March 2017

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Save the date: the William & Mary Law School’s Brigham-Kanner Property Rights Project has selected University of Hawaii Law Professor David L. Callies as the 2017 recipient of the Brigham-Kanner Property Rights Prize.

The Project has also announced the dates for the B-K Conference:

When: October 10-13, 2017

Where: William & Mary Law School, Williamsburg, Virginia

The 2016 Conference was held in The Hague, Netherlands, and in 2017, and as you can see, we’ll be returning to Williamsburg.  

The Conference starts with the traditional candlelight dinner and presentation of the Prize in the historic Wren Building, and the following day is a series of discussions about the prizewinner’s work, current issues in property law, and, naturally, property rights. The speakers and attendees are legal scholars and practicing lawyers, and there is also a large contingent of law students of course. 

Professor Callies will be…

Continue Reading Professor David Callies To Be Awarded Brigham-Kanner Prize At Property Rights Conference (Oct. 10-13, 2017), William & Mary Law School

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From time to time, we’ve posted job openings here in the legal field in Honolulu. But never an opening on our home turf.

Well today, we’re soliciting applications for a litigation associate in our law firm, Damon Key Leong Kupchak Hastert. We’re not going to reprint the official job posting (“challenging and rewarding environment, strong writing and research skills, salary commensurate with experience, plays well with others,” & etc., etc.), since if you are reading this post, you likely already understand what we do. For a wider flavor of the firm’s work (we don’t just do land use, condemnation, appeals, and election law, but also commercial litigation, construction, maritime, and pretty much anything that requires courtroom skills), check out our colleagues’ law blogs, insurancelawhawaii.com, hawaiioceanlaw.com, and hawaiiconstructionlaw.com. 

We prefer lawyers who are already members of the Hawaii Bar, but we’re not ruling out those who would sit…

Continue Reading Wanted: Litigation Associate

It’s flashback to Property I class today, folks.

Yesterday’s opinion from the U.S. Court of Appeals for the Eighth Circuit in Barfield v. Sho-Me Power Elec. Coop., No. 15-2964 (Mar. 29, 2017) was about easements, and there wasn’t really a takings issue presented, but we thought we would post it anyway since it is a good reminder of your traditional “Blackacre” property law principles, and because we have had easements on the brain lately, due to that topic being at the center of a cert petition we recently filed. 

As the caption of the case might inform you, this was a case about Missouri law, in federal court presumably under diversity jurisdiction. The plaintiffs had granted Sho-Me, a rural electric cooperative, easements which gave it “the right to construct and operate an electric transmission line. Some grant the right to construct appurtenances or do things ‘necessary and useful to…

Continue Reading 8th Circuit: Not Using Easement For Granted Purpose = Trespass And Inverse Condemnation, But Not Unjust Enrichment

Honolulu Civil Beat has an interesting editorial today about the Honolulu rail project, the 20-station, 21-mile elevated steel-on-steel project now being built at a cost that was first projected at about $3.8 billion, and at last count is somewhere in the $8 – $11 billion range.

The editorial, “Honolulu Rail: City Needs To Get It Together Or Give It Up,” posits that the “perpetually beleaguered rail project is still at least $2 billion short,” and “the absence of any decisive leadership … leav[es] taxpayers on ‘a never ending hook.'” The City, the piece argues, needs to get its act together, because the people, “are by no means past the point of no return,” and substantially modifying, or even killing the project and rebooting should not be ruled out.  

In our opinion, none of that will happen. Now that we are past the recent election — yet another…

Continue Reading Rickrolling Rail

Another one (short) from the Kansas Supreme Court, this time a straight takings case, and not inverse condemnation. 

In Pener v. King, No. 114850 (Mar. 24, 2017), the court tackled several issues in a case involving KDOT’s taking of land for highway project. Part of the taking required KDOT to take down the owner’s fences. The owner argued that he should be separately compensated for the cost to replace the fencing. The Supreme Court held that the just comp award included the fencing, and that it wasn’t a separately value taking. The “unit rule” means that property is valued as a whole, not piece by piece. 

