inversecondemnation.com

They Say It's Your Birthday, Well It's Our (17th) Birthday Too, Yeah!

Every year at this time, it seems, we realize once again that as you get older, you overlook birthdays. Time speeds up, or maybe slows down. Very Proustian.

Thus, it occurred to us only yesterday that that this blog's "birthday" was looming and we almost let it slip by without notice. It hardly seems like seventeen years ago this day that we posted here for the first time.

In law blog years, that's quite a while. Thanks to you, our readers and contributors, we're still here, and still going pretty strong over 4,500 posts and nearly two decades later. 

Because doing this in a vacuum would not be worthwhile, we'd like to recognize those who send us items, who make comments, who give us feedback, who gently prod with suggestions, and who simply read and subscribe. You guys make the efforts that go into this thing all worth it. You are why we keep it going: this blog has allowed us to connect with many of you over the years all over the country and even internationally, an opportunity we'd otherwise probably not have had. Many of you have become colleagues, and many of you have become friends.

And though there's a lot of crossover with the above, we'd also like to hail our fellow law bloggers who, like us, make the time to share thoughts about the legal issues of the day. Although you're not quite "Real Men [and Women] of Genius," today we salute you, Mr. and Ms. Law Blog Blogging Bloggers:

• Clint Schumacher's Eminent Domain Podcast (this isn't a blog, technically, but come on, man!)
• Tony Della Pelle's NJ Condemnation Law
• Brad Kuhn's California Eminent Domain Law Report
• Tred Eyerly's Insurance Law Hawaii
• Michael Rikon's Bulldozers at Your Doorstep
• Anastasia Boden's and Elizabeth Slattery's Dissed Podcast
• Infrastructure Junkies Podcast
• Dwight Merriam's Merriam's Corner
• Patty Salkin's Law of the Land
• Professor Gideon Kanner's Gideon's Trumpet
• Mark Murakami's Hawaii Ocean Law
• Julie Tappendorf's Municipal Minute
• Ben Lowenthal's Hawaii Legal News
• Horvitz & Levy's At the Lectern
• Abbott & Kindermann's Land Use Law Blog
• Bryan Wenter at Miller Starr Regalia's Land Use Developments
• Dan Dalton's RLUIPA Blog

There surely are others, and if we've omitted any who should be acknowledged, we apologize and plead a failing memory (see above). Besides, you know who you are. Let's keep it going.

CA9: Property Owner Has Standing To Challenge Commercial Eviction Moratorium Under Contracts Clause

This is one of ours -- argued by our Pacific Legal Foundation colleague Kady Valois -- so we won't be offering any commentary.

But we just have to post the U.S. Court of Appeals' opinion in Iten v. County of Los Angeles, No. 22-55480 (Aug. 30, 2023), because it discusses two significant issues, and sets out a roadmap for how to successfully plead a Contracts Clause claim.

First, standing. The court held that a commercial property owner -- a retired auto mechanic who leased his premises to an auto repair shop -- has Article III standing to challenge the County's commercial eviction moratorium which prevented the owner from evicting the tenant when it stopped paying rent but did not vacate. The court distinguished the standing requirement of "demonstrating injury in fact" from the question of whether the plaintiff has actually been injured. The first is a pleading requirement and turns on the nature of the claim, while the latter is a factual question for the trier-of-fact. Slip op. at 10-12. That is an important distinction that many frequently forget. We've all been in cases where the merits question gets bootstrapped into a question of whether the plaintiff is injured.

Second, to see whether Iten met the pleading requirement, the opinion goes into the nature of a claim under the Contracts Clause, noting it "was the most litigated constitutional provision in the nineteenth century." Slip op. at 13. But as we know, the Contracts Clause later fell out of favor with the courts, and "[s]trict application of the Contracts Clause ended in the Minnesota Moratorium case." Slip op. at 15. The Ninth Circuit continued:

The modern approach to the Contract Clause now considers not only whether the law impairs the obligation of the contract, but asks how “substantial” that impairment is and whether the state law is an “appropriate” and “reasonable” use of state police power. See Sveen v. Melin, 138 S. Ct. 1815, 1821–22 (2018) (quoting Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400, 411–12 (1983)). Although, post-Blaisdell, a Contracts Clause claim analysis requires additional inquiries, the merits of a Contracts Clause claim has always started with whether or not there is a change in a law (an “obligation”) that has impaired the original agreement of the parties.

Id.

Next, the court noted that "mortgage moratoria were, from the beginning, at the heart of the Contracts Clause. A law affecting or changing the terms the parties previously agreed to is the quintessential example of what the Contracts Clause was designed to prohibit." Id. This means that Iten, who is prohibited from evicting his non-paying commercial tenant because the County's prohibition, has standing to challenge the County's (alleged) realignment of the agreement between him and the tenant.

The court rejected the district court's rationale that despite the legal prohibition, Iten might have tried to evict the nonpaying tenant. The moratorium requires nonpaying tenants who wish to invoke the ordinance's protection to inform an owner, but the tenant here did not. Thus, the district court reasoned, Iten could have evicted for nonpayment of rent. The Ninth Circuit had a different view:

To show injury and causation for standing purposes, Iten need not allege that he would have been able to evict his Tenant “but for” the Moratorium. Nor need he show that his Tenant qualifies for the affirmative defense provided by the Moratorium. Rather, Iten need only allege that the Moratorium imposed additional rights, remedies, conditions, or procedures that impair the obligations to which he and his Tenant had contracted. Iten has made that showing here. He has alleged that Los Angeles County changed the framework for his lease with his Tenant by creating an additional affirmative defense for the Tenant, enacting a year-long forbearance period for unpaid rent, prohibiting Iten from charging late fees or interest, and adding civil and criminal penalties beyond those previously provided under California landlord-tenant law. Furthermore, the value of a commercial property is often tied to the value of its leases. Iten alleged that the Moratorium “undercut the economic value and security of [his commercial leases].” Thus, so long as the Moratorium was in effect, the economic value of Iten’s property, as influenced by the value and strength of the leases of that property, was diminished, and “[a] specific, concrete, and particularized allegation of a reduction in the value of property owned by the plaintiff is sufficient to demonstrate injury-in-fact at the pleading stage.” Barnum Timber Co. v. EPA, 633 F.3d 894, 898 (9th Cir. 2011).

Slip op. at 17-18.

The Ninth Circuit also rejected the conclusion that Iten "would have prevailed" in a state court eviction action, instead holding that "it was improper to speculate how a California court would have responded to an eviction action brought by Iten." Slip op. at 19.

The essence of the Contracts Clause claim is that the owner "is protesting the fact that he even has to run the gauntlet of additional procedures that were not in place when the Tenant signed the lease." Slip op. at 20. The court cautioned against "conflat[ing] constitutional injury with contractual impairment," and set out a roadmap for how to plead these claims (at least in the Ninth Circuit):

For purposes of standing, Iten alleged facts sufficient to state a claim that he suffered an injury traceable to the Moratorium for purposes of standing: He alleged that he was a commercial landlord living in Los Angeles County; that both he and the Tenant believed that the Moratorium applied to their lease agreement; and that the Moratorium altered the terms of his contract with his Tenant. Iten alleged that the Moratorium limited the legal procedures he may take to evict his Tenant for nonpayment of rent; that it prevented him from charging late fees or interest, which his lease otherwise allows him to do; and that it imposed additional penalties that chilled his ability to test the viability of eviction. In sum, Iten, at least for purposes of filing a complaint, has alleged that the obligations of his contract had been “taken away or materially lessened.”

