I’ve finally had the chance to read a book I ordered a while ago, Professor Richard Epstein’s Supreme Neglect – How To Revive Constitutional Protection For Private Property (Oxford Press 200__).Continue Reading Book Review: Supreme Neglect – How To Revive Constitutional Protection For Private Property
Cal. Court of Appeals Revisits (Sort of) Landgate: Of Regulatory Takings, Means-End Analysis, and Due Process
In a lengthy (70 page) opinion, the California Court of Appeals (Sixth District), in Shaw v. County of Santa Cruz, No. H031108 (filed Dec. 19, 2008, ordered published Jan. 16, 2009), held that the government’s denial of a ministerial permit did not amount to a regulatory taking.
The opinion sets forth a long factual and procedural history of the case, so we won’t repeat it here. The discussion of takings begins on page 34 of the slip opinion, with a good short summary of regulatory takings law, and the various situations when the regulation of land will be deemed to have gone “too far” and requires the payment of just compensation. See slip op. at 34-39. Footnote 39 is particularly interesting, as it correctly notes that Lingle did not wipe out the Agins substantially advance test, but merely relocated it to due process:
The court’s holding [in Lingle
Mortgage Modification As A Taking
Worth reading: Government’s Promise: Taking Away Property?, commentary from U. Chicago lawprof Randy Picker on a NY Times editorial which argues “[t]he first step toward providing the [economic] relief is to include in the packagea measure to allow hard-pressed homeowners to have the terms of themortgages modified under bankruptcy court protection, an avenuecurrently denied them by an outdated and anti-consumer bent to the law.” Professor Picker suggests “the central question is whether the rights of themortgage holder are sufficiently property like that they are entitled toconstitutional protection from after-the-fact taking…”
In other words, can government simply rewrite long-established rules to wipe out an interest without being liable for a taking? More here. Continue Reading Mortgage Modification As A Taking
Materials From Hawaii Land Use Law Conference
To those who attended Thursday’s and Friday’s conference, thank you. Here are the cases and other materials I mentioned in my portion:
- Shoreline setbacks and equitable estoppel – Brescia v. North Shore Ohana 115 Haw. 477, 168 P.3d 929 (2007)
- State shoreline setback – Haw. Rev. Stat. § 205A-43
- Counties have authority to enact their own setbacks – Haw. Rev. Stat. § 205A-45
- No private right of action to enforce zoning – The Hawaii Intermediate Court of Appeals, in Pono v. Molokai Ranch, Ltd.,119 Haw. 163, 194 P.3d 1126 (2008), held that a private party had nostanding to enforce the state’s land use laws. The Hawaii Supreme Courtrejected certiorari review of the case. Disclosure: we represent thelandowner. More here.
- Maunalua Bay Beach Ohana 28 v. State of Hawaii, the appealnow pending in the Intermediate Court of Appeals. The issue in thatcase is whether the state or littoral landowners are entitled toownership of accreted land. In “Act 73,” the legislature declared thatshoreline land naturally accreted belongs to the State of Hawaii and ispublic property. The act overturned the age-old rule of shorelineaccretion and erosion, which held that beachfront owners lose ownershipof land when it erodes, but gain it when it accretes. Instead of thesebalanced rules, Act 73 made the erosion/accretion equation one-sided:the State wins every time. We filed an amicus brief in the appeal, acopy of which is available here.
- Substantive due process in the Ninth Circuit after Lingle – The Ninth Circuit Rediscovers Substantive Due Process in Land Use Cases
- County of Hawaii v. C & J Coupe Family Limited Partnership, No. 28882 (Dec. 24, 2008) – public use, pretext, and damages for failed taking
The majority opinion by Justice Acoba, joined by Justices Nakayama and Duffy is posted here:
We hold that (1) a landowner in a condemnationaction is entitled to damages under HRS § 101-27 where the property atissue is not finally taken in the context of a particular condemnationproceeding, irrespective of whether the government attempts to take theland through subsequent condemnation proceedings; (2) abatement doesnot apply where the relief sought in two concurrent actions is not thesame; and (3) although our courts afford substantial deference to thegovernment’s asserted public purpose for a taking in a condemnationproceeding, where there is evidence that the asserted purpose ispretextual, courts should consider a landowner’s defense of pretext. Therefore, (1) automatic denial of statutory damages under HRS §101-27in Condemnation 1 is vacated and the case remanded for a determinationof damages, (2) the court’s conclusion that Condemnation 2 was notabated by Condemnation 2 is vacated and the case remanded for adetermination of whether the public purpose asserted in Condemnation 2was pretextual.
Slip op. at 5. Here’s the concurring and dissenting opinion by Chief Justice Moon joined by Justice Levinson. The briefs in the case are available here: Opening Brief, Answering Brief of the County of Hawaii, Reply Brief. Disclosure: we represent the property owner.
- “Arrow of Time, Vested Rights, Zoning Estoppel, and Development Agreements in Hawaii’ (published by the U. Hawaii Law Review in Feb. 2006). Drop me an email, and I will email you a pdf, or send you a hard copy (tell me which).
Continue Reading Materials From Hawaii Land Use Law Conference
California Coastal Commission’s Brief In Opposition In Charles A. Pratt Construction Co. Cert Petition (Penn Central and Williamson County)
The California Coastal Commission has filed its Brief in Opposition to the cert petition in Charles A. Pratt Const. Co. v. California Coastal Comm’n, No. 08-668 (cert. petition filed Nov. 18, 2008) (SCOTUS docket report here). The California Court of Appeal’s opinion, reported at 76 Cal. Rptr. 2d 466 (Cal. Ct. App. 2008) is available here).
