2010

The County of Hawaii has filed its Answering Brief in the latest phase of County of Hawaii v. C&J Coupe Family Ltd. P’ship,two condemnation cases arising out of the County’s attemptsto take a Kona family’s property. The brief responds to the Opening Brief which my Damon Key colleagues Ken Kupchak, Mark Murakami, Matt Evans and I filed in November 2009 (available here).

This appeal addresses several issues,but the most critical involve pretext and public purpose, questionsleft open by the U.S. Supreme Court in Kelo v. City of New London,545 U.S. 469 (2005), but which were answered, in part, by the HawaiiSupreme Court in its opinion when these cases were first before thecourt last year. See County of Hawaii v. C&J Coupe Family Ltd. P’ship, 119 Haw. 352, 198 P.3d 615 (2008) (available here)

In that opinion, the court held that a property owner…

Continue Reading Government’s Brief In Hawaii Eminent Domain Abuse Case: Pretext, Actual Purposes, And Private Benefit

My Pacific Legal Foundation colleagues Brian Hodges and Daniel Himebaugh have posted a new paper on Nollan/Dolan exactions: Have Washington Courts Lost Essential Nexus to the Precautionary Principle? – Citizens’ Alliance for Property Rights v. Sims, available on SSRN here. The authors’ summary:

ThisArticle examines how Washington State courts have allowed theprecautionary principle to encroach upon the essential nexus test inthe context of land use exactions. The essential nexus test requiresgovernment to establish a cause-and-effect connection betweendevelopment and an identified public problem before placing conditionson development. The precautionary principle, however, endorsesregulation of land use in the absence of causation. Although U.S.Supreme Court precedent requires government to prove causalconnections, recent Washington case law shows that this test ofcausation is morphing into a less scrutinizing means-end test ofrationality. This shift was evident in the recent case of Citizens’Alliance for Property Rights v. Sims. In that case, Washington courtsfound the government’s…

Continue Reading New Paper On Washington State’s Approach To Nollan/Dolan Exactions – Do Generalized Assessments Satisfy The “Essential Nexus” Test?

Recently, the owners of vacation cabins located on leased land in a state park on the island of Kauai filed a cert petition which asks the U.S. Supreme Court to review an unpublished decision of the Hawaii Intermediate Court of Appeals which held that the State did not run afoul of the Takings Clause when it required the owners to surrender their cabins at the end of the lease.

The trial court determined that the lessees had no property interest when their leases expired. The Hawaii Supreme Court declined review of the ICA’s disposition.

The lessees’ petition is available here, and presents the following question:

QUESTION PRESENTED

The State of Hawaii owns land in Kokee State Park on the island of Kauai. Petitioners, have leasehold estates in parcels on the land and own private cabins thereon. Each Petitioner, or his or her predecessor in interest, bought, built or inherited…

Continue Reading New SCOTUS Cert Petition From Kauai: Is Surrender Clause In State Lease A Taking?

Statelocalcover_1_2010_small The most recent edition of State & Local Law News has an article summarizing the arguments in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). 

That case, which has been argued and is currently awaiting disposition by the Supreme Court, asks whether a state court is constrained by the Takings and Due Process clauses from rewriting the common law rules of property. [Disclosure: we filed an amicus brief in the case supporting the property owners.]

In Drawing a Line in the Sand: Stop the Beach Renourishment, Inc. v. Florida Dep’t of Envtl. Protection, six authors of amici briefs in the case — including me — summarized their arguments. I focused on the “background principles” issue, and the notion that certain common law aspects of property are beyond the reach of state court redefinition:

The “judicial takings” question in…

Continue Reading New Article On Florida Beach Judicial Takings Case

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