC-11-0000342, in which the court is considering the question of administrative ripeness in land use cases. More here from Record on Appeal.

• Thursday, April 4, 2013, 9:00 a.m. - Diamond v. Dobbin, No SCWC-30573, a case about shoreline certifications, which we previewed here.

 Stay tuned.

S. Carolina: "Substantially Advance" Means "Not Arbitrary And Capricious"

The speed of the internet: we were all set to summarize our thoughts on the South Carolina Supreme Court's opinion in Dunes West Golf Club, LLC v. Town of Mount Pleasant, No. 2011-194211 (Jan. 9, 2013), a case involving equal protection, substantive due process, and takings claims, when Dean Patty Salkin at the Law of the Land blog beat us to it. See "SC Supreme Court Finds No Takings After Council Denies Rezoning for Golf Club Property" for the details.

This one thing caught our eye in the opinion. The court held that the "substantially advance a legitimate state interest" test, which the U.S. Supreme Court in Lingle v. Chevron USA Inc., 544 U.S. 528 (2005) held was a test of substantive due process and not one of takings law, was the same thing as the "rational/conceivable basis" test. In other words, the term "substantially advance" is mere hortatory fluff, and really means only "not arbitrary and capricious." To us, those words sound different, but what do we know.

Oh well, it doesn't really matter since the court held first that the the plaintiff did not have a property interest in the zoning remaining the same, and thus did not establish the predicate to a due process claim of having property that was alleged to have been deprived without due process.

Dunes West Golf Club, LLC v. Town of Mount Pleasant, No. 2011-194211 (S.C. Jan. 9, 2013) 

The Empire Strikes Back: Reaction To UH Lawprof's Study Of Success Rates In Hawaii Supreme Court Cases

Here's the inevitable reaction to U. Hawaii law Professor David Callies' recently-published law review article (and follow-up interview) about the stunning success rates certain parties enjoy in the Hawaii Supreme Court. In that article, the good professor labeled the record of the 1993-2010 Hawaii Supreme Court on property issues "appalling," so it should come as no surprise that two of the beneficiaries of those rulings have now rallied to that court's defense.

In "Hawaii Court Upholds Public Responsibility In Environmental Cases," an opinion piece in Honolulu Civil Beat, an Earthjustice lawyer and the Director of the Hawaii Sierra Club jointly write:

Callies complains that the Supreme Court "created out of whole cloth" the requirement that the Turtle Bay Resort supplement its 25-year old Environmental Impact Statement. He was on the losing end of that argument before the Court, and he’s still wrong now. Supplemental EISs are a well-established requirement under the law, and the Court correctly rejected his argument that an EIS is valid forever, no matter how much circumstances change.

Fundamentally, Callies’s bone of contention stems from the mistaken belief that property owners should be entitled to build when and where they want to. On the contrary, developers have no God-given "right" to build large urban sprawl projects on land set aside for agriculture or conservation. Hawaii wisely distinguishes between industrial/urban, where development is generally free to occur, and conservation/agricultural, where land more closely regulated. We created this careful management process because of our experiences in the 1960s, when development ran amok and people realized the need for some restraint.

This sounds like "infill" and "smart growth," and the notion that "we" should live in the urban core, even though many people would prefer not to raise their families in Hong Kong-style apartment buildings. But to us, the question is not so much whether "developers" have a "God-given 'right' to build large urban sprawl projects" (indeed, when you frame the issue thusly, will you accept any answer but a negative one, especially in a jurisdiction where the Supreme Court holds that the "western concept of exclusivity is not universally applicable"?), but whether other property owners are subject to the authors' same assumption: that their constitutional rights to make reasonable use of their land are not "rights" at all, but mere privileges doled out by the state. We think you know our answer to that one.

The piece is definitely worth a read, even though we're not sure the Hawaii Supreme Court needs defending, and often the best strategy when you are ahead is to keep running rather than look backwards and call your former professor a liar (the piece starts off painting Callies' conclusion as "a lie told often enough [that it] becomes the truth"). Or is this a case of the lady doth protesting too much?

