August 2008

The Supreme Court of Hawaii has scheduled oral arguments in County of Hawaii v. Richards,No. 28882, the consolidated appeal from two eminent domain lawsuitsfiled by the County in 2000 and 2005.  The issues in the case include:

  • application of Haw. Rev. Stat. § 101-27(1993), the statute that provides that the government must make aproperty owner whole and pay damages when an attempt to take propertyby eminent domain is discontinued or dismissed
  • whether the government may concurrently prosecute more than one condemnation lawsuit to take the same property, at the same time
  • the standards for demonstrating that the government’s claim of public use is pretext to hide private benefit

The briefs are posted here, and a summary of the case and the trial court’s findings are here.  The argument will be held on Thursday, October 16, 2008, at 9:00 a.m. in the Supreme Court courtroom at the Continue Reading Oral Argument Scheduled in Kona Eminent Domain Appeals: Damages for Failed Condemnations, Abatement, and Pretext

How much growth is “too much,” and who gets to make that decision under Washington law?  In Thurston County v. Western Washington Growth Management Hearings Board, No. 80115-1 (Aug. 14, 2008), the Washington Supreme Court issued an interesting — but highly technical — ruling on the issue that provides some insight into the issue.  The bottom line: counties have great discretion when adopting their growth plans, and Growth Management Hearings Boards should not establish statewide growth policies.

Under the Growth Management Act, Washington counties are required to draw boundaries  around urban areas (Urban Growth Boundaries) to limit how much development may occur outside of these boundaries.  Under the GMA, these boundaries must be “sufficient” to allow for projected population growth.  Thurston County adopted its first comprehensive plan in 1995, and updated it, including the urban growth boundary, in 2004.  In the update, the County relied on population estimates…

Continue Reading Washington Supreme Court: Growth Board Can’t Grow Its Powers

Three more amicus briefs have been filed in the U.S. Supreme Court case about the Navy’s use of mid-frequency active (MFA) sonar in training exercises off the California coast, Winter v. Natural Resources Defense Council, Inc., No. 07-1239.

Our brief, filed earlier this week, is posted here.Continue Reading Additional Amicus Briefs in Navy Sonar Case

An interesting Sixth Circuit case summarized on Law of the Land by Professor Patty Salkin, Jacob v. Township of West Bloomfield, 531 F.3d 385 (6th Cir. July 3, 2008), which held that zoning inspectors are required by the Fourth Amendment’s search and seizure clause must obtain a warrant if the zoning ordinance they are purporting to enforce can lead to criminal prosecution. 

I won’t go into the details of the decision since Professor Salkin analyzes the case here, but the case is important since many zoning ordinances are criminal or quasi-criminal in nature.  The primary penalties for violation of Maui County’s zoning ordinance, for example, are criminal, with the administrative enforcement process serving as an alternative — or additional — process. 

In Jacob, the property owner was actually prosecuted criminally, but the court held that this was not the determinative factor, and that a zoning inspector is…

Continue Reading Zoning Inspectors Need A Warrant

On August 14, we filed a brief amicus curiae in the case now pending in the U.S. Supreme Court about the Navy’s use of mid-frequency active (MFA) sonar in training exercises off the California coast, Winter v. Natural Resources Defense Council, Inc., No. 07-1239. 

In that case, environmental groups challenged the use of MFA sonar, asserting that the Navy had not completed an environmental impact statement (EIS) to study the possible harms to marine mammals.  MFA sonar is used to detect quiet diesel-electric submarines, which the Navy considers to be one of the top threats to surface ships.  The Ninth Circuit agreed with the plaintiffs and enjoined the exercises, imposing restrictions on how the Navy trains with the sonar, even though the record in the case contained “no evidence that marine mammals have been harmed by the use of MFA sonar in the…training area.”  The Supreme Court agreed…

Continue Reading Admirals’ Amicus Brief in SCOTUS Navy Sonar Case

So the federal government tells you that the device you are making is not a “machine gun” and you go ahead and start to manufacture them.  Times change, though, and three years later “upon further review” (as they say in the NFL), the government tells you that the device is is an illegal “machine gun” and that you can’t sell it to anyone but law enforcement agencies.

