February 2009

A very important decision by California’s Third District Court of Appeal, exposing the fantasy behind the Kelo majority’s conclusion that decisions to take property are most often the result of an objective process and comprehensive and carefully considered planning. In City of Stockton v. Marina Towers LLC, No. C054495 (Feb. 13, 2008), the court invalidated an attempt to take property on public use grounds, holding that the city’s resolution of necessity was so “nondescript [and] amorphous,” and “so vague, uncertain and sweeping in scope that it failed to specific the ‘public use’ for City sought acquisition of the property.” Slip op. at 3. 

Recall that in  Kelo v. City of New London,545 U.S. 469 (2005), the majority took great pains to establish thatthe taking of Mrs. Kelo’s house was part of a “‘carefully considered’development plan,” and was therefore entitled to judicial deference.  Keloreviewed the decision to take…

Continue Reading Cal. Court of Appeal: No Public Use In “Case Of Condemn First, Decide What To Do With The Property Later”

In United States v. 480.00 Acres of Land, No. 07-13584 (Feb. 11, 2009), the US Court of Appeals for the Eleventh Circuit (which covers Alabama, Florida, and Georgia), held “in order for a fact finding body to ignore a regulation in calculating ‘just compensation’ for a given piece of property, the landowner must show that the primary purpose of the regulation was to depress the property value of land or that the ordinance was enacted with the specific intent of depressing property value for the purpose of later condemnation.” Slip op. at 1-2. The court also held that once a judge determines that regulation was not used to depress the value of the property pre-acquisition, evidence of improper use of regulation cannot be presented to the finder of fact.

The case involved the federal government’s efforts to condemn undeveloped land in the area east of the Everglades National Park…

Continue Reading Pretext In Compensation Determinations: 11th Circuit Holds Landowner’s Burden To Show Government Intent To Depress Value By Regulation

The Hawaii Federalist Society sponsored a debate today at the University of Hawaii Law School on issues in the ceded lands case, Hawaii v. Office of Hawaiian Affairs,No. 07-1372 (cert.granted Oct. 1, 2008). 

One one side, U.H. lawprof Carl Christensen, arguing that the Hawaii Supreme Court’s decision enjoining the State from doing anything with the ceded lands until such time that a political settlement is reached with Native Hawaiians is correct.  On the other, Ilya Shapiro, a Senior Fellow at the Cato Institute’s Center for ConstitutionalStudies and Editor-in-Chief of the Cato Supreme Court Review, arguing that the Apology Resolution was hortatory and had no legal effect. [Disclosure: we filed an amicus brief in the case, supporting the State’s argument; Mr. Shapiro and the Cato Institute joined our brief.]

U.H. lawprof David Callies moderated. The question presented:

TheHawaii Supreme Court blocked the sale of 1.2 million acres…

Continue Reading “Ceded Lands” Case Debate: Did The Hawaii Supreme Court Rewrite The Terms By Which Hawaii Became The 50th State?

Thanks to Damon Key colleague and fellow law blogger Mark Murakami for letting us know about the new RSS feed launched by the Hawaii appellate courts. The feed contains links to newly published opinions, memorandum opinions, summary disposition orders, grants and denials of cert, and other orders of the appellate courts (Supreme Court and Intermediate Court of Appeals).

This doesn’t mean you can stop following our companion blog Hawaii Appellate Opinions, mind you, since the new RSS feed does not contain summaries of the cases decided. Hawaii Appellate Opinions will continue to post short summaries of published opinions so you don’t have to download massive pdf files and read them, just to see if you may be interested in a case.Continue Reading Hawaii Appellate Courts – New RSS Feed

It looks the one of the landowners under the threat of eminent domain in New York City’s Manhattanville (aka West Harlem) neighborhood has a blog about his fight. Check out My Land is Mine, with posts by Nick Sprayregen, owner of Tuck-It-Away, a self storage facility threatened with condemnation to allow Columbia University to expand its Morningside Heights campus northward. The Empire State Development Corporation, the entity actually doing the taking, asserts the neighborhood is “blighted,” and Sprayregen and another property owner have sought court review.

