2015

We like dictionaries. A couple of them have treasured spots on our bookshelf. But we’re not all that keen on courts relying upon dictionaries to define statutory terms, because our experience is that one word could have many meanings, and just because one dictionary defines a word a certain way doesn’t rule out other meanings. And it doesn’t provide much help about what a legislature meant when it used the word. 

So we read a recent opinion issued by the California Court of Appeal, Friends of Oceano Dunes, Inc. v. San Luis Obispo Cnty. Air Pollution Control District, No. B248814 (Apr. 6, 2015) with some interest, even though the case was about California’s version of the Clean Air Act, a topic that we must confess doesn’t exactly float our boat. We liked the opinion because the court held that the trial court should not have relied on one…

Continue Reading Cal App: Never Mind What The Dictionary Says, A State Park With Sand Dunes Is Not A Man-Made “Contrivance”

A few years ago, in Gallenthin Realty Development, Inc. v Borough of Paulsboro, 191 N.J. 344 (2007), the New Jersey Supreme Court held that in order to target property for redevelopment as “blighted,” the government must show that it is in such condition that it “negatively affects surrounding areas” by promoting conditions that can develop into blight. In that case, the targeted property was mostly undeveloped wetlands, and the “blight” of which it stood accused was the owner’s failure to put it to a more intensive economic use. But that was not sufficient to support a blight finding, and the court held that the government must have done more than simply recited the standards for blight redevelopment, and declare they were met. 

We were going to do a complete write-up of the New Jersey court’s latest foray into blight and redevelopment, 62-64 Main Street LLC v. City of Hackensack…

Continue Reading New Jersey: When Designating Blight, Baby Can Be Tossed Without First Showing The Bathwater’s Dirty

Today is Good Friday, an official state holiday in Hawaii, so we’re reposting our annual recounting of how it came to be that the State commemorates the date of the crucifixion, and how that squares with the Establishment Clause of the First Amendment. 

Turns out that it doesn’t really. It’s just coincidence that the “spring holiday” occurs on the same day, and it’s plausible that the State had a secular purpose when it officially sanctified “a religious holiday observed primarily by Christians commemorating the crucifixion of Jesus Christ and his death at Calvary.” 

Or so says the Ninth Circuit.

Related articles
Pacific Business News Report On Eminent Domain And The Honolulu Rail

Continue Reading Go Shopping, It’s Hawaii’s Good Friday Holiday

It’s not often that we say a law review article is a “must-read.” But this one definitely is, especially for all you regulatory takings mavens: David L. Callies, Through a Glass Clearly: Predicting the Future in Land Use Takings Law, 54 Washburn L. Rev. 43 (2014). A pdf of the article is posted here. 

From the Introduction:

The subject of takings—the government taking of an interest in real property, either through eminent domain or through the exercise of the police power—has been the subject of continuous litigation for nearly a century. The past ten years have been particularly fruitful, as litigants struggle with the meaning and extent of the Fifth Amendment’s Public Use Clause and the extent to which the overzealous exercise of the police power can sufficiently deprive a landowner of rights in property so that the property has been “taken” by regulation, ever since Justice Holmes…

Continue Reading New Law Review Article Worth Reading: “Through a Glass Clearly: Predicting the Future in Land Use Takings Law”

131996

As we hoped it might, the Norfolk, Virginia property owner — represented by the Institute for Justice — who was on the losing side of the Fourth Circuit’s 2-1 recent opinion in Central Radio Co. Inc. v. City of Norfolk, 776 F.3d 229 (4th Cir. Jan. 13, 2015) has filed a cert petition.

In that case, the Fourth Circuit held that the above sign, erected on the owner’s building to protest a separate eminent domain action, violated the city’s sign code, and this restriction did not violate the First Amendment. The court concluded that the sign ordinance was content-neutral, even though it exempted national and religious “flags” and “emblems,” and “works of art” that do not relate to a product or service. The city lacked “censorial intent to value some forms of speech over others to distort public debate, to restrict expression because of its message, its…

Continue Reading New Cert Petition: Property Owner Should Not Be Limited To “Whispering” Anti-Eminent Domain Message

Here’s the letter request which we sent today to the California Court of Appeal, Second Division, asking the court to publish its recent opinion in Brost v. City of Santa Barbara, No. B246153 (Mar. 25, 2015). In our post about the case, we wrote “we hope there’s a motion to publish and that the court grants it. This case should be citeable as precedent.”

But as a colleague reminded us, a request to publish an opinion isn’t limited to just the parties to the case, and the California Rules of Court provide that “any person” may ask the court to publish an unpublished opinion, and we certainly fit that description. So today, we — along with our colleagues at Owners’ Counsel of America — wrote to the court that the Brost decision is significant (among other reasons) because it correctly applies the futility exception to takings ripeness, and…

Continue Reading Recent California Court Of Appeal Regulatory Takings Opinion Should Be Published

The short answer: taxes.

[Update #1: a report from last night’s community meeting, “Railing Against Honolulu’s $6 Billion Rail Project” (“Honolulu Mayor Kirk Caldwell and his top transit official took their licks from a decidedly anti-rail crowd during a boisterous town hall meeting at Washington Middle School on Wednesday.”

Update #2: “A Hawaii Senate committee passes a bill to extend the GET rail surcharge another give years, but makes clear the money should only be used to build the rail line” (4/8/2015, via Civil Beat).]

There’s been a lot of breathless reporting over the past couple of weeks about the skyrocketing cost of the 20-mile, 21-station Honolulu rail project. Cost estimates to build the line from Ewa to Ala Moana Center started off in the range of $3.5 billion, but anyone who was paying attention knew this wasn’t anywhere in the ballpark.

Continue Reading How Are They (I Mean *We*) Going To Pay For Honolulu’s Rail?

PBN_rail

The cover story in Pacific Business News‘ recent edition, “Honolulu rail transit’s eminent domain” is worth reading. Most importantly, the PBN staff created maps which show how much property is targeted for acquisition, and where it is located, precisely. Yes, the full story is behind a partial paywall, but as we said last week, if you are in Honolulu you really should be a PBN subscriber. Plus, there are a few quotes from our side in the piece:

  • “’Eminent domain cases are rare in Hawaii,’” Thomas said. ‘Hardly anyone has a living memory — not the landowners, judges, lawyers or even the government officials — they can draw from when there are this many takings.'”
  • “However, this could hurt property owners who choose to sell later, as they’ll have to disclose the illegal status of their building. Future owners may be confronted with the cost of

…
Continue Reading Pacific Business News Details The Rail’s Impact On Honolulu Property

Alderwoods

Here’s the amici brief on behalf of Central Oregon Builders Association, Oregonians in Action, and Owners’ Counsel of America in a case being considered by the Oregon Supreme Court, State of Oregon v. Alderwoods (Oregon), Inc., No. S062766. 

In an eminent domain action to improve Highway 99W in Tigard, Oregon, the DOT condemned Alderwoods’ two driveways, which had been in place since the 1930’s, which provided direct access to and from the property to the highway (approximate location red arrow). After it filed the action, however, the DOT purported to administratively eliminate the driveways because they were too close to the 99W/217 intersection to be safe. The trial court agreed with the DOT that the post-condemnation elimination meant that Alderwoods did not have a property interest in the two direct access driveways. The court prohibited Alderwoods from presenting evidence to the jury of the loss of value to its …

Continue Reading Amici Brief: Property Owners Have Right Of Direct Access To Highways That Can’t Be Regulated Away