Municipal & Local Govt law

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Yesterday we filed the Star-Advertiser‘s brief responding to Governor Abercrombie’s cross-motion for summary judgment in the case in which the Star-Advertiser seeks disclosure of the JSC list from the Governor. (We represent the Star-Advertiser.) The hearing on these motions is scheduled for November 14, 2011 at 9:00 a.m.ext

Previously filed documents: the Complaint is posted herehereStar-Advertiser’s motion for summary judgment is posted here.

Plaintiff’s Memorandum in Opposition to Defendant’s Motion for Summary Judgment, etc, Oahu Publications, In…Continue Reading Opposition To Governor’s Motion For Summary Judgment In JSC List Case

We’ve been thinking a lot about exactions lately.

First, it was the petition for certiorari in West Linn Corporate Park LLC v City of West Linn, No. 11-299 (petition for cert. filed Sep. 6, 2011), which asks whether the nexus and “rough proportionality” tests for a regulatory taking in Nollan and Dolan are limited to government demands for land. Then, late last week the Florida Supreme Court disagreed with the California and Texas Supreme Courts, and held in St. Johns River Water Management Dist v. Koontz, No. SC09-713 (Nov. 3, 2011) that Nollan and Dolan analysis is limited to real estate exactions, and do not apply to demands for offsite mitigation.

Now we’re back to the West Linn case, since the parties have filed their final briefs, and the Court is scheduled to decide whether to take the case at its upcoming November 10, 2011 conference. So…

Continue Reading Final Cert Briefs In West Linn Case: Are Nollan And Dolan Limited To Exactions Of Land?

This just in: on November 10, 2011, the U.S. Supreme Court will consider whether it has found the vehicle to resolve an issue the lower courts have vehemently disagreed upon, whether the Nollan/Dolan nexus/rough proportionality analysis is limited to exactions of real property. See West Linn Corporate Park, LLC v. City of West Linn, No. 11-299.

The Ninth Circuit concluded it does not, disagreeing with the California and Texas Supreme Courts, which have held that Nollan/Dolan is applicable to all exactions, not just demands for land. Yesterday, the Florida Supreme Court weighed in, holding in St. Johns River Water Management Dist v. Koontz, No. SC09-713 (Nov. 3, 2011):

Accordingly, we hold that under the takings clauses of the United States and Florida Constitutions, the Nollan/Dolan rule with regard to “essential nexus” and “rough proportionality” is applicable only where the condition/exaction sought by…

Continue Reading Fla S Ct: Nollan/Dolan Applies Only To Exactions Of Land

ZPLR_11_2011Here’s an article I recently published in the Zoning and Planning Law Report, Recent Developments in Regulatory Takings Law: What Counts as “Property?”, 34 Zoning & Planning Law Report (Thomson | West 2011).

If you subscribe to ZPLR, look for it in the mail (and if you don’t, you should).

If you are not a subscriber (and again, you really should subscribe, ZPLR is one of the better ways, along with Gideon Kanner’s Just Compensation, to keep up with the latest goings-on), the good people at West provide this freebie, as authors are allowed to post their own articles on their web site. So here you go.

Thomas, Recent Developments in Regulatory Takings Law: What Counts as “Property?” 34 Zoning & Planning Law ……

Continue Reading New Article: What Counts As “Property” In Regulatory Takings Law?

Governor Abercrombie filed his opposition to the Star-Advertiser‘s motion for summary judgment, and his own cross-motion for summary judgment in the case in which the Star-Advertiser seeks disclosure of the JSC list from the Governor. The exhibits attached to these documents are posted here. [Disclosure: we represent the Star-Advertiser.] The hearing on these motions is scheduled for November 14, 2011 at 9:30 a.m.

Previously filed documents: the Complaint is posted herehereStar-Advertiser’s motion for summary judgment is posted here.