Slip op. at 24.

Our congratulations to our colleague Kady for the win!

Iten v. County of Los Angeles, No. 22-55480 (9th Cir. Aug. 30, 2023)

Register Now For The 20th Brigham-Kanner Property Rights Conference, Oct. 26-27, 2023

Heads-up: the registration page for the 20th Brigham-Kanner Property Rights Conference, October 26-27, 2023, at the William and Mary Law School in Williamsburg, Virginia, is now up.

Early registration is a good thing because space is limited, especially at the Wren Building banquet on the 26th, at which the 2023 B-K Property Rights Prize will be presented to Prof. Gregory Alexander.

So please don't miss out.

The Property Rights Hall of Fame (second plaque)

If you are not already familiar with the Conference, it is (in our opinion) the best one-day event on property and property rights theory and practice. Expressly designed to bring together the legal academy and the practicing dirt law bar, the conference is where we discuss the burning property and property rights issues of the day. Here's the 2023 Program:

• Property and Propriety (or a Well-Ordered Society): A Tribute to Gregory S. Alexander
• Equity’s Role in Defining Property Rights
• Roundtable: Emerging Issues
• The Restatement’s Impact on Property Rights
• The Scalability of Property Rights (or the extent to which interests in property are or should be constitutionally protected)

Details here.

For more on the Conference, see our report from the 2022 Conference (more here as well).

Come, join us!

DC Circuit: US Copyright Office's Requirement To Turn Over Copies Is A Taking

The buried lede in the U.S. Court of Appeals for the D.C. Circuit's opinion in Valancourt Books, LLC v. Garland, No. 21-5205 (Aug. 29, 2023) is that the government doesn't have that big of a role in copyrights, at least in the bare minimum of copyright protections.

We're no copyright experts (that's an understatement), but we knew the basics here: in order to have a copyright and all the rights that entails, the owner need do nothing more than fix the work in a tangible medium. No formalities are necessary, including publication. As the court put it, "[c]opyright thus accrues automatically upon creation of an original work in a tangible medium, and creators need not take any further action such as publication or registration to gain the protection." Slip op. at 4.

You may register your copyright to obtain certain other benefits -- for example, registration is prima facie evidence of validity, and in order to bring a copyright infringement claim, you must be registered -- but you don't have to register a work.

The copyright statute, however -- adopted under the authority of the Constitution's Copyright Clause -- requires that upon publication (as opposed to creation), the owner deposit with the U.S. Copyright Office one (or in some situations two) physical copies of the work for the Library of Congress. If the owner does not do so, the Office may impose a modest fine, unless the Office grants "special relief" from the deposit requirement under the statute if doing so imposes a financial burden for example. The deposit requirement -- apparently a legacy of the now-supplanted copyright system which tied all the benefits of copyright to registration -- is not conditioned on registration.

Valancourt is an on-demand book publisher that focuses on out-of-print books. It neither registers its copyrights, nor deposits copies of its books with the Office. Somehow this caught the attention of the Copyright Cops, who sent Valancourt a notice to send in 341 books it had not deposited. No deal, Valancourt responded, providing copies would be prohibitively expensive and would overburden its free speech rights.

A takings lawsuit followed. Not in the Court of Federal Claims as in typical takings claims seeking just compensation from the federal government, but in the District Court for the District of Columbia, because the relief sought was an injunction against enforcement. The district court entered summary judgment in favor of the government because this is not the government forcing a copyright owner to turn over property, but rather the owner seeking a governmental benefit which can be conditioned on the owner complying with conditions.

The D.C. Circuit reversed. The takings stuff begins on page 13 of the opinion. The court characterized this as a physical appropriation and applied the categorical rule that flows from that characterization. The government demands you give up your raisins...you gotta pay. Same with books. Relying on the recently-decided Tyler decision, the court concluded this is a "classic" taking. Slip op. at 13.

When copyright owners deposit copies of works with the Library of Congress, they “lose the entire ‘bundle’ of property rights” in the relinquished copies, including “the rights to possess, use and dispose of” them.

Slip op. at 14.

The court rejected the district court's conclusion that Valancourt was only required to deposit the books as a condition of receiving a governmental benefit. The court acknowledged that when the government confers a benefit, it may, within limitations, demand the owner give up property. But here, Valancourt had not registered its copyright and was not seeking any of the benefits of doing so. Nonetheless, the Office insisted that the requirement to deposit the work did not turn on whether the owner registered the work.

Here, as in Horne, copyright owners receive no additional benefit for the works they forfeit pursuant to Section 407’s deposit requirement. Mandatory deposit is not required to secure the benefits of copyright. Copyright first “subsists” when an author “fix[es]” a work “in any tangible medium of expression.” 17 U.S.C. § 102(a). So, when a writer puts words on a page, that work gains copyright; when an artist paints on a canvas, that work gains copyright. Copyright thus is “both instant and automatic,” in that it “vests as soon as a work is captured in a tangible form, triggering a panoply of exclusive rights that can last over a century.” Georgia v. Public.Resource.Org, Inc., 140 S. Ct. 1498, 1513 (2020). Authors need not take any affirmative step to obtain

Slip op. at 15. Any benefits a copyright holder may have that are not dependent on registration exist by virtue of the work being fixed in a tangible medium, and are not governmental benefits. Slip op. at 16. Copyright may not be a "natural right," but any benefits a copyright holder may possess are not related to giving up a copy for public use.

The court responded to the government's argument that the deposit requirement isn't really a "requirement" but more like a voluntary exchange because a copyright owner can disavow copyright protection, by acknowledging that may be true, but here there's no apparent or easy way to opt-out. Slip op. at 21 ("If there were a simple, seamless, and transparent way to opt out of copyright protection, perhaps mandatory deposit would fall outside the realm of the Takings Clause because any forfeiture of property might arguably be voluntary.").

Will the government stop here, or will there be more? Stay tuned.

Valancourt Books, LLC v. Garland, No. 21-5205 (D.C. Cir. Aug. 29, 2023)

CA1: Settling A Just Compensation Claim Trades Your Property Rights For Contract Rights - Which, Unlike Just Compensation Claims, Can Be Wiped Out In Bankruptcy

Remember that recent First Circuit case which held that just compensation judgements cannot be subject to a governmental bankruptcy plan (cert denied, by the way)? There, the court concluded that "[t]he Fifth Amendment provides that if the government takes private property, it must pay just compensation. Because the prior [bankruptcy] plan proposed by the Board [the bankruptcy trustee] rejected any obligation by the Commonwealth [of Puerto Rico] to pay just compensation, the Title III [bankruptcy] court properly found that the debtor was prohibited by law from carrying out the plan as proposed."

Well, here's the other shoe dropping. In In re Financial Oversight & Management Board for Puerto Rico v. Cooperativa de Ahorro y Credito Abraham Rosa (Suiza Dairy Corp.), No. 22-109 (Aug. 22, 2023), the same court held that a just compensation judgment may not be subject to reduction or discharge in a subsequent bankruptcy, but that a just compensation settlement is.

