September 2008

Professor Kent Schooland has posted “Eminent Domain and the Eighth Commandment,” a piece with his thoughts about the morality of condemning property and the system of “just compensation.”

Given the realities of eminent domain, perhaps we should prepare our children with relevant civics lessons for the playground. Whena gang of kids wants to grab a pretty ring off the finger of a littlegirl, they can avoid annoying accusations of “theft” by following a fewsimple steps:

1) The gang must use the Latin words eminent domain, never “stealing.”

2) The gang must designate one of their members as leader—thus the “superior owner” of everything on the playground.

3)The gang leader must instruct his or her lieutenants to “tax” a fewcoins from other children on the playground in order to offer “justcompensation” to the girl when her ring is taken.

4)The gang leader must explain that his actions are for…

Continue Reading The Fifth Amendment and the Eighth Commandment

Three more amicus briefs have been filed in Winter v. Natural Resources Defense Council, Inc., No. 07-1239, the case about the Navy’s use of mid-frequency active (MFA) sonar in training exercises off the California coast:

Arguments are scheduled for October.  Other briefs in the case, including the amicus brief we filed on behalfof nine retired Admirals and several service support groups, are postedhere.Continue Reading Further (Final?) Amicus Briefs in Navy Sonar Case

Some interesting items from around the land use law blogosphere:

  • A write up of an Eleventh Circuit (which covers Alabama, Florida, and Georgia) decision striking down as unconstitutional a municipal ordinance that prohibited national chain retail stores because it violates the dormant Commerce Clause.  This could be a very important case on the “big box” and “formula retail” issues. More from Georgia Zoning Blog.
  • Charley Foster has a series of posts about a reporter’s privilege to trespass on private property, and how it may relate to an ongoing controversy about the State of Hawaii Historical Preservation Division and native Hawaiian remains on a construction site on Kauai.  Start at Planet Kauai.

Continue Reading Land Use Law Round-up

The Ecological Society of America has filed a brief amicus curiae urging the Supreme Court to uphold the Ninth Circuit’s injunction in Winter v. Natural Resources Defense Council, Inc., No. 07-1239, the case about the Navy’s use of mid-frequency active (MFA) sonar in training exercises off the California coast:

In the case below, the district court and the Ninth Circuit both determined that the U.S. Navy had likely violated the National Environmental Policy Act (NEPA) by failing to issue an environmental impact statement for its ongoing training exercises off the Southern California coast. The courts agreed with the Navy’s own environmental assessment that its use of mid-frequency active sonar would irreparably harm various whale species. On that basis, the district court issued—and the Ninth Circuit affirmed—a carefully tailored injunction that allowed the training exercises to continue using appropriate mitigation measures while the Navy conducted its environmental impact statement.

Continue Reading Ecological Society Amicus Brief in Navy Sonar Case

The transcript of the June 2, 2008 arguments in the federal lawsuit challenging Maui’s affordable (“workforce”) housing exaction has been released. That hearing resulted in a lengthy opinion by the District Court holding that the plaintiff’s Nollan/Dolan claims were not ripe, and a recent order holding that the facial due process and equal protection claims should be dismissed.

The most interesting part of the hearing was when the county admitted the motivation for the 40-50% exaction was to not give all infrastructure away to “millionaires from the Mainland,” or even “millionaires on Maui.”  The court, as one might expect, had a bit of difficulty with that reasoning:

MS. D’ENBEAU: And this is for people, good solid middle income people who find themselves priced out of the market on Maui. So the county council in its wisdom decided, All right, since we have limited water, we have limited roads, …

Continue Reading Transcript of Arguments in Maui Affordable Housing Exaction Case

Ilh Insurance Law Hawaii, the law blog authored by my Damon Key colleagues Robert Harris and Tred Eyerly which covers insurance coverage issues, has been selected as one of LexisNexis’ Top 50 Blogs for Insurance. 

“These blogsites contain some of the best writing out there on coverage,catastrophic loss, regulatory compliance, life insurance, health careand insurance issues in general. They contain a wealth of informationfor the insurance community with timely news items, practicalinformation, expert analysis, frequent postings and helpful links toother sites.

These blogsites also show us how insurance issuesinteract with politics and culture. Moreover, they demonstrate howbloggers can impact the world of insurance law and insurance industryissues.”Continue Reading Insurance Law Hawaii Named a “Top 50 Blog for Insurance”

The US District Court for the District of Hawaii has granted (in part) the County of Maui’s motion for reconsideration of the court’s earlier order granting in part and denying in partthe County’s summary judgment motion.  Here’s a copy of the court’s latest order.

The court entered summary judgment in favor of the county on the plaintiff’s facial equal protection and facial due process claims, and allowed the “class of one” equal protection claim, and the as-applied equal protection and due process claims to proceed. 

The case involves a Maui property owner’s challenge to the County’s “workforce housing” exaction ordinance, which requires aproperty 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…

Continue Reading Court Strikes Facial Due Process and Equal Protection Claims in Maui Affordable Housing Exaction Case

Upcoming Events and Conferences

May 4, 2018
 
Arizona Condemnation Summit XXII (Phoenix, AZ) 
 
April 19-22, 2018
 

Past Events and Conferences

January 2018
 
35th Annual ALI-CLE Eminent Domain and Land Valuation Litigation Conference (Charleston, South Carolina) – Co-planning Chair and faculty.
October 5-8, 2017
August 11, 2017

A modest but very knowledgeable crowd joined us today at the ABA Annual Meeting in New York for a panel discussion and analysis of

…
Continue Reading Speaking and Conference Faculty

Mark your calendars for Saturday, September 27, 2008.  Ka Huli Ao Center for Excellence in Native Hawaiian Law at the University of Hawaii School of Law will be presenting a workshop “Hawaii State Historic Preservation Laws: Reclaiming the Past, Shaping the Future.” 

I will be speaking on “Background Principles and Paradigm Shifting: The Role of Property Rights in Historic Preservation Laws.”

The other speakers will be Dr. Kehau Abad, Oahu Island Burial Council; Dawn N.S. Chang, Kuiwalu; Prof. Carl C. Christensen, William S. Richardson School of Law; Dr. Thomas S. Dye, T.S. Dye and Associates; Moses Haia, Esq., Native Hawaiian Legal Corporation; Dr. Holly McEldowney, DLNR, Division of State Parks; Nancy McMahon, DLNR, Historic Preservation Division; Kai Markell, Office of Hawaiian Affairs; and William M. Tam, Esq., Alston Hunt Floyd & Ing. 

The keynote speaker will be Dr. Patrick Kirch, Departments of Anthropology and Integrative Biology, University of…

Continue Reading Upcoming UH Law School Workshop on Preservation Laws

Is a determination by the Corps of Engineers that property contains “waters of the United States” and is therefore subject to regulation under the Clean Water Act a “final agency action” subject to judicial review under the Administrative Procedures Act?  According to the Ninth Circuit, no. 

In Fairbanks North Star Borough v. U.S. Army Corps of Engineers, No. 07-35545 (Sep. 12, 2008), Fairbanks wanted to develop a parcel for a playground, athletic fields, and associated infrastructure, and asked the Corps for a determination whether any of the property was “wetlands.”  The Corps replied that the entire parcel was wetlands and was subject to regulation under the Clean Water Act.  In other words, before Fairbanks could place any fill material on the property, it must obtain a section 404 permit from the Corps. Fairbanks exhausted its administrative remedies, then challenged the determination in court asserting the wetlands determination was erroneous.…

Continue Reading Ninth Circuit: Court Has No Jurisdiction to Review Corps’ Clean Water Act Jurisdictional Determination