October 2007

In Tollis Inc. v. County of San Diego, No. 05-56300 (Oct. 10, 2007), the US Court of Appeals for the Ninth Circuit affirmed the district court’s determination that the county’s “adult entertainment business” ordinance was, for the most part, legal.  The ordinance survived First Amendment challenges under the City of Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986) test, and under California law requiring that a zoning ordinance be consistent with the general plan.  Dean Patricia Salkin analyzes the opinion in detail here.

However, the district court held the requirement that an adult entertainment business owner first seek a permit was unconstitutional because the 130 or 140 days it granted to the licensing body to consider the request is unreasonably long.  The court severed the unconstitutional time limits from the ordinance:

Based on the Legislative Record, and review of the affected ordinance, the Court finds the…

Continue Reading ▪ Ninth Circuit: Severance of Unconstitutional Statutes and Ordinances

Ahoy!  Are you curious about the difference between a Letter of Marque and a Letter of Reprisal?  Between a “pirate” and a “privateer?”  Want to find out more about maritime security? 

If so, then I have just the place where you can find out about those topics, and more: my Damon Key colleague Mark Murakami has launched hawaiioceanlaw.com, his blog with his “thoughts, opinions, insights and observations about matters of maritime concern in and around Hawaii.”  Pay a visit and see the range of topics he will cover.  First topic: “Securing the Superferry – Security Zone Upheld.”

Mark practices more than just maritime and ocean law (in July, we wrapped up a five week eminent domain trial for example), but given his background as a Coast Guard line officer and JAG, his blog posts about maritime and ocean law should be especially worthy reading. 

Check it out Continue Reading ▪ New Maritime and Ocean Law Blog

Professor Gideon Kanner, in his own unmistakable style, writes about the (un)fairness of just compensation in eminent domain in “Kleptocracy!“

Beginning in the 1960s,  studies made of condemnation compensationpractices have concluded that the condemnee-owners were actuallyundercompensated (”undercompensated” is a two-bit word for “cheated”).In a great many cases the government offers that are made arelowballs, often below the government’s own appraisal figures. How do weknow it’s so? Because condemnation lawyers by and large charge theirclients contingent fees with the contingency calculated only on theoverage, not on the entire recovery like tort lawyers do.

The entire post is worth reading.Continue Reading ▪ How Just is Just Compensation?

Yesterday’s Honolulu Star-Bulletin ran an editorial “Access to Oahu’s shoreline is being blocked little by little,” spurred by a brewing controversy regarding access to public beaches across private property in Kailua.  The editorial calls for political leaders to make access to public beaches “a priority,” by establishing an “enforceable policy” to promote access:

So the recent conflict between public entitlement and private landowners about a right-of-way to Kailua Beach is a common episode, one that will be repeated until a sensible, enforceable policy is established to support the access law and existing standards for pathways are implemented.

The editorial does not suggest what this “policy” might be.  It acknowledges the obvious means of acquiring private property for public access: eminent domain, which requires that the government pay just compensation and damages to the property owner(s).  It also acknowledges, however, that there may be no money in the public…

Continue Reading ▪ Shoreline Access Across Private Property – A Shortcut to Paying for the Change?

The merits brief of the United States in John R. Sand & Gravel Co. v. United States, No. 06-1164 has been posted here.  Docket listing here. 

The case involves an inverse condemnation claim against the federal government under the Tucker Act.  Apparently, thegovernment in the Court of Federal Claims did not raise a statue of limitations defense, nor did it on the appeal to the Federal Circuit. 

But the Federal Circuit raised and decidedthe issue sua sponte, dismissing the case because the statute of limitations goes to jurisdiction, and cannot bewaived.  The Federal Circuit opinion is posted here (500kb pdf).

The Question Presented by the property owner/petitioner as I mentioned here is:

The statute of limitations in the Tucker Act, 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…

Continue Reading ▪ Government Brief in Federal Inverse Condemnation Statute of Limitations Case

Thanks to Mark Murakami for pointing out an article in today’s NY Times, “Once Reluctant, Retailers Now Rush to Hawaii,” about the growing presence of national stores such as Wal-Mart, Home Depot, Whole Foods, and Walgreens:

For years, large mainland-based retailers tended to steer clear of the islands that make up the state of Hawaii because of the extremely high costs of buying land and shipping goods, as well as a tight supply of construction workers and retail employees.

But in the last four years, a wave of retail development has washed over Hawaii, as the state has experienced a post-2001 rebound in tourism and growing optimism among residents, as job growth has been strong and home prices in many areas have roughly doubled since 2003.

. . . .

Rosalind J. Schurgin, a principal at the Festival Companies, a Los Angeles-based firm that is redeveloping the Royal…

Continue Reading ▪ NY Times on National Retailers, Honolulu Advertiser on Hawaii’s Business Climate

The U.S. Court of Appeals for the Second Circuit in New York heard oral arguments in Goldstein v. Pataki, an appeal challenging the “Atlantic Yards” redevelopment in Brooklyn. At issue in the appeal is whether the plaintiffs had properly alleged that the effort to take their property by eminent domain was for a private purpose.

The district court dismissed the case for failure to state a claim under Fed. R. Civ. P. 12(b)(6), meaning that the facts alleged in the complaint, taken in the light most favorably to the property owners, did not sufficiently plead a cause of action for private benefit under Kelo. Recall in that case, the US Supreme Court held that under the Public Use Clause, courts generally defer to legislative determinations that property is needed for public use, but that if a property owner makes sufficient allegations that the taking is instead for a…

Continue Reading ▪ Pleading Kelo

Since 1998, the Hawaii Supreme Court Law Library has been very good about posting the opinions and orders of the Hawaii appellate courts (Supreme Court and Intermediate Court of Appeals) on line, usually within hours of their filing with the Clerk’s office.  The site is an invaluable public resource. 

However, unless you visit the site constantly, there is no way to keep up with what is posted: there is no official RSS feed, or any way to subscribe so that you are notified when opinions are published.  To try and fill that void, we’ve created a new blog, “Hawaii Appellate Opinions.” 

Nothing fancy, just an unofficial list — without commentary — of the opinions, copied from the law library’s site, along with a RSS feed where you can subscribe to receive notification when new opinions are published.  We’ll make every effort to keep current and update the feed…

Continue Reading ▪ Hawaii Appellate Court Opinions RSS Feed