February 2008

shorelineIn “New Kauai shoreline erosion bill among the nation’s most conservative,” Jan TenBruggencate summarizes the recently enacted Kauai ordinance adopting a variable shoreline setback:

Kaua’i County has adopted the most aggressive shoreline buildingsetback law in the state, a powerful policy that aims to protectcoastal structures against 70 to 100 years of erosion.
. . . .

Under the new legislation, there are two potential ways of calculating how close to the water a structure can be erected.
. . . .

The Kaua’i bill is considerably strongerthan the state’s first such legislation, Maui’s bill. The Maui setbacksare 25 feet plus 50 times the erosion rate.

Forcomparison, on a beach with one foot of erosion per year, a Maui homewould be set back 75 feet from the certified shoreline (25 feet plus50), while the same house on Kaua’i would be set 110 feet back (40 feetplus 70).

Read Jan’s…

Continue Reading Aggressive New Kauai Shoreline Setback Ordinance Adopted

The plaintiff property owner has filed a motion for partial summary judgment in the federal court challenge to Maui County’s “affordable housing” requirement.  Kamaole Pointe Development LP v. County of Maui, Civ. No. CV07-00447 DAE LEK (filed Feb. 28, 2008). 

The Maui ordinance, enacted last year, imposes a 40% to 50% affordable requirement on new housing developments.  I posted on the case earlier here (contains a link to the complaint), and analyzed the legal problems with the ordinance under state law  here . 

The plaintiff’s motion is posted here (1.5mb pdf).  It asks the court to declare the ordinance unconstitutional on its face under the Nollan/Dolan doctrine of unconstitutional exactions, which requires the government to show a substantial nexus between the exaction and some problem caused by the property owner before the government may demand tribute as a condition of development.  The exaction must also be…

Continue Reading Nollan/Dolan in Federal Court Challenge to Maui’s “Affordable Housing” Exaction Scheme

512n15x1gdl_ss500_In “Defend the Castle!,” Professor Gideon Kanner referenced a British vaudeville song by the Clancy Brothers, “They’re Moving Father’s Grave to Build a Sewer.” He wrote:   

And speaking of entertaining stuff that’s related to eminent domain —and Lord knows there is precious little of that —  there is also awonderful old British vaudeville song entitled “They’re movin’ father’sgrave to build a sewer.” It was recorded by the Clancy Brothers andshould be available on one of their CDs. It too is great fun.

I had not heard of the Clancy Brothers or the song before, but sure enough, their “Greatest Hits” album is available from Amazon (with free samples), and I downloaded one version of the song from Napster. 

They’re moving father’s grave to build a sewer,
They’re moving him regardless of expense.
They dug up his remains,
To put in five-inch drains,
To irrigate some…

Continue Reading They’re Moving Father’s Grave to Build a Sewer

In “Defend the Castle!” Professor Gideon Kanner adds to my recent review of “The Castle,” a comedy about an Australian family’s fight to preserve their home from a Kelo-esque taking. Professor Kanner clarifies the Australian condemnation law:

And by the way, speaking of things Australian, we might mention thatthe Aussie term for eminent domain is “resumption.” It is derived fromthe fact that the original Crown land grants in Australia had aprovision reserving to the the Crown the right to resume title uponpayment of compensation.

Read the full post here.Continue Reading More on “The Castle”

The San Francisco Chronicle posts “Maui County closes unlicensed bed and breakfasts and vacation rentals,” with background on the issue and the pending Ninth Circuit appeal.

In what is becoming a divisive battle – bothin court and in residential neighborhoods – the owners of the B&Bsand rental homes charge that the new leadership of Maui County, whichencompasses all three islands, has broken promises made by theirpredecessors to allow unlicensed properties to remain open, pending anoverhaul of the cumbersome licensing process.

County inspectors began their crackdown last July, when about 20properties were ordered to close, mainly in the Upcountry and NorthShore areas of Maui.

Complete story here.  Check out the public comments on the story here. 

Disclosure: I represent the Maui Vacation Rental Association in its Ninth Circuit appeal.

Continue Reading Maui Vacation Rental Ban in the News

The_castle_poster_3The Kerrigan home will never make the pages of Australian House Beautiful: it sits in the flight path of the Melbourne airport, massive power lines run overhead, the back yard used to be a toxic landfill, and the owner has installed a few — ahem — “unauthorized” additions including a greyhound kennel, a massive TV aerial, and a faux chimney. 

But despite its faults, it’s home — “The Castle” — and tow-truck driver Darryl Kerrigan intends to protect it from “compulsory acquisition” (Australia’s version of eminent domain) when the airport authority, backed by a large corporation, decides it needs to take the neighborhood for an expanded runway.  The family’s peaceful existence is shattered by thetake-it-or-leave-it offer from the local council for paltrycompensation. 

I finally got my hands on an original Australian version of this 1997 comedy about a slightly offbeat family’s attempt to resist a…

Continue Reading Movie Review: Kelo Down Under

Thank you to all those who attended today’s Advanced Land Use Seminar.  Here are the links to the cases I discussed.  Also, for anyone who wants the Powerpoint presentation from the first session, email me.

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Continue Reading Links From Today’s Seminar

In Palmyra Pacific Seafoods, L.L.C. v. United States, No 07-35L (Jan. 22, 2008), the U.S. Court of Federal Claims (the article I court that hears inverse condemnation claims against the federal government) held that federal regulations which prohibited commercial fishing in waters around Palmyra Atoll and Kingman Reef did not take the plaintiffs’ licenses for  commercial fish processing facilities on the atoll.

The plaintiffs were exclusively licensed by the owners of Palmyra Atoll (located approximately 1,000 miles south of Hawaii) to commercially fish the nearby waters, and to use the atoll’s airstrip, dock, harbor, and base came for their commercial fishing enterprise.  In reliance on the licenses, the plaintiffs invested several millions of dollars in on-island infrastructure, and actually began commercial fishing operations.  Slip op. at 2 & n.1.   

In 2001, however, the Secretary of the Interior designated the waters surrounding Palmyra and Kingman Reef as National Wildlife…

Continue Reading Court of Federal Claims: Commercial Fishing License Not “Property”

Mark your calendars for February 29, 2008.  That’s the day the US Supreme Court will decide whether to review a petition for certiorari which calls for the overruling of Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985), the case that brought us the “ripeness” rule in regulatory takings.  A summary of the Williamson County rule is in this post and the comments.

The case is Peters v. Village of Clifton, No. 07-635.  The Seventh Circuit’s opinion is here.  SCOTUSblog calls the case a “petition to watch,” and has posted the cert petition, the opposition, and the supporting amici briefs here.

The Questions Presented by the cert petition are:

1.  Should the Court overrule Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City to the extent it requires property owners
to seek compensation in state courts to ripen a federal takings…

Continue Reading Williamson County Cert Petition and Supporting Briefs