2009

Eminent domain in the news:

It’s a stark contrast between new and old, progress and past. The tension between the two has landed the university in the middle of a lawsuit that could set a precedent for redevelopment projects under way in Virginia.
A year ago, Norfolk’s Redevelopment and Housing Authority moved to condemn the house and three other buildings to the south of ODU’s University Village, saying the land was in a blighted area and is needed for the university’s expansion.
The owners responded with a suit, saying the housing authority has no right to take their property, in part because the development of University Village in the past decade has cleaned up the blight.
The property owner’s lawyer is my Owner’s Counsel of America colleague Joseph Waldo.

Separately, [Carol] Browner [President Obama’s special advisor on climate change and energy] said the administration was also going to create an inter-agency task force to site a new national electricity transmission grid to meetboth growing demand and the President’s planned renewable energy expansion.Siting has been a major bottleneck to renewable growth, and lawmakers andadministration officials have said they’re likely to seek greater federal powersthat would give expanded eminent domain authorities.Continue Reading Eminent Domain Round-Up

Thanks to @georgettedeemer, the Communications Director of the Hawaii House of Representatives for getting word out that the Hawaii House has passed S.C.R. No. 40, a resolution “Urging the Governor and the Attorney General to withdraw the appeal to the United States Supreme Court of the Hawaii State Supreme Court decision, Office of…

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.

  • 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.

Continue Reading Materials From 2/20/2009 Land Use Seminar

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…