June 2013

The Supreme Court has denied cert in Estate of Hage v. United States, No. 12-918 (cert. petition filed Jan. 17, 2013).

That’s the case in which the Federal Circuit held that a 22-year old takings case was not ripe because even though the agency denied Hage’s every application for a grazing permit, it might issue a special use permit that might allow the use of the water he alleges was taken. The issue in the case was whether it is a taking for the government to cut off physical access to a property owner’s vested right to use water. The Court of Federal Claims awarded $4.2 million in just compensation for the taking of Hage’s water rights. But the Federal Circuit reversed because the case was not ripe.

In a different phase of the case, the U.S. District Court for the District of Nevada recently held that the…

Continue Reading Cert Denied In Western Water Rights Case

What’s the difference, if any, between a “cemetery” and a burial, and are burials in cemeteries exempt from archaeological review? That’s one of the issues the Hawaii Supreme Court agreed to review in this Order, by which it accepted the DLNR’s application for a writ of certiorari.

In Hall v. Dep’t of Land and Natural Resources, No. 12-0000061 (Dec. 14, 2012), the 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, even though the development is located in the Church’s cemetery.

The DLNR’s application posed the following Questions Presented:

Defendant-Appellee Kawaiaha‘o Church (the “Church”) is attempting to construct a multi-purpose building (“MPC Project”) on its grounds for use…

Continue Reading HAWSCT To Review Kawaiahao Church Cemetery Case

Here’s one we’ve been meaning to post for a few days. In California Building Industry Ass’n v. City of San Jose, No. H0338563 (June 6, 2013), the California Court of Appeal (6th District) held that the city’s affordable housing exaction might survive judicial scrutiny because it was designed to promote the development of affordable housing, and not to mitigate the impacts of developing market priced (“unaffordable?”) housing.

San Jose is one of the most expensive markets in the country, where homes don’t come cheap. The city’s “inclusionary housing” ordinance requires developers of residential projects of more than 20 units to set aside 15% for purchase at below-market rates by those earning no more than 110% of the area median income. Alternatively, a developer could either construct affordable housing on a different site, dedicate land, or pay an in lieu fee “not to exceed the difference between the median sale…

Continue Reading Cal App: “Inclusionary Housing” Money Exaction Might Just Survive Low-Level Scrutiny

Yesterday, the Hawaii Intermediate Court of Appeals issued an opinion in In re Trustees Under the Will of the Estate of James Campbell, No. 30006 (June 13, 2013), a fascinating case involving the nature of Torrens title. In doing so, the court rebuffed the State of Hawaii’s attempted land grab, which would have undermined the sanctity of all Land Court titles, and, in a sense, the very notion of property rights and settled expectations. The ICA also rejected the State’s attempt to transform the “public trust” doctrine into a physical servitude that would have allowed the State to flood land without consequence.

Before we go further, this disclosure: we filed an amicus brief on behalf of Pacific Legal Foundation in the case in support of the property owner.

Torrens (Land Court) Title

With that out of the way, some background. Hawaii is one of the few remaining states retaining…

Continue Reading HAWICA Thwarts State’s Massive Land Grab

Mark your calendars for July 12, 2013 for our CLE teleconference on “Supreme Court Takings: A First Look at Koontz and Horne,” sponsored by the ABA’s State and Local Government Law Section. We’ll start at 1:00 pm ET (Noon CT, 11:00 am MT, 10:00 am PT, 7:00 am HT). Here’s the program description:

In the 2012term, the U.S. Supreme Court heard arguments on two regulatory takings cases,Koontz v. St Johns River Water Management District, and Horne v. U.S.Department of Agriculture. Join our panel of legal scholars and expertpractitioners for the first analysis of these cases, and how the Court’srulings on land use exactions (Koontz), and jurisdiction (Horne) will impactyour practice.

