Land use law

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The last chapter in the Ninth Circuit’s rent control saga has not been written. In Guggenheim v. City of Goleta, No. 06-56306 (Dec. 22, 2010), a sharply divided en banc Ninth Circuit concluded that Goleta’s mobile home rent control ordinance was not a taking under the three-factor regulatory taking test of Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978). Our resource page on the case is here (includes all opinions and merits and amicus briefs).

Mark Alpert (one of the attorneys for the property owners) reports on his blog California Property Rights Journal:

We are happy to announce that Dan Guggenheim has made the decision to file a cert petition. We are thrilled that Dan has been able to retain former Solicitor General Ted Olson and his appellate team at Gibson, Dunn to lead the effort along with myself and Rob Coldren at HKC.

With a panel…

Continue Reading Cert Petition Coming In Ninth Circuit Rent Control Takings Case (Guggenheim)

An opinion today from the U.S. Court of Appeals for the Ninth Circuit in Association of Irritated Residents v. Envt’l Protection Agency, No. 09-71414 (Feb. 2, 2011)

The case involves whether the EPA properly approved revisions to California’s State Implementation Plan for meeting air quality standards for ozone under the Clean Air Act. The court granted the petition and remanded the case to the EPA for further consideration. 

But what really grabbed us was the plaintiff: “Association of Irritated Residents.” Oh, we get it: AIR. How cheeky. Reminds me of those catchy names plaintiff’s groups often use (see, e.g., United States v. SCRAP (Students Challenging Regulatory Agency Procedures), 412 U.S. 669 (1972)), and the acronyms that float around the land use arena to describe motivation (e.g., NIMBY, BANANA), which we discussed in this post.

But I think “Association of Irritated Residents” Continue Reading Best Plaintiff Group Name: Association of Irritated Residents

Zipler Since this is the season for self-congratulatory industry awards, we can’t overlook one of our industry’s highest honors, the Zoning and Planning Law Report Land Use Decision Awards (aka the “ZiPLeRs”). For those of you who do not subscribe to the Zoning and Planning Law Report, the “strangest, or at least more dramatic” land use cases each year are eligible for nomination for a ZiPLeR.

Our colleage Dwight Merriam recently announced the 2010 Awards in the January 2011 issue of ZPLR, and what do you know, a case we nominated “won” the “Home Business Of The Year” Award. We use the term “won” quite loosely, since if you read the facts of the 11th Circuit case, Flava Works, Inc. v. City of Miami, No. 09-11264 (June 25, 2010), involving a South Florida “voyeur/porn dorm” and whether it qualifies as a “business,” this isn’t exactly something we’re going to…

Continue Reading What’s An Oscar, Emmy, Or Tony When Compared To A ZiPLeR?

U. Hawaii law student Stewart A. Yerton has published a comment in the most recent issue of the Asian-Pacific Law and Policy Journal, “Procedural Standing and the Hawaii Superferry Decision” How a Surfer, a Paddler, and an Orchid Farmer Aligned Hawaii’s Standing Doctrine with Federal Principles.”

From the Introduction:

This paper will examine the background law and the procedures, strategies, and arguments the Superferry plaintiffs employed in order to attain standing, as well as the arguments the defendants used in an attempt to keep the plaintiffs out of court. Part II will outline federal and state environmental standing doctrine, paying specific attention to cases most relevant to Superferry. The section will conclude with a brief statement of Superferry’s factual background. Part III will analyze four subjects: (1) how the plaintiffs’ lawyers convinced the court to navigate precedent and firmly establish procedural standing in Hawaii, (2) the…

Continue Reading Worth Reading: Law Review Comment On Hawaii’s “Procedural Standing” Theory And The Superferry Case

Regulatingparadise For those of you who do not yet have your copy of University of Hawaii lawprof David L. Callies‘ recent book Regulating Paradise – Land Use Controls In Hawaii, here’s your chance to get it signed by the author himself.

This Saturday, January 29, 2011 from 2:00 to 3:00 p.m., Professor Callies will be selling and signing at the Barnes & Noble at Ala Moana Center.

