Land use law

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There’s still time to register and attend the upcoming seminar,”Hawaii’s Shoreline and Coastal Law and Regulation.” It’s scheduled for Friday, July 18, 2014, in downtown Honolulu at the YWCA. Here’s the description:

This program will cover recent Hawaii case law, including the recent Hawaii Supreme Court decision regarding identifying the certified shoreline. Now, more than ever, with the realization that we need to plan for the impacts caused by our changing climate, existing regulations and policies will need to change.

Join Program Chair Jesse K. Souki, First Deputy of the State of Hawaii’s Department of Land and Natural Resources. He leads an outstanding faculty for these topics:

  • Natural and Anthropogenic Shoreline Change in Hawaii and Field Methods for Locating the Certified Shoreline
  • Land Use Laws Affecting Coastal Development in Hawaii
  • Recent Hawaii Case Law
  • The Changing Face of Public Policy: Legislative Issues and Dilemmas
  • Understanding the Regulatory

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Continue Reading Upcoming CLE: Hawaii’s Shoreline and Coastal Law and Regulation

Here’s what caught our attention today:

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Continue Reading Friday Round-Up: Eminent Domain, Cal Food Fight Ends (Maybe), Midwest Flooding

There’s still time to register for one or more upcoming CLE programs sponsored by the ABA Section of State and Local Government Law:

I’ll be part of the “Hot Topics in Land Use” panel, speaking about recent developments in regulatory takings. These are replays of the in-person programs we put on at the recent Spring Meeting in Asheville, NC.

Register for all three programs and receive a 20% discount. Continue Reading Upcoming CLE Trifecta: Hot Topics In Land Use Law, Heirs Property, Urban Ag (July 15, 2014)

Here’s an interesting one from the Iowa Supreme Court, in which the issue is whether the federal Clean Air Act preempts a property owner’s state-law nuisance claim.

In Freeman v. Grain Processing Corp., No. 1309723 (June 13, 2014), the issue was whether property owners could assert trespass and nuisance claims under Iowa law against a nearby facility which in the process of converting corn into ethanol and corn syrup, releases what are alleged to be harmful chemicals into the air. The court undertook a detailed analysis, concluding that the CAA does not preempt common law trespass and nuisance claims.

Characterized by one of the amicus parties as “A Victory for Property Rights,” the opinion recounts the history of the CAA, and public and private nuisance claims as a form of private environmental law. There’s a lot of detailed rationale set out in the opinion, but the short …

Continue Reading Iowa: Common Law Nuisance Claim Not Preempted By Clean Air Act (Even In The “Age Of Statutes”)

Here is the recording of last month’s Hawaii Supreme Court oral arguments in Bridge Aina Lea Dev., LLC v. Bridge Aina Lea, No. CAAP-13-0000091.

This is the state court half of the case. The federal court half is pending in the Ninth Circuit, which, after oral arguments earlier in June, decided to hold off on deciding the appeal until after the Hawaii Supreme Court issued its decision in this case. 

Both cases started off in state court in the Third Circuit (Big Island), one an original jurisdiction civil rights lawsuit, the other an administrative appeal from a decision of the State Land Use Commission. The essence of the plaintiff’s allegations is that the LUC wrongfully amended the land use boundaries from urban to agriculture. Many years earlier, the LUC had amended the boundary to urban on the condition that the owner provide a certain number of affordable…

Continue Reading HAWSCT Oral Arguments In In Bridge Aina Lea: LUC Reclassifications And Orders To Show Cause

We don’t need to tell all you non-New Yorkers that the New York Court of Appeals is the state’s highest appeals court, do we? We watched enough Law and Order to know that what most everywhere else calls a “supreme court” is the “Court of Appeals” in the Empire State.

With that out of the way, we get to today’s case, a 5-2 decision by the New York Court of Appeals in two cases where “fracking” is the issue. Or, more accurately, two municipalities which used their zoning power to ban the practice. The court allowed them to do so, holding that New York’s Oil, Gas and Solution Mining Law, which “supersede[s] all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries,” does not preempt the municipalities’ home rule zoning power. 

Wait a minute, you say, isn’t a ban on fracking a…

Continue Reading New York: Municipal Ban On Fracking Is Zoning, Is Not Preempted By State Law

Here’s a follow up to last week’s story on the “sit-lie” and “don’t use the bathroom in public” ordinances now being considered by the Honolulu City Council (see “As Judge Kozinski Said, It’s A Sidewalk, Not A Sideseat Or A Sidebed“). 

Today’s Star-Advertiser reports in “Sit-lie ban sought for all Oahu” that the scope of the ban may be expanded from Waikiki, and that the prohibition on urinating and defecating in public in Waikiki is also being proposed to include the entire City and County. In other words, island-wide. The sit-lie ban is also being considered as an all-day thing, not just the limited hours in the initial bill.

While limiting the hours and geographic scope of the sit-lie ban would seem to tacitly encourage this behavior in the off-hours and in other parts of town, the Seattle ordinance on which these things are…

Continue Reading Prohibiting Sitting Or Laying Down On Oahu’s Sidewalks 24/7 Makes Law More Susceptible To Challenge

Earlier, we posted the recording of the Ninth Circuit’s recent oral arguments in Bridge Aina Lea, LLC v. Chock, Nos. 12-15971, 12-16076, a case in which the court is considering whether State of Hawaii Land Use Commissioners have immunity from civil rights lawsuits, among other issues. The essence of the plaintiff’s allegations is that the State Land Use Commission wrongfully amended the land use boundaries from urban to agriculture. The State argued the District Court should have found the commissioners immune from suit, while the plaintiff cross-appealed, asserting the court, after abstaining, should have remanded the case to the state court where it was originally filed.

Two days after arguments were submitted, the Ninth Circuit panel unsubmitted the case and said that it would hold off on a decision pending a ruling from the Hawaii Supreme Court in the parallel state litigation (an appeal that will be argued later this…

Continue Reading Bridge Aina Lea 9th Cir Oral Argument Report: Hawaii Land Use Commission’s Immunity For Reclassification

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ALI-CLE, the good folks who put on the annual programs on Eminent Domain and Land Valuation, and Condemnation 101: How to Prepare and Present an Eminent Domain Case, have announced the dates and venue for the 2015 conferences:

Thursday – Saturday, February 5-7, 2015 

Hotel Nikko, in San Francisco.

Those of you who have attended or taught at these conferences in the past know they are the premier programs on this topic, and feature exciting presentations and excellent faculty.

I’ve been honored to be asked to serve as the Planning Co-chair of the 32d annual Eminent Domain and Land Valuation Litigation program, stepping into the able shoes of Leslie Fields, who retired last year. Joe Waldo is continuing as Planning Co-Chair. Joe and I are currently putting together the agenda and faculty for the program, and we will have more on that soon. Andrew…

Continue Reading Mark Your Calendars: 2015 ALI-CLE Eminent Domain and Land Valuation, and Condemnation 101 – February 5-7, 2015, San Francisco

Here are two recent reports on the progress of the Honolulu rail project that should be read in-tandem:

Both stories are partially behind a paywall, but here’s the relevant bits. The first story reports that HART, the city agency created to build and operate the rail is in “another race against time,” this time to acquire the private property it needs to build the rail’s easternmost stretch through Honolulu’s urban core (the tough part, in other words). According to HART, acquisition of access is “our single highest priority.” Which sounds like a big bite: HART Director “Grabauskas and HART staff say they’re aiming to do some 18 months of work negotiating those properties in only six months’ time. They intend to purchase approximately…

Continue Reading Honolulu Rail And The Use Of Eminent Domain