2009

Eminent domain, regulatory takings, and property rights

  • Leone v. County of Maui, 128 Haw. 183, 284 P.3d 956 (Haw. App. 2012) (represented amicus curiae arguing that Williamson County does not require a landowner to seek legislative changes in order to ripen a federal takings claim).
  • County of Hawaii v. C & J Coupe Family Ltd. P’ship, 119 Haw. 352, 198 P.3d 615 (2008) (a court has an obligation to take seriously a property owner’s claim that the government’s proffered reasons for condemning private property is really just a pretext hiding private benefits)

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    Continue Reading Selected Reported Cases

    Yesterday, the New York Court of Appeals heard oral arguments in the latest case involving the controversial Atlantic Yards project in Brooklyn. We blogged the arguments as we followed along on the live video feed (video archived here).

    According to the court’s web site, “[t]he Court normally decides cases within thirty to sixty days after the oral argument date,” so we should be seeing the outcome relatively quickly.  

    Here are selected reports on the arguments and the issues in the case:

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    Continue Reading Atlantic Yards Oral Argument Media (And Other) Reports
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    Missed the live blog and video of the oral arguments in Goldstein v. New York State Urban Development Corp., the latest case involving the controversial Atlantic Yards development and Kelo-like claims of eminent domain abuse in an economic development taking? 

    Well, you’re in luck — the court has archived the video.

    Launch the live blog and start the video at the same time and you can follow along with Timothy Sandefur, Mark Murakami, and me as we provide commentary.

    To launch the video in a separate window, go here. Continue Reading Video Of Atlantic Yards Oral Arguments

    Today, the Hawaii Supreme Court agreed to review Unite Here! Local 5 v. City and County of Honolulu, 120 Haw. 457, 209 P.3d 1271 (Haw. Ct. App. 2008), in which the Intermediate Court of Appeals held that unless the project changes, a supplemental EIS is not required under the Hawaii Environmental Policy Act, Haw. Rev. Stat. ch. 343.

    Alink to the ICA’s decision and the opinion of the dissenting judge isposted here. The briefs filed in the ICA are posted here.

    The cert application, the brief in opposition, and the amici briefs on the application are here:

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

    It appears that the New York Court of Appeals live streams oral arguments, so tomorrow, for the second day in a row, we’ll go live with real-time blogging of an important and fascinating case (today we’re blogging oral arguments in the Hawaii Supreme Court on a land use case).

    Starting at 2 pm EDT on Wednesday October 14, we’ll follow the arguments in Goldstein v. New York State Urban Development Corp., the latest case involving the controversial Brooklyn Yards development and Kelo-like claims of eminent domain abuse in an economic development taking.

    Go to this pageto check if the viewer window works in your browser, and to sign up foran email reminder as the date approaches. Or, you can just come backhere on Wednesday when we go live at about 1:45 p.m. Eastern time. Thelive window will be the top post on the blog that day.

    Continue Reading Wednesday, October 14, 2009, 2 pm EDT: Live Blog Of NY Court Of Appeals Atlantic Yards Eminent Domain Abuse Case Oral Arguments

    On Wednesday October 14, we live blogged the arguments in Goldstein v. New York State Urban Development Corp., the latest case involving the controversial Brooklyn Yards development and Kelo-like claims of eminent domain abuse in an economic development taking.

    Joining in the commentary were Pacific Legal Foundation attorney and property rights scholar Timothy Sandefur, and my Damon Key colleague and eminent domain litigator Mark Murakami.

    For a first hand report from the courtroom, check out Dean Patty Salkin’s comment.

    For the video of the argument, go here.

    <p>&amp;amp;lt;p&amp;amp;gt;&amp;amp;amp;lt;p&amp;amp;amp;gt;&amp;amp;amp;amp;lt;p&amp;amp;amp;amp;gt;&amp;amp;amp;amp;amp;lt;p&amp;amp;amp;amp;amp;gt;&amp;amp;amp;amp;amp;amp;lt;a href=”http://www.coveritlive.com/mobile.php?option=com_mobile&amp;amp;amp;amp;amp;amp;amp;task=viewaltcast&amp;amp;amp;amp;amp;amp;amp;altcast_code=75adc976b5″ &amp;amp;amp;amp;amp;amp;gt;NY Court of Appeals Oral Arguments In Atlantic Yards Eminent Domain Abuse Case&amp;amp;amp;amp;amp;amp;lt;/a&amp;amp;amp;amp;amp;amp;gt;&amp;amp;amp;amp;amp;lt;/p&amp;amp;amp;amp;amp;gt;&amp;amp;amp;amp;lt;/p&amp;amp;amp;amp;gt;&amp;amp;amp;lt;/p&amp;amp;amp;gt;&amp;amp;lt;/p&amp;amp;gt;</p>