HAWICA Clarifies What Actions By Planning Dept Trigger Administrative Zoning Appeals

The Hawaii Intermediate Court of Appeals, in a unanimous panel opinion authored by Judge Foley, held that a "zoning verification" by the Director of the City and County's Department of Planning and Permitting is not a "decision of the Director" which a property owner must administratively appeal to the Honolulu Zoning Board of Appeals. Hoku Lele, LLC v. City and County of Honolulu, No. CAAP-11-0001064 (Jan. 25, 2013). The circuit court had dismissed the complaint for lack of jurisdiction because the property owner did not seek administrative review.

We represent the property owner/plaintiff/appellant in the case, so we're not going to analyze the issue in detail, and leave it up to you to read the opinion. Needless to say, we think it is a correct and well-reasoned decision.

Hoku Lele, LLC v. City and County of Honolulu, No. CAAP-11-0001064 (Jan. 25, 2013)

We Can Try To Understand The New York Times' Effect On Man (When It Opines On Eminent Domain Law)

Does the editorial board of the New York Times really have the stones to start off its latest editorial about the Takings Clause, "Where Is the Taking?", with this:

When a city condemns private property to make way for a public highway, that is a classic "taking" for which government must provide “just compensation” under the Constitution’s Fifth Amendment.

Seriously, Times? How about when it's not a "classic" taking, and the city condemns an entire block of urban private property to make way for the 52-story office headquarters of a large corporation ... say, for example, a newspaper with the initials "NYT?" Would it be a "classic" exercise of power to use emient domain to take property so that:

A high rise office tower would be built at Site 8 South providing the Times with a new headquarters, as well as providing 700,000 square feet of space for other office tenants. The tower would additionally include condominiums, a new subway entrance, mandatory ground-floor public amenities, a 350-seat auditorium, a gallery and retail space. Witnesses at a public hearing conducted by ESDC in 2001 testified that this project would keep the Times headquartered in Times Square, add needed office space, create employment, increase retail revenue, attract further economic improvement to the larger area, and address a critical shortage of commercial space.

In West 41st Street Realty L.L.C. v. New York State Urb. Dev. Corp., 744 N.Y.S.2d 121 (App. Div. 2002), the court rejected the property owners' claims the taking for the benefit of the Times lacked public use:

Petitioners argue that the proposed taking should be barred because the benefit inures to a private party, viz. The New York Times. They also allege a taking in violation of due process protections of the state and federal constitutions on the ground that the UDC itself created any "blight" which justifies condemnation since the UDC made it impossible for the owners to reap the value of their land during the last twenty years.

In other words, the paper was "too big to fail," and keeping the Times in New York quallified as a public use supporting a taking.

What this tells us is that when the Times waxes poetic about Fifth Amendment issues -- invariably in favor of the government and against the property owner -- you've got to take its opinion in context and understand that with its history as a private beneficiary of eminent domain, it invariably gets the issue dead wrong. See its editorial regarding Arkansas Game & Fish, for a recent example. We're not suggesting the Times shut up on the subject, only that it needs to remind its readers that it has a dog in the hunt. A very big dog.

The Times' latest is about last week's oral arguments in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012). This one is about regulatory takings, not direct appropriation, but the editorial board still doesn't get it right. We filed an amicus brief in Koontz in support of the property owner/petitioner. But, unlike the Times, at least we disclose our bias.

Following the lead paragraph quoted above, the editorial wrongly paints the regulatory takings doctrine as a creation of a "divided Supreme Court" "[o]ver the last few decades:

Over the last few decades, a divided Supreme Court has extended property rights at the expense of community interests by expanding the “takings” concept to include regulatory actions that are “functionally equivalent” to direct appropriation. These might include actions that render the property essentially worthless, undermine an owner’s right to keep it private, or greatly limit its use.

