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ABA Condemnation Law Committee Conference Call On Beach Takings Case And Sotomayor Nomination

Head's up to all members of the ABA's Section of State and Local Government Law's Condemnation Law Committee: you should have received an email about next week's conference call (Thursday, June 25, 2 p.m. EDT) to discuss recent developments and items of interest, including:

• Judge Sonia Sotomayor's opinions in takings-related cases, including Didden v. Village of Port Chester, 173 Fed. Appx. 931 (2nd Cir. 2006) and Brody v. Village of Port Chester, 345 F.3d 103 (2nd Cir. 2003).

• The Supreme Court's granting of certiorari in the Florida beachfront takings case, Walton County v. Stop Beach Renourishment, Inc., 998 So.2d 1102 (Fla. 2008), cert. granted, 2009 WL 688854 (June 15, 2009).

If you are a section member and did not get the notification email with call-in information, send me an email and I will forward it to you.

Materials And Links From Today's Water Law Seminar

To those who attended today's seminar "Integrating Water Law and Land Use Planning," thank you.  The materials from my session on "Water Rights, Property Rights and the Law of Settled Expectations" are below. 

• Kaiser Aetna v. United States, 444 U.S. 164 (1979) - the Hawaii Kai Marina case - physical invasions, regulatory takings, and interference with settled expectations.

• Haw. Const. art. XI, § 7  (the declaration of public trust).

• Hawaii's Takings Clause.

• U.S. Constitution, amend. V (federal takings clause).

• U.S Constitution amend. XIV (federal due process clause).

• 42 U.S.C § 1983 (federal civil rights statute).

• 42 U.S.C § 1988 (prevailing party attorney's fees statute).

• Maui Tomorrow v. State of Hawaii, 110 Haw. 234, 131 P.3d 517 (2006) - Hawaii water law is not a federal case.  Summary of the decision here.
  

• The State zoning law, Haw. Rev. Stat. ch. 205.

• The Hawaii State Planning Act, Haw. Rev. Stat. ch. 226.

• The Hawaii Water Code, Haw. Rev. Stat. ch. 174C.

• Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926), the case in which the U.S. Supreme Court first upheld the segregation of land uses in an Ohio suburban town into districts against a substantive due process challenge. Law students study the case, land use lawyers and planners know it intimately, and "Euclidean" zoning has become the shorthand for district-based single use zoning.

• Hadachek v. Sebastian, 239 U.S. 394 (1915) - the government's police powers can be used to protect against nuisances.

• Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471 (1970).  Copy available here.  

• In re Water Use Permit Applications (Waiahole), 94 Haw. 97, 9 P.3d 409 (2000) (the mother of all Hawaii water law cases -- the decision so vast it required its own table of contents)

• In re Waiola O Molokai, Inc., 103 Haw. 401, 83 P.2d 664 (2004) (burdens of proof).

• State and local government agencies have public trust duties - Kelly v. 1250 Oceanside Partners, 111 Haw. 205, 140 P.3d 985 (2006).

• A counterpoint to Waihole: David L. Callies & Calvert G. Chipchase, Water Regulation, Land Use and the Environment, 30 U. Haw. L. Rev. 49 (2007).  Copy posted here.

• Hawaii vested rights: Arrow of Time - Vested Rights, Zoning Estoppel, and Development Agreements in Hawaii - 2006 U. Hawaii Law Review article. Drop me an email, and I will email you a pdf, or send you a hard copy (tell me which).

• Upsetting settled expectations in shoreline law - accretion and erosion: Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175 (Haw. ICA) - here's the brief we filed which illustrates the principle that the legislature (or a court) cannot simply change the settled law without raising takings concerns. The issue in that case is whether the state or littoral landowners are entitled to ownership of accreted land. In "Act 73," the legislature declared that shoreline land naturally accreted belongs to the State of Hawaii and is public property.  The act overturned the age-old rule of shoreline accretion and erosion, which held that beachfront owners lose ownership of land when it erodes, but gain it when it accretes.  Instead of these balanced rules, Act 73 made the erosion/accretion equation one-sided: the State wins every time. 

• Compensation for regulatory taking of water rights - Casitas Municipal Water District v. United States, No. 2007-5153 (Mar. 3, 2009).

Upcoming Water Law Seminar - Integrating Water Law and Land Use Planning

There's still time to register for the upcoming seminar "Integrating Water Law and Land Use Planning," being held in Honolulu at the Ala Moana Hotel on Thursday, May 14, 2009 from 9am - 4:30pm.  I'll be leading the session on "Water Rights, Property Rights and the Law of Settled Expectations," and my Damon Key colleage Christi-Anne Kudo Chock is handling "Hawaiian Water Rights - Where Culture and the Law Merge."

