2009

This just in: the Hawaii Intermediate Court of Appeals has issued an opinion in Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175, a case we recently analyzed here.

We conclude that (1) Plaintiffs and the class they represent had no vested property rights to future accretions to their oceanfront land and, therefore, Act 73 did not effect an uncompensated taking of future accretions; and (2) Act 73 effectuated a permanent taking of littoral owners’ ownership right to existing accretions to the owners’ oceanfront properties that had not been registered or recorded or made the subject of a then-pending quiet-title lawsuit or petition to register the accretions.

Accordingly, we vacate that part of the PSJ order which concluded that Act 73 took from oceanfront owners their property rights in all future accretion that was not proven to be the restored portion of previously eroded land. We…

Continue Reading HAWICA: No “Vested Right” To Beachfront Accretion

On February 25, 2010, from 1:30 – 3:30 p.m. Eastern (12:30 CT, 11:30 a.m. MT, 10:30 PT, and 8:30 HST), my colleague and law partner Mark Murakami will be moderating a teleconference sponsored by the ABA Section of State and Local Government Law and the ABA Center for Continuing Legal Education: Beyond Gun Control: McDonald v. City of Chicago and Incorporation of the Bill of Rights.

In March 2010, the U.S. Supreme Court is scheduled to hear arguments in McDonald v. City of Chicago,a case asking whether the Fourteenth Amendment’s Privileges orImmunities Clause or the Due Process Clause makes the Second Amendmentapplicable to the states and local governments. It is shaping up to beone of the most important cases of the court’s term and it could usherin a new era in constitutional jurisprudence.

Thecase is a challenge to a Chicago ordinance prohibiting possession ofhandguns in the home, but the…

Continue Reading Mark Your Calendars 2/25/2010: ABA CLE On McDonald Case

Here’s one for all you CEQA mavens.

The California Supreme Court has determined that a denial of a conditional use permit to operate a private airport south of Sacramento is not a “project” under the California Environmental Quality Act. Sunset Sky Ranch Pilots Ass’n v. County of Sacramento, No. S165861 (Dec. 28, 2009).

Elk Grove airport has been around for a while (since 1934), when the surrounding area was most likely devoted to farming, not housing. We’re guessing that this one, like many rural airports, originally serviced crop dusting planes. By 2004, however, the nature of the area had changed, and the owner’s 5-year CUP was expiring. The owner applied for renewal.

The County denied renewal because the airport was “no longer … compatible with its surroundings.” One look at the aerial photo below should tell you this means residential development. People generally do not like airplanes buzzing overhead…

Continue Reading Cal Supremes: Denial Of CUP For Private Airport Not A “Project” Requiring Environmental Review

The holiday brings “light blogging” as they say, so instead of a substantive post, we’re listing some of our favorite quotations about property rights, eminent domain, and the like.

Have any of your own? Send them, and I’ll post.

Such difficulties indicate that the dichotomy between personal liberties and property rights is a false one. Property does not have rights. People have rights. The right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is, in truth, a “personal” right, whether the “property” in question be a welfare check, a home, or a savings account. In fact, a fundamental interdependence exists between the personal right to liberty and the personal right in property. Neither could have meaning without the other. That rights in property are basic civil rights has long been recognized.

Lynch v. Household Finance Corp., 504 U.S.

Continue Reading Favorite Property Quotes

Yet another year has comeand gone — our blog’s fourth — so it’s time for ourannual summary of the past year’s highlights in land use law and other topics we cover.

Like 2008, it was mostly a year of infill and incrementaldoctrinal shifts, with a couple of sea changes thrown in forexcitement: the Ninth Circuit finally ditched Armendariz andrecognized the validity of substantive due process in land use cases;the Hawaii Supreme Court came out strongly in favor of property owner’srights in eminent domain proceedings, holding that courts should notsimply take the government’s word that a taking is for public use, andrequiring the government to bear the economic burden when its attemptsto take property fail; the Hawaii intermediate appellate court heldthat there is no private right of action under the state land use laws.

