December 2012

An opinion worth reading. In Galleon Bay Corp. v. Bd. of County Commissioners, No. 3D11-1296 (Dec. 5, 2012), the Florida District Court of Appeal (Third District), held that the trial court improperly applied the “investment-backed expectations” prong of the Penn Central factors, by not treating the parcels at issue separately from the plaintiff’s other parcel which it had developed “decades earlier.” The appeals court reversed the judgment for the County, and remanded the case, instructing the trial court to enter judgment in favor of the property owner and hold a trial on compensation. It’s a long fact pattern with a relatively short opinion. Check it out.

Pay particular attention to note 9 on page 16, for a flavor of what just might have added to the court of appeals’ determination that the law was on the property owner’s side. The trial court initially ruled in favor of the property…

Continue Reading Fla App Applies Penn Central, Finds A Taking: Investment-Backed Expectations Measured Parcel-by-Parcel, Not Against All Property Owned

In Hall v. Dep’t of Land and Nat. Resources, No. 12-0000061 (Dec. 14, 2012), the Hawaii Intermediate Court of Appeals held that a development proposed by the historic Kawaiahao Church in Honolulu is not exempt from historic preservation review, and the state should have required the preparation of an archaelogical inventory survey prior to the State Historical Preservation Department’s check off on the project.

The ICA analyzed the case under the tests set out in the Hawaii Supreme Court’s recent decision in Kaleikini v. Yoshioka, 283 P.3d 60 (2012), in which the court held that archaeological review, if required, must come before agency approval.

More to follow.

Hall v. Dep’t of Land and Nat. Resources, No. CAAP-12-0000061 (Haw. App. Dec. 14, 2012)Continue Reading HAWICA: Kawaiahao Church Development Not Exempt From Archaeological Review

That was quick. As we predicted (and urged), the Hawaii Supreme Court today without comment rejected the County of Maui’s application for a writ of certiorari, which asked the court to review the Intermediate Court of Appeals decision in in Leone v. County of Maui, No 29692 (June 22, 2012) (Supreme Court order here).

[Practice sidebar: Hawaii has one intermediate appellate court (so we don’t have lower court “splits,” and under Hawaii appellate procedure, the Supreme Court may “accept” or “reject” an “application” for cert based on whether the ICA “gravely erred.”]

In Leone, the ICA held that property owners alleging a Lucas regulatory taking are not required to seek an amendment to the Community Plan (in Maui County, the CP is like a General Plan in other jurisdictions) in order to ripen their takings claims. A CP amendment is a legislative act, and plaintiffs are…

Continue Reading HAWSCT Rejects County’s Argument That Property Owner Must Change The Law To Ripen Takings Claim

We always like reading amicus briefs filed by the Center for Constitutional Jurisprudence because they tend to focus on the history of whatever issue they are addressing, and the brief they (along with the Atlantic Legal Foundation and the Reason Foundation) filed in in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012) fits the bill. Check it out.

This looks like the final amicus brief supporting the property owner/petitioner. Now we wait for the respondent’s brief (and amici). Stay tuned.Continue Reading One More Top Side Amicus Brief In Koontz

Well, this is unusual, althought it should not be. 

In this short order, the Supreme Court of Ohio has held the state’s Department of Natural Resources in contempt for not moving fast enough to compensate property owners whose land had been flooded. (In California, that would be called “normal planning delay.”)

In Ohio, what would be called an inverse condemnation or regulatory takings claim in other jurisdictions takes the form of a mandamus petition to compel the government to institute eminent domain. Several property owners instituted a mandamus action after their lands were flooded because the state did not draw down the level of a lake, despite its ability to do so. In 2011, the Ohio Supreme Court issued the writ, ordering the Department to institute eminent domain proceedings “immediately” amd tale steps to compensate the owners. See State ex rel. Doner v. Zody, 958 N.E.2d…

Continue Reading Ohio Supreme Court Finds Dep’t of Natural Resources In Contempt For Dragging Its Feet In Compensation

In the nearly eight years since the Supreme Court’s infamous decision in Kelo v. City of New London, the Court has yet to provide any clarification about what it meant when it said that a taking will not survive public use analysis when the proffered justification is a pretext to private benefit. Despite massive uncertainty and conflicting rulings from the lower courts about how to apply this standard and more than a few requests for guidance (including our own), the Court has not taken up a case.

Here’s the latest, a cert petition out of Guam, that we think stands a pretty decent chance to grabbing the Court’s attention. The Question Presented sets out the facts well, so we won’t go into the details of the case, but let’s just say that this condemnation doesn’t just seem to lack a public purpose, or appear that it was for…

Continue Reading New Cert Petition: Private Purpose Pretext In Economic Development Takings

Here’s what we’re reading today:

  • We know you probably read Professor Gideon Kanner’s blog daily, but in case you missed his thoughts about the U.S. Supreme Court’s opinion in Arkansas Game and Fish Comm’n v. United States, No. 11-597 (Dec. 4, 2012), please read them here. Today’s must-read.
  • Today is Pearl Harbor day, so we are linking to our in-person report from last year’s remembrance ceremony.
  • Check out the cert petition in Johnson v. Paynesville Farmers Union Cooperative Oil Co., No. 12678 (Nov. 29, 2012). The question presented is somewhat opaque and we don’t think there’s much chance that it will grab the Court’s attention, but it does involve an interesting issue about pesticide drift and organic certification. The petition challenges the Minnesota Supreme Court’s dismissal of an organic farmer’s nuisance and negligence per se claims because federal regulations do not regulate pesticide drift. Here’s the Court’s

…
Continue Reading Friday Round-Up: Flood Takings, Pearl Harbor, Organic Farming

chinagrave

China again. And this time, the holdout is not going to die (what we fear happens to those who dare object there), but is already gone. According to this story (more photos inlcuded), “Developers bought a cemetery and paid villagers to relocate the remains of their loved ones. All except one. The grave has not been moved as the family is waiting for an auspicious date to do so and a reason from the developer for choosing this site, according to the owner of the tomb. The developers are now offering to pay nearly $160,000 to have it moved. The building is scheduled to be completed by April 2013, but for now, construction continues around the gravesite.”

Life imitates art from the Clancy Brothers. But it’s not just in China that these things happen. See these examples from Chicago and Honolulu. Continue Reading They Really Are Moving Father’s Grave To Build

We’ve talked California raisins before, but the latest is about oysters. Specifically, an oyster farm in a Marin County National Seashore, the Drakes Bay Oyster Company.

Interior Secretary Ken Salazar visited the place a couple of weeks ago to see if he would be willing to extend the farm’s existing license, which has been in place for decades. No deal, he concluded, despite lobbying efforts on the owner’s behalf by powerful U.S. Senator Dianne Feinstein. He ordered the farm to shut down in 90 days. 

When that failed, the next step was federal court, and earlier this week the oyster farmer sued in U.S. District Court in San Francisco. Here’s the complaint, if you want to read the details. The claims center on federal environmental laws and the Administrative Procedures Act, but yes, there’s the obligatory takings claim, alleging that the order to cease operations was a taking…

Continue Reading What’s The Beef In California Oyster Dispute?