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Here are the links to the cases that I spoke about in my session in today’s seminar “Supreme Court, Regulatory Takings and Eminent Domain Update.”  Not all of the cases we discussed today are included below, so if you would like a link or more information about a case that is not listed, please email me at rht@hawaiilawyer.com and I will send it to you.

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.

  • 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.

Continue Reading Materials From 2/20/2009 Land Use Seminar

There’s still time to register for the Zoning, Subdivision and Land Development Law seminar, to be held in Honolulu on February 20, 2009. 

I’m presenting a session on “U.S. Supreme Court, Regulatory Takings and Eminent Domain Update.”  My Damon Key colleagues are covering “Affordable Housing Exactions” and “Vacation Rentals” (Mark Murakami), “Rockfall and Landowner Liability” (Noelle Catalan), “Environmental Law Update” (Robert Harris, a Damon Key alumni, and current Director of the Hawaii Chapter of the Sierra Club), and  “Hot Topics and Recent Hawaii Cases” (Greg Kugle). 

More information, including the complete agenda and registration information here.Continue Reading Upcoming Seminar: Zoning, Subdivision And Land Development Law

To those who attended Thursday’s and Friday’s conference, thank you.  Here are the cases and other materials I mentioned in my portion:

  • 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.

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

09.LULHI It’s not too late to register to attend the Hawaii Land Use Law Conference, taking place January 15 and 16, 2009, in Honolulu. 

Items on the agenda include eminent domain, environmental law, transit-oriented development, subdivision requirements, and cultural impact statements. The program co-chairs are Professor David Callies and land use lawyer Ben Kudo.

This conference takes place only once every two years, so this is your last chance for a while to learn of the latest information and updates, and what issues are on the horizon.

I’m on the faculty, presenting a session on Emerging Water Issues: Coastal Zone Management Permits, and Hawaii’s Floodway, Floodplain and Coastal Inundation Zone Requirements.  The complete agenda and faculty listing is posted here.

Hope you can attend, and if you do, please stop by and say hello.Continue Reading Upcoming: Hawaii Land Use Law Conference

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

Check this out: an upcoming teleseminar on “Not in My Backyard (NIMBY): Development Resistance.”  “This teleconference will provide practical, actionable tools toanticipate and avoid community resistance to controversial land useprojects and to actively build community enthusiasm for the proposal.”  Sounds good to me.  For this and other land use-related lexicon, see NIMBYs, BANANAs, CAVEs and DUDEs. Continue Reading Teleconference on How to Deal With NIMBYs

To those who attended the workshop at the University of Hawaii law school, Hawaii State Historic Preservation Laws: Reclaiming the Past, Shaping the Future, thank you.  Here are links to the cases I mentioned in my presentation.

  • Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), the case where the U.S. Supreme Court held that if a use restriction was part of the “background principles” of nuisance and property law applicable to the property at issue, it could insulate the government from takings liability even if the restriction resulted in a total diminution of economically beneficial uses.

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Continue Reading Links From UH Historic Preservation Workshop

Mark your calendars for Saturday, September 27, 2008.  Ka Huli Ao Center for Excellence in Native Hawaiian Law at the University of Hawaii School of Law will be presenting a workshop “Hawaii State Historic Preservation Laws: Reclaiming the Past, Shaping the Future.” 

I will be speaking on “Background Principles and Paradigm Shifting: The Role of Property Rights in Historic Preservation Laws.”

The other speakers will be Dr. Kehau Abad, Oahu Island Burial Council; Dawn N.S. Chang, Kuiwalu; Prof. Carl C. Christensen, William S. Richardson School of Law; Dr. Thomas S. Dye, T.S. Dye and Associates; Moses Haia, Esq., Native Hawaiian Legal Corporation; Dr. Holly McEldowney, DLNR, Division of State Parks; Nancy McMahon, DLNR, Historic Preservation Division; Kai Markell, Office of Hawaiian Affairs; and William M. Tam, Esq., Alston Hunt Floyd & Ing. 

The keynote speaker will be Dr. Patrick Kirch, Departments of Anthropology and Integrative Biology, University of…

Continue Reading Upcoming UH Law School Workshop on Preservation Laws

There is still time to sign up to attend an upcoming seminar, Coastal Engineering and Land Use Issues, in Honolulu.  It’s being held on Thursday, August 14, 2008, at at Hilton Waikiki Prince Kuhio Hotel.  My colleagues and fellow law bloggers Mark Murakami and Jesse Souki are among the faculty.  Topics on the agenda include: Development and Land Use Issues in the Special Management Area, Construction and Land Use Issues in the Shoreline Area, and Managed Retreat Through the Redevelopment Process.  Go here for more information including the complete agenda and faculty list, and registration information.  Continue Reading Coastal Land Use Law Seminar

Get ready for this year’s Land Use Institute conference on “Planning, Regulation, Litigation, Eminent Domain, and Compensation,” to be held in Boston on August 13-16, 2008.  I can’t attend this year, but have in the past, and like all ALI-ABA land use conferences, it looks like it will be well worth going if you can.  The faculty is first-rate and includes professor-bloggers Gideon Kanner (Gideon’s Trumpet) and Patricia Salkin (Law of the Land) and other notables from our practice area. 

The keynote address will be presented by Harvard Law School Professor Charles M. Haar, revisiting his seminal 1955 law review article on land use planning “In Accordance With a Comprehensive Plan” (is there a single land use lawyer who hasn’t read this article at least once?).  The agenda for the conference, and other information is posted here.Continue Reading Seminar: Land Use Institute – Planning, Regulation, Litigation, Eminent Domain and Compensation (August 13-16)