Land use law

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Jesse Souki has some interesting thoughts on the recent Intermediate Court of Appeals decision in  E & J Lounge Operating Co. v. City and County of Honolulu, No. 27940 (Dec. 24, 2007), over at his Hawaii Land Use Law blog:

Prior to the instant case, Hawaii courts strained to find a contested case before it granted standing.  See, e.g., Mahuiki v. Planning Comm’n, 65 Haw. 506 (1982)(opining that “a public hearing, conducted pursuant to public notice,has been deemed a ‘contested case’ within the meaning of HRS § 91-1”).

Jesse then noted that the ICA determined that while an administrative appeal under chapter 91 may not be available, the courts have “inherent power” to review agency decisions, and that application of this rule may result in better opportunities for judicial review than the limited review of the record available in an administrative appeal:

A court’s “inherent power of review”…

Continue Reading Administrative Appeal or Original Jurisdiction Lawsuit?

Government Gone Wild: the sad case of Wilkie v. Robbins. In perhaps the low point of 2007, the U.S. Supreme Court held that alandowner who was subject to systematic harassment by governmentofficials because he had the temerity to refuse to give up a publiceasement on his land without just compensation did not have acomprehensive federal remedy.

Details of the case here, and an op-ed I wrote about the decision for the Honolulu Advertiser, “Little-noticed decision erodes property rights,” is posted here.Continue Reading 2007 in Review: Government Gone Wild

In a story dated December 30, 2007 in the New York Times Travel section, “Not in My Tropical Backyard,” Christoper Pala ties together several seemingly-unrelated threads: the Hawaii Superferry, development on Molokai, the Hokulia project on the Big Island, and expanded resort development on Oahu’s North Shore.  The only issue that seems to have been left out is the question of vacation rentals.  The unstated thesis seems to be that these events are spurred, in large part by “backlash” against tourists and related development, but that seems like only part of the vibe — and it may be more the “drawbridge protectionism” discussed in this post, and a perception that we’re nearing capacity and things just aren’t the way we remember them, than a specific anti-tourism or anti-outsider sentiment.  Continue Reading NY Times Catches a Recurring Vibe

Although the decision is not about land use, the Hawaii Intermediate Court of Appeals’ decision in E & J Lounge Operating Co. v. City and County of Honolulu, No. 27940 (Dec. 24, 2007) is worth a read since it analyzes when an agency is required to hold a “contested case” (an administrative trial) in processing license and permit applications, and when a public hearing may suffice.  The court held that an entitlement to a liquor license is a “privilege” not a right, because the liquor commission has broad discretion to determine whether to issue a license, and that since no property right was at stake, the commission was not required to conduct a contested case.Continue Reading What Is A “Contested Case”

In a case at the intersection of Kelo-style eminent domain and First Amendment church-state issues, the Pennsylvania Supreme Court in In re Condemnation of 1839 North Eighth Street, No. 36 EAP 2006 (Dec. 29, 2007), held that the taking of property designated as “blighted” pursuant to a redevelopment plan, and for a nominal price transferring it to a religious entity did not violate the U.S. Constitution’s Establishment Clause.

In 1968, a Philadelphia neighborhood which included the subject property was certified as “blighted” by the city’s planning commission.  Thirty-four years later, in 2002, a coalition of Catholic groups asked the city’s redevelopment authority to take 39 acres of the neighborhood, including the subject property, and turn it over to establish a “non-denominational, faith-based, not tuition based school.”  The city approved of the plan and condemned the property, listing the Catholic group as the developer.  The property owner objected…

Continue Reading PA Supreme Court Upholds Use of Eminent Domain to Take Private Property And Turn Over to Religious School

In Aspen Creek Estates, Ltd. v. Town of Brookhaven, 2007 NY Slip Op 09583 (Dec. 4, 2007), the Appellate Division of the New York Supreme Court approved a taking of private property to preserve it as farmland.  The court’s majority held that the goal of preserving farmland generally qualifies as a public use/purpose, and that there was no evidence of pretext in the record demonstrating that the presumption of public use should be questioned, even though the property owner asserted that the land would eventually be leased or sold to another private owner.  The facts of the case are set out in the opinion, and by Professor Patty Salkin in her analysis of the decision, so I won’t repeat them in detail here.  Two points, however, merit discussion.

First, the property owner asserted that because the taking was not part of a plan, it did not deserve judicial…

Continue Reading Comprehensive Eminent Domain Plan: If You Don’t Have One, The Court Will Make One Up

Confirming once again that the shopping mall defines California’s culture, the California Supreme Court in Fashion Valley Mall, LLC v. National Labor Relations Bd., No. S144753 (Dec. 24, 2007), held that the mall is a public forum for the airing of grievances, and that the mall’s owner did not have the right to prohibit protesters from urging on-site a boycott of a mall tenant. 

The First Amendment does not prohibit private censorship, but the court held that the California Constitution’s free speech clause provides greater protection than the First Amendment.  Thus, under California law, private shopping malls may not bar on-site protests, even when those protests are directed at a mall tenant.  The court reaffirmed the holding of Robins v. Pruneyard Shopping Center, 23 Cal.3d 899 (1979) which held that shopping malls are fora for public speech.  In other words, unlike the owners of other types of private…

Continue Reading Free Speech on Private Property: Cal Supreme Court Confirms California’s Mall-Centric Culture