Land use law

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The recording of today’s oral arguments in Unite Here! Local 5 v. City and County of Honolulu, No. 28603 has been posted here.  (Be prepared — it’s a 93mb file).  The briefs of the parties are posted here.

A report from KHON-TV2, with video of the site and the arguments is posted here.

The appeal involves the question of whether the City should haverequired the Kuilima Resort to prepare a supplemental EnvironmentalImpact Statement.

Update: Charley Foster has posted a summary of the arguments and analysis.  Continue Reading Oral Arguments in ICA Appeal on Kuilima EIS (mp3)

On April 9, 2008, the Hawaii Intermediate Court of Appeals will be hearing oral arguments in Unite Here! Local 5 v. City and County of Honolulu, No. 28603, the appeal involving the question of whether the City should have required the Kuilima Resort to prepare a supplemental Environmental Impact Statement.  Here are the main merits briefs of the parties:

The issue, as stated by the Appellants:

Does the Hawai’i Environmental Protection Act (HEPA) [Haw. Rev. Stat. § 343-1, et seq.] and the Environmental Council Rules (HEPA Rules) obligate a public agency to determine whether a project requires a Supplemental Environmental Impact Statement (Supplemental EIS or SEIS) where new circumstances and evidence bring to light likely increased environmental impacts not previously dealt with in the project’s twenty-two (22) year old EIS?

Opening Brief at 1. …

Continue Reading Merits Briefs in Upcoming ICA Appeal on Kuilima Resort Environmental Impact Statement

To all those who attended today’s seminar, thank you.  Here are the links to the cases I mentioned.  From the morning session on Case Law Update:

  • Franco – District of Columbia Court of Appeals – allegations of pretext cannot be summarily dismissed
  • Goldstein v. Pataki – Second Circuit – government’s claim of public use trump claims of pretext – cert. petition filed March 31, 2008
  • Brescia – shoreline setback and equitable estoppel – HAWSCT holds you gotta get your “official assurances” from the right party
  • Private agreements and public process – development and settlement agreements not a substitute for zoning process

From the afternoon session…

Continue Reading Cases and Links From Today’s Seminar

Remember that whopping $36.8 million inverse condemnation judgment against the City of Half Moon Bay, California by the U.S. District Court back in November 2007?  Yamagiwa v. City of Half Moon Bay, No. 05-4149 VRW (Nov. 28, 2007).  The city said at the time it was going to appeal, and it hired some pretty impressive guns to do so.  Now, however, it appears that the city has changed its mind, as reported in the San Francisco Chronicle’s story, “Half Moon Bay’s plan to avert fiscal ruin.”

In a move to save their citygovernment, Half Moon Bay officials tonight approved a settlementagreement with a developer who won a $36.8 million court judgment lastfall that threatened to leave the city in financial ruins.

The Half Moon Bay City Council signed off on an $18 millionsettlement to developer Charles “Chop” Keenan, whose trustee wanted tobuild an 83-unit subdivision on…

Continue Reading Discretion Wins Out Over Valor in Half Moon Bay Inverse Condemnation Case

There’s still time to sign up for the “Practical Guide to Zoning and Land Use Law” seminar, to be held Thursday, April 3, 2008, in Honolulu.  I will be leading sessions on Current Case Law and Legislative Update, and Appealing an Administrative Zoning Decision.  A detailed agenda and registration information are posted here.  Continue Reading Land Use Seminar This Week

While not exactly on the usual topics of this blog, the Ninth Circuit’s opinion in Card v. City of Everett, No. 05-35996 (Mar. 26, 2008) is worth a read.  It involves the question of whether the placement of a reproduction of the Ten Commandments (the tablets, not the movie) on the grounds of Old City Hall in Everett, Washington violates the state and federal establishment clauses.  As usual in these type of cases, the facts are fascinating, as is the debate over the controlling law. 

In the end, the Ninth Circuit held that the city’s display does not run afoul of either the Washington or the U.S. Constitutions.  Perhaps the best line of the opinion is in the concurring opinion of Judge Fernandez:

I applaud Judge Wardlaw’s scholarly and heroic attempt to create a new world of useful principle out of the Supreme Court’s dark materials.

Slip op. at…

Continue Reading The First Amendment, the Ninth Circuit, and the Ten Commandments

The Federalist Society has posted a new edition of Engage – The Journal of Federalist Society Practice Groups, a newsletter-format publication with short scholarly articles on topics such as Administrative Law, Environmental Law and Property Rights, and Civil Rights, among others. 

The most interesting article in this edition is Property Rights in the Ninth Circuit, and Beyond by J. David Breemer, Damien Schiff, and Elizabeth Yi, which analyzes the Crown Point case, where the Ninth Circuit finally ditched the Armendariz doctrine.  Armendariz stood for the proposition that a propertyowner’s claim for violations of substantive due process rights were”subsumed” within the owner’s claim for violation of the TakingsClause.  Thus, in land-related issues, a property owner could onlybring takings claims.  Crown Point signals a revival of substantive due process as a viable claim in land use cases in the Ninth Circuit.  Download the article here.Continue Reading New Article: Property Rights in the Ninth Circuit, And Beyond

In a post at PrawfsBlawg, “Takings, a Second Time,” University of Chicago Law Professor Richard Epstein discusses his new book Supreme Neglect: How to Revive the Constitutional Protection for Private Property, a follow-up to Takings: Private Property and the Power of Eminent Domain (1985):

There is a sneaky character of great constitutional provisions. Theshorter they are, and the more common their language, the moredifficult the task of their interpretation. Private property, forexample, is not just a two-word phrase, but it represents an entireworld view, which necessarily needs to be distilled from sourcesexternal to the text. Takings, public use and just compensation arealso terms that come easily off the tongue, but are hard to explicatein any coherent fashion. In the next few blog posts I shall workthrough some of the key arguments on these issues. But for the moment,I will just note that I am quite proud that…

Continue Reading Epstein Blogs His New Takings Book

With a name like Carefree, Arizona, who wouldn’t want to spend the golden years there?  That appears to have been what was on the mind of one F.G. Budnick, a developer, when he decided he wanted to build the “Residences at Carefree,” which he described as a “luxurious, age restricted, senior retirement residential community,” in the small town north of Phoenix. 

But alas, it was not to be: the Town of Carefree didn’t want him, or at least didn’t want his proposed development, so the Planning and Zoning Commission denied the application for a Special Use Permit, which would have allowed the Residences to operate in a residential zone.

Budnick, however, would not be denied.  The future senior residents of the Residences would be “healthy, active, independent seniors who will be impossible to tell apart from” other Carefree residents, he asserted, and an appeal was lodged with the…

Continue Reading 9th Cir: Senior Citizens Are Not Automatically Considered “Disabled”