Suiza Dairy and other milk producers sued the Commonwealth for, among other things, a taking. It alleged that the Commonwealth's Milk Industry Regulation Administration's (yes, there is such a thing), "regulatory structure, which precluded them from making a reasonable profit in their milk business, constituted a confiscation of property in violation of the Takings Clause." Slip op. at 9. The U.S. District Court concluded that the dairies were likely to prevail on the merits, and entered a preliminary injunction.

Eventually, the parties decided to settle. The settlement included an action component (the Administration "would 'promulgate a new regulatory scheme[,]'" slip op. at 10), and a $171 million monetary component (the Administration would pay some cash, and consumers would pay via a new milk surcharge). The settlement described itself as a "final, absolute, binding and unappealable Judgment." Slip op. at 11.

The district court approved the settlement and incorporated it into a consent decree. It was looking pretty good for the dairies. But it was not to last.

Three-and-a-half years later, the Commonwealth sought the protection of bankruptcy to restructure its debts. Suiza Dairy filed a creditor's proof of claim which it described as "NON-DISCHARGEABLE REGULATORY ACCRUAL CLAIM FOR U.S. CONSTITUTION[AL] VIOLATIONS INVOLVING [THE] TAKINGS CLAUSE." Slip op. at 12.

This was unsecured, naturally. And you know what that means. That's right, the resulting reorganization plan did not affirm the amounts in the settlement agreement, but "treat[ed] Suiza's claim as part of Class 53, a group of 'Dairy Producer' claimants that are entitled to receive, in full consideration of any allowed claim, 50% of the claim." Id. (footnote omitted).

The Title III (District) court rejected Suiza's objections. The claims of other property owners with takings claims against the Commonwealth - but who had not settled but who obtained just compensation judgments - were not subject to the bankruptcy plan. The district court concluded the claims should not be treated the same. The takings claims reduced to just compensation judgments could not be reduced or eliminated in bankruptcy, while the takings claims which settled could.

The First Circuit affirmed. "The Plan properly classifies Suiza's claim as a non-takings claim." Slip op. at 14. "Suiza relinquished any takings claim it might have had when it voluntarily entered a settlement agreement in 2013." Slip op. at 14. In other words, the dairy traded its constitutional just compensation right for a contractual right. The former can't be eliminated or reduced in bankruptcy, while the latter may. Settlement agreements "are voluntary surrenders of the right to have one's day in court." Slip op. at 15 (citation omitted).

That this was a settlement of a just compensation claim doesn't change that. Settling the takings claim "extinguished" it. Slip op. at 16. The court rejected Suiza's invitation to dig a bit deeper. Suiza argued that doing so would have revealed this was a just compensation settlement that that made it "special." 

Specifically, Suiza claims that, because of the "self-executing character" of the Fifth Amendment, the right to just compensation arises immediately after a taking has occurred and cannot be disturbed or nullified in any way by the government's actions post-taking.

Slip op. at 17. The court rejected the notion that "self-executing" cases like First English and Knick mean that a just compensation claim can't be voluntarily surrendered. "These cases say nothing about whether property owners, through agreement with the government, can extinguish their own takings claims by settling." Slip op. at 18. "After the settlement, any takings claim that Suiza might have had against the Commonwealth was replaced by a contractual claim." Id. (footnote omitted). Contract claims, unlike just comp claims, "can properly be impaired or discharged in bankruptcy." Id.

The court also rejected the argument that the Board didn't object to Suiza's claim which characterized its claim as a "takings" claim. Check out pages 19-31 for the details of why the court concludes the error, if any, was harmless (mostly grounded in bankruptcy procedure and law, so we're skipping it here).

Bottom line: as we've noted consistently, settling the case is ending the claim. Courts like to enforce these things, even when it means that you get treated like other unsecured creditors if the condemnor seeks to slough off its obligations in bankruptcy.

In re Fin. Oversight & Mgmt Bd. for Puerto Rico v. Cooperativa de Ahorro y Credito Abraham Rosa, No. 22-109...

Lawprof Shelley Ross Saxer Joins Bloomberg Law Podcast On Maui Wildfires And Inverse Condemnation

Here's our colleague and friend, Pepperdine lawprof Shelley Saxer, an expert on inverse condemnation and its use in mass disaster cases, on the use of inverse condemnation as a theory of recovery for the Maui disaster. Here's the description from Bloomberg Law Podcast:

"Shelley Ross Saxer, a law professor at Pepperdine University, discusses the Lahaina fire victims using a legal shortcut to secure compensation from Hawaiian Electric. June Grasso hosts."

Worth a listen.

Our Drive-Time Conversation About Hawaii Inverse Condemnation And Wildfires

On this morning's drive-time program, we joined KHVH's Rick Hamada about whether Hawaii might adopt California's version of inverse condemnation liability in wildfire cases. We also tried to clear up a few misconceptions (gad, I used "disinformation," a term I try to eschew).

Here's the program description:

Inverse Condemnation and Maui Wildfires: A Conversation with Robert Thomas

Tune in to a thought-provoking episode where we engage in a conversation with legal expert Robert Thomas on the topic of inverse condemnation in relation to the recent Maui wildfires. As the community grapples with the aftermath of the devastating fires, we delve into the legal aspects of property rights, government accountability, and compensation for affected individuals. Join us as we explore the implications of inverse condemnation, a legal doctrine that holds governments accountable for taking private property without just compensation. Gain insights into the challenges faced by property owners in the wake of natural disasters and the legal avenues available to seek redress. Don't miss this informative discussion shedding light on the intersection of property rights, wildfires, and legal recourse.

Thanks to Rick for having me on.

"YIMBY Martial Law" - More On Hawaii Gov's Gordian Knot Cutting

Here's an excellent report on a situation we've been following, the Hawaii governor's proclamation of a housing emergency. In "To Tackle Highest Housing Costs in the Country, Hawaii's Governor Declares YIMBY Martial Law," Christian Britschgi at Reason writes:

Developers with a [Beyond Barriers] working group [what we cheekily referred to as the "Privy Council"]–certified project wouldn't have to comply with normal zoning restrictions. They wouldn't have to go through Hawaii's cumbersome environmental review process (which can add months or years to a project's approval). They could avoid historic preservation regulations, and get relief from normal impact fees and taxes. They could also skip the need to get approval from the state's Land Use Commission—a duplicative zoning body.

The story is an excellent summary of the substance of the emergency proclamation, the support and objections it has received, and some prognostication (including ours):

Thomas says that Hawaii courts have generally been unwilling to second-guess the governor's use of emergency powers. Numerous lawsuits challenging emergency proclamations during the pandemic all failed. "COVID taught us that [the state's emergency statute] is extremely robust," he tells Reason. "It is essentially a political question is how the Hawaii Supreme Court has treated it."

At the same time, Thomas does suggest that a court might look differently on the use of emergency powers to address something like Hawaii's housing shortage. "Maybe it's an emergency but it's one that's been festering for 50 years. It's been on the longest fuse one can imagine," he says.