It was also a year in which certain issues kept coming back: Williamson Countyripeness (the trending…

Continue Reading 2009 Land Use In Review

Forthose of you stuck in the office today, our annual Christmas Eve contest: I’ll send to thefirst three people who email me today their very own “limited edition”of my firm’s extra-large, cobalt blue coffee mug, shownbelow.

(Don’t forget to include your name and postal address in your email.)

A happy and safe holiday to all.

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Continue Reading Office Swag Contest Part III

WavesWith all that has been going on lately (SCOTUS arguments in the judicial takings case, New York’s courts issuing two big eminent domain decisions, etc.), we haven’t had the opportunity to summarize the oral argument in a very important Hawaii case.

Last month, the Hawaii Intermediate Court of Appeals heard arguments in the case about the taking of beachfront property, Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175.[Disclosure: we filed an amicus brief supporting the property owners, available here.]

Since there’s no official written transcript of Hawaii state courtappellate arguments, only an audio recording, we’re going toexperiment with a different approach than we’ve taken before, and embedsnippets of the recording into our written commentary, rather than attempt to transcribe the recording.

This is a rather long post, so if you’d rather just listen to our analysis along with the snippets, stop reading now

…
Continue Reading Taking Accretion By Legal Erosion: Summary Of The Oral Arguments In The Hawaii Beach Takings Case (Podcast)

Trying to stop a taking of your property? You may have options in addition to a “public use” challenge, as was recently noted here. In this video, Albany Law School’s Amy Lavine details a potential problem with the bonds for the Atlantic Yards project in Brooklyn, which is the subject of a multi-jurisdictional eminent domain brawl between property owners and neighborhood residents on one side, and a private developers and the redevelopment authority on the other. The New York Court of Appeals recently ruled against the property owners on their claim their properties are not blighted, but this latest question may put the kibosh on the project. Don’t win on public use? Go for the financing.

More on the issue here, from Atlantic Yards Report. For a broad critique of “economic development” takings, including Kelo and Atlantic Yards, see Eminent Domain Abuse: The Gifts That Keep On Giving…

Continue Reading Yet Another Way To Battle Eminent Domain…

Today, the Hawaii Supreme Court filed this Order Granting and Accepting Application for Transfer (Dec. 21, 2009), in County of Hawaii v. C&J Coupe Family Ltd. P’ship, transferring the appeal from the Intermediate Court of Appeals. [Disclosure: my Damon Key colleagues and I represent the property owners in this case.]

This is the property owners’ appeal of the County of Hawaii’s attempts to take a Kona family’s property. The first round of appeals resulted in County of Hawaii v. C&J Coupe Family Ltd. P’ship, 119 Haw. 352, 198 P.3d 615 (2008) (available here), which held that a property owner has a right to challenge thegovernment’s assertion that a taking is for public use. In reviewing ataking, courts have an obligation to take seriously a property owner’sclaim that the government’s stated public purpose is a pretext maskingits true purposes. The court held that substance matters, not form,when government…

Continue Reading HAWSCT To Hear Pretext And Private Benefit Appeal

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Last year, Professor Gideon Kanner tuned us in to a folk song apropos of eminent domain, “They’re Moving Father’s Grave to Build a Sewer” by the Clancy Brothers (sadly, earlier this month we lost Liam, the last of the Clancy Brothers).

They’re moving father’s grave to build a sewer,
They’re moving him regardless of expense.
They dug up his remains,
To put in five-inch drains,
To irrigate some posh bloke’s residence.

Well, it looks like life has imitated art. According to this story in the Chicago Tribune, the city can exercise eminent domain to acquire a 6.3 acre cemetery in order to expand O’Hare airport. The city will “transfer” (whatever that means) 900 graves after acquisition.

Now what’s the use of having a religion,
If when you’d dead your troubles never cease.
If some posh city chap,
Wants a pipeline to his privy,
They’ll never let a British workman Continue Reading Life, And Eminent Domain, Imitiate The Clancy Brothers