March 2009

Thank you to several of our readers for pointing out that SCOTUSblog has determined that Agripost, LLC v. Miami-Dade County, Florida, No. 08-567 (cert. petition filed Oct. 27, 2008) is a “petition to watch” for the Supreme Court’s March 27, 2009 conference.

The petition asks the Court to overrule Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), the decision that gave us the weird ripeness rules in regulatory takings. The two Questions Presented:

Question 1. Should the Court overrule Williamson County Regional Planning Commission v. Hamilton Bankinsofar as it denies property owners the right to litigate theirfederal causes of action in federal court, the same as all otherconstitutionally aggrieved citizens, and forces them to seekcompensation in state court ostensibly to ripen their federalconstitutional takings claims, where four Justices of this Courtdeclared in San Remo Hotel v. City and County of San…

Continue Reading Overrule Williamson County: Agripost Cert Petititon A “Petition To Watch”

“One more victory such as this and we shall be ruined.”

So lamented Pyrrhus, the king of the eponymous victory — a win so costly it cannot be savored. It’s a term the New London Development Corporation, which prevailed in U.S. Supreme Court in the now-infamous eminent domain case Kelo v. City of New London,545 U.S. 469 (2005) must know all too well. After its victory permitting the condemnation of people’s homes for “economic development,” not only did the public revulsion at the outcome result in a majority of states attempting to curtail eminent domain, the NLDC’s Fort Trumbull project shriveled up in the glare of public scrutiny and outrage and the properties seized remain vacant. The case stands as a lesson for litigants who believe that a court decision represents the final word on an issue.

If the public reaction to the Hawaii Supreme Court’s decision in round 2 of the Hawaii Superferry case is any measure, Kelo may offer some lessons. A review of some of the comments following the reports about the court’s decision and its consequences by Honolulu’s two daily papers reveals a surprising level of anger and frustration:

The editorial pages are also getting into it:

Environmental and community-action groups such as the Sierra Club andMaui Tomorrow now find themselves in the crosshairs of many residentsfrustrated by recent developments with the Hawaii Superferry.

  • Ending Superferry service would be a blow to Hawaii (Star-Bulletin)

    As a result, the notion of an unfriendly business climate in Hawaiigains credibility; an enterprise with nearly 300 employees has beenshut down indefinitely, maybe permanently; travelers, farmers andothers who have come to rely on the service are left without service;and the state faces a possible loss of millions of dollars in ferryrevenue and further litigation.

    Like Kelo, the two Hawaii Superferry decisions by the Hawaii Supreme Court have starkly illustrated for the public the practical consequences of the laws they accede to. In Kelo, the veil was finally lifted from the public’s eyes as to how eminent domain really works, and the inherent unfairness in how the condemnation power is exercised.  After Superferry, it seems people are beginning to understand how environmental laws can be leveraged to take down a popular service that has appeared to inflict no environmental harm for the year it has been in operation. Make no mistake: the goal of the litigation was never simply to protect the process and insure that all information was gathered so that a good decision would result — it was designed, at least in part, as DBTD – Death By a Thousand Days. And it appears to have succeeded.

    It remains to be seen whether the anger expressed translates to action as in Kelo and whether the legislature will consider streamlining or revising the EA/EIS process. For an example of how the U.S. Supreme Court dealt with a similar issue, see this post on Winter v. Natural Resources Defense Council, Inc., No. 07-1239 (Nov. 12, 2008).Continue Reading Lessons For Superferry From The Kelo Aftermath?

    Three more amicus briefs supporting the petition for writ of certiorari in Empress Casino Joliet Corp. v. Giannoulias, No. 08-945 (cert. petition filed Jan. 21, 2009).

    In that case, the Illinois Supreme Court held (896N.E.2d 277 (Ill. 2008) that a regulation which imposes a 3%”surcharge” on Illinois casinos with gross receipts over $200 millionper year, and then gives the money to horse racing tracks is not ataking of property. Several casinos challenged the law asserting,among other arguments, that the redistribution of their money to trackswas a taking.  The Illinois Supreme Court held that the regulation was a tax, and not subject to takingsanalysis.

    …
    Continue Reading Additional Amicus Briefs In Empress Casino (Can The Gov’t “Take” Money?)

    The Hawaii Supreme Court has accepted an application for writ of certiorari to review the Intermediate Court of Appeals’ decision in Save Diamond Head Waters LLC v. Hans Hedemann Surf, Inc., No. 27804 (Haw. ICA Dec. 19, 2008). 

