April 2010

Yesterday, we filed this motion for leave to file brief amicus curiae and a copy of the proposed brief in support of the application for writ of certiorari which asks the Hawaii Supreme Court to review the decision of the Intermediate Court of Appeals in Maunalua Bay Beach Ohana 28 v. State of Hawaii, 122 Haw. 34, 222 P.3d 441 (Haw. Ct. App. 2009).

In Maunalua Bay, the ICA held that “Act 73” (codifed here and here) was a taking. In the Act, the legislature declared that title to shoreline land naturally accreted cannot be registered by anyone except the State, and that only the State could quiet title to accreted land.

The ICA, however, held that the Act was a taking only of existing accreted land, but was not a taking of what the ICA called “future accretions.” The court held that because “future” accretion might…

Continue Reading Amicus Brief In Hawaii Beach Taking Case: “Future” Accretion Is A Present Property Interest

We’re still on the road so haven’t had time to digest this eminent domain decision in more detail, but here’s a short summary.

In an unpublished opinion in Council of San Benito County Governments v. McNamee, No. H033989 (Apr. 27, 2010, the California Court of Appeal (Sixth District) rejected the property owners’ argument the trial court erroneously held they were not entitled to severance damages:

Defendants contend on appeal that the trial court erred in rejecting their claim that the taking of their property created a “substantial impairment” of access to the remainder parcel. They claim that the trial court’s statement of decision “demonstrates its failure to analyze correctly the issues and evidence in this case” and “shows that the trial court failed to consider the facts of this case.”

Slip op. at 4. The court noted that under Cal. Evid. Code § 402, the hearing on the…

Continue Reading Cal Ct App: “Substantially Impaired” Access Does Not Mean Reduced Access

The property owners have filed an application for a writ of certiorari asking the Hawaii Supreme Court to review the decision of the Intermediate Court of Appeals in Maunalua Bay Beach Ohana 28 v. State of Hawaii, 122 Haw. 34, 222 P.3d 441 (Haw. Ct. App. 2009).

Disclosure: we filed an amicus brief supporting the property owners in the ICA, available here, and will be submitting a motion for leave to file an amicus brief urging the Supreme Court to accept the application for cert.

In its opinion, the ICA held that “Act 73” (codifed here and here) was a taking. In the Act, the legislature declared that title to shoreline land naturally accreted cannot be registered by anyone except the State, and that only the State could quiet title to accreted land. The ICA held that the Act was a taking of existing accreted land, but…

Continue Reading Cert Application In Hawaii Beach Taking Case: Legislative Reassignment To The State Of The Right To Future Accretion Is A Taking

I’m on the road so haven’t had the opportunity to digest this one in more detail.

In an unpublished opinion in Community Redevelopment Agency of the City of Los Angeles v. Kramer Metals, No. B208726 (Apr. 23, 2010, the California Court of Appeal (Second District) held:

Kramer Metals, a California partnership, Stanley J. Kramer, as its general partner, and Stanley J. Kramer and Susan M. Kramer, husband and wife, as joint tenants, (collectively, Kramer) appeal from the judgment in condemnation following: (1) a court trial determining Kramer’s entitlement to just compensation from the Community Redevelopment Agency of the City of Los Angeles, California (CRA) for taking Kramer’s property (Kramer Property or 1000 Property); (2) a jury trial resulting in an award of $4,830,000 as just compensation; and (3) a jury trial resulting in a verdict that Kramer “suffered no loss of goodwill as a result of the taking.”

On…

Continue Reading Latest Eminent Domain Ruling From The California Court of Appeal

The Solicitor General has filed the federal government’s Brief in Opposition in Sharp v. United States, No. 09-820 (cert. petition filed Jan. 7, 2010) (Supreme Court docket entry here).

In that case, the property owners are asking the U.S. Supreme Court to review the Ninth Circuit’s decision in United States v.  Milner, 583 F.3d 1174 (9th Cir. 2009), which held that a littoral owner was liable for trespass in waters held by the federal government for the benefit of the Lummi Nation, and for violation of the Rivers and Harbors Act formaintaining a “shore defense structure.” The structure was built onprivate fast (dry) land, but the shoreline eventually eroded up to it.

In the opinion, detailed in this post, the Ninth Circuit held that “both the tideland owner and the upland owner have a right to anambulatory boundary, and each has a vested right in the…

Continue Reading Federal Government’s Brief In Opposition In Erosion Case: Is A Littoral Owner Trespassing When The Shoreline Erodes?