Metamessage alert: in other words, the regulatory takings doctrine is a recent ideological product of those nasty conservative activist judges that we all know and dislike. But can a doctine that was recognized nearly a century ago by an 8-1 Court (as far as we can tell, only Justice Brandeis dissented from Holmes' opinion in Mahon) be accurately described as arising "over the last few decades" by a "divided" Court? 

But even assuming what the editors really meant to refer to was the muddle that regulatory takings doctrine has become in the years since Mahon, and the divided courts in Nollan and Dolan, is it really that obvious that Koontz is a slam-dunk "why are we even in this case" situation, as the editorial suggests in the remaining paragraphs? According to the Times, Koontz's cardinal sin is that he only offered to mitigate the impact his proposed development would have on wetlands (which would affect only his privately-owned wetlands as far as we can tell) by offering to preserve the remaining wetlands that he also owned, and not donate to the effort to preserve other wetlands owned by the public:

This kind of mitigation under environmental law is common in cases involving statutes protecting clean water and endangered species. The family offered to preserve 11 acres that it owned, but the water management district rightly said that preserving what already existed was not mitigation.

As Professor Epstein pointed out, this reveals the only way that the denial of the permit on the basis that Koontz did not offer to preserve wetlands owned by the public cannot be deemed a taking is for the court to say that the state has a preexisting "environmental easement" over all private property such as Koontz's. The Times' editorial concludes:

The Koontz family sought monetary compensation, but as the justices noted, the district has not condemned an iota of the land and has not required the family to do anything to its property. It simply denied the family a permit for development.

That was the gist of the Florida Supreme Court’s ruling in favor of the district. The United States Supreme Court should uphold that decision, blocking efforts by the family and its ideological allies to stretch the notion of a regulatory taking far beyond any defensible limits.

The jury is still out, and we can only hope that the board is as wrong about Koontz as it was about Arkansas Game & Fish. The Bee Gees can try to understand the Times, but we sure can't.

Upcoming TeleBriefing On Takings Issues After Arkansas Game & Fish

Mark your calendars for next Friday, January 25, 2013 from noon to 1:00 p.m. Pacific for "Arkansas Game & Fish Commission v. United States: Practical Implications Of The Supreme Court's Decision," presented by Law Seminars International.

It's a discussion of Arkansas Game, the decision in which the Supreme Court held that the federal government was not immune from liability for a taking when it was responsible for flooding, even if the flooding is temporary. They've assembled a great faculty, which includes arguing counsel for the prevailing petitioner James Goodhart. Also speaking will be takings litigator Nancie Marzulla and Washington Legal Foundation Chief Counsel Richard Samp. Here's a description of the one-hour program:

On December 4, 2012, the U.S. Supreme Court issued a unanimous opinion in Arkansas Game & Fish Commission v. United States, holding that when the federal government floods property, even temporarily, the Fifth Amendment may require the government to pay just compensation to the landowner.

The Court's decision eliminates a carve-out from takings liability for government actions resulting in episodic or temporary flooding of land: "No decision of [the Supreme Court] authorizes a blanket temporary-flooding exception" to takings jurisprudence. This means that landowners are now eligible to establish that their land has been inversely condemned by government actions resulting in temporary flooding, under the same standards as any other takings plaintiff.

Consequently, water management actions that could result in flooding should be carefully scrutinized to take preventative steps to avoid flooding and reduce potential takings liability. Likewise, attorneys whose clients experience episodic or periodic flooding of their land should carefully evaluate whether a takings claim is a possibility.

In this one-hour TeleBriefing, three experienced litigators -- including the attorney who argued in the Supreme Court for the Arkansas Game & Fish Commission -- will discuss how this case changes the rules for inverse condemnations involving flooding.

More information, including registration here. With a relatively modest registration fee, this is a great deal to hear the thoughts of some very high-level thinkers in our area of law.

