In What's At Stake in Stop the Beach Renourishment, Lawprof D. Benjamin Barros posts a comprehensive summary of "judicial takings" case accepted for review by the US Supreme Court, Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). Raises several interesting points and worth a read.
The U.S. Supreme Court last week agreed to review the Florida Supreme Court's decision in Walton County v. Stop the Beach Renourishment, Inc., 998 So.2d 1102 (Fla. Sep. 29, 2008), which held that a state statute prohibiting "beach renourishment" without a permit did not effect a taking of littoral (beachfront) property, even though it altered the long-standing rights of the owners to accretion on their land and direct access to the ocean. See Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). More background on the case at our resource page.
The Court accepted three questions for review, and the cert petition relied on two rather notorious cases with Hawaii origins to support the conclusion that a decision by a state court which unexpectedly changes established state common law rules of property is a compensable taking. See Pet. at 31-32 (citing Robinson v. Ariyoshi, 753 F.2d 1468 (9th Cir. 1985); Sotomura v. County of Hawaii, 460 F. Supp. 473 (D. Haw. 1978)). The first Question Presented accepted for review is:
The Florida Supreme Court invoked "nonexistent rules of state substantive law" to reverse 100 years of uniform holdings that littoral rights are constitutionally protected. In doing so, did the Florida Court's decision cause a "judicial taking" proscribed by the Fifth and Fourteenth Amendments to the United States Constitution?
In this post, we explore the background to the esoteric issue of "judicial takings" presented by the two Hawaii cases.
Robinson v. Ariyoshi — The Never Ending (Water Rights) Story
The Robinson litigation is one that holds a special place in our hearts, as it is a tale interwoven with the recent history of Hawaii, taking us from the time before jet travel when sugar and pineapple -- not tourism -- were the economic engines driving politics and the economy of the Territory of Hawaii, through the salad days of the openly activist Hawaii Supreme Court under the leadership of Chief Justice William S. Richardson, and finally sputtering out (sort of) after the U.S. Supreme Court's ripeness ruling in Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985).
Here's the short summary, repeated from memory (the litigation, which is still pending, has been going on for 50 years now, so please forgive us if a few of the details are off). The case started out in 1959 in a Kauai county trial court as a dispute between several sugar plantations over which of them possessed the rights to surplus water in a Kauai stream, among other things. Nine years later, the trial court issued a 65-page decision based on long-standing Kingdom, Territory, and State water law, and declared who owned what. So far, it was just another in a long line of water disputes between private parties. The losing parties took the case to the Hawaii Supreme Court (in those days, there was no Intermediate Court of Appeals and all appeals by right went directly to the Supreme Court), where no party, including the State, argued that the controlling water law was anything but as established by long-standing Hawaii cases.
The Hawaii Supreme Court, however, "sua sponte overruled all territorial cases to the contrary and adopted the English common law doctrine of riparian rights." Robinson, 753 F.2d at 1470 (citing McBryde Sugar Co. v. Robinson, 54 Haw. 174, 504 P.2d 1330 (1973)). The court "also held sua sponte that there was no such legal category as 'normal daily surplus water' and declared that the state, as sovereign, owned and had the exclusive right to control the flow," and "that because the flow of the Hanapepe [stream] was the sovereign property of the State of Hawaii, McBryde's claim of a prescriptive right to divert water could not be sustained against the state." Robinson, 753 F.2d at 1470. In other words, in a dispute between "A" and "B" over which of them possessed water rights, the Supreme Court simply said "neither of you do, the State owns it all."
