2013

Here’s one that’s not a land use case, but since it involves procedural due process, is one that you land-usey types might find worthwhile.

Minton v. Quintal, No. SCWC-11-0000317 (Dec. 13, 2013) involved a claim by two stagehands at Honolulu’s Neil S. Blaisdell Center, owned and operated by the City and County of Honolulu.

Sidebar: perhaps the NBC’s primary claim-to-fame is that it was the venue for Elvis’ Aloha From Hawaii concert in 1973. The NBC’s second best claim-to-fame is that is was the venue where we sat for the Hawaii bar examination back in the day.

But back to our story. The two stagehands had a series of run-ins with actor-singer Nephi Hanemann during rehersals for a benefit concert. So far, a dust up of this sort would not be terribly noteworthy, or result in a lawsuit. But Nephi Hannemann’s brother is Mufi Hannemann, who was at…

Continue Reading HAWSCT: Right To Pursue A Profession Is A Liberty Interest, Protected By Due Process

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…or at least an appeal from a contested case.

The Hawaii Supreme Court has issued its latest opinion in the apparently eternal metaphysical question of the circuit courts’ appellate jurisdiction to review decisions under the Hawaii Administrative Procedures Act, Haw. Rev. Stat. § 91-14 of state and county agencies acting in their quasi-judicial capacities.  

As we’ve discussed many times, that statute gives the circuit courts jurisdiction to review agency final decisions in “contested cases” (agency hearings which are required “by law,” i.e., rule, statute, or due process requirements, and that determine the “legal rights, duties, or privileges of specific parties”).

“Contested cases” do not need to be labeled as such, but are fairly easy to identify: for the most part, they look like trials (witnesses, evidence, and the like). But not always so: pretty much any agency ruling in a that is the result of a hearing in…

Continue Reading HAWSCT: Demand A Contested Case, And There’s A Good Chance You’ll Get One

Cover_42_3_ The Urban Lawyer, the law review produced by the ABA Section of State & Local Goverment Law has published my article Recent Developments in Regulatory Takings, 45 Urban Lawyer 769 (2013).

Here’s the Introduction to the article:

THE SUPREME COURT’S 2012 TERM promised to be a banner year in regulatory takings law, with no less than three cases on the Court’s docket. In Arkansas Game and Fish Commission v. United States, a case involving a takings claim against the federal government for compensation resulting from a flood, the Court held that flooding need not be “permanent” in order to result in liability, and reinforced the principle that categorical takings are not favored, and stated that the default analysis is the multi-factored Penn Central test. In Koontz v. St. Johns River Water Management District, the Court held that monetary development exactions fall within the reach of the…

Continue Reading New Article: Recent Developments in Regulatory Takings

Here’s the State of Hawaii’s Motion to Affirm, filed earlier today. This brief responds to the Jurisdictional Statement, filed two months ago in the case now pending in the U.S. Supreme Court which challenges the 2012 Hawaii Reapportionment Plan. The State has hired some very big gun Supreme Court litigators (at who knows what cost to Hawaii taxpayers) to try and convince the Court that this case isn’t worthy of further review.

We represent the appellants in the case, who assert that the 2012 Plan’s exclusion of 108,767 military, military families, and university students from Hawaii’s population count falls short of Equal Protection’s requirement of representational equality. We won’t go into the details of the arguments in the Motion to Affirm, since you can read it yourself. Besides, we will be filing a short opposition with the Court, which will contain our responses. 

After the briefing is complete…

Continue Reading State’s Motion To Affirm In Hawaii Reapportionment Case

In Stueve Bros. Farms, LLC v. United States, No. 21013-5012 (Dec. 11, 2013), the Federal Circuit concluded that the government is not liable for a physical invasion taking when a dam enlargement project raised the maximum flood line on the plaintiff’s land by 10 feet, because there has yet to be an actual physical invasion of the property.