Another HAWSCT Shoreline Cert Grant

The Hawaii Supreme Court has accepted certiorari and agreed to review the Intermediate Court of Appeals' unpublished memorandum opinion in Diamond v. Dobbin, No. 30572 (Aug. 31, 2012). The Supreme Court's order is here.

It's another beach case, this time involving a shoreline certification. Shoreline certifications approved by the State Department of Land and Natural Resources are used as the baseline from which to measure building setbacks on littoral parcels, and do not involve the boundary between public and private property on beaches. The DLNR certified the shoreline on a Kauai parcel, and two nearby residents who claimed the shoreline was further mauka (landward) administratively appealed to the Board of Land and Natural Resources. The Board rejected the appeal and approved the certification, and the two neighbors appealed to the circuit court under the Hawaii Administrative Procedures Act.

The circuit court concluded the BLNR's findings of fact were wrong, and vacated the certification. The property owner who sought the certification appealed to the ICA, which reversed, holding that the circuit court exceeded its authority under HAPA by engaging "in unwarranted fact finding and weighing of the evidence."

The Supreme Court's order does not provide any details about what issues the court is considering. But here are the briefs submitted on the cert application:

• Petitioners' Application for a Writ of Certiorari (Dec. 3, 2012)

• Respondents Dobbin and Wagner Engineering Services, Inc.'s Response to Application (Dec. 17, 2012)

• State of Hawaii BLNR's Response to Application (Dec. 18, 2012)

The Application states three questions (and we're paraphrasing here):

• Whether the ICA "gravely erred"* because it did not apply Paul's Elec. Services, Inc. v. Befitel, 104 Haw. 412, 91 P.3d 494 (2004), a case clarifying the degree of deference courts owe to administrative agency determinations? Here, a determination of the location of the certified shoreline.

• Did the ICA err interpreting and applying Diamond v. State of Hawaii, 112 Haw. 161, 145 P.3d 704 (2006) with respect to the BLNR's determination of the location of the certified shoreline?

• Was the circuit court's judgment mooted by the BNLR filing an amended decision?

Here's the crux: the petitioners are arguing that the courts owe little or no deference to the BNLR's shoreline determination in this case (and presumably others) because it is based on a:

"preference" for the use of the "current" season's high surf over other relevant evidence of the upper reaches of the wash of the waves, including the use of historical evidence, and in this case, the State surveyor's prior recommendation of October 19, 2005, conflicts with the manifest purpose of the state it seeks to implement...

App. for Cert. at 9 (emphases original). So in the petitioners' view, because the BLNR arbitrarily and capriciously has a preference for using one measurement, the circuit court was correct when it reweighed the evidence in the agency record, because that is more consistent with the statute than the BLNR's "preference." Boy, talk about burying your lede.

As mere interested observers on this one, we hope the court uses this case as an opportunity to at least clarify that "certified shorelines" under state statutes is a completely different ball of wax than the boundary between public and private property on littoral land, even though the defintions are awfully similar and thus often confused. We'll also see whether the court imposes some order on the certification process, which is, as this case illustrates, unnecessarily time-consuming and confusing, given it is merely a baseline from which to measure building setbacks. It really does not determine public rights, and is more about protecting the property owner's structures from erosion.

Or will this be yet another decision to add to Professor Callies' list? 

Note: the Hawaii Supreme Court's discretionary docket is primarily filled with cert review cases in which the standard of review asks whether the ICA "gravely erred." That's very broad language, and as discussed at a recent HSBA Appellate Section session, this means the lower court really, really went off the rails, or, more importantly we suspect here, that the Supreme Court is really, really interested in the issue for whatever reason (as one retired justice said -- and again, we're paraphrasing from memory here -- it's her or his pet issue).

The Good, The Bad, And The Scalia: Koontz Oral Argument Round-Up

In addition to our summary of and reaction to yesterday's oral arguments in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012), here is the leading commentary from other sources:

• Lyle Denniston at SCOTUSblog: "The very idea that an unconstitutional “taking” had occurred to an owner of a small plot of ground in Florida seemed near to vanishing, propelled toward oblivion by a spreading fear on the bench that maybe the entire regulatory apparatus of government might be at risk. Credit lawyers for a state agency and the federal government for deepening this anxiety."

