2009

Remember the “ceded lands” case? The one where the U.S. Supreme Court held 9-0 that the U.S. had absolute fee simple title to the ceded lands, and that the Apology Resolution was hortatory fluff? See Hawaii v. Office of Hawaiian Affairs, 129 S. Ct. 1436 (2009). We were all over that case, which we summarized here on our resource page.

After it reversed the Hawaii Supreme Court’s decision, SCOTUS remanded the case back to the Hawaii court “for further proceedings not inconsistent with this opinion.” Today, the Hawaii Supreme Court dealt with the last remaining thread in the litigation, the claim of one of the plaintiffs who refused to settle. Office of Hawaiian Affairs v. Housing and Community Development Corp. of Hawaii, No. 25570 (Oct. 27, 2009).

Since SCOTUS issued its opinion, all of the plaintiffs but one settled with the state. See slip op. at 2…

Continue Reading Latest HAWSCT Decision In “Ceded Lands” Case: Standing? Yes, Ripe? No.

Here are some recently-released opinions; none so earth-shattering that they merit their own post, but definitely worth reading:

  • People ex rel. Dep’t of Transportation v. Acosta, No. C059064 (Cal. Ct. App. Oct. 26, 2009) – In an eminent domain case, the California Court of Appeals, Third District concludes that a claim for lost goodwill was not preempted by federal law (the Petroleum Marketing Practices Act).
  • River of Life Kingdom Ministries v. Village of Hazel Crest, No. 08 C 950 (7th Cir., Oct. 27, 2009) – In a case involving a church’s claims that a rezoning violated RLUIPA, the U.S. Court of Appeals for the Seventh Circuit affirmed the denial of church’s motion for preliminary injunction because the “Church

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Continue Reading Latest Interesting Opinions

Each summer, The Urban Lawyer (the ABA’s Section of State and Local Government Law‘s peer-reviewed law review), devotes an issue to recent developments in various areas of law. A subscription to the journal, which is published each quarter, is among the benefits of section membership. The just-published Summer 2009 issue includes my article on recent developments in public use and pretext in eminent domain, which I have creatively titled Recent Developments in Public Use and Pretext in Eminent Domain (43 Urban Lawyer 563 (2009)).

If that’s not descriptive enough, here’s a summary of the article:

The Supreme Court’s controversial 5-4 decision in Kelo v. City of New London renewed both public and judicial interest in the contours of the public use requirement of the Fifth Amendment and its counterparts in state constitutions. Courts began to take a harder look at how the government’s claim that property is being condemned…

Continue Reading New Article: Recent Developments in Public Use and Pretext in Eminent Domain

More about Klumpp v. Borough of Avalon, the decision from New Jersey’s Appellate Division which held that the government can assert inverse condemnation in order to take property without compensation.

In Avalon stole land, appeal to New Jersey high court claims, the Atlantic City paper reports on the case:

A Moorestown couple is asking the state’s highest courtto consider whether the borough stole a beachfront parcel from themafter the great northeaster of 1962.

Edward and Nancy Klumpp’s Nantucket-style home on 75th Streetwas destroyed by the infamous storm. The couple looked intorebuilding the home over the years, and in 1997 applied for acoastal permit.

By then, the borough had built an extensive network of dunesalong the ocean to protect people from future coastal storms.

The case has resonated among coastal towns across New Jersey.Avalon has fielded calls from a dozen other beach towns that alsohave vacant beachfront lots in…

Continue Reading More On New Jersey’s “Bizarre Condemnation”

Here are a couple of reports about yesterday’s decision by the Hawaii Supreme Court in Dupree v. Hiraga, No. 29646 (Oct. 20, 2009):

The court held that inorder to establish residency as a voter, a person must have a fixed habitation inthe district in which he is attempting to register, as well as a”physical presence” there.  Intent to return is not enough. The case concerned whether the State Board of Registration (County of Maui)correctly concluded that a Maui County councilperson who registered tovote as a Lanai resident is actually a resident of Maui. The unanimous court, in an opinion by Justice Mark Recktenwald, affirmed.More about the opinion here.

