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.

• County of Hawaii v. C & J Coupe Family Limited Partnership, No. 28882 (Dec. 24, 2008) – public use, pretext, and damages for failed taking

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.

• When a project not being built on state or county land meets the definition of “use” of such lands triggering chapter 343 environmental review – Nuuanu Valley Ass’n v. City & County of Honolulu, No. 28599 (Oct. 24, 2008)

• Illinois Supreme Court decision about the 3% “surcharge” on casinos, which was given to horse racing tracks. Empress Casino Joliet Corp. v. Giannoulias, No. 104586 (June 5, 2008)

• Is destruction of evidence seized from an innocent third party a taking? AmeriSource Corp. v. United States, No. 08-497 (cert. petition filed Oct. 15, 2008)

• Development Moratorium a Taking Under Lucas – Monks v. City of Rancho Palos Verdes, No. B201280 (Cal. Ct. App. Oct. 1, 2008)

• 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.

• Charles A. Pratt Constr. Co. v. California Coastal Comm’n (cert petition on Williamson County and Penn Central)

• Aspen Creek Estates, Ltd. v. Town of Brookhaven – New York Court of Appeals  (comprehensive taking plan)

• City of Stockton v. Marina Towers LLC – Cal. Court of Appeal (details required in resolution of necessity)

• Resource Investments, Inc. v. United States– Court of Federal Claims (massive opinion and primer on regulatorytakings – erroneous exercise of jurisdiction as a temporary taking)

• Florida regulatory takings cases – Florida Supreme Court and District Courts of Appeals

• Substantive due process in the Ninth Circuit after Lingle – The Ninth Circuit Rediscovers Substantive Due Process in Land Use Cases

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