January 2014

The Hawaii Supreme Court has issued an opinion that is very good for property owners and anyone who must use the administrative appeals process. [Disclosure: we represent the prevailing Petitioner in this case.]

In Kellberg v. Yuen, No. SCWC-12-0000266 (Jan. 22, 2014), the unanimous court, in a detailed opinion by Justice Pollack, held that a person who challenged the County of Hawaii’s admittedly illegal subdivision of a neighboring parcel need only appeal to the Board of Appeals from the “final” subdivision approval, and not a decision made months later. The court also held that if an agency believes that its decision must be appealed via its administrative process, it has an obligation to say so in a clear way:

If the goal of the exhaustion doctrine is to redirect grievances to their proper forum, then such a goal is not served by fostering uncertainty over the Director’s decisions and…

Continue Reading HAWSCT: Triggers To Administrative Appeals Must Be Clear And Noticed

Our Latin cousins warned us long ago homo sapiens non urinat in ventum (“a wise man does not pee into the wind”) but such wisdom doesn’t prevent us from trying at times to buck the conventional thinking. Because sometimes, you don’t know which way the wind is blowing until you go outside and actually feel the breeze. 

Today, the U.S. Supreme Court told us. In a one-line order, the Court affirmed the three-judge U.S. District Court’s ruling that the 2012 Hawaii Reapportionment Plan, which excluded active duty military, military families, and students who do not pay resident tuition from the population basis, did not fall short of Equal Protection’s requirements. See also SCOTUSblog’s “Hawaii Redistricting Upheld.” The 2012 Plan treats these classes as residents who have not exhibited the intent to remain in Hawaii “permanently.” The Court also affirmed the 2012 Plan’s very large (44% and 21%)…

Continue Reading Supreme Court Upholds Hawaii Redistricting Plan

Next week, we’ll be in New Orleans for the 2014 edition of the ALI-CLE Eminent Domain program, now in its 31st year. 

As usual, my Owners’ Counsel colleagues Leslie Fields and Joe Waldo (the programming co-chairs) have put together a fantastic 2.5 day of programming, taught by expert faculty.  At 11:00 a.m. on the first day of the program, I will be joining Professor James Ely to speak about “The Full and Perfect Equivalent for Just Compensation: The Historical Context and Practice.” 

Should be fun. If you are not joining us in-person, ALI-CLE is producing it as a live webcast, and will make the coursebook and video and audio available for later listening or viewing. 

More details here, or download the brochure here, or below. 

31st Annual Eminent Domain and Land Valuation Litigation, ALI-CLE Program (CV023) (Jan. 23-25, 2014) New Or…

Continue Reading 31st Annual ALI-CLE Eminent Domain And Land Valuation Litigation (New Orleans)

In Powell v. County of Humboldt, No. A137238 (Jan. 16, 2014), the California Court of Appeal held the County’s demand that landowners who sought an after-the-fact building permit for a carport and porch for their mobile home dedicate an overflight easement for the nearby Eureka airport did not run afoul of Nollan–Dolan–Koontz. 

The court concluded that the overflight easement did not consitute a per se physical taking of the Powell’s property, and thus they did not meet that part of the NDK standard which prohibits the conditioning of a permit on the surrender of the right to compensation for a taking. Here, the court held, the Powells did not show that the easement was a taking. See slip op. at 15. Although property owners generally have airspace rights, there is no right to exclude aircraft from the “navigable airspace above their property in accordance…

Continue Reading Cal App: County Can Condition Building Permit On Landowner Allowing Aircraft Overflight Easement

Update: More thoughts here, after having heard the argument recording, available here:

12-1173

Here’s the transcript from today’s oral arguments in Marvin M. Brandt Revocable Trust v. United States, No. 12-1173. That’s the case in which the Court is considering the meaning of the term railroad “right of way” as used in an 1875 federal statute. 

