2007

The Ninth Circuit has issued a new opinion in Northern California River Watch v. City of Healdsburg (No. 04-15442, Aug. 6, 2007). 

The case involves the post-Rapanos standard for how “navigable waters of the United States” is defined in the Clean Water Act, and what wetlands are covered under the Act’s jurisdiction.  The court summarized its decision, holding that the controlling test from the Rapanos plurality (4-4-1) decision is Justice Kennedy’s “significant nexus” test:

Healdsburg discharged the sewage into a body of water known as “Basalt Pond,” a rock quarry pit that had filled with water from the surrounding aquifer, located next to the Russian River. 

The issue is whether Basalt Pond is subject to the CWA because the Pond, containing wetlands, borders additional wetlands that are adjacent to a navigable river of the United States. The district court held that  discharges into the Pond are discharges into the…

Continue Reading ▪ Clean Water Act Post-Rapanos — Ninth Circuit’s New Opinion in Northern Cal. River Watch v. City of Healdsburg

A New York federal court has ruled in favor of a property owner thata municipality wrongfully exercised eminent domain and denied thelandowner procedural due process by not providing proper notice of hisright to contest the taking.  Brody v. Village of Port Chester, No. 00 Civ. 7481 (HB) (SDNY, July 18, 2007).

Under the eminent domain law of New York state, a property owner has thirty days from a condemnor’s determination and findings that a taking of property is for public use to challenge that determination in court.  The Village decided to take Brody’s property for redevelopment, and its decision was reported in the local newspapers.  The papers also published a summary of the Village’s reasons for taking Brody’s property.

Brody, however, did not receive any individualized notice that his property was slated for condemnation.  Nor did he receive notice that he had thirty days to contest the public use…

Continue Reading ▪ Eminent Domain Due Process Notice

        Land-use restrictions often set neighbor against neighbor, and can be a source of considerable turmoil in otherwise tranquil communities. So it is here: Barbara Cordi-Allen and her husband John Allen (the Allens) are landowners in the Cape Cod town of Truro, Massachusetts (the Town). They own a waterfront lot and wish to improve it. They have thus far been stymied in their efforts by a series of zoning, environmental, and licensing restrictions.

         The Allens…

Continue Reading ▪ Land Use Round-up

The Honolulu Star-Bulletin reports an interesting AP story from Washington state, “A good fence makes … trouble,” about property owners whose fence on their own property has been threatened by an obscure federal agency: 

Herbert and Shirley-Ann Leu were thinking landscaping, not politics,when they built an 85-foot-long concrete wall in their back yard.

But their yard happens to run along the U.S.-Canadian border — asituation that has put the Leus in the middle of a property rightsbattle, led the Bush administration to fire its own handpicked bordercaretaker and given rise to a legal dispute over the extent ofpresidential authority.

Full story.  The property owners are being represented by my Pacific Legal Foundation colleagues, whose take on the case is posted here.Continue Reading ▪ Good Fences Make Bad Borders?

The Honolulu Star-Bulletin has posted a story on the recent Hawaii Supreme Court decision in Brescia v. North Shore Ohana (No. 27211, July 12, 2007), entitled “Rocker’s plans for Kauai home blocked.”  According to the story, it turns out the decision in Brescia also impacts a neighboring property belonging to the lead singer of the Red Hot Chili Peppers.  My thoughts on the case, minus the rockstar references, here.Continue Reading ▪ More on Brescia — The Rockstar Angle

An article about the aftermath of Kelo by two fellows from the Institute for Justice points out recent data from the U.S. Census Bureau that shows that seems to bear out the Kelo dissenters’ warning that the power of eminent domain is disproportionately laid on the minorities, lower-income, and the less-educated:

According to the data, those who live under the threat of eminentdomain consistently live on significantly fewer earnings, with a medianincome of less than $19,000 compared to more than $23,000 in nearbyneighborhoods. Twenty-five percent live at or below poverty, comparedto only 16 percent in surrounding communities.

Full article here.Continue Reading ▪ Dissenters’ Kelo Warnings Coming to Pass?

More on the Supreme Court of Hawaii opinion in Brescia v. North Shore Ohana (No. 27211, July 12, 2007).  The Court took up no less than seven points on appeal, but the most interesting to me was the analysis of the estoppel issue.

The case involved Kauai property within the coastal “Special Management Area.”  The SMA is, generally speaking, the land nearest the shoreline, as defined in Hawaii’s Coastal Zone Management Act, Haw. Rev. Stat. ch. 205A.  The CZMA established special controls for this strip of land, and the counties have authority to regulate uses within the SMA, including the location of the “shoreline setback,” which is (like other setbacks) an unbuildable zone that “sets back” structures from the shoreline.  The statewide minimum setback is established by the CZMA, but the individual counties are permitted to establish greater setbacks, which vary from county-to-county.

“Estoppel” means that…

Continue Reading ▪ HAWSCT: Estoppel and Shoreline Setbacks