November 2010

Last Friday, I was on the faculty of Integrating Water Law and Land Use Planning, a seminar on Hawaii’s unique water law.

My session covered “Water Rights, Property Rights and the Law of Settled Expectations,” and provided a crash course in Hawaii land use law, the interrelationship between land use law and water law, and the limitations of the public trust doctrine.

Hawaii Water Law And The Law Of Settled Expectations

Other sessions included “Hawaiian Water Rights – Where Culture and the Law Merge,” “Amendments to the Instream Flow Standards in East and West Maui,” and “County of Hawaii Water Use and Development Plan.” Also on the faculty were my Damon Key colleague Christi-Anne Kudo Chock; Dr. Lawrence Miike, Commissioner on the State Commission on Water Resource Management; and Lawrence Beck, Civil Engineer with the County of Hawaii Department of Water Supply. Dr.

Continue Reading Materials And Links From “Integrating Water Law and Land Use Planning” Seminar

Still not have your MCLE hours for 2010? Will you be in or near Plano, Texas on December 2 and 3, 2010? Want to attend a conference at which the top minds in planning, zoning and eminent domain law are speaking?

Well, you’re in luck. There’s still time to register for Planning, Zoning and Eminent Domain, sponsored by the Center for American and International Law.

It wasn’t overstatement when we said that this one has the big names: among those speaking are Dwight Merriam, Gideon Kanner, Robert Freilich, Bruce Kramer, Mike Berger, and Dan Mandelker. And that’s only a partial list of the luminaries. Dwight will also be announcing the 2010 ZiPLer Awards. We’ve been holding our breath on that one, since we nominated a case for one of the prizes.

Unfortunately, we can’t make it this year. But we’ve attended this conference before, and it’s…

Continue Reading Upcoming Seminar: Planning, Zoning & Eminent Domain (Dec. 2-3, 2010)

In Lichoulas v. City of Lowell, No. 09-P-1448 (Nov. 17, 2010), the Massachusetts Court of Appeals concluded that the state’s Land Court has subject matter jurisdiction to consider a property owner’s contesting of the state’s title to property which it purportedly took by eminent domain.

In that case, a follow-up to an earlier federal court decision which we noted here, the property owner challenged the state’s title because “the city failed to comply with the procedural rules set forth in [Massachusetts law], and that the taking therefore violated State law.” The Land Court dismissed the claim for lack of jurisdiction.

The court of appeals reversed, holding that the Land Court has jurisdiction over “[a]ll cases and matters cognizable under the general principles of equity jurisprudence where any right, title or interest in land is involved,” and that a challenge to a taking because of an alleged failure to…

Continue Reading Mass Land Court Has Jurisdiction To Consider Claim That Landowner Has Title Due To Procedural Errors In Condemnation

Yoda Appropos of absolutely nothing that are the usual subjects of this blog is this decision and order, issued yesterday by the California Commission on Judicial Performance.

It’s totally off-topic, but a must-read. 

It’s about what happened when a San Diego Superior Court judge decided to use the courtroom as a venue to audition for a “Judge Judy”-ish television reality show. In deciding to impose public censure, the Commission concluded that among other things, the judge scheduled “her more interesting cases on the day of the filming” (p. 1), remarked to a defendant in a criminal case after placing him on probation “‘[w]hat this means is don’t come before the court on another case … ’cause you will definitely be screwed and we don’t offer Vaseline for that”’ (p. 4), and when an attorney asked for time to confer with his client, asked the audience whether “he need to…

Continue Reading Once You Start Down The Dark Path, Forever Will It Dominate Your Destiny. Consume You It Will.