The issues presented involve the Penn Central ad-hoc test for regulatory takings, and the “final determination” prong of the Williamson County ripeness rule.
We filed an amicus brief in the case, available here. The cert petition and the other amici briefs supporting it are posted here.Continue Reading California Coastal Commission’s Brief In Opposition In Charles A. Pratt Construction Co. Cert Petition (Penn Central and Williamson County)
State & Local Government Condemnation Committee Links
Here are links to the cases discussed on the conference call this morning:
- County of Hawaii v. C & J Coupe Family Limited Partnership, No. 28882 (Dec. 24, 2008) – public use, pretext, and damages for failed taking
The majority opinion by Justice Acoba, joined by Justices Nakayama and Duffy is posted here:
We hold that (1) a landowner in a condemnationaction is entitled to damages under HRS § 101-27 where the property atissue is not finally taken in the context of a particular condemnationproceeding, irrespective of whether the government attempts to take theland through subsequent condemnation proceedings; (2) abatement doesnot apply where the relief sought in two concurrent actions is not thesame; and (3) although our courts afford substantial deference to thegovernment’s asserted public purpose for a taking in a condemnationproceeding, where there is evidence that the asserted purpose ispretextual, courts should consider a landowner’s defense of pretext. Therefore, (1) automatic denial of statutory damages under HRS §101-27in Condemnation 1 is vacated and the case remanded for a determinationof damages, (2) the court’s conclusion that Condemnation 2 was notabated by Condemnation 2 is vacated and the case remanded for adetermination of whether the public purpose asserted in Condemnation 2was pretextual.
Slip op. at 5. Here’s the concurring and dissenting opinion by Chief Justice Moon joined by Justice Levinson. The briefs in the case are available here: Opening Brief, Answering Brief of the County of Hawaii, Reply Brief. Disclosure: we represent the property owner.
- The Ninth Circuit’s decision in West Linn Corporate Park, LLC v. City of West Linn, Nos. 05-36061, 05-46062 (9th Cir. July 28, 2008) (regulatory takings case removed to US District Court, Ninth Circuit certified questions to Oregon Supreme Court)
- SCOTUS Williamson County ripeness cert petitions (Braun, Agripost, Pratt)
- Aspen Creek Estates, Ltd. v. Town of Brookhaven (New York Court of Appeals – arguments on municipality’s ability to take property purportedly to preserve farmland)
- Kamaole Pointe – Maui affordable housing exaction
Continue Reading State & Local Government Condemnation Committee Links
2008 Land Use In Review: Ripeness Games In Regulatory Takings
In 2008, we continued to castigate the Williamson County ripeness rules, culminating in December when we filed an amicus brief urging the Supreme Court to take a harder look at how the “final determination” aspect of the rule is being applied. The rule has two parts.
First, the state-litigation rule requires a regulatory takings plaintiff to pursue — and lose — their claim in state court before asserting their federal constitutional claims in federal court. In San Remo Hotel, L.P. v. City & County of San Francisco,545 U.S. 323 (2005) four Justices agreed Williamson County produces absurd results and denies federalcourt review of federal constitutional rights, and argued that in an “appropriate case,” the Court should reconsider Williamson County. At least two cert petitions were filed suggesting they were the appropriate case. See Braun v. Ann Arbor Charter Township, No. 08-250 (cert. denied Dec. 1, 2008), and
Continue Reading 2008 Land Use In Review: Ripeness Games In Regulatory Takings
Owners’ Counsel Of America
I’m honored to have been designated as the Hawaii member of the Owners’ Counsel of America. OCA is “a voluntary network of experienced eminent domain attorneys from every state of the nation, representing property owners facing condemnation or other infringement on their constitutional rights to own property, and dedicated to advancing the cause of property rights.”
OCA membership is byinvitation only and is open to only one attorney from every state.
I attended the OCA annual meeting this past weekend in conjuction with the ALI-ABA conference on Eminent Domain and Land Valuation Litigation, and the depth of knowledge and experience in the room was truly amazing. Just about every major reported federal and state eminent domain and regulatory takings case or judgment had been litigated by OCA members or honorary members, and it is a real privilege to count them as my colleagues.
OCA also publishes a blog
2008 Land Use In Review: The Ninth Circuit Rediscovers Substantive Due Process
In a development that began in November 2007 (2005 actually, if the starting point is seen as the U.S. Supreme Court’s decision in Lingle v. Chevron, U.S.A., Inc., 544 U.S 528 (2005)), the Ninth Circuit finally ditched Armendariz v. Penman,75 F.3d 1311 (9th Cir. 1996) (en banc), and recognized that property owners are not limited to regulatory takings claims when challenging land use regulation, and the government can violate substantive due process as well. In 2008, the Ninth Circuit issued a number of decisions in which it recognized that Armendariz‘s forced election of a regulatory takings remedy has been truly overruled.
Rather than plow through multiple posts, it would be easier to just download a recently published article I wrote on the subject, collecting all the cases, The Ninth Circuit Rediscovers Substantive Due Process In Land Use Cases (31 Zoning and Planning Law Report (Thomson | West
Continue Reading 2008 Land Use In Review: The Ninth Circuit Rediscovers Substantive Due Process
At The ALI-ABA Conference On Eminent Domain And Land Valuation
Currently at the annual conference on eminent domain law – as always, well worth attending.
In the morning’s session, Professor Kanner mentioned the recent decision in County of Hawaii v. C & J Coupe Family Limited Partnership, No. 28882 (Dec. 24, 2008), which has not yet been published in the official reporters. The slip opinion is posted here. Continue Reading At The ALI-ABA Conference On Eminent Domain And Land Valuation