2009

Little-pink-houseFor those of you within striking range of Santa Barbara on Tuesday, April 14, Jeff Benedict, the author of Little Pink House – A True Story of Defiance and Courage (Grand Central Publishing 2009) (available from Amazon here) will be speaking at the Community Leaders Forum from 5-7pm in the Loggia Ballroom at the Biltmore Santa Barbara. 

Little Pink House is the book about the infamous Supreme Court eminent domain decision Kelo v. City of New London, 545 U.S. 469 (2005). The book has been reviewed in the New York Times and the Wall Street Journal among other places.  Robert S. Poliner, the Connecticut Ombudsman for Property Rights also reviewed the book, which we reprinted here.

Dana Berliner from the Institute for Justice — and one of the attorneys who represented Susette Kelo — will be on the panel. 

I just happen to be…

Continue Reading So. Cal. Heads-Up: Jeff Benedict/Little Pink House In Santa Barbara On Tuesday 4/14

Sean Hao at the the Honolulu Advertiser reports “Land prices for Hawaii rail route jump $100 million since 2006,” with the lede: “Honolulu real estate prices are expected to fall over the next threeyears, but the estimated cost of acquiring land to build Honolulu’selevated commuter train is going up.”  Indeed, the City’s estimate of the cost of aquiring land has more than doubled, from $70 million to more than $160 million:

To be sure, $160 million to $170 million is a fraction of theoverall estimated $5.4 billion cost of the project. However, the morethan 128 percent rise in projected real estate costs highlightsconcerns raised by critics and others that the city’s financialprojections for the project are unrealistically low.

The increasein real estate costs “seems counter-intuitive,” said Robert Thomas,managing attorney for the Pacific Legal Foundation’s Hawaii Center,which lobbies for property owner rights. “That seems odd. If anything,property values are…

Continue Reading Rail Taking Valuations In A Flat To Declining Market

Thanks to my fellow Damon Key land user Greg Kugle for letting me know the Federal Circuit has affirmed Palmyra Pacific Seafoods, L.L.C. v. United States, 80  Fed. Cl. 228 (Jan. 22, 2008), a case we summarized here.  The Federal Circuit’s opinion is available here.

The court held that licenses to use Palmyra Atoll as a commercial fishing base were not taken when the federal government declared the waters around the atoll as a wildlife refuge and prohibited commercial fishing. The court held that the licenses were not “property,” and even if the licenses were rendered worthless, the takings clause was not implicated.

In attempting to define the property right that was purportedly taken by the regulation at issue in this case, the plaintiffs have provided little beyond the general assertion that the Interior Department interfered with their “exclusive right to use Palmyra as a commercial fishing…

Continue Reading Federal Circuit: Commercial Fishing Ban Frustrated Contract, But Is Not A Taking

Dean Patty Salkin’s Law of the Land blog posts James Lawlor’s summary of the Hawaii Supreme Court’s decision in County of Hawaii v. C&J Coupe Family Ltd. P’ship, 119 Haw. 352, 198 P.3d 615 (2008), “Court Must Decide If Public Purpose Claimed for Road Was Pretextual.” 

The Hawaii Supreme Court ruled a trial court erred by not specifically considering whether a county’s claimed justification for a taking to build a highway was a mere pretext to benefit a private landowner, as the landowner affected by the taking charged.

….

The court said it did not have to accept Justice Kennedy’s formulation to conclude that Kelo and the relevant Hawaii precedents supply ample authority to require the trial court to reach the pretext issue. On its face, the stated public purpose in this case met the public use requirements of both the state and United States constitutions, the…

Continue Reading Pretext In Eminent Domain: Law Of The Land On The Coupe Opinion

If you are wondering why your calls to State and County offices go unanswered tomorrow, it is because it is Good Friday, a legal holiday in the State of Hawaii pursuant to Haw. Rev. Stat. § 8-1. 

The day of the crucifixion was originally made a holiday in 1941 by the Territorial Legislature. The statute was recodified upon statehood in 1959, and the holiday has been confirmed via Haw. Rev. Stat. § 89-1, the law that makes the establishment of public holidays — among many other things — a product of what the statute calls “joint decision-making” process between the government and the government employee unions, also known as collective bargaining.