Also on the faculty are Lenore Nakama Ohye, a hydrologic planning program manager for the State of Hawaii Commission on Water Resource Management; Lawrence E. Beck, P.E., from the County of Hawaii Department of Water Supply; and Lawrence Miike, M.D., a Commissioner on the Water Commission.  Seminar details, including a complete agenda and registration information, are posted here.

Links From Today's ABA Teleconference: Hot Topics In Land Use Law 2009

Thank you to those who were able to join us live for today's teleconference. Here are the links to the additional cases and other items I mentioned (or wanted to mention) in my session on Public Use and Pretext Update:

• Proving Eminent Domain Pretext In Serial Takings - County of Hawaii v. C&J Coupe Family Ltd. P’ship, 198 P.3d 615 (Haw. Dec. 24, 2008) (proposed Findings of Fact and Conclusions of Law on remand)

• Book Review: Little Pink House by Robert S. Poliner, Connecticut Ombudsman for Property rights

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

• Eminent Domain Use and Abuse: Kelo in Context (ABA 2007) (Dwight Merriam, Mary Massaron Ross, eds.)

• Might Makes Blight In The New York Appellate Division - Develop Don't Destroy Brooklyn v. Urban Dev. Corp., 2009 NY Slip Op 01395 (Feb. 26, 2009)

• New Cert Petition - Dolan Proportionality And Individualized Determination Applies To In-Lieu Fees - the cert petition seeking review of Joy Builders, Inc. v. Town of Clarkstown, 11 N.Y.3d 863 (2008)

• California Court of Appeal: No TKO Of Eminent Domain Challenge - Community Youth Athletic Center v. City of National City, No. D052584 (Jan. 22, 2009)

The 2009 version of this popular annual program covered the latest developments in several areas of the law related to land use regulation.  Among the topics were the ability of town boards to control obstreperous speakers; the latest law concerning ethical constraints on state and local officials and the citizens who appear before them; restrictions on the government's ability to limit religious land uses under the Religious Land Use and Institutionalized Persons Act (RLUIPA); what's new concerning cell tower sitting; new law about impact fees and exactions; and citizen input into brown fields restoration and the backlash against it. I spoke about the latest developments in eminent domain and pretext. Also on the faculty were Daniel Dalton, Robert B. Foster, W. Andrew Gowder, Jr., and Jeffrey Kleeger. Paul D. Wilson moderated.  More here, including information about purchasing the CD recording.

If you have any questions or comments you weren't able to ask or make during the teleconference, please drop me an email.

Links From ABA Condemnation Hot Topics Teleconference

Thank you to those who were able to join us live for today's teleconference. Here are the links to the additional cases and other items I mentioned (or wanted to mention) in my session on Public Use and Pretext Update:

• Might Makes Blight In The New York Appellate Division - Develop Don't Destroy Brooklyn v. Urban Dev. Corp., 2009 NY Slip Op 01395 (Feb. 26, 2009)

• Determining Eminent Domain Pretext In Serial Takings - County of Hawaii v. C&J Coupe Family Ltd. P’ship, 198 P.3d 615 (Haw. Dec. 24, 2008) (proposed Findings of Fact and Conclusions of Law on remand)

• Book Review: Little Pink House by Robert S. Poliner, Connecticut Ombudsman for Property rights

• First Circuit: Williamson County Applies To Eminent Domain Challenges - Lichoulas v. City of Lowell, No. 08-1485 (1st Cir. Jan. 20, 2009)

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

• How To Prove A Substantive Due Process Zoning Case - Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778 (2d Cir. 2007)

• Williamson County, removal, and remand of regulatory takings case after municipality created wetlands - Yamagiwa v. City of Half Moon Bay, 523 F. Supp. 2d. 1036 (N.D. Cal. 2007)

• California Court of Appeal: No TKO Of Eminent Domain Challenge - Community Youth Athletic Center v. City of National City, No. D052584 (Jan. 22, 2009)

• Eminent Domain Use and Abuse: Kelo in Context (ABA 2007) (Dwight Merriam, Mary Massaron Ross, eds.)

The program examined new and important condemnation cases and trends, and also reviewed eminent domain as a backdrop for land use regulation. Also on the faculty were Robert Freilich, Mary Lynn Huett, and Edward Sullivan. Professor Steven Eagle moderated. More here, including information about purchasing the CD recording.