We were going to review the transcript and then post some thoughts, but the speedsters at SCOTUSblog beat us to it with “Argument recap: Oh give me land, lots of land…,” wherein they report that the arguments were a “seminar-like hour,” where Justice Breyer repeatedly disclaimed knowledge of his law school Property class basics. One thing we noted right off the bat in our quick skim of the transcript was that Justice Scalia must’ve been chapped about something, because no sooner did petitioner’s counsel begin, than the Justice interrupted…

Continue Reading Transcript In Brandt: Pay Attention In Property I

Tomorrow, Tuesday, January 14, 2014, the U.S. Supreme Court will hear arguments in Marvin M. Brandt Revocable Trust v. United States, No. No. 12-1173. That’s the case in which the Court is considering the meaning of the term railroad “right of way” as used in an 1875 federal statute. 

As our amici brief argues, if the Court accepts the government’s theory in the case, it could wipe out an entire class of rails-to-trails takings cases, and indeed could undermine title to a wider range of property in which a federal patent is involved. 

SCOTUSblog has a good preview of the issues here. Greenwire also has a good report on the case here. Continue Reading SCOTUS Rails-to-Trails Argument – SCOTUSblog’s Preview

Here are the written materials from today’s HSBA Appellate Section presentation on administrative law and appeals in Hawaii courts. 

A video of the presentation is posted above — it may be a bit dark, but no matter: all you really need is the sound, anyway. Listen to the audio-only session here:

GWK-RHT-HSBA-appellate-admin-appeals-1-13-2014

Administrative Appeals in Hawaii Courts: How Do You Get There, and How Do You Get Out? (Hawaii State Bar As…

Continue Reading Materials From State Bar Association Appellate Section Presentation: Admin Law Appeals

If there’s one thing that keeps appellate lawyers up at night, it’s jurisdictional questions. Too late and you’re toast: failing to appeal within the short appellate time frames are usually fatal to your case. Although there’s usually no harm in an early filing, it can be awkward when you’ve teed up a case only to have the court of appeals find some problems and dismiss.

Hawaii appellate nerds know the latter problem as the “Jenkins” or “Cades” issue, after the seminal case reminding us that the sine qua non of civil appellate jurisdiction in most cases is the entry of a final judgment by the trial court disposing of all claims against all parties. See Jenkins v. Cades Schutte Fleming & Wright, 76 Haw. 115, 869 P.2d 1334 (1994).

And by “judgment” the Supreme Court means a separate piece of paper that has the magic…

Continue Reading Appellate Nerd Alert: HAWSCT Clarifies “Final, Appealable Order” And Forgay Doctrine

At the Hawaii Agriculture Law Conference which we just wrapped last week, perhaps the hottest topic on the agenda was the anti-GMO ordinances recently adopted by the Counties of Hawaii (Big Island) and Kauai.

Barista’s note: One advantage of having POTUS in town for a couple of weeks was that it resulted in a cohort of national reporters sitting around with nothing to write about, no doubt being pestered by their editors suffering back in the polar vortex to get off the beach and actually file a story or two. Thus, we saw a series of big league newspapers filing stories about Hawaii, including this marqee piece in the New York Times about the anti-GMO measures, “A Lonely Quest for Facts on Genetically Modified Crops.”

At the Ag Conference, we discussed the possibility of a lawsuit being filed against Kauai, since it seems to be the locus…

Continue Reading The Other Shoe Drops: Kauai Anti-GMO Ordinance Challenged In Federal Court

Last month, we posted a decision about nonconforming uses, White v. City of Elk River, No. A12-0681 (Minn. Dec. 4, 2013), and want to follow up by posting a good summary of the issues, as well as the amicus brief that was filed in the case in support of the property owner.

Start here (“Can Government Revoke Your Right to Continue an Existing Business?“) by Luke Wake (also one of the counsel who filed this amici curiae brief). Luke’s piece discusses the Minnesota Supreme Court’s holding that the city could not revoke a campground’s nonconforming use as penalty for alleged violations of the conditions of the conditional use permit. The court also held that a nonconforming use is an independent property right, not a mere privilege as a product of a CUP ordinance. Luke writes:

The case raised a question of fundamental importance in Minnesota—one that might…

Continue Reading Do You Have A Right To Continue A Business?