Land use law

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Yesterday, we posted our thoughts on a recent article in Hawaii Business magazine about land use, environmental law, and the Hawaii Supreme Court.

In “‘Let ‘Em Eat Cake’ Comes to Hawaii, Professor Gideon Kanner has added his thought on the article. He comments on the article’s conclusion that “[i]f we don’t like the [environmental] laws anymore, we can elect officials to change them.” by writing:

Hawaii Business magazine have never heard about the principle that statutes have to be constitutional? Would they make the same argument in the case of overreaching criminal laws? Racial segregation laws? Laws impairing the exercise of the First Amendment?

…

Moreover, under the “reasoning” of these idiots, no law need be constitutional because if the legislature disregards a provision of the Bill of Rights, we can tell the complaining citizens to be better electors next time and to elect more constitutionally sensitive representatives.

Lord in heaven! Is there no limit to these guys’ stupidity? Evidently not.

Read his entire commentary here. By the way, before you are tempted to dismiss Professor Kanner as an outlander (yes, Justice Scalia really did call out-of-staters “outlanders” in a recent oral argument), his ties to Hawaii and his knowledge of our ways go way, way back.
Continue Reading Strong Letter To Follow…

oral Several justices (Justice Acoba, Justice Pollock) appeared quite hostile to the DLNR’s position. Their questions went beyond the usual “devil’s advocate” type questions where the questioner is testing a theory, or speaking through counsel to the other justices.

The Judiciary’s web site summarized the issues argued:

On January 11, 2008, Respondents Craig Dobbin and Wagner Engineering Services, Inc. filed a shoreline certification application with the Department of Land and Natural Resources (the DLNR) to certify the shoreline location on property owned by Dobbin. The DLNR approved the shoreline, and Petitioners Caren Diamond and Beau Blair appealed the certification to Respondent Board of Land and Natural Resources (the BLNR). The BLNR subsequently denied Petitioners’ appeal and certified the shoreline. Petitioners appealed the certification to the circuit court of the fifth circuit. The court held in favor of Petitioners, and remanded the case to the BLNR with instructions to give due…

Continue Reading Hawaii Supreme Court Gets Into The Weeds On Shorelines

In “Why big development is so difficult in Hawaii,” Hawaii Business magazine tackles an issue first raised by U. Hawaii lawprof David Callies in recently-published law review article (and follow-up interview), where he labeled the record of the 1993-2010 Hawaii Supreme Court on property issues “appalling” (80% overall success rate for environmental and native Hawaiian litigants, 65% of cases reversing the Intermediate Court of Appeals). As Callies said in an earlier presentation, “ninety percent of the time, government and the private sector are wrong? Give me a break.” (Remember, this is the court that concluded that “western concepts” of property law such as exclusivity are “not universally applicable in Hawaii.”)

Callies’ conclusions sparked reaction from his academic colleague environmental lawprof Denise Antolini, who defended the court’s environmental jurisprudence in an article on the grounds that it wasn’t so much focused on outcome, but on process.

Continue Reading Hawaii Business Mag Story Misses The Big Issue On Development, Environmental Law, And Land Use

Here’s one of those owner-puts-up-a-fence-that-is-actually-on-his-neighbor’s-property situations, this time with a very Hollywood twist.

The owner, you see, was Larry Hagman, of Dallas and I Dream of Jeannie fame. Seems the fence between his Ojai, California property and that of his neighbors, a religous group, was .44 acres into their land, and Hagman claimed it by adverse possession. In Hagman’s quiet title action, the trial court granted him summary judgment.

In Hagman v. Meher Mount Corp., No. B239014 (Apr. 3, 2013), the Court of Appeal affirmed. The court held that Meher Mount’s property is not immune from adverse possession by virtue of it being owned by a “public benefit corporation,” because that is not the same as a “public entity.” The latter are “vested with some degree of sovereignty.” Slip op. at 4. Even though public benefit corporations like Meher Mount require government approval, “[t]hey are not…

Continue Reading J.R. (Or Major Nelson) Adversely Possesses Neighbor’s Land

Here’s what’s on our reading list today:

  • Here’s the latest chapter in the saga of one Fane Lozman, whose titling at windmills got some Supreme Court love recently when the Court held that his floating home was not a “vessel” under admiralty law, and a Florida city was wrong to seize it. My Damon Key colleague Mark Murakami reports on the 11th Circuit’s recent ruling in Lozman’s related federalcivil rights case. Houseboat Redux – Eleventh Circuit Reinstates Lawsuit (via Hawaiioceanlaw.com). 

