2012

Here’s the cert petition in a case we’ve been following that presents a question that has divided the lower courts – do the nexus and rough proportionality tests for whether a land use exaction works a taking apply to exactions of cash, or are they limited to land exactions? In St. Johns River Water Management Dist v. Koontz, No. SC09-713 (Nov. 3, 2011), the Florida Supreme Court added to the lower court split when it held under both the U.S. and Florida Constitutions that the Nollan and Dolan tests are only applicable “where the condition/exaction sought by the government involves a dedication of or over the owner’s interest in real property in exchange for permit approval; and only when the regulatory agency actually issues the permit sought, thereby rendering the owner’s interest in the real property subject to the dedication imposed.”

The property owner has now sought U.S. Supreme…

Continue Reading New Cert Petition: Nollan/Dolan Not Limited To Land Exactions

A one-time flood can result in government liability for inverse condemnation. That’s the holding of the Virginia Supreme Court in Livingston v. Virginia Dep’t of Transportation, No. 101006 (Va. June 7, 2012), in which the court reversed the trial court demurrer (dismissal of the case for failure to state a claim).

The plaintiffs claim that in building the Beltway in the 1960’s, VDOT straigtened and relocated a portion of Cameron Run, a stream feeding into the Potomac River. They also claimed that VDOT’s failed to maintain the relocated channel in the intervening years. The latter failure resulted in their homes being flooded with sewage after a massive rainfall in 2006.

The homeowner filed an inverse action in state court to recover just compenation under the Virginia Constitution, which requires compensation when private property is taken or damaged for public use. The defedants demurred, arguing that they plaintiffs lacked standing…

Continue Reading Virginia: Single Instance Of Flooding Can Support Inverse Condemnation Claim

Last week, we were on the Rick Hamada program on KHVH-AM, summing up the recent Hawaii Supreme Court oral arguments in Kaleikini v. Yoshioka, No. SCAP-11-0000611, the appeal asking whether archaeological review must be completed for the entire 20-mile length of the Honolulu rail project, or whether it can be done on a “phased” or segment-by-segment basis. (A preview and briefs are posted here.)

Here’s a “video” (no picture, this is radio).Continue Reading More Thoughts On Honolulu Rail And The Sufficiency Of Archaeological Review

SCOTUSblog has picked the cert petition in Redevelopment Authority of the County of Montgomery, Pennsylvania v. R & J Holding Co.as its “Petition of the Day” —

Issue(s): (1) Whether issue preclusion bars a takings claim based on the Fifth Amendment only where the state court expressly decides Fifth Amendment issues or, additionally, where the state court decides the same takings claim under state takings law; and (2) whether, after a federal court’s dismissal of a takings claim under Williamson County Regional Planning Comm’n v. Hamilton Bank and the assertion in state court of an England v. Louisiana State Bd. of Med. Examiners reservation, a federal court — circumventing San Remo Hotel, L.P. v. City & County of San Francisco and Williamson County — can rely on that reservation, notwithstanding its invalidity, in refusing to apply claim preclusion to bar the reasserted takings claim.

The case is…

Continue Reading Petition Arguing That Distinguishing Williamson County Results In An “Unfair Procedural Trap For Condemning Authorities Is “Petition Of The Day”

Here is the final brief (Petitioner’s response to the SG’s inviation amicus) in Corboy v. Louie, No. 11-336 (cert. petition filed Sep. 15, 2011), the case asking the U.S. Supreme 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 a Hawaiian Homestead lease).

The case was originally scheduled for the Court’s conference on December 12, 2011, but the Court postponed consideration of the case and invited the Obama Administration to weigh in with a brief, because the petition draws into question the constitutionality of the Hawaiian Homes Commission Act and the constitutionality of a part of the Hawaii Admission Act. The SG’s brief asserted that the Hawaii Supreme Court decided…

Continue Reading Final Brief In Case Challenging Hawaiian Homes Property Tax Exemption As Racial Discrimination: SG’s Assertion That HAWSCT Decision Was One Of State Law “Dead Wrong.”

