text Download CAAP-11-0000071mop
Dagres v. County of Hawaii Planning Dep’t, No. CAAP-11-0000071 (Haw. App. June 30, 2014) (Memo. op.)
New York: Municipal Ban On Fracking Is Zoning, Is Not Preempted By State Law
We don’t need to tell all you non-New Yorkers that the New York Court of Appeals is the state’s highest appeals court, do we? We watched enough Law and Order to know that what most everywhere else calls a “supreme court” is the “Court of Appeals” in the Empire State.
With that out of the way, we get to today’s case, a 5-2 decision by the New York Court of Appeals in two cases where “fracking” is the issue. Or, more accurately, two municipalities which used their zoning power to ban the practice. The court allowed them to do so, holding that New York’s Oil, Gas and Solution Mining Law, which “supersede[s] all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries,” does not preempt the municipalities’ home rule zoning power.
Wait a minute, you say, isn’t a ban on fracking a
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Farpotshket Alert: Plan To Take Mortgages By Eminent Domain Is Back
Like a visiting relative who won’t go home, the idea to seize underwater-but-performing mortgages is still hanging on. The llatest chapter is brought to us by way of our New York colleague Mike Rikon, who writes:
At a press conference on the steps of City Hall, City Council members and housing advocacy groups called on the Mayor to help homeowners who are at risk of foreclosure. Such help would come in the form of using eminent domain to “buy back mortgages where homeowners owe more than their houses are worth.”
According to a CBS report on June 25, 2014, “under the proposed plan, City government would purchase the mortgages from banks and refinance them to match the home’s value to prevent foreclosure.”
Mike notes that nearly two years ago (and several times since), we suggested that this plan was not clearly legal, and even if it were, was not
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Cal Supreme Court To Review Eminent Domain Entry Statutes – A Free Pass, Or A Taking?
Update: Here’s a story on the case from the Sacramento Bee (“State Supreme Court to rule in Delta property-rights case“). See also “Property Reserve on Hold: Supreme Court to Review Eminent Domain Right of Entry Statutes” from Brad Kuhn at the California Eminent Domain Law Report.
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Thanks to our New York colleague Mike Rikon at Bulldozers at Your Doorstep, we’ve come to learn that on June 25, 20154, the California Supreme Court agreed to review a very important eminent domain case, Property Reserve, Inc. v. Superior Court, 224 Cal. App. 4th 828 (2014).
That’s the case in which the Court of Appeal held that California’s entry statute (Cal. Civ. Pro. Code § 1245.010 et seq.), was unconstitutional because it allowed an uncompensated taking. We summarized the Court of Appeal opinion here.
California’s entry statute is much like similar provisions in other
Prohibiting Sitting Or Laying Down On Oahu’s Sidewalks 24/7 Makes Law More Susceptible To Challenge
Here’s a follow up to last week’s story on the “sit-lie” and “don’t use the bathroom in public” ordinances now being considered by the Honolulu City Council (see “As Judge Kozinski Said, It’s A Sidewalk, Not A Sideseat Or A Sidebed“).
Today’s Star-Advertiser reports in “Sit-lie ban sought for all Oahu” that the scope of the ban may be expanded from Waikiki, and that the prohibition on urinating and defecating in public in Waikiki is also being proposed to include the entire City and County. In other words, island-wide. The sit-lie ban is also being considered as an all-day thing, not just the limited hours in the initial bill.
While limiting the hours and geographic scope of the sit-lie ban would seem to tacitly encourage this behavior in the off-hours and in other parts of town, the Seattle ordinance on which these things are
New Takings Blog – “Takings Litigation”
Check this out: Vermont lawprof John Echeverria has launched a blog about “Takings Litigation.” Which, given the predilections of the author (organizer of the anti-takings conference, and recently presented with the Koontz Catatonia Award), probably should be called “Takings Defense” or the “No Takings Blog,” but who are we to say?
