The property owner has filed its brief in oppositionto the County of Maui’s motion for reconsideration of the court’s recent decision in the federal court challenge to the County’s 40-50% affordable housing exaction, Kamaole Pointe Development LP v. County of Maui, No. 07-00447 DAE. We wrote about the case earlier here (contains a link to the complaint), and analyzed the legal problems with the ordinance under state law here.Continue Reading Opposition To Reconsideration Motion In Maui Affordable Housing Exaction Case
July 2008
Ninth Circuit: “Lawyers Must Eat, So They Generally Won’t Take Cases Without A Reasonable Prospect Of Getting Paid.”
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In Moreno v. City of Sacramento, No. 06-15021 (9th Cir. July 28, 2008), the Ninth Circuit clarified the rules for calculating “prevailing party” attorneys fees in civil rights cases under 42 U.S.C. § 1988. The district court rejected the plaintiff’s claim, and reduced both the number of hours the plaintiff’s attorney claimed, and the hourly rate charged. The Ninth Circuit reversed, holding that before the district court could simply whack hours and rates, it must articulate its specific reasons for doing so.
The opinion was authored by Judge Kozinski, so it’s an enjoyable read and I won’t go into details since you can read the full analysis yourself here. There are some enjoyable and informative quotes worth remembering, however:
Lawyers must eat, so they generally won’t take cases without a reasonable prospect of getting paid. (p. 9522)
By and large, the court should defer to the winning…
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A noteworthy case from the North Carolina Court of Appeals about the limits of Euclidean zoning. Although the decision was issued in March 2008, it seems no one else has posted on the case, so we will.
In City of Wilmington v. Hill, 657 S.E.2d 670 (N.C. Ct. App. 2008), the court struck down a local ordinance that required the owner of a garage apartment to reside either inthe main residence or the apartment. When his permit to build a garage apartment was denied and he was cited for violation of the ordinance, the property owner asserted the owner-occupancy requirement was an unconstitutional regulation of his ownership of the property.
Relying on Graham Court Assoc. v. Town of Chapel Hill, 281 S.E.2d 418 (N.C. Ct. App. 1981), the court held that while the zoning power extends to regulating the use of property, it does not allow the…
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The County of Maui has asked the federal court to reconsider its recent order granting in part and denying in part the County’s summary judgment motion. A Maui property owner challenged the County’s “workforce housing” exaction ordinance, which requires a property owner to commit 40% to 50% of the unitsin most new housing developments to below-market-rate ownership orrental. Kamaole Pointe Development LP v. County of Maui, No. 07-00447 DAE. The plaintiff challenged theordinance under the Nollan/Dolan doctrine of unconstitutional exactions, which requires the governmentto show a substantial nexus between the exaction and some problemcaused by the property owner before the government may demand tributeas a condition of development, and that the exaction is roughly proportional to the problem.
The court held that the plaintiff’s Nollan/Dolan claims are takings claims that are not ripe under Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S.
State’s Reply in Ceded Lands Case
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The State of Hawaii has filed its Reply Brief to the Office of Hawaiian Affairs’ Brief in Opposition in the “ceded lands” case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert.petition filed Apr. 29, 2008). The State has sought a writ ofcertiorari to review of the decision by the Hawaii Supreme Court in Office of Hawaiian Affairs v. Housing and Community Dev. Corp. of Hawaii,117 Haw. 174, 177 P.3d 884 (Jan. 31, 2008).
In that case, theHawaii Supreme Court, relying on the “Apology Resolution,” enjoined theState of Hawaii from conveying 1.2 million acres of state-owned landuntil a political settlement is reached with Native Hawaiians about thestatus of that land. The Reply starts off by pointing out:
Respondents do not even dispute that the Hawaii Supreme Court was wrong on the merits in construing the federal Apology Resolution to strip the State of essential attributes of sovereignty over…
PING: blu ray playerURL: http://3dwise.co.uk/IP: 108.174.194.111BLOG NAME: blu ray playerDATE: 02/06/2013 01:46:39 PMinversecondemnation.com: CFC: No “Border Patrol” Servitude
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In D & D Land Holdings v. United States, No. 06-877L (filed under seal: June 25, 2008, reissued: June 30, 2008), the Court of Federal Claims held the landowner’s claim that the Border Patrol’s activities on its land resulted in a compensable Fifth Amendment taking was not barred by the six-year statute of limitations, and that the landowner had a property right to keep Border Patrol agents off its property. The CFC denied the federal government’s motions to dismiss and for summary judgment. The court summarized the plaintiff’s complaint:
[P]laintiff claims that defendant’s construction of a border fence between the United States and Mexico resulted in the channeling of illegal immigrants onto its property “where they can be rounded up, arrested, and deported.” According to plaintiff, Border Patrol agents utilize its property for these purposes on an “almost daily” basis.
