Regulatory takings

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Here’s the Reply Brief filed last month by the property owner in Leone v. County of Maui, No.29696,an appeal in the HawaiiIntermediate Court of Appeals which is considering, among other issues,the question of when a regulatory takings claim is ripe for reviewunder Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985). The brief responds to the County’s Answering Brief (posted here).

In Leone, the trial court refused to consider the owner’s claim that statelaw and local regulations resulted in a regulatory taking of beachfrontproperty on the south shore of Maui. Thetrial court determined the plaintiffs’ federal regulatory takings claim — which they brought in state court, as required by Williamson County — werenot ripe because they should have sought a legislative change to theoffending land use regulations which allegedly deprive their propertyof all economically beneficial uses. The trial court’s decision…

Continue Reading Reply Brief: Must A Property Owner Seek A Change In The Law In Order To Ripen A Takings Claim?

The judiciary web site has posted the recording of the November 10, 2009 Intermediate Court of Appeals oral arguments in Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175 (HAWICA) here (caution, it is a massive 88 MB mp3 file).

The issue in the case is whether the state, or littoral landowners, are entitled toownership of certain accreted lands. In “Act 73,” (codifed here and here)the legislature declared that shoreline land naturally accreted belongsto the State of Hawaii and is public property. More about thearguments, including the briefs, here. Disclosure: we filed an amicus brief supporting the property owners, available here.Continue Reading Beachfront Taking Case (HAWICA) Oral Argument Recording

The property owners have filed their Reply Brief in Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009), the case about “judicial takings” and the rights of littoral owners to accretion.

Oral arguments in the Supreme Court are set for December 2, 2009.

More about the case on our resource page.

Disclosure: we filed an amicus brief supporting the Petitioners, available here.Continue Reading Petitioner’s Reply Brief In SCOTUS Beachfront Takings Case

The Hawaii Supreme Court and Intermediate Court of Appeals will be hearing two appeals of note:

  • Tuesday, November 10, 2009, 9:00 a.m. – Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175 (HAWICA). The issue is whether the state, or littoral landowners, are entitled toownership of certain accreted lands. In “Act 73,” (codifed here and here) the legislature declared that shoreline land naturally accreted belongs to the State of Hawaii and is public property. More about the arguments, including the briefs, here. Disclosure: we filed an amicus brief supporting the property owners.
  • Thursday, December 17, 2009, 9:00 a.m. – Unite Here! Local 5 v. City and County of Honolulu, No. 28602 (HAWSCT). The Supreme Court is reviewing the ICA’s conclusion that unless the project changes, a supplementalEIS is not required under the Hawaii Environmental Policy Act, Haw.Rev. Stat. ch. 343. The application for writ

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Continue Reading Upcoming Oral Arguments Of Interest

Mark your calendars for Wednesday, November 18, 2009, from 2:00 – 3:00 p.m. (Eastern Standard Time). That’s when we will be having the next “recent developments” conference call for members of the Condemnation Law Committee (ABA Section of State & Local Government Law). It’s free, but open only to Section members. Members should receive an e-mail with the call information, either directly from the Section, or via our listserv (LG-CONDEMNATION). If you are not a member, see below.

These are informal calls to discuss recent developments, get feedback and advice about pending matters, and to otherwise exchange views.

As this is informal, the agenda is open. But we will be covering at least these topics:

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Continue Reading Mark Your Calendars: ABA Condemnation Law Conference Call – November 18, 2009

More about Klumpp v. Borough of Avalon, the decision from New Jersey’s Appellate Division which held that the government can assert inverse condemnation in order to take property without compensation.

In Avalon stole land, appeal to New Jersey high court claims, the Atlantic City paper reports on the case:

A Moorestown couple is asking the state’s highest courtto consider whether the borough stole a beachfront parcel from themafter the great northeaster of 1962.

