September 2009

Update: the Hawaii Supreme Court’s unanimous opinion affirming that “immedeately forfeit” means the circuit court has the power to declare that a council seat is vacant, is here.

Yesterday, we filed the Opening Brief on behalf of Lanai residents and voters in their appeal from the Maui circuit court’s dismissal of their complaint that Council member Kahoohalahala, who purportsto occupy the Lanai residency seat on the Maui County Council, does not reside onLanai as required by the Maui Charter.

Section 3-3 of the Charterprovides that “If a council member…ceases to be a resident of thecouncil member’s residency area during the council member’s term ofoffice, or if a council member is adjudicated guilty of a felony, thecouncil member shall immediately forfeit office and the seat shallthereupon become vacant.”

The meaning of “immediately forfeit” and “shall thereupon become vacant” are plain: the circuit court may declare a council member who is…

Continue Reading Brief In Maui Councilmember Residency Appeal: What Is “Immediate Forfeiture And Vacancy?”

Brevard County, Florida, has filed an amicus brief supporting the government in the beachfront taking case, Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009).

In Walton County v. Stop the Beach Renourishment, Inc.,998So.2d 1102 (Fla. Sep. 29, 2008), the Florida Supreme Court heldthat a state statute which prohibits “beach renourishment” without apermit did not effect a taking of littoral (beachfront) property, eventhough it altered the long-standing rights of the owners to accretionon their land and direct access to the ocean. The U.S. Supreme Court isconsidering whether the Florida court’s reversal of more than 100 yearsof Florida law was a judicial taking, and whether the Florida court’sdecision violated due process.

The brief argues that under the Tenth Amendment the Florida legislature must first resolve a conflict between provisions in the Florida Beach and Shore Preservation Act regarding whether the…

Continue Reading Amicus Brief Supporting Gov’t In Beachfront Takings Case: Statute Didn’t Eliminate Common Law Rights, It Enhanced Them

Four amicus briefs have been filed in Macerich Management Co. v. United Brotherhood of Carpenters and Joiners of America Local 568, No. 09-235 (cert. petition filed Aug. 24, 2009), urging the Supreme Court to review United Brotherhood of Carpenters and Joiners of America Local 848 v. National Labor Relations Bd., 540 F.3d 957 (9th Cir. 2008). In that case, the Ninth Circuit held that six rules applied by shopping centers to restrict picketing andhandbilling by union members violated the California Constitution’s freespeech clause and therefore impermissibly interfered with protectedunion activity. The decision required shopping centers to allow speech adverse to the shopping centers’ financial interests on their properties. We summarized the Ninth Circuit’s decision here.

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Continue Reading Amicus Briefs Supporting Cert: Is Forcing A Property Owner To Allow Adverse Speech A Taking?

In a lengthy opinion — it comes in two volumes — the Ninth Circuit again takes on a mobile home rent control ordinance, this time with a better result than usual for the property owners. The court determined the ordinance worked a taking, and remanded the case for a calculation of just compensation. Guggenheim v. City of Goleta, No. 06-56306 (Sep. 28, 2009). Because the case is long, we haven’t had a chance to digest it yet, but here’s the court’s conclusion:

We therefore reverse the district court’s judgment on the takings claim and remand to the district court for further proceedings. On remand, the district court may of course consider  any materials presented by either party that are relevant to determining the total amount of just compensation due to the Park Owners. See, e.g., Cienega Gardens, 331 F.3d at 1354. As noted in Part III.A.1…

Continue Reading New Ninth Circuit Case: Mobile Home Rent Control Ordinance Takes Property

Update: we confirmed with the Clerk that the arguments are on Tuesday, October 13, 2009, and not on “Thursday” October 13 as noted on the Judiciary web site. We will be live blogging the arguments starting at about 9:45 a.m., Hawaii time.

