Municipal & Local Govt law

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In a short opinion in Sierra Club v. Castle & Cooke Homes Hawaii, Inc., No. CAAP-11-0000625 (Aug. 24, 2012), the Hawaii 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 under Haw. Rev. Stat. § 26-34(a):

Kanuha was not disqualified under HRS § 26-34(a) as he had not been a commissioner appointed consecutively to more than two terms as a member of the LUC not had his membership on LUC exceeded eight consecutive years. Not obtaining Senate consent to a second term did not disqualify Kanuha from service as a holdover after the expiration of his first term. This was not a disqualification under the plain language of HRS § 26-34(a). The circuit court erred in holding that Kanuha was not a valid holdover for failure to obtain Senate confirmation for…

Continue Reading HAWICA: Holdover Land Use Commissioner Not Disqualified

This just in: as we predicted after oral arguments (see HAWSCT Oral Argument Recap – Who Defines The “Project” For Archaeological Review? and The Real “Descendants” Plays Out In The Hawaii Supreme Court – Honolulu’s $4+ Billion Rail Project In Grave Danger), in a unanimous opinion, Hawaii Supreme Court has slapped down the City of Honolulu’s archaelological inventory survey, holding:

In sum, the SHPD failed to comply with HRS chapter 6E and its implementing rules when it concurred in the rail project prior to the completion of the required archaeological inventory survey for the entire project. The City similarly failed to comply with HRS chapter 6E and its implementing rules by granting a special management area permit for the rail project and by commencing construction prior to the completion of the historic preservation review process.

Slip op. at 6. The court vacated the trial court’s decision, and sent…

Continue Reading Hawaii Supreme Court Smacks Rail EIS – City Needed To Evaluate Burials For “Entire Project” Before Starting To Build

Today’s American Banker has a story on the latest development in the let’s-use-eminent-domain-to-take-underwater-mortgages scheme: the Federal Housing Finance Agency has sent a strong shot across the bow of local governments contemplating such a move (e.g., San Bernadino, Chicago, even Berkeley):

Uh, don’t.

Full statement here, or below. The American Banker story is unfortunately behind a paywall, so we can’t bring it to you here, but we do have the highlights from a trio of Owners’ Counsel of America commentators who are quoted, us included:

“San Bernardino County cannot condemn federal property,” said Gideon Kanner, professor of law emeritus at Loyola Law School in Los Angeles and a longtime eminent domain expert. The FHFA is “a federal agency and the Feds can take the property of a state or city but the state or a local entity cannot take federal property.”

Robert Thomas, an attorney at the…

Continue Reading “Hey Look, Free Money!” Fed Agency Has Problems With The Plan To Take Underwater Mortgages

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

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Here are the cases and links that I discussed at today’s ABA session on eminent domain:

  • Kelo – Remember the holding of the case: the Court majority rejected the petitioners’ call to adopt a blanket rule that all takings supported only by claims of economic development violate the Public Use Clause of the Fifth Amendment. In declining to adopt the rule, the Court left open challenges based on lack of a comprehensive plan, claims that the advanced public use is a pretext to hide a predominant private purpose, and the old “A-to-B” private taking.
  • City of Stockton v. Marina Towers LLC (Cal. Ct. App. 2009) – The case in which the court held that the city’s resolution of necessity was so “nondescript [and] amorphous,” and “so vague, uncertain and sweeping in scope that it failed to specific the ‘public use’ for City sought acquisition of the property.”

…
Continue Reading Resources From Today’s ABA Eminent Domain Session

The Courrt has denied certiorari in Corboy v. Louie, No. 11-336, the case asking the Court to review the Hawaii Supreme Court’s dismissal of a challenge to the property tax exemptions conferred on lessees of Hawaiian Homesteads. The petitioners claim this is an unconstitutional race-based classification, but the Hawaii Supreme Court dismissed for lack of standing (the petitioners had not applied for Hawaiian Homestead leases because they are ineligible to receive them).

Here’s the order, in the event you want to see it for yourself.

This case had been kicking around on the docket since December 2011, and it was only on the Term’s last day that the Court finally said no. Continue Reading Supreme Court Declines To Review Challenge To Native Hawaiian Property Tax Exemptions

Lost in all the excitement over today’s ruling in the the Obamacare case that turned out not to be today, is this little tidbit for those from Hawaii. The Court yet again did not make a decision whether to grant cert in Corboy v. Louie, No. 11-336, which had been scheduled for last Thursday’s conference. This is the case asking the Court to review the Hawaii Supreme Court’s dismissal of a challenge to the property tax exemptions conferred on lessees of Hawaiian Homesteads. The petitioners claim this is an unconstitutional race-based classification, but the Hawaii Supreme Court dismissed for lack of standing (the petitioners had not applied for Hawaiian Homestead leases because they are ineligible to receive them).

This case was originally scheduled for the Court’s December 9, 2011 conference, but that was put off when the Court asked the Obama Administration to file an amicus brief, which…

Continue Reading SCOTUS Delays Consideration Of Challenge To Hawaiian Homes Property Tax Exemption (Yet Again)

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

A must read: our Owners’ Counsel of America colleague Michael Rikon, the doyen of New York’s eminent domain bar, has published “I Represented The Devil Of Brooklyn,” in the Practical Real Estate Lawyer. As Mike writes, “it wasn’t a demonic fight in front of the hot dog line at Nathan’s in Coney Island … this legal tale is about a property owner in Prospect Heights who had the absolute gall to object to the taking of his property for an arena and related real estate development by a well-connected real estate developer.”

If that sounds familiar, it is: Mike represented Daniel Goldstein, the plaintiff-in-chief in the multi-jurisdiction Atlantic Yards eminent domain fight, and the protagonist of the documentary Battle for Brooklyn in the final condemnation case in New York’s courts. Other lawyers had handled Goldstein’s attempt to stop the condemnation and the environmental challenges, and…

Continue Reading “I Represented The Devil Of Brooklyn”