February 2009

Eminent-domain-cover-copy In “Positioning Politics: Kelo, Eminent Domain, and the Press,” an article in “Land and Power: The Impact of Eminent Domain in Urban Communities,” published by the Policy Research Institute for the Region (Princeton), the author asserts that the reporting on the Supreme Court’s decision in Kelo v. City of New London, 545 U.S. 469 (2005), “was more interpretation than fact andrelied heavily on inflammatory hyperbole and provocation.” Further,

Overwhelmingly and unsurprisingly, the editorials voiced dissent withthe Court’s ruling, which mirrored public opinion data, but as with thereporting, they relied heavily upon a series of myths about Kelo andeminent domain. These myths became powerful framing devices, which havemade eminent domain a touchstone social-policy battle with a life ofits own.

The abstract of the article is on SSRN here (the full article is also available for download at SSRN), and the entire “Positioning Politics” monograph…

Continue Reading Kelo Backlash: Media Hype?

Forbes.com posts “Supreme Court Cheat Sheet,” summarizing “five business cases” pending in the Supreme Court worth following. Included among those cases are Hawaii’s own “ceded lands” case. (Scroll 2/3 down the page. Also included is “In Pictures: Five Cases to Watch,” a slideshow.)

The article summarizes the case as follows:

Hawaii v. Office of Hawaiian Affairs

That may be the situation with another history-laden case that pitsHawaii against groups representing native Hawaiians over the status of1.2 million acres of land, 20% of the island state. In a 2008 ruling,the Hawaii Supreme Court blocked the sale of some of that land to aprivate developer, saying the state couldn’t transfer any propertyuntil the Hawaii legislature resolved the question of whether nativeHawaiians actually owned it.

Thefight stems from the 1898 annexation of Hawaii, which Congressauthorized and President McKinley signed after an earlier coupdethroned Queen Lili’Uokalani. Hawaii became a…

Continue Reading Forbes On The SCOTUS “Ceded Lands” Case

Duck Thanks to Kona Blogger Aaron Stene for sending this next item my way, a follow up to the previous two days’ reports from West Hawaii Today (posted here and here) about Hawaii County’s so-called “fair share” exaction system. In “Council reaffirms belief in fair share legality,” WHT reports:

The county’s Corporation Counsel spent two-and-a-half hours of a four-hour-long executive session Wednesday apparently trying to convince the County Council the County’s fair share cost system is legal.

The effort apparently worked.

Council Chairman J Yoshimoto, Hilo, said after the meeting the “Corporation Counsel explained to us the fair share system is legal.”

He said he does not expect the council to hold another executive session on the subject any time soon, as information presented by Corporation Counsel during the meeting clearly showed the fair share cost system is legal.

The county has for years used the system, which…

Continue Reading Even More On Hawaii County’s Impact Fee … Whoops, I Mean “Fair Share”

Following up on yesterday’s post about the West Hawaii Today series on the legality of Hawaii County’s “fair share” impact fee system, the paper posts three stories about the issue:

  • How much, for what and when? (“The county may have illegally collected $7.4 million in fair share assessments from housing developers since the early 1990s. Fairshare assessments have been under fire since 2007, when 3rd CircuitCourt Judge Ronald Ibarra — as part of his ruling on a condemnation lawsuit — ruled the county’s system is illegal because it doesn’t meetstate regulations. Accordingto the Hawaii Revised Statutes, “impact fees may be assessed, imposed,levied and collected by (any county) provided that the county enactsappropriate impact fee ordinances.”)
  • Council members divided on fair share (noting that several council members question the legality of the “fair share” system, while others adhere to the not-disclosed-in-the-story advice of the Corporation Counsel’s office that the “fair

…
Continue Reading More On Hawaii County’s “Fair Share” Impact Fees

Following up on the earlier post New SG Unlikely To Alter Fed Gov’t’s SCOTUS Arguments In Ceded Lands Case, which noted that the new Solicitor General has sought leave from the Supreme Court to participate in oral argument and for divided argument, here’s the motion filed by the SG’s office on January 29, 2009, which reveals that the Obama Administration does not appear to be materially altering arguments the federal government set forth in the amicus brief supporting the State’s position filed by the Bush Administration.

This case concerns whether federal law required or permitted the Supreme Court of Hawaii to enjoin the State of Hawaii from transferring lands that the United States obtained in fee simple absolute upon the annexation of Hawaii in 1898 and granted tot he State, to hold in trust, upon its admission to the Union. Those issues implicate significant federal interests.

First, the…

Continue Reading USSG’s Motion To Participate In Oral Argument In “Ceded Lands” Case

Two more amicus briefs in the “ceded lands” case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert.granted Oct. 1, 2008):

The merits and other amici briefs in the case, and links to media reports and commentary are posted on our ceded lands page.Continue Reading Further Amicus Briefs Supporting OHA In The “Ceded Lands” Case

Worthwhile article today from West Hawaii Today (the daily newspaper of the Kona side of the Big Island), “Is county practice legal?” The story details the County’s practice of demanding “fair share” payments from property owners and developers who wish to make use of their properties and seek County approvals:

The fair share cost system assesses developers afee whenever their projects require a rezoning as compensation for theimpacts the projects will have on county infrastructure. Moneycollected through fair share assessments could be used toward road andwater system improvements, new parks and expansion of police and fireservices.

However, a ruling made by 3rd Circuit Court Judge Ronald Ibarra in 2007 in a condemnation proceeding apparently deemed the fair share system illegal.

Thecounty filed two condemnation suits against the Charles and Joan CoupeTrust, one in 2000 and the other in 2005, to obtain a 3-acre propertyneeded to build a planned…

Continue Reading West Hawaii Today Series: Is County [“Fair Share” And Impact Fee] Practice Legal?

Florida’s appellate courts have been active lately in the regulatory takings arena.  Here are links to summaries and analysis of the decisions.

First, from the Florida Land Use Law blog:

Next, from Grand Theft: Property

Continue Reading PING: Well HatchedURL: http://livepress.in/kickstart-your-career/IP: 219.234.82.86BLOG NAME: Well HatchedDATE: 02/09/2013 03:34:47 PMinversecondemnation.com: Florida Regulatory Takings Links

Several people have wondered whether the change in presidential administrations may alter the federal government’s position supporting the State of Hawaii in the “ceded lands” case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert.granted Oct. 1, 2008). 

Unlikely, according to this post from the law blog at the Wall St. Journal:

The SG makes hundreds of strategic decisions about which lower-courtdecisions the government should or should not appeal to the SupremeCourt, which can accelerate—or derail—an issue and help shape theCourt’s docket to an administration’s taste.

But when a case is granted and the Court looks to the solicitorgeneral’s office for its measured views, says former deputy AG LawrenceWallace, “The dialogue is with the Court. And the Court has traditionsthat have to be honored.”

Some background. On December 11, 2008, the Solicitor General filed an amicus brief for the United States in the ceded lands case, supporting the State’s…

Continue Reading New SG Unlikely To Alter Fed Gov’t’s SCOTUS Arguments In Ceded Lands Case