November 2007

Some takeaway points:

  • The definition of “shoreline” in the Coastal Zone Management Act –while it may be based on, and similar to the common law boundarybetween public and private property — does not define the location ofthe public beach. It is merely the baseline from which the shorelinesetback (the “no-build” zone on beachfront lots). The setback meansonly that a property owner is prohibited from building within so manyfeet of the shoreline. “Shoreline certifications” and one year validityhave nothing to do with
  • The value of the accreted property taken in not “minimal.” The Honolulu Star-Bulletin‘s story on the decision reported:

But [Rep. Cynthia] Thielen[(R, Kailua-Kaneohe Bay), who pushed the law] said the landowners might have a tough road ahead in pursuing theirclaims against the state for land existing as of 2003.

“It will have to play out in the courts, and there is quite a burden ofproof on the landowners,”…

Continue Reading DRAFT

The Hawaii Supreme Court issued an opinion in Omerod v. Heirs of Kaheananui,No. 27118 (Nov. 15, 2007), a case which presents a fact pattern that is just so “Hawaii.”  The case is a quiet title action, normally a sort ofho-hum affair long on detail, but short of broad interest.  The decision, however, is notable for a couple of reasons.  The first deals is the court’s summary of Hawaii’s unique history of property law, and the other is the rule regarding the preclusive effect of a 1873 decision by the Boundary Commission of the Kingdom of Hawaii regarding the boundaries of a parcel, on claims of title.  The court also provided guidance on two issues of appellate procedure which are discussed separately in this post.

The case concerned two sets of property owners, each who claimed rightsto land on the Big Island of Hawaii.  One side claimed the landwas…

Continue Reading Ahupuaa or Ili? HAWSCT on Hawaii Land Titles, the Great Mahele, and the Boundary Commission

In Omerod v. Heirs of Kaheananui,No. 27118 (Nov. 15, 2007), a quiet title action, the Hawaii Supreme Court clarified what is required for appellants to properly present their points of error on appeal under Haw. R. App. P. 28. The Court noted that one brief presented toolittle, while another brief presented too much.  See slip op. at 43-47.

Rule 28(b)(4) requiresthe appellant to state specific points of error, and point out to the appellate courtwhere in the record the errors occurred and how objectionswere preserved.  The court noted that the brief of one set ofappellants listed only “bald points of error,” and provided only”cursory treatment of the points of appeal,” and therefore did not comply withthe rule.  On the other hand, the court noted that the brief of anotherset of appellants contained a long narrative, which claimed the wholetrial court factual record was erroneous.  This was not the…

Continue Reading HAWSCT’s Goldilocks Rule of Appellate Procedure

In Scheehle v. Justices of the Supreme Court of Arizona,No. 05-17063 (Nov. 15, 2007), the Ninth Circuit held that Arizona’s”low bono” requirement that all attorneys serve as arbitrators for $75per day, maximum two days, is not a taking.  It’s probably safe tosurmise that the plaintiff’s position probably received little sympathyoutside of certain members of the Bar:

Mark V.Scheehle, an Arizona tax lawyer, challenges as an unconstitutionaltaking the Arbitrator Appointment System of the Maricopa CountySuperior Court (“Appointment System”), which requires that anexperienced attorney serve as an arbitrator for up to two days a yearwith minimal compensation.  Following a decision by the Arizona SupremeCourt that the Appointment System was permissible under Arizona law,the district court reaffirmed its grant of defendants’ motion forsummary judgment. We now affirm. We hold that Scheehle’s constitutionalchallenge to the Appointment System is properly considered under theregulatory takings test set forth in Penn Central Transportation Company v. City…

Continue Reading Ninth Circuit: No Taking for Forced Attorney Low Bono* Labor

Check out this story from the Big Island’s West Hawaii Today (free registration may be required), “Other counties’ vacation rental laws could prove Big Island boon,” which starts off with this theorem: “[t]he Big Island could soon experience a windfall ofvisitor dollars that would have otherwise flowed into Maui, Kauai andHonolulu.”  In the article, the County of Hawaii’s Planning Director contrasts the Big Island’s treatment of short term (aka vacation) rentals with their treatment by the other three counties:

“We do enforce nonlicensed bed and breakfasts and rentals on agricultural land that are supposed to be farm dwellings,” said Hawaii County Planning Director Chris Yuen. “But we’re not engaged in any kind of crackdown on vacation rentals.”

There’s a reason the Big Island has escaped a controversy that could culminate next month with a federal lawsuit brought against Maui County by an association of renters: Hawaii…

Continue Reading Big Island: Bring Me Your Enthusiastic, Your Laden-With-Spending-Money Tourists, Yearning To Vacation Rent?

More on Franco v. National Capital Revitalization Corp., No. 06-CV-645 (July 12, 2007), a decision from the District of Columbia Court of Appeals about the level of proof needed to show a “pretextual” — and therefore prohibited — taking. 

I.  Kelo and Pretextual Takings

In Kelo v. City of New London, 545 U.S. 469 (2005), a bare majority of the US Supreme Court held that takings supported by claims of “economic development” were governed by rational basis review and are not, in every case, devoid of public purpose.  The Court, however, reserved judicial oversight, holding that in certain circumstances, a court could strike down a taking for lack of public use.  This result was consistent with the Court’s established Public Use jurisprudence, most notably Berman v. Parker, 348 U.S. 26 (1954), in which the Court held that eminent domain in the redevelopment context would be reviewed as…

Continue Reading More on DC Decision on Evidence of Pretext in Public Use Challenges

I sat in on today’s oral arguments in the Hawaii Intermediate Court of Appeals (the nondiscretionary appeals court of first resort) in an interesting case, Ohana Pale Ke Ao v. Bd. of Agriculture, State of Hawaii, No. 27855.  From the arguments and a quick review of the briefs, the primary issue in the case is whether the Board of Agriculture was required to undertake an Environmental Assessment pursuant to Haw. Rev. Stat. ch. 343 prior to granting a permit for the importation of genetically-modified algae into Hawaii by the tenant of a State-owned facility on the Big Island of Hawaii.

The recording of the arguments can be downloaded here (63mb mp3).

Several “community groups” filed suit against the Board, claiming that an EA was required because the imported GMO algae would be used in the state-owned facility, and therefore “[p]ropose[d] the use of state or county lands,” a triggering…

Continue Reading ICA Oral Arguments in GMO Algae / EA Appeal

Thanks to Property Prof Blog for tipping us off to a recent case involving claims of “pretext” in eminent domain cases from the District of Columbia Court of Appeals has issued an opinion in Franco v. National Capital Revitalization Corp., No. 06-CV-645 (July 12, 2007), posted here. 

I haven’t had time to digest the opinion yet, but Professor Ilya Somin has posted a summary and analysis of the decision here.  More to follow after I’ve had a chance to review the decision.  Update: I’ve summarized the decision in this post.Continue Reading DC Court: Evidence of Pretext in Public Use Challenges

The US Court of Appeals for the Second Circuit (NY) has provided some guidance on how to prove a substantive due process zoning case, and what is a “property interest” that triggers constitutional protection.  In Cine SK8, Inc. v. Town of Henrietta (No. 06-1718-cv) (Nov. 8, 2007), “Fun Quest” received a special use permit to operate a dance club for teenagers, but after an overcrowding incident at Fun Quest, the Town modified the permit to prohibit the use. 

Fun Quest filed a federal court lawsuit, alleging the Town modified the permit and eventually drove Fun Quest into bankruptcy because it was motivated by racial animus (the district court found that “numerous witnesses have testified that after drawing attention to photographs taken of the crowd gathered at Fun Quest . . . [a Town supervisor] stated in sum and substance: ‘Look at these pictures.  There is not a white face among…

Continue Reading Second Circuit: How to Prove a Due Process Zoning Case

The Court has posted the transcript of today’s oral argument in the John R. Sand and Gravel Co. v. United States appeal here. 

The Supreme Court will decide whether the statute of limitations in inverse condemnation actions against the United States under the Tucker Act is “jurisdictional” or may be waived by the defendant.  More about the case, including a summary and the briefs of the parties and amici here.Continue Reading Transcript of Oral Arguments in Tucker Act Statute of Limitations Case