For those of you sticking around Chicago after the ABA Annual Meeting, there’s the opportunity for even more land use, zoning, takings, and condemnation programming. ALI-CLE (fka ALI-ABA) is putting on it’s annual Land Use Institute later this week. It looks like Planning Co-Chairs Gideon Kanner and Frank Schnidman have put together a wide-ranging agenda, and stellar faculty, as usual.
Details, including registration information, here.Continue Reading Chicago Part II: Land Use Institute
This just in: in Leone v. County of Maui, No. 29696 (June 22, 2012), the Hawaii Intermediate Court of Appeals held that a plaintiff alleging a regulatory taking is not required to seek an amendment to a Community Plan in order to ripen her claim. A CP amendment is a legislative act, and plaintiffs are not required to try to change the law before they seeks just compensation.
The trial court determined the plaintiffs’ regulatory takings claims were not ripe because they should have tried to change offending land use regulations which allegedly deprive their property of all economically beneficial uses. The trial court’s decision is available here.
Disclosure: we filed an amicus brief in the case in support of the property owner, arguing that Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985) does not require a takings plaintiff to…
Thanks to the Land Use Prof Blog for getting the word out about the most recent documentary from filmmaker Gary Hustwit, “Urbanized,” which will have its Hawaii premier this weekend as part of Interisland Terminal‘s “Manufacturing Reality” film series.
The film examines how cities are designed — whether on purpose or though usage — and what works and what doesn’t. It covers a range of issues: zoning, architecture, mass-transit, sewage, redevelopment, sprawl, smart growth, and economic inequality. Urbanized features planners, architects, artists, and lawyers (including colleague Grady Gammage, Jr., with a different perspective on “sprawl” in Arizona), discussing their visions of urban design.
From the film’s description page:
Urbanized is a feature-length documentary about the design of cities, which looks at the issues and strategies behind urban design and features some of the world’s foremost architects, planners, policymakers, builders, and thinkers. Over half the world’s population …
Continue Reading Honolulu Premiere: “Urbanized” – Designing Cities, Working Cities
Recently, in Intellectual Laziness on the Supreme Court, a short essay about the Supreme Court’s recent Equal Protection decision about unequal property assessments, Professor Richard Epstein wrote, “[i]t’s time to scrap the irrational ‘rational basis test.'” Decisions like the Ninth Circuit’s recent opinion in Samson v. City of Bainbridge Island, No. 10-35352 (9th Cir. June 15, 2012) make you think he’s onto something.
We were about to do a detailed post about the case, when our partner Mark Murakami beat us to it, so we won’t repeat the facts or the panel’s analysis (more accurately, lack of analysis, given the application of the “rational basis” test) here. Instead, we offer these thoughts:
Check out United States v. 32.42 Acres of Land, No. 10-56568 (9th Cir. June 14, 2012), the case in which the Ninth Circuit held that a federal taking of state land (for a Navy base in San Diego) extinguishes the state’s tidelands public trust, even if the property is later conveyed to a private party. California argued that the state’s public trust lay dormant while the feds held the property, but was “quiescent” and would “re-emerge” upon any transfer from the U.S. to a private party.
We won’t go through the facts of the case (the opinion is short, and an interesting read), but here’s the short story: the feds condemned state-owned land, which was subject to California’s common law public tidelands trust because it was under water at the time of California’s admission to the Union. The state argued that its public trust rights would essentially lie dorman…
Continue Reading 9th Circuit: Federal Eminent Domain Power Trumps Equal Footing Doctrine
The Hawaii Intermediate Court of Appeals issued an opinion yesterday in Pavsek v. Sandvold, No. 29179 (June 13, 2012), holding that a person complaining about a vacation rental cannot circumvent the City’s enforcement procedures and the administrative appeal process by instituting an original jurisdiction lawsuit claiming that a homeowner is renting her property in violation of the City’s prohibition on rentals of less than thirty days:
We hold that: (1) HRS § 46-4(a) does create a private right of action in favor of a real estate owner directly affected by an alleged LUO [Land Use Ordinance] zoning violation, but that the owner’s action is subject to the doctrine of primary jurisdiction; (2) under the doctrine of primary jurisdiction, the Pavseks are required to seek an administrative determination of their claim that their neighbors have been violating the LUO before proceeding with their suit to obtain judicial enforcement of the…
Continue Reading HAWICA: Must Pursue Administrative Process To Object To Vacation Rentals
Last week, we were on the Rick Hamada program on KHVH-AM, summing up the recent Hawaii Supreme Court oral arguments in Kaleikini v. Yoshioka, No. SCAP-11-0000611, the appeal asking whether archaeological review must be completed for the entire 20-mile length of the Honolulu rail project, or whether it can be done on a “phased” or segment-by-segment basis. (A preview and briefs are posted here.)
Here’s a “video” (no picture, this is radio).Continue Reading More Thoughts On Honolulu Rail And The Sufficiency Of Archaeological Review
This just in: the Ninth Circuit has issued an opinion in Kaahumanu v. State of Hawaii Dep’t of Land and Natural Resources, No. 10-15645 (June 6, 2012), the case challenging the State’s regulation of commercial weddings on state beaches under the First Amendment. The court mostly upheld the regulations, but struck down the power of government officials to revoke a permit and modify it.
More, after a chance to digest the opinion.
Kaahumanu v. Dep’t of Land and Natural Resources, No. 10-15645 (9th Cir June 6, 2012)Continue Reading 9th Circuit: Hawaii’s Regulation Of Commercial Beach Weddings Does Not Violate First Amendment, Except…
Watch this case: it is likely to be a landmark in Hawaii water law.
Hawaii water law cases tend to be vast adventures in history, culture, irreconcilable arguments, and oddball doctrines (e.g., appurtenant water rights are keyed to the amount of taro under cultivation at the time of the 1848 Mahele), and the appeal to be heard by the Hawaii Supreme Court on Wednesday, June 6, 2012, starting at 9:00 a.m., appears to be no different. It seems to have something for everyone: appellate jurisdiction, administrative law (the old metaphysical question of what is a “contested case”), instream flow standards, Native Hawaiian rights, and the public trust in water resources.
Here’s the description of In re `Iao Ground Water Management Area High-Level Source Water Use Permit Applications and Petition to Amend Interim Instream Flow Standards of Waihe`e River and Waiehu, `Iao, and Waikapu Streams Contested Case Hearing…
Continue Reading HAWSCT Oral Arguments: The Next Big Hawaii Water Case
It’s a frequent question: does appellate oral argument really matter?
We’ve always harbored the belief that it does in some cases, and if you have any doubts, look no further than today’s Ninth Circuit opinion in Nordyke v. King, No. 07-15763 (June 1, 2012), where the en banc court essentially concluded that the issue (whether a county ordinance that makes it a crime to possess a firearm at the County Fairgrounds violates the Second Amendment rights of gun show exhibitors) was moot because the county’s attorney at oral argument informed the court that the county now interpreted the ordinance to prohibit only “actual possession” of a gun, and not to bar display of a “properly secured firearm,” and that subject to this limitation, gun shows can take place at the fairgrounds. Under that interpretation, the ordinance does not ban guns and is only a reasonable regulation.
Three judges…
Continue Reading Does Appellate Oral Argument Matter? You Bet