Land use law

Subscribe to Land use law via RSS

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

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

The U.S. Supreme Court held that a Congressional resolution apologizing for the United States’ role in the overthrow of the Hawaiian kingdom was just an apology, and had no legal effect. In an opinion for a unanimous Court authored by Justice Alito, the Court held:

The Supreme Court of Hawaii erred in reading § 3 [of the apology Resolution] as recognizing claims inconsistent with the title held in “absolute fee” by the United States (30 Stat. 750)and conveyed to the State of Hawaii at statehood.

Slip op. at 10.

Jurisdiction

The opinion first made short work of the claim by the Office of Hawaiian Affairs that the Supreme Court had no jurisdiction. OHA asserted that the Hawaii Supreme Court’s opinion (117 Haw. 174, 177 P.3d 884 (Jan. 31, 2008), available here) was not based upon federal law (the Apology Resolution) but was based upon Hawaii trust law.  The Court…

Continue Reading Sorry Seems To Be The Hardest Word: U.S. Had “Absolute Fee Simple” Title To Ceded Lands, Apology Resolution Had No Legal Effect

A unanimous Supreme Court, in an opinion authored by Justice Alito has reversed and remanded the Hawaii Supreme Court in the “ceded lands” case.  The opinion is posted here.

More to follow after a chance to read the opinion, but here’s the short story:

  • The Court has jurisdiction under Michigan v. Long, 463, U.S. 1032 (1983).
  • The Apology Resolution did not strip the state of its sovereign authority to alienate the lands the United States held in “absolute fee simple” and which were granted to the state upon its admission to the Union.

Disclosure: I helped author an amicus brief supporting the state’s argument.  More background at our “ceded lands” case page.Continue Reading Unanimous SCOTUS: Apology Resolution No Legal Effect

There’s still time to register for two teleconferences that are a part of the ABA State and Local Government Section’s “Virtual Spring Meeting.”  I hope you can join us for at least one of the programs.

  • Wednesday, April 1, 2:00 – 3:30 pm, EDT: Condemnation Hot Topics – The program will examine new and important condemnation cases andtrends, and also review eminent domain as a backdrop for land useregulation. I will leading the session on pretext and public use in eminent domain cases. Also on the faculty are Robert Freilich, Mary Lynn Huett, and Edward Sullivan. The moderator is Professor Steven Eagle. More here.
  • Thursday, April 2, Noon – 1:30 pm, EDT: Hot Topics in Land Use Law 2009 – The 2009 version of this popular annual program will cover the latestdevelopments in several areas of the law related to land useregulation.  Among the expected topics are the ability of town

…
Continue Reading Upcoming ABA Condemnation, Land Use Teleconferences

Following up on this story, West Hawaii Today reports “Attorneys argue against Supreme Court ruling on bypass,” about whether a second attempt to condemn property ostensibly for a road ispretextual when the court determined the first attempt was unconstitutional and nothing changed:

Attorneys for the Richards family and theCoupe Trust, in documents filed in 3rd Circuit Court Friday, argue thatthe condemnation action initiated by Hawaii County in 2005 wasessentially the same as one filed in 2000 and later dismissed.

Disclosure: we represent the property owner in this case.

The Hawaii Supreme Court in County of Hawaii v. C&J Coupe Family Ltd. P’ship, 198 P.3d 615 (Haw. Dec. 24, 2008) (posted here) held that courts have an obligation to take allegations of pretext seriously — even when the taking is for a “classic” public use — and remanded the case for consideration of evidence of pretext.

Continue Reading More On Pretext In Eminent Domain

Thank you to several of our readers for pointing out that SCOTUSblog has determined that Agripost, LLC v. Miami-Dade County, Florida, No. 08-567 (cert. petition filed Oct. 27, 2008) is a “petition to watch” for the Supreme Court’s March 27, 2009 conference.

The petition asks the Court to overrule Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), the decision that gave us the weird ripeness rules in regulatory takings. The two Questions Presented:

Question 1. Should the Court overrule Williamson County Regional Planning Commission v. Hamilton Bankinsofar as it denies property owners the right to litigate theirfederal causes of action in federal court, the same as all otherconstitutionally aggrieved citizens, and forces them to seekcompensation in state court ostensibly to ripen their federalconstitutional takings claims, where four Justices of this Courtdeclared in San Remo Hotel v. City and County of San…

Continue Reading Overrule Williamson County: Agripost Cert Petititon A “Petition To Watch”

The Hawaii Supreme Court has accepted an application for writ of certiorari to review the Intermediate Court of Appeals’ decision in Save Diamond Head Waters LLC v. Hans Hedemann Surf, Inc., No. 27804 (Haw. ICA Dec. 19, 2008). 

In that case, the ICA held that Honolulu’s Director of Planning and Permitting has the express power under statelaw and the Department’s rules to issue declaratory rulings.  Slip op.at 12-13.  The court also held the Director correctly determined the surf school wasa nonconforming use. Finally, the court held the Director has the authority to make thedetermination that if the school’s use of its property exceeded the useassociated with legal nonconforming use status, the Director had theauthority to issue a declaratory ruling telling the school what useswould keep it within nonconforming status.

We summarized the ICA opinion here.Continue Reading HAWSCT Agrees To Review Case About Planning Director’s Authority And Nonconforming Uses

Instead of an in-person Spring Meeting this year, the ABA Section of State & Local Government Law will be “meeting” virtually from March 31-April 2, 2009.  As part of the meeting, the Section will be featuring a series of teleconference and live audio webcasts on a variety of subjects including topics near and dear to us: workforce housing, condemnation, land use, and green regulations. You can register for all programs, or individual subjects. A complete list of programs is posted here.

I will be participating as faculty in two of the programs: Condemnation Hot Topics (April 1, 2009 from 2:00 – 3:30pm EDT) and Hot Topics in Land Use Law (April 2, 2009 from noon – 1:30 EDT).  I’ll be speaking about the issue of public use and pretext in eminent domain, and recent cases questioning the government’s ability to take property.

Registration information is available on the links.

Continue Reading Conference: ABA Section Of State & Local Government Law Virtual Spring Meeting

Check out the interview with Nalo Farms owner (and Hawaii Farm Bureau Federation president) Dean Okimoto in this month’s Hawaii Business. 

here text

The state Constitution even, in article XI, section 3, expressly protects farming and ranching by commanding the State to “conserve and protectagricultural lands, promote diversified agriculture, increaseagricultural self-sufficiency and assure the availability ofagriculturally suitable lands.”

Disclosure: I represent the Hawaii Farm Bureau Federation.Continue Reading Hawaii Farmers And Ranchers: We Don’t Get No Respect