September 2009

As noted in the story, we recently applied to the Hawaii Supreme Court for a transfer of the case from the Intermediate Court of Appeals to the Supreme Court, and for expedited consideration pursuant to Haw. Rev. Stat. § 11-52 (1993).

Transfer of an appeal from the ICA to the Supreme Court is mandatory ifthe appeal involves “a question of imperative or fundamental publicimportance.” Transfer is discretionary if it involves “a question offirst impression or a novel legal question.” Haw. Rev. Stat. § 602-58 (1993).Appeals of residency issues are of great public importance and aresubject to speedy resolution under section 11-52, which provides”[w]hen the appeal is perfected, the court shall hear the appeal assoon thereafter as may be reasonable.”Continue Reading Transfer from ICA to Supreme Court

Today, we filed an amicus brief in Leone v. County of Maui, No. 29696, an appeal in the Hawaii Intermediate Court of Appeals which is considering, among other issues, the question of when a regulatory takings claim is ripe for review under Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985).

The trial court determined the plaintiffs’ regulatory takings claims were not ripe because they should have sought a legislative change to the offending land use regulations which allegedly deprive their property of all economically beneficial uses. The trial court’s decision is available here.

Our brief argues Williamson County only requires a “final decision” by the government applying existing land use regulations to the property, and a property owner is under no obligation to change the law before asserting her federal takings claim:

A claim that a land use regulation takes…

Continue Reading New Brief: Must A Property Owner Seek A Change In The Law In Order To Ripen A Takings Claim?

On Wednesday, September 16, 2009, I’ll be on the faculty of “Practical Guide to Zoning and Land Use Law,” a day-long seminar in Honolulu. This is an annual program dealing with zoning approvals,constitutional limitations on land use regulations, and administrativeprocedure.

I will be leading sessions on “Current Case Law and Legislative Update,” and “Appealing an AdministrativeZoning Decision.”

Also on the faculty are A. Bernard Bays and Naomi Kuwaye, who will be covering “Constitutional Limitations on Zoning Actions,” “Challenging a Rezoning Decision,” “Special Zoning Issues,” and “Adoption and Amendment of Zoning Ordinances and Maps. ”

I hope you can make it. If you do, stop by and say hello.

Moreinformation including a detailed agenda and registration information here. Continue Reading Upcoming Seminar: Practical Guide to Zoning and Land Use Law (9/16/2009)

We’ve just received word that the Office of Ombudsman for Property Rights is closed effective September 8, 2009 “[b]ecause of budgetary constraints.” The office was created two years ago “toassist[] private property owners and public agencies in understandingand applying the law in matters concerning eminent domain andrelocation assistance, including mediation.”
Continue Reading Connecticut Property Rights Ombudsman Falls To Budget Axe

The constitutions and statutes of most states require just compensation to be paid whenever property is taken or damaged for public use. See, e.g., Cal. Const. art. I, § 19 (“Private property may be taken or damaged for a public use and only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner.”); Haw. Const. art. I, §20 (“Private property shall not be taken or damaged for public use without just compensation.”). The Fifth Amendment also requires compensation when property is damaged as the “direct result” of government action. See Sanguinetti v. United States, 264 U.S.146 (1924)

Kansas statutes are no different, providing “Private property shall not be taken or damaged forpublic use without just compensation.” Kan. Stat. § 26-513. (Apparently — and correct me if I am wrong, Kansas lawyers — the Kansas Constitution does not…

Continue Reading Kansas Supreme Court: Property Damaged For Public Use Requires Compensation

We can’t figure out this Kafkaesque decision from the Appellate Division of the New Jersey Superior Court. We really can’t.

In Klumpp v. Borough of Avalon, No. A-2963-07 (per curiam), the court held that the government can assert inverse condemnation in order to take property without compensation. 

If you had to read that twice to comprehend it, you’re not alone. 

The Klumpps are long-time owners of a parcel in the Borough of Avalon, New Jersey; they built a summer house in 1960 which was destroyed two years later in a storm. Since that time, the Borough constructed a protective sand dune system on the Klumpp’s and other properties, and enacted regulations allowing officials to enter the property and “do such acts as may be required, including removing, destroying orotherwise disposing of any property located thereon without firstpaying any compensation therefor.” The dunes and the accompanying regulations prevented the Klumpps…

Continue Reading Can Government Use Inverse Condemnation To Take Property Without Compensation?

On September 4, we filed an amicus brief on behalf of Owners’ Counsel of America in Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009).

In Walton County v. Stop the Beach Renourishment, Inc.,998 So.2d 1102 (Fla. Sep. 29, 2008), the Florida Supreme Court heldthat a state statute which prohibits “beach renourishment” without apermit did not effect a taking of littoral (beachfront) property, eventhough it altered the long-standing rights of the owners to accretionon their land and direct access to the ocean. The U.S. Supreme Court is considering whether the Florida court’s reversal of more than 100 years of Florida law was a judicial taking, and whether the Florida court’s decision violated due process.

Our brief focuses on three issues:

This case concerns whether the ‘background principles” exception to per se takings in Lucas v. South Carolina Coastal Council…

Continue Reading Our Amicus Brief In The Florida Beachfront Takings Case aka The Judicial Takings Case

Willets Point United has filed an amicus brief supporting their fellow New York City property owners in the public use case now pending in the New York Court of Appeals regarding the Atlantic Yards “redevelopment” project in Brooklyn, Goldstein v. New York State Urban Dev. Corp. As we noted here, Willets Point is under the takings gun itself, and has our Owners’ Counsel colleague Mike Rikon helping them (he also filed the amicus brief).

The brief argues that the Court of Appeals should not follow the Kelo rule of total deference to economic development takings: “The majority decision in Kelo v City of New London written by Justice Stevens was wrong, wrong in its holding and wrong on its facts.” Br. at 7. The New York Constitution’s public use clause prohibits economic development takings, and the brief walks through some of the more storied cases from that jurisdiction…

Continue Reading Amicus Brief In NY Court Of Appeals In Goldstein/Atlantic Yards Case: NY’s Public Use Clause Prohibits Judicial Rubber Stamp Of Takings