January 2007

In September, the ABA Section on Litigation (Committee on Condemnation, Zoning and Land Use) published Law and Procedure of Eminent Domain in the 50 States, a state-by-state summary of each jurisdiction’s eminent domain laws and cases.  I authored the chapter on Hawaii.

Topics covered include who hasthe power to take, sources for condemnation authority, the rules ofjust compensation, and the procedural aspects of eminent domainlitigation.

The individual state chapters, mine included, are posted for download for ABA members here.

     Continue Reading ▪ 2006 Land Use in Review: Hawaii Eminent Domain Compendium Published

Revisiting the RLUIPA issue, the Ninth Circuit held in Guru Nanak Sikh Society of Yuba City v. County of Sutter, 456 F.3d 978 (9th Cir., Aug. 1, 2006) that a local land use decision regarding a church’s proposed use of its property violated the federal Religious Land Use and Institutionalized Persons Act of 2000.  While it is not a groundbreaking case, it illustrates the competing dynamics when a church’s desires to use its property clashes with local land use rules.  My summary of the case is posted here.
     Continue Reading ▪ 2006 Land Use in Review: RLUIPA and Local Land Use

I commented upon the decision in  Hui Kakoo Aina Hoopulapula v. Bd. of Land and Nat. Res.,112 Haw. 28, 143 P.3d 1230 (Sep. 21, 2006) earlier in this post. 

This opinion, detailing when and how a contested case may be demanded, should be read together with Aha Hui Malama O Kaniakapupu v. Land Use Comm’n, 111 Haw. 14, 139 P.3d 712 (July 24, 2006) and Keahole Defense Coalition, Inc. v. Bd. of Land and Nat. Res., 110 Haw. 419, 134 P.3d 585 (May 18, 2006).Continue Reading ▪ 2006 Land Use in Review: Contesting Contested Cases

The “public trust” doctrine got a further boost in Kelly v. 1250 Oceanside Partners, 111 Haw. 205, 140 P.3d 985 (July 28, 2006). 

The public trust doctrine in its original form under Hawaii law was that the Crown or government owns title to all land below the high water mark, which is held in trust for the people for navigation and other public purposes.  In other words, land under the ocean is a public resource, and incapable of private ownership.  This doctrine has historical roots in American and English common law. 

In more recent times, that ancient doctrine was expanded when the courts, following the suggestion of influential academics, began using the doctrine to justify finding that more and more resources were subject to the trust, and therefore not private property.  While there is some debate about whether the public trust affects ownership of property subject to the trust…

Continue Reading ▪ 2006 Land Use in Review: Who Protects the Public Trust?

In Aha Hui Malama O Kaniakapupu v. Land Use Comm’n, 111 Haw. 14, 139 P.3d 712 (July 24, 2006), the court set forth the standard for when an agency hearing is a “contested case” under the Hawaii Administrative Procedures Act (HAPA).  The definition is critical because unless a contested case has been conducted by an agency, a circuit court will have no subject matter jurisdiction to consider an appeal from the agency’s decision.

A group opposed to a landowner’s use of its property argued that conditions imposed by the Land Use Commission in its earlier approval of a boundary amendment had not been complied with by the landowner.  The group filed a motion for an order to show cause why the boundary amendment should not be revoked.  The LUC held a hearing and denied the motion.  The group appealed to the circuit court under HAPA.

The circuit court dismissed…

Continue Reading ▪ 2006 Land Use in Review: What is a Contested Case

I gave a letter to the postman,
he put it his sack.
Bright and early next morning,
he brought my letter back.

In Jones v. Flowers, 547 U.S. ___ (Apr. 26, 2006), the U.S. Supreme Court answered the question of what further obligation the government has to provide a property owner notice of an impending sale of his property when a certified letter is, in the words of the classic Elvis song, “Returned to Sender.”  The opinion answered whether the Due Process Clause of the U.S. Constitution requires a state to take additional reasonable steps to notify a property owner of an impending tax sale if a written notice is returned undelivered.

Mr. Jones didn’t pay his property taxes.  The State of Arkansas, like most government entities, did not appreciate Mr. Jones’ oversight, and after several years of such behavior, sent him a certified letter informing him…

Continue Reading ▪ 2006 Land Use in Review: Return to Sender – Elvis and Notice

Rapanos v. United States, 547 U.S. ___ (Jun 19, 2006) was this year’s big environmental case from the U.S. Supreme Court, yet it did little to resolve the question over the geographic scope of “navigable waters” as used in the Clean Water Act.  The CWA requires a property owner seek a permit from the Army Corps of Engineers prior to any activity that may involve “navigable waters of the United States.”  The facts of the case are set out here.

The Court split 4-4-1, holding to overturn the decision of the Corps to require a Michigan landowner to seek a permit, but could not agree on a rationale.  The plurality decision left most commentators scratching their heads, unsure of what the rule of law was in the wake of the decision, and how to apply a ruling on which there was no majority opinion.  As in last…

Continue Reading ▪ 2006 Land Use in Review: Clean Water Act Jurisdiction

In Keahole Defense Coalition, Inc. v. Bd. of Land and Nat. Res., 110 Haw. 419, 134 P.3d 585 (May 18, 2006), the Hawaii Supreme Court elaborated on the issue of when a party has  “property” within the meaning of the due process clause of the Hawaii Constitution. 

The twisted procedural history of the case is not worth repeating in detail.  Suffice it to say that the appellant claimed that a state-issued license to provide telecommunications service was “property” protected by article I, section 20 of the Hawaii Constitution. 

The court disagreed, holding the license holder did not have “standing,” and the license was not a constitutionally-protected property interest  The court emphasized these points:

  1. “Standing” is a jurisdictional doctrine – no standing, no jurisdiction.  Important because: the lack of standing can be raised at any time in a case.
  2. The test for standing to appeal is somewhat different than other

…
Continue Reading ▪ 2006 Land Use in Review: No Leg to Stand On

More on Didden v. Port Chester, a case involving a demand for money in exchange for not exercising eminent domain, here:

Bart Didden wanted to put a CVS pharmacy on hisproperty in Port Chester, N.Y. He even obtained approvals from thelocal planning board.

But because a portion of the CVS site was in ablighted redevelopment zone, Mr. Didden was told that planning boardapproval wasn’t enough. He’d have to reach an understanding with aprivate company that had been selected by Port Chester officials tocontrol all construction inside the renewal zone.

The developer, Gregg Wasser of G&S Port Chester,told Didden he’d have to pay $800,000 or give G&S a 50 percentstake in the CVS business. If Didden refused, Mr. Wasser said, he wouldhave Port Chester condemn and seize his property and instead of a CVShe’d put a Walgreens drugstore on the site.

Didden refused. The next day, the Village of…

Continue Reading ▪ Give Me Money, or Else I Will Take Your Property