Regulatory takings

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More on the Supreme Court of Hawaii opinion in Brescia v. North Shore Ohana (No. 27211, July 12, 2007).  The Court took up no less than seven points on appeal, but the most interesting to me was the analysis of the estoppel issue.

The case involved Kauai property within the coastal “Special Management Area.”  The SMA is, generally speaking, the land nearest the shoreline, as defined in Hawaii’s Coastal Zone Management Act, Haw. Rev. Stat. ch. 205A.  The CZMA established special controls for this strip of land, and the counties have authority to regulate uses within the SMA, including the location of the “shoreline setback,” which is (like other setbacks) an unbuildable zone that “sets back” structures from the shoreline.  The statewide minimum setback is established by the CZMA, but the individual counties are permitted to establish greater setbacks, which vary from county-to-county.

“Estoppel” means that…

Continue Reading ▪ HAWSCT: Estoppel and Shoreline Setbacks

The Hawaii Supreme Court has issued an opinion in Brescia v. North Shore Ohana (No. 27211, July 12, 2007), a case discussing shoreline setbacks, due process, and vested rights.  I haven’t had a chance to read the majority opinion authored by Justice Acoba, or the concurring opinion by Justice Levinson, but will post more after I review them.Continue Reading ▪ HAWSCT: Shoreline Setbacks, Due Process and Vested Rights

The Advertiser has published my commentary on Wilkie, the decision from the Supreme Court denying a comprehensive remedy for violation of property rights by federal officials. 

Little-Noticed Decision Erodes Property Rights

Imagine this: You own land, and federal officials ask you to allow the public to cross over it, but they don’t offer you anything in return. Their bargaining position is blunt: Give us the easement, or else. So you politely say, “No, thanks.” It’s your land, and the U.S. Constitution’s Fifth and 14th Amendments recognize your right to keep others off your property, even government officials.

The Fifth Amendment provides that “nor shall private property be taken for public use, without just compensation,” which means if the government wants an easement, it needs to pay for it. But an official tells you, “The federal government does not negotiate.” So instead of backing off, or purchasing the land, the…

Continue Reading ▪ Honolulu Advertiser Op-ed on Wilkie v. Robbins

West Hawaii Today has posted a story on an ongoing eminent domain case:

Counsel for the developer William Meheula Jr. saidinverse condemnation can only be proven if the defendants admit thatthe government is taking possession of the private property for apublic purpose. The Coupe case claims the lack of public purpose fortaking the 3-acre strip of land for the highway.

Meheula saidOceanside was not opposing the Coupe’s claims regarding public purposeand would address those during the trial, but said it was notappropriate to argue inverse condemnation at the same time.

However,Robert Thomas, counsel for the defendants, who counter sued the countyto block the eminent domain proceedings, said there are no HawaiiSupreme Court cases that can be used to support Meheula’s claims.

Ifthey do not prevail, the Coupe’s attorneys are also arguing “blight ofsummons damages,” which compensates a landowner in a condemnationaction for the damages resulting from the government’s delay in…

Continue Reading ▪ Inverse Condemnation, Eminent Domain, and Development Agreements

Does a landowner challenging the public use of a taking of property need to utilize state compensation procedures before seeking relief in federal court?  In Rumber v. District of Columbia (No. 06-7004, D.C. Cir. May 25, 2007), the U.S. Court of Appeals for the District of Columbia joined the majority of federal circuits and held “no.”

Landowners challenged the District of Columbia’s power to condemn their property, alleging, among other things, that the taking was beyond the District’s authority because it was not “for public use” as required by the Fifth Amendment’s Takings Clause.  The D.C. Council had enacted a series of laws which authorized the National Capital Revitalization Corporation, a redeveloper, to take a shopping center by eminent domain. 

The landowners objected, and filed suit in federal court alleging that a taking of their property would not serve a public purpose.  The federal district court dismissed the…

Continue Reading ▪ Public Use Challenges Not Subject to Williamson County Ripeness

The US Supreme Court has issued a unanimous opinion in Sole v. Wyner (No. 06-531) (docket listing here), a case involving whether a party who obtains a preliminary injunction — but ultimately loses the case on the merits — can be a “prevailing party” entitled to civil rights attorneys fees.  The Court, in an opinion by Justice Ginsburg, answered no.  I’ve previously posted about the case background here, and the oral arguments here.  SCOTUSblog summarizes the opinion here, and National Public Radio reports on the case here (with audio).

This case has impact on land use litigation.  A key federal civil rights law, 42 USC  § 1988, allows the prevailing party to recover attorneys fees from the other side.  The right to own and make economically beneficial use of property isone of those federal civil rights, and land use and property issues areoften litigated under…

Continue Reading ▪ SCOTUS: “Prevailing Party,” Attorney’s Fees, and Land Use Litigation

The US Supreme Court today granted review to an inverse condemnation case against the US government.  The issue in John R. Sand & Gravel Co. v. United States,is whether the Tucker Act’s six-year statute of limitations is ajurisdictional bar to an inverse condemnation claim.  Apparently, thegovernment on appeal did not assert that the claims were barred by thestatute of limitations.  But the court of appeals did, and dismissedbecause the statute of limitations goes to jurisdiction, and cannot bewaived. 

Whether the statute of limitations is a “jurisdictional” bar, orwhether it is waiveable is an issue for us legal wonk types, andprobably will not rile up the public one way or the other like Kelo,for example.  However, the Court’s decision should clarify an area ofprocedural law that lawyers often presume they understand the basisfor, but nearly as often do not.  (The canon being that statutes oflimitations are jurisdictional, especially in…

Continue Reading ▪ Cert Grant in Inverse Condemnation Case – Are Statutes of Limitations Jurisdictional?

Waves

Today, I filed an amicus brief (750k pdf) in the appeal regarding “Act 73,” the state statute (codifed here and here) which declared that shoreline land naturally accreted belongs to the State of Hawaii and is public property.

Act 73 overturned the age-old rule of shoreline accretion and erosion, which held that beachfront owners lose ownership of land when it erodes, but gain it when it accretes.  Instead of these balanced rules, Act 73 made the erosion/accretion equation one-sided: the State wins every time.

The trial court held that Act 73 was unconstitutional and violated the Hawaii takings clause, article I, § 20 of the Hawaii Constitution.  The court enjoined enforcement of the Act, and the State appealed to the Hawaii Intermediate Court of Appeals.  My brief deals with two points:

First, the right to future accretions is property protected by the Hawaii and U.S. Constitutions from…

Continue Reading ▪ Amicus Brief in Accretion Appeal: Heads, the State Wins; Tails You Lose