• Greenwire's Lawrence Hurley: Supreme court: Justices weigh Fla. property rights dispute: "Rather than focus on the two Supreme Court precedents on permitting conditions, some justices seemed to agree with the Obama administration that, if Koontz did have a claim, it would be in the form of a 'regulatory takings' argument that concerns regulations that are so burdensome they can constitute a taking."

• Jonathan Adler at Volokh: scroll down to a comment by "JHW27," who writes: "If Scalia maintains his lonely and bizarre position, the most likely outcome seems to me to be a 5-4 ruling in favor of the government, with an opinion by the four liberals arguing that there is no taking because the regulatory requirement merely required the expenditure of money, a concurring opinion by Scalia arguing that there is no taking because the permit was denied, and a dissenting opinion from the other four conservatives arguing that the distinctions drawn by the five justices in the majority are arbitrary and untenable. But even that would probably not end in a long-term loss for property owners in similar circumstances to Koontz here; the argument would have to be reformulated to win back Scalia, but that would then give them five votes, and it's not clear there would be much shift in substance necessary to accomplish that."

• Gideon Kanner: What Was the Koontz Oral Argument All About? - "Our overall view of this event suggests to us that the Justices are again out of it — e.g. Justice Scalia thought that in Nollan a permit was issued before Nollan sued (it wasn’t — Pat Nollan took his chances and built without city approval and won). Justice Kennedy was still beating his drum in favor of substantive due process with no clue as to whether he also means to relax the forbidding difficulties in winning a regulatory due process case."

• Damon Root at Reason: Scalia Gives the Government a Suprise Boost in Property Rights Case - "But the most surprising resistance came from conservative Justice Antonin Scalia, who questioned whether Koontz had suffered any injury at all under the Takings Clause. 'What has been taken?' Scalia asked Beard. 'The permit’s been denied. I can’t see where there’s a taking here. Nothing’s been taken.' Those words may spell doom for Koontz’s challenge. Scalia is the author of a key 1987 decision by the Supreme Court striking down a California regulatory agency’s imposition of a similarly problematic condition on a building permit. Until his comments in the courtroom on Tuesday morning, Scalia was seen as a solid vote in Koontz’s favor. Now he appears to be the single biggest threat. Without Scalia, Koontz is unlikely to reach the five-justice threshold needed to win."

We'll add others if they are worth reading.

SCOTUS Arguments In Monetary Exactions Case: (Sliced) Bread And Circuses

When you are a property owner making a takings argument and Justice Scalia gives you a hard time at oral argument, you would be safe in thinking that you've got an uphill battle.

That was the situation today during the oral argument (transcript here) in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012), the case in which the Court is considering whether the "essential nexus" and "rough proportionality" standards of Nollan and Dolan are applicable only to exactions for land, or whether they are generally-applicable tests for all exactions.

Justice Scalia, author of the Nollan opinion, did not seem all that concerned with the second Question Presented (whether only exactions of real property are subject to Nollan/Dolan), but more on whether a takings claim can be based on an excessive exaction attached to a permit when the property owner declined to accept the permit with the exaction:

JUSTICE SCALIA: Yes, that's fine. That -- that would enable you to challenge the denial of the permit, saying it's based upon an unconstitutional condition. But how does it -- how does it enable you to say there's been a taking? What has been taken?

MR. BEARD: What has been -- what has been taken in effect is his funds that have to be put now to a public use, the enhancement of 50 acres of public wetlands. And there is nothing in the takings clause, nothing --

JUSTICE SCALIA: It hasn't -- it hasn't been taken. I mean, he turned it down.

MR. BEARD: Nothing was taken in Nollan and Dolan, either. What was proposed there, though, was a threat of a taking.

