Land use law

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A land use diversion, to take you into the weekend. As land users know, the vested rights and zoning estoppel doctrines are all about timing. When did the government gave the green light” (however that is defined in your jurisdiction), what did the property owner do after that, and when did the government decide “hey, wait a minute, we’ve changed our mind” about that earlier green light? For more, see this law review article we co-authored a few years ago that highlights these dynamics. Even the title reflects that it is all about timing: “Arrow of Time: Vested Rights, Zoning Estoppel, and Development Agreements in Hawaii.”

As we wrote, “These closely-related principles permit the government to retain flexibility in land use planning only if a property owner has not proceeded sufficiently along the development path that it would unconstitutional or unfair to prevent it from completion.” 

Well, here’s an opinion from …

Continue Reading Cal App: Vested Rights Are All About Timing

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As readers know, from time to time, we undertake what might be called “eminent domain tourism” — visiting the sites of famous and infamous cases when we’re in the neighborhood. Hadacheck, Kaiser Aetna, Nollan, Dolan, and PruneYard, for example.

Perhaps the best illustration of the “holdout” comes from Seattle (see this 2008 story from the New York Times for the backstory), and during a recent trip there, we went by the semi-famous “Up House” formerly owned by the late Edith Macefield, so named because in 2009, “Disney publicists attached balloons to the roof of Macefield’s house, as a promotional tie-in to their film, Up, in which an aging widower (voiced by Ed Asner)’s home is similarly surrounded by looming development.” 

There’s still some balloons tied to the fence, but the house has definitely seen better days. The Wikipedia entry tells…

Continue Reading Holdouts And Regrades, Seattle Style

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In a surprise move, Honolulu Mayor Kirk Caldwell today announced that he supports suspending the Honolulu rail project at Middle Street, at least until there’s more money in the coffers. See “Mayor, Council chairman say rail should end at Middle Street for now” from Marcel Honore at the Star-Advertiser.

We think the key words in that headline are “for now,” and this is not the end of the project, necessarily. Notwithstanding that, as the story notes, this could be a “seismic shift” for the project, which has been plagued by massive cost overruns and other embarrassments since its inception, such as having its financially-savvy Board chairman resign and be replaced by a career politician, only to see her set her cap for Congress and abandon ship when one of Hawaii’s two House seats unexpectedly became available. What started off as a project projected to cost a bit more than $3…

Continue Reading Honolulu To Truncate Rail … For Now?

A new(er) law review article, worth reading, from Dean Shelly Saxer, “When Local Government Misbehaves,” 2016 Utah L. Rev. 105 (2016). Here’s the abstract:

In this article, Dean Saxer examines the Supreme Court’s decision in Koontz v. St. Johns River Water Management District. In that land use case, the Court held that proposed local government monetary exactions from property owners to permit land development were subject to the same heightened scrutiny test as imposed physical exactions. The Court left unanswered the question of how broadly this heightened scrutiny should be applied to other monetary obligations imposed by the government. Saxer argues that “in lieu” exactions that are individually assessed as part of the permitting process should be treated differently than the impact fees that are developed through the legislative process and are applied equally to all developers without regarding to a specific project. Accordingly, Koontz’s application should be…

Continue Reading New Article On Nollan/Dolan/Koontz: “When Local Government Misbehaves”

All you preemption, agriculture, municipal and local government law junkies, take note: later today, a panel of the U.S. Court of Appeals will hear arguments in three cases, each of which is an appeal of the District Court’s seriatim invalidation of county ordinances which regulated GMO and pesticide use in Kauai, Maui, and Hawaii Counties, respectively. The Ninth Circuit live streams its arguments, so those of you not able to be present in the downtown Honolulu courthouse today can follow along. 

In each of the three cases, the District Court invalidated the ordinances, mainly on the ground that county ordinances regulating GMO production and pesticide use are preempted by state law. 

