Land use law

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We couldn’t post much last week due to a pressing engagement on Friday before a three-judge federal district court (the case challenging Hawaii’s latest state reapportionment plan on Equal Protection grounds in which we represent the plaintiffs — more here). But the court took the matter under submission, so while we are awaiting a ruling we can clear off some of the backlog of items.

First, you will recall R&J Holding Co. v. Redevelopment Authority of Montgomery County, 670 F.3d 420 (3d Cir. Dec. 9, 2011), a case we detailed here, in which the Third Circuit held that a property owner did not actually or impliedly litigate its federal takings claims in an earlier state court case, and thus actually allowed a property owner to raise its federal constitutional claims in federal court.

Apparently, a property owner even having a chance of vindicating its federal constitutional rights…

Continue Reading Amicus Brief: Federal Takings Claims And State Law Claims … Ehh, What’s The Difference?

Update: the latest in the latest Williamson County-related cert petition here.

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If you tried to explain the practical results of Williamson County‘s ripeness requirements to someone not familiar in the last 30 years of regulatory takings jurisprudence, they would probably think you were joking.

As we’ve explained many times, under Williamson County, a property owner alleging a violation of her express federal constitutional right prohibiting takings without just compensation cannot bring that federal constitutional claim in a federal court. Instead, she is first required to present her state claim for compensation to a state court before she can even think of a federal action. And if she loses in state court, she will be deemed to have also litigated the federal claim, even if she expressly did not. Williamson County‘s rationale was that there is no violation of the Fifth Amendment by a state…

Continue Reading Fifth Circuit: Williamson County Ripeness Does Not Bar Due Process Claim In Federal Court

Update: Ben Lowenthal provides his analysis of the opinions here.

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The Hawaii Constitution gives Native Hawaiians — those who can trace their ancestry to inhabitants of Hawaii prior to western contact — a privilege to engage in “customary or traditional practices” that, in some cases, immunizes them when others who lack that one drop of Hawaiian blood would be liable. See Haw. Const. art. XII, § 7. For example, in some cases where a native Hawaiian enters land he or she does not have the right to access, the constitutional privilege may excuse liability for civil or criminal trespass. The only limit on the privilege in the text of the constitution is “the right of the State to regulate such rights.”

The constitution also does not define what activites might qualify as “traditional and customary practices,” and the question has vexed Hawaii courts since the Supreme Court…

Continue Reading HAWSCT Continues To Grapple With What Qualifies As “A Constitutionally Protected Customary Or Traditional Native Hawaiian Practice”

There is still time to register for the Eminent Domain & Land Use in Hawaii seminar, to be held this Thursday, May 12, 2012, in downtown Honolulu. Along with James Mee, I am leading the session “Eminent Domain Update” in which we will talk about the latest in public use issues from the U.S. and Hawaii Supreme Courts, and other recent developments in condemnation law.

The Chair of the program is my Damon Key partner Mark M. Murakami. Also on the agenda is a session on potential burials issues in the rail project with another Damon Key partner, Greg Kugle, and a session on rail bid protests with Anna H. Oshiro. The final session of the day will be devoted to ethics, so you can get your MCLE credit requirement at least partially fulfilled for this year.

The complete faculty list and agenda is available here…

Continue Reading Honolulu Eminent Domain Seminar – May 12, 2012

We’ve been meaning to post the latest developments in a case we’ve been following, two lawsuits that originated in state court in the Third Circuit (Big Island), one an original jurisdiction civil rights lawsuit, the other an administrative appeal (that’s a writ of administrative mandate for you Californians) against the State of Hawaii Land Use Commission.

Our colleague Paul Schwind provided a comprehensive guest post on the civil rights case, and summarized the facts that led to both lawsuits here. In short, the Land Use Commission reclassified (rezoned) property as a sanction after it asserted the developers failed to comply with certain conditions, chief among them to provide a certain number of “affordable housing” units by a certain date.

The State removed the civil rights lawsuit to U.S. District Court in Honolulu and promptly moved to dismiss, and this portion of the case nearly caused us to…

Continue Reading Court: State Land Use Commission Exceeded Its Authority, Violated Developers’ Due Process And Equal Protection Rights

Most likely, by the time you read this, the Supreme Court will have decided whether to grant cert in Harmon v. Kimmel, No. 11-496 (cert. petition filed Oct. 17, 2011), the case challenging New York City’s residential rent control law as a taking, among other things. Today, you see, is the day the Court is scheduled to hold its conference to decide whether to do so.

We mere mortals won’t know what the result of the conference is until next week, of course, but we thought we’d get you ready. Use the time to review the key briefs:

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Continue Reading Conference Day For New York Rent Control Challenge

Here’s the latest in a case we’ve been following, a tale from New York that reminds us of the U.S. Supreme Court’s decision in Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). Every takings lawyer worth his or her salt knows that Loretto stands for the proposition that a regulation allowing a physical invasion of private property — no matter how de minimus the invasion might be — is a per se regulatory taking. In that case it was the cable TV company that attached a small box to Mrs. Loretto’s building.

In Corsello v. Verizon New York, Inc., No. 51 (Mar. 29, 2012), the New York Court of Appeals held that when the telephone company “attached a box to a building that plaintiffs own, and used the box to transmit telephone communications to and from Verizon’s customers in other buildings,” the property owner could…

Continue Reading Loretto Redux: NY Court Of Appeals Revisits An Old Friend

There’s a feature story in today’s Honolulu Star-Advertiser, “Red tape ties up groups’ fishpond restorations,” about a local caretaker group’s frustration with “government rules” they claim are thwarting their efforts to fix up a traditional littoral fishpond.

For those of you not familiar with these centuries-old aquacultural structures designed to catch and raise fish that once dotted the shores of most every Hawaiian island, check out Kaiser Aetna v. United States, 444 U.S. 164 (1979), the U.S. Supreme Court’s decision upholding the private nature of these structures. For a slightly more recent case protecting the private status of a  fishpond on Molokai see Boone v. United States, 944 F.2d 1489 (9th Cir. 1991). Disclosure: we represented the property owners in both cases.

The S-A story is mostly behind a paywall, so for those without subscriptions or access to the hard copy, here’s the short…

Continue Reading Trickle-Down Regulation: Environmental Maze Becomes “Stumbling Block” For The Little Guys

Here’s the state’s BIO in Harmon v. Kimmel, No. 11-496 (cert. filed Oct. 17, 2011), the case challenging New York City’s rent control ordinance as a due process violation and as a taking. We posted the cert petition and the three amicus briefs in support here.

Both respondents waived their rights to file a BIO, but in December, the Court requested responses. Last week, we posted the City of New York’s BIO here.

Here’s the Court’s docket page for the case.Continue Reading State’s BIO In New York Rent Control Case

Here’s the BIO in Harmon v. Kimmel, No. 11-496 (cert. filed Oct. 17, 2011), the case challenging New York City’s rent control ordinance as a due process violation and as a taking. Although the respondents waived their right to respond, the Court requested they file an opposition.

We posted the cert petition and the three amicus briefs in support here.

The BIO argues that Yee v. City of Escondido, 503 U.S. 519 (1992) forecloses the takings claim (it “removes any basis for petitioners’ argument that the [Rent Stablization Law] effects a physical taking of their property”). It also argues that the RSL is “rational,” and does not violate due process:

The RSL addresses a pressing local problem. “In contrast to the rest of the country, most New Yorkers do not own the homes in which they live.” New York City Rent Guidelines Board, 2011 Housing Supply Report…

Continue Reading BIO In New York Rent Control Case: Market Rents Are “Unjust, Unreasonable, And Oppressive”