February 2010

The New Jersey Supreme Court has scheduled oral arguments in Klumpp v. Borough of Avalon,No. A-49-09 (certification granted Nov. 10, 2009), to review the decision from New Jersey’s AppellateDivision which held that the government can assert inverse condemnationin order to take property without compensation. (If that leaves you scratching your head, you are not alone — the New Jersey Law Journal called the decision “a bizarre condemnation.”

Arguments are set to begin at 11:00 a.m., Monday, March 22, 2010 in Trenton. We won’t be there, but through the miracle of technology, we look forward to following along via the court’s live webcast site (why don’t all appellate courts do this?). We may even live blog it, as we have done with other appellate oral arguments.

More about the case here, including links to the Appellate Division’s per curiam opinion and the merits and amici briefs.Continue Reading Oral Arguments Scheduled In New Jersey’s “Bizarre Condemnation”

An interesting difference of opinion about the message in the current blockbuster Avatar. Eminent domain mavens Gideon Kanner and Rick Rayl initially agree that it’s not about eminent domain, but diverge on their philosophical approaches to the issue.

Rather than attempt to summarize their respective positions, it’s probably better we just refer you to their back-and-forth posts. Start with Rayl’s “Is Avatar Really a Political Commentary on Eminent Domain Abuse?” Follow that with Kanner’s “Is the Movie ‘Avatar’ a Story About Eminent Domain?” Finish with Rayl’s reply, “Response to Professor Kanner About Avatar.”

At least one other commentator thought the film was about property rights and eminent domain:

“Avatar” is like a space opera of the Kelo case, which went to theSupreme Court in 2005. Peaceful people defend their property againstoutsiders who want it and who have vastly more power. Jake rallies theNa’vi…

Continue Reading Competing Views Of James Cameron’s “Avatar” (And Eminent Domain)

Contradicting Chris Rock’s dictum (caution, may be very offensive), Fulton County, Georgia concluded there might be something untoward going on in the Champagne Room, at least in those serving alcohol. In Flanigan’s Enterprises, Inc. of Ga. v. Fulton County, No. 08-17035 (Feb. 16, 2010), the U.S. Court of Appeals for the Eleventh Circuit held the County’s conclusion was not irrational.

The county commissioners believed that strip clubs featuring nude dancing might have a relationship to crime and lowered property values, so they commissioned local studies of the issue and gathered studies from other areas. The local studies revealed no relationship between strip clubs and crime or property values. But relying on the “foreign studies” which showed otherwise, the commissioners barred alcohol in strip clubs and other “adult entertainment establishments.”

For its troubles, the County was sued by the owner of a strip club for First Amendment violations, and the…

Continue Reading 11th Circuit: County Reasonably Concluded Something Might Be Going On In The Champagne Room

Today, we filed the final briefs in the latest phase of County of Hawaii v. C&J Coupe Family Ltd. P’ship,two condemnation appeals presently before the Hawaii Supreme Court arising out of the County’s attemptsto take a Kona family’s property.

We filed this brief replying to the developer’s Answering Brief, and this brief in reply to the County of Hawaii’s Answering Brief.

The Opening Brief which we filed in November 2009 is posted here.

These cases have resulted in two prior reported opinions, County of Hawaii v. C & J Coupe Family Ltd. P’ship, 119 Haw. 352, 198 P.3d 615 (2008) (available here), which deals with the issue of pretext and public purpose in eminent domain, and County of Hawaii v. C & J Coupe Family Ltd. P’ship, 120 Haw. 400, 208 P.3d 713 (2009) (available here), which held that under Hawaii law…

Continue Reading Final Briefs In Hawaii Eminent Domain Abuse Cases: Pretext, Actual Purposes, And Private Benefit

Barista’s note: we posted a version of this story before, on the 30th anniversary of the date the Court issued the opinion (December 4, 2009), but thought we would reprint a more detailed view, recently published in our firm’s newsletter, complete with photos.

Damon Key Celebrates Thirtieth Anniversary of Landmark U.S. Supreme Court Victory

What do you call a court opinion that has been cited by 627 othercourts, expressly followed in 42 cases, distinguished in 24 others, andhas been cited 1,041 times in law reviews and 147 times in legaltreatises?

We call it a landmark.

In 1979, the U.S. Supreme Courtissued its decision in Kaiser Aetna v. United States, a truly landmarkcase, argued and won by Damon Key attorneys Charlie Bocken and DianeHastert.

DDH_RCB_hawaii_kai Onbehalf of the developer of Hawaii Kai, Charlie and Diane took on thefederal government and overturned over a century of seemingly adverseprecedent. Kaiser Aetna was the…

Continue Reading More On The Thirtieth Anniversary Of Kaiser Aetna

I’m on the road today, so don’t have the time to read this opinion in detail, but here’s another one for all you CEQA mavens.

