June 2009

The Eminent Domain Law Blog, published by our colleagues at Owners’ Counsel of America, has summarized Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11, the takings and due process case which the U.S. Supreme Court agreed yesterday to review. 

Beachfront property owners along Florida’s Gulfcoast, have been tryingto stop an effort by local and state officials to restore the beachthrough renourishment, a process by which sand is dredged from theocean floor, transported through pipes and distributed along erodedbeach areas, in essence adding sand to widen the beach. This proposedbeach renourishment project would cover nearly seven miles of shorelineand widen the beach by approximately 210 feet in Destin, FL.

Akey issue in the litigation thus far, which has moved from CircuitCourt to the First District Court of Appeal to the Florida SupremeCourt, is that by adding sand to the waterfront and restoring thebeach,

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Continue Reading More Background On The Supreme Court’s Beachfront Takings Case

Here are links and other items of interest about Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009):

  • Dwight Merriam’s thoughts at IMLA’s Local Government blog.
  • Pacific Legal Foundation’s (the only organization to file an amicus at the cert stage) summary of the issues.
  • Law of the Land blog’s summary.

Continue Reading SCOTUS Beachfront Takings Case Links

In Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009), the US Supreme Court agreed to review a case that raises several important takings issues, including the issue of whether a court decision can take property. The ABA Journal’s July 2006 report “Up Against the Seawall” tells the backstory on the case and highlights other beach issues.

In Walton County v. Stop the Beach Renourishment, Inc., 998 So.2d 1102 (Fla. Sep. 29, 2008), the Florida Supreme Court held that a state statute which prohibits “beach renourishment” without a permit did not effect a taking of littoral (beachfront) property, even though it altered the long-standing rights of the owners to accretion on their land and direct access to the ocean. The cert petition presents these questions:

The Florida Supreme Court invoked “nonexistent rules of state substantive law” to…

Continue Reading SCOTUS To Review Beachfront Takings Case: Can A Court Decision “Take” Property?

I’ve received a few interesting comments and e-mails on an earlier post (“Why Hawaii Can’t Vote On Property Taxes”) about the Ohana Kauai property tax charter amendment and how it was declared unconstitutional by a 3-2 Hawaii Supreme Court.

Here’s one that I thought was worth moving from the below-the-fold comment section:

I know you’re addressing strict legal interpretations here at inversecondemnation.com, but I feel compelled to mention that giving the direct power to tax to the electorate does not necessarily mean that it will be exercised fairly and wisely. To deprive the electorate of ability to directly set tax policy through charter amendments does not deprive them of the ample power they have to effect tax policy through their choice of elected representatives and their ability to remove unresponsive representatives. It also permits elected representatives to make wise and balanced decisions fair to all taxpayers many of which have…

Continue Reading Further Thoughts On Property Taxes And Voting

In High court ruling on residency requested, the Maui News reports on Dupree v. Hiraga, No. 29464, the appeal of the decision by the State Board of Registration (County of Maui) which concluded that a Maui County councilperson who registered as a Lanai resident is actually a resident of Maui.

Attorneys for a Lanai man challenging County Council Member SolKaho’ohalahala’s claim of Lanai residency are applying for the case tobe transferred directly to the Hawaii Supreme Court.

Kaho’ohalahala’sappeal of a ruling that he is actually a resident of Lahaina – notLanai, from which he holds the residency seat on the council – ispending before the Intermediate Court of Appeals. But attorneys for hischallenger, Michael “Phoenix” Dupree, said the importance of the casejustifies a move to the Supreme Court, and asked for the case to beexpedited.

“Whether an individual who is registered as a residentof one district may register

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Continue Reading Report On Residency Challenge Appeal: Is Intending To Live Somewhere Enough To Be “Residing” There?

