August 2009

The Cato Institute, the National Federation of Independent Business Legal Center, and the Pacific Legal Foundation have filed this amicus brief supporting the property owners in Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). The brief argues:

In the opinion below, the Florida Supreme Court departed from long-established state law protecting the property rights of beachfront landowners. Stop the Beach Renourishment, Inc., 998 So. 2d 1102. As Justice Lewis noted in his dissent, the decision summarily altered the definition of littoral property that had governed in Florida: “In this State, the legal essence of littoral or riparian land is contact with the water. Thus, the majority is entirely incorrect when it states that such contact has no protection under Florida law and is merely some ‘ancillary’ concept that is subsumed by the right of access.” Id. at 1122…

Continue Reading Cato Institute And Pacific Legal Foundation Amicus Brief In Beach Takings Case

My colleague Mark Murakami who blogs at hawaiioceanlaw.com will be covering today’s oral argument in the Hawaii Supreme Court case Dupree v. Hiraga, No 29464, the appeal regarding whether the State Board of Registration (County of Maui)correctly concluded that a Maui County councilperson who registered tovote as a Lanai resident is actually a resident of Maui.

Follow along at twitter.com/Hawaiioceanlaw

Information about the case, including the briefs and the court’s summary of issues, is available in this post.

Disclosures: our firm represents the challenger (Dupree); I wrote the brief, and our partner Ken Kupchak is arguing today.Continue Reading Follow Hawaii Supreme Court Oral Argument Live By Twitter On Voter Registration Case

The Supreme Court of Hawaii will hear oral arguments on Thursday, August 20, 2009, from 9:00-10:00 in Dupree v. Hiraga, No 29464, the appeal regarding whether the State Board of Registration (County of Maui)correctly concluded that a Maui County councilperson who registered tovote as a Lanai resident is actually a resident of Maui.
[Disclosure: my Damon Key colleagues and I represent the Lanai voterwho successfully challenged the residency of the councilperson.] 

The Court will be considering two issues:

  • Physical presence. When a voter registers in a district, he attests that the district isthe location of his “fixed habitation” and the place he “intends toreturn.” In order to gain a “new residence” in another district, thevoter must have both a “physical presence” there and an intent to makethe new location his residence. The first question is whether the Boardwas clearly erroneous when it found that the councilperson registeredas a

…
Continue Reading Appellate Oral Argument: Is Intending To Live Somewhere Enough To Be “Residing” There?

The property owners have filed their merits brief in the beachfront takings case, Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). The case presents three questions:

TheFlorida Supreme Court invoked “nonexistent rules of state substantivelaw” to reverse 100 years of uniform holdings that littoral rights areconstitutionally protected. In doing so, did the Florida Court’sdecision cause a “judicial taking” proscribed by the Fifth andFourteenth Amendments to the United States Constitution?

Is theFlorida Supreme Court’s approval of a legislative scheme thateliminates constitutional littoral rights and replaces them withstatutory rights a violation of the due process clauses of the Fifthand Fourteenth Amendments to the United States Constitution?

Isthe Florida Supreme Court’s approval of a legislative scheme thatallows an executive agency to unilaterally modify a private landowner’sproperty boundary without a judicial hearing or the payment of justcompensation a violation of the due process clauses of…

Continue Reading Petitioner’s Merits Brief In SCOTUS Beachfront Takings Case

Here’s the latest in the Maui affordable housing case now being litigated in the U.S. District Court, Kamaole Pointe Development LP v. County of Maui, No. 07-00447 DAE (D. Haw.). The case is a challenge to the County of Maui’s “workforce housing”ordinance, enacted in in 2006, which imposes a40% to 50% affordable requirement on new housing developments of fiveor more units, and on an application to subdivide a lot into five ormore parcels. In lieu of providing actual units, a developer may eitherpay a fee equivalent to 30% of the total project sales, donate improvedland of the same value, or donate raw land valued at 200% of thein-lieu fee. Ordinance 3418 is posted here.  We posted on the case earlier here and here.