A legal colleague of ours has a less sanguine view (or maybe we should say "a rather blunt assessment"):

Lawsuits challenging the order are almost inevitable, said one Maui land use attorney to Civil Beat. "There's no disagreement that we need more affordable housing. But using the state constitution as toilet paper isn't the right approach," he told the publication.

Strong letter to follow.

The Governor issued this emergency proclamation before the big wildfire on Maui. The Governor subsequently announced that for the next 60 days, the housing emergency proclamation efforts will be directed at Maui disaster recovery.

The big picture question we have is whether the Governor's declare-an-emergency-and- bypass-the-laws approach to Hawaii's housing shortage will spread to other jurisdictions. Co-19 taught a whole lot of government officials that emergency orders are the shortcut to getting what they want done.

Stay tuned.

New Cert Petition: Overrule Penn Central!

Here's the latest in a case we've been following.

In this cert petition, the property owner is asking the U.S. Supreme Court to review an unpublished decision of the Ninth Circuit which rejected both Lucas and Penn Central takings claims.

Here are the Questions Presented:

1. Should this Court overrule in its entirety, or reconsider parts of, Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978)?

2. Does the “economic impact” of a regulation on the subject property have to approach total loss of use and value to weigh in favor of a taking under Penn Central, as the District Court and Ninth Circuit held below?

3. Can a property owner ever have “distinct investment-backed expectations” for the beneficial use of property, for purposes of alleging a Penn Central taking, if restrictive downzoning is adopted before development of the property is undertaken?

4. Should the “character of the government action” prong of Penn Central be expunged from takings analysis as conflicting with Loretto v. Teleprompter Manhattan CATV Corp., 458 US 419 (1982) and Lingle v. Chevron USA Inc., 544 US 528 (2005)?

5. Does a zoning regulation that places property in a zone for which no beneficial uses are authorized violate the categorical taking rule of Lucas v. South Carolina?

Follow along here as we'll be watching the case as it progresses, or on the Court's e-docket.

Petition for a Writ of Certiorari, Craneveyor Corp. v. City of Rancho Cucamonga, No. 23-169 (U.S. Aug. 18,...

"Zoning is the most important local law you've never heard of" - Hawaii Zoning Atlas Published

Where you can build 1-4 family residences by right

The Hawaii Zoning Atlas project has announced publication of the Hawaii Zoning Atlas, an "interactive map [that] explores how restrictive zoning laws can make it difficult to build diverse, affordable housing."

The official announcement notes:

The map is based on an original dataset compiled by over 30 students [including some of our U.H. Law students!] and volunteers who combed nearly a thousand pages of regulations to extract key policy details, including whether housing units are legally allowed in an area and how many; restrictions on height, yards, and lot coverage; and parking requirements. All in all, more than 100 data points were collected for each zone in three counties–Honolulu, Maui, and Hawaiʻi. Kauaʻi will be available in a future release.

This is designed for people who are not land use insiders, to help understand how land use regulations restrict the availability of places to live. Click a link, check the boxes on the left for how you want to filter the data, and voila!, you see what is permitted, and where. It is a graphic visualization of one of major problems with Hawaii's byzantine system of land use regulations and restrictions. The image above is where 1-4 family residences may be built without seeking discretionary approvals --  a very limited area.

And that is what the Zoning Atlas is designed to illustrate. The media advisory includes this quote from an obscure law blogger:

Robert H. Thomas (Joseph T. Waldo Visiting Chair in Property Rights, William and Mary Law School, and Director of Property Rights Litigation, Pacific Legal Foundation)

"The Hawai‘i Zoning Atlas has made us aware that exclusionary zoning is one of the primary culprits in the affordable housing crisis—causing hardship for individuals, families, and employers across the state."

The project director, Trey Gordner, joined our U. Hawaii Law School Land Use class earlier this year, where he previewed for our students the project as well as the dynamics of zoning and land use regulations (from a non-lawyer's perspective).

This is part of a national project (the National Zoning Atlas), which describes itself as "a collaborative of researchers digitizing, demystifying, & democratizing ~30,000 U.S. zoning codes. It is housed at the Cornell University Legal Constructs Lab, led by Professor Sara Bronin, and has team members working on regional and statewide atlases around the country." In short, the atlases catalog and help us understand local land use on a big scale.

Trey said this:

"Zoning is the most important law you’ve never heard of,” said Trey Gordner, director of the Hawaiʻi Zoning Atlas, “By regulating what buildings can be built where, what they look like, and what they can be used for, zoning determines the shape of our communities, the size of our houses, the length of our commutes, and more. The Hawaiʻi Zoning Atlas brings these rules to light to help our community determine whether they are delivering the future we want."

Check it out and play around with the various layers. It will open your eyes. 

The Downside Of Seeking Injunctive Relief In Takings Cases

A fairly short one from the U.S. Court of Appeals for the Fifth Circuit.

In Sheffield v. Buckingham, No. 22-40350 (July 31, 2023), the court affirmed the district court's declining to issue a preliminary injunction enjoining State of Texas officials from enforcing the Open Beaches Act.

The presumptive public/private boundary on beaches in Texas is the mean high tide line, although the public may obtain an easement to access the beach landward of the MHTL through prescription or dedication. But as the Texas Supreme Court held, abrupt shifts in the topography of a beach caused by hurricanes and tropical storms does not automatically "roll" the line landward under the state's Open Beaches Act. 

After the Texas court issued that ruling, the legislature amended the statute to permit the State to "suspend action on conducting a line of vegetation determination for a period of up to three years from the date the order is issued if the Commissioner determines that the line of vegetation was obliterated as a result of a meteorological event." Slip op. at 2. 

Well, that happened and after Hurricane Laura and Tropical storm Beta hit the area, the state ordered determination of the vege line suspended for two years. This had the effect of the public/private line being 200 feet inland of where it was prior to the storms.

Owners who own that 200 feet filed a takings lawsuit in federal court against the State, alleging that that "the public can now stand, sit, and otherwise station themselves on" the plaintiffs' private beaches. Because this is a federal court action against state officials, the only remedy sought was prospective injunctive relief: an order prohibiting the officials from enforcing the Act.

The district court declined to enter a preliminary injunction, and the property owners appealed to the Fifth Circuit. On the same day the owners filed their Opening Brief, the State rescinded the order suspending the vege line determination, concluding the beach was stabilized, and thus the suspension no longer needed.

You know what happened next: the state argued to the Fifth Circuit that the appeal was moot. We no longer doing anything that the court can enjoin, Your Honors!

But come on man, we know that the process isn't so easily manipulable. A party cannot automatically moot a case by voluntarily ceasing to do the very thing the plaintiff claims is illegal, and then perhaps starting right back up once the lawsuit is gone. The Fifth Circuit rejected the owners' arguments that this one is capable of repetition, concluding that the temporary order is unlikely to recur and any future harms are speculative.  

Yes, as littoral property owners, their properties could be subject to a similar action in the future. "But this is not unique to these Owners. All properties near the beachfront in Texas could theoretically be subject to similar actions." Slip op. at 6. Thus, this is a generalized grievance, not a specific harm.

