May 2014

…No, not Sgt. Pepper. It was on this day in 1984 that the U.S. Supreme Court issued its 8-0 decision in Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), as this article (“Today in 1984: SCOTUS Upholds Hawaii Land Redistribution Eminent Domain Plan“) correctly notes.

Check it out. The author, “an attorney practicing in the areas of family law and estate planning” (?) does a good job and asks valid questions:

Why was there so little outcry against Midkiff, which involved a government takings program far vaster than that at issue in Kelo? For one, there has been a rise in general distrust of government among the populace between Midkiff and Kelo. But, perhaps more significantly, as noted in an earlier Today in Legal History installment, Kelo’s property transfer was, generally speaking, from poor to rich, whereas Midkiff’s transfers were…

Continue Reading It Was 30 Years AgoToday…

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Those of us who practice eminent domain and land use law see the world through a different lens than everyone else. When normal people get stuck in traffic because of highway construction, they may view it as a mass of cement mixers, graders, and safety-vested crews. We eminent domain lawyers see partial takes, severance damages, limited access problems, and recalcitrant DOT’s. Where others see a harbor or a dam, we see navigational servitudes. Where others see billboards, we wonder if it’s a fixture for which the owner is entitled to compensation. And that’s not a train, it’s a future rails-to-trails issue. 

Come on, you’re among friends — you can admit if you’ve done the same. 

When we travel away from our home base, we somehow locate the eminent domain angle, no matter how obscure. We’ve done it before, and even once crossed over into “nuclear…

Continue Reading Eminent Domain Tourism, Asheville Edition

Ah, the speed of the internet: we were all set to write up the recent decision by the Supreme Judicial Court of Massachusetts in Sorenti Bros., Inc. v. Commonwealth, No. SJC-11420 (May 19, 2014), when we noticed that the good folks over at the Massachusetts Land Use Monitor had already done so. 

So if the question of whether a gas station owner can recover compensation by virtue of the Commonwealth eliminating a roundabout and thereby (allegedly) impeding access to the station floats your boat, read all about it here: SJC Reverses Eminent Domain Judgment For Impacts From Sagamore Bridge “Flyover.” 

One note: compare the way the SJC treats the issue with how the Supreme Court of Canada treated a similar (thought not exactly the same) situation. 

Related articles
O Canada! Supreme Court Affirms Compensation For Causing Business Losses

Continue Reading Mass: Gov’t Not Liable For Impacts Of Road Project On Nearby Business

Worth reading: Gideon Kanner, Detroit and the Decline of Urban America, 2013 Mich. St. L. Rev. 1547 (2014), in the forthcoming issue of that august publication. Its not yet available on the law review’s web site, but Professor Kanner has written up a summary on his blog (he might even send you a copy of the complete article if you ask him):

It deals with the causes of decline of older American cities; what caused their populations to leave en masse and move to the suburbs, leaving behind empty swaths of urban desolation (If you want to see how desolate, go to Google, type in “ruins of Detroit” and hit “enter.’ Here are some samples).

His summary includes the key points of the article, and identifies six factors as contributing to urban flight and depopulation, including abuse of the eminent domain power. 

The article is a fascinating and…

Continue Reading New Article Of Note: The Role Of Eminent Domain Abuse In Detroit’s Downfall

Before we get to today’s post (kindly provided by our colleague and friend Paul Schwind), and the Ninth Circuit briefs, here’s some background on the cases he writes about. 

On June 10, 2014, the Ninth Circuit will ride circuit to Honolulu and hear oral arguments in a case which we’ve posted about before. The litigation is a series of two lawsuits that originated in state court in the Third Circuit (Big Island), one an original jurisdiction civil rights lawsuit, the other an administrative appeal (that’s a writ of administrative mandate for you Californians). The essence of the plaintiff’s allegations is that the State Land Use Commission wrongfully amended the land use boundaries from urban to agriculture. Under Hawaii’s statewide land use planning scheme, the LUC, a state agency, has jurisdiction over these “boundary amendments,” which look and act a whole lot like a change in municipal zoning for those of…

Continue Reading Guest Post: Upcoming Ninth Circuit Oral Argument In Bridge Aina Lea: Pullman Abstention, Williamson County Ripeness, And Absolute Immunity

Earlier this year, we co-chaired the Hawaii Agriculture Conference, and one of the hottest items on the agenda was the “GMO” issue, now brewing in at least two Hawaii courts (the Kauai ordinance was challenged in federal court, while the Big Island ordinance was challenged in the Third Circuit). 