As we wrote in our initial review of the book, it’s a must-have for every dirt lawyer’s bookshelf. It is the one essential book if you want to understand Hawaii land use law, so it also belongs on the shelf of every Hawaii landowner, government regulator, environmentalist, and politician. At $22, it is a real bargain. Continue Reading Book Signing: Regulating Paradise – Land Use Controls In Hawaii (2d ed. 2010)

As noted by my blogging colleagues, U.S. Supreme Court Associate Justice Samuel Alito is  coming to Honolulu next week to participate in the U.H. Law School’s “jurist in residence” program, and to address the Bar. (Mark Murakami summarized several of Justice Alito’s more important opinions here, and Tred Eyerly summarizes his opinions that relate to insurance law issued while he was a Circuit Judge here.)

Justice Alito will be speaking about “Top Things You May Not Know About the U.S. Supreme Court” on Wednesday, January 26, 2011 at 4:30 p.m. at the Hawaii Supreme Court courtroom.

Justice Alito’s most “Hawaii-centric” opinion was in Hawaii v. Office of Hawaiian Affairs, 129 S. Ct. 1436 (2009), where he authored the opinion for a unanimous Court. In that case, the Court held that the United States held “absolute fee simple” title to Hawaii’s ceded lands, and…

Continue Reading Justice Alito Is Coming To Town – Time To Re-Read His “Ceded Lands” Opinion

As we noted in this post, last week the Hawaii Intermediate Court of Appeals heard arguments in Pavsek v. Sandvold, No. 29179. In that case, the court is considering whether a complainer can circumvent the City’s enforcement procedures and the administrative appeal process by instituting an original jurisdiction lawsuit claiming that a homeowner is renting her property in violation of the City’s prohibition on rentals of less than thirty days.

We didn’t live blog the argument or analyze the issues because our firm represents one of the appellees (my Damon Key partner Gregory Kugle argued the case).

Here’s the streaming audio:  

ICAOA_011211_29179

Or you can download it here (caution, it’s a 85mb mp3).

Well worth a listen.
Continue Reading Oral Argument Recording In HAWICA Case: Can Complainer Avoid The Administrative Process By An Original Jurisdiction Lawsuit?

In California Trailer Parks War: Owners Vs. Renters, Time magazine takes a look at the mobile home rent control issues behind the recent Ninth Circuit en banc opinion in Guggenheim v. City of Goleta (our resource page on the case is here). Be sure to take the article’s implicit conclusion (the mobile home owners are getting reamed by the Simon Legree park owners) with a grain of salt – the author’s bias shines through pretty clearly:

  • The rent control ordinances are keeping mobile home park owners from “enjoy[ing] explosive upticks in value” experienced by other California land owners. It’s only fair, after all, that such profiteers not be allowed to make beneficial use of their land.
  • The mobile home park owners employ “lawyers as foot soldiers” in their war on the tenant featured in the article, whom we are told “take peaceful walks with his wife and

…
Continue Reading Time On Guggenheim – California Rent Control In The (Biased) Spotlight

To all of you who attended the first day of the Hawaii Land Use Conference today, thank you. As promised, here are the items I discussed during my two sessions:

  • United States v. Milner, 583 F.3d 1174 (9th Cir. 2009) – the case in which the Ninth Circuit affirmed a finding of common law trespass for the building of a wall on fast land, because the shoreline eventually eroded up to it. Both parties had “vested rights” to an ambulatory littoral boundary. The U.S. Supreme Court denied review, as noted here.

…
Continue Reading Cases And Links From Today’s Hawaii Land Use Conference Sessions On Coastal Issues And Water Law

Starting at 10:00 a.m. on Wednesday, January 12, 2011, the Hawaii Intermediate Court of Appeals will hear oral arguments in Pavsek v. Sandvold, No. 29179. In that case, the court is considering whether a complainer can circumvent the City’s enforcement procedures and the administrative appeal process by instituting an original jurisdiction lawsuit claiming that a homeowner is renting her property in violation of the City’s prohibition on rentals of less than thirty days.

We won’t be analyzing the issues or live blogging the arguments because our firm represents one of the appellees (my Damon Key partner Gregory Kugle will be arguing on Wednesday), so here’s the summary of the case from the Judiciary web site:

Plaintiff-Appellants Joseph Pavsek and Ikuyo Pavsek (the Pavseks) appeal from the final judgment entered by the Circuit Court of the First Circuit (circuit court) in favor of Defendant-Appellees Todd Sandvold, Juliana Sandvold, Kent Sather…

Continue Reading HAWICA Oral Argument: Can Complainer Avoid The Administrative Process By An Original Jurisdiction Lawsuit?