JUSTICE SCALIA: The -- the -- the permit was granted in Nollan and Dolan. And -- and the condition attached to the permit, therefore, took effect; namely, that you had to dedicate this easement over your -- over your beach whereas -- as my colleague pointed out, anybody could walk back and forth barefooted.

(Laughter.)

MR. BEARD: Justice Scalia, in Nollan and Dolan, there was approval -- approval with conditions. There were no permits issued, and that's -- that is an important distinction to make that most agencies, including this one, you approve a permit with a -- with conditions, which means, We will give you your permits as soon as you comply; which is substantively the same as saying, We won't give you your permits until you say yes to our conditions.

Tr. at 16-18.

The other Justices echoed Justice Scalia's concerns. Their questions focused on the timing: whether it is critical to the takings question that the permit-with-conditions was turned down by the property owner, and not accepted and then challenged. That seems to be the bigger hurdle for the petitioner because it doesn't appear that the Justices are all that concerned with whether a cash exaction would fall within the Nollan/Dolan requirements were this case in the same posture as Nollan and Dolan, cases in which the Justices seem to think that the property owners were granted a permit with the condition, and then challenged the condition as a taking (an assumption the petitioner's counsel pointed out is not correct).

We're not offering a prediction on the outcome, not only because we filed an amicus brief in support of the property owner/petitioner so have a stake in the the case, but because the Justices seemed to press all three arguing counsel, and it is therefore hard to read the tea leaves with any certainty (with the exception of Justice Sotomayor, who we can safely count in the "no taking" camp, with Justice Breyer likely joining). At some points in the argument it seemed a free-for-all, with questions and comments being fired at arguing counsel without much let up.

Here's our take on what each Justice said; the highlights (or lowlights, depending on your perspective):

Justice Scalia: Turning down an extortionate demand isn't a "taking" (p. 18), but under the District's theory, a demand for cash is "magic" (p. 33).

Justice Breyer: Sliced bread: not good (p. 19). He raised this in the context of a question to petitioner's counsel about whether this is a taking, and if so, if Penn Central doesn't supply the analytical framework, because the excessive demand "goes too far," as Justice Holmes said in that case.

Justice Ginsburg: Here, the District didn't say "take it or leave it" (about the condition) (p. 7).

Justice Sotomayor: Stopping landowners from developing their property is interfering with "lost profits." (p. 17).

Justice Kennedy: Due Process, man, Due Process! (p. 26).

Chief Justice Roberts: Is there no constitutional limit on what an agency can demand, as long as it does so prior to issuing a permit? (pp. 30-31).

Justice Alito: Owners' Counsel of America, I read your brief! (He asks the hypothetical we pose at page 12 of our brief) (p.33).

Justice Kagan: I might have a problem here if District is shifting burden to the property owner to propose mitigation measures, and not inform the owner what the District wants (p. 11).

Justice Thomas: This would be a taking, but only if the planner has a Yale J.D. (we're kidding, he didn't say this - or anything else).

In a clever sleight-of-word, the District's counsel hit upon the government's core theory: that the Fifth Amendment doesn't really have a "Takings" Clause, but only a "Just Compensation" Clause:

And in Lingle, this Court reiterated that the Takings Clause is not a substantive limitation on the government's power to regulate.

The Takings Clause -- or as I should call it, the Just Compensation Clause -- is a requirement that if -- that the government will pay you just compensation for any property or property interest it has seized from you. It does not -- it does not itelf impose a -- a requirement that the government substantively justify its regulation.

Tr. at 42. This issue will likely be more squarely addressed in the remaining takings case the Court is considering this term, Horne v. United States Dep't of Agriculture, No. No. 12-122 (cert. granted. Nov. 20, 2012). In that case, the Court is considering whether a property owner can assert a takings defense to the imposition of a fine levied for violating a federal regulation, or whether the owner must pay the fine and then bring a takings case for just compensation in the Court of Federal Claims. That case is in the briefing stage, and is scheduled to be argued on March 20, 2013.

