I promised back in this post to digest the Hawaii Supreme Court’s opinion in Colony Surf, Ltd. v. Director of the Dep’t of Planning and Permitting, No 26037 (Dec. 26, 2007). However, because the opinion is so opaque it is difficult to understand, and the issue so narrow, I never quite got around to doing so.
Professor Patty Salkin saves the day by posting a summary of the decision here on her Law of the Land blog. Continue Reading Nonconforming Uses and “Grandfathering” of Land Uses
In Goldstein v. Pataki, No. 07-2537-cv (Feb. 1, 2008), the US Court of Appeals for the Second Circuit held that a property owner failed to state a claim for Kelo “pretext.” While paying lip service to the notion that in reviewing a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the district court and the court of appeals are supposed to take as true the factual allegations in the complaint and view them in the light most favorable to the plaintiff (see slip op. at 3-4), the court held that the complaint did not plead enough facts to show pretext.
The crux of the issue in Goldstein was whether factual allegations of pretext could be trumped by the invocation of the Berman-Midkiff-Kelo legal standard of conceivable public use.
In other words, the appellants have effectively conceded what Rosenthal found to have been a complete defense to a public-use…
Continue Reading Pleading Kelo Pretext: What About Justice Kennedy?
A complaint has been filed in U.S. District Court against the mayor of Kauai County, the county Department of Planning, and the Planning Commission over the Coconut Beach development. The complaint seeks relief for violations of equal protection, and federal civil rights laws. Charley Foster has some background on the case here. Download the complaint here.Continue Reading Federal Equal Protection Land Use Case Filed
The Honolulu Advertiser reports that the Chamber of Commerce of Hawaii is advocating in favor of a bill limiting the “use” of a state or county road as a trigger to chapter 343 environmental review:
The state Department of Transportation, responding to two previous Supreme Court rulings, asked the state Environmental Council early last year to generally exempt the private construction of driveways or the installation of utilities within state road right-of-ways from environmental assessments. The Supreme Court, in a 1997 decision involving the Kahana Sunset project on Maui and in a 2006 decision on the Koa Ridge project in Waiawa, found that projects that touch state road right-of-ways technically use state lands and trigger potential environmental assessments.
Section 343-5, as interpreted by the Hawaii Supreme Court, requires an agency to undertake an environmental assessment if an applicant’s project (broadly construed to include both the specific proposal and, as…
Continue Reading Butterfly Effects and Environmental Impact Statements
Are rumors of the demise of the Ninth Circuit’s Armendariz doctrine greatly exaggerated, or is J.J. Hunsecker (Burt Lancaster)’s advice to Sidney Falco (Tony Curtis) in the noir classic Sweet Smell of Success more appropriate?
What brings this to mind is the parting shot in the recently-issued opinion in Matsuda v. City and County of Honolulu, No. 06-15337 (Jan 14, 2008), where the Ninth Circuit panel — in a case involving a Contracts Clause claim which was brought together with a substantive due process claim — added:
Furthermore, we express no opinion as to whether our decision in Armendariz v. Penman,75 F.3d 1311 (9th Cir. 1996) (en banc), precludes the Lessees fromasserting a substantive due process claim in this case, where theContracts Clause provides a specific source of constitutionalprotection against the government conduct of which they complain. Id. at 1318.
Slip op. at 411. This looks like…
Continue Reading Amendariz: “You’re Dead Son. Get Yourself Buried.”
The US Court of Appeals for the Ninth Circuit has issued an opinion in Matsuda v. City and County of Honolulu, No. 06-15337 (Jan 14, 2008), a case involving the city’s repeal of Chapter 38, Honolulu’s version of the “land reform act” at issue in Midkiff, allowing the conversion of condominium leases to fee simple absolute by eminent domain. Leaseholders who were caught mid-process when Chapter 38 was repealed, brought claims under the Due Process and Contracts clauses. The district court dismissed the claims under the reserved powers doctrine, but the Ninth Circuit reversed, and sent the case back for further proceedings. I haven’t had a chance to digest it in full, but will post a complete rundown shortly.
Update: complete summary of the opinion here.Continue Reading 9th Cir. on Due Process and Contracts Clause
After Lingle v. Chevron, U.S.A., Inc., 544 U.S. 528 (2005)informed us that the “substantially advance a legitimate state interest”test was one of substantive due process, not regulatory takings, the courts began revisiting the long-neglected topic of substantive due process in the land use context.
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Continue Reading 2007 in Review: Taking Substantive Due Process Seriously Again
The Maui News reports “Vacation rental group planning to appeal ruling” —
The Maui Vacation RentalAssociation will appeal U.S. District Judge Michael Seabright’sdismissal of its suit against Maui County to the 9th Circuit Court ofAppeals.
President David Dantes said Wednesday that the association had retaineda land use legal specialist, Robert Thomas of the Honolulu firm DamonKey Leong Kupchak Hastert, to handle the appeal.
He said that if the association wins its point and if the appeals courtin California should remand the case to the Honolulu court, theassociation might have Maui lawyer James Fosbinder handle the renewalof the suit.
Seabright dismissed most of the association’s claims but left open anoption of amending the complaint to allege civil rights violations.
Complete article here. We posted about this case earlier here.
Several cases focused on the issue of due process notice in eminent domain. In Divine v Town of Nantucket,449 Mass. 499, ___ N.E.2d ___ (July 19, 2007), the Supreme JudicialCourt of Massachusetts invalidated the town’s 1968 exercise of eminentdomain since the town’staking listed the owners of the property as “owners unknown,” which wasnot sufficient notice to the landowner. In Brody v. Village of Port Chester,No. 00 Civ. 7481 (HB) (SDNY, July 18, 2007), a New York federal courtheld that a municipality wrongfully exercised eminent domain and deniedthelandowner procedural due process by not providing proper notice of hisright to contest the taking. Continue Reading 2007 Land Use in Review: Due Process Notice in Eminent Domain