Nor was the State suspending the suspension "litigation posturing" according to the Fifth Circuit. Yes, the State affirmatively rescinded the order a few months before it was set to automatically expire, but the court took the State at its word that the reason for the rescission was not to moot the appeal, but because it had served its purpose. The court was willing to presume this, in the absence of contrary evidence:

It would make little sense to have Texas leave the temporary order in place beyond its usefulness and purpose—laid out explicitly in the order—simply so a court could find that the case is moot. In effect, this order ended by its own terms when Texas determined that it achieved its written purpose.

The presumption of truth to Texas’ statements that the temporary order served its usefulness—and did not end because of litigation posturing—is warranted. This is because “[g]overnment officials ‘in their sovereign capacity and in the exercise of their official duties are accorded a presumption of good faith because they are public servants, not self-interested private parties.’”

Slip op. at 7 (citations omitted).

Not only did the Fifth Circuit decline to reverse the turning down of the PI, it dismissed the case as moot.

Why can't the owner seek just compensation for the (alleged) temporary taking? You know the answer to that question.

Sheffield v. Buckingham, No. 22-40350 (5th Cir. July 31, 2023)

Owners' Counsel Toby Prince Brigham Scholarship - Applications Being Accepted

Two years ago, Owners' Counsel of America endowed a scholarship in the name of its founder, property rights advocate and trial lawyer Toby Prince Brigham (1934-2021). The scholarship is for a second- or third- year law student to attend the annual three-day ALI-CLE Eminent Domain and Land Valuation Litigation Conference (the upcoming Conference will be in New Orleans, Louisiana, February 1-3, 2024).

The Conference affords the Scholar an all-expenses-covered opportunity to meet and network with leading property rights and eminent domain lawyers from across the country, while also learning about property law and practice. 

Here's the official description from OCA:  

In honor of Toby’s legacy of professionalism and achievement, in 2021 OCA established the Toby Prince Brigham OCA Scholarship to pay for all expenses of a second or third year law student to attend the ALI-CLE Eminent Domain conference and associated OCA events held annually in January. This unique scholarship affords the student the opportunity to learn about the substantive law of eminent domain and property rights, while also meeting and networking with the leading lawyers in these practice areas from across the country. This is what the very first Toby Prince Brigham OCA scholar, Nina Sawaya, had to say about her experience:

“Thank you Owners’ Counsel of America for the opportunity to meet and learn from the nation’s leading eminent domain and property rights lawyers. While I gained significant knowledge of the substantive law, I also learned about the importance of character as a practitioner. The OCA members taught me that you can be a strong attorney for your client, while still maintaining respect for your opponent. Learning about Mr. Brigham’s commitment to inclusion inspired me to remain true to my core values, while achieving my professional goals. The entire experience was one I will never forget!”

If you are a law student with an interest in applying for this scholarship or know of someone who may be, please contact Leslie Fields, Executive Director of OCA at [email protected] or 303-806-5155. Applications are due by October 3, 2023. 

More here, from OCA.

Toby Prince Brigham OCA Scholarship Brochure (2023)

First Lawsuit Filed (Incl. Inverse Condemnation) For Maui Wildfire: Is California-Style Inverse Condemnation Coming?

Well, that was quick. As reported here ("HECO Kept The Power Flowing In Lahaina Even As Poles Toppled"), we've already seen the first lawsuit filed seeking recovery for the Maui wildfire that destroyed Lahaina town -- a class action even before there's been any official word about what caused or contributed to the conflagration:

Meanwhile, a group of Honolulu- and California-based law firms filed a class action suit Saturday against HECO on behalf of victims and survivors of the Lahaina fire.

The suit alleges that HECO’s downed power lines caused the fire. Graham Lippsmith of the firm Lippsmith LLP said Saturday that the suit was also largely based on HECO’s decision not to de-energize the power Tuesday in West Maui.

A separate Honolulu attorney also said Saturday that his firm is weighing whether sue HECO on behalf of its clients, also largely based on the downed poles.

They were in such a rush, they filed on Saturday, in an Oahu court. The defendants are various electric utility companies (not the government), and claims include negligence, gross negligence, inverse condemnation under the Hawaii Constitution, and ultrahazardous activity. Relief sought included damages, just compensation, and an injunction requiring shutting off power during high winds and the burying of transmission lines.

We naturally focused on the inverse claim. Hawaii inverse condemnation law is very underdeveloped, and there isn't a whole lot there to latch onto. And Hawaii certainly has not adopted the California model of inverse condemnation liability for wildfires. So this will be a case of first impression.

To get a flavor of how that's worked out in California, we refer you to our post from a couple of years ago: "Lights Out In The Land Of No: The Practical Effects Of California's Wildfire Inverse Condemnation Doctrine." And this post: "New Cert Petition: Fifth Amendment Requires California To Spread The Cost Of Wildfire Inverse Condemnation To Ratepayers."

With this being a matter of first impression under Hawaii law, the two vacant and-now-being-filled seats on the five-Justice Hawaii Supreme Court sure do loom large.

Time to pay attention.

Washington: "The right to inverse condemnation belongs to the property owner at the time of the taking; the right does not pass to a subsequent purchaser unless expressly conveyed."

In Masloka v. Public Utility District No. 1, No. 101241-1 (Aug. 3, 2023), the Washington Supreme Court held that a takings claim did not automatically transfer to a new property owner when the property was sold.

Your first reaction might be like ours, "what about Palazzolo!?" Didn't that case say that transfer of property after an alleged taking does not wipe out the transferee's right to assert a takings claim:

Were we to accept the State's rule, the postenactment transfer of title would absolve the State of its obligation to defend any action restricting land use, no matter how extreme or unreasonable. A State would be allowed, in effect, to put an expiration date on the Takings Clause. This ought not to be the rule. Future generations, too, have a right to challenge unreasonable limitations on the use and value of land.

Palazzolo, 533 U.S. at 607.

So what gives, Washington Supreme Court?

After reading the court's opinion, and upon further reflection (always a good thing), the story becomes a bit clearer: the Washington court did not conclude that the takings claim disappeared by virtue of the transfer of the property to the new owner, but considered only how a court should determine whether a takings claim was transferred.

And one other big point: this case involved an allegation of a physical taking, not a regulatory taking as in Palazzolo. We'll see how that makes a different shortly.

Back when the first owner owned the land, the utility district maintained a nearby dam and its operation occasionally caused flooding on the land. The Maslonkas then purchased the property. "The previous owners informed the Maslonkas that the land occasionally flooded." Slip op. at 2. The flooding did not stop.

Next:

In 2016, the Maslonkas sued the PUD, alleging its operation of the dam entitled them to damages based on inverse condemnation, trespass, nuisance, and negligence.

The trial court found the subsequent purchaser rule barred the inverse condemnation claim, and that the PUD established a prescriptive easement barring the trespass and nuisance claims. The Court of Appeals reversed, holding that the PUD could not benefit from the subsequent purchaser rule because it failed to prove its conduct constituted a taking prior to the Maslonkas’ purchase. The Court of Appeals also the PUD’s alternative argument that the Maslonkas could not bring their tort claims alongside their inverse condemnation claim.

Slip op. at 2.

The issue was whether the court should presume the takings claim transferred along with the land (and thus the district had the burden to prove it didn't), or whether this was an element of the Maslonkas' claim. As the court put it, "in other words, whether the ["subsequent purchaser"] rule is a doctrine of standing or an affirmative defense." Slip op. at 2.

