inversecondemnation.com

Coastal Land Use Law Seminar

There is still time to sign up to attend an upcoming seminar, Coastal Engineering and Land Use Issues, in Honolulu.  It's being held on Thursday, August 14, 2008, at at Hilton Waikiki Prince Kuhio Hotel.  My colleagues and fellow law bloggers Mark Murakami and Jesse Souki are among the faculty.  Topics on the agenda include: Development and Land Use Issues in the Special Management Area, Construction and Land Use Issues in the Shoreline Area, and Managed Retreat Through the Redevelopment Process.  Go here for more information including the complete agenda and faculty list, and registration information. 

Cal. Court of Appeals: Goverment Does Not Have To Own The Entire Faulty Drainage System To Be Liable For Inverse Condemnation

An interesting decision from the California Court of Appeals (First Appellate District) about a distinct branch of inverse condemnation law -- government liability for flooding and erosion. 

Generally, any physical invasion of property by or caused by the government, no matter how small, is compensable, either in eminent domain, inverse condemnation, or tort.  See, e.g., Pumpelly v. Green Bay Mississippi Canal Co., 80 U.S. (13 Wall.) 166 (1871).  This is true whether the invasion is by government agents, see, e.g., D & D Land Holdings v. United States, No. 06-877L (Court of Fed. Cl., June 30, 2008), members of the public at government invitation, see, e.g., Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987); Kaiser Aetna v. United States, 444 U.S. 164 (1979), or by permanent or temporary floodwaters.  See, e.g., Jacobs v. United States, 290 U.S. 13 (1933). 

In Skoumbas v. City of Orinda, No. A117960 (Cal. Ct. App. July 31, 2008), the court held that a municipal government could be liable for flooding and erosion from water discharged from a storm drain, even if the government did not own the entire drainage system.  After its property was eroded by stormwater discharged from a drainage system that was partially privately constructed and owned, and partially owned and maintained by the city, the landowner sued the city for inverse condemnation.  The city asserted it could not be liable because it did not own or control the lower portion of the drain.  The trial court agreed with the city and dismissed the case.

The court of appeals reversed.  The opinion contains a short summary of California's law of inverse condemnation related to flooding and surface water that is worth reviewing.  See slip op. at 6-9.  The city did not dispute that it owned part of the drainage system, and the court held that "the critical inquiry is not whether the entire system was a public improvement, but rather whether the City acted reasonably in its maintenance and control over those portions of the drainage system it does own."  Slip op. at 1. 

The court held that the city's ownership of a part of the system made it "potentially liable for damage substantially caused by the City's unreasonable diversion of water through the City-owned portions of the system."  Slip op. at 6.  If the city's improvements have a "substantial cause-and-effect relationship" to the damage to the plaintiff's land, it could be liable in inverse condemnation. Slip op. at 10.

Read the court's opinion here.

Court of Federal Claims Awards Compensation for Taking of Vested Water Rights

The speed of information on the internet sure is fast.  I was preparing a post summarizing the recent Court of Federal Claims decision in Estate of Hage v. United States, No. 91-1470L (May 6, 2008), which awarded Nevada property owners several million dollars in just compensation for the taking of their vested water rights by the federal government, but Professor Gideon Kanner and the Real Estate and Construction Law Blog both beat me to the punch.

Kanner's commentary on the case, "Posthumous Victory for Hage" is posted here. "Federal Claims Court Awards $4.2M to Ranchers' Estate for Taking of Water Rights" is posted here.

Read the CFC's opinion here.

Kauai Springs Zoning Permit Appeal: Reply Brief

Yesterday, we filed the Reply Brief in Kauai Springs' appeal from the January 2007 decision by the Kauai Planning Commission to deny three zoning permits to the small, Kauai-family-owned water bottling company.

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

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

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

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

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

The Opening Brief is posted here.  The Kauai Planning Commission's Answering Brief is posted here.

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

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

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

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

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

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

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

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

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

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

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

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

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

Water Law Seminar Links and Materials

To all who attended Wednesday's Integrating Water Law and Land Use Planning seminar, thank you.  Here are links to the cases and statutes I discussed:

• 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)
• 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)

Upcoming Water Law Seminar

There's still time to sign up for the "Integrating Water Law and Land Use Planning in Hawaii," to be held on May 14, 2008.  I'm on the faculty, leading a session on "Water Rights, Property Rights and the Law of Settled Expectations."  More information here, including registration information.  If you attend, please stop by and say hello.

2007 Land Use in Review: Estoppel and Shoreline Setbacks

In Brescia v. North Shore Ohana (No. 27211, July 12, 2007), the Hawaii Supreme Court held that a property owner was not entitled to rely upon a county planning commission's determination of the location of a shoreline setback when the planning commission retained the authority to give official assurances.  The case involved Kauai property within the coastal "Special Management Area."  The SMA is, generally speaking, the land nearest the shoreline, as defined in Hawaii's Coastal Zone Management Act, Haw. Rev. Stat. ch. 205A. The CZMA established special controls for this strip of land, and the counties have authority to regulate uses within the SMA, including the location of the "shoreline setback," which is (like other setbacks) an unbuildable zone that "sets back" structures from the shoreline.  The statewide minimum setback is established by the CZMA, but the individual counties are permitted to establish greater setbacks, which vary from county-to-county.  More here.

Land Use Round Up

A round up of posts of possible interest to readers:

• Koloa Creekside sues county -- a developer is suing the County of Kauai for civil rights violations, and unlawful exactions:

The 18-page lawsuit names as defendants the county of Kaua‘i, the Planning Commission, and the Planning Department and its director. It asks for the Koloa Creekside Estates project to be found exempt from the Koloa-Po‘ipu-Kalaheo Development Plan and, if not, the imposed conditions to be declared unlawful.

The developer also opposes some requirements that it was previously willing to concede — such as a land dedication, impact fees and construction schedule, the lawsuit states.

Attorneys argue in the case for automatic approval of the permits because the county failed to meet its own deadlines.

• Charley Foster at Planet Kauai adds his comments on the NY Times story about the NIMBY phenomenon in Hawaii.

• Jesse Souki at Hawaii Land Use Law blog digests HAWSCT's latest water law decision, In re Contested Case Hearing on the Water Use Permit Application Filed by Kukui (Molokai), Inc., No. 24856 (Dec. 26, 2007), here.  Jesse also comments about Honolulu's proposal for an "affordable housing" exaction here.

• Jay Fidell at Hawaii Public Radio recently had a ThinkTechHawaii program on the possibilities for a constitutional convention.  Podcast here.  HPR news has posted a summary podcast here.

• In Bering Strait Citizens for Responsible Resource Development v. U.S. Army Corps of Engineers, No. 07-35506 (9th Cir. Jan. 3, 2008), the Ninth Circuit upheld a gold mining permit issued pursuant to the Clean Water Act.

New HAWSCT Water Law/Public Trust Decision

Haven't had a chance to read and digest it yet, but the Hawaii Supreme Court has issued a new opinion on water rights and the public trust, In re Water Use Permit Application Filed by Kukui (Molokai), Inc., No 24856 (Dec. 26, 2007).  More details to follow.