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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

We’re tied up today and don’t have time to do any analysis, so we post this without comment: Bowman v. California Coastal Comm’n, No. B243015 (Oct. 23, 2014), wherein the court held:

In Kleiniecke v. Montecito Water District (1983) 147 Cal.App.3d 240, we held it would not be inequitable to apply the doctrine of estoppel as a defense to the statute of limitations. Here we conclude it would be inequitable to apply collateral estoppel to require a party to dedicate a coastal easement as a condition of obtaining a coastal development permit.

We reverse a judgment denying a property owner’s petition for a writ of administrative mandate to eliminate a public access condition from a coastal development permit.

Slip op. at 1  

Bowman v. California Coastal Comm’n, No. B243015 (Cal. App. Oct. 23, 2014)

Continue Reading Cal App: “There is no rational nexus, no less rough proportionality”

To those of you who joined us at the ABA’s Land Use, Planning, and Development Forum, thank you. Here are links to some of the topics I mentioned: 

Those of you who couldn’t make it can get the recording on CD or mp3 here in a couple of weeks, once it is produced.  

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Continue Reading Links From Today’s Land Use, Planning, And Development Forum

There’s still time to register and attend the upcoming seminar,”Hawaii’s Shoreline and Coastal Law and Regulation.” It’s scheduled for Friday, July 18, 2014, in downtown Honolulu at the YWCA. Here’s the description:

This program will cover recent Hawaii case law, including the recent Hawaii Supreme Court decision regarding identifying the certified shoreline. Now, more than ever, with the realization that we need to plan for the impacts caused by our changing climate, existing regulations and policies will need to change.

Join Program Chair Jesse K. Souki, First Deputy of the State of Hawaii’s Department of Land and Natural Resources. He leads an outstanding faculty for these topics:

  • Natural and Anthropogenic Shoreline Change in Hawaii and Field Methods for Locating the Certified Shoreline
  • Land Use Laws Affecting Coastal Development in Hawaii
  • Recent Hawaii Case Law
  • The Changing Face of Public Policy: Legislative Issues and Dilemmas
  • Understanding the Regulatory

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Continue Reading Upcoming CLE: Hawaii’s Shoreline and Coastal Law and Regulation

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

No, it’s not Pearl Harbor. But from some of the reactions we’re seeing, you might think the Imperial Japanese Navy was once again anchored off of our fair shores. 

But thankfully no, it’s only aerial advertising, one small airplane towing a sign. But the airplane’s sorties have been generating attention like you wouldn’t believe. 

Hawaii has always been protective of its scenery, with an out-and-out prohibition on billboards, and two federal courts concluding pretty definitively (in our view) that the City and County of Honolulu’s prohibition on airborne signs and advertising is not preempted by federal law, and does not violate Free Speech rights. See this Ninth Circuit decision (cert denied, by the way), and this earlier case, also from the Ninth. 

Not so fast, says one company, which seems intent on pushing back. According to this story (“State and Local Officials Up Ante Against Sky…

Continue Reading Hawaii Under Attack From The Air!

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

Here’s what we’re reading today:

  • Eminent Domain, Ultra Vires, and Adverse Possession Walk Into a Bar… – from SCOV Law, a blog about the decisions of the Vermont Supreme Court: “Get ready to dust off your nineteenth-century-property-law hats, folks, cause this case is chock-full of neglected old cases about rail beds, public trails, adverse possession, eminent domain, and railroad corporations venturing outside the realm of their existential purpose.”
  • Writ to Watch: Ruggles v. Yagong – from Rebecca Copeland at Record on Appeal, about a case which the Hawaii Supreme Court recently agreed to review. The issue is whether an ordinance adopted by the voters of the County of Hawaii (the Big Island) is preempted by state law. The initiative ordinance made it the official policy of the County to make enforcement of personal use of marijuana the lowest priority for the police and prosecutors. Oh my. The trial court

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Continue Reading Wednesday’s Reading List: Vermont Eminent Domain, The Big Island’s Weed Ordinance, And Quo Warranto

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