August 2007

  • “Public Use And Zoning Intertwined” by Professor Richard Epstein, comparing the eminent domain power and the zoning power, and how, especially after Kelo, these two powers have been melded:

Now, the tight connection between public use and zoning issues becomesclear. Any local government that uses heavy zoning restrictions courtspublic use fiascos down the road. A constitutional regime that curbedthe excesses of local zoning would give greater security of propertyrights to insiders and outsiders alike, and thus obviate the need forgovernment land grabs like Kelo. Regrettably, our Supreme Court haswashed its hands of oversight for both zoning and public use decisions.But state courts, and state legislators should work to rein in thesedangerous tendencies, which requires a stronger and more systematicdefense of private property. To get this right, we must disabuseourselves of the supposed conflict between private property and someill-defined notion of the public interest. These two are not…

Continue Reading ▪ New Articles on Eminent Domain (Kelo & Midkiff)

The Maui News reports that Maui’s “workforce housing” ordinance has been challenged:

Lawyers for a Canadian condominium developer, who is seeking to buildtwo multiunit projects in the Kamaole area, are seeking a court orderto block the county from implementing the law that the developer saysis defective.

The lawsuit alleges the housing policy adopted by the council last yearfailed to include a “close nexus” between new developments and the needfor affordable housing, is “an arbitrary, unreasonable impairment” ofproperty rights and violates due process rights.

It also charges that the county policy does not meet the standards for imposing impact fees allowed by a state law.

Complete story here.  The Maui ordinance, enacted last year, imposes a 40% to 50% affordable requirement on new housing developments. 

The Complaint for Declaratory and Injunctive Relief (filed Aug. 23, 2007) is posted here.

I also discussed the ordinance earlier here and here.  Continue Reading ▪ Nollan/Dolan Challenge to Maui’s Forty Percent Affordable Housing Exaction

Here are the briefs of the parties in the “Hawaii Superferry EIS” appeal, decided by the Supreme Court of Hawaii last week.  These should clear up any questions about what the litigation is about, and what the parties argued. 

Update: Charley Foster at Planet Kauai has posted a succinct summary of the briefs and the legal arguments, and included some thoughts about the future:

The question left wide open – and that will definitely find its wayback into the courts – is what will be the scope of an environmentalassessment. The state and Superferry will argue that it ought to belimited…

Continue Reading ▪ Superferry EIS Appeal: Hawaii Supreme Court Briefs

The Ninth Circuit recently decided Vacation Village, Inc. v. Clark County, No. 05-16173 (July 23, 2007), a case that has just about everything in terms of regulatory takings issues in federal court: the Penn Central standard for regulatory takings, Williamson County ripeness, Rooker-Feldman, exhaustion of administrative remedies, federal preemption, choice of law under Erie, and independent and adequate state law grounds.

I won’t go into the details, which are set forth here and in the opinion.  The basic issue in the case is whether airport-related height and use restrictions are regulatory takings under the Nevada Constitution.  The most interesting aspect to the opinion is that the court held the plaintiff complied with Williamson County‘s requirement that a landowner first seek state remedies before seeking federal remedies.  The court noted that the plaintiff only asserted state law claims, and the case was in federal court only…

Continue Reading ▪ New Ninth Circuit Regulatory Takings Case Has It All

In The Access Fund v. United States Dep’t of Agriculture, No. 05-15585 (Aug. 27, 2007), the Ninth Circuit upheld the prohibition by the US Forest Service of recreational rock climbing at the culturally and religiously significant Cave Rock on the eastern shore of Lake Tahoe.  The rock is many things to many people:

To the Washoe Tribe, it is a site of powerful religious and cultural significance. To historians and archaeologists, it sheds light both on historical Washoe culture and on the history of American transportation. And, to rock climbers, it offers some of the most challenging climbing in the nation.

