Land use law

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Update: we confirmed with the Clerk that the arguments are on Tuesday, October 13, 2009, and not on “Thursday” October 13 as noted on the Judiciary web site. We will be live blogging the arguments starting at about 9:45 a.m., Hawaii time.

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On Tuesday, October 13, 2009 at 10:00 a.m., the Hawaii Supreme Court will hear oral arguments in a case considering whether Haw. Rev. Stat. §  205-1 et seq., gives rise to a private right of action. The core issue in the appeal is whether Hawaii’s statewide zoning laws are “laws relating to environmental quality” which may be privately enforced, or whether they are classic Euclidean zoning laws which can’t. The Hawaii Constitution (art. XI, § 9) provides that “any person may enforce” the “right to a clean and healthful environment, as defined by law relating to environmental quality, including…

Continue Reading Upcoming HAWSCT Oral Arguments: Are State Zoning Laws “Environmental” Statutes?

The property owners and the County of Maui have filed their opposition and reply briefs regarding the cross motions for summary judgment in the Maui affordable housing case now being litigated in the U.S. District Court, Kamaole Pointe Development LP v. County of Maui, No. 07-00447 DAE (D. Haw.).

The case is a challenge to the County of Maui’s “workforce housing”ordinance, enacted in in 2006, which imposes a40% to 50% affordable requirement on new housing developments of fiveor more units, and on an application to subdivide a lot into five ormore parcels. In lieu of providing actual units, a developer may eitherpay a fee equivalent to 30% of the total project sales, donate improvedland of the same value, or donate raw land valued at 200% of thein-lieu fee. Ordinance 3418 is posted here.

The complaint asserts claims for “unconstitutional conditions,”regulatory takings, substantive and procedural due process, equal protection…

Continue Reading Final Briefs On Due Process Motions In Maui Affordable Housing Exaction Case

Today, we filed an amicus brief in Leone v. County of Maui, No. 29696, an appeal in the Hawaii Intermediate Court of Appeals which is considering, among other issues, the question of when a regulatory takings claim is ripe for review under Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985).

The trial court determined the plaintiffs’ regulatory takings claims were not ripe because they should have sought a legislative change to the offending land use regulations which allegedly deprive their property of all economically beneficial uses. The trial court’s decision is available here.

Our brief argues Williamson County only requires a “final decision” by the government applying existing land use regulations to the property, and a property owner is under no obligation to change the law before asserting her federal takings claim:

A claim that a land use regulation takes…

Continue Reading New Brief: Must A Property Owner Seek A Change In The Law In Order To Ripen A Takings Claim?

On Wednesday, September 16, 2009, I’ll be on the faculty of “Practical Guide to Zoning and Land Use Law,” a day-long seminar in Honolulu. This is an annual program dealing with zoning approvals,constitutional limitations on land use regulations, and administrativeprocedure.

I will be leading sessions on “Current Case Law and Legislative Update,” and “Appealing an AdministrativeZoning Decision.”

Also on the faculty are A. Bernard Bays and Naomi Kuwaye, who will be covering “Constitutional Limitations on Zoning Actions,” “Challenging a Rezoning Decision,” “Special Zoning Issues,” and “Adoption and Amendment of Zoning Ordinances and Maps. ”

I hope you can make it. If you do, stop by and say hello.

Moreinformation including a detailed agenda and registration information here. Continue Reading Upcoming Seminar: Practical Guide to Zoning and Land Use Law (9/16/2009)

On September 4, we filed an amicus brief on behalf of Owners’ Counsel of America in Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009).

In Walton County v. Stop the Beach Renourishment, Inc.,998 So.2d 1102 (Fla. Sep. 29, 2008), the Florida Supreme Court heldthat a state statute which prohibits “beach renourishment” without apermit did not effect a taking of littoral (beachfront) property, eventhough it altered the long-standing rights of the owners to accretionon their land and direct access to the ocean. The U.S. Supreme Court is considering whether the Florida court’s reversal of more than 100 years of Florida law was a judicial taking, and whether the Florida court’s decision violated due process.

Our brief focuses on three issues:

This case concerns whether the ‘background principles” exception to per se takings in Lucas v. South Carolina Coastal Council…

Continue Reading Our Amicus Brief In The Florida Beachfront Takings Case aka The Judicial Takings Case

What we’re reading today:

  • “Setting boundaries for property rights” — an opinion piece in the National Law Journal by our friend Timothy Sandefur about the Florida beachfront takings case, Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). Highlight: “There must be some limit on the power of state courts to redefineproperty rights. The Supreme Court long ago limited their power tochange other laws in ways that infringe on constitutional freedoms.Southern judges often used cunning interpretations of state law tosilence civil rights protesters, only to be reversed by the high court.In one case, after a group of activists was convicted of trespass afterholding a sit-in, the justices overruled the conviction on the groundthat the South Carolina Supreme Court had ‘unforeseeably andretroactively expanded [the statute] by judicial construction,’ inviolation of due process.”

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Continue Reading Sunday Round-Up

In United Brotherhood of Carpenters and Joiners of America Local 848 v. National Labor Relations Bd., 540 F.3d 957 (9th Cir. 2008), the Ninth Circuit held that six rules applied by shopping centers to restrict picketing andhandbilling by union members violated the state constitution’s freespeech clause, and therefore impermissibly interfered with protectedunion activity. We summarized the Ninth Circuit’s decision here.

The shopping center owner has filed a cert petition asking the Court to review these Questions Presented:

In PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), this Court held that states may require private shopping malls to grant third parties access to the malls’ common areas for purposes of engaging in certain expressive activity. The third-party activity at issue in PruneYard – solicitation of signatures on a political petition – was in support of a cause that the mall did not oppose and that did not conflict with the mall’s commercial interests. The present case raises the following questions, unanswered by PruneYard:

1. Does a state law requirement that a private shopping mall provide third parties access to the mall for expressive activity violate the shopping mall’s property rights under the Fifth Amendment where the activity – here, urging patrons to boycott the mall and its stores – conflicts with the mall’s commercial interests?

2. Does a state law requirement that a private shopping mall provide third parties access to the mall for expressive activity violate the shopping mall’s First Amendment free speech rights where the expressive activity is in support of a cause opposed by the mall?

The case is now titled Macerich Management Co. v. United Brotherhood of Carpenters and Joiners of America Local 568, No. 09-235 (cert. petition filed Aug. 24, 2009). The case’s docket entry is here.

Continue Reading New Cert Petition: Is Requiring Shopping Centers To Allow Adverse Speech A Taking?

The New York Times‘ Greenwire blog posts Property Rights Groups Assemble Support in Regulatory Takings Case, about amici support in Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009).

Property rights groups are lining up in support of private waterfront landowners in Florida at the center of a case that the Supreme Court will hear later this year.

Twelve groups, including the National Association of Home Builders and the Cato Institute, have filed friend-of-the-court briefs in Stop the Beach Renourishment v. Florida, which turns on whether Florida’s Supreme Court violated the Constitution’s regulatory takings clause when it upheld a plan to create a state-owned public beach between private waterfront land and the Gulf of Mexico.

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Stop the Beach Renourishment will be the first taking case to come before Chief Justice John Roberts and Associate Justices…

Continue Reading NY Times On Property Owner Amici In Beachfront Takings Case