Municipal & Local Govt law

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Here’s a follow-up to our recent post about the U. Hawaii Law Review article authored by lawprof David Callies which summarizes the land use and property decisions of the Hawaii Supreme Court during the tenure of now-retired Chief Justice Ronald Moon. You know, the article setting out the stunning success rates of certain parties in the court, which chides the Justices for their often-lengthy opinions, and labels the Moon Court’s record on property rights “appalling.” Download the article here.

Today’s Honolulu Star-Advertiser has a follow-up interview with Professor Callies, most of which is behind a paywall. But if you don’t have an e-subscription (a real deal for those with mainland zip codes, by the way), here are the choice parts:

  • “Callies says he isn’t against planning in general, but thinks there must be legitimate police powers involved for the right of development to be abrogated.”
  • “QUESTION: A recent

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Continue Reading More From U.H. Lawprof On 1993-2010 HAWSCT’s “Appalling” Record On Property Rights

Here’s the preview of next week’s U.S. Supreme Court arguments in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012). That’s the case in which the Court will be addressing whether the “essential nexus” and “rough proportionality” standards of Nollan and Dolan are applicable only to exactions for land, or whether they are generally-applicable tests for all exactions.

In Wetlands regulation at heart of Fla. property rights dispute, Greenwire‘s Lawrence Hurley writes:

In late 1993 and early 1994, Coy Koontz Sr. applied for two permits from a Florida agency as he sought to build on wetlands he owned just east of Orlando.

Today, Koontz has been dead for 13 years, his family no longer owns the property and the permits have long been approved. And yet a legal dispute about the permitting process is about to be argued at the Supreme…

Continue Reading Koontz Preview: Request For Exaction Is Not A “Suggestion,” But A “Velvet-Covered Hammer”

How, as an appellant, do you know you are in trouble? When an opinion starts like this, that’s how:

Although a residential subdivision proposed for construction in a bucolic Rhode Island town never saw the light of day, its ghost continues to haunt the parties. But apparitions rarely have substance, and this one is no exception. After careful consideration of the plaintiff’s complaint and the district court’s order of dismissal, we lay the ghost to rest.

The remainder of the opinion in Marek v. Rhode Island, No. 12-1460 (1st Cir. Dec. 27, 2012)  deals with whether a property owner suffered a taking when the State of Rhode Island and other parties granted a permit and approved construction by a neighboring owner of a road that allegedly encroached on the plaintiff’s land.

Among other arguments (as far as we can tell), the plaintiff raised a takings claim in federal court…

Continue Reading First Circuit: Inverse Condemnation Claim In State Court An “Adequate Procedural Pathway” To Compensation

You know how we’re always saying that certain parties have an enviable record of success in the Hawaii Supreme Court? Well, now the statistics are official.

The latest edition of the University of Hawaii Law Review published an article by lawprof David Callies summarzing the decisions of the court during the tenure of now-retired Chief Justice Ronald Moon. The article sets forth the stark numbers (83% win rate, 65% reversal of the intermediate appellate court), and contains a sharp comment about the often-lengthy nature of the court’s opinions:

Second, the Moon Court decided some of thestate’s most important property and related environmental and Native Hawaiianrights cases in favor of the various non-governmental organizations bringingthem (Sierra Club, Earthjustice, Hawaii’s Thousand Friends, and the NativeHawaiian Legal Corporation) approximately eighty-two percent of the time,sixty-five percent of which reversed the Intermediate Court of Appeals (ICA).Third, the court increasingly rendered lengthy opinions, many triple the…

Continue Reading U.H. Lawprof: HAWSCT’s 1993-2010 Record On Private Property Rights “Appalling”

A quick one from colleague Christopher Dillon. In How to buy in China, Christopher provides a primer on how to buy a home in the People’s Republic. Tip: it isn’t cheap. He reminds us:

In China all urban land is owned by the state, while rural land is owned by collectives. Private ownership of land is forbidden, and urban land used for housing is leased from the state for a 70-year term. When you buy a home in China, you purchase the structure and the remainder of the land lease.