I used to live in and frequent that neighborhood when I was attendingColumbia Law, and even rented a small locker at the BroadwayTuck-It-Away facility. The neighborhood did not fit a classic definitionof “blighted” then — nearly 16 years ago — and has appeared to become even more gentrified in the interim. The property owners contesting the blight designation claim that the designation is…

Continue Reading Property Owner’s Blog: My Land Is Mine

Head’s up on an interesting case from the Court of Federal Claims, Resource Investments, Inc. v. United States, No. 98-419L (Court of Federal Claims, Jan. 23, 2009), a massive opinion (84 single-spaced pages) with what at first glance seems to delve into just about every regulatory takings theory known: temporary takings, categorical takings, partial takings, parcel-as-a-whole, Mahon, Penn Central, First English, Lucas, Tahoe-Sierra, Seiber, delay, and ripeness. And those are just the subjects listed on the caption.

We’re not going to digest the entire opinion here, just hit some of the highlights. The short story is that the U.S. Army Corps of Engineers wrongfully asserted jurisdiction over property in Washington state proposed to be used for a landfill, and asserted that until the owner procured a section 404 Clean Water Act permit, it could not construct the landfill. The Ninth Circuit ultimately agreed…

Continue Reading CFC: Trial Needed On Whether Wrongful Assertion Of Clean Water Act Jurisdiction Is “Extraordinary Delay”

The Legal Information Institute at Cornell Law School — which previews U.S. Supreme Court cases — has published its summary of the “ceded lands” case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert.granted Oct. 1, 2008). The preview offers a neutral view of the issues and analyzes the arguments of the parties.  Here’s the short version:

In 1993, Congress and the President adopted a resolution(“Apology Resolution”), in which the UnitedStates apologized for its role in the overthrow of the Kingdom of Hawaii in 1893. Shortly thereafter, theOffice of Hawaiian Affairs (“OHA”) sought to enjoin a residential development onthe Leiali’i land parcel, land owned by the state, but held in trust for NativeHawaiians and the general public. OHA also requested that the state agency incharge of the parcel’s development certify that any transfer of the parcel’s ownershipwould not diminish Native Hawaiians’ claims to the land. The state agencyrefused and…

Continue Reading Legal Information Institute’s Summary Of “Ceded Lands” Case

The State has filed the final brief in the “ceded lands” case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert.granted Oct. 1, 2008), available here. The State argues that the Office of Hawaiian Affairs’ (and a majority of its amici’s) argument urging the Court to dismiss certiorari are “as baseless now as when respondents unsuccessfully raised it in opposition to certiorari.” Brief at 1.

Respondents argue at length that the State’s trust obligations towards the ceded lands (which run to all the people of Hawaii, not just Native Hawaiians) arise from state law, even though respondents elsewhere concede that the “ceded-lands trust was established by federal law — and is therefore … a “federal trust.'” Resp. Br. at 47. But no matter how the trust is characterized, the essential point is that respondents argued below — and the Hawaii Supreme Court held — that the legal determinations…

Continue Reading State Of Hawaii’s Reply Brief In SCOTUS “Ceded Lands” Case

There’s still time to register for the Zoning, Subdivision and Land Development Law seminar, to be held in Honolulu on February 20, 2009. 

I’m presenting a session on “U.S. Supreme Court, Regulatory Takings and Eminent Domain Update.”  My Damon Key colleagues are covering “Affordable Housing Exactions” and “Vacation Rentals” (Mark Murakami), “Rockfall and Landowner Liability” (Noelle Catalan), “Environmental Law Update” (Robert Harris, a Damon Key alumni, and current Director of the Hawaii Chapter of the Sierra Club), and  “Hot Topics and Recent Hawaii Cases” (Greg Kugle). 

More information, including the complete agenda and registration information here.Continue Reading Upcoming Seminar: Zoning, Subdivision And Land Development Law

A collection of interesting reports on land use and zoning topics:

  • Mission residents reject American Apparel (San Francisco Chronicle) – “Congratulations to the residents of Valencia Street. After a rowdy and sometimes misleading campaign, they managed to stop American Apparel – a socially conscious, popular, American-run clothing store – from moving into one of the street’s vacant storefronts….It’s another through-the-looking-glass moment in San Francisco. They love the product but hate the store solely because there are about 260 of them worldwide. That means it’s a chain and unwelcome under any circumstances.”

…
Continue Reading Zoning And Land Use Round-Up