November 2009

Today, we filed the Reply Brief in DeJetley v. Kahoohalahala, No. 29929, the appeal now pending in the Hawaii Supreme Court regarding the Lanai member of the Maui Council who is alleged to not be a resident of Lanai as required by the county charter.

Section 3-3 of the Charterprovides that “If a council member … ceases to be a resident of thecouncil member’s residency area during the council member’s term ofoffice, or if a council member is adjudicated guilty of a felony, thecouncil member shall immediately forfeit office and the seat shallthereupon become vacant.”

Several Lanai residents sought a declaratory judgment in circuit court that the council member had forfeited office, and that the seat was vacant because he is not a Lanai resident. The Circuit Court dismissed the complaint, holding that declaratory relief was not available, and the remedy was impeachment or recall. The Lanai voters appealed…

Continue Reading Final Brief In Maui Councilmember Residency Appeal: What Is “Immediate Forfeiture And Vacancy?”

According to this order dated November 19, 2009, the New Jersey Supreme Court has granted the property owners’ petition (available here), and will review the unpublished decision by the Appellate Division in Klumpp v. Borough of Avalon, No. A-2963-07 (per curiam).

This is the decision the New Jersey Law Journal labeled “A Bizarre Condemnation” in a recent article. We called the decision “kafkaesque,” since we couldn’t quite figure how the appellate court reached the conclusion which it did. 

Why the perjorative labels?

The appellate division held that the government can assert inverse condemnation in order to take property without compensation.

Confused? You are not alone. Here’s our recipe for straightening yourself out:

Start here, our summary of the appellate division’s decision. Then, read the property owners’ petition for review. Next, read the NJ Law Journal’s critique (the aforementioned “Bizarre Condemnation”), and the…

Continue Reading New Jersey Supreme Court Will Review The “Bizarre Condemnation”

Here’s what we’ve been reading today:

  • A Turning Point for Eminent Domain? – The NY Times “Room for Debate” forum posts the thoughts of six property law experts on the meaning of Pfizer’s decision to close its research headquarters in New London, Connecticut. New London, of course, was the epicenter of the public use case that became Kelo v. City of New London, 545 U.S. 469 (2005). Many of the comments are also worth perusing.

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Continue Reading Friday Eminent Domain Round-Up

Today, my Damon Key colleagues Ken Kupchak, Mark Murakami, Matt Evans and I filed the Opening Brief in the latest phase of County of Hawaii v. C&J Coupe Family Ltd. P’ship, two condemnation cases arising out of the County of Hawaii’s attempts to take a Kona family’s property. This brief addresses several issues, but the most critical involve pretext and public purpose, questions left open by the U.S. Supreme Court in Kelo v. City of New London, 545 U.S. 469 (2005), but which were answered, in part, by the Hawaii Supreme Court in its opinion when these cases were first before the court last year. See County of Hawaii v. C&J Coupe Family Ltd. P’ship, 119 Haw. 352, 198 P.3d 615 (2008) (available here)

In that opinion, the court held that a property owner has a right to challenge the government’s assertion that a…

Continue Reading Opening Brief In Kona Eminent Domain Abuse Case: Pretext, Actual Purposes, And Private Benefit

The judiciary web site has posted the recording of the November 10, 2009 Intermediate Court of Appeals oral arguments in Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175 (HAWICA) here (caution, it is a massive 88 MB mp3 file).

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. More about thearguments, including the briefs, here. Disclosure: we filed an amicus brief supporting the property owners, available here.Continue Reading Beachfront Taking Case (HAWICA) Oral Argument Recording

In July 2009, the Florida Supreme Court issued an opinion in System Components Corp. v. Florida Dep’t of Transportation,No. SC08-1507, which resolved resolved aconflict in the lower Florida courts regarding the application ofbusiness damages in a condemnation case under Florida Statutes § 73.071(3)(b).The court held that a business is not required to relocate as theresult of a partial taking, but if it chooses to do so, only the actualdamages suffered by the business are compensable, and “its businessdamages must be determined in light of its continued existence at itsnew location.” We summarized the opinion here.

Florida eminent domain attorney Carlos A. Kelly authors today’s post, an article about the meaning of the case.

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What Does The Florida Supreme Court’s Ruling in System Components Corp. v. Florida Department of Transportation Mean?

Introduction

In System Components Corp. v. Florida Department of Transportation, 14 So.3d 967, 971 (Fla.

Continue Reading Guest Post: Carlos Kelly on What Does The Florida Supreme Court’s Ruling in System Components Corp. v. Florida Department of Transportation Mean?

The property owners have filed their Reply Brief in Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009), the case about “judicial takings” and the rights of littoral owners to accretion.

Oral arguments in the Supreme Court are set for December 2, 2009.

More about the case on our resource page.

Disclosure: we filed an amicus brief supporting the Petitioners, available here.Continue Reading Petitioner’s Reply Brief In SCOTUS Beachfront Takings Case

Here’s the Answering Brief filed by a Maui Councilmember in the case in which Lanai residents and voters assert he forfeited the Lanai seat on the Maui County Council under section 3-3 of the Maui Charter since he is not a resident of Lanai.

Section 3-3 of the Charterprovides that “If a council member…ceases to be a resident of thecouncil member’s residency area during the council member’s term ofoffice, or if a council member is adjudicated guilty of a felony, thecouncil member shall immediately forfeit office and the seat shallthereupon become vacant.”

The Maui Circuit Court dismissed the complaint, and the Lanai voters appealed.

Disclosure: we represent the Lanai voters; the Opening Brief we filed earlier is posted here.

More to follow as the appeal progresses. This was earlier transferred from the Intermediate Court of Appeals to the Supreme Court.

Note: on October 20, 2009, the Hawaii Supreme Court…

Continue Reading Answering Brief In Maui Councilmember Residency Appeal: What Is “Immediate Forfeiture And Vacancy?”

The Hawaii Supreme Court and Intermediate Court of Appeals will be hearing two appeals of note:

  • Tuesday, November 10, 2009, 9:00 a.m. – Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175 (HAWICA). The issue 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 belongs to the State of Hawaii and is public property. More about the arguments, including the briefs, here. Disclosure: we filed an amicus brief supporting the property owners.
  • Thursday, December 17, 2009, 9:00 a.m. – Unite Here! Local 5 v. City and County of Honolulu, No. 28602 (HAWSCT). The Supreme Court is reviewing the ICA’s conclusion that unless the project changes, a supplementalEIS is not required under the Hawaii Environmental Policy Act, Haw.Rev. Stat. ch. 343. The application for writ

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Continue Reading Upcoming Oral Arguments Of Interest

Mark your calendars for Wednesday, November 18, 2009, from 2:00 – 3:00 p.m. (Eastern Standard Time). That’s when we will be having the next “recent developments” conference call for members of the Condemnation Law Committee (ABA Section of State & Local Government Law). It’s free, but open only to Section members. Members should receive an e-mail with the call information, either directly from the Section, or via our listserv (LG-CONDEMNATION). If you are not a member, see below.

These are informal calls to discuss recent developments, get feedback and advice 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 Mark Your Calendars: ABA Condemnation Law Conference Call – November 18, 2009