[Disclosure: my Damon Key colleagues and I represent the Lanai voterswho prevailed in the appeal.] 
Continue Reading Media Reports On HAWSCT “Residency” Decision

In an order issued yesterday, the U.S. Supreme Court granted the SG’s motion for leave to participate in oral argument as amicus curiae and for divided argument in Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). The federal government’s amicus brief is available here.

In Walton County v. Stop the Beach Renourishment, Inc.,998So.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 isconsidering whether the Florida court’s reversal of more than 100 yearsof Florida law was a judicial taking, and whether the Florida court’sdecision violated due process.

We filed an amicus brief in the case…

Continue Reading Solicitor General To Get Face Time In Judicial Takings Case

In an opinion issued today, the Hawaii Supreme Court held that in order to register to vote as a resident of a district, a person must have a fixed habitation in the district in which he is attempting to register, as well as a “physical presence” there. Dupree v. Hiraga, No. 29646 (Oct. 20, 2009). Intent to return is not enough.

The case concerned whether the State Board of Registration (County of Maui)correctly concluded that a Maui County councilperson who registered tovote as a Lanai resident is actually a resident of Maui. The unanimous court, in an opinion by Justice Mark Recktenwald, affirmed.

[Disclosure: my Damon Key colleagues and I represent the Lanai voterwho prevailed in the appeal.] 

The court held:

The Board concluded in COL No. 14 that Dupree established that Kaho’ohalahala did not abandon his residence in Lahaina and relocate his permanent residence to Lana’i. The…

Continue Reading HAWSCT: “Residency” Requires Physical Presence Plus Intent

Remember a while back when we noted that a property owner has asked the New Jersey Supreme Court to review what we called a “Kafkaesque” decision by the Appellate Division which held that the government can assert inverse condemnation in order to take property without compensation?  See Klumpp v. Borough of Avalon, No. A-2963-07 (per curiam).

Well, we’re not alone.  The New Jersey Law Journal today published an editorial entitled “A Bizarre Condemnation.” It’s not available on-line except for subscribers, but we will note some of the key passages:

Rarely is there an appellate decision so bizarre that it leaves seasoned lawyers and laypersons alike shaking their heads in disbelief. It is a basic premise of constitutional law that the government may not take property without due process and just compensation. Yet according to Klumpp v. Borough of Avalon, 2009 WL 2341554 (July 31, 2009), a New Jersey…

Continue Reading “A Bizarre Condemnation”

Update: In this order, the Court declined to review the case.

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On Monday, October 19, 2009, the Supreme Court is scheduled to consider whether to review the Alaska Supreme Court’s decision in Reust v. Alaska Petroleum Contractors, Inc., 206 P.3d 437 (Alaska, Apr. 10, 2009).

The case is listed on SCOTUSblog’s list of “petitions to watch.”

The Questions Presented:

The Supreme Court of the State of Alaska upheld the validity of a state statute that took a percentage of Reust’s recovery in a civil action for public use, aligning the Alaska Supreme Court with the Ninth Circuit and six State Supreme Courts that have held such statutes constitutional and furthering the split with two State Supreme Courts that have held such statutes violate the Takings Clause of the Fifth Amendment to the United States Constitution. The first question presented is:

1. Whether a state…

Continue Reading U.S. Supreme Court Considering Whether To Review New Case: Is Gov’t Grab Of 50% Of Punitive Damage Award A Taking?

On Thursday, December 17, 2009 at 9:00 a.m., the Hawaii Supreme Court is scheduled to hear oral arguments in Unite Here! Local 5 v. City and County of Honolulu, the case in which the IntermediateCourt of Appeals held 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 of certiorari asked the court to review this Question Presented:

Under HRS Chapter 343 an its enabling rules, is a supplemental environmental review required when there are significant changes to a project’s circumstances, such as increased environmental and community impacts, or are supplemental reviews limited solely to changes in project design?

The application for writ of certiorari and opposing and amici briefs in the case thus far are posted here. 

The ICA’s opinion is reported at 120 Haw.457, 209 P.3d 1271 (Haw. Ct. App. 2008), and…

Continue Reading HAWSCT Oral Aguments Scheduled In Turtle Bay/Kuilima EIS Case: Is A Change In “Context,” But Not The Project, Enough To Trigger Supplemental EIS?