2013

Remember the case from late last year in which the Honolulu Star-Advertiser brought a freedom of information/open records lawsuit against the Hawaii governor to force him to disclose the names of judicial nominees? Abandoning the practice of his two predecessors, the Governor refused to release the list of names of nominees transmitted to him by the Judicial Selection Commission. The trial court ruled in favor of the newspaper and ordered disclosure, and assessed the Governor attorneys fees and costs. Hawaii law makes an assessment mandatory in open records cases. [Disclosure: we represent the Star-Advertiser in this case.]

Well, last week, the Hawaii Intermediate Court of Appeals, in this Summary Disposition Order, rejected the Governor’s appeal of the assessment. The court found no merit in most of his appeal. Judge Ginoza dissented. We won’t comment since we’re in the case, but here is the report on the decision (“Ruling…

Continue Reading HAWICA: Attorneys Fee Award In JSC List Case Was Reasonable

Before we get to the California Supreme Court’s opinion in Sterling Park, L.P. v. City of Palo Alto, No. 204771 (Oct, 17, 2013), here’s what we think is the money quote:

For these reasons, we believe Fogarty and Williams correctly interpreted [Cal. Cov’t Code] section 66020. The statute governs conditions on development a local agency imposes that divest the developer of money or a possessory interest in property, but not restrictions on the manner in which a developer may use its property. [Cal. Gov. Code] Section 66499.37 governs the latter restrictions.

Slip op. at 17.

The court backed into defining “exaction,” since the case involved the choice of which statute of limitations applied to the plaintiff’s challenge to the city’s requirement that developers who want to build (in this case, a 96 unit condominium project) must either set aside a certain percentage of units for sale…

Continue Reading Cal Supremes: “Exaction” Includes Demand For Land Or Money

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The last couple of days, we’ve returned to Williamsburg, Virginia to attend the annual Brigham-Kanner Property Rights Conference at the William and Mary Law School.

The Conference is the annual gathering of legal scholars and practitioners who focus on property law and property rights to celebrate the award the B-K Prize to “an individual whose scholarly work and accomplishments affirm that property rights are fundamental to protecting individual and civil rights.” The list of past winners is a who’s who of property scholars and includues James Ely, Richard Epstein, Carol Rose, and Frank Michelman.

This year’s prizewinner is Columbia Law’s Thomas Merrill. The Conference panelists have thus far focused on his scholarship, including his landmark article on the right to exclude, titled, not surprisingly, Property and the Right To Exclude, 77 Neb. L. Rev. 730 (1998).

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Our Owners’ Counsel colleage Mark Savin speaking about “Defining the Essence of…

Continue Reading 10th Annual Brigham-Kanner Property Rights Conference And Prize – Thomas Merrill

Remember that “audacious” case filed in the Court of Federal Claims by überlawyer David Boies on behalf of Starr International seeking $35 billion in just compensation for the federal takeover of AIG?

Well, it’s moving along, and apparently is in discovery (every lawyer’s favorite part of the case). Boies sought the deposition testimony of Fed Chair Ben Bernanke about his “personal involvement in the Government’s decision to bail out American International Group, Inc. (‘AIG’) in September 2008, and his knowledge of the specific governmental actions taken to implement the bailout.” Mr. Bernanke didn’t want to testify, claiming that as a “high-level government official,” the plaintiffs had to show that the information sought was not merely relevant under the usual discovery rules, but essential to the case, not not obtainable elsewhere. I’ve got better things to do, so stop bothering me and get this information from someone else, argued…

Continue Reading Fed Cir: On Further Review, No, You Can’t Depose The Fed Chair, Even If You Are An Uberlawyer

Preamble

Last week, we posted the personalized license plates of two land use lawyer colleagues, and invited our readers to send in their own, real or imagined, promising to post the best submissions.

Before we get to those, we note the above, perhaps our favorite work of modern art, a piece titled “Preamble,” which hangs in the Smithsonian American Art Museum in Washington, D.C. Yes, those are real license plates, and when read together spell out the preamble to the Constitution. We like the piece so much, we’ve got a print hanging in our office.

Beat that, Captain Kirk!

And now, the best of the submissions from you, our readers.

License_20131011125132_65271From a condemnation lawyer, naturally.

MorelandA condemnor’s attorney?

