2011

If you are wondering why the doors to most state, county, and city offices are locked today, remember that it isn’t another “furlough Friday,” or the day HGEA is voting on its new contract. No, today is the day that Hawaii celebrates Good Friday.

If you ask how “a religious holiday observed primarily by Christians commemorating the crucifixion of Jesus Christ and his death at Calvary” squares with the Establishment Clause of the First Amendment, let us explain O Unenlighted One. Here’s our annual recounting of the how’s and the why’s.

Good Friday is a legal holiday in the State of Hawaii pursuant to Haw. Rev. Stat. § 8-1. The day of the crucifixion was originally made a holiday in 1941 by the Territorial Legislature. The statute was recodified upon statehood in 1959, and the holiday has been confirmed via Haw. Rev. Stat. § 89-1, …

Continue Reading Hawaii’s Good Friday Holiday – What’s Up With That?

Here are the final four briefs in Comm’n on Ethics of the State of Nevada v. Carrigan, No. 10-568 (cert. granted Jan 7, 2011). In that case, the U.S. Supreme Court is considering whether a state statute which requires elected officials to recuse themselves from considering matters on which they appear to have conflicts of interest impermissibly infringes upon a city councilman’s First Amendment rights.

As we wrote in this month’s Zoning & Planning Law Report, this case is worth following since if the Court adopts the scrict scrutiny rationale of the Nevada Supreme Court (which invalidated Nevada’s ethics laws under the First Amendment), all similar conflict-of-interest laws could be subject to similar — and quite often “fatal” — scrutiny.

The Court will hear oral arguments next week, Wednesday, April 27, 2011.

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Continue Reading Last Briefs In SCOTUS Ethics Case: Does Elected Official With A Conflict Of Interest Have A Right To Vote Anyway?

Comes the sad news that Jess S. Jackson, of the renown Kendall-Jackson wine label, has passed away in his Northern California home. Details here (K-J website), here (San Francisco Chronicle), and here (Santa Rosa Press Democrat). Jackson’s biography reveals a life lived very large: winemaker, business mogul, philanthropist, race horse owner.

Add to that list takings lawyer. Before he went full-time into the wine business, Jackson’s law practice included representing property owners in condemnation and regulatory takings cases. Gideon Kanner, a long-time colleague, adds his rememberances here.

Property mavens, remember these cases?

  • Kinzli v. City of Santa Cruz, 818 F.2d 1449 (9th Cir. 1987).
  • Del Monte Dunes of Monterey, Ltd. v. City of Monterey, 920 F.2d 1496 (9th Cir. 1990).
  • California Coastal Comm’n v. Granite Rock Co., 480 U.S. 572 (1987).
  • United States v. 100

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Continue Reading Jess Jackson: Winemaker Extraordinaire, And Takings Lawyer

The Center for Constitutional Jurisprudence and the Reason Foundation have joined the list of parties (us included) who submitted briefs supporting the cert petition in Guggenheim v. City of Goleta, No. 10-1125 (petition for cert. filed Mar. 11, 2011). Their brief is available here.

In that case, California mobile home park owners are asking the Court to review the decision of a sharply divided en banc Ninth Circuit which held that Goleta’s mobile home rent control ordinance did not work a regulatory taking under Penn Central. because the Guggenheims purchased their mobile home park after it was rent regulated. The brief argues:

Although Amici agree that the Ninth Circuit decision below completely misconstrued this Court’s decision in Palazzolo, the Ninth Circuit was able to do this end-run of Palazzolo because of the underlying incoherence in the test that was first set out in Penn…

Continue Reading Another Guggenheim Amicus Brief: Ninth Circuit “End-Run” Around Palazzolo

Here’s another of the amicus briefs in Guggenheim v. City of Goleta, No. 10-1125. The brief of the National Association of Home Builders argues:

The Ninth Circuit in Guggenheim has rejected the widely held principle that regulatory takings claims run with the land for all subsequent title holders. As a result, the availability of the Fifth Amendment has, for all practical purposes, been eliminated for an entire class of property owners. The Guggenheim decision also creates adverse policy results for both property owners and local communities.