The private parties who thought they had owned something for over a hundred years were understandably a bit miffed that their property had seemingly morphed into public property by the stroke of a Justice's pen, and, to add insult to injury, without even the chance to brief the Supreme Court before it announced the new rule. But after a rehearing on a narrow issue of state law, during which the court rebuffed an attempt by the private parties to raise federal constitutional issues, the Hawaii Supreme Court reaffrimed the McBryde ruling, with two Justices dissenting. See McBryde Sugar Co. v. Robinson, 55 Haw. 260, 517 P.2d 26 (1973) (per curiam). Justice Bernard Levinson switched his vote from the first opinion, concluding that it was a "radical departure" from established law, and was a taking:
Although I voted with the majority of this court in McBryde Sugar Co. v. Robinson, 54 Haw. 174, 504 P.2d 1330 (1973) [hereinafter referred to as McBryde I], I am constrained to recant that position in view of my current understanding of the problems of this case. In light of the arguments adduced on rehearing, historical evidence discovered upon further research subsequent to the court's previous decision in this case, and a reappraisal of the reasoning supporting that decision, it is my opinion that the court committed error in holding that all surplus water belongs to the State and that private water rights, however acquired, may not be transferred to nonappurtenant land. Because of the importance of this case to the development of the law on the subject of Hawaii's water resources, I have undertaken to present a detailed analysis explaining why McBryde I is not in keeping with long established and unique principles of Hawaiian water law. Precisely because McBryde I is such a radical departure from these principles as they have been heretofore understood, moreover, I have concluded that McBryde I effectuates an unconstitutional taking of the appellant's and cross-appellants' property without just compensation and should be reversed on this ground as well.
McBryde, 55 Haw. at 262-63, 517 P.2d at 27 (Levinson, J., dissenting). The U.S. Supreme Court denied certiorari meaning the Hawaii Supreme Court's McBryde decision was final.
But it was not the last word. The sugar companies sued the state (Governor Ariyoshi, actually, since under Ex parte Young, 209 U.S. 123 (1908), a state official can be sued in federal court to enjoin unconstitutional conduct despite the 11th Amendment) in federal district court under the federal civil rights statute, 42 U.S.C. § 1983. The district judge -- the inimitable Martin Pence -- held that the Hawaii Supreme Court's McBryde decision took property without just compensation, and enjoined the state from enforcing the decision. See Robinson v. Ariyoshi, 441 F.Supp. 559 (D.Haw. 1977).
Up to the Ninth Circuit the parties went, which noted the tortured procedural path the case next took, including a detour back to the Hawaii Supreme Court on certified questions when the Ninth Circuit asked the court whether it really meant what it said in McBryde:
The leisurely pace of this litigation has produced three oral arguments in this court, two of which were followed by referral of certified questions to the Supreme Court of Hawaii. See Robinson v. Ariyoshi, 65 Hawaii 641, 658 P.2d 287 (1982) (Robinson II). Following the publication of the state court's answers to the certified questions, the parties briefed the remaining issues that had been narrowed by the earlier proceedings and reargued the case. A number of complex questions remain, but to expedite the matter we will discuss only those essential to a resolution of the main question: Can the state, by a judicial decision which creates a major change in property law, divest property interests?
Robinson, 753 F.2d at 1471. [Barista's note: are you keeping score yet? There's McBryde. McBryde II. McBryde III. Robinson I. Robinson II. Robinson III. Still to come: Robinson IV, V, VI, VII, and VIII, and then back to McBryde IV.] After addressing jurisdictional issues, res judicata, and the Rooker/Feldman doctrine, the Ninth Circuit addressed the merits:
The state conceded at oral argument that the Fourteenth Amendment would require it to pay just compensation if it attempted to take vested property rights. The substantive question, therefore, is whether the state can declare, by court decision, that the water rights in this case have not vested. The short answer is no.
Robinson, 753 F.2d at 1473.The court determined that the water rights claimed by the private parties were vested rights, and that the state legislature or the state supreme court cannot alter those rights without condemnation and payment of just compensation.
By the time Robinson IV rolled around, the U.S. Supreme Court had issued its ruling in Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985) that certain regulatory takings case were not ripe, and it granted cert and summarily vacated the Ninth Circuit's Robinson decision, ordering it to consider the decision again in light of Williamson County's new ripeness rules. See Ariyoshi v. Robinson, 477 U.S. 902 (1986) (Robinson IV). The Ninth Circuit vacated its earlier order (Robinson v. Ariyoshi, 796 F.2d 339 (9th Cir.1986) (Robinson V) and sent the case back to Judge Pence in the District Court.
