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Conference: ABA Section Of State & Local Government Law Virtual Spring Meeting

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 us: workforce housing, condemnation, land use, and green regulations. You can register for all programs, or individual subjects. A complete list of programs is posted here.

I will be participating as faculty in two of the programs: Condemnation Hot Topics (April 1, 2009 from 2:00 - 3:30pm EDT) and Hot Topics in Land Use Law (April 2, 2009 from noon - 1:30 EDT).  I'll be speaking about the issue of public use and pretext in eminent domain, and recent cases questioning the government's ability to take property.

Registration information is available on the links. If you can't make it for the live programs, the ABA is making recordings available also.  I hope you can join in.

2008 Land Use In Review: Ripeness Games In Regulatory Takings

In 2008, we continued to castigate the Williamson County ripeness rules, culminating in December when we filed an amicus brief urging the Supreme Court to take a harder look at how the "final determination" aspect of the rule is being applied. The rule has two parts.

First, the state-litigation rule requires a regulatory takings plaintiff to pursue -- and lose -- their claim in state court before asserting their federal constitutional claims in federal court. In San Remo Hotel, L.P. v. City & County of San Francisco, 545 U.S. 323 (2005) four Justices agreed Williamson County produces absurd results and denies federal court review of federal constitutional rights, and argued that in an "appropriate case," the Court should reconsider Williamson County. At least two cert petitions were filed suggesting they were the appropriate case. See Braun v. Ann Arbor Charter Township, No. 08-250 (cert. denied Dec. 1, 2008), and Agripost, LLC v. Miami-Dade County, Florida, No. 08-567 (cert. petition filed Oct. 27, 2008).

The second part of Williamson County is the "final determination" rule which requires that the regulator have reached a final decision of what uses would be allowed on the property. A pending cert petition (the one in which we filed the amicus brief) argues that when a property owner submits a detailed development proposal, consults with the government for years, proposes multiple alternatives for development, and the government responds that denial of the application is the "only appropriate course," then its denials are final enough for a court to evaluate, and final enough to allow the landowner to get past "Go." See Charles A. Pratt Const. Co. v. California Coastal Comm'n, No. 08-668 (cert. petition filed Nov. 18, 2008)  (seeking review of 76 Cal. Rptr. 2d 466 (Cal. Ct. App. 2008).

For an example of the strange procedures Williamson County has spawned, see West Linn Corporate Park, LLC v. City of West Linn, Nos. 05-36061, 05-46062 (9th Cir. July 28, 2008), a case in which the Ninth Circuit, after removal from state court and trial in federal court, referred the takings issues in the case to the Oregon Supreme Court, effectively handing off the decision in the case to that court. 

2008 Land Use In Review: The Ninth Circuit Rediscovers Substantive Due Process

In a development that began in November 2007 (2005 actually, if the starting point is seen as the U.S. Supreme Court's decision in Lingle v. Chevron, U.S.A., Inc., 544 U.S 528 (2005)), the Ninth Circuit finally ditched Armendariz v. Penman, 75 F.3d 1311 (9th Cir. 1996) (en banc), and recognized that property owners are not limited to regulatory takings claims when challenging land use regulation, and the government can violate substantive due process as well.  In 2008, the Ninth Circuit issued a number of decisions in which it recognized that Armendariz's forced election of a regulatory takings remedy has been truly overruled. 

Rather than plow through multiple posts, it would be easier to just download a recently published article I wrote on the subject, collecting all the cases, The Ninth Circuit Rediscovers Substantive Due Process In Land Use Cases (31 Zoning and Planning Law Report (Thomson | West Dec. 2008)). It's all in there.

2008 Land Use In Review: Public Use And Pretext In Eminent Domain

One of the bigger developments, at least in Hawaii law, came in the last week of the year. We're talking about the Hawaii Supreme Court's decision in County of Hawaii v. C & J Coupe Family Limited Partnership, No. 28882 (Dec. 24, 2008) (and we're not just hailing the case because we're the attorneys for the landowner).

Note: for those attending the Eminent Domain and Land Valuation Litigation conference, this is the case Professor Kanner mentioned in the morning session as being not reported yet.   See below for the link to the slip opinion.