Samples of recent posts:
- “Just when you thought the Koontz litigation couldn’t get any worse (see my article, Koontz: the Very Worst Takings Decision Ever?), the Florida Court of Appeals has issued a decision in the Koontz case on remand.”
- “Importantly, the decision [Sherman v. Town of Chester] does not cast doubt on the general rule that when a litigant initially files a takings claim in federal court, the government defendant can raise Williamson County and insist that the takings claim be litigated in state court.”
- “One thing seems clear about this case [
Utah: “Serious” Question Whether Excess Taking Is For Public Use
The Utah DOT took all 15 acres of Carlson’s property even though it needed only 1.2 acres for the project. Why? Because it wanted to “avoid[] litigation regarding Carlson’s severance damages.” Well, that’s mighty good of them to want to keep it simple.
Carlson, however, objected on two grounds. First, he asserted that a Utah statute (Utah Code § 72-5-113) did not authorize excess takings. Second, he asserted that the DOT did not have a public use in taking the excess. The trial court rejected his statutory argument, and did not address his constitutional claim.
In Utah Dep’t of Transportation v. Carlson, No. 20120414 (June 24, 2014), the Utah Supreme Court affirmed the trial court’s rejection of the statutory claim, but concluded that Carlson’s constitutional challenge was a “serious one.”
Although we agree with UDOT’s statutory position and thus affirm that aspect of the district court’s decision, we
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Bridge Aina Lea 9th Cir Oral Argument Report: Hawaii Land Use Commission’s Immunity For Reclassification
Earlier, we posted the recording of the Ninth Circuit’s recent oral arguments in Bridge Aina Lea, LLC v. Chock, Nos. 12-15971, 12-16076, a case in which the court is considering whether State of Hawaii Land Use Commissioners have immunity from civil rights lawsuits, among other issues. The essence of the plaintiff’s allegations is that the State Land Use Commission wrongfully amended the land use boundaries from urban to agriculture. The State argued the District Court should have found the commissioners immune from suit, while the plaintiff cross-appealed, asserting the court, after abstaining, should have remanded the case to the state court where it was originally filed.
Two days after arguments were submitted, the Ninth Circuit panel unsubmitted the case and said that it would hold off on a decision pending a ruling from the Hawaii Supreme Court in the parallel state litigation (an appeal that will be argued later this
Kelo On The Silver Screen: “Culture can help tame eminent domain abuse”
Little Pink House, Jeff Benedict’s book about the Kelo v. City of New London case, looks like it is going to become a feature film.
Earlier, we heard it was going to be a TV (Lifetime) movie with Brooke Shields in the protagonist role, but it appears that they’re going for your local multiplex or arthouse instead, according to an op-ed in USA Today with the interesting title of “Culture can help tame eminent domain abuse” (“We are producing a feature film based on Kelo’s historic saga, and we hope to achieve some of the impact garnered by Erin Brockovich, another underdog film about a real-life working-class woman.”).
The authors, producers of the film, suggest that if only the public knew about Susette Kelo’s story, attitudes would shift about eminent domain abuse:
Erin Brockovich showed how culture can elevate otherwise obscure issues to
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Mark Your Calendars: 2015 ALI-CLE Eminent Domain and Land Valuation, and Condemnation 101 – February 5-7, 2015, San Francisco
ALI-CLE, the good folks who put on the annual programs on Eminent Domain and Land Valuation, and Condemnation 101: How to Prepare and Present an Eminent Domain Case, have announced the dates and venue for the 2015 conferences:
Thursday – Saturday, February 5-7, 2015
Hotel Nikko, in San Francisco.
Those of you who have attended or taught at these conferences in the past know they are the premier programs on this topic, and feature exciting presentations and excellent faculty.
I’ve been honored to be asked to serve as the Planning Co-chair of the 32d annual Eminent Domain and Land Valuation Litigation program, stepping into the able shoes of Leslie Fields, who retired last year. Joe Waldo is continuing as Planning Co-Chair. Joe and I are currently putting together the agenda and faculty for the program, and we will have more on that soon. Andrew