If you have any questions or comments you weren't able to ask or make during the teleconference, please drop me an email.

Upcoming ABA Condemnation, Land Use Teleconferences

There's still time to register for two teleconferences that are a part of the ABA State and Local Government Section's "Virtual Spring Meeting."  I hope you can join us for at least one of the programs.

• Wednesday, April 1, 2:00 - 3:30 pm, EDT: Condemnation Hot Topics - The program will examine new and important condemnation cases and trends, and also review eminent domain as a backdrop for land use regulation. I will leading the session on pretext and public use in eminent domain cases. Also on the faculty are Robert Freilich, Mary Lynn Huett, and Edward Sullivan. The moderator is Professor Steven Eagle. More here.

• Thursday, April 2, Noon - 1:30 pm, EDT: Hot Topics in Land Use Law 2009 - The 2009 version of this popular annual program will cover the latest developments in several areas of the law related to land use regulation.  Among the expected topics are the ability of town boards to control obstreperous speakers; the latest law concerning ethical constraints on state and local officials and the citizens who appear before them; restrictions on the government's ability to limit religious land uses under  the Religious Land Use and Institutionalized Persons Act (RLUIPA); what's new concerning cell tower sitting; the use of pretextual public purposes to justify takings; new law about impact fees and exactions; and citizen input into brown fields restoration and the backlash against it. I will be speaking about the latest developments in eminent domain and pretext.  More here.

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

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

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

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

Materials From 2/20/2009 Land Use Seminar

Here are the links to the cases that I spoke about in my session in today's seminar "Supreme Court, Regulatory Takings and Eminent Domain Update."  Not all of the cases we discussed today are included below, so if you would like a link or more information about a case that is not listed, please email me at rht@hawaiilawyer.com and I will send it to you.

• County of Hawaii v. C & J Coupe Family Limited Partnership, No. 28882 (Dec. 24, 2008) - public use, pretext, and damages for failed taking

The majority opinion by Justice Acoba, joined by Justices Nakayama and Duffy is posted here:

We hold that (1) a landowner in a condemnation action is entitled to damages under HRS § 101-27 where the property at issue is not finally taken in the context of a particular condemnation proceeding, irrespective of whether the government attempts to take the land through subsequent condemnation proceedings; (2) abatement does not apply where the relief sought in two concurrent actions is not the same; and (3) although our courts afford substantial deference to the government's asserted public purpose for a taking in a condemnation proceeding, where there is evidence that the asserted purpose is pretextual, courts should consider a landowner's defense of pretext.  Therefore, (1) automatic denial of statutory damages under HRS §101-27 in Condemnation 1 is vacated and the case remanded for a determination of damages, (2) the court's conclusion that Condemnation 2 was not abated by Condemnation 2 is vacated and the case remanded for a determination of whether the public purpose asserted in Condemnation 2 was pretextual.

Slip op. at 5. Here's the concurring and dissenting opinion by Chief Justice Moon joined by Justice Levinson. The briefs in the case are available here:  Opening Brief, Answering Brief of the County of Hawaii, Reply Brief. Disclosure: we represent the property owner.

• When a project not being built on state or county land meets the definition of "use" of such lands triggering chapter 343 environmental review - Nuuanu Valley Ass'n v. City & County of Honolulu, No. 28599 (Oct. 24, 2008)

• Illinois Supreme Court decision about the 3% "surcharge" on casinos, which was given to horse racing tracks. Empress Casino Joliet Corp. v. Giannoulias, No. 104586 (June 5, 2008)

• Is destruction of evidence seized from an innocent third party a taking? AmeriSource Corp. v. United States, No. 08-497 (cert. petition filed Oct. 15, 2008)

• Development Moratorium a Taking Under Lucas - Monks v. City of Rancho Palos Verdes, No. B201280 (Cal. Ct. App. Oct. 1, 2008)

• No private right of action to enforce zoning - The Hawaii Intermediate Court of Appeals, in Pono v. Molokai Ranch, Ltd., 119 Haw. 163, 194 P.3d 1126 (2008), held that a private party had no standing to enforce the state's land use laws. The Hawaii Supreme Court rejected certiorari review of the case.  Disclosure: we represent the landowner. More here.

