Equal Protection

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Here’s the latest in a case we’ve been following. In Bridge Aina Lea, LLC v. State of Hawaii Land Use Comm’n, the plaintiff filed its complaint in state circuit court alleging that the LUC violated state and federal law (due process, takings, vested rights, and more) when it reclassified “urban” land on the Big Island to “agriculture.” 

The defendants then removed the case to federal court, and have now filed a motion to dismiss that contains a host of defenses: immunity, the unavailability of prospective injunctive relief, whether certain defendants are “persons” under 42 U.S.C. § 1983, abstention on the federal takings claim, the lack of a state damage remedy for deprivation of constitutional rights, and zoning estoppel, among others.

Just the thing to give you flashbacks to your Federal Courts class.

Update: here‘s the errata filed just after the motion to dismiss.

Motion to Dismiss, Bridge at …

Continue Reading Latest In Big Island Takings And Vested Rights Challenge To LUC Reclassification

A new case worth watching has been filed in Hawaii state court (Third Circuit, the Big Island) that involves allegations of vested rights and estoppel, Nollan/Dolan exactions, state and federal due process and takings, inverse condemnation, and equal protection.The

See below, the Complaint in Bridge Aina Le’a v. State of Hawaii Land Use Comm’n, No 11-1-1145-06 (KKS), filed last week, in which the plaintiff asserts that the Land Use Commission changed the land use boundaries from “urban use to agricultural use while affordable housing was being constructed on the property.”

More here, from West Hawaii Today.

Complaint, Bridge Aina Le’a v. State of Hawaii Land Use Comm’n, No. 11-1-1145-06 (KKS) (filed 6-7-2011)Continue Reading New Lawsuit To Watch: Land Use Commission, Vested Rights, Civil Rights

AliabaAt today’s ALI-ABA annual conference on eminent domain law in Coral Gables, Florida, Tony Della Pelle (NJ Condemnation Law blog) and I (in a session moderated by Nancy Myrland) presented “The ‘Social’ Lawyer: New Media Strategies for Marketing Your Eminent Domain Practice,” about how eminent domain attorneys can use social media for business development or simply to keep up on the latest cases. For those of you who were with us in person or on the webcast, here are some of our favorite law blogs. And, if you couldn’t join us, you really should consider it next year since the conference features stellar faculty, all experts in the field of condemnation and eminent domain law.

These are the essential blogs in our area of practice:

  • Gideon’s Trumpet – this blog, published by Gideon Kanner, is the equivalent of a nonstop eminent domain conference, since Gideon shares his

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Continue Reading Eminent Domain & Property Law Blogs From Today’s ALI-ABA Session

This just in: the en banc Ninth Circuit, in an opinion by Judge Kleinfeld (the dissenter from the panel opinion) has concluded that the City of Goleta’s mobile home rent control ordinance is not a regulatory taking. In Guggenheim v. City of Goleta, No. 06-56306 (Dec. 22, 2010), the majority “assumed without deciding” that the case was ripe under Williamson County, but that the property owners did not establish a regulatory taking under Penn Central. We covered the en banc oral arguments here, and our resource page on the case is here.

There’s a lot of opinion to churn through, but the core of the majority opinion is based on the notion that the Guggenheims did not have “investment-backed expectations.” Imposing what can only be called a bizarre economic and appraisal theory, the majority concluded:

Whatever unfairness to the mobile home park owner might have…

Continue Reading En Banc 9th Circuit Decides Guggenheim: Mobile Home Rent Control Ordinance Is Not A Regulatory Taking

In County of Sonoma v. Superior Court, No. A128734 (Dec. 15, 2010), the California Court of Appeal, First District concluded that an equal protection challenge to the requirement in Sonoma County’s zoning code that medical marijuana dispensaries obtain a permit to operate must have been brought within 90 days of the enactment of the requirement. The court concluded that a challenge brought only after the County ordered a dispensary to stop operations was filed too late.

Since 1996, California law law has permitted “seriously ill Californians” to have access to medicinal marijuana “when recommended by a physician.” Slip op. at 2 n.2. Before 2007, the County’s zoning ordinance did not address marijuana dispensaries, which were therefore technically prohibited. In 2007, the County made dispensaries a permitted use within certain zoning districts, and required them to obtain a Use Permit.

In 2008, a dispensary that had been operating since 2003…

Continue Reading Cal Ct App: Facial Equal Protection Challenge To Zoning Ordinance Cannot Tag Along With Invalid As-Applied Challenge, Man

Here’s an opinion from the U.S. Court of Appeals for the Seventh Circuit that’s worth reading, if only to see why we like reading Judge Posner’s writings:

  • It uses contractions (Judge Kozinski would approve). Slip op. at 11 (“The rule doesn’t apply to an order of civil contempt…”); slip op. at 5 (“No court thinks, however, that this means the state can’t regulate property—can’t for example enact building codes and zoning regulations even though such measures limit the property owner’s right to do what he wants with his property.”)
  • It makes interesting use of explanatory parentheticals for case citations. Slip op. at 5 (“Hull v. Scruggs, 2 So.2d 543 (Miss. 1941) (property owner can kill a trespassing dog that has irresistible urge to suck eggs).”). You know we’re going to go read that case. Update: we now have read the case.
  • It

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Continue Reading Land Use Law Day At The Seventh Circuit: “Property Owner Can Kill A Trespassing Dog That Has Irresistible Urge To Suck Eggs”

Faced with a budget shortfalls and declining revenue projections (and what level of government these days isn’t?), the Honolulu City Council voted today to raise property taxes and eliminate a property tax credit that would have softened the raise for some homeowners. See the reports here and here. It also voted to raise the bus fare from $2 to $2.50 for a single fare (with corresponding increases in monthly pass fares), up the vehicle weight tax 25% this year and an additional 25% next year (Hawaii taxes automobiles by weight, not by age as California does), and quadruple parking rates at the Honolulu Zoo.

There’s been a lot of rumbling lately from Hawaii taxpayers about decreasing government expenditures and controlling property tax rates, but a few years ago, after years of pleading with their elected representatives for relief, Kauai voters actually did something about it. They voted to amend…

Continue Reading Why Hawaii Can’t Vote On Property Taxes

Here’s a collection of the reports and commentary beginning to come in about the U.S. Supreme Court’s unanimous opinion in the “ceded lands” case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (Mar. 31, 2009):

  • Supreme Court backs Hawaii in land dispute – The New York Times weighs in with a short summary of the case.  The only oddity: “Hawaii Attorney General Mark Bennett (R) asked the U.S. Supreme Court to hear the case.”  Yes, Bennett serves in a Republican administration, but Hawaii’s Attorney General is not an elected position, so it’s strange to see the use of party designation usually reserved for elected officials.

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Continue Reading Spinning The Ceded Lands Decision

What to make of the U.S. Supreme Court’s unanimous opinion in the “ceded lands” case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (Mar. 31, 2009), beyond the narrow holding that the Apology Resolution had no legal effect?  Think about these points, if you will:

  • You can’t unwind statehood – Here’s the heart of the brief opinion (unanimous opinions usually are short): “the Apology Resolution [does not] reveal any evidence that Congress intended subsilentio to ‘cloud’ the title that the United States held in ‘absolutefee’ and transferred to the State in 1959.”  Slip op. at 11. This case challenged the State’s title to the ceded lands because the federal government’s title, which it transferred to the state at statehood was somehow less than absolute.  That argument has now been put to rest: the federal government had “absolute fee” title to the lands ceded to it by the Republic of

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Continue Reading Three Takeaway Points From The “Ceded Lands” Decision