42 U.S.C. § 1983 | Civil Rights

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Here is the motion asking the Hawaii Supreme Court for leave to file an amicus curiae brief (and the proposed brief) we filed earlier today in a case we’ve been following. 

The question is the applicable statute of limitations for regulatory takings claims under the Hawaii Constitution’s “takings or damagings” clause. The case started out in a Hawaii state court, was removed to the U.S. District Court by the State Land Use Commission. The district court dismissed the state takings claim under the statute of limitations. 

Hawaii has not adopted a statute of limitations expressly for takings or inverse condemnation claims. Thus, the question is what is the closest analogue claim. If there isn’t one, Hawaii has a “catch all” statute (six years) for civil claims. When the case reached the Ninth Circuit, that court certified the state law question limitations to the Hawaii Supreme Court. 

Our brief argues the…

Continue Reading Amicus Brief: State Takings Claims Are Constitutional (Not Torts); Adverse Possession Statute Of Limitations Is Nearest Analogue

Here’s one we’re posting without comment, because the Complaint was filed today by my Damon Key colleagues. But here’s a summary of the issues, from the press release:

On August 1, 2019, the Hawaii Vacation Rental Owners Association and Honolulu land use attorney Greg Kugle of the Damon Key law firm, filed a lawsuit in Federal Court against the City and County over Bill 89. Bill 89 takes effect on August 1, 2019 as Ordinance 19-18. Although the stated purpose of the law is to regulate illegal short-term rentals, it is being interpreted by the Department of Planning and Permitting in a way that will unfairly target the owners of legal residential rentals of 30 days or more, and will have a devastating impact on Oahu’s economy.

Greg Kugle said “Ordinance 19-18 is unconstitutional because it violates the Search and Seizure, Due Process, Property, Privacy and Free Speech guarantees of…

Continue Reading Honolulu’s New Short-Term Rental Ordinance Challenged In Federal Court

Recently, we requested crowdsourcing of this year’s “come to the ALI-CLE Eminent Domain Conference video.” Instead of doing the video ourselves, we asked folks to “please send a short clip of you and/or your colleagues telling us why you think the Eminent Domain and Land Valuation Litigation Conference is the place to be in January. Humor welcome, but not required.”

Our friend and colleague, St. Louis’ Paul Henry, has answered the call, admirably. Paul, as you may remember, is famous for his presentation a couple of years ago at the Conference about “Everything About Eminent Domain I Need To Know I Learned From Star Trek.” Which he gave in a Starfleet captain’s uniform. Brave man. Readers know that we dig Star Trek. But we are not that brave, so bravo, Paul.  

See if you don’t agree that Paul has now raised the video bar. …

Continue Reading Capt Henry Orders You To Boldly Go To The 2020 ALI-CLE Eminent Domain And Land Valuation Litigation Conference, Nashville, Jan. 23-25, 2020

The Land Use Committee of the ABA’s Section of State and Local Government Law is sponsoring a free (for Section members) informal webinar about the latest in takings law:

Knick Picking Regulatory Takings: Did the Court Right a Wrong, or Wrong a Right?

Friday, July 26 | 2 – 2:30pm ET

Here’s hoping you can join us for a half hour on the 5-4 SCOTUS decision in Knick v. Township of Scott (June 21, 2019). Knick overruled the 34-year-old precedent in Williamson County requiring that federal takings claimants seek compensation in state court before being allowed to proceed in federal court.

Presenters Dwight Merriam and Robert Thomas will discuss reaction to the decision — which has been as divided as the Court. Was this the conservative justices having their way? Is it a right versus left issue? Did that baby, stare decisis, get thrown out with the old ripeness bathwater?

Continue Reading Upcoming Webinar – Knick Picking Regulatory Takings: Did the Court Right a Wrong, or Wrong a Right? (free for State and Local Govt Law Land Use Committee members)

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I am grateful that planning chairs Justin Hodge and Jeremy Baker invited me to their conference. A room full of experts. Here are the links to the cases and other items I spoke about:

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Continue Reading Cases And Links From Today’s Eminent Domain And Pipelines Conference (Houston)

Here’s what we’re reading this Friday:

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Continue Reading Friday Round-Up: California Inverse Condemnation, Lawprof Epstein Litigates Public Trust, Property In Ecology, And More

No sooner was the ink dry on the Supreme Court’s opinion in Knick v. Township of Scott, than the Court’s decision started to have some effect.

First, the Court granted another pending cert case on takings ripeness and sent back down to the Ninth Circuit for more in light of Knick.

And now this order from the Seventh Circuit in a case that had been argued (listen above, or download here), but held pending Knick. Jensen v. Village of Mount Pleasant, No. 18-2187 (7th Cir. July 3, 2019). 

This was a case where the federal district court had dismissed the owners’ Fifth Amendment claims as unripe under Williamson County. After argument in the Seventh Circuit, the Supreme Court granted cert in Knick, and the Seventh Circuit delayed deciding the case until the Supreme Court decided Knick. 

Shortly after the Supreme Court opinion, the Seventh Circuit…

Continue Reading Knick Already Taking Effect, Even Where It Isn’t Necessary