In Akins v. United States, No. 08-136C (July 24, 2008), the Court of Federal Claims dismissed a claim that the government’s reversal of position amounted to a taking of property without compensation. 

The plaintiff had obtained a patent from the U.S. Patent and Trademark Office for a device to increase the rate as which a semi-automatic rifle fires.  (Go here to view the patent.)  In other words, it would make a rifle shoot faster.  The Bureau of Alcohol, Tobacco, Firearms and Explosives…

Continue Reading Three Times The Pain, And Your Own Self To Blame*

There is still time to sign up to attend an upcoming seminar, Coastal Engineering and Land Use Issues, in Honolulu.  It’s being held on Thursday, August 14, 2008, at at Hilton Waikiki Prince Kuhio Hotel.  My colleagues and fellow law bloggers Mark Murakami and Jesse Souki are among the faculty.  Topics on the agenda include: Development and Land Use Issues in the Special Management Area, Construction and Land Use Issues in the Shoreline Area, and Managed Retreat Through the Redevelopment Process.  Go here for more information including the complete agenda and faculty list, and registration information.  Continue Reading Coastal Land Use Law Seminar

In a case a lot of folks have been following, a New Jersey appellate court yesterday struck down an attempt to declare properties “blighted.”  Turns out these properties in a residential neighborhood which was proposed to be cleared for luxury condos were not in fact blighted, or at least the government had not proven that they were.  The court remanded the case to the trial court since the city had not established the case that there was “substantial evidence of blight.”  City of Long Branch v. Anzalone, No. A-0067-06T2 (N.J. Super. Aug. 7, 2008).  This decision follows up on the New Jersey Supreme Court’s decision in Gallenthin Realty Dev., Inc. v. Borough of Paulsboro, 924 A.2d 447 (N.J. 2007), which held that “blight” means more than “not fully productive.”

The opinion is posted here.  A summary of the case from New Jersey Eminent Domain Law blog is…

Continue Reading New Jersey: Blight Not Right

An interesting decision from the California Court of Appeals (First Appellate District) about a distinct branch of inverse condemnation law — government liability for flooding and erosion. 

Generally, any physical invasion of property by or caused by the government, no matter how small, is compensable, either in eminent domain, inverse condemnation, or tort.  See, e.g., Pumpelly v. Green Bay Mississippi Canal Co., 80 U.S. (13 Wall.) 166 (1871).  This is true whether the invasion is by government agents, see, e.g., D & D Land Holdings v. United States, No. 06-877L (Court of Fed. Cl., June 30, 2008), members of the public at government invitation, see, e.g., Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987); Kaiser Aetna v. United States, 444 U.S. 164 (1979), or by permanent or temporary floodwaters.  See, e.g., Jacobs v. United States, 290…

Continue Reading Cal. Court of Appeals: Goverment Does Not Have To Own The Entire Faulty Drainage System To Be Liable For Inverse Condemnation

Here is what the ripeness requirements of Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985) have brought us: a seemingly endless procedural game where property owners are forced to keep guessing which shell the pea is under, all the while paying their attorneys to litigate matters having nothing to do with the question of whether a local government’s regulations have gone “too far.”  The latest example is West Linn Corporate Park, LLC v. City of West Linn, Nos. 05-36061, 05-46062 (9th Cir. July 28, 2008), a case in which the Ninth Circuit, after removal from state court and trial in federal court, referred the takings issues in the case to the Oregon Supreme Court, effectively handing off the decision in the case to that court. 

Like a good plaintiff is supposed to do under Williamson County, West Linn Corporate Park (WLCP) began this…

Continue Reading Takings Claim Goes From State Court To Federal Court, And Now Back To State Court