So for now, we'll have to be content with the transcript in Koontz.

SCOTUS Transcript In Koontz

For those of us who were far, far away, and thus not able to be in D.C. for today's oral arguments in person, here is the transcript in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012).

Here's the first recap of the arguments, from Greenwire's Lawrence Hurley, "Supreme court: Justices weigh Fla. property rights dispute."

More, after a chance to digest the transcript.

Transcript of oral arguments, Koontz v. St John's River Water Mgmt Dist., No. 11-1447 (Jan. 15, 2013) 

Exactions Flashback - Our Visit To The Dolan Site

With the oral arguments in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012) at last here, we thought we'd go back and revisit our write-up of our visit to the Dolan site, complete with photos: Regulatory Takings Pilgrimage Part II.

Koontz, as you know, is about whether the Nollan nexus test, and Dolan's requirement of "rough proportionality" apply only to land exactions, or is a generally-applicable test for all exactions.

LII Preview: Koontz "has the potential to drastically modify takings jurisprudence with regard to exactions"

Here's the Legal Information Institute's preview of tomorrow's U.S. Supreme Court arguments in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012). That's the case in which the Court will be addressing whether the "essential nexus" and "rough proportionality" standards of Nollan and Dolan are applicable only to exactions for land, or whether they are generally-applicable tests for all exactions.

Disclosure: we filed an amicus brief in the case in support of the property owner/petitioner. The property owner's brief on the merits is available here. The other amicus briefs supporting the property owner are available here, here, and here. The Water Management District's merits brief is posted here. The amicus briefs suporting the Water District are posted here. The property owner's reply brief is here.

The LII's preview has a good "he said she said" account of the case and the arguments, and concludes with this:

The Supreme Court’s ruling in this case will decide whether the constitutional standard set out in Nollan and Dolan apply so that the government can be held liable for an improper taking when the government refuses to issue a land-use permit on the sole basis that the permit applicant did not accede to a condition to dedicate money, services, labor, or any other type of personal property to a public use. If the Court adopts Koontz’s position, the standards will apply to cases where the government refused to issue a land use permit and to cases involving non-real property exactions. Koontz believes that these standards will protect landowners and developers from government corruption without hindering the government’s decision-making process. If the Court adopts St. Johns’ position, the standards will not apply to this case or similar cases but will continue to apply to cases where the government actually took real property from the landowner. St. Johns believes that these standards are not necessary because there are other safeguards in place to protect landowners and developers from government corruption and instead, these standards would be a detriment to the government and every community. The Supreme Court should consider Environmental Law concerns while making this decision.

As to the quote in the headline of this post, the preview starts with this:

Koontz argues that the constitutional standards set out in Nollan and Dolan should apply to this case and similar cases so that the government can be held liable for improper taking when the government refuses to issue a land-use permit on the sole basis that the permit applicant did not accede to a financial or public service condition. St. Johns River Water Management District argues that the constitutional standards set out in Nollan and Dolan should not apply to this case and similar cases where the government did not actually take any property from the landowner. This decision has the potential to drastically modify takings jurisprudence with regard to exactions. 

While yes, the case has the potential to "drastically modify" takings law, as our brief pointed out, it's not necessary for the Court to do so in order to reverse the Florida Supreme Court's decision. Several state jurisdictions (California and Texas, for example) already apply the nexus and rough proportionality requirements to all exactions. As these and other examples show, the sky will not fall should the Supreme Court apply what are relatively modest transparency requirements to the entire exaction process, and not artificially limit the test to demands for land. Nollan and Dolan do not prohibit exactions, they merely require the government to explain why an exaction is related to the use approval the property owner seeks.

To entertain yourself while we await for the release of tomorrow's transcript, revisit the recording of the oral arguments in Nollan, posted here. Listening to it, it struck us as how little the government's argument has changed in 27 years. Reading the Koontz briefs, it struck us as how little the government's argument changed in reaction to Nollan.