Massachusetts’ high court addressed this issue in Lopes v. City of Peabody, 629 N.E.2d 1312 (Mass. 1994). In Lopes, the court upheld the property owner’s regulatory takings case against an existing zoning ordinance even though the owner has purchased the land with full knowledge of environmental buffers that would limit the property’s development potential. Id. at 1313. The court explained…

Continue Reading Amicus Brief In Guggenheim: Takings Claims Run With The Land

“This is not what we normally do. We do land use, real estate, development law. Heck, I can get you zoning to be an airport if that’s what you want. But I don’t represent inmates, I don’t represent people charged with crime, I don’t represent criminals.”

                                     — Land Use attorney Joshua Safran

In most cases, the worlds of criminal law and land use law never meet. But in Crime After Crime, a documentary that is an official selection in the 2011 Sundance Film Festival (among other international festivals), two land use lawyers including our ABA State & Local Government Law Section colleague Nadia Costa (Vice-Chair of the Section’s Land Use Committee), enter a different milieu:

CRIME AFTER CRIME is the exclusive documentary film on the legal battle to free Debbie Peagler, a woman imprisoned for over a quarter century due to her connection to…

Continue Reading Land Use Lawyers, Criminal Justice, And Sundance

Beginning at 9:00 a.m. Central Time today, the Texas Supreme Court heard oral arguments in Severance v. Patterson, No. 09-0378 (Nov. 5, 2010), the case in which the court held 6-2 that Texas does not recognize a “rolling” public beachfront access easement, without proof of prescription. In March, the court agreed to rehear the case.

Launch the archived video feed in a separate window by clicking this link, then follow the live blog archive below, where we added our thoughts and background. Our Damon Key colleague Rebecca Copeland provided Texas background (she practiced in the Texas appeals courts before joining our firm, so knows what “writ ref’d n.r.e.” means).

Background on the case, including the briefs the the court’s original opinion, are posted here.

Continue Reading Live Blog of Texas Supreme Court Argument In Severance (Beach “Rolling Easement” Case)

On Tuesday, April 19, 2011 starting at 9:00 a.m. Central Time, the Texas Supreme Court will hear oral arguments in Severance v. Patterson, No. 09-0378 (Nov. 5, 2010), the case in which the court held 6-2 that Texas does not recognize a “rolling” public beachfront access easement, without proof of prescription. Thus, the public does not gain an easement over private property upon sudden changes in the shoreline. In March, the court agreed to rehear the case. [Disclosure: my colleagues at Pacific Legal Foundation represent the property owner.]

St. Mary’s law school will be live streaming the arguments here.

Texas is one of those states (like Hawaii) that under common law now treats the vegetation line as the public-private boundary on beaches. (Technically, in Hawaii it isn’t the veg line, but rather the upper reaches of the high wash of the waves, as evidenced by the…

Continue Reading Argument Preview: Texas Supreme Court To Hear Arguments In Severance – Private Beaches, “Rolling” Easements

What we are reading today:

  • Should the Courts Help Los Angeles Commit Fiscal Suicide? – Gideon Kanner’s takedown of the recent California Court of Appeal decision in City of Los Angeles v. Superior Court, No. B225082 (Apr. 12, 2011), which held that in order to make out a claim for inequitable precondemnation activities, the city must actually have filed (or be contemplating filing) an eminent domain action. Because it hadn’t, the property owner could not get summary judgment on the Klopping claim. But as one colleague noted, if the city was not buying up these properties around LAX for a public purpose, just what was it doing? Also worth reading is Brad Kuhn‘s summary and analysis of the case here.

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Continue Reading Monday Round-Up

If you are a fan of Penn Central‘s “investment-backed expectations” factor, or the “notice” defense thought to be put to rest in Palazzolo v. Rhode Island, 533 U.S. 606 (2001), this is your week.

Earlier this week, we posted our amicus brief in Guggenheim v. City of Goleta, No. 10-1125, which argued the Ninth Circuit got it wrong when it held the fact that the property owners purchased their property subject to rent control was “fatal” to their takings claim. According to the Ninth Circuit’s en banc majority, the Guggenheims could not have investment-backed expectations because the rent control ordinance predated their purchase. Yesterday, we posted the city’s BIO, which asserted the Ninth Circuit didn’t “flout[the Supreme] Court’s decision in Palazzolo v. Rhode Island, 533 U.S. 606 (2001).”

Here’s the latest, the amicus brief of Equity Lifestyle Partners supporting the Petitioner. ELS owns hundreds …

Continue Reading Amicus Brief In Guggenheim: Ninth Circuit “Did Violence” To Penn Central Test