2008

In Citizens’ Alliance for Property Rights v. Sims, No. 59416-8-1 (Wash. Ct. App. July 7, 2008), the Court of Appeals of the State of Washington held that a county ordinance which prohibited  a landowner from clearing 50% to 65% of his property violated a state statute prohibiting counties from imposing a “tax, fee, or charge” on land development.

The court relied on Isla Verde Int. Holdings, Inc. v. City of Camas, 49 P.3d 867 (Wa. 2002) to find that King County Ordinance 15053 §14 violates the prohibition on taxing land development in Rev. Code of Washington 82.02.020.  That statute provides, in part:

Except as provided in RCW 82.02.050 through 82.02.090,no county, city, town, or other municipal corporation shall impose anytax, fee, or charge, either direct or indirect, on the construction orreconstruction of residential buildings, commercial buildings,industrial buildings, or on any other building or building space orappurtenance…

Continue Reading Washington (State) Court Of Appeals: One-Size-Fits-All Open Space Regulation Is Not Roughly Proportional

The State of Hawaii Office of Hawaiian Affairs has filed its Brief in Opposition, arguing the U.S. Supreme Court should not review the “ceded lands” case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert.petition filed Apr. 29, 2008).  The State has sought a writ of certiorari to review of the decision by the Hawaii Supreme Court in Office of Hawaiian Affairs v. Housing and Community Dev. Corp. of Hawaii,117 Haw. 174, 177 P.3d 884 (Jan. 31, 2008). 

In that case, theHawaii Supreme Court, relying on the “Apology Resolution,” enjoined theState of Hawaii from conveying 1.2 million acres of state-owned landuntil a political settlement is reached with Native Hawaiians about thestatus of that land.

The Question Presented by OHA’s BIO naturally frames the issue differently than the State did in its Petition:

Whether the Hawaii Supreme Court acted within its authority in relying upon Hawaii’s laws…

Continue Reading Brief in Opposition in Ceded Lands Case

Check out Jay Fidell’s op-ed in the Honolulu Advertiser, “Appeals court decision threatens our biotech sector” about the recent Intermediate Court of Appeals decision in Ohana Pale Ke Ao v. Bd. of Agriculture, State of Hawaii, No. 27855 (May 21, 2008). 

In that case, the ICA held that the state must complete an environmental assessment (EA) prior to approving a permit allowing the importation of genetically engineered algae.  Jay writes:

The case involves a permit for importation of a geneticallyengineered algae, a choice target of environmental activists. But thecourt decision is not limited to genetically modified organisms: Itcovers all animal and plant organisms, GMO and otherwise. And itdoesn’t affect just permit applications — it also affects permitsalready granted for organisms already in the state. Agriculturalresearch and cultivation also will undoubtedly be affected. Hard casesmake bad law.

The retroactive nature of the decision reminds usof the Superferry. There, the applicant did everything the Departmentof Transportation asked for and got its approval. Then, years later,the court imposed additional requirements. How different is that fromwhat happened here? The applicant here did everything Agriculture askedfor and got its permit. Then, years later, the court imposed additionalrequirements. How can you rely on what government tells you? How canyou do a business plan? How can you get investors?

Our summary of the decision here. 
Continue Reading Op-Ed on GMO Algae Case

Relying on Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985), the US District Court for the District of Hawaii today denied a property owner’s motion for summary judgment in a case challenging the County of Maui’s “workforce housing” exaction ordinance.  Kamaole Pointe Development LP v. County of Maui, No. 07-00447 DAE.

The ordinance requires a property owner to commit 40% to 50% of the units in most new housing developments to below-market-rate ownership or rental.  A property owner subject to this exaction challenged the ordinance under the Nollan/Dolan doctrine of unconstitutional exactions, which requires the governmentto show a substantial nexus between the exaction and some problemcaused by the property owner before the government may demand tributeas a condition of development.  The exaction must also be roughlyproportional to the problem.  See this post for more on the nexus analysis.

I posted on the…

Continue Reading Nollan/Dolan Challenge to Maui’s 50% Housing Exaction Is A Takings Claim Subject To Williamson County

I’ve finally had a chance to read the article posted on SSRN by Professor Laurence Tribe about the Supreme Court’s decision in Wilkie v. Robbins, 127 S. Ct. 2588 (2007), “Death by a Thousand Cuts: Constitutional Wrongs without Remedies after Wilkie v. Robbins.” 

