April 2007

Waves

Today, I filed an amicus brief (750k pdf) in the appeal regarding “Act 73,” the state statute (codifed here and here) which declared that shoreline land naturally accreted belongs to the State of Hawaii and is public property.

Act 73 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.

The trial court held that Act 73 was unconstitutional and violated the Hawaii takings clause, article I, § 20 of the Hawaii Constitution.  The court enjoined enforcement of the Act, and the State appealed to the Hawaii Intermediate Court of Appeals.  My brief deals with two points:

First, the right to future accretions is property protected by the Hawaii and U.S. Constitutions from…

Continue Reading ▪ Amicus Brief in Accretion Appeal: Heads, the State Wins; Tails You Lose

The Washington (state) Supreme Court, in Sleasman v. City of Lacey (No. 77590-7, Feb. 8, 2007), decided what it means to have a developed parcel.  Actually, the court determined what the terms “undeveloped” and “partially developed” mean within the context of a local ordinance that regulates tree removal on such property.  The opinion is a good primer on what it means to own “developed” vs “undeveloped” property, even though it is Washington law-specific, since it discusses decisions from other jurisdictions.  Bottom line, according to the court, is that development takes place when the owner makes raw land suitable for residential or commercial use.  Best line in the opinion is the last, however:   

Lacey claims attorney fees under RCW 4.84.370 as a prevailing party.  But it isn’t.

If only all court opinions were that direct.Continue Reading ▪ What is “Developed” Property?

The transcript of the oral argument in Sole v. Wyner (No. 06-531) (docket listing here) has been posted on the SCOTUS web site here.  That case presents the issue of whether a party who wins apreliminary injunction — but ultimately loses the case — has”prevailed” under a federal statute that allows a “prevailing party” to collect its legal fees and costs from the other side when federal civil rights are vindicated by an action pursuant to 42 USC § 1983.

That case arose in the First Amendment free speech context, but the decision will be important to property owners and regulatory authorities since the Fifth and Fourteenth Amendment’s property protections are federal civil rights, and 42 USC  § 1983 is often the vehicle by which these rights are protected.  Background on the case here, and (from SCOTUSblog) here.

The colloquy between the Justices and…

Continue Reading ▪ It Ain’t Over ‘Til It’s Over: Transcript of Argument in Attorney’s Fees Case

In Hawaii Home Infusion Assoc. v. Befitel, (No. 27256, Apr. 16, 2007), the Hawaii Supreme Court held that the venue provisions in the declaratory judgment section of the Hawaii Administrative Procedures Act, Haw. Rev. Stat. § 91-7, are jurisdictional, and such actions must be brought in the judicial circuit in which the petitioner is domiciled. 

The critical language is set forth in the statute, which allows “any interested person” to seek a judicial declaration that an agency’s rules are illegal:

§ 91-7  Declaratory judgment on validity ofrules.  (a)  Any interested person may obtain a judicial declaration as tothe validity of an agency rule as provided in subsection (b) herein by bringingan action against the agency in the circuit court of the county in whichpetitioner resides or has its principal place of business.  The action may bemaintained whether or not petitioner has first requested the agency to…

Continue Reading ▪ HAWSCT: Venue in Declaratory Actions on Legality of Agency Rules is Jurisdictional

Oral arguments in Cienega Gardens v. United States (Fed. Cir. No. 06-5051, Apr. 2, 2007), a case involving the application of the Penn Central ad-hoc test for regulatory takings, have been posted in two parts on the Federal Circuit’s web site: part 1 (68mb mp3), and part 2 (7mb mp3).

Also posted is the oral argument in the related case, Chancellor Manor v. United States (Fed. Cir. No. 06-5052, Apr. 2, 2007) here (39mb mp3).Continue Reading ▪ Federal Circuit Arguments on the Penn Central Factors (mp3)

UH Law Professor Carl Christensen has kindly invited me to discuss takings law with the students in his historic preservation seminar on Monday.  I think a good starting point is the granddaddy of historic preservation/regulatory takings decisions, Penn Central Trans. Co. v. New York City, 438 U.S. 104 (1978), a case that highlights the competing concerns when the public’s desire to preserve a historic structure collides with a landowner’s desire to make reasonable use of it.

That case also gave us the “ad hoc” (aka Penn Central) three-part regulatory takings standard that has confounded the courts ever since.

In engaging in these essentially ad hoc, factual inquiries, the Court’s decisions have identified several factors that have particular significance. The economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations are, of course, relevant considerations. See…

Continue Reading ▪ Takings and Historic Preservation: Penn Central

To all those who attended today’s sessions on Practical Guide to Land Use and Zoning, thank you. 

Here is the upcoming attorney’s fee case in the US Supreme Court that I mentioned, the Hawaii fee-shifting statute in cases of “development” without a permit in environmental matters, and California’s Ehrlich v. City of Culver City case, where the court held that the Nollan/Dolan standards apply to non-property exactions, as well as governmental demands for property:

As we explain, we conclude that the tests formulated by the high court in its Dolan and Nollan opinions for determining whether a compensable regulatory taking has occurred under the takings clause of the Fifth Amendment to the federal Constitution apply, under the circumstances of this case, to the monetary exaction imposed by Culver City as a condition of approving plaintiff’s request that the real property in suit be rezoned to permit the…

Continue Reading ▪ Land Use and Zoning Seminar

In United States v. 191.07 Acres of Land (Martinek) (No. 04-35131, Apr. 4, 2007), the Ninth Circuit addressed two interesting issues in the context of a federal taking of unpatented gold- mining claims in Alaska’s Denali National Park.

The first is a question of appellate procedure: whether a party waives the right to appeal the denial of a demand for a jury trial by not seeking an immediate interlocutory appeal. 

The government instituted eminent domain proceedings against the landowner (which entitles the landowner to request a jury trial on the issue of just compensation), and the landowner filed a claim for inverse condemnation (which does not carry with it the right to jury trial).  The trial court held that the landowner had only a single claim for compensation, and the parties stipulated that the taking occurred on a date earlier than the government’s declaration of taking.  Consequently, the court held…

Continue Reading ▪ Ninth Circuit on Jury Trials in Federal Eminent Domain and Inverse Condemnation Valuations

In United States v. 191.07 Acres of Land (Martinek)(No. 04-35131, Apr. 4, 2007), the Ninth Circuit set out a good definition of “inverse condemnation” in the context of when a property owner has a right to a jury trial for federal takings. 

    Where the [condemnor] does not acquire privately owned land statutorily but instead physically enters into possession or institutes regulations that restrict the land’s use, the owner has a right to bring an “inverse condemnation” action to recover the value of the land.  Kirby Forest [Inds., Inc. v. United States, 467 U.S. 1, 4-5 (1984)].  “Such as suit is ‘inverse’ because it is brought by the affected owner, not by the condemnor.  The owner’s right to bring such a suit derives from the self-executing character of the constitutional provision with respect to condemnation.”  Id. at 5 n.6

(slip op. at 3865).  In Martinek…

Continue Reading ▪ What is “Inverse Condemnation?”