Edward and Nancy Klumpp’s Nantucket-style home on 75th Streetwas destroyed by the infamous storm. The couple looked intorebuilding the home over the years, and in 1997 applied for acoastal permit.

By then, the borough had built an extensive network of dunesalong the ocean to protect people from future coastal storms.

The case has resonated among coastal towns across New Jersey.Avalon has fielded calls from a dozen other beach towns that alsohave vacant beachfront lots in…

Continue Reading More On New Jersey’s “Bizarre Condemnation”

In an order issued yesterday, the U.S. Supreme Court granted the SG’s motion for leave to participate in oral argument as amicus curiae and for divided argument in Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). The federal government’s amicus brief is available here.

In Walton County v. Stop the Beach Renourishment, Inc.,998So.2d 1102 (Fla. Sep. 29, 2008), the Florida Supreme Court heldthat a state statute which prohibits “beach renourishment” without apermit did not effect a taking of littoral (beachfront) property, eventhough it altered the long-standing rights of the owners to accretionon their land and direct access to the ocean. The U.S. Supreme Court isconsidering whether the Florida court’s reversal of more than 100 yearsof Florida law was a judicial taking, and whether the Florida court’sdecision violated due process.

We filed an amicus brief in the case…

Continue Reading Solicitor General To Get Face Time In Judicial Takings Case

Update: In this order, the Court declined to review the case.

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On Monday, October 19, 2009, the Supreme Court is scheduled to consider whether to review the Alaska Supreme Court’s decision in Reust v. Alaska Petroleum Contractors, Inc., 206 P.3d 437 (Alaska, Apr. 10, 2009).

The case is listed on SCOTUSblog’s list of “petitions to watch.”

The Questions Presented:

The Supreme Court of the State of Alaska upheld the validity of a state statute that took a percentage of Reust’s recovery in a civil action for public use, aligning the Alaska Supreme Court with the Ninth Circuit and six State Supreme Courts that have held such statutes constitutional and furthering the split with two State Supreme Courts that have held such statutes violate the Takings Clause of the Fifth Amendment to the United States Constitution. The first question presented is:

1. Whether a state…

Continue Reading U.S. Supreme Court Considering Whether To Review New Case: Is Gov’t Grab Of 50% Of Punitive Damage Award A Taking?

The County of Maui has filed its Answering Brief in Leone v. County of Maui, No. 29696, an appeal in the HawaiiIntermediate Court of Appeals which is considering, among other issues,the question of when a regulatory takings claim is ripe for reviewunder Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985). The brief responds to the property owners’ Opening Brief (here).

Thetrial court determined the plaintiffs’ federal regulatory takings claim — which they brought in state court, as required by Williamson County — werenot ripe because they should have sought a legislative change to theoffending land use regulations which allegedly deprive their propertyof all economically beneficial uses. The trial court’s decision isavailable here.

The County’s brief argues the takings claims are not ripe for review because they “have not alleged nor can they demonstrate they have attempted to obtain…

Continue Reading Government Brief: Landowner Must Seek To Change Land Use Designations To Ripen Federal Takings Claim

With apologies to Jeff Foxworthy, you might be a regulatory takings maven if…you instantly understood this post’s headline, and eagerly clicked through to read the story.

But you don’t have to be a takings nerd to appreciate the import of today’s Ninth Circuit decision in Los Altos El Granada Investors, v. City of Capitola, No, 07-16888 (Oct. 7, 2009). The court held that federal constitutional claims do not have to be litigated in state court:

Despite clear language from the Supreme Courtestablishing that “a state court determination may not be substituted,against a party’s wishes, for his right to litigate his federal claimsfully in the federal courts,” England v. La. State Bd. of Med. Exam’rs, 375 U.S. 411, 417 (1964), two California courts determined that this right to a federal forum was “irrelevant” andstruck appellant’s clear reservation of its federal claims from itscomplaint. The district court then determined that…

Continue Reading Ninth Circuit Weighs In On England Reservations In Williamson County Ripeness