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What do you call an appeal in which the Supreme Court doesn’t address any of your five questions presented?

If you are the petitioner’s attorneys in Save Diamond Head Waters LLC v. Hans Hedemann Surf, Inc., No. 27804 (July 13, 2009), you’d call it “victory.”

In that case — which was being considered by the Hawaii Supreme Court on secondary cert review — the petitioners asserted the Intermediate Court of Appeals “gravely erred” (see Haw. Rev. Stat. § 602-59(b)(1)) when it held the Director of the Honolulu Department of Planning and Permitting was within his authority when he concluded a surf school’s use of a space in a hotel lobby would be a valid nonconforming use if the school adhered to certain conditions imposed by the Director.

Usually, cases about nonconforming uses aren’t exactly the most interesting to read. Commonly known as “grandfathering,” and…

Continue Reading HAWSCT On Nonconforming Uses: You Can’t Change What You Didn’t Establish

In What’s At Stake in Stop the Beach Renourishment, Lawprof D. Benjamin Barros posts a comprehensive summary of “judicial takings” case accepted for review by the US Supreme Court, Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). Raises several interesting points and worth a read.Continue Reading PropertyProf’s Summary Of The SCOTUS Beachfront Takings Case

The U.S. Supreme Court last week agreed to review the Florida Supreme Court’s decision in Walton County v. Stop the Beach Renourishment, Inc.,998 So.2d 1102 (Fla. Sep. 29, 2008), which heldthat a state statute prohibiting “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. See Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). More background on the case at our resource page.

The Court accepted three questions for review, and the cert petitionrelied on two rather notorious cases with Hawaii origins to support theconclusion that a decision by a state court which unexpectedly changesestablished state common law rules of property is a compensable taking.See Pet. at 31-32 (citing Robinson v. Ariyoshi…

Continue Reading On Judicial Takings, And The Hawaii Water Rights Backstory In Stop The Beach Renourishment

Head’s up to all members of the ABA’s Section of State and Local Government Law‘s Condemnation Law Committee: you should have received an email about next week’s conference call (Thursday, June 25, 2 p.m. EDT) to discuss recent developments and items of interest, including:

If you are a section member and did not get the notification email with call-in information, send me an email and I will forward it to you.Continue Reading ABA Condemnation Law Committee Conference Call On Beach Takings Case And Sotomayor Nomination

The Eminent Domain Law Blog, published by our colleagues at Owners’ Counsel of America, has summarized Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11, the takings and due process case which the U.S. Supreme Court agreed yesterday to review. 

Beachfront property owners along Florida’s Gulfcoast, have been tryingto stop an effort by local and state officials to restore the beachthrough renourishment, a process by which sand is dredged from theocean floor, transported through pipes and distributed along erodedbeach areas, in essence adding sand to widen the beach. This proposedbeach renourishment project would cover nearly seven miles of shorelineand widen the beach by approximately 210 feet in Destin, FL.

Akey issue in the litigation thus far, which has moved from CircuitCourt to the First District Court of Appeal to the Florida SupremeCourt, is that by adding sand to the waterfront and restoring thebeach,

…
Continue Reading More Background On The Supreme Court’s Beachfront Takings Case

Here are links and other items of interest about Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009):

  • Dwight Merriam’s thoughts at IMLA’s Local Government blog.
  • Pacific Legal Foundation’s (the only organization to file an amicus at the cert stage) summary of the issues.
  • Law of the Land blog’s summary.

Continue Reading SCOTUS Beachfront Takings Case Links

In Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009), the US Supreme Court agreed to review a case that raises several important takings issues, including the issue of whether a court decision can take property. The ABA Journal’s July 2006 report “Up Against the Seawall” tells the backstory on the case and highlights other beach issues.

In Walton County v. Stop the Beach Renourishment, Inc., 998 So.2d 1102 (Fla. Sep. 29, 2008), the Florida Supreme Court held that a state statute which prohibits “beach renourishment” without a permit did not effect a taking of littoral (beachfront) property, even though it altered the long-standing rights of the owners to accretion on their land and direct access to the ocean. The cert petition presents these questions:

The Florida Supreme Court invoked “nonexistent rules of state substantive law” to…

Continue Reading SCOTUS To Review Beachfront Takings Case: Can A Court Decision “Take” Property?

A very interesting decision from the U.S. Court of Appeals for the Fifth Circuit in Severance v. Patterson, No. 07-20409 (Apr. 23, 2009). 

While much of the commentary about the case (see, e.g., here, here, and here) has focused on the dissenting opinion’s ad hominem on the plaintiff’s and her attorneys’ motivations and the majority opinion’s slap-down of the dissent (see footnote 1), for now we will stick to what the opinion held on the merits which is as interesting, if not more so. (We will add our thoughts about what the weird dissent said about public interest legal cases in a separate post.)

The case involved constitutional challenges to a Texas statute known as the Open Beaches Act, which imposes an easement for public access over certain beachfront land. After Ms. Severance purchased two beachfront parcels in Galveston, in 2005 Hurricane Rita…

Continue Reading Fifth Circuit: Fourth Amendment Seizure Of Beachfront Land Claim Not Subject To Williamson County Ripeness

Thanks to James Lawlor of the Land Use Legal Report for letting us know that the U.S. Supreme Court has declined to review Ocean Harbor Homeowners Ass’n v. California Coastal Comm’n, 163 Cal. App. 4th 215, 77 Cal. Rptr. 432 (2008). In that case, the California Court of Appeals held that the California Coastal Commission properly conditioned a permit to build a seawall to protect property from erosion on the landowner’s payment of a $5.3 million “mitigation fee.” The fee was to be used to purchase other beach property since Commission claimed the construction of the seawall would result in the loss of beach fronting the property. The property owner challenged the exaction under the nexus and proportionality requirements of Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994).

A denial of a petition for writ of…

Continue Reading Cert Denied In California Nollan/Dolan $5.3 Million Seawall “Mitigation Fee” Case

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