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On Wednesday, April 22, 2015, the Supreme Court will hear oral arguments in Horne v. U.S.D.A., No. 14-275, the second time this case has been to the Court. 

The first time around, the unanimous Court held that the Hornes could raise the Takings clause as a defense to the USDA’s action to enforce a regulatory scheme that Justice Kagan characterized as perhaps “the world’s most outdated law,” and which was derided by Justice Scalia as “a crazy statute.”

The Court remanded the case to the Ninth Circuit, which, to no one’s real surprise, held that the scheme was not a taking. The Court again granted cert to consider these Questions Presented:

  1. Does the government’s “categorical duty” under the Fifth Amendment to pay just compensation when it “physically takes possession of an interest in property,” Arkansas Game & Fish Comm’n v. United States, 133 S. Ct. 511, 518 (2012),

…
Continue Reading Raisin Takings Case Round II: Oral Argument Preview

In 2011, Missouri adopted a statute that looks to us like a slightly modified “right to farm” law:

The statute supplants the common law of private nuisance in actions in which the “alleged nuisance emanates from property primarily used for crop or animal production purposes.” Unlike a common law private nuisance action, section 537.296 precludes recovery of non-economic damages for items such as loss of use and enjoyment, inconvenience, or discomfort caused by the nuisance. Instead, the statute only authorizes the recovery of economic damages in the form of diminution in the market value of the affected property as well as documented medical costs caused by the nuisance.

Under Missouri common law, nuisance claims arising from farming activities are considered temporary nuisances. A few days after the statute went live in 2011, Bohr Farms fired up what is known in the business as a “CAFO” (Concentrated Animal…

Continue Reading Missouri: Statute Which Supplants Common Law Farm Nuisance Claim Is Not A Taking

We bring you the latest guest post by colleague Paul Schwind, who has been tracking the issues and arguments that recently led the Hawaii Supreme Court to conclude, in DW Aina Lea Development, LLC v. Bridge Aina Lea, LLC, No. SCAP-13-0000091 (Nov. 25, 2014), that the Hawaii Land Use Commission wrongfully rescinded an earlier reclassification of land (read: “rezoning” to all you non-Hawaii land users).

The oral argument recording is posted above.

We’ll post up our thoughts on the decision in a separate post. 

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Hawaii Supreme Court In Aina Lea: The Rationales Behind The Opinion

by Paul J. Schwind*

Robert has asked me to summarize the rationales behind the holdings in the Hawaii Supreme Court’s recent opinion in DW Aina Lea Development, LLC v. Bridge Aina Lea, LLC, No. SCAP-13-0000091 (Nov. 25, 2014), which he summarized the following day, outlining the litigation history of the…

Continue Reading Guest Post – Hawaii SCT In Aina Lea Case: The Rationales Behind The Opinion

2015 Hawaii Land Use Law Conference Banner - Credits

Registration is now open for the 2015 Hawaii Land Use Law Conference, to be held in downtown Honolulu on Thursday-Friday, January 15-16, 2015.

This is the bi-annual conference, co-chaired by U. Hawaii lawprof David Callies and land use lawyer Ben Kudo, that brings together the big names in our area of law. In other words, the one conference you don’t want to miss if you are a Hawaii land use or property lawyer, in-house counsel, a planner, an appraiser, a property owner or manager, or a law student interested in these topics. 

Download the full brochure here, or view it below. 

The keynote speaker this year is lawprof Richard Epstein, addressing “Stealth Takings: Exactions, Impact Fees and More.” Immediately following his talk, I will be moderating a panel on “Impact Fees and Exactions After Koontz,” with colleagues Bruce Voss and David Brittin. The rest…

Continue Reading Registration Open: 2015 Hawaii Land Use Law Conference, Jan. 15-16, 2015

The Hawaii Supreme Court has issued a lengthy opinion in a case we’ve been following, DW Aina Lea Development, LLC v. Bridge Aina Lea, LLC, No. SCAP-13-0000091 (Nov. 25, 2014). 

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 latter being the case in which the Supreme Court just ruled.

The essence of the plaintiff’s allegations is that the State Land Use Commission wrongfully amended the land use boundaries from “urban” back to 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 fully done so and the LUC ordered it to show cause why the land classification should not revert to…

Continue Reading HAWSCT: Land Use Comm’n Can’t Rescind A Re-zoning Via Truncated Procedures

We get to post the California Raisins again!

Last term, in Horne v. U.S. Dep’t of Agriculture, No. 12-123 (June 10, 2013), the U.S. Supreme Court unanimously held that a property owner could raise a takings claim as a defense to the government’s attempt to impose a fine pursuant to a complex federal regulatory scheme affecting raisin farmers, which requires those in the industry to set aside a percentage of their yearly crop and “donate” it to the public. The Court held that District Courts have jurisdiction to hear a property owner’s claim that this works a taking, and held that the Court of Federal Claims does not have exclusive jurisdiction over this type of claim.

Having resolved the jurisdictional issue in favor of the property owners, the Court remanded the case to the Ninth Circuit for a determination of the merits of their takings defense. Predictably (given the…

Continue Reading New Cert Petition: Raisin Takings Case, Round II

Here’s what caught our attention today:

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Continue Reading Friday Round-Up: Eminent Domain, Cal Food Fight Ends (Maybe), Midwest Flooding

Here’s an interesting one from the Iowa Supreme Court, in which the issue is whether the federal Clean Air Act preempts a property owner’s state-law nuisance claim.

In Freeman v. Grain Processing Corp., No. 1309723 (June 13, 2014), the issue was whether property owners could assert trespass and nuisance claims under Iowa law against a nearby facility which in the process of converting corn into ethanol and corn syrup, releases what are alleged to be harmful chemicals into the air. The court undertook a detailed analysis, concluding that the CAA does not preempt common law trespass and nuisance claims.

Characterized by one of the amicus parties as “A Victory for Property Rights,” the opinion recounts the history of the CAA, and public and private nuisance claims as a form of private environmental law. There’s a lot of detailed rationale set out in the opinion, but the short …

Continue Reading Iowa: Common Law Nuisance Claim Not Preempted By Clean Air Act (Even In The “Age Of Statutes”)

We don’t need to tell all you non-New Yorkers that the New York Court of Appeals is the state’s highest appeals court, do we? We watched enough Law and Order to know that what most everywhere else calls a “supreme court” is the “Court of Appeals” in the Empire State.

With that out of the way, we get to today’s case, a 5-2 decision by the New York Court of Appeals in two cases where “fracking” is the issue. Or, more accurately, two municipalities which used their zoning power to ban the practice. The court allowed them to do so, holding that New York’s Oil, Gas and Solution Mining Law, which “supersede[s] all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries,” does not preempt the municipalities’ home rule zoning power. 

Wait a minute, you say, isn’t a ban on fracking a…

Continue Reading New York: Municipal Ban On Fracking Is Zoning, Is Not Preempted By State Law

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