Land use law

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Worthwhile article today from West Hawaii Today (the daily newspaper of the Kona side of the Big Island), “Is county practice legal?” The story details the County’s practice of demanding “fair share” payments from property owners and developers who wish to make use of their properties and seek County approvals:

The fair share cost system assesses developers afee whenever their projects require a rezoning as compensation for theimpacts the projects will have on county infrastructure. Moneycollected through fair share assessments could be used toward road andwater system improvements, new parks and expansion of police and fireservices.

However, a ruling made by 3rd Circuit Court Judge Ronald Ibarra in 2007 in a condemnation proceeding apparently deemed the fair share system illegal.

Thecounty filed two condemnation suits against the Charles and Joan CoupeTrust, one in 2000 and the other in 2005, to obtain a 3-acre propertyneeded to build a planned…

Continue Reading West Hawaii Today Series: Is County [“Fair Share” And Impact Fee] Practice Legal?

Florida’s appellate courts have been active lately in the regulatory takings arena.  Here are links to summaries and analysis of the decisions.

First, from the Florida Land Use Law blog:

Next, from Grand Theft: Property

Continue Reading PING: Well HatchedURL: http://livepress.in/kickstart-your-career/IP: 219.234.82.86BLOG NAME: Well HatchedDATE: 02/09/2013 03:34:47 PMinversecondemnation.com: Florida Regulatory Takings Links

Several people have wondered whether the change in presidential administrations may alter the federal government’s position supporting the State of Hawaii in the “ceded lands” case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert.granted Oct. 1, 2008). 

Unlikely, according to this post from the law blog at the Wall St. Journal:

The SG makes hundreds of strategic decisions about which lower-courtdecisions the government should or should not appeal to the SupremeCourt, which can accelerate—or derail—an issue and help shape theCourt’s docket to an administration’s taste.

But when a case is granted and the Court looks to the solicitorgeneral’s office for its measured views, says former deputy AG LawrenceWallace, “The dialogue is with the Court. And the Court has traditionsthat have to be honored.”

Some background. On December 11, 2008, the Solicitor General filed an amicus brief for the United States in the ceded lands case, supporting the State’s…

Continue Reading New SG Unlikely To Alter Fed Gov’t’s SCOTUS Arguments In Ceded Lands Case

In her state of the state address today, Hawaii Governor Linda Lingle had this to say about the “ceded lands” case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert.granted Oct. 1, 2008):

Before concluding I want to take a moment to speakabout the case pending before the United States Supreme Court involvingthe issue of ceded lands.

The issue involved in this case is not whether ceded lands should or should not be sold.

Rather the issue involves the fundamental question ofwhether the State of Hawai‘i has clear title to the land transferred tous by the federal government at the time of statehood.

The roots of this case date back to a decision made byformer Governor Waihe‘e in the 1980s to sell certain ceded lands onMaui and Hawai‘i for the construction of affordable housing.

It was a decision he believed was in the best interest of all the people…

Continue Reading Hawaii Governor On The SCOTUS “Ceded Lands” Case

The Honolulu Advertiser reports “Lingle wants Ka Iwi coast free of development,” about the Governor’s efforts “paving the way for the final step in preserving the most accessiblewild coastline on O’ahu for generations to come.”

And just how is the Governor proposing to “preserve” this privately-owned and urban-zoned land from the “threat of development,” you ask? “[B]y asking the stateLand Use Commission to reclassify the Ka Iwi shoreline from urban toconservation,” that’s how.  In other words, downzone it.

As the article notes, this area has long been a battleground between the right to make reasonable use of private property and at least one segment of the public’s desire to prohibit development. Several cases have arisen from the area, the most well-known of which was the “Sandy Beach” case involving the “5” and “6” parcels down the road from the : 

The land, while zoned preservation by the county…

Continue Reading Here’s A Novel Proposition: How About Paying For It?

The Office of Hawaiian Affairs has filed its Brief for the Respondents in the “ceded lands” case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert.granted Oct. 1, 2008).

The U.S. Supreme Court is reviewing the Hawaii Supreme Court’s decision in Office of Hawaiian Affairs v. Housing and Community Dev. Corp. of Hawaii, 117 Haw. 174, 177 P.3d 884 (Jan. 31, 2008). The Court is considering a single Question Presented:

In the Joint Resolution to Acknowledge the 100th Anniversary of theJanuary 17, 1893 Overthrow of the Kingdom of Hawaii, Congressacknowledged and apologized for the United States’ role in thatoverthrow.  The question here is whether this symbolic resolutionstrips Hawaii of its sovereign authority to sell, exchange, or transfer1.2 million acres of state land-29 percent of the total land area ofthe State and almost all the land owned by the State-unless and untilit reaches a political settlement with native Hawaiians…

Continue Reading OHA Brief In Ceded Lands Case

The property owner has filed its Reply in Support of Petition for a Writ of Certiorari in Charles A. Pratt Const. Co. v. California Coastal Comm’n, No. 08-668 (cert. petition filed Nov. 18, 2008) (SCOTUS docket report here). The petition seeks review of the California Court of Appeal’s opinion reported at 76 Cal. Rptr. 2d 466 (Cal. Ct. App. 2008), available here.

The issues presented in the case involve the Penn Central ad-hoc test for regulatory takings, and the “final determination” prong of the Williamson County ripeness rule. The Reply brief argues:

The Brief in Opposition is liberally salted with Respondent California Coastal Commission’s assertions of what it refers to as the “facts” (e.g., pp. 5, 11) as well as disparagement of the presentation in the Petition as having “no evidence” (e.g., pp. 7, 11) behind it.

The Brief in opposition thus highlights the problem that call for…

Continue Reading Reply In Support Of Petition In Pratt v. Cal. Coastal Comm’n – Penn Central And Williamson County

Mark your calendars for Thursday, February 12, 2009. That’s the date the Hawaii Federalist Society is sponsoring a debate on the ceded lands case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert.granted Oct. 1, 2008),. The case is scheduled for oral argument before the U.S. Supreme Court on February 25, 2009. [Disclosure: we filed an amicus brief in the case, supporting the State’s argument.]

The debate is titled Hawaii v. OHA Debate – Ilya Shapiro vs. Carl Christensen – Did the Hawaii Supreme Court rewrite the terms by which Hawaii became the 50th state?

Details: Thursday, February 12, 2009, 12:45 – 2:00 pm; Classroom 2, U. Hawaii Law School, 2515 Dole Street, Honolulu. The event is open to the public, but if you are not a student at the U.H. Law School, please RSVP not later than February 10, 2009 by email to loren.tilley@gmail.com. A summary…

Continue Reading Ceded Lands Case Debate – Feb. 12, 2009 – U Hawaii Law School

In a lengthy (70 page) opinion, the California Court of Appeals (Sixth District), in Shaw v. County of Santa Cruz, No. H031108 (filed Dec. 19, 2008, ordered published Jan. 16, 2009), held that the government’s denial of a ministerial permit did not amount to a regulatory taking.

The opinion sets forth a long factual and procedural history of the case, so we won’t repeat it here. The discussion of takings begins on page 34 of the slip opinion, with a good short summary of regulatory takings law, and the various situations when the regulation of land will be deemed to have gone “too far” and requires the payment of just compensation. See slip op. at 34-39. Footnote 39 is particularly interesting, as it correctly notes that Lingle did not wipe out the Agins substantially advance test, but merely relocated it to due process:

The court’s holding [in Lingle…

Continue Reading Cal. Court of Appeals Revisits (Sort of) Landgate: Of Regulatory Takings, Means-End Analysis, and Due Process