October 2007

In a case that may hold lessons for Hawaii land use law, the State of Washington Supreme Court recently invalidated under state law a series of moratoria on shorelinedevelopment permits because the city had no power under delegated statelaw to enact a moratorium.  Hat tip to Professor Patty Salkin’s Law of the Land blog for pointing out Biggers v. City of Bainbridge Island, No. 77150-2 (Oct. 11, 2007).  The court summarized its holding as follows:

Today, we review the Bainbridge Island City (City) Council’s adoption of rolling moratoria, which imposed a multi-year freeze on private property development in shoreline areas. The City denied the processing of permit applications for more than three years. There is no state statutory authority for the City’s moratoria or for these multiple extensions. Clearly, this usurpation of state power by the local government disregards article XVII, section 1 of the Washington Constitution, which expressly…

Continue Reading ▪ Washington (State) Supreme Court Strikes Down Shoreline Development Moratoria

In Desert Outdoor Advertising, Inc. v. City of Oakland, No 01-15501 (Oct. 30, 2007), the US Court of Appeals for the Ninth Circuit upheld most of Oakland, California’s billboard restrictions against a free speech challenge.  The court summarized the case:

Desert Outdoor Advertising, Inc., wants to display three billboards, each of which would be primarily viewed from a freeway, in Oakland, California. The City of Oakland has refused to permit the signs, citing specific City ordinances.  Desert filed this action to challenge those ordinances on First Amendment grounds, seeking injunctive relief and money damages. In particular, Desert argues that Oakland Municipal Code § 1501, which generally prohibits advertising signs designed to be seen from a freeway, favors commercial over noncommercial speech and imposes content-based restrictions on noncommercial speech. Desert also contends that Oakland Planning Code § 17.148.050(A), which limits advertising signs more generally, provides City officials with unbridled discretion…

Continue Reading ▪ Ninth Circuit: Some Billboard Restrictions Violate First Amendment, Some Don’t

The Ithaca, NY newspaper reports on a Cornell speech by retired US Supreme Court Justice Sandra O’Connor about how oral advocacy helps the justices shape their thinking about an appeal.

O’Connor said ChiefJustice Roberts stated, “Oral argument is a time, at least for me, whenideas that have been percolating for some time begin to crystallize.”

O’Connorsaid oral argument was often helpful in shaping her views. She saidoften she’d enter oral arguments with the intention to vote one way,though with some concern, and her trepidation would be resolved by theend of oral arguments.

Full report here.  Hawaii Supreme Court Associate Justice Simeon Acoba has opined about the value of appellate oral argument, and provided some insight to how the Court decides which cases are set for argument.  In Rivera v. Dep’t of Labor & Indus. Relations, 100 Haw. 348, 60 P.3d 298 (2006) (Acoba, J., dissenting), he wrote:

Oral…

Continue Reading ▪ The Value of Appellate Oral Argument

A “SLAPP suit” is a “strategic lawsuit against public participation,” and many states have statutes designed to thwart retaliatory lawsuits to protect the public’s willingness to exercise First Amendment rights.  For example, California’s statute defines SLAPP suits as:

lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.

Cal. Code. Civ. Proc. § 425.16 (emphasis added).  Hawaii’s anti-SLAPP statute is codified at Haw. Rev. Stat. ch. 634F, and defines a SLAPP suit somewhat differently than California:

“SLAPP”means a strategic lawsuit against public participation and refers to alawsuit that lacks substantial justification or is interposed for delayor harassment and that is solely based on the party’s public participation before a governmental body.

Haw. Rev. Stat. § 634F-1 (emphasis added).

In City of Riverside v. Stansbury, Nos. E040125 & E040973 (Cal. Ct. App. Oct. 12, 2007), the…

Continue Reading ▪ SLAPP Suits, Ballot Measures, and Curbing Eminent Domain Abuse

The issues in the lawsuits about the Hawaii Superferry Environmental Assessment dwell on legal technicalities such as standing, the statute of repose, and the standard of review.  But the case seems to have touched a deeper nerve, serving as the crucible for wider issues not limited to the Superferry.  For a flavor, read the LA Times’ report of the Kauai Superferry protests here and the Honolulu Advertiser’s story here.

