2007

For those of you who attended the Hawaii Land Use Law Conference, thank you.  Here are the materials I mentioned in my session on Water, Water, Everywhere: Coastal Zone Management Permits; Hawaii’s Floodway, Floodplain and Coastal Inundation Zone Requirements, plus a few others I did not have time to cover:

  • Summary of Diamond case and commentary – 2006’s second “big case” about the CZMA; the “shoreline” issue determined in that case was about the baseline for setbacks, not ownership.
  • Kaiser Aetna v. United States, 444 U.S. 164 (1979) – government’s ability to regulate does not equal the ability to affect ownership rights without just compensation.
  • Boone v. United States, 944 F.2d 1489 (9th Cir. 1989) – guess what, Kaiser Aetna meant what it said.
  • Alameda Gateway, Ltd. v. United States, 45 Fed. Cl. 757 (1999) – Kaiser Aetna really meant what it said – just because a navigable ship repair facility in San Francisco Bay is subject to regulation does not mean property rights are affected.
  • Items I didn’t have time to talk about, but are worth mentioning:

        
    Continue Reading ▪ Land Use Law Conference Materials

    In addition to the bills mentioned earlier here and here, even more measures have been introduced in the Hawaii legislature to amend state eminent domain law.  I believe that these are it for the year, as the deadline to introduce bills has now passed. 

    Prohibits use of eminent domain for private purpose; defines private purpose; where condemned property is transferred to private entity, not a common carrier or public utility, burden is on condemning authority to prove public purpose.

    “The Hawaii supreme court, in a previous decision, Hawaii Housing Authority v. Lyman, 68 Haw. 55, 704 P.2d 888 (1985), indicated that it would not interpret the “public use” provisions of article I, section 20, of the Hawaii state constitution as broadly as the United States Supreme Court has interpreted the corresponding provisions of the fifth amendment.  Nevertheless, the Hawaii supreme court in…

    Continue Reading ▪ Even More Eminent Domain Measures Introduced (Last Ones)

    The Chief Justice of the Supreme Court of Hawaii has given his State of the Judiciary address, available here.  Here’s an excerpt:

    Legislators, as you well know, enact laws in accordance with what they understand to be the popular will and in the public interest.  Judges, however, apply the law that is the result of longstanding common law traditions and legislative processes to the evidence in individual cases; judges do so even when the loudest voices at the time may have other conceptions about what the law or result should be in a particular case.  In short, a judge’s first and foremost duty is to fairly and impartially apply the constitution and the law to the facts of the case.  A judge’s personal feelings about what the law “should be” has no place in his or her deliberations.

        
    Continue Reading ▪ State of the Judiciary

    In addition to the bills I mentioned earlier, more measures have been introduced in the Hawaii legislature to amend state eminent domain law.

    Prohibits use of eminent domain for private purpose; defines private purpose; where condemned property is transferred to private entity, not a common carrier or public utility, burden is on condemning authority to prove public purpose.

    “However, the legislature finds that other takings of private property for transfer to private entities may be susceptible to abuse.  Even under Kelo, the taking of property from one person simply to benefit another private person violates the protections of the public use clause.  Similarly, a taking that is intended to favor a private party, with only incidental or pretextual public benefits, would not be sustained.  Likewise, a taking that is simply for the purpose of providing economic benefits without remedying any harm or…

    Continue Reading ▪ More Eminent Domain Measures Introduced

    QueenstIt’s being reported that the Hawaii Community Development Authority has backed off its plans to widen Queen Street in Honolulu because of delays and increasing costs.  The plans would have used the power of eminent domain to take the property of businesses on both sides of the street.  More stories posted here and here (video).  Update (2/8/2007) – the Star-Bulletin reports that the ID 11 project was killed by a unanimous vote by HDCA.

    The widening project was thought by many to be a “done deal,” believing there was no way to stop the taking.  But this just shows that even in a jurisdiction with fairly weak protections for owners whose property is targeted for acquisition by the government, there are ways to object and protect your property.

        
    Continue Reading ▪ Honolulu Street Widening Halted

    According to one U.S. District Court (N.D. Iowa), there is no right to a jury trial on the issue of whether a land use ordinance is constitutional.  The decision applies City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999).  In Doctor John’s Inc., v. City of Sioux City, a case involving the regulation of the plaintiff’s “adult” store, the district court held that the  City has no Seventh Amendment right to trial by jury on the issue of whether its ordinances are constitutional.

    The court’s decision can be found here (pdf).

        
    Continue Reading ▪ No Jury Trial on “Constitutionality” of Land Use Laws

    Several measures have been introduced at the Hawaii Legislature dealing with eminent domain.  Recall that several such measures were introduced last year in response to the Kelo decision, but none made it out of committee.  Nor did last November’s voter reform of eminent domain make its way to Hawaii’s shores, since Hawaii law does not allow statewide initiative or referendum. 

    So it is almost entirely up to the legislature.  Here are summaries or excerpts of the proposals, so far.  If I missed any, let me know: 

    Restricts the eminent domain powers of the counties to ensure that private property, if acquired by a county through its eminent domain powers, is acquired only for public uses and not for private use.

    Same as above, with different language.

    Prohibits use of…

    Continue Reading ▪ Eminent Domain Measures Introduced

    To those who attended today’s land use seminar — thank you.  If you have any questions that were not answered, please emailme, or if you would like additional copies of the law review articlehanded out.  Here are the additional references and materials from mysessions on “Supreme Court Update” and “Vested Rights” — 

       The summary of 2006’s significant land use events is posted here.

    Continue Reading ▪ Advanced Land Use Seminar Materials

    As a way of saying “aloha” to 2006, I’ve summarized the land use lawhighlights (orlowlights, depending on your point of view) from the Hawaii SupremeCourt, the Ninth Circuit, and the U.S. Supreme Court, roughly inchronological order.  Topics include shorelines, eminent domain,environmental impact statements, RLUIPA, vested rights, and land uselitigation procedures.

    If you think I missed any key cases or events, please email me.

        
    Continue Reading ▪ 2006 Land Use in Review

    Your rights for sale in the Second Circuit: SCOTUS today denied cert, declining to review the Didden v. Village of Port Chester petition.  Details here.  The facts of the case are particularly egregious, a nearly textbook example of the pretextual taking the Court told us would not qualify as a taking “for public use” in Kelo.  In return for a private developer’s promise to withhold an exercise of eminent domain, a landowner was offered a choice: give the developer $800,000, or a one-half interest in the owner’s planned use of the property.

    When the Supreme Court denies review it does not establish any precedent or rule of law, and the Second Circuit’s decision in the case has no impact outside of that court’s geographical jurisdiction (New York, Connecticut, Vermont), so the issue remains up for grabs, and will be sure to return. 

        
    Continue Reading ▪ Supreme Court: Eminent Domain Extortion OK