At its upcoming April 30, 2010 conference, the U.S. Supreme Court is considering the cert petition in a case we’ve been following since it was decided by the Court of Federal Claims. In Palmyra Pacific Seafoods, L.L.C. v. United States, No. 09-766 (cert. petition filed Dec. 28, 2009), the Court is presented with the following Questions Presented:

1.  Are private contracts property protected by the Takings Clause of the Fifth Amendment to the Constitution?

2.  Assuming that private contracts are property protected by the Takings Clause, is the federal government liable for regulatory as well as appropriative takings of private contracts?

The CFC and the Federal Circuit both rejected the claim that the Secretary of the Interior’s designation of the waters surrounding Palmyra and Kingman Reef as National Wildlife Refuges and attendant commercial fishing ban was a taking of Palmyra Pacific Seafood’s exclusive licenses to operate commercial fish processing…

Continue Reading Was Ban On Palmyra Commercial Fishing A Taking Of The Right To Operate Seafood Processing Facilities?

According to this City Room blog post at the New York Times, Daniel Goldstein, the “last Atlantic Yards holdout” and the driving force behind Develop Don’t Destroy Brooklyn, has agreed to cease his objections to the taking of his family home in return for $3 million. For a statement from Mr. Goldstein, see here.

We say good for him.

Browse through some of the comments on the post, however, and you will note that others view this through more jaded lenses: “We knew it was all about the money in the end,” “I guess it was about money all along, eh?,” “Moral of the story: He who holds out longest, gets the biggest check. No good guys in this one.” Similar charges were leveled against Susette Kelo when she eventually settled her case.

These comments are unfair, and reflect a gross lack of understanding of what…

Continue Reading Was It “All About The Money?” Hardly.

On Friday, April 30, 2010, as part of the Spring Meeting of the ABA’s Section of State and Local Government Law, I’ll be presenting a paper Recent Developments in Challenging the Right to Take in Eminent Domain (SSRN posting here) during the “Land Use Hot Topics” program.

If you are in South Florida, the in-person program will be at Holland & Knight, 701 Brickell Avenue, Miami, from 12:30 – 2:00pm. If you can’t be there in person, you can sign up for the “virtual” meeting (a teleconference and live audio webcast) here. Either way, hope you can join us.

The program will also cover such topics as Religious Land Use Update, Recent Developments in Comprehensive Planning, The Miami Beach Art Deco District, Official Immunity in Making Local Zoning Decisions, and Uses and Limits of the Fair Housing Act and the Americans With Disabilities Act. Registration also includes two…

Continue Reading Upcoming: Land Use Hot Topics Program (In Person And Online)

A new opinion from the Indiana Supreme Court that reminds us somewhat of the “bizarre condemnation” case now awaiting decision in the New Jersey Supreme Court. In Murray v. City of Lawrenceburg, No. 15S04-0907-CV-310 (Apr. 20, 2010), the court held the claims of a property owner who asserted that the government wrongly occupied her land and leased it to another are subject to Indiana’s six year statute of limitations for inverse condemnation claims. 

Update: here’s another summary of the opinion from the Indiana Lawyer Daily.

The plaintiffs alleged they owned a 3/4 acre parcel in Lawrenceberg. In 1995, however, the Central Railroad Company gave the city an affidavit that it owned the property, and quitclaimed its interest to the city. The city then leased it to a casino. In 2005, the plaintiffs filed a lawsuit seeking to quiet title in the parcel to themselves, and …

Continue Reading Indiana Supreme Court: Inverse Condemnation Remedy Exclusive When Government Seizes Land Without Condemnation

Kuilima Resort Company has asked the Hawaii Supreme Court to reconsider or clarify its opinion in the Turtle Bay/Kuilima EIS case (Unite Here! Local 5 v. City and County of Honolulu, No. 28602 (Apr. 8, 2010)), in which the court held that a supplemental environmental impact statement is required when a project’s context changes, even if the project itself has not. The motion is available here.

Under Rule 40 of the Hawaii Rules of Appellate Procedure, no response can be filed unless the court asks for it, and the court has 10 days to act on the motion. If the court does not act within the 10 days, the motion is automatically rejected.Continue Reading Kuilima’s Motion For Reconsideration Of HAWSCT’s Supplemental EIS Opinion