In that vein, I just revisited a Land Use Prof Blog post from earlier this year by Professor Paul Boudreaux entitled “From NIMBY to … ‘Drawbridge Protectionism’.”  The post, as its title suggests, discusses economic and land development versus environmental and cultural claims, and has become more topical in the wake of the Superferry case.  Professor Boudreaux makes some good points:

“NIMBY” is perhaps the most overused term in land use policydebates, even though the…

Continue Reading ▪ “Drawbridge Protectionism,” the Superferry EA / EIS, Raindrops, and Floods

The Maui News reports that the County of Maui has filed a “response” (motion to dismiss) to the federal complaint brought by the Maui Vacation Rental Association against the County.  I posted about the case here.  The complaint summarizes the claims:

This is an action for injunctive and declaratory relief againstdefendants, and each of them, for their conduct in dealing with theowners of property being used as Transient Vacation Rentals in theCounty of Maui. Plaintiff alleges procedural and substantive dueprocess and equal protection violations, equitable estoppel, breach ofexpress and implied contract. Plaintiff also alleges municipalliability for failure to adequately train and supervise entityemployees, and for the maintenance of illegal customs and policies,both of which cause and allow constitutional violations of proceduraldue process, substantive due process, equal protection, and deprivationof honest government services, in violation of the Fourth, Fifth andFourteenth Amendments to the U.S. Constitution.

Download the Complaint (800kb pdf)…

Continue Reading ▪ Government Response in Maui Vacation Rental Lawsuit

In a case discussed earlier here and here, Congregation Etz Chaim has filed a Petition for Rehearing and Suggestion for Rehearing En Banc in the Ninth Circuit in The League of Residential Neighborhood Advocates v. City of Los Angeles, No. 06-56211 (Aug. 21, 2007).

In that opinion, a three-judge panel of the Ninth Circuit determined that Los Angeles agreed as part of a settlement of the Congregation’s RLUIPA claim to issue a conditionaluse permit (CUP) to the congregation.  Neighbors complained that citycould not override the CUP process in a settlement agreement, whichwould have provided the neighbors notice and hearing under state law.  The Ninth Circuit agreed, voiding the settlement agreement unlessthere had been a specific finding that federal law was violated. 

The petition argues that the panel got it wrong factually: the settlement did not grant the Congregation a CUP, rather, it was premised on the idea that…

Continue Reading ▪ Petition for Rehearing/En Banc in RLUIPA Settlement Case

Cornell Law School’s Legal Information Institute has posted a comprehensive summary and analysis of the the arguments in the upcoming John R. Sand & Gravel v. United States appeal, scheduled for oral argument in the US Supreme Court on November 6, 2007.  The issue, as I posted about here, is whether the six year statute of limitations in the Tucker Act is “jurisdictional.”

The merits and amicus briefs discussed in the LII’s summary have been posted on the ABA’s Supreme Court preview site:  Petitioner’s briefUS government’s briefamicus brief of Pacific Legal Foundationamicus brief of the National Association of Homebuilders. Continue Reading ▪ Summary of John R. Sand & Gravel Case: Is the Statute of Limitations in Federal Inverse Condemnation Cases Jurisdictional?

In Westchester Day School v. Village of Mamaroneck, No. 06-1464-cv (Oct. 17, 2007), the US Court of Appeals for the Second Circuit upheld the constitutionality of the Religious Land Use and Institutionalized Persons Act (RLUIPA).  The decision has been analyzed extensively by others, so I won’t repeat the details, just provide some links to this important decision. 

The Second Circuit’s opinion is here.  Professor Patty Salkin’s analysis at her Law of the Land blog is here.  Land Use Law Prof posts here, and the New York Zoning and Municipal Law blog posts here.  The Becket Fund for Religious Liberty posts details of the case here, and includes copies of the major pleadings and briefs.Continue Reading ▪ Religion vs Land Use – Major RLUIPA Case

In Fantasyland Video, Inc. v. County of San Diego, No. 05-56026 (Oct. 15, 2007), the Ninth Circuit upheld San Diego County’s “adult entertainment business” ordinance against a challenge under the California and US Constitutions.  The issue was whether the ordinance’s restriction on operating hours was valid under the California Constitution, and its requirement that the doors to peep show booths remain open was valid under the First Amendment.  In both instances, the Ninth Circuit held yes.

The court explained the framework for constitutional challenges to restrictions on adult-oriented businesses:

The constitutionality of the challenged provisions is governed by the framework announced in City of Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986), and refined in the plurality opinion of [City of Los Angeles v.] Alameda Books, 535 U.S. 425 [(2002)]. As recounted by Center for Fair Public Policy v. Maricopa County, 336 F.3d…

Continue Reading ▪ Ninth Circuit: “Adult Entertainment Business” Zoning Restrictions OK