January 2010

The New York Times’ “Square Feet” column today posted “Lessons on Limits of Eminent Domain at Columbia,” about the recent decision in Kaur v. New York State Urban Dev. Corp.,2009 NY Slip Op 08976 (Dec. 3, 2009). In that case, the New York SupremeCourt, Appellate Division (First Department) struckdown the attempted taking of land north of Columbia University in NewYork City because of the record reflected the condemnor’s claim the properties are”blighted” was a pretext to mask overwhelming private benefit. The Kaurcourt undertook an extensive review of the facts and concluded “thereis no independent credible proof of blight in Manhattanville.”

The article notes:

The Dec. 3 opinion by the New York Supreme Court’s appellate division, which found there was no civic or public purpose or blight to justify condemning Tuck-It-Away’s buildings for the university’s new campus, has unnerved public officials and developers. The Columbia decision…

Continue Reading The Latest On Eminent Domain In New York From The NY Times

Both parties have asked the Hawaii Intermediate Court of Appeals to take another look at its opinion in Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175 (Dec. 30, 2009).

In that case, the court held (1) the Hawaii Legislature took existing littoral accretion when it assigned ownership of the accretion from beachfront owners to the State; and (2) the Legislature did not take “future accretion.” We summarized the opinion here. [Disclosure: we filed an amicus briefsupporting the property owners, available here.]

The State of Hawaii asserts the opinion should not have addressed the claim that land which had accreted prior to 1985 was taken. The State’s Motion for Clarification is here.

The property owners assert the ICA’s conclusion that “future accretion” is not a property interest should be reexamined. The ICA relied on three federal cases from the Ninth Circuit, Western Pac. Ry. …

Continue Reading Motions For Reconsideration In ICA Accretion Taking Appeal

Noparking Many years ago I got a parking ticket, my first. Here’s the story: when I left the car, it was a legal space, no meter. In the few hours I was away, the city public works department erected a “no parking” sign and painted the curb red. The police were equally efficient, and by the time I returned, I had a ticket for parking in a red zone.

I objected and the judge recognized injustice when he saw it.

Years later, the court was not so magnanimous. We represented a property owner held liable for “creating” an obstruction to navigation in San Francisco Bay in violation of the Rivers and Harbors Act of 1899. How did the owner “create” the obstruction, you ask? It refused to destroy those portions of its piers which extended beyond the harbor line.

Why would the owner put a pier beyond the harbor line? It…

Continue Reading New Cert Petition: Is Littoral Owner Trespassing When The Shoreline Erodes, Placing Lawful Structure In The Water?

Check it out: two recently-published books on eminent domain. We’ve not had a chance to read either one yet, but they both look promising:

  • Before Eminent Domain: Toward a History of Expropriation of Land for the Common Good by Susan Reynolds. From the publisher’s description: “In this concise history of expropriation of land for the common good inEurope and North America from medieval times to 1800, Susan Reynoldscontextualizes the history of an important legal doctrine regarding therelationship between government and the institution of privateproperty. Before Eminent Domain concentrates on western Europe and theEnglish colonies in America.” Available from Amazon here.
  • Evicted! Property Rights and Eminent Domain in America by David Schultz. From the publisher’s description: “The 2005 Supreme Court decision Kelo v. City of New London,which upheld the taking of an individual’s home by local government forthe sake of private development, unleashed a firestorm of

…
Continue Reading Two New Books On Eminent Domain

The biggest Hawaii-related case of the year that was not just a local story was the U.S. Supreme Court’s decision in the “ceded lands” case, Hawaii v. Office of Hawaiian Affairs, 129 S. Ct. 1463 (Mar. 31, 2009). [Disclosure: we filed a brief in the case in support of the State, available here]

In a resounding thumping of the arguments advanced by OHA, the unanimous Court held that the Congressional resolution apologizingfor the United States’ role in the overthrow of the Hawaiian kingdomwas just an apology, and had no legal effect. The Court’s opinion is posted here. Our summary of the opinion by Justice Alito is here.

Our thoughts on the case: start with Three Takeaway Points From The “Ceded Lands” Decision, then visit our ceded lands case page for links to more commentary and resources.

The Harvard Law Review counted the case among the…

Continue Reading 2009 Land Use In Review: The Supreme Court’s “Ceded Lands” Decision – Sorry Seems To Be The Hardest Word

This probably isn’t the phrasing you should use if you are trying to convince others that you are not a “politically connected developer” who got the government to exercise eminent domain on your behalf.

“Atlantic Yards project was not properly presented,” complains Charles Ratner, the president of Forest City Enterprises in this letter to the editor of the Washington Post, which objects to George Will’s recent column about the proposed Atlantic Yards project in Brooklyn.

Looks like Mr. Will got it right.Continue Reading “At the start of this project, my company announced that it would try to avoid the use of eminent domain”

No doubt about it, the biggest Hawaii-centric land use related story this year was the continuing saga of the Hawaii Superferry. The case resulted in above-the-fold headlines, blogs devoted to the issue, and at least two trips to the Hawaii Supreme Court. We even live blogged the oral arguments. A summary of the case is posted here.

It generated a huge amount of public interest and had all the elements to make a compelling case: environmentalists vs business, local vs mainlander, the governor and the legislature vs the judiciary, and Oahu vs at least two neighbor islands. A certain segment of Hawaii’s population had from the get-goconsidered the interisland vehicle ferry as nothing less than the DeathStar: a whale-killer, a transporter of invasive alien species, andharbinger of a militarized imperialist government. Others didn’t viewit so malignantly, just as a much needed and long overdue alternativeto interisland transportation, or as…

Continue Reading 2009 Land Use In Review: The Three Lessons From Hawaii Superferry

The Hawaii Judiciary is now on Twitter. It looks like it will cover opinions from the Supreme Court and Intermediate Court of Appeals, as well as other judiciary news.

Check it out here.

If you don’t know what Twitter is, never mind (but you really should come join the conversation). In addition to the Hawaii courts, here’s but a few of the people you should follow:

@invcondemnation (this blog)

@georgettedeemer (Hawaii House of Reps communication director)

@hawaiioceanlaw (my law partner, Mark Murakami)

@ABAJournal

@CharleyFoster (Kauai law blogger)

@hsbpolitics (the political beat from the Honolulu Star-Bulletin)

@jesse808 (land use law blogger Jesse Souki)

@KaHuliAo (UH Law School Center for Excellence in Native Hawaiian Law)

@konablog (Kona Blogger)

@law101 (lawprof Susan Jaworowski)

@Scotusblog (King of All Law Blogs – my term, not theirs)

@ThelmaDreyer (Hawaii House of Reps blog)

@UHLawSchool (one of our almae matres, the University of Hawaii School of Continue Reading Hawaii Courts Now On Twitter