We’re not alone, and the Supreme Court of Western Australia recently issued a decision holding that a farmer who used GMO canola seeds was not liable when some of hs stuff blew over into his neighbor’s organic farm. The organic farmer claimed that the contamination resulted in him losing his organic certification on a large percentage of his land, and brought a nuisance claim. The court rejected the argument, holding it was lawful to grow GM crops, and the farmer’s practice “was entirely orthodox,” even if it resulted in contamination: 

Mr Baxter [the GMO farmer] had…

Continue Reading Western Australia Supreme Court: GMO “Contamination?” No Worries, Mate

In 1993, in order to protect seagrasses, the city of Sanibel adopted an ordinance prohibiting the new construction of docks and piers in certain areas of town. Plaintiffs, littoral owners who bought their land after the ordinance was in place, thought that — this being Florida, and an island — it was their right to build docks and the like (because doesn’t everybody in Florida have a boat?). They challenged the ordinance in state court as a violation of due process and did not substantially advance a legitimate state interest, asserting they possessed riparian rights, incluidng “reasonable docking rights.” The city removed the case to federal court, which dismissed the complaint because riparian rights, having their source in state law, are not “fundamental” rights, and thus form no basis for a substantive due process claim. 

In Kentner v. City of Sanibel, No.13-13893 (May 8, 2014), the Eleventh Circuit agreed.

Continue Reading 11th Circuit: Riparian Rights Not “Fundamental,” And Not Subject To Lingle

A few months ago, we commented on the proposed “environmental court,” a bill working its way through the Hawaii legislature. We called it a bad idea, and hoped the Lawgivers would see the light and let this idea fade away.

It looks like we were unjustifiably optimistic, and both houses have now passed the bill (view its current form here (SD632)). See also “Bill would create environmental court” from West Hawaii Today, which correctly notes that the only thing standing between the bill and the rest of us is Governor Abercrombie’s veto pen.  

Rather than redo our earlier comments, we simply repost them below since our thoughts remain unchanged. All we have to add at this point is the above video, a longer piece, but worth your time if interested. Its title is “Price of Paradise,” and it explores why Hawaii housing prices —…

Continue Reading Hawaii’s “Environmental Court” – A Bad Idea Whose Time (Apparently) Is Nigh

Yesterday, we posted one of those only-in-Hawaii kind of cases. Today, by coincidence, is one of those only-in-the-south type of cases: 

The Christmases’ wild-alligator-nuisance claim is a case of first impression in Mississippi.

In Christmas v. Exxon Mobil Corp., No. 2011-CT-01311-SCT (May 15, 2014), the Mississippi Supreme Court held that a wild alligator infestation on a neighboring property is not a private nuisance as a matter of law. Why? Because alligators — particularly wild alligators — even though they can be such a pain, are something that every property owner wants next door? Nope, because wild alligators are a protected species, and the owner of the property which they infest (in this case Exxon), can’t do much of anything to abate said infestation without running afoul of the State of Mississippi’s statute which says you cannot “buy, sell, take, or posess alligator eggs,” you can’t disturb …

Continue Reading Mississippi: Ferae Naturae Alligators Next Door Cannot Be A Private Nuisance

Here’s one from the Hawaii Intermediate Court of Appeals that illustrates the interesting only-in-Hawaii twists that can happen in our property law. 

In Malulani Group, Ltd. v. Kaupo Ranch, Ltd., No. 30509 (May 5, 2014), the issue was whether the owner of a landlocked parcel could assert an easement implied by necessity over a wholly-surrounding neighboring parcel. Back in the day, both parcels had been under common ownership.

Old property hounds will know that “unity of ownership” is one of the key elements in proving an implied easement. Here, the common owner was the government, which triggered the question — answered differently by various courts over time — whether government ownership is sufficient to meet the unity of ownership requirement.

The unique Hawaii twist? The government here was the Kingdom of Hawaii.

The court came down on what it described as the modern trend: that prior ownership…

Continue Reading HAWICA: The “Common Owner” Giving Rise To Implied Easement Can Be The Gov’t