Instead of an in-person Spring Meeting this year, the ABA Section of State & Local Government Law will be “meeting” virtually from March 31-April 2, 2009. As part of the meeting, the Section will be featuring a series of teleconference and live audio webcasts on a variety of subjects including topics near and dear to
Materials From 2/20/2009 Land Use Seminar
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
Upcoming Seminar: Zoning, Subdivision And Land Development Law
There’s still time to register for the Zoning, Subdivision and Land Development Law seminar, to be held in Honolulu on February 20, 2009.
I’m presenting a session on “U.S. Supreme Court, Regulatory Takings and Eminent Domain Update.” My Damon Key colleagues are covering “Affordable Housing Exactions” and “Vacation Rentals” (Mark Murakami), “Rockfall and Landowner Liability”
Materials From Hawaii Land Use Law Conference
To those who attended Thursday’s and Friday’s conference, thank you. Here are the cases and other materials I mentioned in my portion:
- Shoreline setbacks and equitable estoppel – Brescia v. North Shore Ohana 115 Haw. 477, 168 P.3d 929 (2007)
- State shoreline setback – Haw. Rev. Stat. § 205A-43
- Counties have authority to enact their own setbacks – Haw. Rev. Stat. § 205A-45
- 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.
- Substantive due process in the Ninth Circuit after Lingle – The Ninth Circuit Rediscovers Substantive Due Process in Land Use Cases
- 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.
- “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
Upcoming: Hawaii Land Use Law Conference
It’s not too late to register to attend the Hawaii Land Use Law Conference, taking place January 15 and 16, 2009, in Honolulu.
Items on the agenda include eminent domain, environmental law, transit-oriented development, subdivision requirements, and cultural impact statements. The program co-chairs are Professor David Callies and land use lawyer Ben Kudo.
This
At The ALI-ABA Conference On Eminent Domain And Land Valuation
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
Teleconference on How to Deal With NIMBYs
Check this out: an upcoming teleseminar on “Not in My Backyard (NIMBY): Development Resistance.” “This teleconference will provide practical, actionable tools toanticipate and avoid community resistance to controversial land useprojects and to actively build community enthusiasm for the proposal.” Sounds good to me. For this and other land use-related lexicon, see NIMBYs, BANANAs
Links From UH Historic Preservation Workshop
To those who attended the workshop at the University of Hawaii law school, Hawaii State Historic Preservation Laws: Reclaiming the Past, Shaping the Future, thank you. Here are links to the cases I mentioned in my presentation.
- Penn Central Trans. Co. v. New York City, 438 U.S. 104 (1978),a case that highlights
Upcoming UH Law School Workshop on Preservation Laws
Mark your calendars for Saturday, September 27, 2008. Ka Huli Ao Center for Excellence in Native Hawaiian Law at the University of Hawaii School of Law will be presenting a workshop “Hawaii State Historic Preservation Laws: Reclaiming the Past, Shaping the Future.”
I will be speaking on “Background Principles and Paradigm Shifting: The
Coastal Land Use Law Seminar
There is still time to sign up to attend an upcoming seminar, Coastal Engineering and Land Use Issues, in Honolulu. It’s being held on Thursday, August 14, 2008, at at Hilton Waikiki Prince Kuhio Hotel. My colleagues and fellow law bloggers Mark Murakami and Jesse Souki are among the faculty. Topics on the agenda