The court also rejected the owner’s argument that the just compensation verdict wasn’t supported by the evidence (we will let you read that on your own, if interested), and then concluded by affirming the trial court’s denial of an award of attorneys’…

Continue Reading Kansas: Cost Of Replacing Fence On Condemned Property Isn’t Separate, But Part Of Just Comp Award

A noteworthy decision from the Kansas Supreme Court in Creegan v. State of Kansas, No. 111082 (Mar. 24, 2017).

The facts of the case are pretty simple. Kansas DOT purchased land in a subdivision subject to restrictive covenants (CC&R’s) which required all property within the subdivision to be used for single-family residential only. KDOT didn’t use the land it bought for residential purposes, but “placed trailers on these lots and, in subsequent years, used the lots for various construction activities. Eventually, KDOT constructed permanent bridges and pavements on a number of the lots.” Slip op. at 3. Other lot owners brought an inverse condemnation suit.

The trial court dismissed because violation of the restrictive covenants was not a physical taking, but the Court of Appeals reversed. The plaintiffs’ property wasn’t damaged nor was it physically invaded. It held that that the covenants are real property and that KDOT’s use of…

Continue Reading Kansas – “Property” Or “Contract” Makes No Difference: State Violating Restrictive Covenant Is Inverse Condemnation

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We were in the neighborhood recently, so our Canadian colleague Shane Rayman suggested we pay a visit to the site of the largest expropriation (taking) of land in that country’s history, and what has been described as “the largest population displacement … since the 18th-century expulsion of the Acadians from the Maritimes.” 

We’re talking about Montreal’s Mirabel International Airport, located about an hour north of the city.

You’ve flown into Montreal and don’t know this airport, you say? Well, here’s the (short) story and some pictures. For the longer tale, start with the wikipedia entry, the hit up these news reports:

In the 1960’s, Montreal was booming. It was Canada’s…

Continue Reading “A Total Disaster From Start To Finish” – Expropriation And Economic Development, Canadian Style

Here’s what we’re reading this Friday:

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Day 1, 2017 ALI-CLE Eminent Domain And Land Valuation Litigation Conference, San Diego
Notes And Links From Today’s Hawaii Land Use Conference Session

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Continue Reading Friday Round-Up: Murr Arguments, Exactions Cert Petition, Houston “Zoning”

Here’s the cert petition, docketed yesterday, in a case we’ve been following on legislatively-imposed permit exactions, an issue in dire need of Supreme Court resolution. 

Here’s the Question Presented:

A City of West Hollywood ordinance requires that builders of a proposed 11-unit condominium pay a $540,393.28 “affordable housing fee” to subsidize the construction of low-cost housing elsewhere in the City. The ordinance imposes the fee automatically as a condition on the approval of a building permit, without any requirement that the City show that the project
creates a need for low-cost housing.

The question presented is: 

Whether a legislatively mandated permit condition is subject to scrutiny under the unconstitutional conditions doctrine as set out in Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586 (2013); Dolan v. City of Tigard, 512 U.S. 374 (1994); and Nollan v. California Coastal Commission, 483 U.S. 825 (1987).

Stay tuned, folks. 

Petition for…

Continue Reading New Cert Petition: Are Legislatively-Imposed Permit Conditions Subject To Nexus/Proportionality?

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No, this isn’t the Supreme Court, it’s Graceland,
purchased by Elvis in March 1957.
(We’re just checking whether you are paying attention.) 

Appellate oral argument, as they say, is supposed to be a “conversation” between the bench and counsel. But the overall impression we were left with after reviewing the transcript of yesterday’s Supreme Court oral arguments in Murr v. Wisconsin, the case about the “larger parcel” or “denominator” in regulatory takings cases, was that just about everyone in the courtroom was talking on different wavelengths. 

Don’t get us wrong — arguing counsel for all the parties and amicus did a pretty good job, in our view. They are advocates, after all, and their job is to champion their clients’ position, not to solve the Court’s confusion, and problems that appear entirely self-inflicted.

Two of the parties (the Murrs and the State of Wisconsin) urged the Court to adopt…

Continue Reading Affirmed By An Equally Confused Court? Some Thoughts On The Oral Arguments In The “Larger Parcel” Case