October 2008

What more could we possible say about the bizarre ripeness/issue preclusion Catch-22 brought on by Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985) that we haven’t said before, several times? The rule is unique to regulatory takings law and forces property owners alleging violation of their federal constitutional rights to litigate those claims exclusively in state court.

If a property owner goes to federal court in the first instance to vindicate its Fifth Amendment rights, it is told it is “too early” and must go to state court first on state law takings claims. When the property owner does so and then comes back to federal court to litigate the now-ripened federal takings claims, it is told it is it already litigated the federal claim (even if it expressly didn’t) and it is “too late.” In San Remo Hotel, L.P. …

Continue Reading Cert Petition: Overrule Williamson County

I don’t pretend to be an expert on the California Environmental Quality Act — 1700-page treatises are devoted to CEQA’s nuances — but I know enough to realize that the California Supreme Court’s decision in Save Tara v. City of West Hollywood, No. S151402 (Oct. 30, 3008) is an important one. The court framed the issue:

Under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.),1 a public agency must prepare an environmental impact report (EIR) on any project the agency proposes to “carry out or approve” if that project may have significant environmental effects (§§ 21100, subd. (a), 21151, subd. (a)). We address in this case the question whether and under what circumstances an agency’s agreement allowing private development, conditioned on future compliance with CEQA, constitutes approval of the project within the meaning of sections 21100 and 21151. We conclude that under some circumstances…

Continue Reading When Considering The Environmental Impacts of Tara, Tomorrow is Not Another Day

In Nuuanu Valley Ass’n v. City & County of Honolulu, No. 28599 (Oct. 24, 2008), the Supreme Court of Hawaii clarified when a project that is not being built on state or county land meets the definition of “use” of such lands triggering review under the Hawaii Environmental Policy Act, Haw. Rev. Stat. ch. 343. The developer of private residential land in urban Honolulu sought to subdivide the property, which required hooking up new drainage system to existing lines.

Section 343-5(a)(1) requires that”an environmental assessment shall berequired for actions that . . . [p]ropose the use of state or countylands,” and in earlier cases, the Court held that installation of a new drainage line beneath a public road qualified as “use” of state land, Kahana Sunset Owners Ass’n v. County of Maui, 86 Haw. 66, 947 P.2d 378 (1997); as did construction of an underpass beneath a…

Continue Reading HAWSCT Curtails Definition of “Use of State or County Lands” in Environmental Law

CWK This post is not about inverse condemnation, eminent domain, or land use law.  It is about my colleague, law partner, and friend Charles W. Key. Charlie died at home September 10, 2008. He was 79.

Charlie was a man of wry charm whose legacy in his community, with the Bar, and in our firm which bears his name, is secure. Prior to attending Stanford Law School, he served in the Navy as both an enlisted man and as an officer. He also served as President of the Hawaii State Bar Association, and was instrumental in “unifying” the Hawaii Bar, requiring that all lawyers become members. Charlie was elected as Hawaii’s delegate to the American Bar Association, and also was a member of the ABA Standing Committee on Ethics for many years. He was consistently recognized by his peers as among the Best Lawyers in Hawaii.

One of the proudest moments…

Continue Reading Charles W. Key (1929-2008)

The New York Times posts the obituary of Dorothy Miner, a key player in the case that resulted in Penn Central Trans. Co. v. New York City, 438 U.S. 104 (1978),the U.S. Supreme Court case that gave us the three-part “ad hoc” regulatory takings test:

She played an important role in the critical 1978 case of PennCentral Transportation Company v. New York City, which upheld thelandmark status of Grand Central Terminal and set national precedents.

Intimatelyfamiliar with preservation law, Ms. Miner was meticulous when makingher case — another way to put it was that she was a fierce, immovablestickler — and could infuriate allies as well as adversaries with herinsistence on principle and procedure.

“We spent eight hoursarguing over every sentence,” Leonard Koerner, the chief assistantcorporation counsel of New York City, said in recalling what it waslike to work with Ms. Miner at the print shop on…

Continue Reading Key Player in Penn Central Case Obit

Thanks to Professor Friedman’s Religion Clause blog for the post about the federal government seeking Supreme Court review of the Ninth Circuit’s decision in Buono v. Kempthorne, No. 05-55852 (Sep. 6, 2007). In that case, the Ninth Circuit invalidated a land swap on Establishment Clause grounds. The Solicitor General’s cert petition suggests two Questions Presented:

More than 70 years ago, the Veterans of Foreign Wars (VFW) erected a cross as a memorial to fallen service members in a remote area within what is now a federal preserve. After the district court held that the presence of the cross on federal land violated the Establishment Clause and the court permanently enjoined the government from permitting the display of the cross, Congress enacted legislation directing the Department of the Interior to transfer an acre of land including the cross to the VFW in exchange for a parcel of equal value. The…

Continue Reading US Seeks Cert Review in the Mojave Cross Case

A pharmaceutical company whose legal prescription drugs were seized as evidence against a third party by the federal government which then let the expiration date pass rendering the drugs worthless, has petitioned the U.S. Supreme Court to review the Federal Circuit’s decision denying compensation.  Amerisource Corp. v. United States, No. 08-497 (petition for cert. filed Oct. 15, 2008).  The petition presents a single Question Presented:

Whether it is a taking compensable under the Fifth Amendment for the  Government to seize (and not return) an innocent third party’s property for use as evidence in a criminal prosecution, if the property is not itself contraband, is not the fruits of criminal activity, and has not been used in criminal activity.

The petition is posted here.

In Amerisource, the Federal Circuit held that when an innocent party’sproperty is seized for use in a criminal prosecution but never used asevidence, no…

Continue Reading Cert Petition in AmeriSource: Government Destruction of Evidence Seized From Innocent Third Party A Taking?

In a lengthy opinion, the Hawaii Intermediate Court of Appeals in Pono v. Molokai Ranch, Ltd., No. 28359 (Oct. 21, 2008), held that the State Land Use Law, Haw. Rev. Stat. ch. 205, does not create a private right of action allowing for non-governmental enforcement of the law.  The court also held there is no private right of action to enforce the Molokai Community Plan. 

Judge Foley concurred, and would have held that the plaintiff did not exhaust its administrative remedies because it did not appeal the Public Works Director’s decision to the Board of Variances and Appeals.

Disclosure: my Damon Key colleagues Greg Kugle and Ken Kupchak represented Molokai Ranch.

More to follow after a chance to digest the opinion.  Continue Reading HAWICA: No Private Right of Action to Enforce Land Use Laws

A worthwhile article in the latest edition of The Urban Lawyer about settling land use disputes with processes that may not adhere strictly to the usual permit consideration procedures.  Here’s the summary from the ABA’s site:

Paul D. Wilson, Of Synagogues and Nude Juice Bars: Can a Municipality Settle Land Use Litigation Without a Permitting Process?, 40 Urb. Law. 535 (Summer 2008).This article examines conditional use permits and the appropriatenessof settlement agreements between municipalities and controversialzoning permit applicants. The author examines a recent ninth courtdecision, League of Residential Neighborhood Advocates v. City of LosAngeles, in which the court struck down a settlement agreement betweena city and an Orthodox Jewish synagogue wishing to locate in aresidential zone, finding that the settlement was not a substitute fora conditional use-permit. The author then examines several analogouscases which present variations of the issue and possible solutions formunicipalities.

The Urban Lawyer is…

Continue Reading Settling Land Use Litigation: Private Agreements and Public Process