Currently at the annual conference on eminent domain law – as always, well worth attending.
In the morning’s session, Professor Kanner mentioned the recent decision in County of Hawaii v. C & J Coupe Family Limited Partnership, No. 28882 (Dec. 24, 2008), which has not yet been published in the official reporters. The slip opinion is posted here. Continue Reading At The ALI-ABA Conference On Eminent Domain And Land Valuation
One of the bigger developments, at least in Hawaii law, came in the last week of the year. We’re talking about the Hawaii Supreme Court’s decision in County of Hawaii v. C & J Coupe Family Limited Partnership, No. 28882 (Dec. 24, 2008) (and we’re not just hailing the case because we’re the attorneys for the landowner).
Note: for those attending the Eminent Domain and Land Valuation Litigation conference, this is the case Professor Kanner mentioned in the morning session as being not reported yet. See below for the link to the slip opinion.
The Court held that government, not property owners, bears the financial risk that a condemnation fails and, importantly, joins a number of courts in holding that the government’s proclamation that a taking is for public use is not immune from judicial inquiry. All five Justices agreed that under Haw. Rev. Stat. § 101-27(1993), the
Continue Reading 2008 Land Use In Review: Public Use And Pretext In Eminent Domain
Following up on this post, where we pointed out several errors in a headline and subheadline in a Honolulu Star-Bulletin story on the Hawaii Supreme Court’s landmark eminent domain decision in County of Hawaii v. C & J Coupe Family Limited Partnership, No. 28882 (Dec. 24, 2008), the Star-Bulletin has posted corrections and clarifications, here:
» A lawsuit remains active by members of the Coupe family in Kona,seeking to block county condemnation of part of their land for ahighway near the Hokulia development. A Page 4 headline in the Hawaiisection Saturday said the suit was dismissed by the state SupremeCourt. Also, future hearings on the case will not involve ethicalallegations, as was stated in a subheadline on the same story.
While still not 100% accurate — the County of Hawaii instituted the lawsuits against the property owners, not the other way around — it’s heartening to see
Continue Reading Thank You, Star-Bulletin: Corrections And Clarifications
The Zoning and Planning Law Report (Thomson | West) has published my article about the post-Lingle developments in substantive due process in the Ninth Circuit. Download a pdf of the article here.
From the introduction:
Substantive due process asserted as a claim for relief has a whiff of danger about it. After all, a plaintiff claiming a violation of substantive due process is asking a court to override the judgment of the political branches and invalidate an ordinance, statute, or an administrative determination because the action is somehow illegitimate. After the demise of Lochner, courts are understandably reluctant to be seen as second-guessing the policy choices made by the elected branches of government, and a suggestion that a court is “Lochnering”—legislating from the bench by invalidating economic regulations based on a judge’s contrary economic or social beliefs—can be the equivalent of judicial kryptonite.
In
Thanks to SCOTUSblog for posting the cert petition, filed on January 5, 2008, in Navajo Nation v. United States Forest Service, No. 08A368.
The petition seeks review of an en banc Ninth Circuit panel decision holding it was not a “substantial burden” on the religious exercises of Native American tribes for the Forest Service to allow a ski resort to make artificial snow on a mountain considered by the tribes to be sacred. The artificial snow is made from recycled sewage water.
The Ninth Circuit held the Religious Freedom Restoration Act, a federal statute which requires the government to justify with compelling reasons actions which substantially burden religious exercises, does not apply. The court held that religious exercises are only burdened under the RFRA only when a person is forced to choose between adhering to their religion and accepting a government benefit, or when civil or criminal penalties
2008 saw no blockbuster court decisions on shoreline law, just a continuation of existing trends.
Setbacks
Shoreline setback are a “no build” zone on private beachfront property, measured from a “setback line.” Hawaii state law establishes a minimum shoreline setback, and the four counties are allowed to establish their own (greater) setbackstandards. In 2008, Kauai enacted what one commentator described as the nation’s “most conservative” shoreline setback regulations (more here), continuing the trend of variable shoreline setbacks measured by historical erosion and accretion rates. For more, check out a U. Hawaii Law Review article on shoreline setbacks, published last year.
Public Access
Shoreline setback lines do not concern ownership, or the boundary between public beaches and private property. Theshoreline certification process under the state Coastal Zone Management Act is not supposed toaffect property rights or determine where the public may or may notaccess. However, the two concepts continue to
The Hawaii Supreme Court clarified when an agency hearing will be deemed to be a “contested case” in E & J Lounge Operating Co. v. Liquor Comm’n of the City & County of Honolulu,No. 27940 (July 29, 2008). The issue was whether, as the caption of the caseindicates, a public hearing before the Honolulu Liquor Commission was acontested case under Haw. Rev. Stat. § 91-1(5). The court also held that under the automatic approval statute, Haw. Rev. Stat. § 91‑13.5,an agency must act to grant or deny a permit application within acertain time period, but is not required to make a “legally effective”decision, at least procedurally. Slip op. at 64-65. More here.Continue Reading 2008 Land Use In Review: Contested Cases Refined
We aren’t officially an “environmental law” blog, and when we do cover the issue, it is mostly on the periphery. However, in 2008, we hit a couple of significant issues that had some relevance to land use law.
First, in the U.S. Supreme Court’s first decision of the Term, Winter v. Natural Resources Defense Council, Inc.,No. 07-1239 (Nov. 12, 2008), the Court held that prior to issuing preliminary injunctions preventing the Navy from training with mid-frequency active sonar, the lower courts must balance the equities and the public interest, and that the Navy’s interest in training for deployment clearly outweighed the environmental concerns of the plaintiffs. Why did a land use law blog care about a case involving the Navy’s useof sonar in training exercises off the California coast? First, as weexplained here,the case is philosophically interesting because of the argumentsregarding when courts should defer to the judgment
I usually try to not take too seriously the headlines attached to a newspaper story or op-ed. After all, an editor — and not the reporter or op-ed author — may have written the headline, and it may be designed to grab a reader’s attention or focus on a part of the story the editor thinks important.
But a headline should at least be in the ballpark, factually.
However, after reading the headline in a Honolulu Star-Bulletin story on the recent Hawaii Supreme Court decision in the Kona bypass condemnations, “Suit to block highway is dismissed” I was left wondering whether there was another case going on over the Hokulia road that I didn’t know about. Turns out no, there’s just the two, the headline just got it very, very wrong.
First, the facts. On December 24, 2008, in County of Hawaii v. C & J Coupe
Continue Reading Headline On Kona Condemnation Cases – Not In The Ballpark
A round up of interesting and notable zoning decisions:
