2007

Jesse Souki has some interesting thoughts on the recent Intermediate Court of Appeals decision in  E & J Lounge Operating Co. v. City and County of Honolulu, No. 27940 (Dec. 24, 2007), over at his Hawaii Land Use Law blog:

Prior to the instant case, Hawaii courts strained to find a contested case before it granted standing.  See, e.g., Mahuiki v. Planning Comm’n, 65 Haw. 506 (1982)(opining that “a public hearing, conducted pursuant to public notice,has been deemed a ‘contested case’ within the meaning of HRS § 91-1”).

Jesse then noted that the ICA determined that while an administrative appeal under chapter 91 may not be available, the courts have “inherent power” to review agency decisions, and that application of this rule may result in better opportunities for judicial review than the limited review of the record available in an administrative appeal:

A court’s “inherent power of review”…

Continue Reading Administrative Appeal or Original Jurisdiction Lawsuit?

Government Gone Wild: the sad case of Wilkie v. Robbins. In perhaps the low point of 2007, the U.S. Supreme Court held that alandowner who was subject to systematic harassment by governmentofficials because he had the temerity to refuse to give up a publiceasement on his land without just compensation did not have acomprehensive federal remedy.

Details of the case here, and an op-ed I wrote about the decision for the Honolulu Advertiser, “Little-noticed decision erodes property rights,” is posted here.Continue Reading 2007 in Review: Government Gone Wild

Another year has come and gone.  In Hawaii, two of the hottest “landuse” related topics in the public arena remain public beach access andtransient vacation rentals.  Yet, there wasn’t much to report in theway of developments in the law in these areas, as the courts did notaddress these issues directly in any decisions.   Nor were there anytrue “blockbuster” decisions from the U.S. or Hawaii Supreme Courts. No Kelo, no Lingle, no Rapanos.  But there was a fair amount of sorting out in the lower courts, and the lack of attention-grabbing cases certainly it doesn’t mean that 2007 wasn’ta very interesting year in land use law. 

Over the next several days, I’ll post some of the highlights (or lowlights, depending on your point ofview) in land use law and other topics covered oninversecondemnation.com in 2007.  Look for the category “2007 in review” linked on the right, or visit…

Continue Reading 2007 Land Use in Review

In a story dated December 30, 2007 in the New York Times Travel section, “Not in My Tropical Backyard,” Christoper Pala ties together several seemingly-unrelated threads: the Hawaii Superferry, development on Molokai, the Hokulia project on the Big Island, and expanded resort development on Oahu’s North Shore.  The only issue that seems to have been left out is the question of vacation rentals.  The unstated thesis seems to be that these events are spurred, in large part by “backlash” against tourists and related development, but that seems like only part of the vibe — and it may be more the “drawbridge protectionism” discussed in this post, and a perception that we’re nearing capacity and things just aren’t the way we remember them, than a specific anti-tourism or anti-outsider sentiment.  Continue Reading NY Times Catches a Recurring Vibe

Although the decision is not about land use, the Hawaii Intermediate Court of Appeals’ decision in E & J Lounge Operating Co. v. City and County of Honolulu, No. 27940 (Dec. 24, 2007) is worth a read since it analyzes when an agency is required to hold a “contested case” (an administrative trial) in processing license and permit applications, and when a public hearing may suffice.  The court held that an entitlement to a liquor license is a “privilege” not a right, because the liquor commission has broad discretion to determine whether to issue a license, and that since no property right was at stake, the commission was not required to conduct a contested case.Continue Reading What Is A “Contested Case”

In a case at the intersection of Kelo-style eminent domain and First Amendment church-state issues, the Pennsylvania Supreme Court in In re Condemnation of 1839 North Eighth Street, No. 36 EAP 2006 (Dec. 29, 2007), held that the taking of property designated as “blighted” pursuant to a redevelopment plan, and for a nominal price transferring it to a religious entity did not violate the U.S. Constitution’s Establishment Clause.

In 1968, a Philadelphia neighborhood which included the subject property was certified as “blighted” by the city’s planning commission.  Thirty-four years later, in 2002, a coalition of Catholic groups asked the city’s redevelopment authority to take 39 acres of the neighborhood, including the subject property, and turn it over to establish a “non-denominational, faith-based, not tuition based school.”  The city approved of the plan and condemned the property, listing the Catholic group as the developer.  The property owner objected…

Continue Reading PA Supreme Court Upholds Use of Eminent Domain to Take Private Property And Turn Over to Religious School

Thanks to Professor Patty Salkin for forwarding a recent $17 million inverse condemnation judgment from the Texas Court of Appeals.  Trail Enterprises, Inc. v. City of Houston, No. 10-05-00382-CV (Nov. 21, 2007).  It’s a short opinion without much background, so we don’t know what actions by the city resulted in Trail bringing suit, but it’s Houston, so it’s a safe bet that the case involves oil.  Apparently, the city passed an ordinance that prohibited or restricted Trail’s ability to drill.  The trial court held there was a taking, a jury determined compensation, but the court granted the city’s post-trial motion to dismiss for ripeness.

The issue on appeal was whether Trail’s claims were ripe since it challenged the regulation without first applying — and being denied — a drilling permit or a variance from the prohibition.  “Ripeness” in this context usually requires that a property owner file, and be…

Continue Reading Takings Claim Ripe Upon Enactment of Regulation, No Permit Application Necessary