November 2008

In 1994, at the dawn of mass public use of the internet, I wrote an article for the Journal of Legal Education about the benefits and dangers of using technology as a pedagogical crutch in law schools: “Hey, Did You Get My E-Mail?” Reflections of a Retro-Grouch in the Computer Age of Legal Education, 44 J. Legal Educ. 233 (1994) (I can email you a copy if you want to read it, just ask).

As the title of the article indicates, I may be a quasi-Luddite when it comes to tech, so I’m not even quite sure I know what it means to “be on Twitter.” But it is apparently becoming another channel for communication and the sharing of ideas, so as of today, we’re on Twitter. I’ll try and keep the signal-to-noise ratio high, and use Twitter for items that may not merit full blog posts, or…

Continue Reading Resistance is Futile: Inversecondemnation.com Now on Twitter

On November 25, 2008, the Supreme Court will consider whether to review the Sixth Circuit’s decision in Braun v. Ann Arbor Charter Township, 519 F.3d 564 (6th Cir. 2008), a decision we analyzed here. The petition expressly asks the Court to overrule Williamson County.  We’ve detailed the kafkaesque nature of the Williamson County rule many times, most recently here (in a post about another pending petition which asks the Court to overrule the case).  Here are the briefs in Braun:

The Court’s docket report is available here. The cert petition contains three Questions Presented:

1.     Should the Court overrule Williamson County Regional Planning Commission v. Hamilton Bank of Johnson Cityinsofar as it requires property owners to seek compensation in statecourt to…

Continue Reading Overrule Williamson County

A panel of the U.S. Court of Appeals for the Ninth Circuit is riding circuit to Honolulu next week to hear oral arguments. The arguments will be held in the sixth floor courtroom at 1132 Bishop Street each day but Wednesday.  On Wednesday, November 19, the court will be hearing arguments in the moot courtroom at the U. Hawaii School of Law. 

The schedule for the 1132 Bishop courtroom cases is posted here, and the schedule for U.H. is here.

The final case on the court’s calendar on Friday, November 21 is the Maui Vacation Rental Association v. County of Maui appeal, which challenges the constitutionality of the County’s shut-down of vacation rentals, despite its earlier assurances of an amnesty and enforcement moratorium while it processed permits.  I represent MVRA in that case.  The briefs of the parties and media links are posted here.Continue Reading Ninth Circuit Coming to Honolulu Nov. 17 – 21

Yesterday’s Supreme Court decision in Winter v. Natural Resources Defense Council, Inc.,No. 07-1239 has generated a fair amount of media and blog coverage, both nationally and in Hawaii.  Why does a land use law blog care about a case involving the Navy’s use of sonar in training exercises off the California coast?  First, as we explained here, the case is philosophically interesting because of the arguments regarding when courts should defer to the judgment of the executive branch and the military. Second, we filed an amicus brief in the case on behalf of nine retired Admirals and several service support groups (posted here), supporting the Navy’s arguments.

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Continue Reading Navy Sonar Case Round-up

The U.S. Supreme Court issued a ruling today in Winter v. Natural Resources Defense Council, Inc.,No. 07-1239, the case about the Navy’s use of mid-frequency active sonar in training exercises off the California coast. The Court vacated the injunction the California district court imposed:

The preliminary injunction is vacated to the extent challenged by theNavy. The balance of equities and the public interest—which were barelyaddressed by the District Court—tip strongly in favor of the Navy. TheNavy’s need to conduct realistic training with active sonar to respondto the threat posed by enemy submarines plainly outweighs the interestsadvanced by the plaintiffs.

Along with my Damon Key colleagues Mark Murakami and Christi-Anne Kudo Chock, and co-counsel Mike Lilly and Ted Meeker, I filed an amicus brief in the case.  Our brief set forth the arguments of nine retired Admirals, including a former Chief of Naval Operations,former Commanders of the Pacific (Pearl…

Continue Reading Decision in Navy Sonar Case

So much of “land use” and eminent domain law also involves the law of state, local, and municipal government. Thus, its good to see the folks at the International Municipal Lawyers Association have started blogging.  Check out IMLA’s Local Government Blog and subscribe to the RSS feed. Of special note are the posts on land use issues authored by land use law expert Dwight Merriam, a great addition to the law blog world. Continue Reading New Blog on State and Municipal Government and Land Use Law

Administrative note: I’ve added two new categories for indexing posts:

Equal protection comes up often in land use litigation when the government discriminates against a person for belonging to a protected class, and when a landowner asserts she was singled out for different treatment than others who are similarly situated (the “class of one” / Olech claim). The federal civil rights statute, 42 U.S.C. § 1983 is a common vehicle to litigate constitutional land use claims in either federal or state courts:

Every person who, under color of any statute, ordinance, regulation,custom, or usage, of any State or Territory or the District ofColumbia, subjects, or causes to be subjected, any citizen of theUnited States or other person within the jurisdiction thereof to thedeprivation of any rights, privileges, or immunities secured by theConstitution and laws, shall be liable to the party injured…

Continue Reading Two New Categories: Equal Protection, 42 U.S.C. § 1983/Civil Rights

The most easily recognizable equal protection claim is one in which the plaintiff claims membership in a protected group, and some form of discrimination against the class. Another type of equal protection claim is the “class of one” claim under Village of Willowbrook v. Olech, 528 U.S. 562 (2000) (per curiam), where the Court held that a landowner who claimed village officials retaliated against her for winning an earlier lawsuit againstthem was entitled to bring a claim for an equal protectionviolation even though she was not a member of any protected class, or any group at all. If she was being singled out from others who were similarly situated for disparate treatement, she had a claim. The latest case is in the latter category.

In SBT Holdings, LLC v. Town of Westminster, No. 08-1512 (1st Cir. Nov. 6, 2008), the U.S. Court of Appeals for the First Circuit…

Continue Reading Pleading Class of One Equal Protection Land Use Claims

In reviewing some of the comments posted on the Honolulu Advertiser’s November 1 report  “Rail study doesn’t list all affected properties,”it seems several of the commenters have fairly severe misconceptionsabout how eminent domain law works in Hawaii. Let’s clear some up somemyths.

  • Myth #1: The city will offer a “premium” to property ownerswhose homes, businesses and churches will need to be acquired, becausethe city will want their properties quickly. Wrong on twocounts. First, the city does not need to offer a premium since Hawaiilaw has a procedure by which the city can take immediate possession ofproperty it wants, “ex parte” (without notice to thelandowner). Second, the city will only offer what it believes to be theamount legally required to be paid for “just compensation” and damage,not a penny more. Indeed, the citywill claim it is fulfilling its obligation to the rest of thetaxpayers when it offers

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Continue Reading Clearing Up Myths About Hawaii Eminent Domain Law

In reviewing some of the comments posted on the Honolulu Advertiser’s November 1 report  “Rail study doesn’t list all affected properties,” it seems several of the commenters have fairly severe misconceptions about how eminent domain law works in Hawaii. Let’s clear some up some myths.

  • Myth #1: The city will offer a “premium” to property owners whose homes, businesses and churches will need to be acquired, because the city will want their properties quickly. Wrong on two counts. First, the city does not need to offer a premium since Hawaii law has a procedure by which the city can take immediate possession of property it wants, “ex parte” (without notice to the landowner). Second, the city will only offer what it believes to be the amount legally required to be paid for “just compensation” and damage, not a penny more. Indeed, the citywill claim it is

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Continue Reading Clearing Up Myths About Hawaii Eminent Domain Law and the Rail