Earlier this week, the Supreme Court declined review of the Ninth Circuit’s decision in McClung v. City of Sumner, 548 F.3d 1219 (9th Cir. 2008). In that case, the Ninth Circuit held:

This casepresents an issue of first impression in this Circuit — whether alegislative, generally applicable development condition that does notrequire the owner to relinquish rights in the real property, as opposedto an adjudicative land-use exaction, should be reviewed pursuant tothe ad hoc standards of Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978), or the nexus and proportionality standards of Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994). We affirm, holding that the Penn Central analysis applies to the 12-inch pipe requirement. 

The Ninth Circuit’s opinion is available here. The Cato Institute which along with others filed an…

Continue Reading Cert Denied In Ninth Circuit Legislative Exactions Case

Faced with a budget shortfalls and declining revenue projections (and what level of government these days isn’t?), the Honolulu City Council voted today to raise property taxes and eliminate a property tax credit that would have softened the raise for some homeowners. See the reports here and here. It also voted to raise the bus fare from $2 to $2.50 for a single fare (with corresponding increases in monthly pass fares), up the vehicle weight tax 25% this year and an additional 25% next year (Hawaii taxes automobiles by weight, not by age as California does), and quadruple parking rates at the Honolulu Zoo.

There’s been a lot of rumbling lately from Hawaii taxpayers about decreasing government expenditures and controlling property tax rates, but a few years ago, after years of pleading with their elected representatives for relief, Kauai voters actually did something about it. They voted to amend…

Continue Reading Why Hawaii Can’t Vote On Property Taxes

As reported here, the American Civil Liberties Union of Florida has joined forces with the American Center for Law and Justice to help protect a property owner. It’s good to see that these two organizations — usually on opposite sides in the courtroom — have put aside their differences and agree that property rights are fundamental and an integral part of the Bill of Rights. Is this a sign of the end times?

In Stone v. Holmes County, No. 09-27ICA (May 21, 2009), the property owner alleges the County widened an easement across his property in retaliation for the owner complaining to the County about his neighbor’s use of an easement across his property. The complaint alleges the widening of the easement was done as a favor to the neighbor. The complaint for inverse condemnation is available here.

Joining forces isn’t unprecedented: the ACLU Fund of Michigan…

Continue Reading Opposite Sides Join Forces To Protect Property RIghts

I just finished reading a recently-published law review article by Missouri Court of Appeals Judge Harold L. Lowenstein, Redevelopment Condemnations: A Blight or a Blessing upon the Land?, 74 Mo. L. Rev. 30 (2009) (available here).

Despite the efforts of legislatures to reform eminent domain, the exercise of eminent domain for private redevelopment still confers a concentrated benefit on a few while imposing the costs of such redevelopment on a discrete set of property owners. To remedy this imbalance, and to prevent developers and development agencies from abusing this power, this article proposes that property owners be accorded remedies at the beginning as well as at the end of the eminent domain process.

The article recommends redefining blight in “concrete and measurable terms,” and allowing courts to undertake “meaningful judicial review” of blight determinations. The article also suggests that precondemnation blight cover damage to property for the “pall…

Continue Reading New Article On Redevelopment And “Blight” – Proposal For Reform

Homesweet.jpb Yesterday, my Damon Key colleagues and I filed this brief on behalf of a Lanai voter, asking the Hawaii Intermediate Court of Appeals to affirm a decision by the State Board of Registration (County of Maui) which concluded that a Maui County councilperson who registered as a Lanai resident is actually a resident of Maui.

State law establishes the tests for determining residency for registration and other purposes, and includes “habitation,” “permanent dwelling place,” “physical presence,” and a “present intention to establish the person’s permanent dwelling place” in the district. See Haw. Rev. Stat. § 11-13 (1993). The councilperson registered as a resident of Lahaina, Maui, in 2006, but in 2008, the County Clerk determined the councilperson validly registered in the Lanai district. The Clerk determined only a registrant’s stated intent is relevant. 

The Board overruled the Clerk, holding that both physical presence and intent are necessary under the …

Continue Reading Election Law: Is Intending To Live Somewhere Enough To Be “Residing” There?