August 2007

Supreme Court oral argument at 9am, order reversing the lower court at 3pm.

If only all appeals reached decision this quickly.

In what must be a record (especially in the Hawaii Supreme Court, which had in the past few years become legendary for the length of time it considered some cases), the Court issued a unanimous order in the “Superferry EIS” case.  Bottom line: the State should have required the interisland ferry service to undertake an environmental review.  Opinion to follow.

The Supreme Court briefs of the parties are posted here.

Summary from the Honolulu Advertiser here.  The Star-Bulletin’s write up is here.  Superferry still says the service will commence four days from now. 

Seriously, though: the procedure followed by the Court is not all that unusual, if the decision’s swiftness is.  In cases where appellate courts are faced with looming practical deadlines such as this one…

Continue Reading ▪ Whoa! That Was Fast: HAWSCT Reverses Superferry EIS Case 5 Hours After Orals

My thanks to Sandy Brodie and Karlos deTreaux for having me on their “Kauai Soapbox” program today on KKCR-FM 92.7, where we discussed the “Ohana Kauai” property tax charter amendment case and recent decision by the Hawaii Supreme Court.

Stream the podcast here (1 hr):

Or download the podcast here (52mb mp3).Continue Reading ▪ Podcast: Radio Interview on Kauai Property Tax Charter Amendment Case (mp3)

Los Angeles entered into settlement agreement with a religious organization to settle a RLUIPA claim.  The city agreed as part of that settlement to issue a conditional use permit (CUP) to the congregation.  Neighbors complained that city could not agree in settlement agreement to override CUP process, which would have provided the neighbors notice and hearing under state law. 

The Ninth Circuit agreed, voiding the settlement agreement unless there had been a specific finding that federal law was violated.  Settlement of lawsuits does not give local governments a “blank check” to ignore or avoid the rights of their residents:

Municipalities may not waive or consent to a violation of their zoning laws, which are enacted for the benefit of the public. See Hansen Bros. Enters., Inc. v. Bd. of Supervisors, 907 P.2d 1324, 1343 (Cal. 1996); Trancas [Property Owners Ass’n v. City of Malibu], 138 Cal. App.

Continue Reading ▪ 9th Cir: Settlement of RLUIPA Claim Can’t Override State Law

“Rational basis” judicial review in equal protection law, as every law student knows, means virtually no review.  As long as the government provides a “plausible” justification for its discrimination between “non-suspect” classes, a court should defer to the legislature’s judgment and uphold the classification.   That is why it is also known as the “minimum rationality” test.

What this means is that if the government is discriminating and it does not involve race, religion, or another protected class, the legislature is supposed to have a free hand, and government lawyers are free to make up justifications for the classification in court, even if the legislature did not think of them.  Under traditional “rational basis” review, it doesn’t matter what the legislature actually thought, but that it “rationally could have believed” that the classification was appropriate.

Thus, it’s a pretty rare event when a court invalidates a law for violating the Equal…

Continue Reading ▪ HAWSCT Lowers The Bar in Equal Protection “Rational Basis” Analysis

The Honolulu Advertiser has posted an interesting story, on a topic not widely reported.  The story, “Hawaii renters fear cost of growth limits,” starts off by noting that development limits have downsides, which may be felt more deeply by some segments of the community:

While a recent survey showed 61 percent of Hawai’i residents wouldn’t mind paying higher taxes to protect the environment, the number drops when the respondents are renters instead of home owners.

The survey, conducted on behalf of the Hawai’i 2050 Task Force on Sustainability, also showed that respondents would pay more for housing if it meant protecting the environment and keeping wide open spaces for agriculture and conservation lands.

There are always tradeoffs when it comes to the “environment vs development” battles, of course.  It doesn’t take a degree in economics to figure out that decreasing the supply of homes by limiting development will…

Continue Reading ▪ The Price of “Paradise”

Dean Patricia Salkin of the Albany Law School posts Ripeness and Williamson County – 1st, 6th and 7th Circuit Rulings on her land use law blog Law of the Land.  The post details three recent cases from the federal circuits about when a regulatory takings or inverse condemnation case is ripe for federal review under the Williamson County doctrine (almost never):

  • Association de Subscripcion Conjuncta del Seguro de Responsibilidad Obligatorio v. Galarza, 484 F.3d 1 (1st Cir. 2007)
  • McNamara v City of Rittman, 473 F.3d 633 (6th Cir. 2007)
  • Rockstead v City of Crystal Lake, 486 F.3d 963 (7th Cir. 2007)

Gideon Kanner has already deconstructed the reasoning in the last case in a post on his blog entitled “Franz Kafka Weds Alice in Wonderland.”  One guess what Professor Kanner thinks of the decision.

Professor Salkin’s blog is a welcome perspective; I’ve already subscribed, Continue Reading ▪ Recent Williamson County Ripeness Decisions Summarized

A federal district court in Brooklyn, NY, first held that a landowner challenge to the public use of a taking was properly in federal court.  Goldstein v. Pataki, 488 F. Supp. 2d 254 (E.D.N.Y. 2007).  At the same time, however, the court also found that the plaintiffs did not sufficiently plead enough facts in their complaint to state a claim under federal law (in other words, granted the defendants’ motions to dismiss under Fed. R. Civ. P. 12(b)(6) (see analysis beginning at page 43 of the opinion linked to above).

The plaintiffs claimed that the taking of their properties were not supported by a public use:

Plaintiffs argue that the uses offered to justify the Project, which are listed supra at 6-7, are chimerical because (1) the Project will generate no or minimal economic benefits, (2) the Project will not create jobs, (3) the area to be condemned is…

Continue Reading ▪ Brooklyn Eminent Domain Fight Goes to Second Circuit

The Weekly Standard posts “Razing West Harlem,” an article about Columbia University’s plan to expand uptown beyond its present Morningside Heights locale:

West Harlem — TUCK-IT-AWAY SELF-STORAGE dominates the blockbetween 131st Street and 132nd Street on the west side of Broadway, astretch of the famous thoroughfare where the New York City subwayactually runs above ground. This is West Harlem, in a largely black andHispanic neighborhood known as Manhattanville. Hanging from the side ofTuck-It-Away’s massive brick edifice is a banner reading, in bothEnglish and Spanish, “Stop Columbia! We Won’t Be Pushed Out!” The IvyLeague university has proposed expanding its uptown campus into a17-acre section of Manhattanville, thus endangering many localresidents and businesses, including four buildings owned and operatedby the storage company.

It’s an interesting tale of how the folks potentially on the business end of redevelopment and a public/private exercise of eminent domain feel about it. 

Besides, these are…

Continue Reading ▪ Columbia U’s Expansion Plans and Eminent Domain