Development agreements

Thank you to those who were able to join us live for today’s teleconference. Here are the links to the additional cases and other items I mentioned (or wanted to mention) in my session on Public Use and Pretext Update:

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Following up on this story, West Hawaii Today reports “Attorneys argue against Supreme Court ruling on bypass,” about whether a second attempt to condemn property ostensibly for a road ispretextual when the court determined the first attempt was unconstitutional and nothing changed:

Attorneys for the Richards family and theCoupe Trust, in documents…

As reported in this story from West Hawaii Today, a Hawaii trial court is considering whether a second attempt to condemn property ostensibly for a road is pretextual when it determined the first attempt was unconstitutional. Disclosure: we represent the property owner in this case.

“Classic” Uses Not Immune

In County of Hawaii v. C&J…

The modified opinion in Building Industry Ass’n of Central California v. City of Patterson, No. F054785 (Cal. Ct. App. Mar. 2, 2009), a case we summarized here, has been further modified in this order. The latest modifications do not alter the judgment that the a city could notincrease an in-lieu affordable housing…

In Building Industry Ass’n of Central California v. City of Patterson, No. F054785 (Cal. Ct. App. Mar. 2, 2009), the California District Court of Appeal held that the city could not increase an in-lieu affordable housing exaction from $734 to $21,000 per house, because it failed to show the increase was attributable to the…

Some interesting reports today:

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Here are the links to the cases that I spoke about in my session in today’s seminar “Supreme Court, Regulatory Takings and Eminent Domain Update.”  Not all of the cases we discussed today are included below, so if you would like a link or more information about a case that is not listed, please email me at rht@hawaiilawyer.com and I will send it to you.

The majority opinion by Justice Acoba, joined by Justices Nakayama and Duffy is posted here:

We hold that (1) a landowner in a condemnationaction is entitled to damages under HRS § 101-27 where the property atissue is not finally taken in the context of a particular condemnationproceeding, irrespective of whether the government attempts to take theland through subsequent condemnation proceedings; (2) abatement doesnot apply where the relief sought in two concurrent actions is not thesame; and (3) although our courts afford substantial deference to thegovernment’s asserted public purpose for a taking in a condemnationproceeding, where there is evidence that the asserted purpose ispretextual, courts should consider a landowner’s defense of pretext. Therefore, (1) automatic denial of statutory damages under HRS §101-27in Condemnation 1 is vacated and the case remanded for a determinationof damages, (2) the court’s conclusion that Condemnation 2 was notabated by Condemnation 2 is vacated and the case remanded for adetermination of whether the public purpose asserted in Condemnation 2was pretextual.

Slip op. at 5. Here’s the concurring and dissenting opinion by Chief Justice Moon joined by Justice Levinson. The briefs in the case are available here:  Opening Brief, Answering Brief of the County of Hawaii, Reply Brief. Disclosure: we represent the property owner.

  • No private right of action to enforce zoning – The Hawaii Intermediate Court of Appeals, in Pono v. Molokai Ranch, Ltd.,119 Haw. 163, 194 P.3d 1126 (2008), held that a private party had nostanding to enforce the state’s land use laws. The Hawaii Supreme Courtrejected certiorari review of the case.  Disclosure: we represent thelandowner. More here.

Continue Reading Materials From 2/20/2009 Land Use Seminar

To those who attended Thursday’s and Friday’s conference, thank you.  Here are the cases and other materials I mentioned in my portion:

  • No private right of action to enforce zoning – The Hawaii Intermediate Court of Appeals, in Pono v. Molokai Ranch, Ltd.,119 Haw. 163, 194 P.3d 1126 (2008), held that a private party had nostanding to enforce the state’s land use laws. The Hawaii Supreme Courtrejected certiorari review of the case.  Disclosure: we represent thelandowner. More here.
  • Maunalua Bay Beach Ohana 28 v. State of Hawaii, the appealnow pending in the Intermediate Court of Appeals.  The issue in thatcase is whether the state or littoral landowners are entitled toownership of accreted land. In “Act 73,” the legislature declared thatshoreline land naturally accreted belongs to the State of Hawaii and ispublic property.  The act overturned the age-old rule of shorelineaccretion and erosion, which held that beachfront owners lose ownershipof land when it erodes, but gain it when it accretes.  Instead of thesebalanced rules, Act 73 made the erosion/accretion equation one-sided:the State wins every time.  We filed an amicus brief in the appeal, acopy of which is available here.

The majority opinion by Justice Acoba, joined by Justices Nakayama and Duffy is posted here:

We hold that (1) a landowner in a condemnationaction is entitled to damages under HRS § 101-27 where the property atissue is not finally taken in the context of a particular condemnationproceeding, irrespective of whether the government attempts to take theland through subsequent condemnation proceedings; (2) abatement doesnot apply where the relief sought in two concurrent actions is not thesame; and (3) although our courts afford substantial deference to thegovernment’s asserted public purpose for a taking in a condemnationproceeding, where there is evidence that the asserted purpose ispretextual, courts should consider a landowner’s defense of pretext. Therefore, (1) automatic denial of statutory damages under HRS §101-27in Condemnation 1 is vacated and the case remanded for a determinationof damages, (2) the court’s conclusion that Condemnation 2 was notabated by Condemnation 2 is vacated and the case remanded for adetermination of whether the public purpose asserted in Condemnation 2was pretextual.

Slip op. at 5. Here’s the concurring and dissenting opinion by Chief Justice Moon joined by Justice Levinson. The briefs in the case are available here:  Opening Brief, Answering Brief of the County of Hawaii, Reply Brief. Disclosure: we represent the property owner.

  • “Arrow of Time, Vested Rights, Zoning Estoppel, and Development Agreements in Hawaii’ (published by the U. Hawaii Law Review in Feb. 2006). Drop me an email, and I will email you a pdf, or send you a hard copy (tell me which).

Continue Reading Materials From Hawaii Land Use Law Conference

Currently at the annual conference on eminent domain law – as always, well worth attending.

In the morning’s session, Professor Kanner mentioned the recent decision in County of Hawaii v. C & J Coupe Family Limited Partnership, No. 28882 (Dec. 24, 2008), which has not yet been published in the official reporters.  The slip…