June 2014

Here are two recent reports on the progress of the Honolulu rail project that should be read in-tandem:

Both stories are partially behind a paywall, but here’s the relevant bits. The first story reports that HART, the city agency created to build and operate the rail is in “another race against time,” this time to acquire the private property it needs to build the rail’s easternmost stretch through Honolulu’s urban core (the tough part, in other words). According to HART, acquisition of access is “our single highest priority.” Which sounds like a big bite: HART Director “Grabauskas and HART staff say they’re aiming to do some 18 months of work negotiating those properties in only six months’ time. They intend to purchase approximately…

Continue Reading Honolulu Rail And The Use Of Eminent Domain

A federal court authorized court-appointed counsel in a criminal prosecution to retain Marcum for forensic accounting and litigation support services. There’s a federal statute which allows for payment for these services, and if the cost exceeds $2,400, the chief judge of the regional circuit must approve. The work Marcum performed went over that amount. By a lot. As in hundreds of thousands. The submitted budget was $4.5 million. Marcum didn’t get the Fifth Circuit’s chief judge’s sign off.

When Marcum received payment of some (but not all) of its invoices from the court, it sued in the Court of Federal Claims for a taking under the Tucker Act for the difference. 

No deal, held the Federal Circuit. In Marcum LLP v. United States, No. 14-5001 (June 13, 2014), the court held that the CFC Tucker Act lawsuit was a collateral attack on the Fifth Circuit’s determination of the fees …

Continue Reading Federal Circuit: No Tucker Act Takings Claim For Court-Appointed Counsel Fees

Remember that decision by a U.S. District Court in Tampa, Florida last year that we crowed about? The court held that a county’s “Right of Way Preservation Ordinance” which allows it to land bank for future road corridors by means of an exaction is “both coercive and confiscatory in nature and constitutionally offensive in both content and operation.” 

A property owner brought a substantive due process claim, and the court first rejected the county’s argument that the substantive due process claim was not ripe under Williamson County because Hillcrest had not pursued a waiver or variance. It also concluded the Right of Way Preservation Ordinance violated the Takings Clause because it shifts the burden to disprove rough proportionality to the property owner and empowers the county to obtain land in excess of what it would otherwise get in the absence of the ordinance. The court enjoined enforcement of the…

Continue Reading 11th Circuit: Facial Challenge To Ordinance Must Be Brought When Ordinance Adopted

Here’s what we’re reading today:

  • Eminent Domain, Ultra Vires, and Adverse Possession Walk Into a Bar… – from SCOV Law, a blog about the decisions of the Vermont Supreme Court: “Get ready to dust off your nineteenth-century-property-law hats, folks, cause this case is chock-full of neglected old cases about rail beds, public trails, adverse possession, eminent domain, and railroad corporations venturing outside the realm of their existential purpose.”
  • Writ to Watch: Ruggles v. Yagong – from Rebecca Copeland at Record on Appeal, about a case which the Hawaii Supreme Court recently agreed to review. The issue is whether an ordinance adopted by the voters of the County of Hawaii (the Big Island) is preempted by state law. The initiative ordinance made it the official policy of the County to make enforcement of personal use of marijuana the lowest priority for the police and prosecutors. Oh my. The trial court

…
Continue Reading Wednesday’s Reading List: Vermont Eminent Domain, The Big Island’s Weed Ordinance, And Quo Warranto

Our thanks to Jacob Cremer for the heads-up on the Florida Court of Appeals’ decision in Ocean Palm Golf Club Partnership v. City of Flagler Beach, No. 5D12-4274 (May 30, 2014). Jacob did not post any analysis (undertstandable because his law firm is involved in the case) so we’ll add our two cents.  

Here’s the BLUF: the city’s refusal to change the zoning on a 9-hole golf course and a surrounding parcel to allow residential development did not deprive the parcels of their value, and were not a taking. 

Here’s the longer story. The case involved two parcels, one the golf course, and the other, a vacant parcel. At one time, they were a single parcel owned by a single owner, but by the time of the litigation, they had been subdivided and separately owned by two separate but related entities. Back in the day, the city…

Continue Reading Fla App: Because A Golf Course That Eventually Went Broke (And Was Later Bought By The City) Was “Profitable,” City Not Liable For A Taking

For those of you who follow this blog for takings and land-usey issues, please bear with us as we post this about one of the other issues we track, regulations of genetically modified organisms. You know, GMO’s. We’ll be short, we promise.