Just in case you are thinking of doing a “Depardieu.” You know, the Russian actor.Continue Reading Buying Property In China

Here’s petitioner’s reply brief in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012), which responds to the Water Management District’s merits brief.

In that case, the U.S. Supreme Court will address whether the “essential nexus” and “rough proportionality” standards of Nollan and Dolan are applicable only to exactions for land, or whether they are generally-applicable tests for all exactions.

Among other things, the reply addresses the argument made by the District and its amici that Nollan and Dolan aren’t really “takings” cases, but involve due process or equal protection:

Due process and equal protection claims are also inapt. A due process claim questions whether the exaction serves some legitimate purpose, and an equal protection claim asks whether the exaction is applied equally to similarly situated individuals. But neither claim addresses whether a particular individual has been targeted to bear a public…

Continue Reading Reply Brief In Koontz: Money Is Property

Here are the briefs in Sierra Club v. Castle & Cooke Homes Hawaii, Inc., No. SCWC-11-0000625 (cert. accepted Jan. 4, 2013). That’s the case text we’ve been following involving the Koa Ridge Makai residential housing project on Oahu. The Intermediate Court of Appeals held the Hawaii Senate’s failure to confirm a sitting Land Use Commissioner for a second term did not disqualify him from office under Haw. Rev. Stat. § 26-34(a), thus validating the LUC’s vote approving the reclassification of land for the project.

The Supreme Court accepted cert to reivew a single Question Presented (as framed by the petitioner Sierra Club):

Whether a member of a government board or commission is “disqualified” under Haw. Rev. Stat. § 26-34 and the Hawai‘i State Constitution once his initial term expires and the Senate expressly rejects his reappointment to a second term after duly considering his background, experience, and performance.

Continue Reading Briefs In HAWSCT Land Use Commisioner Qualification Case

Update: the briefs are posted here.

In a case we’ve been following involving the Koa Ridge Makai residential housing project on Oahu, the Hawaii Supreme Court yesterday issued an order accepting the Sierra Club’s application for a writ of certiorari in Sierra Club v. Castle & Cooke Homes Hawaii, Inc., No. SCWC-11-0000625.

In the opinion being reviewed, the Intermediate Court of Appeals held that the Hawaii Senate’s failure to confirm a sitting Land Use Commissioner for a second term did not disqualify him from office under Haw. Rev. Stat. § 26-34(a).

Oooh, quo warranto. Stay tuned.Continue Reading Quo Warranto Fu: HAWSCT To Review Whether Holdover Land Use Commissioner Disqualified

In 2009, in the “Superferry” case, the Hawaii Supreme Court, after years of hinting (but not finding a suitable vehicle), formally adopted the “private attorney general’ doctrine allowing attorneys’ fee shifting in certain select circumstances. See Sierra Club v. Dep’t of Transp., 202 P.3d 1226 (Haw. 2009). Under that doctrine, a court evaluating a claim for fees and costs evaluates three “factors” —

  • The strength or societal importance of the public policy vindicated by the litigation.
  • The necessity for private enforcement and a magnitude of the burden on the plaintiff.
  • The number of people standing to benefit from the decision.

The first two factors are pretty vague and have not been further defined except in the initial instance in the Superferry case, in which the court held that when a case establishes a legal principle, it might qualify as “public policy” vindicated by the litigation, and when a plaintiff…

Continue Reading HAWICA Rejects “Private Attorney General” Fee-Shifting Doctrine In Land Court Case

There have been five amicus briefs filed supporting the Water Management District’s arguments in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012). That’s the case in which the Supreme Court is considering whether the “essential nexus” and “rough proportionality” standards of Nollan and Dolan are applicable only to exactions for land, or whether they are generally-applicable tests for all exactions.

The property owner’s brief on the merits is available here. The Water Management District’s merits brief is posted here.

The amicus briefs just filed focus on the argument that a government demand for money is not an “exaction” that even triggers takings analysis, and if it is, the multifactor Penn Central test governs, not the Nollan–Dolan test.

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Continue Reading Gov’t Amicus Briefs In Koontz: A Demand For Money Is Not An Exaction (And Even If It Is, Penn Central Is The Test)