The Court held that government, not property owners, bears the financial risk that a condemnation fails and, importantly, joins a number of courts in holding that the government's proclamation that a taking is for public use is not immune from judicial inquiry. All five Justices agreed that under Haw. Rev. Stat. § 101-27 (1993), the government must  pay damages (including attorneys fees and courts costs) to make a property owner whole when a taking attempt fails.  Three Justices, in an opinion by Justice Acoba (joined by Justices Nakayama and Duffy) held that a reviewing court must take seriously a property owner's claim that the asserted public use is merely a pretext:

We hold that (1) a landowner in a condemnation action is entitled to damages under HRS § 101-27 where the property at issue is not finally taken in the context of a particular condemnation proceeding, irrespective of whether the government attempts to take the land through subsequent condemnation proceedings; (2) abatement does not apply where the relief sought in two concurrent actions is not the same; and (3) although our courts afford substantial deference to the government's asserted public purpose for a taking in a condemnation proceeding, where there is evidence that the asserted purpose is pretextual, courts should consider a landowner's defense of pretext.  Therefore, (1) automatic denial of statutory damages under HRS §101-27 in Condemnation 1 is vacated and the case remanded for a determination of damages, (2) the court's conclusion that Condemnation 2 was not abated by Condemnation 2 is vacated and the case remanded for a determination of whether the public purpose asserted in Condemnation 2 was pretextual.

Slip op. at 5. The majority opinon is posted here. The Hawaii Supreme Court joined other courts addressing the issue in 2008.  Those opinions will be covered in a separate post, shortly.

2008 Land Use In Review: Shoreline Law

2008 saw no blockbuster court decisions on shoreline law, just a continuation of existing trends.

Setbacks

Shoreline setback are a "no build" zone on private beachfront property, measured from a "setback line."  Hawaii state law establishes a minimum shoreline setback, and the four counties are allowed to establish their own (greater) setback standards. In 2008, Kauai enacted what one commentator described as the nation's "most conservative" shoreline setback regulations (more here), continuing the trend of variable shoreline setbacks measured by historical erosion and accretion rates. For more, check out a U. Hawaii Law Review article on shoreline setbacks, published last year.

Public Access

Shoreline setback lines do not concern ownership, or the boundary between public beaches and private property. The shoreline certification process under the state Coastal Zone Management Act is not supposed to affect property rights or determine where the public may or may not access.  However, the two concepts continue to be conflated, as reflected in this newspaper article, which we discussed in this post.

Taking Without Compensation

In addition to the setback issue, another question regarding Hawaii beaches remains pending in a Hawaii appellate court. The issue in Maunalua Bay Beach Ohana 28 v. State of Hawaii, which is being considered by the Hawaii Intermediate Court of Appeals, is whether the state or littoral landowners are entitled to ownership of accreted land. In "Act 73," the legislature declared that shoreline land naturally accreted belongs to the State of Hawaii and is public property.  The act overturned the age-old rule of shoreline accretion and erosion, which held that beachfront owners lose ownership of land when it erodes, but gain it when it accretes.  Instead of these balanced rules, Act 73 made the erosion/accretion equation one-sided: the State wins every time.  We filed an amicus brief in the appeal, a copy of which is available here.

2008 Land Use In Review: Contested Cases Refined

The Hawaii Supreme Court clarified when an agency hearing will be deemed to be a "contested case" in E & J Lounge Operating Co. v. Liquor Comm'n of the City & County of Honolulu, No. 27940 (July 29, 2008). The issue was whether, as the caption of the case indicates, a public hearing before the Honolulu Liquor Commission was a contested case under Haw. Rev. Stat. § 91-1(5). The court also held that under the automatic approval statute, Haw. Rev. Stat. § 91‑13.5, an agency must act to grant or deny a permit application within a certain time period, but is not required to make a "legally effective" decision, at least procedurally.  Slip op. at 64-65. More here.

2008 Land Use In Review: Environmental Law

We aren't officially an "environmental law" blog, and when we do cover the issue, it is mostly on the periphery.  However, in 2008, we hit a couple of significant issues that had some relevance to land use law. 

First, in the U.S. Supreme Court's first decision of the Term, Winter v. Natural Resources Defense Council, Inc., No. 07-1239 (Nov. 12, 2008), the Court held that prior to issuing preliminary injunctions preventing the Navy from training with mid-frequency active sonar, the lower courts must balance the equities and the public interest, and that the Navy's interest in training for deployment clearly outweighed the environmental concerns of the plaintiffs.  Why did a land use law blog care about a case involving the Navy's use of sonar in training exercises off the California coast?  First, as we explained here, the case is philosophically interesting because of the arguments regarding when courts should defer to the judgment of the executive branch and the military. Second, we filed an amicus brief in the case on behalf of nine retired Admirals and several service support groups (posted here), supporting the Navy's arguments. My Damon Key colleague Mark Murakami and I even published an op-ed in the Honolulu Advertiser about the decision.

