2007

UH Law Professor Carl Christensen has kindly invited me to discuss takings law with the students in his historic preservation seminar on Monday.  I think a good starting point is the granddaddy of historic preservation/regulatory takings decisions, Penn Central Trans. Co. v. New York City, 438 U.S. 104 (1978), a case that highlights the competing concerns when the public’s desire to preserve a historic structure collides with a landowner’s desire to make reasonable use of it.

That case also gave us the “ad hoc” (aka Penn Central) three-part regulatory takings standard that has confounded the courts ever since.

In engaging in these essentially ad hoc, factual inquiries, the Court’s decisions have identified several factors that have particular significance. The economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations are, of course, relevant considerations. See…

Continue Reading ▪ Takings and Historic Preservation: Penn Central

To all those who attended today’s sessions on Practical Guide to Land Use and Zoning, thank you. 

Here is the upcoming attorney’s fee case in the US Supreme Court that I mentioned, the Hawaii fee-shifting statute in cases of “development” without a permit in environmental matters, and California’s Ehrlich v. City of Culver City case, where the court held that the Nollan/Dolan standards apply to non-property exactions, as well as governmental demands for property:

As we explain, we conclude that the tests formulated by the high court in its Dolan and Nollan opinions for determining whether a compensable regulatory taking has occurred under the takings clause of the Fifth Amendment to the federal Constitution apply, under the circumstances of this case, to the monetary exaction imposed by Culver City as a condition of approving plaintiff’s request that the real property in suit be rezoned to permit the…

Continue Reading ▪ Land Use and Zoning Seminar

In United States v. 191.07 Acres of Land (Martinek) (No. 04-35131, Apr. 4, 2007), the Ninth Circuit addressed two interesting issues in the context of a federal taking of unpatented gold- mining claims in Alaska’s Denali National Park.

The first is a question of appellate procedure: whether a party waives the right to appeal the denial of a demand for a jury trial by not seeking an immediate interlocutory appeal. 

The government instituted eminent domain proceedings against the landowner (which entitles the landowner to request a jury trial on the issue of just compensation), and the landowner filed a claim for inverse condemnation (which does not carry with it the right to jury trial).  The trial court held that the landowner had only a single claim for compensation, and the parties stipulated that the taking occurred on a date earlier than the government’s declaration of taking.  Consequently, the court held…

Continue Reading ▪ Ninth Circuit on Jury Trials in Federal Eminent Domain and Inverse Condemnation Valuations

In United States v. 191.07 Acres of Land (Martinek)(No. 04-35131, Apr. 4, 2007), the Ninth Circuit set out a good definition of “inverse condemnation” in the context of when a property owner has a right to a jury trial for federal takings. 

    Where the [condemnor] does not acquire privately owned land statutorily but instead physically enters into possession or institutes regulations that restrict the land’s use, the owner has a right to bring an “inverse condemnation” action to recover the value of the land.  Kirby Forest [Inds., Inc. v. United States, 467 U.S. 1, 4-5 (1984)].  “Such as suit is ‘inverse’ because it is brought by the affected owner, not by the condemnor.  The owner’s right to bring such a suit derives from the self-executing character of the constitutional provision with respect to condemnation.”  Id. at 5 n.6

(slip op. at 3865).  In Martinek…

Continue Reading ▪ What is “Inverse Condemnation?”

New Jersey Eminent Domain blog posts a good summary of the Robbins v. Wilkie case currently pending in the US Supreme Court:

The critical issue for Robbins and other property owners asserting their 5th amendment rights is whether they can do so without fear of retaliation by government officials. Many property owners affected by eminent domain are reluctant to speak out, fearing government retaliation, which may come in the form of code enforcement, health and safety inspections — all done with an objective to force them to give up their property rights for redevelopment before, or even resisting, the eminent domain process.

Very true.  Not all retaliation against property owners is as overt as what the BLM officials are alleged to have done to Mr. Wilkie, and government “payback” may take many forms.  When such behavior goes too far, the law should recognize that property owners may seek relief in…

Continue Reading ▪ Retaliation for Asserting Constitutional Right of Property

In a cert decision issued today in Wailuku Agribusiness Co., Inc. v. Ah Sam  (No. 25930, Mar. 30, 2007), Supreme Court of Hawaii set forth the legal requirements for adverse possession in situations where there may be cotenants on the property claimed to have been adversely possessed. 

I won’t get into the facts of the case — they are dense, and the opinion sets them forth in great detail.  The Court’s ruling on the law is that if cotenants existed, it is “incumbent upon [the party claiming adverse possession] to prove it acted in good faith towards cotenants upon claiming adverse possession.” (slip op. 24).  Continue Reading ▪ Adverse Possession: “Openly, Notoriously, Continuously, Exclusively” And . . .

My thanks to Walt Harvey at Grassroot Institute of Hawaii for posting a very kind review of my work and this blog in Grass in Review:

When Robert is not wearing his private property ‘Superman’ suit he’s apracticing attorney with Damon, Key, Leong, Kupchak & Hastert andhas been selected by his peers to be included in the guide Best Lawyers in America as an expert in  eminent domain and condemnation law.

The  best news is that Robert has created a web log that’s loaded with invaluable information: www.InverseCondemnation.com.He regularly posts issue analysis and case summaries and links topodcasts. He has provided a review and analysis of 2006 significantprivate property rights issues in Hawaii. His site is a daily ‘mustread’ to keep current and we highly recommend it!

Thanks, Walt.  Don’t overlook Walt and Arla Harvey’s comprehensive real estate news site, www.coastalhawaii.com, where on a daily basis they…

Continue Reading ▪ Inversecondemnation.com Reviewed

The podcast of Jay Fidell’s most recent ThinkTech program at Hawaii Public Radio (KIPO FM89.3) has some interesting bits on the developing concept of private property ownership in the People’s Republic of China, and Wu Ping’s (hopefully not last) stand. 

Perhaps experience is demonstrating that Locke’s principles have merit, and that protection of property is essential to the protection and development of other civil rights.  The piece starts at the 12:15 mark.  Continue Reading ▪ Nascent Private Property Rights in China