The Establishment Clause, which has been incorporated against the states by the due process clause of the 14th Amendment, prohibits the government from establishing an official religion (the so-called separation church and state), and in…

Continue Reading Hawaii’s Good Friday Holiday: It’s Like Thanksgiving And Christmas

Hawaii Business magazine has published my column about how our firm is using web 2.0 tools to communicate and connect, “Connect with customers with blogs, Twitter.” 

Ironically, the article is not (yet) available on-line, so here it is:

Connect with customers with blogs, Twitter
They’re easy to use and effective

Take note, small- and medium- business owners: blogs, Twitter and other “social media” aren’t for kids — they’re tools for taking on the big guys.

Learn how to use them, and you can leverage your lack of bureaucracy to communicate directly with potential clients, the media and your community.

Our 25-lawyer firm uses blogs and Twitter.

I started my blog on land-use and property law (www.inversecondemnation.com) more than three years ago.  Mark Murakami followed, focusing on maritime law (www.hawaiioceanlaw.com).  Soon, Tred Eyerly joined, writing about insurance issues (www.insurancelawhawaii.com).

We analyze court decisions…

Continue Reading Hawaii Business Magazine Column: Using Blogs, Social Media To Connect

A new article from the ABA Journal “Where’s the Revolution” about whether post-Kelo reforms of eminent domain law have any real effect on the law.  According to the summary of the article on the Geo. Mason U. law school web site:

Despite the fact that the Supreme Court’s 5-4 vote in Kelo v. City of New London provoked a significant public backlash, Professors Steven Eagle and Ilya Sominmaintain that most land use laws adopted since the court’s decisionfail to provide significant protection for private ownership ofproperty.

Also quoted in the article are our friends Dana Berliner from the Institute for Justice, and Timothy Sandefur from the Pacific Legal Foundation.  The article is worth a look.Continue Reading New Article: Is Eminent Domain Reform Just Window Dressing?

Our thanks to Dwight Merriam for letting us know about these two decisions. 

  • Gold v. Town of East Haddam, No. 18067 (Conn. Mar. 24, 2009) – On one hand, this is a fairly straightforward summary judgment case: are material facts disputed such that a trial is merited?  On the other, it involves the question of whether the property taken pursuant to a referendum was to be used for a school or some other purpose (under Connecticut law, according to the opinion, a taking for anything but a school must be commenced within six months of the vote authorizing the taking, but a taking for a school purposes is subject to some other time limit).  In reversing the court of appeals’ determination that there was a genuine dispute regarding the uses to which the property taken would be put, the Supreme Court held the language of the referendum itself demonstrated

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Continue Reading Two Interesting Eminent Domain Decisions

Several items of interest:

  • California Coastal Commission: “You must farm” – As a condition of allowing a Northern California family to build a home, the California Coastal Commission demanded that they dedicate an “agricultural easement” on their 143-acre parcel.  In other words, as a condition of use, the Commission requires a family that has never farmed its land to use its land for farming.  More about the case from the Half Moon Bay Review here. The complaint is posted here.

    “What the Coastal Commission is asking us to do in return for a building permit is to put the remaining acreage into agriculture easement,” Dan Sterling said. “But it doesn’t stop there. They want control of what and how we farm. And even then, they can come in here whenever they want.” That’s Sterling’s biggest issue. He says he’d lose control over all but 10,000 square feet of

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Continue Reading Tuesday Round-Up: Forced Farming, Tax Or Taking, RLUIPA Loophole

A cert petition has been filed seeking review of the Ninth Circuit’s decision in McClung v. City of Sumner, 548 F.3d 1219 (9th Cir. 2008), the case in which the court held:

This case presents an issue of first impression in this Circuit — whether a legislative, generally applicable development condition that does not require the owner to relinquish rights in the real property, as opposed to an adjudicative land-use exaction, should be reviewed pursuant to the ad hoc standards of Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978), or the nexus and proportionality standards of Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994). We affirm, holding that the Penn Central analysis applies to the 12-inch pipe requirement. 

The Ninth Circuit’s opinion is available here.  The petition presents three…

Continue Reading New Cert Petition And Amicus Brief On Nollan/Dolan Applicability To Legislative Exactions, In-Lieu Fees