Not to be deterred, Judge Pence found the case ripe under Williamson County. See Robinson v. Ariyoshi, 676 F.Supp. 1002, 1020-21 (D.Haw. 1987) (Robinson VI). Back up to the Ninth Circuit they went, and in Robinson v. Ariyoshi, 854 F.2d 1189 (9th Cir. 1988) (Robinson VII), the Ninth Circuit ordered further briefing on the issue. In Robinson v. Ariyoshi, 887 F.2d 215 (9th Cir. 1990) (Robinson VIII), the Ninth Circuit vacated the District Court's decision and sent it back with instructions to dismiss the case because it was not ripe under Williamson County.
A thirty-one year old case was not ripe, you say? How so?
As noted, we previously certified six questions to the Supreme Court of Hawaii. In response, the Hawaii court stated that the decision in McBryde II did not constitute the final disposition of the case. See Robinson II, 658 P.2d at 295-97. The court explained that the McBryde litigation began and was treated throughout by the trial court as an action to determine the rights of the parties to the waters of the Hanapepe. The trial court had attempted to identify the exact quantity of water to which each party was entitled. On appeal, the Supreme Court of Hawaii affirmed the award of appurtenant rights and reversed the award of prescriptive and surplus rights. No specific instruction was imparted to the trial court, and the Supreme Court did not utilize its power to render a final judgment. Further, no further proceedings are of record in the trial court. The court explained that the partial reversal without instruction merely rendered that portion of the judgment void. Id. at 296-97. Thus the only portion of the judgment which could be considered final after appeal was the partial quantification of the parties' water rights, namely the award of appurtenant rights.
Robinson VIII, 887 F.2d at 218 (footnote omitted). Unbelievably, a third cert petition was not sought, and the litigation (per the Hawaii Supreme Court's edict as noted above) went back to the Kauai trial court where it all began in 1959, where, as far as anyone in these parts is aware, the case remains on the docket. The state certainly has no interest in moving it forward and ripening the case, and the private parties who originated the litigation are long since out of the sugar business. [See one note of correction in the comments.] Kauai is now a place of tax revolts, zoning fights, and quiet beaches, and the sugar industry is but a distant memory.
County of Hawaii v. Sotomura — Shifting The Line in the Sand
If you have managed to come along this far, congratulations -- there's more, but thankfully it's a shorter tale and one which follows the same general plot.
McBryde/Robinson was not a unique case, and the Hawaii Supreme Court regularly accomplished similar changes in established law in other areas. In County of Hawaii v. Sotomura, 55 Haw. 176, 517 P.2d 57 (1973), the court redefined the seaward boundary of a littoral parcel in a condemnation action from the high water mark to the "upper reaches of the wash of the waves," holding that no compensation was owed for the land seaward of the new line because it was owned by the state. The trial court had awarded nominal compensation of one dollar to the property owner for the condemnation of this property, but the Supreme Court declared that was error and took the dollar away. [Disclosure: my late law partner and name partner of our firm, Charlie Key, represented the property owners in the Hawaii Supreme Court.]
