Municipal & Local Govt law

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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*

Here’s the amicus brief of the American Association for Justice (fka Association of Trial Lawyers of America) supporting the respondent 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.

Earlier, we filed an amicus brief on behalf of the American Bar Association supporting the petitioner, and other organization also filed briefs in support (posted here). The petitioner’s merits brief is posted here. Oral argument is set for January 17, 2012.

More on this case as it becomes available.Continue Reading Trial Lawyers’ Amicus Brief In Filarsky: Common Law Did Not Recognize Private Attorney Immunity In 1871

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

Featured_exhib_brooklyn

A reminder: on January 3 and 4, 2012, at 1:00 and 7:30 p.m. each day, the Honolulu Academy of Arts Doris Duke Theater is presenting the Hawaii premiere of Battle For Brooklyn, the Academy Award-contending documentary about the Atlantic Yards eminent domain fight. We are lucky enough to have the exclusive Hawaii showing of this important, informative, and entertaining film. More information (and ticket purchase) from the Academy of Arts web site here.

There will be Q & A sessions following each screening with the filmmakers and (perhaps) a special guest, TBA.

The film has received fantastic reviews (a New York Times critics’ pick), and recently made the short list for films in the running for the Best Documentary feature Academy Award. We reviewed the film here, and highly recommend it.

Battle For Brooklyn is an especially timely film for Hawaii audiences: it chronicles one homeowner’s years-long…

Continue Reading Exclusive Hawaii Premiere: Battle for Brooklyn, Academy Award Contending Documentary About Eminent Domain

Today was the day we were to have found out whether the Supreme Court would review Corboy v. Louie, No. 11-336 (cert. petition filed Sep. 15, 2011). That’s the case seeking review of the Hawaii Supreme Court’s opinion which concluded that challengers to the property tax exemptions conferred on lessees of Hawaiian Homesteads lacked standing to bring suit. More from today’s Star-Advertiser report Court might hear case testing state benefits for Hawaiians.

Today, however, the Court released an order inviting the U.S. Solicitor General to express the views of the federal government, usually a sign that the Court has some interest in a case. No doubt the Court asked for the SG’s views because the cert petition draws into question the constitutionality of the Hawaiian Homes Commission Act and the constitutionality of a part of the Hawaii Admission Act. When federal laws are so questioned, the federal government…

Continue Reading SCOTUS Asks For Fed Input In Case Asking Whether Hawaiian Homes Property Tax Exemption Is Racial Discrimination

Einstein460x276No less a light than Albert Einstein is reported to have said that the “definition of insanity is doing the same thing over and over again and expecting different results.” That quote has always seemed more apocryphal than accurate to us, but it’s a good definition regardless of who first uttered it.

Exhibit “A” appended to that definition might be New York City’s “emergency” housing Rent Stablization Law, adopted for the first time in 1969 and renewed eleven times since. The RSL controls how much rent the owners of rent-stablized apartments may charge their tenants (you know, to keep poor folk like Faye Dunaway in their apartments). The city’s justification for the RSL is to deal with a series of housing “emergencies” (initially, the “effects of war and the aftermath of hostilities,” and then any rise in the city’s vacancy rate above 5%), and to allow a “transition from regulation…

Continue Reading What’s That Definition Of “Insanity” Again?

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  

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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