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Continue Reading Wednesday Round-Up: Houseboat Redux, Backtracking Post-Kelo, Arkansas Game Remand, Big Gulps

Today, on behalf of the Cato Institute and a coalition of Western-state public policy and research foundations, we filed this amicus brief in supporting the City of Tombstone‘s cert petition in City of Tombstone v. United States, No. 12-1069 (cert. petition filed Feb. 27, 2013).

In that case, in 2011 a forest fire in the Coronado National Forest and later monsoon rains damaged the city’s sources of municipal water. The city and the State of Arizona declared a State of Emergency, but the U.S. Forest Service limited repair efforts by requiring the city to apply for a special permit and placing limitations on its use of equipment. Because it alleged the loss of water from these sources limited its ability to repond to fires, Tombstone sought a preliminary injunction prohibiting the Service from impeding its repair efforts. The District Court denied the injunction, and the Ninth Circuit…

Continue Reading Amici Brief: The Tenth Amendment, The Property Clause, And The “Town Too Tough To Die”

Our state courts may be closed on this Good Friday, but the courts of most other states’ are not, Texas courts included. So here’s an opinion issued today by the Texas Supreme Court, El Dorado Land Co. v. City of McKinney, No. 11-0834 (Mar. 29, 2013).

[Update: more on the case here from the Supreme Court of Texas Blog, including links to the briefs and the oral arguments.]

El Dorado sold the city some land for use as a park. The conveyance required that the land “shall be used only as a Community Park,” and if not used for that purpose, then El Dorado would have the right to buy the land back.

Ten years later the city built a public library on part of the land, which resulted in El Dorado reminding the city about that “park” use requirement by giving notice that it was…

Continue Reading Texas: A Future Interest Is A Property Interest

Before the title of this post causes you to flee, please bear with us.

Oral arguments have just concluded in the Hawaii Intermediate Court of Appeals in a fascinating case involving the nature of “Torrens” title and, in a broader sense, the nature of property rights themselves. Disclosure: we filed an amicus brief in the case in support of the property owner. But more on that below.

Hawaii is one of the few remaining states retaining its Torrens system of title registration (two others are Massachusetts and Minnesota). We call it “Land Court,” a system in which the State guarantees indefeasible title to the rights and interests reflected in the title register.  

In In re Trustees Under the Will of the Estate of James Campbell, No. 30006, the State of Hawaii claims that title to property on Oahu’s north shore which was registered and confirmed to the Campbell Estate…

Continue Reading HAWICA Appeal: Is A Mineral Right An Inherent Servitude, Or Must It Be Reflected In Torrens Title?

If this article — Christie tells beachfront owners to sign easement for dunes or face ridicule — accurately relays the entire context of the situation, then something is seriously off here.

The article quotes New Jersey Governor Chris Christie as declaring that if shoreline property owners do not voluntarily surrender easements and allow the construction of sand dunes on their land (presumably without compensation) very soon, then he’s going to “call them out” and publicly name them:

“We’re going to start calling these folks out in the next few weeks if they haven’t signed the easements to let us build the dunes because they need to be called out and they need to be told that there is something more important than their own self interests,” he said during a town hall-style event in Middlesex Borough.

He followed that up with his reasoning:

“I’m not going to put up with…

Continue Reading Tail Gunner Christie: What’s Next, The Pillory And The Stock?

No, the title to this post is not based on a character from a future Harry Potter book, but a wonderful phrase borrowed from German into the world of chess. “Zugzwang,” for those of you who are neither German-speakers nor chess players, describes a situation in which a player is in a good position, but any move will put her in a worse position. And move she must.

That’s what many property owners’ lawyers feel like when that regulatory takings case walks though their doors and they are asked “do we file now or later, and in which court?” You file now, and you may spend years litigating whether the case is ripe because it is alleged that you acted too soon. Wait, and you will be facing an argument that the statute ot limitations has run. Zugzwang. Same goes for which court, state or federal. File…

Continue Reading Zugzwang Thwarted: Florida Property Rights Act Claim Timely Filed