The property owners followed the Robinson script and sued in federal district court (for due process violations, not under a takings theory). The court determined "[j]udicial transfers of title to private lands to the State which do not permit the owner an opportunity to be heard or to present evidence is not constitutionally valid. Whenever a party is to be deprived of property, he is entitled to a meaningful hearing before the fact." Sotomura v. County of Hawaii, 460 F. Supp. 473, 478 (D. Haw. 1978). The district court concluded:
This Court fails to find any legal, historical, factual or other precedent or basis for the conclusions of the Hawaii Supreme Court that, following erosion, the monument by which the seaward boundary of seashore land in Hawaii is to be fixed is the upper reaches of the wash of the waves. To the contrary, the evidence introduced in this case firmly establishes that the common law, followed by both legal precedent and historical practice, fixes the high water mark and seaward boundaries with reference to the tides, as opposed to the run or reach of waves on the shore. For example, on the Island of Hawaii, the seaweed line was used to indicate the level of the high tides and high water mark. The decision in Sotomura was contrary to established practice, history and precedent and, apparently, was intended to implement the court's conclusion that public policy favors extension of public use and ownership of the shoreline. A desire to promote public policy, however, does not constitute justification for a state taking private property without compensation.
Id. at 480-81. The state's appeal to the Ninth Circuit was dismissed as untimely.
Just think of the possibilities if the deadline had not been missed -- this case might still be going on today.
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.
The Eminent Domain Law Blog, published by our colleagues at Owners' Counsel of America, has summarized Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11, the takings and due process case which the U.S. Supreme Court agreed yesterday to review.
Beachfront property owners along Florida's Gulfcoast, have been trying to stop an effort by local and state officials to restore the beach through renourishment, a process by which sand is dredged from the ocean floor, transported through pipes and distributed along eroded beach areas, in essence adding sand to widen the beach. This proposed beach renourishment project would cover nearly seven miles of shoreline and widen the beach by approximately 210 feet in Destin, FL.
A key issue in the litigation thus far, which has moved from Circuit Court to the First District Court of Appeal to the Florida Supreme Court, is that by adding sand to the waterfront and restoring the beach, the State of Florida will assume ownership of some of the beach. The property owners have argued that their littoral rights would be limited, amounting to a regulatory taking, without just compensation.
Check it out here. (I am the Hawaii member of Owners' Counsel.)
The Questions Presented are posted here, and links to other reports are here.
Here are links and other items of interest about Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009):
- Cert petition, BIO's and amicus briefs (via SCOTUSblog)
- ABA Journal: Surprise: Supreme Court Grants Cert in Beachfront Takings Case
- The decision below: Walton County v. Stop the Beach Renourishment, Inc., 998 So.2d 1102 (Fla. Sep. 29, 2008)
- ABA Journal: Up Against the Seawall
- Volokh Conspiracy: Supreme Court Takes Regulatory Takings Case
- Dwight Merriam's thoughts at IMLA's Local Government blog.
- Pacific Legal Foundation's (the only organization to file an amicus at the cert stage) summary of the issues.
- Law of the Land blog's summary.
In Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009), the US Supreme Court agreed to review a case that raises several important takings issues, including the issue of whether a court decision can take property. The ABA Journal's July 2006 report "Up Against the Seawall" tells the backstory on the case and highlights other beach issues.
In Walton County v. Stop the Beach Renourishment, Inc., 998 So.2d 1102 (Fla. Sep. 29, 2008), the Florida Supreme Court held that a state statute which prohibits "beach renourishment" without a permit did not effect a taking of littoral (beachfront) property, even though it altered the long-standing rights of the owners to accretion on their land and direct access to the ocean. The cert petition presents these questions:
The Florida Supreme Court invoked "nonexistent rules of state substantive law" to reverse 100 years of uniform holdings that littoral rights are constitutionally protected. In doing so, did the Florida Court's decision cause a "judicial taking" proscribed by the Fifth and Fourteenth Amendments to the United States Constitution?
Is the Florida Supreme Court's approval of a legislative scheme that eliminates constitutional littoral rights and replaces them with statutory rights a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?
Is the Florida Supreme Court's approval of a legislative scheme that allows an executive agency to unilaterally modify a private landowner's property boundary without a judicial hearing or the payment of just compensation a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?
On the first question, while the Court has implicitly recognized that a taking can occur if a court decision departs from long-standing principles it has yet to directly address the question. The cert petition raised a split in lower court authority by pointing out that in Robinson v. Ariyoshi, 753 F.2d 1468 (9th Cir. 1985), the Ninth Circuit held the Hawaii Supreme Court's radical restructuring of Hawaii riparian water rights in the McBryde case was a judicial taking (the U.S. Supreme Court reversed Robinson on the basis it was not yet ripe for review under Williamson County).