Here’s more on Armour v. City of Indianapolis, No. 11-161 (June 4, 2012), the case in which a 6-3 majority of the Supreme Court held that the City’s decision to forgive the balance owing for homeowners who had not fully paid the sewer assessement, while not issuing refunds to their neighbors who had already paid in full.

The last article got us to thinking: if the primary reason that the Court held that the refusal to provide refunds was not irrational was that it was too much administrative hassle to cut the checks, doesn’t that mean the tail is wagging the dog? Aren’t the…

Continue Reading More On SCOTUS’s Property Tax (In)equality Case

This just in: the Ninth Circuit has issued an opinion in Kaahumanu v. State of Hawaii Dep’t of Land and Natural Resources, No. 10-15645 (June 6, 2012), the case challenging the State’s regulation of commercial weddings on state beaches under the First Amendment. The court mostly upheld the regulations, but struck down the power of government officials to revoke a permit and modify it.

More, after a chance to digest the opinion.

Kaahumanu v. Dep’t of Land and Natural Resources, No. 10-15645 (9th Cir June 6, 2012)Continue Reading 9th Circuit: Hawaii’s Regulation Of Commercial Beach Weddings Does Not Violate First Amendment, Except…

Watch this case: it is likely to be a landmark in Hawaii water law.

Hawaii water law cases tend to be vast adventures in history, culture, irreconcilable arguments, and oddball doctrines (e.g., appurtenant water rights are keyed to the amount of taro under cultivation at the time of the 1848 Mahele), and the appeal to be heard by the Hawaii Supreme Court on Wednesday, June 6, 2012, starting at 9:00 a.m., appears to be no different. It seems to have something for everyone: appellate jurisdiction, administrative law (the old metaphysical question of what is a “contested case”), instream flow standards, Native Hawaiian rights, and the public trust in water resources.

Here’s the description of In re `Iao Ground Water Management Area High-Level Source Water Use Permit Applications and Petition to Amend Interim Instream Flow Standards of Waihe`e River and Waiehu, `Iao, and Waikapu Streams Contested Case Hearing…

Continue Reading HAWSCT Oral Arguments: The Next Big Hawaii Water Case

That’s the essence of today’s opinion in Armour v. City of Indianapolis, No. 11-161 (June 4, 2012), in which a 6-3 majority upheld the City’s decision to forgive the balance owing for homeowners who had not fully paid the assessement, while not issuing refunds to their neighbors who had already paid in full.

The majority held that the City had a “rational basis” in effect to charge Homeowner A nearly 30 times as much for the same service as Homeowner B because it would be too much “administrative hassle” (to quote CJ Roberts’ dissent) to process refunds to those who had fully paid the assessment. Since no suspect classification was involved, the City’s actions are reviewed only for minimum rationality. Which, as we know, means “any excuse.”

For many years, an Indiana statute, the “Barrett Law,” authorized Indiana’s cities to impose upon benefited lot owners the cost of sewer…

Continue Reading SCOTUS: Property Owners Who Paid Sewer Assessements In Full Are Fools

It’s a frequent question: does appellate oral argument really matter?

We’ve always harbored the belief that it does in some cases, and if you have any doubts, look no further than today’s Ninth Circuit opinion in Nordyke v. King, No. 07-15763 (June 1, 2012), where the en banc court essentially concluded that the issue (whether a county ordinance that makes it a crime to possess a firearm at the County Fairgrounds violates the Second Amendment rights of gun show exhibitors) was moot because the county’s attorney at oral argument informed the court that the county now interpreted the ordinance to prohibit only “actual possession” of a gun, and not to bar display of a “properly secured firearm,” and that subject to this limitation, gun shows can take place at the fairgrounds. Under that interpretation, the ordinance does not ban guns and is only a reasonable regulation.

Three judges…

Continue Reading Does Appellate Oral Argument Matter? You Bet