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.  

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

• Zoning - In 2008, we saw decisions that held that zoning inspectors may need a warrant if the zoning code contains criminal sanctions; a limitation on the zoning powers to questions of use, not ownership; a ruling that there is no federal constitutional right to have the government enforce the zoning code; and a ruling that private citizens have no cause of action against another landowner for allegedly violating a zoning statute.  More here.

• Environmental Law - The US Supreme Court held that the Navy's training requirements must be considered before imposing an injunction to protect marine mammals from the supposed effects of active sonar; the Hawaii Supreme 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; and the Hawaii Intermediate Court of Appeals held that the State Board of Agriculture was required to undertake an Environmental Assessment 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 about these cases here.

• Administrative Law - The Hawaii Supreme Court refined the definition of "contested case" and when an agency hearing will lead to appellate review by the courts. More here.

• Shoreline Law - 2008 saw no blockbuster court decisions on shoreline law, just a continuation of existing trends in setbacks, public access, and takings. Doesn't mean it wasn't an interesting year, as shoreline issues are always compelling in Hawaii.  More here.

• Eminent Domain - Pretextual Takings - In a landmark decision involving the attempted taking of property for a road, the Hawaii Supreme Court in County of Hawaii v. C & J Coupe Family Limited Partnership, No. 28882 (Dec. 24, 2008) 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. Details here.

• The Ninth Circuit Rediscovers Substantive Due Process in Land Use Litigation - 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. More, including a link to a Zoning and Planning Law Report article on the subject, here.