A good read from the LA Times, “DWP lawsuits over water rights may put the squeeze on Mammoth Lakes,” about Los Angeles’ Chinatown-esque efforts to (further) control water rights in the Eastern Sierra. For another angle on a related issue, see this post from the Legal Planet blog.
See, Hawaii doesn’t have the only wild water law issues.Continue Reading “Forget it Jake, it’s Chinatown”
The Courrt has denied certiorari in Corboy v. Louie, No. 11-336, the case asking the Court to review the Hawaii Supreme Court’s dismissal of a challenge to the property tax exemptions conferred on lessees of Hawaiian Homesteads. The petitioners claim this is an unconstitutional race-based classification, but the Hawaii Supreme Court dismissed for lack of standing (the petitioners had not applied for Hawaiian Homestead leases because they are ineligible to receive them).
Here’s the order, in the event you want to see it for yourself.
This case had been kicking around on the docket since December 2011, and it was only on the Term’s last day that the Court finally said no. Continue Reading Supreme Court Declines To Review Challenge To Native Hawaiian Property Tax Exemptions
We haven’t followed the Obamacare cases except as interested observers, and have largely avoided digging deep into the opinions, preferring to allow minds immeasurably superior to ours to provide the high-altitude view. However, we naturally scanned the majority opinion for any tie-in to our favorite topic, eminent domain.
Starting on page 33, the Chief Justice writes about the “functional” approach to legislative labeling, pursuant to which the majority concluded that the requirement to purchase insurance (the “mandate”) was a constitutional exercise of Congress’ taxation power, even though Congress did not call it a “tax,” and indeed packaged and sold it as anything but a tax. The majority concluded, “[t]hat constitutional question [is] not controlled by Congress’s choice of label.” Slip op. at 34. The opinion then provides examples where the Court held that particular exactions “not labeled taxes nonetheless were authorized by Congress’s power to tax,” because the Court…
Here’s the petitioner’s merits brief in Arkansas Game & Fish Comm’n v. United States, No. 11-597 (cert. granted Apr. 2, 2012), a case from the Federal Circuit that we’ve been watching.
In a 2-1 decision, the Federal Circuit held that flooding caused by the Corps of Engineers was only temporary, and did not result in a compensable taking merely because it was temporary and eventually stopped, and “at most created tort liablity.” The dissenting judge concluded that temporary flooding was no different in kind than more permanent flooding that occurs in other inverse condemnation cases, and regularly results in awards of compensation. We posted the Federal Circuit’s opinion here.
The Question Presented is straightforward:
Whether government actions that impose recurring flood invasions must continue permanently to take property within the meaning of the Takings Clause.
The Supreme Court’s docket report is here.
Here’s a key amicus brief in support of the cert petition in CCA Associates v. United States, No. 11-1353 (cert. petition filed May 8, 2012). In that case, the Court of Federal Claims concluded that it was a taking for Congress to prohibit a property owner from prepaying a government-issued mortgage, which required it to continue to allow use of its property as low-income housing. But the Federal Circuit reversed, and then denied en banc review.
The amicus brief of the National Federation of Independent Business Small Business Legal Center, the Cato Institute, and the Center for Constitutional Jurisprudence addresses three Questions Presented:
1. In conforming to the “parcel as a whole rule” propounded in Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978), does Tahoe-Sierra Preservation Council, Inc., v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002) require conflation…
Continue Reading Amicus Brief: A Temporary Regulation Can Work A Penn Central Taking
Lost in all the excitement over today’s ruling in the the Obamacare case that turned out not to be today, is this little tidbit for those from Hawaii. The Court yet again did not make a decision whether to grant cert in Corboy v. Louie, No. 11-336, which had been scheduled for last Thursday’s conference. This is the case asking the Court to review the Hawaii Supreme Court’s dismissal of a challenge to the property tax exemptions conferred on lessees of Hawaiian Homesteads. The petitioners claim this is an unconstitutional race-based classification, but the Hawaii Supreme Court dismissed for lack of standing (the petitioners had not applied for Hawaiian Homestead leases because they are ineligible to receive them).
This case was originally scheduled for the Court’s December 9, 2011 conference, but that was put off when the Court asked the Obama Administration to file an amicus brief, which…
This just in: in Leone v. County of Maui, No. 29696 (June 22, 2012), the Hawaii Intermediate Court of Appeals held that a plaintiff alleging a regulatory taking is not required to seek an amendment to a Community Plan in order to ripen her claim. A CP amendment is a legislative act, and plaintiffs are not required to try to change the law before they seeks just compensation.
The trial court determined the plaintiffs’ regulatory takings claims were not ripe because they should have tried to change offending land use regulations which allegedly deprive their property of all economically beneficial uses. The trial court’s decision is available here.
Disclosure: we filed an amicus brief in the case in support of the property owner, arguing that Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985) does not require a takings plaintiff to…
Thanks to the Land Use Prof Blog for getting the word out about the most recent documentary from filmmaker Gary Hustwit, “Urbanized,” which will have its Hawaii premier this weekend as part of Interisland Terminal‘s “Manufacturing Reality” film series.
The film examines how cities are designed — whether on purpose or though usage — and what works and what doesn’t. It covers a range of issues: zoning, architecture, mass-transit, sewage, redevelopment, sprawl, smart growth, and economic inequality. Urbanized features planners, architects, artists, and lawyers (including colleague Grady Gammage, Jr., with a different perspective on “sprawl” in Arizona), discussing their visions of urban design.
From the film’s description page:
Urbanized is a feature-length documentary about the design of cities, which looks at the issues and strategies behind urban design and features some of the world’s foremost architects, planners, policymakers, builders, and thinkers. Over half the world’s population …
Continue Reading Honolulu Premiere: “Urbanized” – Designing Cities, Working Cities
A must read: our Owners’ Counsel of America colleague Michael Rikon, the doyen of New York’s eminent domain bar, has published “I Represented The Devil Of Brooklyn,” in the Practical Real Estate Lawyer. As Mike writes, “it wasn’t a demonic fight in front of the hot dog line at Nathan’s in Coney Island … this legal tale is about a property owner in Prospect Heights who had the absolute gall to object to the taking of his property for an arena and related real estate development by a well-connected real estate developer.”
If that sounds familiar, it is: Mike represented Daniel Goldstein, the plaintiff-in-chief in the multi-jurisdiction Atlantic Yards eminent domain fight, and the protagonist of the documentary Battle for Brooklyn in the final condemnation case in New York’s courts. Other lawyers had handled Goldstein’s attempt to stop the condemnation and the environmental challenges, and…
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Stream the podcast here:
(43 minutes) – or download it here.Continue Reading Oral Argument Summary: The Next Big Hawaii Water Law Case?