The Hawaii Supreme Court has issued an opinion in Brescia v. North Shore Ohana (No. 27211, July 12, 2007), a case discussing shoreline setbacks, due process, and vested rights. I haven’t had a chance to read the majority opinion authored by Justice Acoba, or the concurring opinion by Justice Levinson, but will post more after I review them.Continue Reading ▪ HAWSCT: Shoreline Setbacks, Due Process and Vested Rights
▪ Admin note: light posting this week
I’m in court this week, so won’t be posting as much as usual. If anything big happens, of course, I’ll post.
But in the meantime, check out these links for your daily land use/eminent domain/property rights fix:
- PLF on Eminent Domain
- New Jersey Eminent Domain Blog
- Rapanos Blog – US Clean Water Act jurisdiction
- Damon Key – hawaiilawyer.com
- Walt & Arla Harvey’s daily summary of property and real estate issues (www.coastalhawaii.com)
- Gideon’s Trumpet – Prof Kanner’s blog on eminent domain, takings, and property issues
▪ Arrow of Time: Vested Rights, Zoning Estoppel, and Development Agreements in Hawaii
To obtain a copy of the article “Arrow of Time, Vested Rights, Zoning Estoppel, and Development Agreements in Hawaii’ (published by the U. Hawaii Law Review in Feb. 2006), drop me an email, and I will email you a pdf, or send you a hard copy (tell me which).
From the article’s Introduction —
The modern land regulation and development process – particularly in Hawai`i where both the state or the local government may be involved in excruciating detail – is a complex, lengthy, expensive, and very often uncertain undertaking for any property owner desiring to exercise the fundamental right to make reasonable use of its property. The uncertainty is compounded by the ability of the government to change the regulations applicable to property after the owner has begun planning or building but has not completed construction. Operating within a system that is rightly or wrongly perceived as
▪ NYT on Clean Water Act Rules After Rapanos
Today’s NY Times is running a story, After Lobbying, Wetland Rules Are Narrowed, on the aftermath of Rapanos v. United States, the decision where a plurality of the Supreme Court decided the Corps of Engineers’ Clean Water Act jurisdictional rules were too broad.
The story’s headline and lede are off base, implying that the regulations were being “pulled back” since the “rules could lead to federal protection of isolated and insignificant swamps, potholes and ditches” —
After a concerted lobbying effort by property developers, mine ownersand farm groups, the Bush administration scaled back proposedguidelines for enforcing a ruling governing protected wetlands and streams.
(emphasis added).
Whoa, hold on a minute there, hoss. I thought that scaling back jurisdiction was the whole point of this post-Rapanos exercise.
In that case, five Justices agreed on the result (although not the reasoning) that the then-existing Corps regulations exceeded their statutory
Continue Reading ▪ NYT on Clean Water Act Rules After Rapanos
▪ Honolulu Advertiser Op-ed on Wilkie v. Robbins
The Advertiser has published my commentary on Wilkie, the decision from the Supreme Court denying a comprehensive remedy for violation of property rights by federal officials.
Little-Noticed Decision Erodes Property Rights
Imagine this: You own land, and federal officials ask you to allow the public to cross over it, but they don’t offer you anything in return. Their bargaining position is blunt: Give us the easement, or else. So you politely say, “No, thanks.” It’s your land, and the U.S. Constitution’s Fifth and 14th Amendments recognize your right to keep others off your property, even government officials.
The Fifth Amendment provides that “nor shall private property be taken for public use, without just compensation,” which means if the government wants an easement, it needs to pay for it. But an official tells you, “The federal government does not negotiate.” So instead of backing off, or purchasing the land, the
Continue Reading ▪ Honolulu Advertiser Op-ed on Wilkie v. Robbins
▪ “For Sale” Signs on Cars on Public Property
In a decision out of Ohio, the US Court of Appeals for the Sixth Circuit, held in Pagan v. Fruchey, No. 04-4414 (6th Cir. June 29, 2007) that the First Amendment prohibits the government from outlawing a “for sale” sign on cars parked on a public street.
After he was threatened with a ticket for leaving his car on a Glenwood, Ohio street with such a sign, the car’s owner brought suit in federal court for violation of his First Amendment commercial speech rights. The question before the court was not whether the sale sign was commercial speech or whether it was constitutionally protected — the parties agreed that it was. The issue was whether Glenwood had justified its restrictions as advancing an important regulatory objective. Glenwood claimed that the ordinance advanced its interests in traffic safety and “aesthetics,” but the court held these were mere conclusions, and there
Continue Reading ▪ “For Sale” Signs on Cars on Public Property
▪ Best Lawyers in Hawaii
I’m honored: Honolulu Magazine has come out with its “Best Lawyers” edition, and has seen fit to include me and several of my Damon Key colleagues on the list of The Best Lawyers in Hawaii. I’m in the category “Eminent Domain and Condemnation Law.” More here.Continue Reading ▪ Best Lawyers in Hawaii
▪ Shoreline Public Access on Federally Owned Land
The above-the-fold headline story in today’s Honolulu Advertiser screams “Public denied access to some Oahu beaches.” The only thing missing is a string of exclamation points following the headline. The story details the relatively rare situation where the public is not permitted to cross private land to access a beach, but you wouldn’t know that from the lede:
The clean, white sandy beach along Iroquois Point offers a stunning view of downtown Honolulu, Waikiki and Diamond Head.
But unless you live there, this beach is off limits. Iroquois Point Island Club, the civilian subdivision that has replaced what was once the Pu’uloa Naval Housing complex, does not allow public access to its beach.
“It’s private property, the roads are private, they’re not city and county,” said Steve Colon, president of Hunt Development’s Hawai’i division, which operates the property.
Other private, oceanfront developments on O’ahu — including Ko Olina and Turtle Bay — offer beach access to the public.
State law requires all beaches remain accessible to the public, and counties must make sure the public can reach the beach in areas where private property dominates.
But the Iroquois Point Island Club, which rents homes to the public, can refuse access to its beach because it is on land belonging to the Navy. Military property is exempt from the state and county beach access rules. The Navy leased Iroquois Point to a private developer for 65 years.
It takes six paragraphs to get to the crux of the issue — its federal land, so naturally, state and local law does not govern what the property owners (or its lessees) can and can’t do with it. That principle alone should not be controversial, as it is based in the US Constitution’s Supremacy Clause and the doctrine of federal preemption. But if a few of the comments on the story are any indication, the legal niceties matter little.
That seems to be more the norm than the exception when shoreline ownership and access are concerned, as anything even touching upon our beaches becomes a highly charged issue, not just in Hawaii, but as I mentioned in the July 2006 ABA Journal in a story about seawalls and property rights in Florida:
“It’s hard to find a middle ground on this,” . . . “Every time someone sneezes on the shoreline, it’s front-page news.”
That’s literally true, today.Continue Reading ▪ Shoreline Public Access on Federally Owned Land