2008

The transcript of the June 2, 2008 arguments in the federal lawsuit challenging Maui’s affordable (“workforce”) housing exaction has been released. That hearing resulted in a lengthy opinion by the District Court holding that the plaintiff’s Nollan/Dolan claims were not ripe, and a recent order holding that the facial due process and equal protection claims should be dismissed.

The most interesting part of the hearing was when the county admitted the motivation for the 40-50% exaction was to not give all infrastructure away to “millionaires from the Mainland,” or even “millionaires on Maui.”  The court, as one might expect, had a bit of difficulty with that reasoning:

MS. D’ENBEAU: And this is for people, good solid middle income people who find themselves priced out of the market on Maui. So the county council in its wisdom decided, All right, since we have limited water, we have limited roads, …

Continue Reading Transcript of Arguments in Maui Affordable Housing Exaction Case

Ilh Insurance Law Hawaii, the law blog authored by my Damon Key colleagues Robert Harris and Tred Eyerly which covers insurance coverage issues, has been selected as one of LexisNexis’ Top 50 Blogs for Insurance. 

“These blogsites contain some of the best writing out there on coverage,catastrophic loss, regulatory compliance, life insurance, health careand insurance issues in general. They contain a wealth of informationfor the insurance community with timely news items, practicalinformation, expert analysis, frequent postings and helpful links toother sites.

These blogsites also show us how insurance issuesinteract with politics and culture. Moreover, they demonstrate howbloggers can impact the world of insurance law and insurance industryissues.”Continue Reading Insurance Law Hawaii Named a “Top 50 Blog for Insurance”

The US District Court for the District of Hawaii has granted (in part) the County of Maui’s motion for reconsideration of the court’s earlier order granting in part and denying in partthe County’s summary judgment motion.  Here’s a copy of the court’s latest order.

The court entered summary judgment in favor of the county on the plaintiff’s facial equal protection and facial due process claims, and allowed the “class of one” equal protection claim, and the as-applied equal protection and due process claims to proceed. 

The case involves a Maui property owner’s challenge to the County’s “workforce housing” exaction ordinance, which requires aproperty owner to commit 40% to 50% of the unitsin most new housing developments to below-market-rate ownership orrental.  Kamaole Pointe Development LP v. County of Maui, No. 07-00447 DAE.  The plaintiff challenged theordinance under the Nollan/Dolan doctrine of unconstitutional exactions, which requires the…

Continue Reading Court Strikes Facial Due Process and Equal Protection Claims in Maui Affordable Housing Exaction Case

Upcoming Events and Conferences

May 4, 2018
 
Arizona Condemnation Summit XXII (Phoenix, AZ) 
 
April 19-22, 2018
 

Past Events and Conferences

January 2018
 
35th Annual ALI-CLE Eminent Domain and Land Valuation Litigation Conference (Charleston, South Carolina) – Co-planning Chair and faculty.
October 5-8, 2017
August 11, 2017

A modest but very knowledgeable crowd joined us today at the ABA Annual Meeting in New York for a panel discussion and analysis of

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Continue Reading Speaking and Conference Faculty

Mark your calendars for Saturday, September 27, 2008.  Ka Huli Ao Center for Excellence in Native Hawaiian Law at the University of Hawaii School of Law will be presenting a workshop “Hawaii State Historic Preservation Laws: Reclaiming the Past, Shaping the Future.” 

I will be speaking on “Background Principles and Paradigm Shifting: The Role of Property Rights in Historic Preservation Laws.”

The other speakers will be Dr. Kehau Abad, Oahu Island Burial Council; Dawn N.S. Chang, Kuiwalu; Prof. Carl C. Christensen, William S. Richardson School of Law; Dr. Thomas S. Dye, T.S. Dye and Associates; Moses Haia, Esq., Native Hawaiian Legal Corporation; Dr. Holly McEldowney, DLNR, Division of State Parks; Nancy McMahon, DLNR, Historic Preservation Division; Kai Markell, Office of Hawaiian Affairs; and William M. Tam, Esq., Alston Hunt Floyd & Ing. 

The keynote speaker will be Dr. Patrick Kirch, Departments of Anthropology and Integrative Biology, University of…

Continue Reading Upcoming UH Law School Workshop on Preservation Laws

Is a determination by the Corps of Engineers that property contains “waters of the United States” and is therefore subject to regulation under the Clean Water Act a “final agency action” subject to judicial review under the Administrative Procedures Act?  According to the Ninth Circuit, no. 

In Fairbanks North Star Borough v. U.S. Army Corps of Engineers, No. 07-35545 (Sep. 12, 2008), Fairbanks wanted to develop a parcel for a playground, athletic fields, and associated infrastructure, and asked the Corps for a determination whether any of the property was “wetlands.”  The Corps replied that the entire parcel was wetlands and was subject to regulation under the Clean Water Act.  In other words, before Fairbanks could place any fill material on the property, it must obtain a section 404 permit from the Corps. Fairbanks exhausted its administrative remedies, then challenged the determination in court asserting the wetlands determination was erroneous.…

Continue Reading Ninth Circuit: Court Has No Jurisdiction to Review Corps’ Clean Water Act Jurisdictional Determination

District Court: San Diego county’s zoning ordinance — which “imposes restrictions and permit requirements on the construction and location of wireless telecommunications facilities” — conflicts with federal law, and is preempted.  The county is permanently enjoined from enforcing the zoning ordinance.

Ninth Circuit panel: we agree. 

Ninth Circuit en banc: we don’t, injunction dissolved, case dismissed. 

Sprint Telephony PCS, L.P. v. County of San Diego, Nos. 05-56076, 05-56435 (Sep. 11, 2008) (en banc). Continue Reading Ninth Circuit: Local Zoning Ordinance Does Not Conflict With Federal Statute

The Natural Resources Defense Council has filed its brief in the US Supreme Court case about the Navy’s use of mid-frequencyactive (MFA) sonar in training exercises off the California coast, Winter v. Natural Resources Defense Council, Inc., No. 07-1239:

The Navy argues that a letter it procured from another executive-branch agency, the White House Counsel on Environmental Quality (“CEQ”), disagreeing with the district court’s finding, compelled the court to strike the challenged measures. This novel argument, reduced to its essentials, is that an Article III court must set aside its findings of fact and modify an injunction because an administrative agency in which Congress has vested no adjudicatory authority, and which lacks any expertise in the issue in dispute, disagrees with the court’s findings. The consequence of the Navy’s argument—that CEQ was entitled to sit as a “court of errors” in review of the district court’s findings—ignores not…

Continue Reading NRDC Brief in Navy Sonar Case

The California Coastal Commission today filed its brief in the U.S. Supreme Court case about the Navy’s use of mid-frequencyactive (MFA) sonar in training exercises off the California coast, Winter v. Natural Resources Defense Council, Inc., No. 07-1239.  The issue in the case is whether the Ninth Circuit properly granted aninjunction under the National Environmental Policy Act (NEPA), 42U.S.C. § 4321, the law that requires federal agencies to consider theenvironmental impacts of their proposed actions and reasonablealternatives to those actions.  The CCC’s brief summarizes its argument:

According to the Navy’s own assessment, its training exercises “will cause widespread harm to nearly thirty species of marine mammals, including five species of endangered species, and may cause permanent death or injury.” App. 163a. Congress in the Marine Mammal Protection Act (MMPA), however, authorized the Secretary of Defense to exempt certain military activities from the MMPA despite their impact on marine…

Continue Reading California Coastal Commission Brief in Navy Sonar Case