The court came down on the side of standing. It framed the issue as whether the Maslonkas have the ability to assert the rights of the former owners. In other words, the takings claims belong to the former owners: "[a]lthough our case law does not expressly characterize the subsequent purchaser rule as one of standing, it limits who may sue for inverse condemnation by prohibiting a subsequent purchaser from asserting the legal rights of the owner at the time of the alleged taking." Slip op. at 13.

This conclusion, although not supported in the opinion, is supported by Palazzolo, which noted:

In a direct condemnation action, or when a State has physically invaded the property without filing suit, the fact and extent of the taking are known. In such an instance, it is a general rule of the law of eminent domain that any award goes to the owner at the time of the taking, and that the right to compensation is not passed to a subsequent purchaser. See Danforth v. United States, 308 U. S. 271, 284 (1939); 2 Sackman, Eminent Domain, at § 5.01[5][d][i] ("It is well settled that when there is a taking of property by eminent domain in compliance with the law, it is the owner of the property at the time of the taking who is entitled to compensation").

Palazzolo, 533 U.S. at 628.

The Washington court didn't presume that the claim transferred upon sale, but noted that it could be transferred: "the right does not pass to a subsequent purchaser unless expressly conveyed." Slip op. at 1 (emphasis added). It wasn't here, so the court analyzed whether the Maslonkas established a new taking -- one that took place after their purchase. Sorry, no:

The Maslonkas produced no evidence that the dam’s operations changed after 1993 to increase flooding; any increase cannot be, on this record, attributed to the PUD. Without evidence of a new taking, the Maslonkas’ inverse condemnation claim cannot survive summary judgment.

Slip op. at 16.

Although the court's holding that it cannot be presumed that a takings claim transferred upon sale to new owners does not help the property owners here, we take solace that the opinion tells our transactional colleagues how to avoid this problem down the road. We'll leave it to them to come up with some reuseable language that can be used to convey everything the seller owns (including takings claims).

And breathe a sigh of relief that the court did not depart from the Palazzolo rule or, worse yet, adopt the goofy theory that the purchase price must have been a reflection of the decline in value of the land attributable to the taking.

Maslonka v. Pub. Util. Dist. No 1 of Pend Oreille Cnty., No. 101241-1 (Wash. Aug. 3, 2023) (en banc)

Still Time To Join Us Wed Aug 9: ALI-CLE's "How Did Property Rights Fare at the Supreme Court? What Happened in the 2022 Term and What's Next"

Tomorrow, Wednesday, August 9, 2023 at 1:00 - 2:00 p.m. (Eastern Time), please join us for ALI-CLE's web program, "How Did Property Rights Fare at the Supreme Court? What Happened in the 2022 Term and What's Next."

Here's the course description:

This has been a blockbuster U.S. Supreme Court term for property law, with the Court deciding three major property cases: Tyler v. Hennepin County (government’s keeping the excess value when seizing and selling a home to satisfy a property tax debt is a taking), Wilkins v. United States (is the federal Quiet Title Act’s statute of limitations a jurisdictional bar?), and Sackett v. EPA (the scope of Clean Water Act wetlands jurisdiction). To gain a better understanding these opinions, the current state of takings and property law, and what these cases mean for your practice, join a distinguished panel of experts for this one-hour webcast. The faculty will also explore what these decisions mean for the future and what steps lawyers can take to incorporate these decisions into their practices.

Among the things we'll be analyzing and discussing:

• What happened in each case and how the Court ruled
• The practical consequences of the decisions
• What new rules practitioners must understand
• What Sackett means for the efforts to define “Waters of the United States”
• How courts will treat the question of “what is the property” in takings and eminent domain litigation
• How you can avoid statute of limitations problems
• Where the Supreme Court might be going next and what issues remain open

I'll be moderating, and joining me will be takings and property experts lawprof Emilio Longoria, and Sophia Holley (Keating Muething & Klekamp).

We will also have a preview of the 2024 Eminent Domain and Land Valuation Litigation Conference, February 1-3, 2024, New Orleans.

Come, join us. The format allows for a lot of questions, interaction, and open discussion. As usual, there are group discounts.

Recognizing A Property Rights Icon: "Mentors, A Path to Fairness, and the Joy of Taking"

We recently attended the American Bar Association's Annual Meeting in Denver to speak at the Section of State and Local Government Law's program, "The 100th Anniversary of Pennsylvania Coal v. Mahon: How the Takings Clause Became the Primary Check on Government Power When SCOTUS Abandoned Review Under the Due Process and Contracts Clauses During the New Deal."

But the real highlight of the Meeting was the Jefferson Fordham Awards which, as we noted earlier, were presented to property rights icon Michael Berger, who the Section recognized with the Daniel J. Curtin, Jr. Lifetime Achievement Award.

Also noteworthy: the presentation of the Anita P. Miller Advocacy Award to land use law giant, Professor John R. Nolon, and the Up and Comer Award to a former William and Mary student (and now colleague) of ours, Makenna X. Johnson. 

Professor Frank Schnidman introduced Michael Berger and we thought it important to share his remarks with all of you, because he highlights Berger's commitment to fairness and the rule of law, and the importance of mentorship.

Frank graciously consented to us reprinting his remarks here.

******

Chance Glance: Mentors, A Path to Fairness and the Joy of Taking

Professor Schnidman introducing Michael Berger

American Bar Association, State and Local Government Law Section

Jefferson B. Fordham Awards Luncheon, August 4, 2023

Introduction of Michael Berger, Senior Counsel, Manatt Phelps & Phillips, LLP

by Frank Schnidman, John M. DeGrove Eminent Scholar at Florida Atlantic University, School of Urban and Regional Planning

Good afternoon.

First, I want to thank the ABA State and Local Government Law Section for giving me the opportunity to introduce my friend and colleague Michael Berger.

I was introduced to Michael Berger more than 50 years ago, and for over more than 30 years I have personally had the opportunity to watch Michael carefully and patiently educate 1,000s of attorneys, public officials, academics and students about “Fairness.”

In 1975 Michael wrote a law review article, To Regulate or Not to Regulate - Is That the Question? Reflections on the Supposed Dilemma Between Environmental Protection and Private Property Rights, 8 Loy. L.A. L. Rev. 253 (1975). Yes, 1975!

As so many others have recognized, Michael spent the next 48 years working on cases that would provide a path to an understanding that the only valid understanding of constitutional property rights must recognize the concept of fairness.

Michael stated those many years ago that:

“What is urged is that 'the public' take a long, hard look at what its needs are, assess all the costs involved, and proceed accordingly.

“If ‘the public’ wants land uses (or non-uses) which benefit ‘the public’ generally, then ‘the public’ should buy the property, or an appropriate interest in the property, rather that attempt to force individual property owners to devote their property to public use without compensation.”

Michael will discuss his path to “fairness,” and his “Joy of Taking” in a moment.

He will share with you that he has argued 4 significant cases before the United States Supreme Court, and that for me, for many years, he made an annual pilgrimage to the University of Miami School of Law where I ran the LL.M. Program in Real Property Development to teach a one week one-credit, 15-hour course on regulatory takings. Ultimately, a few hundred real estate attorneys going back to practice were better able to represent their clients.

