Land use law

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Comes news that the State Land Use Commission has reclassified a large portion of state-owned land in east Oahu from “urban” to “conservation.” See Ka Iwi shoreline area reclassified as conservation land (via Hawaii News Now) and Ka Iwi coast gets added protection (via the Honolulu Advertis…Honolulu Star-Advertiser). The reports state the “reclassification should make the development of the makai [seaward] area of the coastline ‘a remote possibility'” (quoting the governor’s press release).

The reclassification from urban to conservation means that instead of the City and County of Honolulu’s zoning regulating the land, the State Department of Land and Natural Resources will exercise exclusive regulatory control. (Land classified urban is zoned and primarily regulated by the counties, whereas under Haw. Rev. Stat. § 205-5, the DLNR exclusively regulates conservation-designated land.)

But we’re not quite sure what we’re missing here, since it seems the fact the…

Continue Reading You Take It, You Bought It

Here’s a case, issued yesterday by a California Court of Appeal, that is not directly about the use of eminent domain for redevelopment purposes to remedy “blight,” but is nonetheless worth reviewing since it shows how redevelopment supposedly “pays for itself” (in the words of a court) through tax increment financing:

Under the [California Redevelopment Law (Cal. Const. art. XVI § 16], redevelopment is financed through tax increment financing. In essence, a redevelopment agency, which is not empowered to tax, but which is empowered to acquire debt through loans or the sale of bonds (§ 33601), finances a redevelopment project through borrowing. When the redevelopment results in increased property values in the redevelopment area, the tax attributable to the increase in value — the tax increment — is distributed by the taxing authority to a special fund of the redevelopment agency, to pay the principal of and interest on…

Continue Reading How Remedying Blight “Pays For Itself”

Here’s the latest development in the reconsideration process in the Turtle Bay/Kuilima EIS case, Unite Here! Local 5 v. City and County of Honolulu, No. 28602 (Apr. 8, 2010).

As we noted earlier, Kuilima Resort Company filed a motion asking the Hawaii Supreme Court to reconsider or clarify its opinion in the case. Recently, a motion for leave to file an amicus brief in support of Kuilima’s motion for reconsideration was filed by the Land Use Research Foundation of Hawaii and a whole bunch of others (too numerous to list, but read the brief if you need to know who they are).

The motion argues:

Movants seek to file an amicus curiae brief to apprise the Court of important legal issues and public interests at stake in this precedent-setting case of first impression including, but are not limited to, how:

1. The Court Opinion, unless reconsidered or clarified…

Continue Reading Another Brief Seeking Reconsideration Of HAWSCT’s Kuilima/Turtle Bay Supplemental EIS Opinion

According to the Daily Reporter (Wisconsin), that is. If it’s on the internet, it must be true, right?

Activists want U.S. Supreme Court to rule on eminent domain case summarizes the background in City of Milwaukee Post No. 2874 Veterans of Foreign Wars of the United States v. Redevelopment Agency of the City of Milwaukee, No. 09-1204 (cert. petition filed Apr. 2, 2010):

National organizations that focus on eminent domain law are urging the U.S. Supreme Court to rule on a lawsuit over the vacant property at 27th Street and Wisconsin Avenue in Milwaukee.

The Redevelopment Authority of the City of Milwaukee acquired the property in 2001 from Maharishi Vedic University Inc. by declaring the land blighted. The authority paid $140,000 to the university and $300,000 to the City of Milwaukee Veterans of Foreign Wars Post No. 2874, which held a long-term lease for space in a vacant…

Continue Reading We’re “Activists!” Who Knew?

Appellate courts issue opinions and orders to decide cases. The opinions and orders in many cases get “published,” meaning that they end up in the bound reporters (the U.S., Federal, Federal Supplement, the official state reports, and in West’s Regional Reports, for example) and become precedential and set forth a rule of law governing future litigation.

Most appellate courts also issue opinions and orders that are not “published” in the sense referred to above, even though they are “published” meaning they are made available to the public. Generally speaking, these are cases presenting more routine issues. Unpublished decisions may be designated as unpublished opinions, memorandum opinions, summary disposition orders, “per curiam” opinions, or simply may bear the notation “Not For Publication.” The rules vary by jurisdiction on whether unpublished opinions are precedential, and even whether they can be cited in a brief. [Barista’s note: we are of the school believing…

Continue Reading “Unpublished” Opinion Round-Up

A couple of days ago, we posted “Final Briefs In Hawaii Beach Takings Case: Is ‘Future’ Accretion A Present Property Interest?” with what we thought was a complete set of the merits and amicus briefs filed in Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175 (cert. application filed Apr. 22, 2010).

Turns out we missed one set, the amicus brief of Hawaii’s Thousand Friends which urges the Hawaii Supreme Court not to accept the application for a writ of certiorari filed by the property owners, and the property owners’ brief responding to HTF’s brief.

Here they are:

[Our usual disclosure: we filed an amicus brief in the Intermediate Court of Appeals supporting the property owners, and recently filed an amicus brief in the Supreme Court].

Unless there is another…

Continue Reading Final (Final) Briefs In Hawaii Beach Taking Case: Is “Future” Accretion A Present Property Interest?

Here are the latest filings in Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175 (cert. application filed Apr. 22, 2010). In that case, the property owners are asking the Hawaii Supreme Court to review the decision of the Intermediate Court of Appeals in Maunalua Bay Beach Ohana 28 v. State of Hawaii, 122 Haw. 34, 222 P.3d 441 (Haw. Ct. App. 2009), which held that “Act 73” (codifed here and here) was a taking. [Disclosure: we filed an amicus brief in the ICA supporting the property owners, and recently filed an amicus brief in the Supreme Court – see below].

In Act 73, the legislature declared that title to shoreline land naturally accreted cannot be registered by anyone except the State, and that only the State could quiet title to accreted land. The ICA held that the Act was a taking of accreted land…

Continue Reading Final Briefs In In Hawaii Beach Taking Case: Is “Future” Accretion A Present Property Interest?

On June 1, 2010, starting at 2:00 p.m. ET, the New York Court of Appeals will hear oral arguments in Kaur v. New York State Urban Development Corp. In that case, the New York Supreme Court, Appellate Division (First Department) struck down the attempted taking of land north of Columbia University in New York City because of the record reflected overwhelming private benefit and lack of “blight.” We analyzed the Appellate Division’s opinion here.

Here are the briefs in the Court of Appeals:

The Court of Appeals webcasts oral arguments, so we will be able to follow along and live blog the event. Joining me will…

Continue Reading Briefs And Live Blog Of June 1 New York Court Of Appeals Oral Argument In Kaur v. NY State Urban Dev Corp. (Columbia “Blight” Case)

This just in: the Ninth Circuit has issued an opinion in Adam Bros. Farming, Inc. v. County of Santa Barbara, No. 09-55315 (May 14, 2010).

Adam Bros. Farming, Inc. and Iceberg Holdings, L.L.C. (collectively “Adam Bros.”) appeal from the district court’s dismissal of their joint complaint. Adam Bros. sued the County of Santa Barbara and several of its employees (collectively “the county”) in federal court, alleging that the county had, through a false wetland delineation, temporarily taken its land without providing just compensation in violation of the Fifth Amendment. The district court granted the county’s motion to dismiss and concluded that Adam Bros.’s claim was not ripe because Adam Bros. failed to demonstrate that it had sought and was denied just compensation under state law. Because we conclude that Adam Bros.’s claim is barred by the application of res judicata, we affirm the district court’s judgment.

More to follow after a chance to digest the opinion.
Continue Reading New Ninth Circuit Ripeness And Res Judicata Regulatory Takings Case