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 Ordinance 05-001 repealed the City’s leasehold conversion ordinance, Chapter 38, Revised Ordinances of Honolulu (“ROH”), the statutory process by which leasehold condominium owners,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.
Continue Reading PING: use of ultrasonographyURL: http://www.kiwibox.com/ultrasoundtech/portrait/IP: 64.191.76.118BLOG NAME: use of ultrasonographyDATE: 02/04/2013 10:46:06 AMinversecondemnation.com: Can a City Bind Itself to Exercise Eminent Domain? Cert Petition in Ninth Circuit Case on Reserved Powers, Public Use, and Contracts Clause (Matsuda)
In Huntleigh USA Corp. v. United States, No 2007-5118 (May 15, 2008), the US Court of Appeals for the Federal Circuit held that a company which provides passenger and baggage screening services at airports did not have a protectable Fifth Amendment property interest in contracts to provide those services to airlines. Huntleigh sought just compensation for a taking after the federal government assumed security screening in the wake of the 2001 terror attacks, and rendered its existing screening service contracts worthless.
In 1974, Congress required the airlines to screen passengers and luggage, and most airlines hired private contractors to perform the screenings. In 2001, Huntleigh had contracts with 75 airlines, and was responsible for screening at 35 airports nationwide. After the 2001 terrorist attacks, Congress created the Transportation Security Administration and determined that the new agency could provide better security. Congress enacted the Air Transportation Security Act which provides that the TSA could accomplish the screening itself, or could “assume the rights and responsibilities” of the airlines by assuming private security contracts. If TSA chose the latter option, ATSA required it to provide “adequate compensation to parties to the contract.”
The law effectively terminated Huntleigh’s security contracts, and it filed suit in the Court of Federal Claims seeking just compensation for a taking of its property, and compensation under ATSA. The CFC held that Congress had merely frustrated Huntleigh’s business expectations, and that TSA had not actually assumed any of its contracts but had instead taken over its screening duties.
The Federal Circuit affirmed, holding that the contracts were not property. Huntleigh argued that the government did not merely frustrate its business expectations, but had, in effect, made its contracts illegal. Relying upon Omnia Commercial Co. v. United States, 261 U.S. 502 (1923), the court disagreed.
In this case, the purpose of ATSA was not to take action with respect to any security screening contract to which Huntleigh was a party. Rather, its purpose was to transfer security screening responsibilities from the airlines to the federal government. This action, directed at the airlines, frustrated Huntleigh’s business interests.
Slip op. at 17. The court also affirmed the CFC’s determination that ATSA compensation was not required because TSA did not actually assume Huntleigh’s contracts, but took over its duties. A fine distinction, but one that was enough for the Federal Circuit. Slip op. at 22.
Continue Reading Federal Circuit: No Property in Contract for Airport Screening Service
In Charles A. Pratt Constr. Co., Inc. v. Cal. Coastal Comm’n, No. B190122 (May 8, 2008), the California Court of Appeal (2d District) held the property owner’s right to develop was not vested, and that a takings claim was not ripe since the owner could submit other plans for development.
In that case, the…
To all who attended Wednesday’s Integrating Water Law and Land Use Planning seminar, thank you. Here are links to the cases and statutes I discussed:
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There’s still time to sign up for the “Integrating Water Law and Land Use Planning in Hawaii,” to be held on May 14, 2008. I’m on the faculty, leading a session on “Water Rights, Property Rights and the Law of Settled Expectations.” More information here, including registration information. If you attend, please…
Today we filed the Opening_Brief (250kb 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 details of the case since the…
