Municipal & Local Govt law

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If you were to try to predict the result in an appeal before the Ninth Circuit where the lead plaintiff is the “Alliance for Property Rights and Fiscal Responsibility,” the defendant is a municipality, and knowing nothing else, you’d probably have guessed wrong in this case.

In Alliance for Property Rights and Fiscal Responsibility v. City of Idaho Falls, No. 12-35800 (Dec. 31, 2013), the three-judge panel ruled unanimously in favor of the Alliance, holding that the city did not have the power to take property outside of its territory for the purpose of constructing electric transmission lines.

The panel (N.R. Smith, Schroeder, Thomas), held that the city lacked the power to take easements for power lines when state law did not delegate it the authority to act extraterritorially. The court started with the black-letter rule that munciipalities are creatures of state law, and cannot exercise powers not delegated…

Continue Reading 9th Cir: City Cannot Take Property Outside City Limits

Check this out. In Patel v. City of Los Angeles, No. 08-56567 (Dec. 24, 2013), the en banc Ninth Circuit concluded that a city ordinance which requires hotel owners to open guest records for inspection to the LAPD without a warrant constitutes a “search,” and that doing so is a facial violation of the Fourth Amendment. As summarized by the court:

Plaintiffs, who are motel owners in Los Angeles, challenged the provision of § 41.49 authorizing warrantless, on-site inspections of hotel guest records by any police officer. The en banc court held that a police officer’s nonconsensual inspection of hotel guest records under § 41.49 constituted a Fourth Amendment “search.” The en banc court also held that even under the more lenient Fourth Amendment principles governing administrative record inspections, § 41.49 was facially invalid. The en banc court concluded that in order for the city to comply with the Fourth Amendment, it must afford hotel operators an opportunity to challenge…

Continue Reading En Banc 9th Cir: LA Ordinance Allowing Inspection Of Hotel Records Facially Invalid

The U.S. Supreme Court has declined to review an interesting case we’ve been following, about that big glass viewing platform over the Grand Canyon.

As we noted here, in Grand Canyon Skywalk Development, LLC v. Sa Nyu Wa, Inc., 715 F.3d 1196 (9th Cir. Apr. 26, 2013), the issues mostly involve exhaustion, but there are some eminent domain questions that made the case worth following.  

The case involved the Hualapai Tribe’s efforts to condemn the rights of the non-Indian developer of the skywalk. A dispute arose between the developer and a corporation chartered by the tribe over a revenue-sharing contract, and while the corporation and the developer were arbitrating their disagreement, the tribe instituted an eminent domain action in tribal court to condemn the developer’s contractual rights.

The Ninth Circuit held that the developer would need to exhaust tribal remedies before the federal court could…

Continue Reading Interesting Cert Petition Denied: Can A Tribe Condemn Its Contract With A Nonmember?

Here’s one for you land users which details how the very broad way Hawaii Supreme Court treats claims of jurisidictional ripeness.

In Blake v. County of Kauai Planning Comm’n, No. SCWC-11-0000342 (Dec. 19, 2013), the court held that a third-party challenge to the Kauai Planning Commission’s subidivision approval was ripe for adjudication, and that the trial court should have exercised subject-matter jurisdiction. This case was not an administrative appeal under the Administrative Procedures Act, but nonetheless turned on the issue of whether a state agency had taken “final agency action” under the judicially-adopted doctrine of ripeness. The court concluded that the fact that a state agency’s approval which was necessary before a subdivision could go foward was not an impediment to a challenge to a county’s subdivision approval. 

The details of the case are set out at length in Chief Justice Recktenwald’s opinion, but here are the salient facts.

Continue Reading HAWSCT: State Agency Approval Not A Ripeness Bar To Challenge To County Approvals

Cover_42_3_ The Urban Lawyer, the law review produced by the ABA Section of State & Local Goverment Law has published an article which we wrote with our Damon Key colleagues Mark Murakami and Bethany Ace, Recent Developments in Eminent Domain: Public Use, 45 Urban Lawyer 809 (2013).

Here’s the Introduction to the article:

IN KELO V. CITY OF NEW LONDON, the United States Supreme Court held that a municipality’s exercise of eminent domain power supported only by claims that doing so would help the local economy was not a per se violation of the Public Use Clause of the Fifth Amendment. The Court’s majority—and especially Justice Anthony Kennedy’s concurring opinion, which provided the fifth vote to affirm—left open the possibility that some takings would not qualify. In the intervening time, however, the Court has not provided any guidance whatsoever about what takings it would consider unconstitutional private-to-private…

Continue Reading New Article: Recent Developments in Eminent Domain: Public Use

Here’s one that’s not a land use case, but since it involves procedural due process, is one that you land-usey types might find worthwhile.