We’ve assembled a great faculty with a mix of expert scholars and practitioners: Professor Michael McConnell (arguing counsel in Horne), Professor David Callies, W. Andrew Gowder, and…

Continue Reading Upcoming ABA CLE: “Supreme Court Takings – A First Look At Koontz And Horne”

Here’s what we’re reading today (in addition to the four unanimous Supreme Court decisions issued this morning):

Continue Reading Thursday Round-Up: A SCOTUS Losing Streak, Prune Yard II Denied, Mortgage Seizures

Here’s the cert petition filed last week which asks the Supreme Court to review the Federal Circuit’s unpublished opinion in Mehaffy v. United States (Dec. 10, 2012). In that case, the court affirmed the Court of Federal Claims’ grant of summary judgment to the government, holding that Mehaffy failed the Penn Central test solely because he purchased the property alleged to have been taken after the governmentt adopted the Clean Water Act.

The Questions Presented give some additional background:

In 1970, the U.S. Army Corps of Engineers (“Corps”) entered into an agreement that gave the Petitioner‘s predecessor in interest, Nomikano, Inc., the right to fill certain wetlands on its property. In exchange, the government obtained a flowage easement over a portion of the property. Petitioner was Secretary-Treasurer of Nomikano and involved in those negotiations. In 2000, Petitioner obtained the property. Subsequently, in 2006, he sought a permit from the Corps…

Continue Reading New Cert Petition: Do Pre-Purchase Regulations Negate A Property Owner’s Expectations?

Having now had a chance to review in detail the U.S. Supreme Court’s unanimous opinion in Horne v. U.S. Dep’t of Agriculture, No. 12-123 (June 10, 2013), we were struck by how at least one of the reactions to the decision painted it as a “narrow, specialized ruling” that’s more of a one-off, than a case with lasting impact. Maybe this is a natural result of the case being argued last of the three takings cases the Court considered this term. Or because it involves what Justice Kagan characterized at oral arguments as possibly “the world’s most outdated law.” Or because there are several very high-profile cases on the Court’s docket that everyone’s anticipating. Or maybe just because it’s about raisins.

California raisins. 

But we respectfully dissent from the viewpoint that sees Horne as the least important and interesting of the 2013 Takings trilogy, or…

Continue Reading Unanimous SCOTUS: There’s More To The Takings Clause Than Just “Just Compensation”

Generally, mere offers to purchase are not admissible in eminent domain trials to show the valuation of the property, because they may be speculative, and not related to the question of value. Pennsylvania follows that general rule.

But it’s not an absolute rule, by far. In Lower Makefield Township v. Lands of Dalgewicz, No. 33 MAP 2011 (May 29, 2013), the Pennsylvania Supreme Court (Middle District) held that the Pennsylvania Eminent Domain Code broadened the scope of what is admissible in condemnation cases, “thus easing evidentiary restrictions for determining fair market value of a property.”

The township condemned a farm to build a public golf course on the property. The Board of View determined the value was $3.99 million, and when the parties were not able to agree on compensation, off to a jury trial they went. The owner testified to several offers to purchase the property, including a…

Continue Reading Pa: Offer To Buy Is Admissible In Compensation Trial

So we’re reviewing today’s Supreme Court opinion in Horne v. U S. Dep’t of Agriculture, No. 12-123 (June 10, 2013), and we come across the Court’s description of the raisin marketing program, the New Deal-era federal statute and related regulations that determine how and when raisins are marketed and sold.

The Court’s description of the program is a libertarian’s nightmare, and reminds us that if these are the regulations that govern the growing and selling of raisins (and a wide variety of other agricultural products, see n.1 on page 3), now we are beginning to see why some decry the regulations that are being promulaged for nationalized health care:

The AMAA {Agricultural Marketing Agreement Act of 1937] does not directly regulate the “producer[s]”who grow agricultural commodities, §608c(13)(B); it only regulates “handlers,” which the AMAA defines as “processors, associations of producers, and others engaged in the handling” of covered agricultural…

Continue Reading Libertarian Nightmare: SCOTUS’s Description Of Raisin Death Panel