Some interesting reports today:
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Thanks to Kona Blogger Aaron Stene for pointing out an article from West Hawaii Today, “County lawyers say fair share legal.”The article reports:
Council members who say Judge Ronald Ibarra’s 2007 ruling in a contested condemnation case invalidated the county’s fair share assessments are basing their argument on too specific a portion…
Although it was mostly a formality, the US Supreme Court today granted the acting US Solicitor General’s motion to present oral argument and for divided oral argument in the “ceded lands” case at next week’s arguments. The Obama Administration had asked to present oral argument as an amicus to support the State’s position, and to…
Here are the links to the cases that I spoke about in my session in today’s seminar “Supreme Court, Regulatory Takings and Eminent Domain Update.” Not all of the cases we discussed today are included below, so if you would like a link or more information about a case that is not listed, please email me at rht@hawaiilawyer.com and I will send it to you.
The majority opinion by Justice Acoba, joined by Justices Nakayama and Duffy is posted here:
We hold that (1) a landowner in a condemnationaction is entitled to damages under HRS § 101-27 where the property atissue is not finally taken in the context of a particular condemnationproceeding, irrespective of whether the government attempts to take theland through subsequent condemnation proceedings; (2) abatement doesnot apply where the relief sought in two concurrent actions is not thesame; and (3) although our courts afford substantial deference to thegovernment’s asserted public purpose for a taking in a condemnationproceeding, where there is evidence that the asserted purpose ispretextual, courts should consider a landowner’s defense of pretext. Therefore, (1) automatic denial of statutory damages under HRS §101-27in Condemnation 1 is vacated and the case remanded for a determinationof damages, (2) the court’s conclusion that Condemnation 2 was notabated by Condemnation 2 is vacated and the case remanded for adetermination of whether the public purpose asserted in Condemnation 2was pretextual.
Slip op. at 5. Here’s the concurring and dissenting opinion by Chief Justice Moon joined by Justice Levinson. The briefs in the case are available here: Opening Brief, Answering Brief of the County of Hawaii, Reply Brief. Disclosure: we represent the property owner.
- When a project not being built on state or county land meets the definition of “use” of such lands triggering chapter 343 environmental review – Nuuanu Valley Ass’n v. City & County of Honolulu, No. 28599 (Oct. 24, 2008)
- Illinois Supreme Court decision about the 3% “surcharge” on casinos, which was given to horse racing tracks. Empress Casino Joliet Corp. v. Giannoulias, No. 104586 (June 5, 2008)
- Is destruction of evidence seized from an innocent third party a taking? AmeriSource Corp. v. United States, No. 08-497 (cert. petition filed Oct. 15, 2008)
- Development Moratorium a Taking Under Lucas – Monks v. City of Rancho Palos Verdes, No. B201280 (Cal. Ct. App. Oct. 1, 2008)
- No private right of action to enforce zoning – The Hawaii Intermediate Court of Appeals, in Pono v. Molokai Ranch, Ltd.,119 Haw. 163, 194 P.3d 1126 (2008), held that a private party had nostanding to enforce the state’s land use laws. The Hawaii Supreme Courtrejected certiorari review of the case. Disclosure: we represent thelandowner. More here.
- Charles A. Pratt Constr. Co. v. California Coastal Comm’n (cert petition on Williamson County and Penn Central)
- Aspen Creek Estates, Ltd. v. Town of Brookhaven – New York Court of Appeals (comprehensive taking plan)
- City of Stockton v. Marina Towers LLC – Cal. Court of Appeal (details required in resolution of necessity)
- Resource Investments, Inc. v. United States– Court of Federal Claims (massive opinion and primer on regulatorytakings – erroneous exercise of jurisdiction as a temporary taking)
- Florida regulatory takings cases – Florida Supreme Court and District Courts of Appeals
- Substantive due process in the Ninth Circuit after Lingle – The Ninth Circuit Rediscovers Substantive Due Process in Land Use Cases
SCOTUSblog posts “Argument Preview: Hawaii v. Office of Hawaiian Affairs,” which is a summary of the case and the briefs of the parties:
This case has attracted considerable attention. Including the United States’s brief, seven amicus briefs were filed in support of the State, most notably a brief on behalf of thirty-two states…
As the Supreme Court oral argument in the “ceded lands” case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert.granted Oct. 1, 2008), draws nigh, public interest in the case is peaking. We will be covering the arguments, which begin at 10am EST (5am HST) on Wednesday, February 25, 2009. The Obama Administration will…
The Solicitor General has filed the United States’ Brief in Opposition in AmeriSource Corp. v. United States, No. 08-497 (cert. petition filed Oct. 15, 2008).
In that case, a pharmaceutical company whose legal prescription drugs were seizedas evidence against a third party by the federal government which thenlet the expiration date pass rendering the…
In a brief memorandum opinion, the New York Court of Appeals (the state’s highest court) today affirmed the Appellate Division’s decision in Aspen Creek Estates, Ltd. v. Town of Brookhaven, a case challenging a municipality’s ability to take property for farmland preservation. The court held:
Petitioner contends that the United States Supreme Court’s…
Some interesting reports filtering across my screen today:
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The Federalist Society has posted audio of a January 24, 2009 debate — The Apology Resolutions and the Akaka Bill — between Professor Gail Heriot and Professor Davianna McGregor which was held at the Western Conference at the Reagan presidential library in Simi Valley, California. Note: the file is a 15mb mp3.
