November 2012

Gideon Kanner recently asked “Whatever Happened to Condemnation of Underwater Mortgages?”

Watch this November 23, 2012 interview with the chairman of Mortgage Resolution Partners for the views from the outfit that proposed the idea of using eminent domain to take underwater mortgages. He says the idea is “not dead at all … but it’s a fair characterization to say it’s moving slowly.” When asked whether there is any jurisdiction in which it will defintely happen, he responded that there are places where MRP is “actively working” with government, and he is “highly confident” that it will happen.

In a classic case of burying the lede, be sure to pay attention at the 5:15 mark where he notes that “this is about economics … they own a piece of paper, it has a value. You might argue about what that value is or isn’t, but they [the bondholders]…

Continue Reading Condemnation Of Underwater Mortgages Not Off The Table Yet

Guess what? The Water Commission got it wrong again. The Hawaii Intermediate Court of Appeals held in this unpublished memorandum order that the Commission must hold a “contested case” hearing upon demand when the Commission sets “interim instream flow standards” under the Water Code (in other words, how much water should be allocated to whom and where for particular streams).

The dispute in this appeal was whether the process to establish those standards is about setting policy — meaning the Commission need only hold a legislative-type public hearing — or determined particular parties’ rights — in which case a trial-like contested case is required. The ICA concluded it was the latter.  There are three instances when an agency must hold an adjudicatory hearing: when required by the agency’s own rules, when required by a statute, or when required by due process because the party asking for a contested case has…

Continue Reading HAWICA: Water Commission Needs To Conduct Constested Case When Amending Instream Flow Standards

Here are the relevant pleadings in the pending cross-motions for summary judgment in Kostick v. Nago, Cv. No. 12-00184 JMS-LEK-MMM, the case challenging Hawaii’s 2012 Reapportionment Plan for violatating the Equal Protection Clause (among other things). We represent the plaintiffs in that case.

That case resulted from the State of Hawaii classifying its its residents into two categories — “permanentresidents,” and everyone else — and the resulting exclusion from thereapportionment population of 108,767 persons (military personnel, their families, and university students who do not qualify for resident tuition) deemed by the State to have not exhibitedthe intent to remain in Hawaii “permanently.” The plaintiffs argue that this classification does not survive closeconstitutional scrutiny, and that the State has not met its burden to show a”substantial and compelling reason” for excluding nearly 8% of its actualpopulation from equal representation in the Hawaii legislature. The state’s 2012 reapportionment Plan thus denies…

Continue Reading Hawaii Reapportionment Equal Protection Challenge

Here they are, more amicus curiae briefs in n Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012).

That’s the case asking whether the “essential nexus” and “rough proportionality” standards of Nollan and Dolan are applicable only to exactions for land, or whether they are generally-applicable tests. We filed our amicus brief yesterday (posted here).

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Continue Reading More Amicus Briefs In Koontz: Nollan/Dolan Apply To All Exactions

In California, a property owner whose business suffers when the land is taken is entitled to goodwill under the state’s eminent domain code, and has the right to have a jury determine the amount of goodwill. But who makes the call when there’s a dispute about whether there’s any goodwill at all?

According to the Court of Appeal in People ex rel. Dep’t of Transportation v. Dry Canyon Enterprises, No. B234198 (Nov. 28, 2012), it’s the judge’s decision, not the jury’s. According to the opinion, “no court has squarely addressed this question.” Slip op. at 1. Now one has. The court based its conclusion on the language of the statute, and because “it makes no sense to hold a jury trial on the amount of goodwill lost if there was no goodwill to lose.” Slip op. at 5 (emphasis original).

The court also held that the trial court had…

Continue Reading Cal App: Jury Determines The Amount Of Goodwill, Not Whether There Is Goodwill

Today, on behalf of our colleagues at Owners’ Counsel of America, we filed this amicus brief in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012). That’s the case asking whether the “essential nexus” and “rough proportionality” standards of Nollan and Dolan are applicable only to exactions for land, or whether they are generally-applicable tests.

Our brief argues:

It is no great stretch to apply the nexus and proportionality standards to all exactions, and not just those demanding land. Like land, money is property, and should be subject to the same rules. Requiring compliance with Nollan and Dolan when government seeks money or other property in exchange for discretionary permits will not impose a significant burden on land planners, other than the requirement that they, like other officials, follow the Constitution. If the constable must understand the limitations the Constitution places on…

Continue Reading Amicus Brief: Exaction Not Subject To Lesser Standards Because Taking Measured In Dollars And Not Square Feet

Water is aprecious resource said to be held in the “public trust.”  The Hawaii Constitution provides that “theState has an obligation to protect, control and regulate the use of Hawaii’swater resources for the benefit of its people.”   To this end, the State evaluates andregulates the use of these resources through its Commission of Water ResourceManagement.  Often landowners and usershave competing needs to the same water source, particularly when the lands arebeing used for agriculture.  The Commissionmust balance these needs with those of the environment and ecosystem and, attimes, with the needs of those entitled to traditional and customary practicesinvolving or using the water resource.

The HawaiiSupreme Court recently took issue with a decision by the Commission on how tomarshal certain water resources, in that case a system of streams.  The case illustrates the difficulties indevising plans to account for these competing interests and what must be consideredin making that plan. …

Continue Reading Guest Post: Hawaii Supreme Court’s Latest Water Law Ruling

Here’s a short one from the Ohio Supreme Court. In City of Girard v. Youngstown Belt Railway Co., No. 2012 Ohio 5370 (Nov. 21, 2012), the court held:

In this case, we are called upon to determine the extent to which the Interstate Commerce Commission Termination Act (“ICCTA”), 49 U.S.C. 10101 et seq., preempts a state’s eminent-domain action over a parcel of property owned by a railway company. Based on our interpretation of the legislation at issue and its application to the unique facts of this case, we find no preemption, and we therefore reverse the judgment of the court of appeals.

Slip op. at 1-2. Not really an eminent domain heavy issue, and if federal preemption is your thing, check it out. More here from the local newspaper.

City of Girard v. Youngstown Belt Railway Co., No 2012 Ohio 5370 (Nov. 21, 2012)Continue Reading Ohio: Federal Law Does Not Preempt City’s Condemnation

Our colleague Mark M. Murakami was able to attend a lecture on regulatory takings at the University of Hawaii law school last week. Mark usually blogs at hawaiioceanlaw, but we convinced him to write up a guest post on his observations about the presentation.

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Last week, I attended the 2012 Distinguished GiffordLectureship in Real Property presentation by Professor Barton H. Thompson, Jr.of the Stanford Law School, entitled “In All Fairness and Justice.”

Professor Thompsondiscussed his thoughts on “allocative fairness” and different ways courts useto analyze regulatory takings. Hissource for this test is the oft quoted language from Armstrong v. United States, 364 U.S. 40 , 49 (1960) (“The Fifth Amendment’s guarantee ”that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice…

Continue Reading Guest Post: