2007

In a case that illustrates the lengths a court will go to avoid dealing with the merits of a takings challenge, the Ninth Circuit in Equities Lifestyle Prop., Inc., v. County of San Luis Obispo (No. 05-55406) (Sep. 17, 2007), held that the plaintiff was both too early (not yet ripe under Williamson County) and too late (missed the statute of limitations).  In that opinion, the Ninth Circuit affirmed the dismissal of a challenge to a voter-approved mobilehome “rent stabilization” (rent control) ordinance.  The court ruled:

  • Standing: the county challenged the ability of the plaintiff to bring suit because it did not have “title ownership” of the mobilehome park.  The court held that pecuniary injury, not title ownership is the key to standing, and allowed the suit to proceed.
  • Takings: the court rejected the “as applied” takings challenge on Williamson County grounds because the plaintiff had not availed itself

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Continue Reading ▪ Ninth Circuit: No Takings and Due Process Challenge to Cal. Rent Control Ordinance

Interesting item in today’s Advertiser “Bureaucracy Buster” column, where a reader asks whether streams are “public property” —

Q. I was walking in a stream and was told by a security guard that the stream was private property as well as all the land surrounding and I could not be in it.

It was my understanding that Hawai’i streams are public property and the public can be in them. What is the law?

The response correctly notes the answer is “no,” that Hawaii streams are not like beaches and can be privately owned.  Worth a read.Continue Reading ▪ Streams as “Public” Property

There’s an interesting discussion going on over at Professor Patty Salkin’s Law of the Land blog about a recent Ohio appeals court decision applying Lingle v. Chevron USA, 544 U.S. 528 (2005). 

Lingle didn’t get rid of the “substantially advance” test, it merelyrelocated it to due process, and reminded us that in thosecircumstances where there is not a per se taking by wipeout of“beneficial” use (Lucas) or an occupation (Kaiser Aetna, Loretto),courts go back to Penn Central where no factor appears to bedispositive. So even if there is some value or use left in the land,Penn Central could allow for a finding of a taking, depending on thecircumstances of the case and how the other elements factor into thecalculus.

The opinion in Boice v. Village of Ottawa Hills (No. L-06-1208) (Aug. 31, 2007) is posted here.Continue Reading ▪ Ohio Court Applies Lingle and Penn Central

To my colleagues at the LINC conference in D.C., thank you for the opportunity to present the topic.  Here are links to the cases discussed:

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Continue Reading ▪ Links for “Progress in Protecting Property Rights Post-Kelo“

The question of “which came first, the Environmental Assessment exemption or the challenge?” is providing an interesting illustration of the metaphysical issue of what is the impact of a government act subsequently ruled to be illegal.

In denying the plaintiff’s request for a temporary restraining order, the Fifth Circuit court did not rule on the defense raised by the State and Hawaii Superferry to the Kauai lawsuit objecting to the State’s exemption of the Superferry from completing an Environmental Assessment under Haw. Rev. Stat. ch. 343.  However, as a question that likely goes to the court’s subject matter jurisdiction, the issue must be dealt with, eventually.

The statute of repose in chapter 343 provides for a 120-day challenge period that starts with the agency’s decision to either “carry out or approve” the action.  Haw. Rev. Stat. § 343-7(a) provides:

Anyjudicial proceeding, the subject of which is the lack of…

Continue Reading ▪ The Metaphysics of the Kauai Superferry Statute of Repose

Jay Fidell at ThinkTech Hawaii (Hawaii Public Radio KIPO-FM89.3) posts the podcasts of UH Law School dean and professor Avi Soifer’s appearance on the topic of “Pushing the constitutional envelope – how quickly, if at all, can it snap back.”  It’s not about land use and related topics, but worth listening nonetheless for anyone interested in the role of the courts in protecting constitutional rights. 

Sidebar: One of the more interesting law review articles I’ve read lately is Dean Soifer’s Courting Anarchy, 82 Boston U. L. Rev. 699 (2002), which criticized the U.S. Supreme Court’s Bush v. Goredecision, and analyzed the corrosive effect on judicial legitimacy whencourts make nakedly political decisions.  Speaking of that case, The WallStreet Journal’s law blog has this interesting tidbit: Continue Reading ▪ Podcast: UH Law School Dean on “Pushing the Constitutional Envelope” (mp3)

The Ninth Circuit panel summarizes its decision:

A Latin cross sits atop a prominent rock outcropping known as “Sunrise Rock” in the Mojave National Preserve (“Preserve”). Our court previously held that the presence of the cross in the Preserve—which consists of more than 90 percent federally-owned land, including the land where the cross is situated—violates the Establishment Clause of the United States Constitution. Buono v. Norton, 371 F.3d 543 (9th Cir. 2004). We affirmed the district court’s judgment permanently enjoining the government “from permitting the display of the Latin cross in the area of Sunrise Rock in the Mojave National Preserve.”

During the pendency of the first appeal, Congress enacted a statute directing that the land on which the cross is situated be transferred to a private organization in exchange for a parcel of privately-owned land located elsewhere in the Preserve.  See Pub.L. No. 108-87, R. 12.1, 12.4 §…

Continue Reading ▪ Ninth Circuit: Land Swap of Cross on Federal Land Violates Establishment Clause Injunction

Charley Foster at Planet Kauai has written up the details of the Superferry TRO hearing on Kauai.  Check it out.

Update: Here’s his detailed report.  The critical issues appears to be the 120-day statute of repose to institute challenges under Haw. Rev. Stat. § 343-7(a):

The plaintiffs seemed to view themselves as essentially in the same position as the Sierra Club in its recent successful injunction motion on Maui. However the court expressed its doubts and pointed out that, unlike the plaintiffs here, the Sierra Club filed an objection to the exemption granted Superferry by HDOT two and a half years ago and within the 120-day period required under section 343 of HEPA. Judge Valenciano pointed out that the supreme court’s decision made special mention of this fact – explicitly placing the event triggering the clock on this time limitation back to the grant of the exemption…

Continue Reading ▪ Planet Kauai Blogs the Kauai Superferry TRO Hearing

Here is a collection of all the inversecondemnation.com posts on the Hawaii Superferry litigation:

Case documents —

Commentary and analysis —

Continue Reading ▪ Hawaii Superferry EIS Case Posts