Slip op. at 1 (citiation omitted). The most interesting…
Protesting Eminent Domain Abuse
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An interesting story in the LA Times about eminent domain abuse and free speech in St. Louis, Missouri, “Political protest hits a brick wall.” The story details the conflict between a property owner who commissioned a two-story mural on the side of a building that says “End Eminent Domain Abuse” and city officials who have asked a federal court to hold that it violates the city’s restrictions on the size of signs. The owner claims its not the size that offends the city mothers and fathers, but the message. The story has a great big photo of the mural, so you can decide for yourself.Continue Reading Protesting Eminent Domain Abuse
Washington (State) Court Of Appeals: One-Size-Fits-All Open Space Regulation Is Not Roughly Proportional
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In Citizens’ Alliance for Property Rights v. Sims, No. 59416-8-1 (Wash. Ct. App. July 7, 2008), the Court of Appeals of the State of Washington held that a county ordinance which prohibited a landowner from clearing 50% to 65% of his property violated a state statute prohibiting counties from imposing a “tax, fee, or charge” on land development.
The court relied on Isla Verde Int. Holdings, Inc. v. City of Camas, 49 P.3d 867 (Wa. 2002) to find that King County Ordinance 15053 §14 violates the prohibition on taxing land development in Rev. Code of Washington 82.02.020. That statute provides, in part:
Except as provided in RCW 82.02.050 through 82.02.090,no county, city, town, or other municipal corporation shall impose anytax, fee, or charge, either direct or indirect, on the construction orreconstruction of residential buildings, commercial buildings,industrial buildings, or on any other building or building space orappurtenance…
Brief in Opposition in Ceded Lands Case
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The State of Hawaii Office of Hawaiian Affairs has filed its Brief in Opposition, arguing the U.S. Supreme Court should not review the “ceded lands” case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert.petition filed Apr. 29, 2008). The State has sought a writ of certiorari to review of the decision by the Hawaii Supreme Court in Office of Hawaiian Affairs v. Housing and Community Dev. Corp. of Hawaii,117 Haw. 174, 177 P.3d 884 (Jan. 31, 2008).
In that case, theHawaii Supreme Court, relying on the “Apology Resolution,” enjoined theState of Hawaii from conveying 1.2 million acres of state-owned landuntil a political settlement is reached with Native Hawaiians about thestatus of that land.
The Question Presented by OHA’s BIO naturally frames the issue differently than the State did in its Petition:
Whether the Hawaii Supreme Court acted within its authority in relying upon Hawaii’s laws…
Op-Ed on GMO Algae Case
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Check out Jay Fidell’s op-ed in the Honolulu Advertiser, “Appeals court decision threatens our biotech sector” about the recent Intermediate Court of Appeals decision in Ohana Pale Ke Ao v. Bd. of Agriculture, State of Hawaii, No. 27855 (May 21, 2008).
In that case, the ICA held that the state must complete an environmental assessment (EA) prior to approving a permit allowing the importation of genetically engineered algae. Jay writes:
The case involves a permit for importation of a geneticallyengineered algae, a choice target of environmental activists. But thecourt decision is not limited to genetically modified organisms: Itcovers all animal and plant organisms, GMO and otherwise. And itdoesn’t affect just permit applications — it also affects permitsalready granted for organisms already in the state. Agriculturalresearch and cultivation also will undoubtedly be affected. Hard casesmake bad law.
The retroactive nature of the decision reminds usof the Superferry. There, the applicant did everything the Departmentof Transportation asked for and got its approval. Then, years later,the court imposed additional requirements. How different is that fromwhat happened here? The applicant here did everything Agriculture askedfor and got its permit. Then, years later, the court imposed additionalrequirements. How can you rely on what government tells you? How canyou do a business plan? How can you get investors?
Our summary of the decision here.
Continue Reading Op-Ed on GMO Algae Case