More, after tomorrow's oral arguments.

7th Cir: If At First You Don't Succeed...

When we first read the Seventh Circuit's opinion in Muscarello v. Winnebago County Bd., No. 11-2332 (7th Cir. Dec. 7, 2012), a case involving takings, due process, and other* challenges to a county zoning ordinance making it easier to build a wind farm, our first thought was "that case sounds familiar."

It was. In this case, the same court ruled pretty much the same way, in a case about wind farms, against what appears to be the same plaintiff.

The recent opinion was covered in detail in Dean Patty Salkin's Law of the Land blog here, so we won't repeat it.

------------------------

*the opinion referred to the suit as "a blunderbuss of federal and state claims" 

Muscarello v. Winnebago County Bd., No. 11-2332 (7th Cir. Dec. 7, 2012) 

More From U.H. Lawprof On 1993-2010 HAWSCT's "Appalling" Record On Property Rights

Here's a follow-up to our recent post about the U. Hawaii Law Review article authored by lawprof David Callies which summarizes the land use and property decisions of the Hawaii Supreme Court during the tenure of now-retired Chief Justice Ronald Moon. You know, the article setting out the stunning success rates of certain parties in the court, which chides the Justices for their often-lengthy opinions, and labels the Moon Court's record on property rights "appalling." Download the article here.

Today's Honolulu Star-Advertiser has a follow-up interview with Professor Callies, most of which is behind a paywall. But if you don't have an e-subscription (a real deal for those with mainland zip codes, by the way), here are the choice parts:

• "Callies says he isn't against planning in general, but thinks there must be legitimate police powers involved for the right of development to be abrogated."

• "QUESTION: A recent law review article of yours came to the strongly worded conclusion that, overall, the Hawaii Supreme Court's record on preserving private property rights guaranteed in the U.S. Constitution has been "appalling." Why did you come to that conclusion? ANSWER: It struck me sort of anecdotally that the cases seem to be largely favoring groups like the Sierra Club, Earthjustice, Hawaii's Thousand Friends and so forth that generally sue when development permits are granted almost anywhere. So I asked a couple of my research assistants to do a survey, and they came out with the figures that over 80 percent of the cases that the state Supreme Court decides find against either the county or the state or the landowner -- whomever the decision-maker is and who owns the property. And in a substantial number of those cases -- I think in the neighborhood of 70 percent -- it overturned the Intermediate Court of Appeals."

• "Q: Why is that a disturbing trend? A: Well, the U.S. Constitution protects the right to use property unless there are police-power reasons not to. And in Hawaii sometimes we get the impression that it's the other way around. But it's not. The right to use property is a right that the Supreme Court has held to be virtually co-terminus with other rights, a civil right. So if you can't ground it in police power, then you can't regulate it. Development of land is not a privilege, it's a right. And so, if that's the case, for the (Hawaii) Supreme Court to find -- over and over again -- that the right does not seem to exist, that strikes me as a lopsided view."

• "Hawaii also goes overboard in the percentage of low- or moderate-income housing it requires. Maui for several years required a 50 percent mandatory workforce housing set-aside, and the state has often been in the 25, 30, 35 percent category. ... But much over 30 percent, it doesn't pencil out. You can't do it."

• "Q: You've written about Hawaii's many layers of land-use controls. How many layers are there? A: Ooooh, there's a bunch -- about eight or nine."

For real entertainment, check out the reader comments at the end of the interview. Which, like many comment sections on the internet, range from reasonable to bizarre to downright racist ("Callies is a Caucasian, Chicago born and raised foreigner who can go back to the land of overbuilt skyscrapers, ghettos and murder capital of America. Why is he even here?"). Oh my. Another comment argues that the delays in development common in Hawaii are not signs that the laws are failing as Professor Callies suggests, but the reverse: that development delay is indication is that Hawaii's laws are working exactly as intended. On that point, the commenter may be right.