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A lawyer who really appreciates the Religious Land Use
and Institutionalized Persons Act. As do we all.

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Straight up the middle. We like.

License_20131011173647_90009Fi Fum? A lawyer who doesn’t like…

Continue Reading Land Use License Plates Revisited

Here’s one we’ve been meaning to post for a while, if only because it presents a fascinating issue about the nature of Torrens title (so much so that we filed an amicus brief on behalf of Pacific Legal Foundation in the Intermediate Court of Appeals).

The State of Hawaii has filed an Application for a writ of certiorari, asking the Hawaii Supreme Court to review for grave error the ICA’s opinion in In re Trustees Under the Will of the Estate of James Campbell, No. 30006 (June 13, 2013).

In that case, the ICA held that the intent of the land court registration provisions in Chapter 501 of the Hawaii Revised Statutes is to “preserve the integrity of titles,” slip op. at 11, and “a certificate of title is unimpeachable and conclusive except as otherwise provided by law.” Id.  That seems straightfoward enough, as any dirt lawyer…

Continue Reading New HAWSCT Cert Application: State Not Required To Preserve Encumbrances In Land Court Registration

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There we were, attending the recent conference on “The Takings Issue,” at Touro Law School. In the parking lot, we spy this:

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Which got us to thinking: what would we put on our vanity license plate, were we inclined to do so? (Our answer at the top of this post).

And, it got us to thinking of others with land-usey plates, including this one, famously from Dwight Merriam:

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How about you, what would you put on your plate?

Use this vanity plate generator to make it, and send it our way. If we get enough, we may post ’em. Continue Reading Land Use: License Plate Edition

As we noted here, the International Academic Association for Planning Law and Property Rights, 8th Annual Conference 2014 will take place in Haifa, Israel, February 11-14, 2014. Earlier this year, we attended PLPR when it visited Portland, and it was well worth going, so the 2014 conference should be similar.

Professor Rachelle Alterman, Chair of the 2014 conference forwards this reminder:

This is a reminder that the deadline for abstract submissions for PLPR 2014 is15 October 2013. Click here for the website, here for the call for papers and here to submit your abstract now.

We are happy to announce that our opening reception will take place on 12 February and will be hosted by the Mayor of Haifa, in the historic City Hall in the Hadar mid-town area.  In addition, we will have a special pre-dinner reception on 13 February, hosted by the Bahai World Center (click here for more on the Bahai Gardens in Haifa).

Please note that we have added a new workshop to our list of optional pre-conference workshops: Workshop 5 on National Land Ownership and housing policy. Click here to see the new workshop in the list and and to submit your workshop registration form (you are welcome to resubmit if your preferences have changed).

We look forward to seeing you at PLPR 2014 Conference

Rachelle Alterman for the Local Organizing Committee

So fire up those keyboards and get to writing!
Continue Reading Reminder: Upcoming Deadline For Abstracts For Property Rights Conference

Hey, that rhymes! Today, in a not-entirely-unexpected move, the U.S. Supreme Court granted cert and agreed to review United States v. Brandt Revocable Trust, No. 09-8047 (Fed. Cir. Sep. 11, 2012).

We say not-unexpected for two reasons. First, the Tenth Circuit expressly noted its ruling created a circuit split (that’s catnip to counsel considering a petition). Second, the Solicitor General did not oppose the petitition, but agreed that it should be granted to resolve the split in the government’s favor. 

The issue in the case is whether the federal government retained an “implied reversionary interest” when it issued these patents, or whether these grants were subject only to a railroad easement. The difference is that easements may be extinguished, while reversionary interests cannot. In this case, the railway abandoned its use, after which the federal government instituted a quiet title action in federal court asserting it owned the…

Continue Reading Cert Grant In Brandt

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A big thanks to my Owners Counsel of America and ABA State and Local Government Law Section colleague Dwight Merriam for emceeing today’s well-attended double session on land use and takings law at the International Municipal Lawyers Association’s 2013 annual meeting in San Francisco. Dwight and I were joined by land use expert Cecily Barclay, who presented sessions on Harvey Cedars, while I covered Koontz and Dwight did the relevant parcel/Lost Tree sessions. Continue Reading IMLA Conference Session On Koontz, Harvey Cedars, Relevant Parcel