January 2008

In 2007, the courts started to apply the U.S. Supreme Court’s decision in Kelo v. City of New London, 545 U.S. 469 (2005), especially how to mesh the Court’s deferential standard of review with property owner claims of pretext. 

Kelo left intact the standard that a determination that a taking will be for public use is measured by whether the legislature “conceivably” could have believed it would result ineconomic benefit, while leaving open the possibility that certain takings would not pass judicial review.  Justice Kennedy elaborated on that issue, and provided the roadmap for how a court should deal with a claim of pretext:

A court applying rational-basisreview under the Public Use Clause should strike down a takingthat, by a clear showing, is intended to favor a particularprivate party, with only incidental or pretextual publicbenefits, just as a court applying rational-basis review underthe Equal Protection Clause must strike down…

Continue Reading 2007 in Review: Post-Kelo Claims of Pretext

A round up of posts of possible interest to readers:

The 18-page lawsuit names as defendants thecounty of Kaua‘i, the Planning Commission, and the Planning Departmentand its director. It asks for the Koloa Creekside Estates project to befound exempt from the Koloa-Po‘ipu-Kalaheo Development Plan and, ifnot, the imposed conditions to be declared unlawful.

Thedeveloper also opposes some requirements that it was previously willingto concede — such as a land dedication, impact fees and constructionschedule, the lawsuit states.

Attorneys argue in the case for automatic approval of the permits because the county failed to meet its own deadlines.

  • Jesse Souki at Hawaii Land Use Law blog digests HAWSCT’s latest water law decision,

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Continue Reading Land Use Round Up

A federal regulatory takings claim being litigated in the first instance in federal court?  Why, that’s as rare as hen’s teeth.

Here’s the deal: under Williamson County Regional Planning Comm’n v. Hamilton Bank,473 U.S. 172 (1985), a federal regulatory takings claim is not ripe until the property owners has first pursued compensation through available state procedures.  In other words, property owner, go first to state court.  But under City of Chicago v. Int’l College of Surgeons, 522 U.S. 156 (1997), the same rules don’t apply to the government, since it can choose to remove a state court takings claim to federal court, and have the property owner’s federal claims heard initially in federal court.  So in those rare circumstances when a local government wants to buck conventional wisdom and litigate a takings claim in federal court, it has the choice of forum.

For one recent example of this…

Continue Reading Regulatory Takings Claims in Federal Court?

Following up on a recent post about a possible legal challenge to Hawaii’s system of “open” primaries: the U.S. Court of Appeals for the Fourth Circuit (Maryland, W. Virginia, Virginia, North and South Carolina) has denied rehearing/en banc review to a panel decision declaring Virginia’s open primary unconstitutional.  Circuit Judge Wilkinson dissents in a detailed 20 page opinion that is worth reading for anyone interested in this area of voting rights and first amendment law.  Miller v. Cunningham, No. 06-2335 (Dec. 20, 2007).  Thanks to Election Law blog for publicizing the case.Continue Reading Fourth Circuit on Open Primaries

In August, by a3-2 vote, the Hawaii Supreme Court determined that the term “county” inarticle VIII, section 3 of the Hawaii Constitution means “countycouncils.”  The majority held that only county councils may establish property tax policies, and that voters of the county have no power to do so directly by amending their county charter. 

The majority first determined that it was perfectly acceptable for government officials to be both the plaintiffs and the defendants, and sue each other in a friendly lawsuit in which the County Attorney represented both sides.  The majority also approved of the county council hiring a private law firm to prosecute the case in which it was a defendant, with $250,000 of public funds.

The dissenting justices accused the majority of “subvertingthe judicial process” by ignoring standing and justiciability requirements by rearranging the parties after oral arguments,and by attributing the arguments of the defendants to the…

Continue Reading 2007 in Review: Hawaii Supreme Court Rewrites the Constitution

The Hawaii Supreme Court’s decision in the Hawaii Superferry case, coming as it did mere hours after oral argument and just days before the ferry was scheduled to sail, certainly was the issue dominating the headlines in the last quarter of 2007, especially after the Legislature was called into special session to pass legislation allowing the Superferry and other large capacity ferries to sail while the state conducted an environmental assessment. 

Despite the high drama, the issue in the Sierra Club’s lawsuit was fairly straightforward: did the Superferry qualify for a categorical exemption from having to undertake an EA.  The Supreme Court held as a matter of law that it did not, and that secondary impacts should have been considered. 

Everything on inversecondemnation.com about the case, including the briefs of the parties, oral argument recordings, the court’s decision, and commentary, is posted here.Continue Reading 2007 in Review: All Superferry All The Time

These seemingly unrelated court decisions were tied together with a common thread: private agreements for the most part are not substitutes for public processes, whether it is eminent domain, rezoning, or the granting of permits.   

Several courts determined that agreements in which government agreed with private parties to exercise eminent domain were invalid: 

  • One case (in which I am involved as counsel for the property owners so won’t comment in detail) involved a development agreement between the County of Hawaii and a developer to take property for a road.  The trial court struck down the attempt — here is the court’s Findings of Fact and Conclusions of Law.  More on the case here.
  • In a similar vein, a Washington state court of appeals in HTK Mgm’t, L.L.C. v. Rokan Partners, No. 58113-9-I (Wash. Ct. App., July 23, 2007) held that eminent domain “is an inherent power

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Continue Reading 2007 in Review: Private Agreements and Public Process