The issue has jumped to the forefront in Hawaii (three lawsuits filed challenging two counties’ anti-GMO ordinances). And elsewhere: the Vermont legislature adopted Act 120, which requires that some — but not all — foods were produced with genetic engineering be labeled, and which prohibits these foods from being labeled as “natural” and the like. The Vermont law has now been challenged in federal court as a violation of the First Amendment because on one hand, the labeling requirement compels speech, while on the other, the prohibition on calling it natural suppresses speech. There are also claims that the state law is preempted by federal laws…

Continue Reading Vermont’s GMO Labeling Law Challenged On Free Speech Grounds

Update: more on the issue from the New York Times: “Honolulu Shores Up Tourism With Crackdown on Homeless.”

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Check out the headline story from today’s Honolulu Star-Advertiser, “Mayor’s sidealk strategy targets Waikiki homeless,” about two bills proposed by Honolulu’s mayor to address some difficult urban issues. 

The first bill is our iteration of the so-called “sit-lie” ordinance, which prohibits people from sitting or lying on sidewalks in the Waikiki Special District. A similar ordinance was upheld by the Ninth Circuit in Roulette v. City of Seattle, 97 F.3d 300 (9th Cir. 1996), in which Judge Alex Kozinski, in his inimitable fashion, wrote:

The first step to wisdom is calling a thing by its right name. Whoever named “parkways” and “driveways” never got to step two; whoever named “sidewalks” did.

. . . 

Plaintiffs claim it is unconstitutional for the city to…

Continue Reading As Judge Kozinski Said, It’s A Sidewalk, Not A Sideseat Or A Sidebed

Hawaii, like many other jurisdictions, has an open records law. Here, we call it “UIPA” (“yoo-pah” or “wee-pah”) becuase the statute is the Uniform Information Practices Act, and not “FOIA” or “FOIL.” But in substance, it’s mostly the same as our sibling jurisdictions: government records are strongly presumed to be public documents, available to the public upon request. And like many jurisdictions, Hawaii’s UIPA contains a fee-shifting requirement which provides that a complainant who prevails in litigation is entitled to recover attorneys fees and court costs from an agency which wrongly kept documents secret. 

Last week, the Hawaii Supreme Court agreed to review a case about UIPA and the fees and costs incurred by a prevailing complainant while on appeal. Specifically, the case is about the timing of the request for appellate fees and costs. We represent the petitioner in the case, and so won’t be saying much of…

Continue Reading HAWSCT To Consider Appellate Fees In Open Record Case

Here are the merits briefs in an important case set for argument later this month in the Hawaii Supreme Court.

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. The essence of the plaintiff’s allegations is that the State Land Use Commission wrongfully amended the land use boundaries from urban to agriculture. Many years earlier, the LUC had amended the boundary to urban on the condition that the owner provide a certain number of affordable units by 2006. In 2008, the developer had not done so and the LUC ordered it to show cause why the land classification should not revert to agricultural.  

The State removed the civil rights lawsuit to U.S. District Court in Honolulu and promptly moved to dismiss, and this is the matter now…

Continue Reading HAWSCT Briefs In Bridge Aina Lea: Takings, State Land Reclassification, And Orders To Show Cause

The final words in most appellate oral arguments by the jurists are usually something along the lines of “we’ll let you know.” In Hawaii state courts, the Chief Justice signals you’re done with “we’ll take the case under advisement,” while in many federal courts, the presiding judge informs you “the case is submitted.” Or words to that effect. 

It was no different in the Ninth Circuit oral arguments in Bridge Aina Lea, LLC v. Chock, Nos. 12-15971, 12-16076, case argued earlier this week before the Ninth Circuit at its session in Honolulu. The case was “submitted for decision.” Listen yourself at the end of the oral argument recording.

Today, however, the panel issued this order withdrawing the submission, in anticipation of the upcoming Hawaii Supreme Court oral arguments in the related state litigation, scheduled for June 25, 2014. The NInth Circuit judges were keenly interested in the Hawaii…

Continue Reading 9th Cir Says “Let’s Wait” On Hawaii Supreme Court To Rule In Bridge Aina Lea