2014

The high mountains of Hawaii, with their altitude and clear air, are some of the best places in the entire planet to build the telescopes which allow us to look beyond our world into deep space. But given that it seems that every development in Hawaii is subject to attack — even those you believed might be welcomed — perhaps it is no surprise that even a star trek is not immune. 

In Kilakila O Haleakala v. University of Hawaii, No. CAAP-13-0000182 (June 9, 2014), the Hawaii Intermediate Court of Appeals rejected a challenge under Hawaii’s environmental review statute to the State’s approval of the high-tech telescope up on the top of Maui’s Haleakala. Another part of this case was decided last year by the Hawaii Supreme Court, which held that an appeal to a trial court under the Adminstrative Procedures Act lies from an agency’s decision to grant…

Continue Reading HAWICA: No EIS Required For Haleakala Telescope

It’s been our experience that when a court of appeals — particularly when it’s the Ninth Circuit, and it’s the eve of oral argument — raises an issue on its own after the briefs have been filed and requests supplemental briefing, then whatever that issue is must really be on the judges’ minds. They’re the cream of the crop (right?) and along with their cohort of law clerks (the next generation cream), they know the law (right?). And, as one Ninth Circuit judge candidly revealed at one of those bench/bar tip sessions last year, law clerks like nothing better than to catch the advocates in a misstatement or to find a missed argument, so they can present the issue to their judge like a cat bringing home a dead bird to its master (we’re paraphrasing that last bit, of course, but the judge did say that clerks groove on finding things…

Continue Reading Ninth Circuit Sua Sponte Raises Williamson County Ripeness, Asks For Briefing, Gets Some

Our friends and colleagues over at RLUIPA Defense blog Evan Seeman and Dwight Merriam have posted on a case is generating some media attention, and might be interesting to watch.

Orlando wants — what else — a new sports venue. A soccer stadium. And the city is using — what else — eminent domain to get it. One property standing in the way is a family-owned parcel which currently is being used for a church. [Barista’s note: soccer, you have hit the Big Leagues when municipalities are using their eminent domain power to take private property for your stadiums.] You know the drill: city offers low, owners want high, a deal doesn’t materialize, and the next thing you know, eminent domain complaint filed. 

So check out “RLUIPA & Eminent Domain – City of Orlando to Take Church Property to Construct Major League Soccer Stadium.” And while you are at it, see…

Continue Reading RLUIPA And The Condemnation Of Church-Owned Property

Battle for Brooklyn film poster

You remember Battle for Brooklyn, the documentary which chronicles the eminent domain fight over New York’s Atlantic Yards project? (Read our review of the film here to refresh your recollection.)

Well here’s the latest chapter. Or perhaps “epilogue” is more appropriate, because the former property owners have long since been evicted, the homes have been razed, and the New Jersey Brooklyn Nets are ensconced in the Barclays Center. (The promised affordable housing and “jobs, jobs, jobs?” Eh, not so much, but who’s counting?)

According to this story in the New York Times, preservationists are planning to award the private beneficiaries of the city’s exercise of eminent domain something called the “Jacqueline Kennedy Onassis Medal.” Seriously:

The Municipal Art Society is well known for campaigns to save Grand Central Terminal and Lever House and to stop towers that would have cast long shadows over…

Continue Reading Atlantic Yards: How About Calling It The “Jay Z” Medal?

…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…

Grove-arcade-2

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. 

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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