The circuit court has scheduled the next steps in County of Hawaii v. C & J Coupe Family Limited Partnership, No. 28882 (Haw. Dec. 24, 2008), the case in which the Hawaii Supreme Court held that the government must pay damages to a property owner when an attempt to take property by eminent domain
OHA Brief In Ceded Lands Case
The Office of Hawaiian Affairs has filed its Brief for the Respondents in the “ceded lands” case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert.granted Oct. 1, 2008).
The U.S. Supreme Court is reviewing the Hawaii Supreme Court’s decision in Office of Hawaiian Affairs v. Housing and Community Dev. Corp. of Hawaii
Reply In Support Of Petition In Pratt v. Cal. Coastal Comm’n – Penn Central And Williamson County
The property owner has filed its Reply in Support of Petition for a Writ of Certiorari in Charles A. Pratt Const. Co. v. California Coastal Comm’n, No. 08-668 (cert. petition filed Nov. 18, 2008) (SCOTUS docket report here). The petition seeks review of the California Court of Appeal’s opinion reported at 76 Cal. Rptr.
California Court of Appeal: No TKO Of Eminent Domain Challenge (Video)
A delay in publication of a legal notice won’t knock out a challenge to the legality of a city’s blight designation.
In Community Youth Athletic Center v. City of National City, No. D052584 (Jan. 22, 2009), the California Fourth District Court of Appeal held that the trial court abused its discretion when it dismissed
Ceded Lands Case Debate – Feb. 12, 2009 – U Hawaii Law School
Mark your calendars for Thursday, February 12, 2009. That’s the date the Hawaii Federalist Society is sponsoring a debate on the ceded lands case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert.granted Oct. 1, 2008),. The case is scheduled for oral argument before the U.S. Supreme Court on February 25, 2009. [Disclosure:
Federal Circuit: No Taking For Forest Fire
[Update: wildlandfire readers, see the bottom of the post.]
In a case we first analyzed here when the lawsuit was dismissed by the Court of Federal Claims, the U.S. Court of Appeals for the Federal Circuit in Cary v. United States, No. 2008-5022 (Jan. 16, 2009) held that the federal government was not liable
Book Review: Supreme Neglect – How To Revive Constitutional Protection For Private Property
I’ve finally had the chance to read a book I ordered a while ago, Professor Richard Epstein’s Supreme Neglect – How To Revive Constitutional Protection For Private Property (Oxford Press 200__).
Cal. Court of Appeals Revisits (Sort of) Landgate: Of Regulatory Takings, Means-End Analysis, and Due Process
In a lengthy (70 page) opinion, the California Court of Appeals (Sixth District), in Shaw v. County of Santa Cruz, No. H031108 (filed Dec. 19, 2008, ordered published Jan. 16, 2009), held that the government’s denial of a ministerial permit did not amount to a regulatory taking.
The opinion sets forth a long factual
Mortgage Modification As A Taking
Worth reading: Government’s Promise: Taking Away Property?, commentary from U. Chicago lawprof Randy Picker on a NY Times editorial which argues “[t]he first step toward providing the [economic] relief is to include in the packagea measure to allow hard-pressed homeowners to have the terms of themortgages modified under bankruptcy court protection, an avenuecurrently denied
Materials From Hawaii Land Use Law Conference
To those who attended Thursday’s and Friday’s conference, thank you. Here are the cases and other materials I mentioned in my portion:
- Shoreline setbacks and equitable estoppel – Brescia v. North Shore Ohana 115 Haw. 477, 168 P.3d 929 (2007)
- State shoreline setback – Haw. Rev. Stat. § 205A-43
- Counties have authority to enact their own setbacks – Haw. Rev. Stat. § 205A-45
- 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.
- Maunalua Bay Beach Ohana 28 v. State of Hawaii, the appealnow pending in the Intermediate Court of Appeals. The issue in thatcase is whether the state or littoral landowners are entitled toownership of accreted land. In “Act 73,” the legislature declared thatshoreline land naturally accreted belongs to the State of Hawaii and ispublic property. The act overturned the age-old rule of shorelineaccretion and erosion, which held that beachfront owners lose ownershipof land when it erodes, but gain it when it accretes. Instead of thesebalanced rules, Act 73 made the erosion/accretion equation one-sided:the State wins every time. We filed an amicus brief in the appeal, acopy of which is available here.
- Substantive due process in the Ninth Circuit after Lingle – The Ninth Circuit Rediscovers Substantive Due Process in Land Use Cases
- County of Hawaii v. C & J Coupe Family Limited Partnership, No. 28882 (Dec. 24, 2008) – public use, pretext, and damages for failed taking
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.
- “Arrow of Time, Vested Rights, Zoning Estoppel, and Development Agreements in Hawaii’ (published by the U. Hawaii Law Review in Feb. 2006). Drop me an email, and I will email you a pdf, or send you a hard copy (tell me which).
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