Land use law

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Thanks to Dwight Merriam for forwarding this item, a story that an insurance underwriter is planning to offer — get this — eminent domain insurance:

For less than $300 per year, the policy provides up to $200,000loss of market value when the home is sold, plus up to $50,000 torelieve the expense of moving as a result of eminent domain, [Jeffrey Ward, chief executiveofficer of The Ward Group] says.

Full story here.  It’s kind of strange, buying insurance for when the government fails to live up to its constitutional and statutory obligations to pay just compensation and provide relocation assistance.  But it beats Old Glory’s robot insurance, I guess.Continue Reading I Just Saved A Ton Of Money On My Eminent Domain Insurance

Following up on this post.  West Hawaii Times is reporting (free registration may be required) the County of Hawaii is one step away from putting to voters the question of whether to have two Planning Commissions.  The County Council’s Planning Committee approved the measure, and the last step before it makes the ballot is the full council. 

A source of controversy in the past, the HawaiiCounty Planning Commission makes recommendations to the County Councilregarding land use changes. However, it also possesses decision-makingpowers with use permits, special permits including those which regulateshoreline uses, geothermal permits and spaceport permits.

(I like that last bit about “spaceport permits.”  Makes me want to apply for one.)

Maui County currently has three Planning Commisions, but as Jesse Souki has pointed out here and here there may be practical and legal problems with having more than one Commission, esp when it covers a Continue Reading Two Big Island Planning Commissions?

Today we filed the Opening_Brief (250kb pdf) in Maui Vacation Rental Association, Inc. v. County of Maui, No. 08-15251, the Ninth Circuit appeal from the Hawaii district court’s dismissal of MVRA‘s complaint which sought to declare Maui’s shut down of vacation rentals illegal. 

I won’t go into details of the case since the brief spells out the facts and arguments, but here are some prior posts on the case, and links to media coverage:

Continue Reading Opening Brief Filed in Ninth Circuit Maui Vacation Rental Appeal

In a very short (17 page) petition, the State of Hawaii has asked the U.S. Supreme Court to review a decision by the Hawaii Supreme Court regarding “ceded lands.”  The petition argues that by basing its decision in Office of Hawaiian Affairs v. Housing and Community Dev. Corp. of Hawaii, No. 25570 (Jan. 31, 2008) on the “Apology Resolution,” the Hawaii Supreme Court “effectively insulated its decision from any political check at the state level,” an error only the U.S. Supreme Court can correct.  The cert petition is posted here.

The petition was filed filed by heavy-hitter Seth Waxman, a former U.S. Solicitor General, so despite its brevity, it should be taken seriously.  It asks the Court to review a single question: 

In the Joint Resolution to Acknowledge the 100th Anniversary of the January 17, 1893 Overthrow of the Kingdom of Hawaii, Congress acknowledged and apologized for…

Continue Reading Cert Petition in Ceded Lands Case

In Kelo v. City of New London, 545 U.S. 469 (2005), the majority opinion authored by Justice Stevens, framed the issue presented in terms of the validity of “the development plan,” and not whether the particular takings at issue were “for public use.”

The disposition of this case therefore turns on the question whether the City’s development plan serves a “public purpose.”

Relying upon Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926), the case which upheld a municipality’s power to zone provided it is exercised in the context of a “comprehensive plan,” the Kelo majority upheld the New London taking because it was supposedly the product of a well-considered plan of “comprehensive character.”

The City has carefullyformulated an economic development plan that it believes will provideappreciable benefits to the community, including–but by no meanslimited to–new jobs and increased tax revenue. As with other exercisesin…

Continue Reading The Euclidization of Public Use – A Dose of Reality For the Kelo Majority

Kauaisprings2Today we filed the Opening Brief in Kauai Springs‘ appeal from the January 2007 decision by the Kauai Planning Commission to deny three zoning permits to the small, Kauai-family-owned water bottling company.

The case is an appeal from an agency decision under the Hawaii Administrative Procedures Act (a procedure known in other jurisdictions as a petition for a writ of administrative mandate or a petition for a writ of mandamus).  I won’t go into the details of the case in this post, since the brief spells out the facts and the arguments in support.   

For more information about the case, here are some links to earlier media coverage:

  • A May 2006 story about the case from the Honolulu Star-Bulletin
  • A story from the Kauai newspaper about the TRO that halted the County’s attempt to shut the business down while the appeal was being considered.
  • Another story about the

…
Continue Reading Kauai Springs Zoning Permit Appeal

The County of Maui has filed a motion for summary judgment in the federal court challenge to the County’s affordable housing exaction ordinance.  The memorandum in support of the motion is posted here (215k pdf).

The Maui ordinance, enacted last year, imposes a 40% to 50% affordablerequirement on new housing developments.  I posted on the case earlier here (contains a link to the complaint), and analyzed the legal problems with the ordinance under state law here .

The plaintiff landowner earlier filed a motion for partial summary judgment (1.5mb pdf) asking the court to declare the ordinance unconstitutional on its face under the Nollan/Dolandoctrine of unconstitutional exactions, which requires the governmentto show a substantial nexus between the exaction and some problemcaused by the property owner before the government may demand tributeas a condition of development.  The exaction must also be roughlyproportional to the problem.  The plaintiff’s…

Continue Reading County Motion in Maui Affordable Housing Exaction Case

Head’s up to two upcoming seminars worth attending: “Planning Zoning and Eminent Domain” (May 8-9, 2008), and “Planning and Zoning 101” (May 7, 2008), both of which will be put on by the Center for American and International Law, in Plano, Texas.  Registration information for both seminars is here.  The faculty is first-rate, and includes many of the stars in our field — Gideon Kanner, Dwight Merriam, and Robert Freilich.  I won’t be able to attend, but I have in the past, and highly recommend it.Continue Reading Upcoming Land Use and Eminent Domain Seminars

A Lahaina business owner has sued the County of Maui in federal court in Honolulu.  In Goo v. County of Maui, CV 08-00172 DAE (filed Apr. 17, 2008), the Complaint alleges the County and Planning Department officials drove the International Open Market Place, a gift and craft fair, out of business by deliberately favoring a use prohibited under the zoning (a bank/credit union) over uses permitted under the zoning (plaintiff’s business). 

The plaintiff also brings federal constitutional claims as well as claims for civil rights violations under 42 U.S.C. § 1983 and a Monell “deliberate indifference” theory.  The Complaint is posted here.Continue Reading New Federal Court Land Use Case Against County of Maui

Bulldozed_home “If you can fight blight, why not create beauty?  If not beauty, why not bounty?“

With that phrase, author Carla T. Main, in Bulldozed: “Kelo,” Eminent Domain, and the American Lust for Land,accurately and succinctly sums up the devolution of the Supreme Court’sview of the role of judicial review in eminent domain from Berman, to Midkiff, to Kelo.

Bulldozed is accessible to both lawyers and non-lawyers, andis no dull scholarly summation of the current state of Public UseClause law.  Rather, it places the issues in an understandable contextby framing the legal details with the story of the Gore family ofFreeport, Texas, and their straight-out-of-Forrest Gump shrimpprocessing business.  The taking of the Gore’s property and businessfor Freeport’s “economic development” resulted in the case Western Seafood Co. v. United States, No. 04-41196 (5th Cir. Oct. 11, 2006) (a case I blogged about here).

Continue Reading Book Review: Bulldozed – “Kelo,” Eminent Domain, and the American Lust for Land