Environmental law

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The State (actually Waiola Waters of Life, the defunct charter school) has asked the Hawaii Supreme Court to reconsider its decision in County of Hawaii v. Ala Loop Homeowners, No. 27707 (July 9, 2010). In that case, the court held “[w]e further conclude that article XI, section 9 of the Hawai’i Constitution creates a private right of action to enforce chapter 205 in the circumstances of this case.” Slip op. at 4. 

The State argues:

Wai’ola asks for reconsideration for three reasons. First, the Court has made new law that will significantly affect multiple sectors of our community, all levels of state and county government, and countless administrative and judicial proceedings that are pending in the courts and before state and county land use and environmental regulatory agencies.

Given the present procedural posture of the case, the principle of judicial restraint counsels again addressing the argument the Ala Loop…

Continue Reading Motion For Reconsideration Of HAWSCT’s Opinion In Ala Loop: Are Zoning Statutes “Environmental Laws?”

This Friday, August 6, 2010 from 2:30 – 4:00 p.m. as part of the ABA Annual Meeting in San Francisco, the Section of State and Local Government Law is co-sponsoring a panel discussion of what was, in my opinion, the most fascinating case of the Supreme Court’s recently-concluded term, Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (June 17, 2010).

This Term, the Court dealt with corporate speech, guns, “crush videos,” process patents, and Sarbanes-Oxley, but in Stop the Beach Renourishment, the Court attempted to tackle the most metaphysical of questions: can a state supreme court decision “take” property by changing the law? In the case, the Court came tantalizingly close to holding that a state supreme court decision can run afoul of the Fifth Amendment’s Takings Clause and take property without just compensation. The Court concluded that the Florida Supreme Court’s…

Continue Reading Upcoming ABA Panel On The Judicial Takings Case (San Francisco 8/6/2010)

In Hines v. California Coastal Commission, No. A125254 (decided June 17, 2010, ordered published July 13, 2010), the California Court of Appeal (First District) held that the California Coastal Commission properly refused to hear the appeal of a neighbor who opposed the grant of a use permit because the appeal did not present a “substantial issue” under the Coastal Act.

There is a lot of detail in the lengthy opinion, and we won’t cover it all here, but here’s the short version. The county board of supervisors granted a coastal development permit to build a home and garage, which reduced the 100-foot riparian setback to 50 feet. A neighbor objected, asserting that the county’s coastal policy “absolutely forbids construction of permanent structures within 100 feet from the lowest line of riparian vegetation,” and sought appellate review by the California Coastal Commission. The Commission declined to exercise jurisdiction. The…

Continue Reading Cal App: No “Substantial Issue” Meriting Appeal To Coastal Commission

In 1978, the people of Hawaii amended the state constitution to recognize “the right to a clean and healthful environment,” and expressly enabled lawsuits by private parties to enforce “laws relating to environmental quality” —

Each person has the right toa clean and healthful environment, as defined by laws relating to environmentalquality, including control of pollution and conservation, protection andenhancement of natural resources. Any person may enforce this right against anyparty, public or private, through appropriate legal proceedings, subject toreasonable limitations and regulation as provided by law.

Haw. Const. art. XI, § 9. “Laws relating to environmental quality” are not expressly defined, but “include” the obvious

rovidesIn County of Hawaii v. Ala Loop Homeowners, No. 27707 (cert. granted Sep. 2, 2009), the four-Justice majority in an 81-page opinion authored by Justice Recktenwald held “[w]e further conclude that article XI, section 9 of the Hawai’i Constitution creates a private…

Continue Reading HAWSCT: Zoning Statutes Are “Environmental” Laws Which Can Be Enforced By Lawsuit

More on the “judicial takings” case, Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (June 17, 2010).

Remember that at the ABA Annual Meeting next month in San Francisco, the Section of State and Local Government Law is co-sponsoring a panel discussion of the case. I’ll be moderating, and Jim Burling (Pacific Legal Foundation), John Echeverria (Vermont Law School), Richard Frank, University of California Boalt Hall Law School), and Dan Stengle, (Hopping Green & Sams, Petitioner’s counsel) are on the panel. If you are coming to the meeting, mark your calendar for August 6, 2010 from 2:30 – 4:00 p.m. at the Hilton San Francisco Union Square. More information here.

Anyway, here are the links:

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Continue Reading More On The “Judicial Takings” Case (Stop The Beach Renourishment)

The Hawaii Supreme Court today by a 4-1 margin issued an opinion that has fundamentally rewritten Hawaii land use law. In County of Hawaii v. Ala Loop Homeowners, No. 27707 (cert. granted Sep. 2, 2009), the four-Justice majority in an 81-page opinion authored by Justice Recktenwald held “[w]e further conclude that article XI, section 9 of the Hawai’i Constitution creates a private right of action to enforce chapter 205 in the circumstances of this case.” Slip op. at 4.

In an equally lengthy concurring and dissenting opinion, Justice Acoba wrote: “I respectfully disagree, then, with the majority’s holding that the court abused its discretion in denying Wai’ola’s motion to set aside default. Thus, in my view, it is unnecessary to decided that Ala Loop had a private right of action to enforce HRS chapter 205 under article XI, section 9 of the Hawai’i State Constitution, but inasmuch as…

Continue Reading HAWSCT Finds Zoning Statutes Are “Environmental” Laws – Court Creates A Private Right Of Action To Enforce Chapter 205

What we’re reading today – not all of it property or land use law related:

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Continue Reading Friday Round-Up: Kagan On Property, RLUIPA, Second Amendment, CEQA, And Title VII (Yes, Title VII)

Today, we bring you guest commentary on Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-1151 (June 17, 2010), last week’s Supreme Court decision on judicial takings and ownership of replenished beaches. 

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Beach Decision Draws No New Line in Sand

But high court launches debate about topic of judicial takings

By DWIGHT MERRIAM

On June 17, the U.S. Supreme Court handed down its decision in Stop the Beach Renourishment, its first property rights case since Kelo, Lingle and San Remo five years ago. The pundits pounced. Even the New York Times jumped on the dog pile with an editorial decrying Scalia’s promotion of judicial takings as “harebrained.”

The reaction is mostly overblown. This is a case the Court should not have taken. The Florida Supreme Court correctly decided the takings claim with a well-reasoned, rational analysis consistent with Florida precedent.

Coastal property…

Continue Reading Guest Post: Beach Decision Draws No New Line In Sand

In its Thursday editorial, Common Sense and Private Property, the New York Times barely conceals its derision for both the property owners who instituted takings claims in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-1151, and the four-Justice plurality who set forth the standards for judicial takings, but who couldn’t convince a fifth that this was the right case in which to adopt those standards:

Not a single Supreme Court justice agreed with the harebrained notion that some Florida property owners were entitled to the extra land created when the state widened the beach in front of their houses. But in an opinion issued Thursday, four justices came very close to creating an equally harebrained precedent: that a court decision about the application of a state’s property laws can amount to a “taking” of private property, as if a city or state had…

Continue Reading NY Times On Stop The Beach Renourishment: Justice Thurgood Marshall Had “Harebrained” Ideas

Here’s a round up of the latest commentary and analysis of yesterday’s U.S. Supreme Court decision in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-1151.

Continue Reading Friday’s Stop The Beach Renourishment (Judicial Takings) Links