The Hawaii appellate courts are presently reviewing a similar case. In Maunalua Bay Beach Ohana 28 v. State of Hawaii, an appeal now pending in the Intermediate Court of Appeals, the issue is whether the state or littoral landowners are entitled to ownership of accreted land. In "Act 73," the Hawaii 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.
More to come.
A very interesting decision from the U.S. Court of Appeals for the Fifth Circuit in Severance v. Patterson, No. 07-20409 (Apr. 23, 2009).
While much of the commentary about the case (see, e.g., here, here, and here) has focused on the dissenting opinion's ad hominem on the plaintiff's and her attorneys' motivations and the majority opinion's slap-down of the dissent (see footnote 1), for now we will stick to what the opinion held on the merits which is as interesting, if not more so. (We will add our thoughts about what the weird dissent said about public interest legal cases in a separate post.)
The case involved constitutional challenges to a Texas statute known as the Open Beaches Act, which imposes an easement for public access over certain beachfront land. After Ms. Severance purchased two beachfront parcels in Galveston, in 2005 Hurricane Rita caused the vegetation line to move landward, which subject large portions of her properties, including two homes, to the public access easement. The Commissioner of the Texas General Land Office informed her these homes were subject to removal and offered $40,000 in relocation assistance.
Severance filed suit in federal district court under two theories: the enforcement of the easement was a taking under the Fifth Amendment, and an illegal seizure under the Fourth. Fifth Amendment takings claims in this type of situation are nothing new, but a search-and-seizure claim? Whoa, isn't that the province of criminal law practitioners, not property rights mavens? Read on.
Fifth Amendment Takings Claim Not Ripe
The district court predictably tossed the Fifth Amendment claim out of federal court. Ms. Severance had not pursued just compensation in Texas state courts, and the court held her claim was not ripe under Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985). That case established two requirements for a regulatory taking claim to be ripe in federal court: the government must have reached a final decision applying the regulation to the property at issue, and the plaintiff must have sought -- and been denied -- just compensation through available state procedures. Only the second test requirement was at issue.
On appeal, the court rejected Severance's assertion that the state litigation requirement was not applicable to a physical -- as opposed to purely regulatory -- taking. The court relied on circuit precedent to hold that Williamson County is applicable to a physical invasion as well as a regulatory taking. See slip op. at 8-9 (citing Urban Developers LLC v. City of Jackson, 468 F.3d 281 (5th Cir. 2006)).
The Fifth Circuit also rejected Severance's argument that Williamson County does not apply when only declaratory or injunctive relief is sought. Slip op. at 9. The court recognized that the Williamson County rules, coupled with the rules of preclusion, prevent property owners from having their federal claims heard in federal court, and that in San Remo Hotel, L.P. v. City & County of San Francisco, 545 U.S. 323 (2005), four Justices agreed Williamson County produces absurd results and denies federal court review of federal constitutional rights. But these Justices did not carry the day, and the Fifth Circuit noted that "the majority of the Supreme Court in San Remo were unconcerned by this result, observ ing that '[i]t is hardly a radical notion to recognize that, as a practical matter, a significant number of plaintiff will necessarily litigate their federal takings claims in state courts.'" Slip op. at 10 (quoting San Remo, 545 U.S. at 346). Until the Supreme Court overrules Williamson County, the Fifth Circuit -- and the rest of us -- are stuck with it.