The complaint asserts claims for “unconstitutional conditions,”regulatory takings, substantive due process, equal protection, andclaims under Hawaii law. The Complaint for Declaratory and InjunctiveRelief (filed…

Continue Reading Latest In Maui Affordable Housing Exaction Case: Cross-Motions On Due Process

Kauai attorney Charles A. Foster, who already covers legal issues (and more) on his Planet Kauai blog, has been lured over completely to the Dark Side and has launched a law-only blog about Hawaii appellate law, named — appropriately enough — the Hawaii Appellate Law Blog. The blog promises to provide:

analysis and commentary on appellate practice, developments inHawaii law, decisions of Hawaii’s appellate courts and, to the extentthey relate to Hawaii law, decisions of the Ninth Circuit Court ofAppeals and the United States Supreme Court.

Our review: Two “separate judgments.” One HRCP 58. Interlocutory appeal-fu. Joe Bob says check it out.Continue Reading New Hawaii Appellate Law Blog

In Kaiser Aetna v. United States, 444 U.S. 164 (1979), a case won by my Damon Key partners Charlie Bocken and Diane Hastert, the Court held the navigational servitude does not create a “blanket exception to the Takings Clause whenever Congress exercises its Commerce Clause authority to promote navigation.” The servitude gives the public a right of access to waters that intheir natural condition are actually navigable, and absolves thefederal government from liability for compensation when land subject tothe servitude is taken or damaged, the the theory being that navigablewaters are not part of a riparian or littoral owner’s “bundle ofrights” —  

The navigational servitude is an expression of the notion that the determination whether a taking has occurred must take into consideration the important public interest in the flow of interstate waters that in their natural condition are in fact capable of supporting public navigation. See…

Continue Reading Navigational Servitude May Not Be A “Blanket Exception” To The Takings Clause…But It’s Still A Big One

From The Destin Log, the hometown newspaper from the location of the U.S. Supreme Court case on judicial takings and beachfront land (Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009)), comes the report “Destin may be Sotomayor’s first test: Analysts think new justice would vote against private property owners in beach restoration case.”

A new face on the Supreme Court may help settle an old but simmering issue that has divided Destin for years.

With the city about to become ground zero for beach restorationbattles nationwide, The Log contacted legal experts and lobbyist groupsto ask where Sonia Sotomayor would stand on the case and whether hernomination could swing the decision.

Robert Thomas, a land use and appellate lawyer based in Honolulu,Hawaii, said when the Destin beach restoration case goes before thehigh court sometime this winter, it will…

Continue Reading Report: Beachfront Takings Case May Be Sotomayor’s First Test

Update: 8/6/2009, 8:00 a.m. HST: our servers are up.  If you sent something earlier but didn’t get a response, please resend.

++++++++++++++++++++++++++++++++++

8/6/2009, 5:00 a.m. HST: We’re not ignoring you: the hawaiilawyer.com email servers are down for the second night in a row. If you are trying to email us, please stand by, your messages have not yet been delivered.

In the meantime, if you need to contact me, email inversecondemnation@gmail.com.

Continue Reading Programming Note: hawaiilawyer.com email servers are up

A press release from Develop Don’t Destroy Brooklyn links to the opening brief filed recently by the property owners who object to the taking of their property for the Atlantic Yards “redevelopment” project in Brooklyn in Goldstein v. New York State Urban Dev. Corp.

Here’s the summary of the issues presented in the brief:

1. Whether the public use requirement of the NY Constitution imposes amore stringent standard for takings than does the Fifth Amendment—aquestion expressly preserved by the Court of Appeals in Aspen CreekEstates, Ltd. v. Brookhaven (2009), and never before considered by anycourt in New York;

2. Whether the public use requirement of the NY Constitution “issatisfied when a condemning authority determines that he public benefitto be gained by forcibly appropriating citizens’ homes and businessesis ‘not incidental or pretextual in comparison with benefits toparticular, favored private entities,”‘ without ever examining thenature and magnitude of the private benefit…

Continue Reading Property Owner’s Brief In Atlantic Yards Appeal