The landowner limited its claim to a physical taking, and did not make any claim for a regulatory taking (see slip op. at 5 n.1), and the court rejected each of its arguments that the totality of the circumstances added up to a physical take, because the government has not caused any flooding outside the scope of its previously-acquired flowage easement. The court acknowledged that the Corps of Engineers’ dam improvement project has been ongoing for 20 years, and that the Corps intended at one point to acquire a flowage…

Continue Reading Fed Circuit: There Must Be Actual Flooding For A Physical Taking

Homes. Tiny homes. Things have come full circle. Because according to this report from The Day, New London’s daily paper (“Take the steps to pursue Fort Trumbull dreams“), the city’s mayor, in order to remove the “stain” of the l’affiare Kelo, has proposed a “tiny house neighborhood” on the leftover parts of the now-vacant land where regular-sized homes were bulldozed as a Public Use. In other words “Little Pink Houses” were taken from their owners so that even smaller homes can be built in their place:

Mayor Finizio said he would like New London to symbolically overturn Kelo by undertaking a true “public use” of the seized private properties. He offered as an example a parking garage, under discussion recently as a means of meeting the parking demands generated by Electric Boat’s offices in the former Pfizer buildings, the one major project resulting from…

Continue Reading Eminent Domain’s Circle Of Life In New London: Guess What Use For The Kelo Property Is Being Proposed?

Last we checked in, the California Supreme Court had agreed to review the Court of Appeal’s decision in California Building Industry Ass’n v. City of San Jose (6th District June 6, 2013), which held that under rational basis review (and not heightend scrutiny) the city of San Jose’s “inclusionary housing” ordinance might survive challenge because it was designed to promote the development of affordable housing, and not to mitigate the impacts of market priced housing.

Yesterday, the CBIA filed its Opening Brief in the appeal, which presents a single Question Presented:

Must inclusionary housing ordinances which exact property interests or in-lieu development fees as a condition of development permit approval be reasonably related to the deleterious impact of the development on which they are imposed, as set forth in San Remo Hotel L.P. v. City & County of San Francisco, 27 Cal. 4th 643, 670 (2002)?

The brief answers …

Continue Reading Opening Brief In Cal Supreme Court “Inclusionary Housing” Exactions Case

Be sure to check out this interview with a person we’re proud to call a friend and a colleague, Gideon Kanner, in the most recent edition of Right of Way magazine, a publication of the International Right of Way Association.

“A Fierce Advocate for Just Compensation” is a sitdown with Professor Kanner, and covers a lot of ground, so to speak. The entire piece is worth reading, but here’s what a colleague pointed out as perhaps the best part:

If you represent a property owner in an eminent domain case, particularly an inverse condemnation one, you must understand that your client is persona non grata or the law’s “poor relation,” as U.S. Supreme Court Chief Justice William Rehnquist once said. The California Supreme Court once stated in an opinion that it was its duty to keep condemnation awards down, which is a hell of a hurdle to overcome when your task is to persuade the Justices that your client was undercompensated by the court below. So in those not-so-good ol’ days of the 1960s, when I walked into court, I had my job cut out for me. Sometimes, the hostility emanating from the bench was palpable. As Alex Kozinski, Chief Judge of the U.S. Court of Appeals for the 9th Circuit once noted, what property owners in this field often get from the bench is “thinly-disguised contempt.” This is not a line of work for the faint of heart.

We agree.
Continue Reading Why We Fight: An Interview With Gideon Kanner, “A Fierce Advocate for Just Compensation”

14.AGRHIOne of the hottest issues in Hawaii at the moment is agriculture. From the spreading county restrictions on GMO crops and pesticides, to water issues, to estate planning, the issues impacting farmers, ranchers, and owners of Ag land are growing. 

On January 8 and 9, 2014, the Seminar Group is putting on what we hope will become a regular event – the Hawaii Agriculture Conference. This two-day conference is for both farmers and lawyers, and covers these issues and others:

  • Contracts and marketing methods for Hawaii agriculture products
  • The Hawaii coffee industry
  • GMO vs organic
  • Zoning and land use issues
  • Exporting issues
  • Water rights
  • Labor law for farmers and ranchers
  • Best husbandry practices
  • Crop loss insurance

I’m the Planning Co-chair, along with David Bateman, a retired lawyer who also happens to be the owner of Heavenly Hawaiian Farms, an award-winning coffee farm on the Big Island. We’ve…

Continue Reading Mark Your Calendars: Hawaii Agriculture Conference, January 8-9, 2014