Fourth Amendment Seizure Claim
The court reversed the district court's dismissal of the Fourth Amendment claim. The Fifth Circuit held that Williamson County's ripeness requirements are not applicable to a Fourth Amendment seizure claim. The court rejected the government's claim that the seizure claim was "subsumed" within the takings claim, because the Fourth Amendment applies to both civil and criminal seizures, and that a government act can violate more than one constitutional prohibition. Slip op. at 16. The court set out the elements of a civil seizure claim: "(a) a meaningful intereference with [the owner's] possessory interests in her property, which is (b) unreasonable because the intereference is unjustified by state law or, if justificed, then uncompensated." Slip op. at 17-18 (citing Presley v. City of Charlottesville, 464 F.3d 480, 487-88 (4th Cir. 2006)).
On the latter point, the Fifth Circuit held that Texas law was not clear. Consequently, the court certified three questions to the Texas Supreme Court:
1. Does Texas recognize a "rolling" public beachfront access easement, i.e., an easement in favor of the public that allows access to and use of the beaches on the Gulf of Mexico, the boundary of which easement migrates solely according to naturally caused changes in the location of the vegetation line, without proof of prescription, dedication or customary rights in the property so occupied?
2. If Texas recognizes such an easement, is it derived from common law doctrines or from a construction of the OBA?
3. To what extent, if any, would a landowner be entitled to receive compensation (other than the amount already offered for removal of the houses) under Texas’s law or Constitution for the limitations on use of her property effected by the landward migration of a rolling easement onto property on which no public easement has been found by dedication, prescription, or custom?
Slip op. at 20.
After slinging mud at the plaintiff and Pacific Legal Foundation [disclosure: I do work for Pacific Legal Foundation in Hawaii], the dissent argued that the plaintiff lacked standing because she had no property interest in the land, and that the seizure was not unreasonable.
Thanks to James Lawlor of the Land Use Legal Report for letting us know that the U.S. Supreme Court has declined to review Ocean Harbor Homeowners Ass'n v. California Coastal Comm'n, 163 Cal. App. 4th 215, 77 Cal. Rptr. 432 (2008). In that case, the California Court of Appeals held that the California Coastal Commission properly conditioned a permit to build a seawall to protect property from erosion on the landowner's payment of a $5.3 million "mitigation fee." The fee was to be used to purchase other beach property since Commission claimed the construction of the seawall would result in the loss of beach fronting the property. The property owner challenged the exaction under the nexus and proportionality requirements of Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994).
A denial of a petition for writ of certiorari does not mean that the Supreme Court approves of the lower court decision or that the issues are not worthy, merely that the case (for whatever reason) is not appropriate for the Court's review.
The Supreme Court's Order List denying review is posted here.
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).
It's not too late to register to attend the Hawaii Land Use Law Conference, taking place January 15 and 16, 2009, in Honolulu.
Items on the agenda include eminent domain, environmental law, transit-oriented development, subdivision requirements, and cultural impact statements. The program co-chairs are Professor David Callies and land use lawyer Ben Kudo.
This conference takes place only once every two years, so this is your last chance for a while to learn of the latest information and updates, and what issues are on the horizon.
I'm on the faculty, presenting a session on Emerging Water Issues: Coastal Zone Management Permits, and Hawaii's Floodway, Floodplain and Coastal Inundation Zone Requirements. The complete agenda and faculty listing is posted here.
Hope you can attend, and if you do, please stop by and say hello.
All upcoming and past seminars, conferences, and events here
May 14, 2009
April 1-2 2009
February 20, 2009
January 15-16, 2009
Briefs, articles, and documents, via JD Supra
Eminent domain abuse: County of Hawaii v. Richards, No. 28882 (HAWSCT)
Shoreline accretion amicus brief (HAWICA)
Kelo v. City of New London amicus brief (SCOTUS)
Lingle v. Chevron USA amicus brief (SCOTUS)
Ohana Kauai Property Tax merits brief (HAWSCT)
Ohana Kauai Property Tax merits brief (HAWSCT)
The Complete Guide to Zoning by Dwight H. Merriam (2005)
This blog is not sponsored by the author's firm, and the views expressed by the author are just that; they are not the views of his clients, his firm or its clients, or anyone but for the author.
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