Gov Abercrombie Opposition to Motion for Summary Judgment/Cross-Motion for Summary Judgment, Oahu Publicati…Continue Reading Gov Abercrombie’s Opposition And Cross-Motion For Summary Judgment In JSC List Case

You remember the Hawaii Superferry, don’t you? In case your memory doesn’t go back that far, here are our posts on the Hawaii Supreme Court’s first opinion, and here are our thoughts on the second. What brings up this case now is then-Governor (and present U.S. Senate candidate) Linda Lingle’s recent statement, quoted by Honolulu Civil Beat:

“I want to be clear on this point and on the record. And I want you to share this with everybody you talk to: Remember that nothing was done wrong with Superferry — nothing,” Lingle said. “Let me elaborate. Some people talk about an EIS when they talk about the Superferry. There was never an EIS required of any interisland vessel. Not before and not since, that I’m aware of.”

Civil Beat followed up with a “fact check,” asking whether her statements were true or not. CB concluded:

Lingle said “nothing was…

Continue Reading Was Lingle “False” When She Said “Nothing Was Done Wrong with Superferry”?

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“Yosemite,” according to California Place Names, Erwin Gudde’s seminal work on the origins of (surprise) California place names, means “they are killers.” It was “[e]vidently a name given to the Indians of the valley by those outside it.”

I raise this historical tidbit because I must admit to feeling a little like “those outside it” when I was invited to speak about regulatory takings at the California State Bar’s Environmental Law Conference at Yosemite. I figured as a conference devoted to environmental law, it was a going to be a decidedly skeptical audience, given my advocacy for property owners and property rights. I accepted the invitation nonetheless, heartened that this conference wasn’t going to be an echo chamber and that they were at least open to hearing competing ideas.

It turns out that my prediction about “they are killers” was not accurate — the audience, while not exactly…

Continue Reading Yosemite Seminar Summary – Regulatory Takings: Looking Back And Looking Forward

The City of Hayward, California, was concerned that residential rentals within its borders were “decent, safe, and sanitary,” and by ordinance required the owners or tenants of such units to allow city officials to inspect them. If an owner or tenant refused, the “Enforcement Official” was authorized to procure an “inspection warrant” and levy a monetary fine on the property owner.

An association of rental owners sought a writ of mandate, challenging the ordinance because it violated the Fourth Amendment, among other reasons. The trial court granted the writ and held the ordinance facially invalid because it compels a property owner to provide access to a tenant’s residence without tenant consent, and violates the substantive due process rights of the property owners because it levies a monetary penalty on a property owner even when the tenant is the one refusing to allow inspection.The court enjoined enforcement of the ordinance.

The…

Continue Reading Cal App: City May Enter Rental Property To Make Inspections

Here’s the latest in the lengthy West Linn Corporate Park tale from Oregon. After having bounced from federal court, to the Oregon state courts, then back to federal court, the case is now in the hands of the U.S. Supreme Court.

The issue in the case is whether the Ninth Circuit was correct when it held in an unpublished memorandum opinion that “[t]he Supreme Court has not extended Nollan and Dolan beyond situations in which the government requires a dedication of private real property. See Lingle v. Chevron USA, Inc., 844 U.S. 528, 547 (2005). We decline to do so here.” Slip op. at 4-5.

Weak, Ninth Circuit, weak. Is the issue of whether Nollan and Dolan‘s nexus and rough proportionality requirements apply only to exactions of land — but do not govern exactions of other types of property such as money — so settled that you blow…

Continue Reading New Cert Petition: Are Nollan And Dolan Limited To Exactions Of Land?

The Pacific Legal Foundation, the Cato Institute, Professor Paul M. Sullivan, The Grassroot Institute of Hawaii, and the Goldwater Institute have filed this amicus brief, supporting the cert petition filed last month in Corboy v. Louie, No. 11-336 (cert. petition filed Sep. 15, 2011).

That’s the case seeking SCOTUS review of the Hawaii Supreme Court’s opinion concluding that challengers to the property tax exemptions conferred on lessees of Hawaiian Homesteads lacked standing. Only “native Hawaiians” are eligible to lease homestead land, and thus only those possessing the appropriate blood quantum are entitled to the tax exemptions, and the Hawaii court dismissed the case for lack of jurisdiction, holding the petitioners lacked standing to challenge the exemption since they had not sought homestead leases (leases for which they were ineligible because they are not native Hawaiians).

The petition asks this question:

Whether the Hawaii courts erred in failing to recognize…

Continue Reading Amicus Brief In Hawaii SCOTUS Case: Is Hawaiian Homes Property Tax Exemption Racial Discrimination?