In Committee for Green Foothills v. Santa Clara County Bd. of Supervisors, No. S163680 (Feb. 11, 2010), the California Supreme Court held:

In general, challenges to governmental action under the California Environmental Quality Act (CEQA) face unusually short statutes of limitation. (§ 21167.) Most limitation statutes are triggered by the filing of a public notice, which reports an agency‟s determination about the applicability of CEQA or the potential environmental impact of a project. (§§ 21108, 21152.) As we explain in greater detail, an action challenging this determination must generally be brought within 30 days after the notice is filed. (§ 21167, subds. (b), (c) & (e).)

This case involves a particular kind of challenge following a notice of determination (NOD). If an NOD has been filed, but an action alleges that no environmental review was undertaken, which statute of limitations applies: (1) the general 30-day limit on challenges following a notice, or (2) the longer 180-day period provided for a case alleging that no environmental determination was made (§ 21167, subd. (a))? We hold that the filing of an NOD triggers a 30-day statute of limitations for all CEQA challenges to the decision announced in the notice. This interpretation is consistent with the language of section 21167 and the general approach of all notice-based statutes of limitation. The Legislature clearly intended the 30-day statute to apply when an agency files an NOD, and this limitations period may not be extended based on the nature of the CEQA violation alleged.

Because the Court of Appeal reached a contrary conclusion, we reverse that judgment.

Slip op. at 1-2 (footnote omitted). The full opinion is available here.
Continue Reading Cal Supremes Opine On Statutes Of Limitation In CEQA Challenges

This just in: in a unanimous opinion authored by Justice Acoba, the Hawaii Supreme Court held that a Maui council member immediately forfeits office should the council member violate the continuous residency requirements of Maui Charter § 3-3.  DeJetley v. Kahoohalahala, No. 29919 (Feb. 10, 2010). The court held that section 3-3 could be enforced by declaratory judgment, and reversed a judgment by the Second Circuit court that the only remedies were impeachment or recall. The case now goes back to the Second Circuit for further proceedings.

Disclosure: we represent the Lanai voters who are the plaintiffs.

Here are all the briefs in the case:

This case is related to Dupree v. Hiraga, No. 29646 (Oct. 20, 2009), in which the Hawaii Supreme Court held that inorder to register to vote as a resident of a district, a person musthave a fixed…

Continue Reading HAWSCT: County Council Member Subject To Declaratory Judgment Claim He Is Not A Resident Of His District

We average between three and five posts per week, often putting up decisions and briefs before they show up on Westlaw or Lexis. But we can’t keep up with everything — my firm and clients would probably like me to devote a bit of time to the actual practice of law. I wouldn’t want anyone to think that I do this alone, because I often rely on colleagues locally and nationwide to send items.

I’d love to acknowledge those who wish to be acknowledged. Sometimes I remmember to ask whether its ok for me to recognize the source, but I often forget to do so, and if I don’t have affirmative ok, I remain silent.

So how about this: if you think a brief, an opinion, an article, or a new story is something that might interest other readers, please send your materials to rht@hawaiilawyer.com, with a copy to…

Continue Reading Submitting Items For Posting To inversecondemnation.com

The Connecticut Supreme Court has issued opinions in a trio of closely-watched eminent domain cases. The first two opinions deal with technicalities of eminent domain law, but the third overturns a $12 million jury verdict that the Town of Branford, Connecticut abused its eminent domain power.

In Town of Branford v. Santa Barbara, SC 18091 (officially released Feb. 16, 2010), the court affirmed that the highest and best use of the property taken was for residential development.

In Town of Branford v. Santa Barbara, SC 18090 (officially released Feb. 16, 2010), the court held that Connecticut’s offer of judgment statute is not applicable to condemnation appeals.

In New England Estates v. Town of Branford, SC 18132 (officially released Feb. 16, 2010), the court overturned the jury’s $12,435,914 jury verdict, because an “unrecorded, unexercised option to purchase the property…is not considered a property interest under Connecticut state law…

Continue Reading Connecticut Supreme Court: An Option To Purchase Is Not “Property,” So Optionee Can Be Abused

Remember Klumpp v. Borough of Avalon, No. A-2963-07 (per curiam), the decision from New Jersey’s Appellate Division which held that the government can assert inverse condemnation in order to take property without compensation? 

As noted in this order dated November 19, 2009, the New Jersey Supreme Court has granted the property owners’ petition (available here). We called the decision “kafkaesque,” since we couldn’t quite figure how the appellate court reached the conclusion which it did. The New Jersey Law Journal called the decision “a bizarre condemnation.”

Why the perjorative labels?

The appellate division held that the government can assert inverse condemnation. Yes, you read that right: inverse condemnation is a cause of action which the government may assert to allow it to take property without compensation.

Confused? You are not alone. Here’s our recipe for straightening yourself out:

Start here, our summary of…

Continue Reading Latest Briefs In New Jersey’s “Bizarre Condemnation”