    In that case, the ICA held that Honolulu’s Director of Planning and Permitting has the express power under statelaw and the Department’s rules to issue declaratory rulings.  Slip op.at 12-13.  The court also held the Director correctly determined the surf school wasa nonconforming use. Finally, the court held the Director has the authority to make thedetermination that if the school’s use of its property exceeded the useassociated with legal nonconforming use status, the Director had theauthority to issue a declaratory ruling telling the school what useswould keep it within nonconforming status.

    We summarized the ICA opinion here.Continue Reading HAWSCT Agrees To Review Case About Planning Director’s Authority And Nonconforming Uses

    “Susette Kelo’s legal battle with New London, Conn. brought about one of the most controversial and troubling Supreme Court rulings in many many years. But her fight also spurred a backlash among property owners and state legislatures. Dozens of states have tightened rules for eminent domain. Many have simply banned the practice of eminent domain for economic development. Susette Kelo now lives in a town across the river from New London.”

    Continue Reading Cato Institute Video Explaining Kelo

    Instead of an in-person Spring Meeting this year, the ABA Section of State & Local Government Law will be “meeting” virtually from March 31-April 2, 2009.  As part of the meeting, the Section will be featuring a series of teleconference and live audio webcasts on a variety of subjects including topics near and dear to us: workforce housing, condemnation, land use, and green regulations. You can register for all programs, or individual subjects. A complete list of programs is posted here.

    I will be participating as faculty in two of the programs: Condemnation Hot Topics (April 1, 2009 from 2:00 – 3:30pm EDT) and Hot Topics in Land Use Law (April 2, 2009 from noon – 1:30 EDT).  I’ll be speaking about the issue of public use and pretext in eminent domain, and recent cases questioning the government’s ability to take property.

    Registration information is available on the links.

    Continue Reading Conference: ABA Section Of State & Local Government Law Virtual Spring Meeting

    DeathStar2 The saga of the Hawaii Superferry has always seemed to be touched by George Lucas.

    A certain segment of Hawaii’s population has from the get-go considered the interisland vehicle ferry as nothing less than the Death Star: a whale-killer, a transporter of invasive alien species, and harbinger of a militarized imperialist government. (Others don’t view it so malignantly, just as a much needed and long overdue alternative to interisland transportation, or as a refutation of Hawaii’s reputation as a horrid place to conduct a business…but work with me here).

    If Superferry I — in which the Hawaii Supreme Court dealt what seemed to be a crippling blow to the Lingle administration’s fast-track environmental exemption was Episode IV — then the Legislature’s reaction to the decision by passing Act 2 seemed like The Empire Strik[ing] Back.

    We now have reached what appears to be the end of the tale, however…

    Continue Reading A Lucasesque View Of The Superferry Saga

    We’ve read all 124 pages of the Hawaii Supreme Court’s opinion (warning: massive pdf) and the concurring and dissenting opinion in the “Hawaii Superferry” case, Sierra Club v. State Dep’t of Transportation, No. 29035 (March 16, 2009), and will post about it soon.

    In the meantime, enjoy the media scrum which includes reports from the Honolulu Advertiser, the Honolulu Star-Bulletin, and commentary from the always-insightful David Shapiro.

    Or for you wonky types, visit our Superferry page (with briefs and media links to Superferry Part I), review the archive of our live blog of the December 18, 2008 oral argument, or view the briefs of the parties.Continue Reading Coming Attraction: Superferry Part II

    Little Pink House – A True Story of Defiance and Courage, the recently-published book about the infamous 2005 eminent domain case Kelo v. City of New London,545 U.S. 469 (2005) (available from Amazon here), is generating interest:

    • From CSPAN-2’s Book TV comes a video of a January 27, 2009 presentation at the Cato Institute by Jeff Benedict, the book’s author.  Also speaking were Susette Kelo, and the attorneys from the Institute for Justice who represented her.  Watch here.

    Continue Reading More On “Little Pink House”

    According to this story from the BLT (Blog of Legal Times), President Obama has appointed Judge Emily C. Hewitt as the new Chief Judge of the Court of Federal Claims.

    This is of interest to readers of this blog, of course, because the CFC hears regulatory takings and inverse condemnation claims by property owners who are seeking just compensation from the federal government.  CJ Hewitt was appointed to the CFC by President Clinton in 1998, and we litigated one of her first takings cases, which involved the federal government’s taking of property in San Francisco Bay.  See Alameda Gateway, Ltd. v. United States, 45 Fed. Cl. 757 (1999).Continue Reading New Chief Judge For The Court Of Federal Claims