2016

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As we noted last week, the expanding costs of the Honolulu Rail project has forced Honolulu’s mayor to ask whether construction should be delayed or stopped entirely, short of its planned terminus at Ala Moana shopping center. “Middle Street” became the new rail watchword, even though stopping it there would omit — temporarily or permanently — the most densely populated, and therefore the most useful, portion of the route. 

Middle Street is somewhat of a nondescript, dare we say it, “blah” street; more of a demarcation between the airport area and the more industrialized Dillingham corridor. A place you generally go by on your way elsewhere, not consider a destination. Frankly, it doesn’t have much of a reputation for anything exciting. In our minds, it is most notable as the border between “town” and “country,” at least psychically. 

  • Civil Beat‘s Chad Blair, however, sees it differently. In a tongue-in-cheek


Continue Reading Rail: Building To The Nowhere Of Middle?

A land use diversion, to take you into the weekend. As land users know, the vested rights and zoning estoppel doctrines are all about timing. When did the government gave the green light” (however that is defined in your jurisdiction), what did the property owner do after that, and when did the government decide “hey, wait a minute, we’ve changed our mind” about that earlier green light? For more, see this law review article we co-authored a few years ago that highlights these dynamics. Even the title reflects that it is all about timing: “Arrow of Time: Vested Rights, Zoning Estoppel, and Development Agreements in Hawaii.”

As we wrote, “These closely-related principles permit the government to retain flexibility in land use planning only if a property owner has not proceeded sufficiently along the development path that it would unconstitutional or unfair to prevent it from completion.” 

Well, here’s an opinion from

Continue Reading Cal App: Vested Rights Are All About Timing

There’s a lot of procedural history to digest in the Michigan Court of Appeals’ opinion in AFT Michigan v. Michigan, No. 303702 (June 7, 2016), because it is merely the latest in a long string of opinions from that court, and the Michigan Supreme Court, interspersed with the Michigan legislature’s attempts to react. The opinion lays it all out, and we won’t repeat it here.

The short story is that the legislature adopted a statute which required public school employees to contribute 3% of their salaries to the retirement and health care system. Adding insult to injury, the withholding was labeled as an employer contribution.

The employees sued, alleging a taking among other claims. The court of appeals agreed it was a taking, but while the case languished in the Michigan Supreme Court awaiting discretionary review, the legislature revised the offending parts of the statute. In a different case

Continue Reading Mich App: Forced Employee Contributions To Retirement Fund – Still A Taking

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It’s a good day. You win your takings case in the Texas Supreme Court. True, it’s a narrow 5-4 victory, and it merely reverses summary judgment against you, which means only that you live to fight another day. But a win is a win, we always say. The decision is based on the Texas Constitution, which also means that your win is insulated from U.S. Supreme Court review. 

So it’s game over, right? 

Not so fast. Under Texas appellate procedure, a win in that court isn’t necessarily the end of the process. You need to get by a motion for rehearing as well. In our (non-Texas) experience, these things are usually exercises in futility for the moving party, at least if the goal is to get the court to change its mind on the critical issue decided. Yes, we’ve seen recon and rehearing motions granted from time to time, but only

Continue Reading Texas Turnabout: Gov’t Development Approvals Without Flood Control Plan Isn’t A Taking

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As readers know, from time to time, we undertake what might be called “eminent domain tourism” — visiting the sites of famous and infamous cases when we’re in the neighborhood. Hadacheck, Kaiser Aetna, Nollan, Dolan, and PruneYard, for example.

Perhaps the best illustration of the “holdout” comes from Seattle (see this 2008 story from the New York Times for the backstory), and during a recent trip there, we went by the semi-famous “Up House” formerly owned by the late Edith Macefield, so named because in 2009, “Disney publicists attached balloons to the roof of Macefield’s house, as a promotional tie-in to their film, Up, in which an aging widower (voiced by Ed Asner)’s home is similarly surrounded by looming development.” 

There’s still some balloons tied to the fence, but the house has definitely seen better days. The Wikipedia entry tells

Continue Reading Holdouts And Regrades, Seattle Style

The oral argument heard this morning in the  “Nai Aupuni” cases (Akina v. Hawaii, No. 15-17134, and No. 15-17453) by a panel of the Ninth Circuit (Chief Judge Thomas, and Judges Callahan and Murguia, riding circuit in Honolulu), was a study in contrasts.

On one side, representing the plaintiffs-appellants, was a lawyer from Washington D.C.’s Judicial Watch, who argued against the case being rendered moot on appeal by the machinations of the main defendant, Nai Aupuni, which in response to the U.S. Supreme Court earlier ordering it to halt the putatively private election to choose delegates to a native Hawaiian convention to frame a constitution, called off the election and dissolved. This, he argued, was a mere litigation strategy, and the “cognizable danger of a recurrent violation” remains, even though this defendant doesn’t legally exist any more. Having been busted by the Supreme Court, Nai Aupuni has adopted its actions to purposefully make the appeal moot. Appearing to understand

Continue Reading 9th Circuit Arguments In Nai Aupuni/OHA Case: Mooted On Appeal, Or Likely To Recur?

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In a surprise move, Honolulu Mayor Kirk Caldwell today announced that he supports suspending the Honolulu rail project at Middle Street, at least until there’s more money in the coffers. See “Mayor, Council chairman say rail should end at Middle Street for now” from Marcel Honore at the Star-Advertiser.

We think the key words in that headline are “for now,” and this is not the end of the project, necessarily. Notwithstanding that, as the story notes, this could be a “seismic shift” for the project, which has been plagued by massive cost overruns and other embarrassments since its inception, such as having its financially-savvy Board chairman resign and be replaced by a career politician, only to see her set her cap for Congress and abandon ship when one of Hawaii’s two House seats unexpectedly became available. What started off as a project projected to cost a bit more than $3

Continue Reading Honolulu To Truncate Rail … For Now?

A new(er) law review article, worth reading, from Dean Shelly Saxer, “When Local Government Misbehaves,” 2016 Utah L. Rev. 105 (2016). Here’s the abstract:

In this article, Dean Saxer examines the Supreme Court’s decision in Koontz v. St. Johns River Water Management District. In that land use case, the Court held that proposed local government monetary exactions from property owners to permit land development were subject to the same heightened scrutiny test as imposed physical exactions. The Court left unanswered the question of how broadly this heightened scrutiny should be applied to other monetary obligations imposed by the government. Saxer argues that “in lieu” exactions that are individually assessed as part of the permitting process should be treated differently than the impact fees that are developed through the legislative process and are applied equally to all developers without regarding to a specific project. Accordingly, Koontz’s application should be

Continue Reading New Article On Nollan/Dolan/Koontz: “When Local Government Misbehaves”

All you preemption, agriculture, municipal and local government law junkies, take note: later today, a panel of the U.S. Court of Appeals will hear arguments in three cases, each of which is an appeal of the District Court’s seriatim invalidation of county ordinances which regulated GMO and pesticide use in Kauai, Maui, and Hawaii Counties, respectively. The Ninth Circuit live streams its arguments, so those of you not able to be present in the downtown Honolulu courthouse today can follow along. 

In each of the three cases, the District Court invalidated the ordinances, mainly on the ground that county ordinances regulating GMO production and pesticide use are preempted by state law. 

We won’t go into the details of the cases, having covered them many times previously. Disclosure: we also filed an amicus brief in one of the cases in the District Court, and represented the “vote no” campaign in

Continue Reading Today: Ninth Circuit Oral Arguments In Hawaii Anti-GMO Cases