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…
The Ninth Circuit has scheduled oral arguments in Maui Vacation Rental Association, Inc. v. County of Maui, No. 08-15251, the Ninth Circuit appeal from the Hawaii district court’s dismissal of MVRA‘s complaint which sought to declare Maui’s shut down of vacation rentals illegal. The court will hear argument on November 21, 2008, at…
So the federal government tells you that the device you are making is not a “machine gun” and you go ahead and start to manufacture them. Times change, though, and three years later “upon further review” (as they say in the NFL), the government tells you that the device is is an illegal “machine gun”…
Today we filed the Reply Brief (925kb pdf) in Maui Vacation Rental Association, Inc. v. County of Maui, No. 08-15251, the Ninth Circuit appeal from the Hawaii district court’s dismissal of MVRA‘s complaint which sought to declare Maui’s shut down of vacation rentals illegal.
I won’t go into the details, since the Reply…
The speed of information on the internet sure is fast. I was preparing a post summarizing the recent Court of Federal Claims decision in Estate of Hage v. United States,No. 91-1470L (May 6, 2008), which awarded Nevadaproperty owners several million dollars in just compensation for the taking of theirvested water rights by the federal…
My colleague Mark Murakami posted a link to a recent newspaper article about lateral beach access; that article spurred the Star-Bulletin editorial “State upholding public policy in Kahala beach access issue.” It seems that vegetation growing on private property is moving — either on its own or with help — makai (towards the…
The County of Maui has filed its Answering Brief in Maui Vacation Rental Association, Inc. v. County of Maui, No. 08-15251, the Ninth Circuit appeal from the Hawaii district court’s dismissal of MVRA‘s complaint which sought to declare Maui’s shut down of vacation rentals illegal.
Our Opening Brief for MVRA is posted here…
The property owner has filed a Petition for Rehearing asking the California Court of Appeal (2d District)to reconsider its decision in Charles A. Pratt Constr. Co., Inc. v. Cal. Coastal Comm’n,No. B190122 (May 8, 2008). In that case, the court held the property owner’s right to develop was not vested, and that atakings claim…
Following up on the earlier post about the cert petition in Matsuda v. City and County of Honolulu, 512 F.3d 1148 (9th Cir. Jan 14, 2008), the Brief in Opposition is posted here (1.7mb pdf). The Supreme Court docket report is here (No. 07-1305).
As noted in this post, the City and County of Honolulu has sought US Supreme Court review of Matsuda v. City and County of Honolulu, 512 F.3d 1148 (9th Cir. Jan 14, 2008). I’ve finally obtained a copy of the petition, which is posted here (2mb pdf). The Supreme Court docket report is here (No. 07-1305).
After detailing the background facts, the petition advances a single Question Presented:
Several lessees of a residential condominium apartment complex (“Lessees”) filed a lawsuit against the City and County of Honolulu (the “City”) challenging Ordinance 05-001 (2005). Ordinance 05-001 repealed the City’s leasehold conversion ordinance, Chapter 38, Revised Ordinances of Honolulu (“ROH”), the statutory process by which leasehold condominium owners, including Lessees, could purchase the leased fee title to their units, through the use of the City’s power of eminent domain. Pursuant to Chapter 38, the Lessees executed contracts with the City for the acquisition of the leased fee interests in their condominium units. However, Lessees never received City Council approval prior to the repeal of Chapter 38, and therefore they were unable under Ordinance 05-001 to complete their leasehold conversion.
The Ninth Circuit Court of Appeals departed from the longstanding policy of judicial deference to local legislative determinations of public use in the exercise of the power of eminent domain and held that the City’s repeal of Chapter 38 may violate the Contracts Clause and/or the Due Process Clause of the Constitution of the United States.
Therefore, the question presented in this petition is as follows:
Whether the Ninth Circuit erred in concluding that the Honolulu City Council’s repeal of the leasehold conversion ordinance may violate the Contracts Clause and/or the Due Process Clause, and whether after the repeal, the City can still be contractually bound to exercise its power of eminent domain to acquire property for the leasehold conversion?
Petition at i-ii.
Chapter 38 was Honolulu’s version of the Hawaii Land Reform Act at issue in Hawaii Housing Auth. v. Midkiff,467 U.S. 229 (1984), and permitted conversion of condominium interests to fee simple, via a condemnation process. In Matsuda, apartment owners applied to the city to”convert” (condemn) theirapartment leases, and entered into written contracts with the city, inwhich the apartment owners each agreed to pay the city $1,000, inreturn for whichthe city promised that after its acquisition of the lease, it wouldconvey it to the apartment owner. The owners subsequently received thecity’s approvals, but final approval by the City Council was withheldbecause the council was already considering repealing chapter 38, whichit did in 2005.
Theordinance repealing chapter 38 eventually contained a provisionallowing any conversion proceeding which has been approved by the CityCouncil to be completed, but because Matsuda’s had not received finalcouncilapproval, the taking was denied. Matsuda and others filed suit againstthe city in federal court,alleging that the repeal of chapter 38 was a violation of the U.S.Constitution’s Contracts Clause. The district court dismissed the case since in the court’s view, the plaintiffs had no legally enforceable contract with the City.
The Ninth Circuit held that thedistrict court should have viewed the repeal of Chapter 38 with”heightened scrutiny” because therepeal of Chapter 38 was the city voiding its own contracts, and remanded the case for further proceedings. Acomplete summary of the Ninth Circuit’s opinion is posted here.
Download the complete Petition for Writ of Certiorari. The Brief in Opposition is posted here.
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