It’s pretty easy to blog about cases in which your side prevails, but not so easy when you don’t. This post is one of the latter instances. In County of Hawaii v. C & J Coupe Family Ltd. P’ship, No. 29887 (Nov. 10, 2010), a unanimous court in an opinon authored by Justice Acoba concluded:

This case is the post-remand sequel to County of Hawaii v. C&J Coupe Family Ltd. P’ship, 119 Hawaii 352, 198 P.3d 615 (2008) [hereinafter, Coupe I]. In that case, this court reviewed two condemnation actions (Condemnation 1 and Condemnation 2) brought by Plaintiff/Counterclaim Defendant-Appellee County of Hawaii (the County) to condemn property belonging to Defendant/ Counterclaimant-Appellant C&J Coupe Family Limited Partnership in Civ. No. 00-1-0181K and Defendant/Counterclaimant/Cross Claimant-Appellant in Civ. No. 05-1-015K (Coupe). In the instant appeal, we hold that (1) the County’s asserted public purpose for Condemnation 2 was not a…

Continue Reading Hawaii Supreme Court: No Per Se Rule In Pretextual Takings

We use “takings,” “Takings Clause” and “Fifth Amendment rights” as a convenient shorthand for the right of property owners to object or obtain compensation when a government act has so interefered with their rights that it might as well have exercised eminent domain. Every now and then, we need a reminder that the Takings Clause of the U.S. Constitution’s Fifth Amendment is not necessarily the last line of defense for property owners.

Today, in Interstate Companies, Inc v. City of Bloomington, No. A10-481 (Nov. 9, 2010), the Minnesota Court of Appeals provided the nudge. In that case, the court held that the Minnesota Constitution’s takings clause provides “broader protection to property owners than the federal constitution.” Slip op. at 6. The text of Minnesota Constitution is broader than the Fifth Amendment in that it provides that “[p]rivate property shall not be taken, destroyed or damaged for public use without…

Continue Reading Min App: Minnesota Constitution’s Takings Clause Provides Greater Protection For Property Owners

Last week, the U.S. Supreme Court heard oral arguments in United States v. Tohono O’odham Nation, No. 09-846 (cert. granted Apr. 19, 2010), the case involving the scope of the Court of Federal Claims’ subject matter jurisdiction. The transcript of the argument  is posted here, and in a new feature, the Court has also released the audio recording (28mb mp3) in case you want to follow along, or just put in on your podcast list and listen to it on the way to work on Monday. 

Disclosure: we filed an amicus brief supporting the Tohono O’odham Nation.

At the heart of the case is 28 U.S.C. § 1500 which provides:

The United States Court of Federal Claims shall not have jurisdiction of any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United …

Continue Reading SCOTUS Oral Argument Recording And Transcript In CFC Jurisdiction Case

Just in: the Texas Supreme Court has issued an opinion in Severance v. Patterson, No. 09-0378 (Nov. 5, 2010). In that case, the court ruled on “whether private beachfront properties on Galveston Island’s West Beach are impressed with a right of public use under Texas law without proof of an easement” when an avulsive event causes dramatic changes to a beach. Slip op. at 2.

The court concluded no, and answered these questions which were certified by the Fifth Circuit:

  • Does Texas recognize a “rolling” public beachfront access easement, i.e., an easement in favor of the public that allows access to and use of the beaches on the Gulf of Mexico, the boundary of which easement migrates solely according to naturally caused changes in the location of the vegetation line, without proof of prescription, dedication or customary rights in the property so occupied?
  • If Texas recognizes such an easement,

…
Continue Reading Texas: Public’s Beachfront Easement Does Not “Roll” With The Vegetation Line

The U.S. Supreme Court has declined to review Maunalua Bay Beach Ohana 28 v. State of Hawaii, 122 Haw. 34, 222 P.3d 441 (Haw. Ct. App. 2009). That’s the case in which the Hawaii Intermediate Court of Appeals concluded that ownership of beachfront property includes only a partial right to accreted land.

The ICA held that held that “Act 73” (codifed here and here), the statute in which the Hawaii legislature redefined accretion as public property was a taking of existing accreted land, but held that Act 73 did not affect a taking of what it called “future” accretion, because the right is simply a contingent future interest and not a “vested” right. The Hawaii Supreme Court denied discretionary review.

Under the ICA’s view of “unvested future interests,” the legislature would be free to enact a statute abolishing the right to pass property to one’s heirs at death…

Continue Reading Cert Denied In Hawaii Beach Taking Case