• Charles A. Pratt Constr. Co. v. California Coastal Comm'n (cert petition on Williamson County and Penn Central)

• Aspen Creek Estates, Ltd. v. Town of Brookhaven - New York Court of Appeals  (comprehensive taking plan)

• City of Stockton v. Marina Towers LLC - Cal. Court of Appeal (details required in resolution of necessity)

• Resource Investments, Inc. v. United States - Court of Federal Claims (massive opinion and primer on regulatory takings - erroneous exercise of jurisdiction as a temporary taking)

• Florida regulatory takings cases - Florida Supreme Court and District Courts of Appeals

• Substantive due process in the Ninth Circuit after Lingle - The Ninth Circuit Rediscovers Substantive Due Process in Land Use Cases

Upcoming Seminar: Zoning, Subdivision And Land Development Law

There's still time to register for the Zoning, Subdivision and Land Development Law seminar, to be held in Honolulu on February 20, 2009. 

I'm presenting a session on "U.S. Supreme Court, Regulatory Takings and Eminent Domain Update."  My Damon Key colleagues are covering "Affordable Housing Exactions" and "Vacation Rentals" (Mark Murakami), "Rockfall and Landowner Liability" (Noelle Catalan), "Environmental Law Update" (Robert Harris, a Damon Key alumni, and current Director of the Hawaii Chapter of the Sierra Club), and  "Hot Topics and Recent Hawaii Cases" (Greg Kugle). 

More information, including the complete agenda and registration information here.

Materials From Hawaii Land Use Law Conference

To those who attended Thursday's and Friday's conference, thank you.  Here are the cases and other materials I mentioned in my portion:

• Shoreline setbacks and equitable estoppel - Brescia v. North Shore Ohana 115 Haw. 477, 168 P.3d 929 (2007) 

• State shoreline setback - Haw. Rev. Stat. § 205A-43

• Counties have authority to enact their own setbacks - Haw. Rev. Stat. § 205A-45

• No private right of action to enforce zoning - The Hawaii Intermediate Court of Appeals, in Pono v. Molokai Ranch, Ltd., 119 Haw. 163, 194 P.3d 1126 (2008), held that a private party had no standing to enforce the state's land use laws. The Hawaii Supreme Court rejected certiorari review of the case.  Disclosure: we represent the landowner. More here.

• Maunalua Bay Beach Ohana 28 v. State of Hawaii, the appeal now pending in the Intermediate Court of Appeals.  The issue in that case is whether the state or littoral landowners are entitled to ownership of accreted land. In "Act 73," the legislature declared that shoreline land naturally accreted belongs to the State of Hawaii and is public property.  The act overturned the age-old rule of shoreline accretion and erosion, which held that beachfront owners lose ownership of land when it erodes, but gain it when it accretes.  Instead of these balanced rules, Act 73 made the erosion/accretion equation one-sided: the State wins every time.  We filed an amicus brief in the appeal, a copy of which is available here.

• Substantive due process in the Ninth Circuit after Lingle - The Ninth Circuit Rediscovers Substantive Due Process in Land Use Cases

• County of Hawaii v. C & J Coupe Family Limited Partnership, No. 28882 (Dec. 24, 2008) - public use, pretext, and damages for failed taking

The majority opinion by Justice Acoba, joined by Justices Nakayama and Duffy is posted here:

We hold that (1) a landowner in a condemnation action is entitled to damages under HRS § 101-27 where the property at issue is not finally taken in the context of a particular condemnation proceeding, irrespective of whether the government attempts to take the land through subsequent condemnation proceedings; (2) abatement does not apply where the relief sought in two concurrent actions is not the same; and (3) although our courts afford substantial deference to the government's asserted public purpose for a taking in a condemnation proceeding, where there is evidence that the asserted purpose is pretextual, courts should consider a landowner's defense of pretext.  Therefore, (1) automatic denial of statutory damages under HRS §101-27 in Condemnation 1 is vacated and the case remanded for a determination of damages, (2) the court's conclusion that Condemnation 2 was not abated by Condemnation 2 is vacated and the case remanded for a determination of whether the public purpose asserted in Condemnation 2 was pretextual.

Slip op. at 5. Here's the concurring and dissenting opinion by Chief Justice Moon joined by Justice Levinson. The briefs in the case are available here:  Opening Brief, Answering Brief of the County of Hawaii, Reply Brief. Disclosure: we represent the property owner.

• "Arrow of Time, Vested Rights, Zoning Estoppel, and Development Agreements in Hawaii' (published by the U. Hawaii Law Review in Feb. 2006). Drop me an email, and I will email you a pdf, or send you a hard copy (tell me which).