Slip op. at 10528-29.  A rock climbing advocacy group challenged the prohibition as a government establishment of religion, prohibited by the First Amendment’s Establishment Clause.  Government action violates the prohibition on the establishment of religion if (1) it has no secular purpose; (2) its principal effect is…

Continue Reading ▪ 9th Cir: Rock Climbing Ban at Lake Tahoe Not Motivated by Religion

Back in May 2007, the US Supreme Court granted review in John R. Sand & Gravel Co. v. United States, No. 06-1164.  Docket listing here.  The issue, as I mentioned here is:

The statute of limitations codified in 28 U.S.C. § 2501 provides: “Every claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues.  The question presented is:

Whether the statute of limitations in 28 U.S.C. § 2501 limits the subject matter jurisdiction of the Court of Federal Claims.

The petitioner’s brief has been posted here (500kb pdf).  The issue of whether a time limit is merely “procedural” or “jurisdictional” goes to whether it may be waived by the defendant.  Procedural time limitations are lost if the defendant fails to assert them.  Issues of subject matter jurisdiction, however, cannot…

Continue Reading ▪ Is The Statute of Limitations in Federal Inverse Condemnation Claims Jurisdictional?

Much of the discussion about the recent Hawaii Supreme Court order in the “Superferry” case seems to overlook a few things:

  • HAWSCT did not order the Hawaii Superferry to do an Environmental Impact Statement (EIS) for operating, at least as far as I can tell.  The lawsuit is to force the State to accomplish an Environmental Assessment (EA) for the improvements made to Kahului Harbor to accommodate the Superferry.  So it is not the “Hawaii Superferry EIS,” at least directly, and I’ve been guilty of the mislabeling.  Maybe under HRS ch. 343 that is a distinction without much of a difference, but at least let’s get the terms right.  I have posted the briefs of the parties here, where the legal claims and arguments are detailed.
  • There is little chance the circuit court will enjoin Superferry from returning people and their cars to their points of origin, even if

…
Continue Reading ▪ “Hawaii Superferry EIS” — Or “Kahului Harbor EA”?

Kauai’s newspaper posts “Ohana amendment decision the result of classic Hawaii politics,” a commentary by Walter Lewis, one of the Kauai homeowners who intervened in the County vs. County lawsuit, an effort by county officials to strike down a voter-enacted property tax relief charter amendment.

The typical lawsuit involves a realcontroversy between the plaintiff and the defendant or defendants withactual or threatened injury to the plaintiff. These fundamentalconditions did not exist in the Ohana measure case. Ever. The plaintiffand all the defendants wanted the same result and, as we all know, hadno dispute among them and prosecuted this lawsuit with over $250,000 oftaxpayer money to get political cover. And the County was unable topoint to anything in the Ohana measure that was or would be injuring it.

Complete commentary here.  [Note: I represent the homeowners.] 

Sunday update:  Charley Foster’s letter to the editor responding to Continue Reading ▪ Article on the Kauai Property Tax Decision

Charley Foster over at Planet Kauai posts a summary of yesterday’s HAWSCT oral arguments in the Hawaii Superferry EIS case.  He posts analysis as well as some thoughtful questions on “what next?” 

The Supreme Court briefs of the parties are posted here.  Planet Kauai has also posted a succinct summary of the briefs and the legal arguments.Continue Reading ▪ Analysis of Arguments in Hawaii Superferry EIS Case

In The League of Residential Neighborhood Advocates v. City of Los Angeles, No. 06-56211 (Aug. 21, 2007), which I first discussed here a few days ago, the Ninth Circuit invalidated an agreement between the city of Los Angeles and a congregation to settle the congregation’s federal RLUIPA claim.  As part of the settlement, the city agreed to issue the congregation a Conditional Use Permit (CUP).  The League objected, asserting its members had been deprived of their right to a public hearing on the CUP.  More details on the case at Professor Patty Salkin’s Law of the Land blog here. 

The Ninth invalidated the agreement because the usual procedure to issue a CUP under California law includes public hearings, which had not been held in this case due to the settlement agreement.  While a federal district court has broad powers to settle litigation, those powers could not be invoked…

Continue Reading ▪ More on 9th Circuit RLUIPA Settlement Case