We won’t go into the details of the cases, having covered them many times previously. Disclosure: we also filed an amicus brief in one of the cases in the District Court, and represented the “vote no” campaign in…

Continue Reading Today: Ninth Circuit Oral Arguments In Hawaii Anti-GMO Cases

This just in: the North Carolina Supreme Court has issued an opinion in an important case we’ve been following for a long time, Kirby v. North Carolina Dep’t of Transportation.

This is the case about the “Map Act,” a statute which designates private property for future highway use, and  “restricted plaintiffs’ fundamental rights to improve, develop, and subdivide their property for an unlimited period of time.” Slip op. at 1.  The court concluded that “[t]hese restraints, coupled with their indefinite nature, constitute a taking of plaintiffs’ elemental property rights by eminent domain.” Id.  

The North Carolina Court of Appeals earlier held the Act was a taking, and this resulted in a lot of shouting and gnashing of teeth that making the DOT actually pay just compensation would crash the system and cost the state a lot of money, so we were not terribly surprised when the DOT sought review…

Continue Reading NC: “Map Act,” Which Designates Property For Future Highway Acquisition — And Prohibits Development In The Interim — Is A Taking

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A very good crowd for today’s Oregon Eminent Domain Conference in Portland. 

Here are the links to the cases and other materials that we spoke about today in our session “Inverse Condemnation and Regulatory Takings – Issues and Trends.”  

Our thanks to Planning Chairs Jill Geleneau and Paul Sundermier for putting together a great program, and for inviting us to speak. 

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Continue Reading Links From Today’s Oregon Eminent Domain Conference

Despite all of the parties in the case calling for the removal of the hearing officer selected by the Board of Land and Natural Resources to conduct the contested case after remand by the Hawaii Supreme Court as we noted just a couple of days ago, the Board has — somewhat surprisingly — refused to do so. 

Here’s the Order, which concluded:

The Board is concerned that, taken to its logical extreme, ensuring a contested case process that subjectively “appears to be fair” to every possible person who takes an interest in the TMT project would likely necessitate not only the disqualification of Judge Amano but of every potential hearing officer who otherwise possessed the acumen to hear this case. No qualified hearing officer candidate is likely to satisfy all spectators and remove all fears of reversal. The Board will not go down this rabbit hole. Instead, the…

Continue Reading “Common Sense Must Prevail” – Agency Won’t Remove TMT Hearing Officer

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As we head into the weekend, one more reminder about two worthwhile eventss being staged next week: 

  • Monday, June 6, 2016: “Airbnb & Zoning: A Planner & Lawyer’s Guide to Short-Term Rentals,” with our ABA and Owners’ Counsel colleague Dwight Merriam, FAICP. From the Planning and Law Division of the American Planning Association. Details here. If issues about the “sharing economy” like AirBnB, Uber, Lyft, and similar operations, and how they work in the regulatory environment are of interest, you might want to consider joining us at the ABA: we’ve just formally launched a new group within the Section of State and Local Government Law dedicated to these pressing legal questions. Stay tuned here for a separate post on how to join us.  
  • Thursday & Friday, June 9-10, 2016: Oregon Eminent Domain Conference, Portland. We’ll be speaking at that one. The focus is on Oregon

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Continue Reading Seminar Reminder: Oregon Eminent Domain; Sharing Economy Issues

Hawaii News Now – KGMB and KHNL

Hawaii News Now came calling yesterday, looking for commentary about the latest in the case challenging the proposed Thirty Meter Telescope on the Big Island’s Mauna Kea. We obliged.  

As you know, we’ve been following the case. It’s already been up to the Hawaii Supreme Court, which unanimously invalidated the Conservation District Use Permit which the State Board of Land and Natural Resources had previously issued. The court correctly held that the BLNR should not have issued the permit (even if the permit didn’t allow construction to begin) before it conducted the contested case to consider the objections of the challengers. This process, the court emphasized, “lacked both the reality and appearance of justice.” In other words, it looked really bad to grant a permit and only then consider objections. 

The court remanded the case to the Board for a reboot. 

Once…

Continue Reading The Latest On The Thirty Meter Telescope Case: Everyone Wants The Hearing Officer Removed