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On Tuesday, October 13, 2009 at 10:00 a.m., the Hawaii Supreme Court will hear oral arguments in a case considering whether Haw. Rev. Stat. §  205-1 et seq., gives rise to a private right of action. The core issue in the appeal is whether Hawaii’s statewide zoning laws are “laws relating to environmental quality” which may be privately enforced, or whether they are classic Euclidean zoning laws which can’t. The Hawaii Constitution (art. XI, § 9) provides that “any person may enforce” the “right to a clean and healthful environment, as defined by law relating to environmental quality, including…

Continue Reading Upcoming HAWSCT Oral Arguments: Are State Zoning Laws “Environmental” Statutes?

On October 16, 2009, the U.S. Court of Appeals for the D.C. Circuit will hear arguments in Rumber v. District of Columbia, No. 09-7035, an appeal challenging an attempt to take property by the District of Columbia and the National Capital Revitalization Corporation. Note: in 2007, the District abolished the NRDC, and the Districtsubstituted as the plaintiff in the eminent domain cases in the D.C.Superior Court.

The case arose from the attempt to condemn the Skyland Shopping Center,which is alleged to be a “blighting factor” to the surrounding area,and redevelop the property. The Washington Post reported on the situation here:

A powerful group of affluent Hillcrest residents has succeeded ingetting the city to declare eminent domain at Skyland — a controversialmove seen in no other commercial land deal in the District except thenew baseball stadium. Skyland will be demolished, under the plan, and ahigher-quality shopping center built…

Continue Reading D.C. Circuit To Consider Challenge To Use Of Eminent Domain To Replace “Lowbrow” Shopping Center With “Gentrified Shopping Experience”

Remember that kid in grade school, the one who misbehaved behind the teacher’s back and then when he turned around, the kid sat back silently while you took the blame? If like me you still remember that kid, we’ve got a case from the Washington Supreme Court for you, Noble v. Safe Harbor Family Preservation Trust, No. 80873 (en banc) (Sep. 24, 2009).

In Washington, as in many other jurisdictions, a private landowner may condemn a “way of private necessity” over the the property of her neighbors if needed for access. See RCW 8.24.010 (“An owner … of land which is sosituate with respect to the land of another that it is necessary forits proper use and enjoyment to have and maintain a private way ofnecessity … may condemn and take lands of such othersufficient in area for the construction and maintenance of such privateway of necessity…”). In these…

Continue Reading Washington Supreme Court Enacts Blanket Rule: Condemnor Liable For Attorneys Fees Even If Condemnee Claims Alternatives

The property owners and the County of Maui have filed their opposition and reply briefs regarding the cross motions for summary judgment in the Maui affordable housing case now being litigated in the U.S. District Court, Kamaole Pointe Development LP v. County of Maui, No. 07-00447 DAE (D. Haw.).

The case is a challenge to the County of Maui’s “workforce housing”ordinance, enacted in in 2006, which imposes a40% to 50% affordable requirement on new housing developments of fiveor more units, and on an application to subdivide a lot into five ormore parcels. In lieu of providing actual units, a developer may eitherpay a fee equivalent to 30% of the total project sales, donate improvedland of the same value, or donate raw land valued at 200% of thein-lieu fee. Ordinance 3418 is posted here.

The complaint asserts claims for “unconstitutional conditions,”regulatory takings, substantive and procedural due process, equal protection…

Continue Reading Final Briefs On Due Process Motions In Maui Affordable Housing Exaction Case

Environmental groups led by Earthjustice have sought leave to file an amici brief supporting the pending application for a writ of certiorari in the case involving the EIS for the Turtle Bay/Kuilima resort development, Unite Here! Local 5 v. City and County of Honolulu, No. 28602, which seeks review of the Intermediate Court of Appeals’ decision reported at 120 Haw. 457, 209 P.3d 1271 (Haw. Ct. App. 2008). The motion and the proposed brief are posted here. The application for writ of certiorari which the amici are supporting is available here.

In Unite Here!, the ICA determined that unless the project changes, a supplemental EIS is not required. A link to the ICA’s decision and the opinion of the dissenting judge is posted here. The briefs filed in the ICA are posted here.

The application and the amici brief urge the Hawaii Supreme Court…

Continue Reading Amicus Brief In Kuilima/Turtle Bay Appeal: Change In “Context,” But Not Project, Enough To Trigger Supplemental EIS