There is such great detail to mention in describing why Michael is here before us today, and Professor Patty Salkin distilled it so well in her Nomination Package, a document that highlights the litigation and scholarship. That nomination is attached at the end of my Introduction.

“Chance Glance” is the title of my introduction. That actually is how it all began.

A chance glance at a bulletin board at Washington University School of Law and the notice that Professor Dan Mandelker was looking for a research assistant started Mike on his career path. Michael worked for Dan for two years, and unhappy with the difficulty of finding a law firm job in St. Louis, Dan introduced him to Professor George Lefcoe, who provided an opportunity to pursue an LL.M. at the University of Southern California School of Law – and allowed him to devote full time to research the evolving law as it related to airports and their neighbors. The USC Law Review published an edited version of his thesis as “Nobody Loves an Airport,” 43 So. Calif. L. Rev. 631 (1970).

Beginning in 1972, Michael argued all but one of the airport noise cases that came before the California Supreme Court.

Michael Berger, remarking on a remarkable career
Best applause line: "I'm not done yet!"

In the 1949-published Proceedings of the Annual National Planning Conference of the American Society of Planning Officials held in Cleveland, Ohio October 10-12, 1949, George N. Wallace, Executive Director of the Montgomery County (Ohio) Planning Commission reported on the then-current issues with airport expansion:

“The airport people are vitally concerned with our proposed zoning pattern. They have told me that they must keep their operations somewhat flexible if they are to serve future demands and meet changing developments. However, we must make precise decisions as to the probable expansion of our airports and accessory airport uses; we have to recognize the importance of the airport in its service to the community, and, at all times, give full consideration to the rights of adjacent landowners.”

It is regarding the “give full consideration to the rights of adjacent landowners” comment that Michael Berger held municipal planners and local elected officials “feet to the fire” to follow a path to fairness!

I am limited in time in what I can say in my introduction about Michael’s life journey. I therefore ask you to read two of his law review articles and an article from Planning magazine:

• The Joy of Takings, 53 Journal of Law & Policy 189-200 (2017).
• Strong and Informed Advocacy Can Shape the Law: A Personal Journey” 4 Brigham-Kanner Property Rights Conference Journal 1-20 (2015).
• What is Fairness, Anyway, Planning, October 2006, p. 12-18.

In conclusion, let me end with another quote from Mike’s 1975 law review article:

“There is room for regulation. More than that, there is a need for regulation. But if it is truly to serve our best interests, as a people, it must be balanced regulation: a type which is fair to all.”

That, my friends, has been Michael Berger’s life work, and that is why today we come together to honor him and to award him the 2023 Jefferson B. Fordham Lifetime Achievement Award.

Makenna Johnson (Up & Comer Award) with
Michael Berger (Lifetime Achievement Award)

26th Annual Jefferson Fordham Society Luncheon (Denver, Aug. 4, 2023)

Live The Dream! Teach Dirt Law In Hawaii: UH Law School Looking For Property & Land Use Lawprof

(Tip for applicants: understanding the symbology of the
Law School's logo will show you know the score.)

Here's your chance to teach Property and Land Use in what might be most interesting venue on Planet Earth for those subjects: the University of Hawaii School of Law has put out a call for applications for a tenured lawprof (along with six other openings in other subjects):

The University of Hawaiʻi at Mānoa, William S. Richardson School of Law seeks to fill up to seven tenured or tenure - track positions . For doctrinal faculty, we are seeking to fill positions in Constitutional Law (tenured or tenure - track) and Property /Land Use (tenured). We welcome candidates who, in addition to one of those two fields, have expertise in Administrative Law, Business and Commercial Law, Environmental Law, Family Law, Health Law, Intellectual Property, Labor and Employment Law, Native Hawaiian Law, and Pacific - Asian Legal Studies.

Here's the full description of all the openings with general information and a way to find out more.

Here's what a typical day at the office looks like.

We can report with first-hand knowledge that teaching these subjects at this law school is very good (we taught the Land Use course this past spring semester -  and we earned our JD here too many years ago to mention.

So if you are even thinking about it, now's the time: fire up that CV and "chance um" (as we say in the 808).

(Tip #2 for applicants: learning why this sign is important might be important.)

Hawai‘i Law Position Description - General (Aug. 2, 2023)

What If The Hawaii Governor's Cutting Of The Gordian Land Use/Environmental Knot Actually Works?

The two-plus years under the declared Co-19 emergency surely have given Hawaii's executive-branch officials a clear vision of how much easier they could get their agendas accomplished without all that pesky democracy.

Hawaii's Sweeping Emergency Management Act: Governor is the "Sole Judge"

Hawaii's Emergency Management Act gives state and county executives broad and nearly unreviewable authority to suspend a wide spectrum of the usual laws, regulations, and rules. As we wrote in Hoist The Yellow Flag and Spam® Up: The Separation of Powers Limitation on Hawaii's Emergency Authority, 43 U. Hawaii L. Rev. 71 (2020), Hawaii's Act confers among the nation's most muscular and sweeping powers. For example, the governor is the "sole judge of the existence of the danger, threat, or circumstances giving rise to a declaration of a state of emergency." The Act's one limitation -- the 60-day time limit on how long an emergency may be declared and acted upon without legislative action -- is, in reality, a paper tiger, as the courts have refused to meaningfully enforce it.

Build Baby Build: Governor Green's Emergency Housing Proclamation Sidelines Decades of Land Use and Environmental Regulations and Restrictions

And it appears that executive officials really dig these powers. As you may already know, in July -- just a couple of months after the Co-19 emergency was officially declared pau -- the Governor of Hawaii discovered a new emergency, and issued a Proclamation that the longstanding "shortfall of affordable housing" is an "emergency or disaster" as defined by the Act.

If it is an emergency, it surely has been on a very long fuse, and is primarily a self-inflicted crisis. As is widely reported (see, e.g., Jason Sorens, Zoned Out: How Housing Regulation Drives Young Americans Towards Socialism (Am Inst. for Econ. Rsh. July 24, 2023)), Hawaii is the most highly-restricted and regulated residential land in the nation (see Fig. 3):

We're Number One! We're Number One!

The costs of the current regulatory and environmental system in time, expense, and effort, is cited as a leading contributor to the fact that Hawaii is one of the most expensive housing markets in the country. As the Proclamation notes:

WHEREAS, this [housing] shortfall has never been adequately addressed, contributing to a 1,200% increase in home prices over the last 45 years, which is double the 600% growth in income over the same period[.]

Not at all good.

Pointing to these infamous "regulatory barriers" to building housing (and just about anything else), the Governor deployed his office's broad powers under the Act to suspend a slew of significant land use and environmental regulations, including the State environmental impact statement and reporting requirements, historic preservation restrictions, certain county home rule and zoning laws, civil service laws, collective bargaining with public worker unions, the "open meetings" requirements, the procurement code, the rezoning powers of the State Land Use Commission for certain parcels, school impact fees, and even the Emergency Management Act's own rulemaking requirements. The Proclamation establishes a Privy Council (the "Building Beyond Barriers Working Group" -- how appropriate, given Hawaii's royal history -- or perhaps you prefer "rule-by-junta") that can, according to this report, "block projects deemed to go too far outside the guardrails that would have been in place but for the proclamation." That's comforting. 

