February 2008

There’s still time to register for the “Advanced Land Use and Zoning Law” seminar to be held on Wednesday, February 20, 2008 at the Ala Moana Hotel in Honolulu. 

Topics include vacation rentals, big box zoning, affordable housing exactions, landowner liability for rockfalls, an environmental law update, and a summary of recent key decisions from Hawaii and other jurisdictions on land use and related issues.  The faculty is comprised of my Damon Key Land Use Practice Group colleagues Greg Kugle, Mark Murakami, Robert Harris, and Noelle Catalan.  I’ll be covering the topic “U.S. Supreme Court, Regulatory Takings, and Eminent Domain Update.”

Full agenda and registration information here.  Hope you can make it — if you do, stop by and say hello.Continue Reading Land Use Seminar: February 20, 2008

Hawaii Public Radio has posted a five-part series ofreports on “Transit and Growth in Hawaii,” the third of which is themost interesting since it focuses on Honolulu’s proposed $4 billion+ railsystem.  Each of the segments, however, is worth a listen:

  • Part I – did 1970’s projections match up to reality?
  • Part II – gas prices and growth
  • Part III – the cost of rail, and who will pay
  • Part IV – the EIS
  • Part V – which technology will be employed?

In a similar vein, last year, UH Law professor David Callies, Honolulu attorney Vernon Woo, and I were guests on Jay Fidell’s KHPR program on the topic of Honolulu rail, and the development and land use issues sure to surround the project.  Audio of the show is available here.Continue Reading Hawaii Public Radio on Transit, Land Use, and Growth (mp3)

Thanks to Professor Patty Salkin for calling attention to a recent case from a Missouri federal court that provides a good (if that word can be used) illustration of the weird shell game that is played by the federal courts when it comes to regulatory takings claims, Reagan v. City of St. Louis, No. 4:07CV1487 (Jan. 31, 2008).

Reagan brought regulatory takings claims against the city for downzoning her land from industrial to residential, making her land unsuitable for her business.  Reagan filed suit against the city in state court, alleging that the city’s actions violated the federal takings and due process clauses, and the Missouri takings clause.  Prior to trial, Reagan dismissed the federal takings claim, presumably because she was trying to keep open the possibility of federal court review of the issue at some point in the future. 

In other words, the property owner did expressly did…

Continue Reading Williamson County Illustrated: You’re Either Too Early, or You’re Too Late

The Garden Island reports that a property owner’s appeal of the County of Kauai’s approval of its permits with allegedly illegal conditions is going forward after the County withdrew its motion to dismiss.

The County Attorney’s Office filed for themotion to dismiss based on the Planning Commission failing to issue a“written decision and order containing findings of fact and conclusionsof law,” which it claims is the only decision the court can review.Without it, there is no subject matter to base a case.

ThePlanning Commission has this on its Feb. 12 agenda, which, if approved,would apparently ratify the commission’s Dec. 11 approval ofCreeksides’ permit applications.

Full report here.

Continue Reading County Withdraws Motion to Dismiss Land Use Civil Rights Complaint

The Garden Island reports that the Kauai County Council is considering a ban on “gated communities” —

A stalled plan to ban gated communitiesshould return to County Council’s agenda by the end of February, MayorBryan Baptiste said yesterday. 
   
“It’s not a public safety issue to me,” he said. “It’s so we don’t isolate ourselves from each other.”

All I can say about the issue is, what about the right to excludeothers?  This may be the most fundamental “stick” in the bundle of rightsknown as property, and can’t be taken away by regulation, no matter how well-intentioned the regulation may be. 

After all, if you can’t keep others off your property, what have you got left?  According to the U.S. Supreme Court, nothing (except perhaps a per se regulatory takings claim).  As the Court held in Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987):

We have repeatedly…

Continue Reading The Right to Exclude Others From Gated Communities

I promised back in this post to digest the Hawaii Supreme Court’s opinion in Colony Surf, Ltd. v. Director of the Dep’t of Planning and Permitting, No 26037 (Dec. 26, 2007).  However, because the opinion is so opaque it is difficult to understand, and the issue so narrow, I never quite got around to doing so. 

Professor Patty Salkin saves the day by posting a summary of the decision here on her Law of the Land blog.  Continue Reading Nonconforming Uses and “Grandfathering” of Land Uses

In Goldstein v. Pataki, No. 07-2537-cv (Feb. 1, 2008), the US Court of Appeals for the Second Circuit held that a property owner failed to state a claim for Kelo “pretext.”  While paying lip service to the notion that in reviewing a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the district court and the court of appeals are supposed to take as true the factual allegations in the complaint and view them in the light most favorable to the plaintiff (see slip op. at 3-4), the court held that the complaint did not plead enough facts to show pretext.

The crux of the issue in Goldstein was whether factual allegations of pretext could be trumped by the invocation of the Berman-Midkiff-Kelo legal standard of conceivable public use.

In other words, the appellants have effectively conceded what Rosenthal found to have been a complete defense to a public-use…

Continue Reading Pleading Kelo Pretext: What About Justice Kennedy?

In Bair v. United States, No. 2007-5049 (Feb. 5, 2008), the US Court of Appeals for the Federal Circuit held that a federal statute that effectively wiped out liens possessed by beet growers  was not a taking.  The court held that the liens — which all parties admitted were recognized by state law — were always subject to the federal statute, thus were not a compensable property interest that could have been taken.  Yes, the value of the liens were wiped out by the federal statute, but the liens were never viable to begin with.

The Federal Circuit held that the federal statute was a “background principle” of law under Lucas to which the state-recognized liens were always subject, much like the federal “navigational servitude,” the background principle that private ownership of navigable waters is impossible:

The central dispute in this case is whether appellants possessed a compensable property…

Continue Reading Federal Circuit: No Taking Due to “Federal Beet Lien Servitude”

My colleague Mark Murakami has posted a summary of a recent speech by US Supreme Court Associate Justice Stephen Breyer on hawaiioceanlaw.com:

So, what is judicial independence?  He said that every judge knowswhat it means, some lawyers do, and, for the most part, most people inthe public had no idea.  So, is there a problem with judicialindependence, he asked.

He thought there was.  The signs of a problem: 1) elected judgesbeing forced to raise campaign funds to be re-elected; 2) stateinitiatives to punish judges for their decisions (citing South Dakotaand Colorado); and 3) a disturbing trend in public opinion pollssuggesting that more Americans believe judges make decisions, not basedon what the law says, but what they personally want to do.

Read his entire post here.Continue Reading Justice Breyer on Judicial Independence

A complaint has been filed in U.S. District Court against the mayor of Kauai County, the county  Department of Planning, and the Planning Commission over the Coconut Beach development.  The complaint seeks relief for violations of equal protection, and federal civil rights laws.  Charley Foster has some background on the case here.  Download the complaint here.Continue Reading Federal Equal Protection Land Use Case Filed