Second, in Nuuanu Valley Ass'n v. City & County of Honolulu, No. 28599 (Oct. 24, 2008), the Supreme Court of Hawaii clarified when a project that is not being built on state or county land meets the definition of "use" of such lands triggering review under the Hawaii Environmental Policy Act, Haw. Rev. Stat. ch. 343. The developer of private residential land in urban Honolulu sought to subdivide the property, which required hooking up new drainage system to existing lines. The court held that the connection of new drainage lines to an existing system did not meet the definition of "use" of state or county land, even though the existing system is public. More here.

Finally, the Hawaii Intermediate Court of Appeals, in Ohana Pale Ke Ao v. Board of Agriculture, State of Hawaii, No. 27855 (May 21, 2008), held that the State Board of Agriculture was required to undertake an Environmental Assessment under Hawaii state law prior to approving a permit for the importation of genetically-modified algae for processing in facility on state-owned land at which non GMO algae was already being processed.  More here.

2008 Land Use In Review: Zoning

A round up of interesting and notable zoning decisions:

• Zoning inspectors need a warrant - The US Court of Appeals for the Sixth Circuit, in  Jacob v. Township of West Bloomfield, 531 F.3d 385 (6th Cir. July 3, 2008), held that  zoning inspectors are required by the Fourth Amendment's search and seizure clause must obtain a warrant if the zoning ordinance they are purporting to enforce can lead to criminal prosecution. Full post here.

• Zoning can regulate use of property, not ownership - In City of Wilmington v. Hill, 657 S.E.2d 670 (N.C. Ct. App. 2008), the court struck down a local ordinance that required the owner of a garage apartment to reside either in the main residence or the apartment.  When his permit to build a garage apartment was denied and he was cited for violation of the ordinance, the property owner asserted the owner-occupancy requirement was an unconstitutional regulation of his ownership of the property. The court held that while the zoning power extends to regulating the use of property, it does not allow the government to control "the manner in which property is owned."  More here.

• 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 no standing to enforce the state's land use laws. The Hawaii Supreme Court rejected certiorari review of the case.  Disclosure: we represent the landowner. More here.

• No "property" interest in enforcement of zoning regulation - The Ninth Circuit held that there is no property right in the government's enforcement of historic preservation laws, and that a municipality's alleged failure to enforce its zoning laws was not a violation of the Fourteenth Amendment..  Shanks v. Dressel, No. 06-35665 (Aug. 27, 2008).  More here.

• Agency can tell landowner how to remain a nonconforming use - The planning department has the ability to inform a landowner whose use of property is a legal nonconforming use what it needs to do in order to remain so.  Save Diamond Head Waters LLC v. Hans Hedemann Surf, Inc., No. 27804 (Haw. ICA Dec. 19, 2008).  Details here.

2008 Land Use In Review

Yet another year has come and gone -- our third at this blog, -- so it's time to start off our annual summary of the past year's highlights (or lowlights, depending on your point of view) in land use law and other topics covered on inversecondemnation.com.

It was mostly a year of incremental doctrinal shifts, with a couple of sea changes thrown in for excitement: the Ninth Circuit finally ditched Armendariz and recognized the validity of substantive due process in land use cases; the Hawaii Supreme Court came out strongly in favor of property owner's rights in eminent domain proceedings, holding that courts should not simply take the government's word that a taking is for public use, and requiring the government to bear the economic burden when its attempts to take property fail; the Hawaii intermediate appellate court held that there is no private right of action under the state land use laws.

It was also a year in which certain issues kept coming back: Williamson County ripeness (the trending on this case will continue, as it dawns on more and more courts -- and maybe perhaps the Supremes sometime soon -- what that decision is all about), and state courts around the country struck out on their own on the takings-for-economic-development issue.

Hot topics in Hawaii: the impending condemnations for Honolulu's multi-billion rail project which was approved by voters in November; the continuing issue of "vacation rentals," the upcoming "ceded lands" decision by the U.S. Supreme Court; and the seemingly perpetual Hawaii Superferry litigation. Yet, for all the heat generated in the media about these topics, there was very little actual movement in the law.  Maybe 2009 will provide that.  

So stay tuned over the next few days as we run down the year's issues.

If you think we missed any key cases or events, please send an email, or suggest a topic yourself in a comment.