2014

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

Here’s a quick update on a recent post about an Orlando church which is being targeted by the city so it can build a new stadium for a privately-owned soccer franchise.

Turns out the church has hired our Owners’ Counsel colleague and friend Andrew Brigham, and will be opposing the taking on public use grounds, among others. More about the church’s response here and here. 

This just got really interesting. 

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Continue Reading Orlando Church To Fight Taking

Here is the oral argument recording in Bridge Aina Lea, LLC v. Chock, Nos. 12-15971, 12-16076, case argued yesterday in the Ninth Circuit at its session in Honolulu. As we previewed, the issues involved Pullman abstention and immunity. As for Williamson County ripeness, an issue the court asked the parties to brief separately, one of the judges (it sounds to us like Judge William Fletcher) said he was “haunted by Williamson County” (click forward to the 12:25 mark). Aren’t we all, Your Honor, aren’t we all. 

Ninth Circuit Oral Argument No.12-15971

Next up, the oral arguments in the Hawaii Supreme Court in the state court case, scheduled for June 25, 2014, which may have an impact on the federal appeal (one judge asked counsel, “What if we wait until the Hawaii Supreme Court does whatever it’s about to do, will that illuminate these issues for us?”). More…

Continue Reading 9th Circuit Orals In Bridge Aina Lea: Pullman Abstention, Qualified Immunity, And “Haunted By Williamson County”

For those of you who follow the issue, here’s the latest in the “genetically modified organisms” issue, yet another one where Hawaii is apparently the epicenter. As we posted earlier, the County of Kauai adopted an ordinance regulating GMO’s which was immediately challenged in Federal District Court in Honolulu, while the County of Hawaii (Big Island) also adopted an ordinance that was challenged in state court by a farmer. 

The Big Island ordinance is now being challenged in Federal Court on a number of grounds (preemption, Commerce Clause, and takings). Read the complaint for yourself, below. 

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Continue Reading Latest Federal Court Salvo In The GMO Front

For you rails-to-trails fans, here’s the latest from the Federal Circuit. In Biery v . United States, No. 13-5082 (June 2, 2014), the court held that interests which certain Kansas property owners conveyed to railroads back in the day were grants in fee simple, and some were grants of an easement.  

The issue was dispositive because if the grants were in fee simple, then when the railroad abandoned railroad operations, the land could be converted to public recreational trail use without triggering a taking, but if the grants were easements, then upon abandonment, the owners should have got the land back, and are owed compensation. 

As noted, in 2004, the stretch of rail corridor at issue was converted to a public trail pursuant to the Trails Act. If, prior to the conversion, the BNSF held fee-simple title to the land underlying the corridor, then, for their part, plaintiffs-appellants possess no compensable property interests.

Continue Reading The Latest Takings Decision From The Federal Circuit On Railway “Rights Of Way”