Don’t feel like reading all 74 pages of the majority and concurring opinions in the Turtle Bay/Kuilima EIS case (Unite Here! Local 5 v. City and County of Honolulu, No. 28602 (Apr. 8, 2010))? You’re in luck — here’s a summary.
[Disclosure: although I did not participate in this case, two of my
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Thank goodness for small things. At least book collectors in Los Angeles do not need to get “secondhand book dealer” permit from the government simply because they buy used books.
In Hopp v. City of Los Angeles, No. B215265 (decided Mar. 9, 2010; published Apr. 6, 2010), the California Court of Appeal (Second District)…
This just in: the Hawaii Supreme Court has issued an opinion in the Turtle Bay/Kuilima EIS case (Unite Here! Local 5 v. City and County of Honolulu). In short, the court held that a supplemental environmental impact statement is required when a project’s context changes, even if the project itself has not. The…
The eminent domain issue grabbing everyone’s attention these days is the question of whether property can be taken — the Public Use/Kelo issue — and not the issue in play in the vast majority of condemnation cases, just compensation. The question of how much a property owner is entitled to under the U.S. and…
When is a lease that everyone agrees is worth more than a million dollars totally worthless? When it’s an eminent domain case and the court applies the “undivided fee” rule, that’s when.
Update: Professor Kanner adds his thoughts here.
Most eminent domain attorneys know about the infamous undivided fee rule (aka as the “unit…
File this one in the obvious category. In Brown v. City of Pocatello, No. 35992 (Apr. 1, 2010), the Idaho Supreme Court held that a property owner’s complaint that her home was flooded as a result of roadwork by the city did not properly plead a cause of action for inverse condemnation.
Generally, if the government causes a physical invasion by water of property, it can be liable for compensation and damages on an inverse condemnation theory. The property owner’s complaint, however, asserted only a negligence claim against the city. Only after the city sought summary judgment did the property owner claim that the complaint also contained nuisance and inverse condemnation causes of action.
The Idaho Supreme Court held that even under its very loose “notice pleading” standards, a complaint which only identifies “negligence” as the theory of liability does not sufficiently put the defendant on notice of other claims against it. To make the point that neither nuisance nor inverse condemnation theories were raised, the court quoted the entire complaint on pages 6-8 of the slip opinion. While a complaint need not formally identify the theories of relief the court held, “the opposing party must be provided with notice of the underlying theories being pursued against them in order to adequately prepare for trial.” Slip op. at 8.
True enough, and in these situations the remedy would seem to be to allow for amendment of the complaint. The only question we have is why the plaintiff didn’t seek to do so. The opinion indicated that doing so might have made the failure to adequately plead a inverse condemnation cause of action harmless:
This Court also notes that when the decision was made to raise the issues of inverse condemnation and nuisance it would have been prudent to prepare an amended complaint alleging those causes of action and then seek permission to file that amended complaint. We express no opinion as to whether those claims have merit under the facts of this case, nor whether they would avoid the planning and design immunity provided by I.C. § 6-904(7), but at least those issues would have been preserved.
Slip op. at 11.
Continue Reading When Pleading An Inverse Condemnation Cause Of Action, You Should Probably Use The Term “Inverse Condemnation”
The New Hampshire Public Utilities Commission properly approved the taking of private water works by the City of Nashua. In Appeal of Pennichuck Water Works, Inc., No. 2009-274 (Mar. 25, 2010), the New Hampshire Supreme Court concluded taking was in the public interest, and that it resulted in a net benefit to the…
When one lawyer writes that another is “my friend and colleague,” watch out: what follows may not be exactly friendly or collegial. For legal academics, the rule is even more pronounced when the friend-and-colleague’s name shows up in the title of an article.
In that vein, we bring you the latest chapter in the ongoing…
More on the closely-followed case rent control regulatory takings decision from the Ninth Circuit, Guggenheim v. City of Goleta, No. 06-56306 (Sep. 28, 2009), which is currently being reheard en banc by the Ninth Circuit.
Earlier, we posted a link to Professor Richard Epstein’s short article, Takings Law Made Hard, in which he…
In granting a special zoning exemption to Shelter House, Iowa City allowed it to build a homeless shelter on land next to Mr. and Mrs. Dahlen’s mobile home park. After losing their challenge to the zoning exemption, the Dahlens filed suit in federal court alleging the exemption violated their due process rights.
That claim was…
