November 2009

In “Beach ownership is still in question,” the Honolulu Star-Bulletin reports on Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175, the appeal currently pending in the Hawaii Intermediate Court of Appeals about whether Hawaii’s “Act 73” effected a taking of property. Thanks to Charley Foster at Planet Kauai for the heads-up on the report.

[Disclosure: we filed an amicus brief supporting the property owners, available here.]

The issue in the case is whether the state, or littoral landowners, are entitled toownership of certain accreted lands. In Act 73, (codifed here and here)the legislature declared that shoreline land naturally accreted belongsto the State of Hawaii and is public property.

The act overturned theage-old rule of shorelineaccretion and erosion, which held that beachfront owners lose ownershipof land when it erodes, but gain it when it accretes. Instead of thesebalanced rules, Act 73 made the…

Continue Reading Hawaii Beach Takings Case In The News

Hartman Remember Phil Hartman’s classic Saturday Night Live routine, “Unfrozen Caveman Lawyer” —

One hundred thousand years ago, a caveman was out hunting on the frozenwastes when he slipped and fell into a crevasse. In 1988, he wasdiscovered by some scientists and thawed out. He then went to lawschool and became… Unfrozen Caveman Lawyer.

We can’t summarize the skit any better than wikipedia:

The running gag was that [Hartman] would speak in a highly articulateand smoothly self-assured manner to a jury or an audience about howthings in the modern world supposedly “frighten and confuse” him. Hewould then list several things that confounded him about modern life orthe natural world, such as: “When I see a solar eclipse, like the one Iwent to last year in Hawaii, I think ‘Oh no! Is the moon eating thesun?’ I don’t know. Because I’m a caveman — that’s the way I think.”This pronouncement…

Continue Reading Unfrozen Caveman Judges “Frightened And Confused” By Blight

While we’re formulating our thoughts on the NY Court of Appeals’ decision in Goldstein v. New York State Urban Development Corp., No. 178 (Nov. 24, 2009), here are media reports and others’ thoughts on the case:

  • The blog at the epicenter of the case, the Atlantic Yards Report has a series of posts with its perspective, including this FAQ. 
  • From across the East River comes this from the Wall Street Journal‘s law blog.
  • Eminent domain scholar Ilya Somin posts his thoughts at the Volokh Conspiracy.
  • The New York Times reports on the decision here.
  • Professor Gideon Kanner’s insights here.

Continue Reading Media And Commentary Links On NYCA’s Atlantic Yards Decision

The New York Court of Appeals issued its opinion in the appeal regarding the Atlantic Yards redevelopment project, Goldstein v. New York State Urban Development Corp., No. 178 (Nov. 24, 2009). This case was a challenge to the taking under the New York Constitution.

While we have not yet fully digested the 66 pages of opinion, concurrence, and dissent, but the short story is that the court allowed the taking of non-blighted property to go forward, holding that a blight finding by an agency is not judicially reviewable:

It is only where there is no room for reasonable difference of opinion as to whether an area is blighted, that judges may substitute their views as to the adequacy with which the public purpose of blight removal has been made out for that of the legislatively designated agencies; where, as here, “those bodies have made their finding, not corruptly or…

Continue Reading New York Court Of Appeals: Agency Can Blight The Baby With The Bathwater With No Judicial Oversight

Thanks to the New York Zoning and Municipal Law Blog for pointing out last week’s decision by the New York Court of Appeals in Hargett v. Town of Ticonderoga, 2009 NY Slip Op 08478 (Nov. 19, 2009).

Under New York’s eminent domain law, the condemning authority is liable to the property owner for attorney’s fees and costs incurred “because of the acquisition procedure” —

In the event that the procedure to acquire such property is abandoned by the condemnor, or a court of competent jurisdiction determines that the condemnor was not legally authorized to acquire the property, or a portion of such property, the condemnor shall be obligated to reimburse the condemnee, an amount, separately computed and stated, for actual and necessary costs, disbursements and expenses, including reasonable attorney, appraisal and engineering fees, and other damages actually incurred by such condemnee because of the acquisition procedure.

EDPL § 702…

Continue Reading New York Court Of Appeals: Government Liable For Attorney’s Fees For First Phase Of An Unsuccessful Taking

Things we were reviewing today:

  • My colleague Mark Murakami has set up a resource page for all things about the McDonald v. City of Chicago case. That’s the appeal currently being considered by the Supreme Court challenging Chicago’s ability to regulate firearms under the Second Amendment. What’s most interesting about the case is not the gun issue, but the legal arguments regarding whether the Privileges or Immunities Clause incorporated the entire Bill of Rights against the states. Slaughter-House, anyone?
  • The Texas Supreme Court today heard oral arguments in Severance v. Patterson (a case we discussed here). It is in the Texas court on certified questions from the Fifth Circuit. More here including the briefs, and the archive of the video of the arguments here. The certified questions

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Continue Reading Thursday’s Links

Another very interesting conference call today, focusing on theupcoming arguments in the Stop the Beach Renourishment case, the New York Court of Appeals’ decision in Aspen Creek, and the New Jersey Supreme Court’s decision to review Klumpp v. Borough of Avalon. Here arethe links to some of the cases and other topics discussed duringtoday’s call, and other items of interest which we didn’t have time for:

  • A resource page for the Stop the Beach Renourishment case – merits and amici briefs, media links, and commentary.
  • Our summary of the New York court’s decision in Aspen Creek Estates, Ltd. v. Town of Brookhaven, 12 N.Y.3d 735 (N.Y. 2009), cert. denied, No. 08-1444 (U.S. Oct 5, 2009).
  • More about the “bizarre condemnation,” Klumpp v. Borough of Avalon, No. A-2963-07 (per curiam). See also this post on the case from the New Jersey Condemnation Law blog.

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Continue Reading Links From ABA Condemnation Committee Conference Call (11/18/2009)

Just a reminder: tomorrow (Wednesday, November 18, 2009), from 2:00 – 3:00 p.m.(Eastern Standard Time), we will be holding the next “recentdevelopments” conference call for members of the Condemnation Law Committee(ABA Section of State & Local Government Law). It’s free, but openonly to Section members and guests.

Members should have already received an e-mail with the callinformation, either directly from the Section, or via our listserv (LG-CONDEMNATION). If you are not a member or have not received the information, email me.

Theseare informal calls to discuss recent developments, get feedback andadvice about pending matters, and to otherwise exchange views.

As this is informal, the agenda is open. But we will be covering at least these topics:

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Continue Reading Programming Note: Condemnation Committee Conference Call 11/18/2009, 2 pm EST

Here’s the Reply Brief filed last month by the property owner in Leone v. County of Maui, No.29696,an appeal in the HawaiiIntermediate Court of Appeals which is considering, among other issues,the question of when a regulatory takings claim is ripe for reviewunder Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985). The brief responds to the County’s Answering Brief (posted here).

In Leone, the trial court refused to consider the owner’s claim that statelaw and local regulations resulted in a regulatory taking of beachfrontproperty on the south shore of Maui. Thetrial court determined the plaintiffs’ federal regulatory takings claim — which they brought in state court, as required by Williamson County — werenot ripe because they should have sought a legislative change to theoffending land use regulations which allegedly deprive their propertyof all economically beneficial uses. The trial court’s decision…

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