We bring you the latest guest post by colleague Paul Schwind, who has been tracking the issues and arguments that recently led the Hawaii Supreme Court to conclude, in DW Aina Lea Development, LLC v. Bridge Aina Lea, LLC, No. SCAP-13-0000091 (Nov. 25, 2014), that the Hawaii Land Use Commission wrongfully rescinded an
Registration Open: 2015 Hawaii Land Use Law Conference, Jan. 15-16, 2015
Registration is now open for the 2015 Hawaii Land Use Law Conference, to be held in downtown Honolulu on Thursday-Friday, January 15-16, 2015.
This is the bi-annual conference, co-chaired by U. Hawaii lawprof David Callies and land use lawyer Ben Kudo, that brings together the big names in our area of law. In other
HAWSCT: Land Use Comm’n Can’t Rescind A Re-zoning Via Truncated Procedures
The Hawaii Supreme Court has issued a lengthy opinion in a case we’ve been following, DW Aina Lea Development, LLC v. Bridge Aina Lea, LLC, No. SCAP-13-0000091 (Nov. 25, 2014).
The litigation is a series of two lawsuits that originated in state court in the Third Circuit (Big Island), one an original jurisdiction civil rights
HAWSCT Oral Arguments In In Bridge Aina Lea: LUC Reclassifications And Orders To Show Cause
Here is the recording of last month’s Hawaii Supreme Court oral arguments in Bridge Aina Lea Dev., LLC v. Bridge Aina Lea, No. CAAP-13-0000091.
This is the state court half of the case. The federal court half is pending in the Ninth Circuit, which, after oral arguments earlier in June, decided to hold
Professor Epstein On SCOTUS Rails-To-Trails Decision
Professor Richard Epstein shares his insight about the U.S. Supreme Court’s recent 8-1 decision in Marvin M. Brandt Revocable Trust v. United States, No. 12-1173 (Mar. 10, 2014).
The issue in the case was whether the federal government retained an “implied reversionary interest” when it issued railroad patents to private landowners, or whether these grants were subject
How Do You Solve A Problem Like … Appellate Mootness? More Process!
The Hawaii Supreme Court has been on a roll lately, giving us a series of decisions clarifying appellate procedure. So in the past couple of months, we’ve got cases about appealability, dismissing appeals for a brief not conforming to the rules, and what is a final appealable order. Good stuff for those
Do You Have A Right To Continue A Business?
Last month, we posted a decision about nonconforming uses, White v. City of Elk River, No. A12-0681 (Minn. Dec. 4, 2013), and want to follow up by posting a good summary of the issues, as well as the amicus brief that was filed in the case in support of the property owner.
Start here
Links From Today’s Session On GMO Issues
Here are links to some of the materials mentioned at our session today on the GMO issue at the Hawaii Agriculture Law Conference:
- The Kauai ordinance, Bill 2491.
- The Kauai Mayor’s veto message, which included the privilege-waived memorandum of law detailing the legal problems with the measure.
- The County of Hawaii’s Big
Minn S Ct: Zoning Requirement To Obtain CUP Does Not Affect Nonconforming Use Owner’s Property Rights
A key win for property rights today in the Minnesota Supreme Court’s decision in White v. City of Elk River, No. A12-0681 (Dec. 4, 2013). In that case, the court concluded that a municipality could not revoke a campground’s nonconforming use as penalty for alleged violations of the conditions of the conditional use permit.
Amici Brief In Rails-To-Trails Case: Tenth Circuit Repudiated Common Law Rules Of Property
Here’s the amici brief of Pacific Legal Foundation and the Center for Constitutional Jurisprudence in Marvin M. Brandt Revocable Trust v. United States, No. 12-1173 (cert. granted Oct. 1, 2013). That’s the case in which the Court is considering the meaning of the term railroad “right of way” as used in an 1875 federal statute.
As we’ve explained, although this case is a quiet title action out of a Colorado U.S. District Court, it could have huge implications for rails-to-trails takings cases in the Court of Federal Claims and the Federal Circuit. The issue is whether the federal government retained an “implied reversionary interest” when it issued railroad patents, or whether these grants were subject only to a railroad easement. The difference is that easements may be extinguished, while reversionary interests cannot.
The Tenth Circuit, in contrast to other courts, held that the right of way is subject to an implied reversionary interest in favor of the United States, meaning that the property owner doesn’t have “property” that was taken when the railroad was abandoned and was turned into a recreational trail. The merits brief of the petitioners is posted here.
We filed an amicus brief in the case, available here.
The PLF/CCJ brief argues:
This case raises important questions regarding the common law system of property ownership and the certainty of titles in property.
…
In the decision below, however, the Tenth Circuit repudiated the common law rules of property ownership in favor of a per se rule, holding that the United States—the original grantor of the railroad easement and the Brandts’ fee estate—will retain an “implied reversionary interest” in an 1875 Act right-of-way, even after the government patents the underlying land and conveys it to a private party without any express reservation of reversionary rights. … The decision below extended the Tenth Circuit’s rule, holding that all private landowners whose titles are traceable to a federal land patent will be subject to the government’s unexpressed reservation of a reversionary interest in a railroad right-of-way, regardless of the rights and expectations established by their titles.
…
If not reversed, the Tenth Circuit’s rule will unsettle the rights and expectations of tens of thousands of landowners across the nation. … Amici urge this Court to reverse the Tenth Circuit’s opinion in this case and to reaffirm the fundamental common law principle that ownership of land will be determined by title, not implication.
More background on the case in a piece in Jurist by PLF’s Brian T. Hodges, “Brandt v. US: Should the Common Law of Propert be Scrapped?”