Acting under his dictatorial emergency powers (and we are not exaggerating when we say that the powers conferred by Hawaii's Act are truly "dictatorial" as we noted in this law review article), the Governor asserts this will "streamline processes for housing development, while ensuring respect for our iwi kūpuna and environment." To emphasize the so-let-it-be-written-so-let-it-be-done nature of this enterprise, the Proclamation even comes accompanied by its own set of Rules for how it is to be implemented (you know, just like a real law). 

What Others Are Saying

For a nuanced view -- by an analyst with no dog in the Hawaii hunt -- see zoning expert and author M. Nolan Gray, who writes at Bloomberg's City Lab that this "could provide a model for chief executives in housing-strapped states across the country." See M. Nolan Gray, Can Hawaii Solve Its Housing Emergency? (Bloomberg City Lab, July 31, 2023).

Other commentators are less sanguine. Andrew Walden writes that "Housing Emergency Designed to Fail" (Hawaii Free Press, July 31, 2023), arguing that these temporary measures can only work if they are permanent ("Because it is temporary, Green’s Proclamation ensures that too few projects will be approved to actually bring down the cost of housing. ... So when the legislature reconvenes you may be 100% certain that Green’s emergency orders will not be enshrined into law.").

Schadenfreude Alert

Now don't get us wrong: the Governor is absolutely right about Hawaii's oppressive system of regulations and restrictions on building housing that ends up restricting supply, and massively driving up costs. So although we are patently against the routine use of extraordinary emergency powers to accomplish things that should be done through the normal channels of democracy, our long experience playing the land use game in the 808 can't help but turn us into a keen observer of this experiment. We also can't help but being a bit bemused by all of this gnashing of teeth by all involved. As noted above this is a self-inflicted wound and the result of longstanding voting patterns; on a very basic level you get what you vote for, and the voters of Hawaii must either want to restrict the supply of housing to keep things exclusive and preserved, or they are deep-down okay with paying a lot for their homes or living in three-generation households.

And now, instead of doing the right thing and making fundamental needed reform and convincing the voters that now is the time to realize that the system as it stands doesn't work, we get the lazy shortcut. 

Thus, although we are no longer in the day-to-day dirt law and land use game in Hawaii, we're going to be watching this closely.

Fear of Success?

Of course, the usual suspects are already voicing the predictable objections that this will result in cowboy land use (our description, not theirs) and environmental degradation, and are already mentioning possible legal challenges. See, e.g., Stewart Yerton, Can An Emergency Proclamation Solve Hawaii's Housing Crisis? 'That's the Million Dollar Question'' (Civil Beat, July 30, 2023).

Other than the Governor's sweeping repudiation of democratic processes, what is spurring the substantive objections to this? You might think that this is just one more example of NIMBYism and "drawbridge protectionism" (or maybe just a naked "I got mine" and the hell with those who don't -- those vibes play extraordinarily well in the 808, in courts and in the public).

But we sense that a more fundamental fear is driving objections. This may well be the closest we'll ever get to a real-time experiment in whether Hawaii's byzantine land use and environmental regulations -- touted for decades as absolutely necessary to "preserve paradise" -- are worth their massive costs. We've been told that the current system is the only thing standing between us and foul air, water evaporating, beaches disappearing, and historical and cultural resources being despoiled.

What if, when this experiment winds down (whenever that is, since by law an emergency can last a maximum of 60 days, even though this time limit is illusory, because the emergency can be renewed indefinitely), there are 50,000 new residential units built out and the the environmental sky has not fallen? If that's the case, what more empirical evidence does the legislature need that the touted Hawaii system of restrictions, regulations, and the precautionary principle simply are unnecessary?

Or does Hawaii just go back to business as usual? 

The Hole Card

So now we shall see. We predict a lawsuit will soon be filed to challenge this, because Hawaii's courts are the objectors' hole card. Look for a claim under the Hawaii Constitution to lead the charge, because the Hawaii Supreme Court is the final arbiter of the state constitution and a ruling from that court would be armored up against revision by the other branches of government. There's a long judicial history in Hawaii of doing just that.

Hawaii's courts will be the preferred forum: lax standing rules (nearly anyone can be a plaintiff), a Supreme Court that historically has been open to such claims (as a study published in the University of Hawaii Law Review in 2011 reported, environmental plaintiffs enjoy an enviable record of success in the Hawaii Supreme Court, which during the years studied (1993-2010) found in favor of such groups "approximately eighty-two percent of the time, sixty-five percent of which reversed the Intermediate Court of Appeals."), and a judicial ruling that would be immune from the Governor's or the Legislature's tampering. That's the play.

With two of the current bench of five Hawaii Supreme Court Justices in the process of being replaced, does this make the game even more interesting, and the moving pieces more in motion? You bet.

So stay tuned and follow along with us.

That sound you hear right now is the late-night typing of someone drafting up a state-court complaint.

Office of the Governor, State of Hawaii, Proclamation Related to Housing (July 17, 2023)

New Article - "Necessity Exceptions to Takings" (Shelley Ross Saxer)

Worth checking out: a new article from Pepperdine Law School's Shelley Ross Saxer, published in the University of Hawaii Law Review, "Necessity Exceptions to Takings," 44 U. Haw. L. Rev. 60 (2022). [Disclosure: as noted in the author's note, we reviewed an earlier draft of the piece and provided some thoughts.]

Here's the Abstract:

The doctrine of necessity has strong roots in the common law of tort and property going back hundreds of years. In the United States the doctrine has been applied in various situations to negate judicial review of constitutional challenges to government action, most recently in some of the wildfire and flood claims resulting from disasters. But now, the states’ responses to the COVID-19 pandemic have brought one of these necessity doctrines—the public health necessity relying on Jacobson v. Massachusetts—to the forefront as courts across the country review constitutional challenges to state public health measures. With such intense review of Jacobson’s public health necessity in a short timeframe, it appears that the courts, including the Supreme Court, are recognizing that common law emergency exceptions cannot be applied to prevent constitutional review. This development supports the goal of this Article, which is to discourage the use of the necessity doctrine to bypass constitutional scrutiny of asserted rights, particularly as to takings claims under the Fifth Amendment. This Article examines the historical development of the diverse categorical exceptions to takings claims under the Fifth and Fourteenth Amendments and addresses the continued viability of these exceptions following the decision in Pennsylvania Coal v. Mahon. After reviewing four categories of necessity exceptions that include: 1) the doctrine of destruction (general, military, and law enforcement); 2) the public health exception; 3) the nuisance and background principles of property law exception; and 4) the police power exception, this Article concludes that the only doctrinally acceptable categorical defenses to a regulatory taking are the nuisance and background principles of property law exceptions. Nuisance and background principles of state law will determine whether the property owner has a property interest subject to a government taking. If the property owner never had a right to use their property in a manner that constitutes a nuisance or interferes with a public resource, it cannot be taken and does not deserve compensation. Government actions that constitute a taking, but benefit the public as a whole whether by conferring a benefit or preventing a harm, should not burden individual property owners when, under the Armstrong principle, in all fairness and justice, we the public should share in paying for the benefits received.

Download the piece on SSRN here.