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Earlier, we posted the opinion of New York’s Appellate Division in New York Central Lines, LLC v. State of New York, No. 2011-03494 (Dec. 19, 2012), in which the court determined how to value a rail corridor when it is taken by eminent domain.

The court’s opinion was somewhat cryptic, so we thought we would post the briefs to help understand the arguments better. If this is your game, check them out:

These briefs come to us by way of Jonathan Houghton, counsel for the prevailing property owner. Jonathan is the partner of our Owners’ Counsel of America colleague Mike Rikon. Two more kudos: Jonathan recently became a named partner of the firm, which has recently moved back into its permanent offices in Manhattan after being displaced by Hurricane Sandy. Congratulations on all Continue Reading Briefs In NY Rail Corridor Valuation Case

Our friend Paul Schwind has been keeping us up to date on the progress, vel non, of the federal legal challenge to the Honolulu rail project. Paul’s most recent update was on the remedy hearing, and today he provides us with a breakdown of yesterday’s short ruling on the remedy the court is imposing for the violations of section 4(f) of the Transportation Act Next step the Ninth Circuit?

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Honolulu Rail Remedy – Phasers On Minimal

by Paul J. Schwind*

The multi-billion dollar Honolulu rail project has been onlyminimally stunned by the U.S. District Court for the District of Hawaii for itsfailure to adequately study the project’s possible effects on Chinatown and MotherWaldron Park (an old urban park/playground), and for its failure to articulatethe reasons why a tunnel under Beretania Street (a major city arterial) wasrejected.

Yesterday, the court issued its Judgment and Partial Injunction in Honolulutraffic.comv.

Continue Reading Guest Post: Honolulu Rail Remedy – Phasers On Minimal

Check out New York Central Lines, LLC v. State of New York, No. 2011-03494 (Dec. 19, 2012), a short opinion from the New York Supreme Court Appellate Division (Second Department) (if you didn’t know that in New York, the trial court of general jurisdiction is the “Supreme Court,” and the intermediate court of appeals is the “Appellate Division” of the Supreme Court, you have not been watching enough Law & Order).

Both the state’s and the property owner’s valuation experts testified that the highest and best use of the property was its current use, a rail corridor. But the two experts differed on the proper method of valuation.

The State’s expert advocated a cost, or reproduction cost less depreciation, approach to valuation, which is employed in valuing “specialty” properties (see generally Matter of Allied Corp. v Town of Camillus, 80 NY2d 351, 357; Matter of Al …

Continue Reading NY Appellate: How To Value A Rail Corridor

Here’s a short one from the Ohio Supreme Court. In City of Girard v. Youngstown Belt Railway Co., No. 2012 Ohio 5370 (Nov. 21, 2012), the court held:

In this case, we are called upon to determine the extent to which the Interstate Commerce Commission Termination Act (“ICCTA”), 49 U.S.C. 10101 et seq., preempts a state’s eminent-domain action over a parcel of property owned by a railway company. Based on our interpretation of the legislation at issue and its application to the unique facts of this case, we find no preemption, and we therefore reverse the judgment of the court of appeals.

Slip op. at 1-2. Not really an eminent domain heavy issue, and if federal preemption is your thing, check it out. More here from the local newspaper.

City of Girard v. Youngstown Belt Railway Co., No 2012 Ohio 5370 (Nov. 21, 2012)Continue Reading Ohio: Federal Law Does Not Preempt City’s Condemnation

13.LULHIIt’s back! Time once again for the bi-annual Hawaii Land Use Law Conference, to be held January 17 and 18, 2013 (Thursday and Friday) at the Downtown YWCA (a very convenient venue).

Planning co-chairs Professor David Callies and Ben Kudo have once again assembled a stellar faculty and put together an agenda that covers most topics of interest.

We’ll be moderating a panel on “Development Through Exemptions – The Evolution of Reclassifications, Permitting, Land Use &Development in Hawaii: The Unintended Consequences ofan Increasingly Complex System of Regulations,” featuring panelists Linda L.W. Chow (Deputy Attorney General State of Hawaii), Oswald K. Stender (Office of Hawaiian Affairs), and Kali Watson (Hawaiian Community Development).

Two highlights of the conference:

First, Mike Berger will give the keynote presentation on our favorite topic, regulatory takings: “Taking a Critical Look at 30 Years of the Supreme Court’s Taking Jurisprudence.” Mike has taken the lead in…

Continue Reading Mark Your Calendars: 10th Hawaii Land Use Law Conference (Jan. 17-18, 2013)

Will the multi-billion dollar Honolulu rail project be halted by a federal court over a failure to adequately study the project’s possible effects on Chinatown and an old urban park/playground, or a failure to articulate the reasons why a tunnel under a major city street was rejected?

It might, but not just yet.

Today’s Order on Cross-Motions for Summary Judgment in Honolulutraffic.com v. Federal Transit Administration, No. 11-00307 (D. Haw. Nov. 1, 2012) gave some clues about whether the court would conclusively halt the project, but deferred a ruling until December.

Ninth Circuit Judge A. Wallace Tashima is hearing the case because the entire Hawaii district court bench is recused (see page 39 of the slip opinion for the reason why). In today’s order, he rejected most of the plaintiffs’ challenges to the project under three federal statutes (the Transportation Act, the Natonal Environmental Policy Act, and the National…

Continue Reading Honolulu Rail: Set Phasers On Stun

The U.S. District Court for the District of Hawaii (Circuit Judge A. Wallace Tashima sitting by designation, because the entire Hawaii district court bench is recused) has issued an Order on Cross-Motions for Summary Judgment in the federal challenge to the Honolulu rail project. 

More to follow after a chance to read it.

Our past posts on the Honolulu Rail Project: start here.

Order on Cross-Motions for Summary Judgment, Honolulutraffic.com v. Federal Transit Admin., No. 11-00307 AW…Continue Reading Fed Court: City Failed To Consider Alternatives To Rail

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

Check out the latest brief filed in the Federal Circuit by our colleague Thor Hearne. Readers know Thor as our semi-regular updater of the latest from the Court of Federal Claims in “rails-to-trails” takings cases, and this appeal is from a CFC case on that subject.

In Ladd v. United States, the CFC dismissed the property owners’ Fifth Amendment takings claim stemming from a rail conversion in Arizona. The court held that the claim was filed past the six-year Tucker Act statute of limitations. A Trails Act case begins when the Surface Transportation Board issues an order (a NITU) that converts an otherwise abandoned railroad easement into a new federal rail-trail easement. The new easement can be used by the public for recreation and the STB retains jurisdiction to “railbank” the corridor, potentially allowing some railroad in the future to build a new railway line across the land. …

Continue Reading Can The Statute Of Limitations In Tucker Act Start Running Before The Govt Provides Actual Notice Of The Taking?

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