Land use law

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As we predicted in our oral argument preview, the Hawaii Intermediate Court of Appeals made short work of the issues in City & County of Honolulu v. Sherman, No. 28945 (Dec. 27, 2011). Just two weeks after oral argument, the court issued its opinion (unpublished; again, not a surprise).

The court concluded that the “chapter 38” takings were correctly dismissed, and (in the more interesting part of the opinion), that the trial court should have considered and awarded the property owner the attorneys fees and costs it sustained as a result of an earlier appeal which did not result in an outright landowner victory, but merely a remand for further consideration. On remand, the trial court dismissed the eminent domain case.

The ICA relied on County of Hawaii v. C&J Coupe Family Ltd. P’ship, 120 Haw. 400, 208 P.3d 713 (2009), which held that if an eminent…

Continue Reading Hawaii Ct App: Attorneys Fees And Costs For Eminent Domain Appeals

Once again, our old friend and colleague Paul Schwind is following an interesting ongoing case. We’ve been tracking the “Bridge Aina Le`a” litigation, but have not had the time to digest the latest developments in a comprehensive fashion and Paul attended the recent federal court hearing in the federal phase, and has kindly provided us with the details. 

The litigation is a series of 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). 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 flash back to our Federal Courts class in law school, since it raised a host of procedural questions such as the…

Continue Reading Guest Post: Federal Courts Flashback – Takings And Vested Rights Challenge To Land Use Commission

Harmon

In Landlord’s Uphill Fight to Ease Rent Restrictions, The New York Times reports on the Harmon cert petition (we posted the petition and the amici briefs in that case here), a challenge to New York City’s rent control ordinance.

We won’t rehash our thoughts on the case, but wanted to point out what we thought was the most revealing passage from the Times article:

Mr. Harmon said he had appealed to his assemblywoman, Linda B. Rosenthal, a strong supporter of rent regulations. Ms. Rosenthal said Mr. Harmon had asked for an exception to rent regulations for his building, which she found untenable because it would, she said, extend to thousands of other people in “the vanishing middle class.”

“I understand he thinks he could make more money, that he is being deprived,” she said. “But I have so many constituents who would willingly trade his problems for theirs.”…

Continue Reading It’s Others’ Property, You Just “Own” It*

China has been on our mind lately. Maybe it’s our recent attendance at the Brigham-Kanner property rights conference held in Beijing in October. Maybe it’s last week’s talk to our law firm by an old friend on lessons that can be learned from China’s move from communism to a market economy.

Whatever is causing China to be on our radar lately, here’s the latest big story, on Wukan, the village presently under seige after a mass protest objecting to the sale of village land for real estate development. The above video is not in English, but it doesn’t take a translator to get the drift. The print media is also reporting on the situation:

Gideon Kanner has also been following the story (start here…

Continue Reading Is “Wukan” Chinese For “Kelo?”

Here’s the respondent’s merits brief in Filarksy v. Delia, No. 10-1018 (cert. granted Sep. 27, 2011), the case in which the U.S. Supreme Court is considering whether a private lawyer hired by a local government is entitled to claim the same immunities from section 1983 lawsuits as his government-employed counterparts.

We filed an amicus brief supporting the petitioner for the American Bar Association, arguing that he should be able to claim those immunities. Other amici weighed in on the petitioner’s side also.

Brief of Respondent, Filarsky v Delia, No. 10-1018 (filed 12-14-2011)bsContinue Reading Respondent’s Merits Brief In Filarksy: Is A Private Lawyer Retained To Represent Government Entitled To Claim Qualified Immunity?

We’re gearing up for a Supreme Court argument tomorrow, so don’t have time at the moment to digest the entirety of today’s opinion in Avenida San Juan P’ship v. City of San Clemente, No. G043479 (Cal. Ct. App. Dec. 14, 2011). But a quick glance tells us we’re going to like it.