Minton v. Quintal, No. SCWC-11-0000317 (Dec. 13, 2013) involved a claim by two stagehands at Honolulu’s Neil S. Blaisdell Center, owned and operated by the City and County of Honolulu.

Sidebar: perhaps the NBC’s primary claim-to-fame is that it was the venue for Elvis’ Aloha From Hawaii concert in 1973. The NBC’s second best claim-to-fame is that is was the venue where we sat for the Hawaii bar examination back in the day.

But back to our story. The two stagehands had a series of run-ins with actor-singer Nephi Hanemann during rehersals for a benefit concert. So far, a dust up of this sort would not be terribly noteworthy, or result in a lawsuit. But Nephi Hannemann’s brother is Mufi Hannemann, who was at…

Continue Reading HAWSCT: Right To Pursue A Profession Is A Liberty Interest, Protected By Due Process

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…or at least an appeal from a contested case.

The Hawaii Supreme Court has issued its latest opinion in the apparently eternal metaphysical question of the circuit courts’ appellate jurisdiction to review decisions under the Hawaii Administrative Procedures Act, Haw. Rev. Stat. § 91-14 of state and county agencies acting in their quasi-judicial capacities.  

As we’ve discussed many times, that statute gives the circuit courts jurisdiction to review agency final decisions in “contested cases” (agency hearings which are required “by law,” i.e., rule, statute, or due process requirements, and that determine the “legal rights, duties, or privileges of specific parties”).

“Contested cases” do not need to be labeled as such, but are fairly easy to identify: for the most part, they look like trials (witnesses, evidence, and the like). But not always so: pretty much any agency ruling in a that is the result of a hearing in…

Continue Reading HAWSCT: Demand A Contested Case, And There’s A Good Chance You’ll Get One

Cover_42_3_ The Urban Lawyer, the law review produced by the ABA Section of State & Local Goverment Law has published my article Recent Developments in Regulatory Takings, 45 Urban Lawyer 769 (2013).

Here’s the Introduction to the article:

THE SUPREME COURT’S 2012 TERM promised to be a banner year in regulatory takings law, with no less than three cases on the Court’s docket. In Arkansas Game and Fish Commission v. United States, a case involving a takings claim against the federal government for compensation resulting from a flood, the Court held that flooding need not be “permanent” in order to result in liability, and reinforced the principle that categorical takings are not favored, and stated that the default analysis is the multi-factored Penn Central test. In Koontz v. St. Johns River Water Management District, the Court held that monetary development exactions fall within the reach of the…

Continue Reading New Article: Recent Developments in Regulatory Takings

Last we checked in, the California Supreme Court had agreed to review the Court of Appeal’s decision in California Building Industry Ass’n v. City of San Jose (6th District June 6, 2013), which held that under rational basis review (and not heightend scrutiny) the city of San Jose’s “inclusionary housing” ordinance might survive challenge because it was designed to promote the development of affordable housing, and not to mitigate the impacts of market priced housing.

Yesterday, the CBIA filed its Opening Brief in the appeal, which presents a single Question Presented:

Must inclusionary housing ordinances which exact property interests or in-lieu development fees as a condition of development permit approval be reasonably related to the deleterious impact of the development on which they are imposed, as set forth in San Remo Hotel L.P. v. City & County of San Francisco, 27 Cal. 4th 643, 670 (2002)?

The brief answers …

Continue Reading Opening Brief In Cal Supreme Court “Inclusionary Housing” Exactions Case

14.AGRHIOne of the hottest issues in Hawaii at the moment is agriculture. From the spreading county restrictions on GMO crops and pesticides, to water issues, to estate planning, the issues impacting farmers, ranchers, and owners of Ag land are growing. 

On January 8 and 9, 2014, the Seminar Group is putting on what we hope will become a regular event – the Hawaii Agriculture Conference. This two-day conference is for both farmers and lawyers, and covers these issues and others:

  • Contracts and marketing methods for Hawaii agriculture products
  • The Hawaii coffee industry
  • GMO vs organic
  • Zoning and land use issues
  • Exporting issues
  • Water rights
  • Labor law for farmers and ranchers
  • Best husbandry practices
  • Crop loss insurance

I’m the Planning Co-chair, along with David Bateman, a retired lawyer who also happens to be the owner of Heavenly Hawaiian Farms, an award-winning coffee farm on the Big Island. We’ve…

Continue Reading Mark Your Calendars: Hawaii Agriculture Conference, January 8-9, 2014