The essay explores the incentives createdby Wilkie v. Robbins for intentional circumvention of the Takings andJust Compensation Clauses by federal agents and addresses the dangersthereby created for any meaningful protection of private propertysought by the Federal Government, as well as the dangers created forthe meaningful protection of other constitutional rights againstdeliberate erosion by federal agents.

I posted a summary of the case here, and published an op–ed in the Honolulu Advertiser about the decision.Continue Reading Professor Tribe on Wilkie v. Robbins: Death by a Thousand Cuts

This is only tangentially related to the usual topics of this blog, but given the first sentence in the Ninth Circuit’s opinion in Guidiville Band of Pomo Indians v. NGV Gaming, Ltd., No. 05-17066 (June 26, 2008), I could not resist:

This appeal presents the single, seemingly straightforward questionwhether the word “is” really means “is,” at least as that word isemployed in 25 U.S.C. § 81.

Slip op. at 7515.  The decision does involve the definition of the term “Indian lands” under federal law, so it is fair game here:

At the core of the present dispute, that statute requires the Secretary of the Department of the Interior (“Secretary”) to approve any “contract with an Indian tribe that encumbers Indian lands for a period of 7 or more years” before such a contract can be considered valid. Section 81(a) defines the term “Indian lands” in part as “lands the…

Continue Reading Calling Bill Clinton: the Ninth Circuit Has Your Answer About What The Meaning of “Is” Is

In the buzz generated by the Exxon Valdez punitive damages decision and the Second Amendment ruling by the U.S. Supreme Court in the last few days of the term, little attention was paid to a very interesting decision regarding the power of Indian tribal courts to adjudicate disputes involving non-Indians.? In Plains Commerce Bank v. Long Family Land and Cattle Co., No 07-411 (June 25, 2008), the Court held that a South Dakota Indian court did not have jurisdiction to adjudicate a discrimination claims concerning a non-Indian bank’s sale of land it owned. Continue Reading SCOTUS: Tribal Court Has No Jurisdiction Over Discrimination Claim Against Non-Indian

Get ready for this year’s Land Use Institute conference on “Planning, Regulation, Litigation, Eminent Domain, and Compensation,” to be held in Boston on August 13-16, 2008.  I can’t attend this year, but have in the past, and like all ALI-ABA land use conferences, it looks like it will be well worth going if you can.  The faculty is first-rate and includes professor-bloggers Gideon Kanner (Gideon’s Trumpet) and Patricia Salkin (Law of the Land) and other notables from our practice area. 

The keynote address will be presented by Harvard Law School Professor Charles M. Haar, revisiting his seminal 1955 law review article on land use planning “In Accordance With a Comprehensive Plan” (is there a single land use lawyer who hasn’t read this article at least once?).  The agenda for the conference, and other information is posted here.Continue Reading Seminar: Land Use Institute – Planning, Regulation, Litigation, Eminent Domain and Compensation (August 13-16)

In United States v. 14.02 Acres of Land, More or Less in Fresno County, No. 05-17347 (Jun. 24, 2008), the Ninth Circuit upheld a taking by the federal government for the Western Area Power Administration against challenges that the taking lacked congressional authorization and was not for public use.  The most interesting part of the decision begins on page 7269 of the slip opinion and the court’s discussion of private benefit takings.  Continue Reading Ninth Circuit Rejects Public Use Challenge to Taking for Power Grid

Today we filed the Reply Brief (925kb pdf) in Maui Vacation Rental Association, Inc. v. County of Maui, No. 08-15251, the Ninth Circuit appeal from the Hawaii district court’s dismissal of MVRA‘s complaint which sought to declare Maui’s shut down of vacation rentals illegal.

I won’t go into the details, since the Reply Brief spells out the arguments.  It responds to the arguments in the County of Maui’s Answering Brief, posted here.  MVRA’s Opening Brief, as well as links to media coverage of the case and issue, is posted here.Continue Reading Reply Brief in Ninth Circuit Maui Vacation Rental Appeal