A California trial court concluded that the city’s zoning a 2.85 acre parcel with a density of one house per 20 acres, while the surrounding properties are zoned at a density of four houses per acre was unconsitutional “spot zoning.” The court issued a writ of mandate (remember, this is California) ordering the City to accept the property owner’s application to develop four houses on the parcel.

The trial court also found a Penn Central taking and ordered the City to either comply with the writ or pay $1.3 million in just compensation for the…

Continue Reading Cal Ct App To City: Either Reverse Your Unconstitutional Spot Zoning, Or Pay. Your Choice.

A Warning

A bit of warning before we start: this is going to be a long post. Not because the issues in City & County of Honolulu v. Sherman, No. 28945, being argued on Wednesday, December 14, 2011 at 9:00 a.m. in the Intermediate Court of Appeals are particularly interesting, but because this case has been hanging around for years (the briefing was completed in 2008 — yes, you read that right: over three years ago) and this is the second time this case has been to the Hawaii appellate courts. The first trip produced a published opinion by the Supreme Court, City & County of Honolulu v. Sherman, 110 Haw. 39, 129 P.3d 543 (2006) (we analyzed that opinion here).

Thus, there’s a lot of background to cover. Besides, eminent domain appeals don’t crop up all that often in the Hawaii courts so when they…

Continue Reading Oral Argument Preview: The Last Gasp Of Honolulu’s Condo Eminent Domain Law, And Damages For Failed Takings

So you think you’ve seen accretion (the growth of new land on littoral or riparian property)? Check out the above video (also here), showing the latest dramatic lava flow on the Big Island of Hawaii. Now that’s accretion.

Is there a legal angle to this? Of course there is. To start you off, here’s a multiple choice test.

Who owns the new land created when lava flows over private property and into the sea and hardens into fast land:

A.  The property owner over whose land the lava flowed.

B.  The United States.

C.  The State of Hawaii Office of Hawaiian Affairs.

D.  The State of Hawaii.

(And you thought weird hypotheticals only occurred in law school exams.) A hint: the issue was resolved by the Hawaii Supreme Court in 1977, in an opinion authored by Chief Justice William Richardson.

Seriously, do you need to know anything…

Continue Reading “Accretion,” Hawaii Style

The old adage is that a waterway is “navigable” for purposes of federal law if it is deep enough to float a Supreme Court opinion. Seriously, though, the less cheeky test of navigability is whether a waterway is capable of being used in its natural state as an avenue of commerce, meaning whether it was actually navigable at the time of a state’s admission into the Union. Really, that’s the test.

But as the Supreme Court reminded more than 30 years ago, when applying this general test for navigability, you must keep in mind the purpose  

T

Wednesday’s oral arguments in PPL Montana v. Montana, No. 10-218 (cert. granted June 20, 2011) started off on familiar territory with Justice Kennedy breaking the ice quickly, asking Petitioner’s counsel Paul D. Clement whether his point is “that there should be a Federal rule of — laches or estoppel, or are…

Continue Reading What Does It Mean To Be “Navigable?” – Supreme Court

Today’s post is by an old friend and colleague, Paul Schwind. He’s been following the federal litigation challenging the $4+ billion Honolulu rail project, and attended last week’s hearing. We asked him to write a guest post so the rest of us could come up to speed.

Update: December 13, 2011

In Honolulutraffic.com et al. v. Federal Transit Admin. et al., Judge Tashima issued his Order on December 12, denying Defendants’ Motion for Partial Judgment on the Pleadings. In essence, he followed the legal standard that requires that all doubts must be resolved in the light most favorable to the non-moving party (plaintiffs), where issues of material fact remain.  Therefore, the moving party (defendant) is not entitled to judgment as a matter of law. 

Judge Tashima pointed out that in this case, the full administrative record is not yet available to establish whether certain plaintiffs did not comment on…

Continue Reading Guest Post: The Federal Court Challenge To Honolulu Rail Project