    Continue Reading Live Blog Of NY Court Of Appeals Atlantic Yards Eminent Domain Abuse Case Oral Arguments

    Our live blog of the Hawaii Supreme Court oral arguments in County of Hawaii v. Ala Loop Homeowners, No. 27707 (cert. granted Sep. 2, 2009). 

    The mp3 recording of the argument is posted here.

    More details on the case below the window.

    <p>&amp;lt;p&amp;gt;&amp;amp;amp;lt;p&amp;amp;amp;gt;&amp;amp;amp;amp;lt;p&amp;amp;amp;amp;gt;&amp;amp;amp;amp;amp;lt;p&amp;amp;amp;amp;amp;gt;&amp;amp;amp;amp;amp;amp;lt;a href=&amp;amp;quot;http://www.coveritlive.com/mobile.php?option=com_mobile&amp;amp;amp;amp;amp;amp;amp;task=viewaltcast&amp;amp;amp;amp;amp;amp;amp;altcast_code=7c50a56fae&amp;amp;quot; &amp;amp;amp;amp;amp;amp;gt;HAWSCT Ala Loop arguments 10-13-2009&amp;amp;amp;amp;amp;amp;lt;/a&amp;amp;amp;amp;amp;amp;gt;&amp;amp;amp;amp;amp;lt;/p&amp;amp;amp;amp;amp;gt;&amp;amp;amp;amp;lt;/p&amp;amp;amp;amp;gt;&amp;amp;amp;lt;/p&amp;amp;amp;gt;&amp;lt;/p&amp;gt;</p>

    The court is considering whether Haw. Rev. Stat. §  205-1 et seq.,gives rise to a private right of action. The core issue in the appealis whether Hawaii’s statewide zoning laws are “laws relating toenvironmental quality” which may be privately enforced, or whether theyare classic Euclidean zoning laws which can’t. The Hawaii Constitution (art. XI, § 9)provides that “any person may enforce” the “right to a clean andhealthful environment, as defined by law relating to environmentalquality, including control of pollution and conservation, protectionand enhancement of natural resources.”

    Thecase involves a “new century charter school” located…

    Continue Reading Live Blog Of HAWSCT Oral Arguments: Are State Zoning Laws “Environmental” Statutes?

    The County of Maui has filed its Answering Brief 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 property owners’ Opening Brief (here).

    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 isavailable here.

    The County’s brief argues the takings claims are not ripe for review because they “have not alleged nor can they demonstrate they have attempted to obtain…

    Continue Reading Government Brief: Landowner Must Seek To Change Land Use Designations To Ripen Federal Takings Claim

    Beginning at 2pm EST on Wednesday, October 14 (thanks, noLandGrab) the New York Court of Appeals will hear oral arguments in Goldstein v. New York State Urban Development Corp., the latest case involving the controversial Brooklyn Yards development and Kelo-like claims of eminent domain abuse in an economic development taking. 

    This post at the Volokh Conspiracy has a good summary of the issues in the case, and why they are important. The merits and amicus briefs in the appeal are posted here.Continue Reading NY Court Of Appeals Oral Arguments In Atlantic Yards Eminent Domain Case

    In United States v. Milner, No. 05-35802 (Oct. 9, 2009), a panel of the Ninth Circuit held that littoral (waterfront) property owners in Washington state may be liable for common law trespass and for violations of the Rivers and Harbors Act of 1899 because their land has eroded and their “shore defense structures” (rip-rap and bulkheads) now intersect with the boundary between public tidelands and their private property.

    The case involves tidelands held in trust by the federal government for the Lummi Nation, pursuant to treaty and President Grant’s executive order. Upland owners erected and maintained structures on the tidelands to blunt the force of the waves, initially under a lease from the Lummi Nation which expired in 1988. The public-private boundary is the mean high water (MHW) mark, and over the years, the shoreline eroded and as of 2002, many of the structures were seaward of the…

    Continue Reading Ninth Circuit: Let It Erode – Littoral Owners Have No Right To Install Shore Defense Structures On Their Land