Land use law

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The Mountain States Legal Foundation, “a nonprofit, public-interest law firm . . . dedicated to bringing before the courts those issues vital to the defense and preservation of individual liberties, the right to own and use property, the free enterprise system, and limited and ethical government” today filed an amicus brief in the Hawaii ceded lands case, now pending in the U.S. Supreme Court.  The brief is available here. 

The brief argues:

The State of Hawaii did not argue that, if this Court construes the Apology Resolution to confer special benefits on persons of Hawaiian ancestry, the
Resolution is unconstitutional because it violates the Equal Protection Component of the Due Process Clause of the Fifth Amendment. Nonetheless, this is one question the Court must answer in construing the meaning and effect of the Apology Resolution. A universal rule of statutory construction is that “statutes should be construed whenever possible…

Continue Reading Ceded Lands Case: Mountain States Legal Foundation Amicus Brief

Bulldozed_home Following up on our earlier post, “‘No, I’m Spartacus!’” about the latest foul turn in the Bulldozed saga, the Institute for Justice (the folks who represented Susette Kelo) today announced that they are representing Carla T. Main, Bulldozed‘s author, in the defamation suit filed against her and and lawprof Richard Epstein (who had the temerity to review her book positively).  We reviewed Bulldozed here.  The IJ released this statement:

Dallas, Texas—Inperhaps the most striking example of a disturbing national trend,Dallas developer H. Walker Royall has launched a lawsuit spree tosilence any media or public affairs commentator who dares expose hisattempted abuse of eminent domain.  Similar suits have been filed inTennessee, Missouri and elsewhere by developers and governments lookingto silence critics of eminent domain for private gain.  

Royallworked with the city of Freeport, Texas, to try to condemn agenerations-old shrimp business owned by the Gore

…
Continue Reading The Fifth Amendment is Not Enough: Bulldozing Free Speech

Let me make sure I am understanding this properly: a property owner does the right thing under the rules of Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), and brings her federal regulatory takings/inverse condemnation claim in state court because its not yet ripe in federal court, but the city removes the case to federal court on the basis of “arising under” jurisdiction (in other words, the case could have been brought in federal court in the first instance), and then moves to dismiss the federal claim on the basis that it’s not ripe in federal court, and both the district court and the court of appeals don’t bat an eye?

That’s my read of one of the issues in Snaza v. City of St. Paul, No. 08-1604 (8th Cir. Dec. 12, 2008), where the court held:

Snaza brought this action…

Continue Reading Procedural Chutzpah: Williamson County in Action

Following up on a post from earlier today, here are the briefs in the Pono v. Molokai Ranch, Ltd. cert petition, which seeks HAWSCT cert review of the Intermediate Court of Appeals’ decision, reported at 119 Haw. 163, 194 P.3d 1126 (2008). The issue is whether Hawaii circuit (trial) courts have original jurisdiction to hear claims by a private plaintiff that another private party’s use of land is inconsistent with state zoning law, when county zoning authorities who administer the state zoning law say it is not. [Disclosure: we represent the respondent, Molokai Ranch, now known as Molokai Properties, Ltd.]

Requesting cert review by the Hawaii Supreme Court is a bit different than asking the U.S. Supreme Court to take your case.  Like that process, the Hawaii procedure asks the court …

Continue Reading HAWSCT Cert Briefs in Jurisdiction Case

Worth reading: “In an Age-Old Quest for Balance, an Uncertain Shift” from the New York Times, a story about the land use “Battle of Molokai Ranch” (as the story puts it). If you want to begin to understand the land use game in Hawaii, take a couple of minutes and read this article. [Disclosure: my firm represents Molokai Ranch — later today, I will post the latest Hawaii Supreme Court filings in the most recent case. Update: the briefs are posted here.]Continue Reading NY Times on Land and Power on Molokai

In theory, Hawaii reveres agriculture: pre-western contact Hawaii was primarily an agrarian society, many of us trace our family’s history to the post-contact “plantation days,” and today, even environmental groups proclaim they support farmers and ranchers and want to “keep the country country.”  Who among us of a certain age didn’t work in the cannery or the fields during summer break, or doesn’t miss Arakawa’s? 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.”

But often the theory of agriculture runs headlong into the reality. For example, agricultural uses may be prohibited on ag land, an interisland ferry by which farmers can transport their goods to market is shut down by the courts due to environmental worries, and most…

Continue Reading Hawaii Agriculture at Risk: Water Law and Land Use

The State of Hawaii filed its merits brief in the “ceded lands” case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert.granted Oct. 1, 2008).  Download the brief here.

The U.S. Supreme Court is reviewing the decision of the Hawaii Supreme Court in Office of Hawaiian Affairs v. Housing and Community Dev. Corp. of Hawaii, 117 Haw. 174, 177 P.3d 884 (Jan. 31, 2008), which held that the resolution in which Congress apologized for the United States’ role in the overthrow of the Kingdom of Hawaii in 1893 prohibits the state from transferring the ceded lands until a political settlement is reached with native Hawaiians.

The Court is reviewing the following 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…

Continue Reading State of Hawaii’s Merits Brief in SCOTUS Ceded Lands Case

A panel of the Ninth Circuit has revised its earlier opinion in McClung v. City of Sumner, No. 07-35231 (Sep. 25, 2008), adding a footnote:

On slip Opinion page 13750, insert a new footnote 3 at the bottom of the page after the sentence that ends “. . . applies to Ordinance 1603.” (and renumber the subsequent footnotes) [page 15838 of the revised slip opinion]:

We observe that the ordinance before us concerns a permit condition designed to mitigate the adverse effects of the new development. New construction increases the burden on the City’s sewer system and increases the loss that might result from flooding. After experiencing considerable flooding, the City enacted Ordinance 1603 to require most new developments to include specified storm pipes. We are not confronted, therefore, with a legislative development condition designed to advance a wholly unrelated interest. We do not address whether Penn Central…

Continue Reading 9th Circuit: Revised Opinion in McClung v. City of Sumner

Check this out: an upcoming teleseminar on “Not in My Backyard (NIMBY): Development Resistance.”  “This teleconference will provide practical, actionable tools toanticipate and avoid community resistance to controversial land useprojects and to actively build community enthusiasm for the proposal.”  Sounds good to me.  For this and other land use-related lexicon, see NIMBYs, BANANAs, CAVEs and DUDEs. Continue Reading Teleconference on How to Deal With NIMBYs

Given that Honolulu voters recently approved a $4B-plus rail system, an article from the San Francisco Chronicle about a new California law encouraging “local governments and builders to concentrate growth in urban areas orclose to public transportation hubs in an effort to reduceCalifornians’ use of cars and lower their greenhouse gas emissions” should be of some interest. In other words, development is “encouraged” in urban areas in “multifamily urban properties” (apartments).

One of the more interesting issues is whether people want to live in these areas, or whether — like so many other things such as mass transit — it is a case of “good for others, but not for me.” The article quotes the attorney for California Major Builders Council

“Our industry very much supports the goal of building morehigh-density projects in blighted areas, doing redevelopment andtransit-oriented developments,” he said. “There is a demand for thistype of development…

Continue Reading New California Law: You Shall Live Near Transit