January 2008

The Honolulu Advertiser reports that the Chamber of Commerce of Hawaii is advocating in favor of a bill limiting the “use” of a state or county road as a trigger to chapter 343 environmental review:   

The state Department of Transportation, responding to two previous Supreme Court rulings, asked the state Environmental Council early last year to generally exempt the private construction of driveways or the installation of utilities within state road right-of-ways from environmental assessments. The Supreme Court, in a 1997 decision involving the Kahana Sunset project on Maui and in a 2006 decision on the Koa Ridge project in Waiawa, found that projects that touch state road right-of-ways technically use state lands and trigger potential environmental assessments.

Section 343-5, as interpreted by the Hawaii Supreme Court, requires an agency to undertake an environmental assessment if an applicant’s project (broadly construed to include both the specific proposal and, as…

Continue Reading Butterfly Effects and Environmental Impact Statements

  • Today’s oral arguments in Missouri Supreme Court in the Tourkakis appeal, a case of an attempted taking for economic development, have been posted here (9mb mp3).
  • Background on the case is posted here by PLF on Eminent Domain, and the briefs are posted here.
  • Charley Foster at Planet Kauai has an interesting post on Hawaii’s automatic permit approval statute here. 

Continue Reading Eminent Domain and Land Use Round-up

An interesting discussion is going on over at Volokh Conspiracy about Professor Gideon Kanner’s critique (posted here and here) of journalist Jeffrey Toobin’s new book on the Supreme Court, particularly the section dismissing the reaction to Kelo as the product of right-wing reactionaries. 

The posts are worth reading for an inside look at what makes a Supreme Court case, especially the amicus process.  Don’t miss Kanner’s responses in the comments here, here, here, here, and his deconstruction of Berman, Midkiff, and Kelo here.

We filed amicus briefs in Kelo (supporting Mrs. Kelo, natch) and the regulatory takings case heard the same day, Lingle v. Chevron U.S.A., Inc.Continue Reading Somin on Kanner on Toobin on Kelo

Are rumors of the demise of the Ninth Circuit’s Armendariz doctrine greatly exaggerated, or is J.J. Hunsecker (Burt Lancaster)’s advice to Sidney Falco (Tony Curtis) in the noir classic Sweet Smell of Success more appropriate? 

What brings this to mind is the parting shot in the recently-issued opinion in Matsuda v. City and County of Honolulu, No. 06-15337 (Jan 14, 2008), where the Ninth Circuit panel — in a case involving a Contracts Clause claim which was brought together with a substantive due process claim — added:

Furthermore, we express no opinion as to whether our decision in Armendariz v. Penman,75 F.3d 1311 (9th Cir. 1996) (en banc), precludes the Lessees fromasserting a substantive due process claim in this case, where theContracts Clause provides a specific source of constitutionalprotection against the government conduct of which they complain.  Id. at 1318.

Slip op. at 411.  This looks like…

Continue Reading Amendariz: “You’re Dead Son. Get Yourself Buried.”

I’ve had a chance to review Matsuda v. City and County of Honolulu, No. 06-15337 (Jan 14, 2008), a decision by the Ninth Circuit on the Contracts and Due Process clauses, but which also involves how local governments exercise the power of eminent domain.  The case revolves around Chapter 38 of the Honolulu Revised Ordinances, which was the local version of the “land reform act” at issue in HawaiiHous. Auth. v. Midkiff, 467 U.S. 229 (1984) before it was repealed in 2005.

Background

Finding thatthe economic ills purportedly caused by the concentrated ownership of privatesingle-family residential property in Hawaii,Haw. Rev. Stat. ch. 516 allowed homeowner/lessees to petition the HawaiiHousing Authority to exercise eminent domain on the homeowner’s behalf andcondemn the fee simple interest underneath their homes from the lessor, andtransfer it to the lessee upon payment of just compensation.

After that statute was upheld by the U.S.

Continue Reading Deal Or No Deal: Ninth Circuit Says Honolulu May Have to Live Up to Its Eminent Domain Promises

The US Court of Appeals for the Ninth Circuit has issued an opinion in Matsuda v. City and County of Honolulu, No. 06-15337 (Jan 14, 2008), a case involving the city’s repeal of Chapter 38, Honolulu’s version of the “land reform act” at issue in Midkiff, allowing the conversion of condominium leases to fee simple absolute by eminent domain.   Leaseholders who were caught mid-process when Chapter 38 was repealed, brought claims under the Due Process and Contracts clauses.  The district court dismissed the claims under the reserved powers doctrine, but the Ninth Circuit reversed, and sent the case back for further proceedings.  I haven’t had a chance to digest it in full, but will post a complete rundown shortly. 

Update: complete summary of the opinion here.Continue Reading 9th Cir. on Due Process and Contracts Clause