February 2014

Our Owners’ Counsel of America colleague William Blake, a partner in the Lincoln  office of Nebraska law firm Baylor Evnen, has put up a guest post on OCA’s Eminent Domain Law Blog about the TransCanada Keystone XL pipeline that recently saw a Nebraska trial court invalidating a state statute as unconstitutional. 

Bill writes:

The recent Keystone XL decision by Lancaster County District Judge Stephanie Stacy (a former partner of this author), is being cast in that mold, but in the process, the litigation is somewhat misunderstood. The ruling is 50 pages long with almost 250 footnotes, and is written in the style of a law review article. The misunderstanding is probably excusable, but it is not an eminent domain case. Eminent domain is only a side effect, and really not much of a side effect. The driving issue has always been the environment, whether the pipeline is going…

Continue Reading TransCanada XL In Nebraska: “Not An Eminent Domain Case”

Word comes our way that a bill has been introduced in the Hawaii legislature that would eliminate the primary jurisdiction doctrine and the requirement to exhaust administrative remedies for a narrow class of cases to allow a neighbor to “enforce zoning violations related to transient vacation rental on neighboring property.” 

In Pavsek v. Sandvold, 127 Haw. 390, 279 P.3d 55 (Haw. App. 2012), the Intermediate Court of Appeals concluded that a state statute (Haw. Rev. Stat. § 46-4(a)) allowes a person directly affected by an alleged violation of a county’s land use or zoning ordinance to bring a private enforcement action. The court also held, however, that this private right of action is subject to the usual rules of primary jurisdiction. In other words, you can sue to enforce the zoning code, but you’ve got to do it by first going through the county’s administrative review process…

Continue Reading Bad Idea, Part II: There’s Already A “Private Right Of Action” To Enforce Zoning Ordinances

Here’s more on that bill which we noted the other day that is making its way through the Florida legislature. The bill would prohibit Florida municipal and local governments from inserting a condition in a development permit unless the exaction is related to the “direct impact of a proposed development.”

In “Bills would expand on U.S. Supreme Court ruling in Florida property ‘takings’ case,” in the Florida Current, Bruce Richie writes that “HB 1077 and SB 1310 appear to have backing from property rights supporters following a U.S. Supreme Court decision last year involving the St. Johns River Water Management District.” He was also kind enough to seek out our input:

Robert H. Thomas, a lawyer in Hawaii who represents the Pacific Legal Foundation in cases there, said having a state law in place provides another layer of protection beyond the U.S. Supreme Court decision. He said some legal…

Continue Reading More On Florida’s Post-Koontz Legislation

No, not that Madison County, but rather Madison County, Montana. 

In Public Lands Access Ass’n v. Bd of County Commissioners of Madison County, No. DA 12-0312 (Jan. 16, 2014), the Montana Supreme Court held that a riparian owner’s efforts to fence his land to keep the public from crossing it and accessing the Ruby River were not effective. Montana has a statute that allows public access to and use of streams up to the high water mark, and the property owner asserted that the lower court’s ruling allowing access across his land and use of the River under the statute was an unconstitutional taking. The Supreme Court rejected this argument. As the court’s synopsis stated:

The Court also explained that Kennedy’s takings argument is precluded by well-settled law in Montana. Montana’s well-settled law provides that the State owns all waters in trust for the people; that a…

Continue Reading The Fences Of Madison County: No Judicial Taking

Our Damon Key colleague Bethany C.K. Ace, is the Chair of the Hawaii State Bar Association’s Section of Appellate Law, and sends along this reminder of the Section’s monthly meeting and program: 

Oral Arguments – Tips and Insights
Monday, March 3, 2014
12 noon – 1:00 p.m.
HSBA Conference Room
1100 Alakea Street, 10th Floor

Bethany writes that this will be “a distinguished panel who will share some of their wisdom, wit and war stories on oral arguments from both sides of the bench and across a wide variety of practice areas:  Justice Jim Duffy (Ret.), Janice Kim, Paul Alston, and Chuck Crumpton. Come ready with questions for a lively, interactive discussion!  Our original programming on recent appellate procedure decisions will be covered in a special February/March edition of the Appellate Record newsletter.”

RSVP to Bethany if you’d like to attend. Continue Reading Upcoming HSBA Appellate Section Program: “Oral Arguments – Tips And Insights”

Our thanks to a new colleague from the U. Maine Law School, who gave us the heads-up about a recent decision from that state’s supreme court about private ownership of beaches, Almeder v. Town of Kennebunkport, No. Yor-12-599 (Feb. 4, 2014).

Littoral property owners sued the Town to determine who owns certain portions of the beach. You know the usual drill in beach cases: the wet sand beach, the dry sand beach, uplands, and the water are the usual dividing lines. Some states like Hawaii mandate that all beaches are public, and up to the highest reaches of the wash of the waves. Others say the public beach extends only to the mean high water mark. In others, some beaches may be privately owned down to the low water line.

Maine appears to be one of the latter, and the owners sought declaratory judgments that they owned or had…

Continue Reading Maine: Beach Property Not Subject To Special Rules

Not only did the State win the reapportionment legal case in which it successfully argued that military personnel and their families who reside in Hawaii are not “permanent residents” and thus may be treated as outlanders and ignored for state reapportionment purposes [we represented the plaintiffs who challenged that scheme], but with the proposed defense cuts, it seems that Hawaii officials are now all worried that we might not have all those federal defense dollars flowing so readily from off-island that the large military presence in the islands brings (roughly $18 billion per year). 

It was always ironic to us that on one hand, the State of Hawaii and seemingly every Hawaii pol aggressivly lobbied for a large military presence in Hawaii in order to enjoy the money and the extra seat in Congress that Hawaii’s military population brings us, but when it came time to count these folks…

Continue Reading Looks Like Hawaii Won’t Need To Count All Those Soldiers, Sailors, And Marines In The Next Reapportionment Anyway

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I have a long-running and good-natured contest with my Owners’ Counsel and ABA colleague Dwight Merriam about who gets items of interest “fastest with the mostest.”  More than a few times has he sent me items, only to find out that we’ve already posted on the subject, or there is a post in the hopper. 

But sometimes, not only is Dwight ahead of me, he’s way in front. Today is one of those days. Dwight sends along a bill (HB 1077), now making its way through the Florida Legislature that we were not even aware of until today, but which is of great interest. The bill would prohibit Florida municipal and local governments from inserting a condition in a development permit unless the exaction is related to the “direct impact of a proposed development.”

(1) The Legislature finds that in the land use planning and permitting process, a…

Continue Reading Inverse Schadenfreude: We Are Beaten To The Punch With Florida’s Proposal To Limit Exaction Demands

Here’s the Answer Brief on the Merits, filed last week in the California Supreme Court in City of Perris v. Stamper.

That’s the case in which the court is considering whether, in the context of determining just compensation, the judge or the jury gets to decide whether a city’s exaction is something that is so reasonably likely to happen that it can be taken into account. That, of course, raises the Nollan/Dolan issue, and although this seems like a question of law, the California Court of Appeal concluded that, on the whole, the jury gets this one. We reported on the Court of Appeal decision here.

This brief responds to the Opening Brief, filed last month by the City (and posted here), which argues that the issue is one reserved solely to judges.  The Answer Brief makes two points:

  • The court can solve this case

…
Continue Reading Answering Brief In Stamper: Jury Decides Nollan/Dolan When A Factor In Compensation