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In Bair v. United States, No. 2007-5049 (Feb. 5, 2008), the US Court of Appeals for the Federal Circuit held that a federal statute that effectively wiped out liens possessed by beet growers  was not a taking.  The court held that the liens — which all parties admitted were recognized by state law — were always subject to the federal statute, thus were not a compensable property interest that could have been taken.  Yes, the value of the liens were wiped out by the federal statute, but the liens were never viable to begin with.

The Federal Circuit held that the federal statute was a “background principle” of law under Lucas to which the state-recognized liens were always subject, much like the federal “navigational servitude,” the background principle that private ownership of navigable waters is impossible:

The central dispute in this case is whether appellants possessed a compensable property…

Continue Reading Federal Circuit: No Taking Due to “Federal Beet Lien Servitude”

Another year has come and gone.  In Hawaii, two of the hottest “landuse” related topics in the public arena remain public beach access andtransient vacation rentals.  Yet, there wasn’t much to report in theway of developments in the law in these areas, as the courts did notaddress these issues directly in any decisions.   Nor were there anytrue “blockbuster” decisions from the U.S. or Hawaii Supreme Courts. No Kelo, no Lingle, no Rapanos.  But there was a fair amount of sorting out in the lower courts, and the lack of attention-grabbing cases certainly it doesn’t mean that 2007 wasn’ta very interesting year in land use law. 

Over the next several days, I’ll post some of the highlights (or lowlights, depending on your point ofview) in land use law and other topics covered oninversecondemnation.com in 2007.  Look for the category “2007 in review” linked on the right, or visit…

Continue Reading 2007 Land Use in Review

Some takeaway points:

  • The definition of “shoreline” in the Coastal Zone Management Act –while it may be based on, and similar to the common law boundarybetween public and private property — does not define the location ofthe public beach. It is merely the baseline from which the shorelinesetback (the “no-build” zone on beachfront lots). The setback meansonly that a property owner is prohibited from building within so manyfeet of the shoreline. “Shoreline certifications” and one year validityhave nothing to do with
  • The value of the accreted property taken in not “minimal.” The Honolulu Star-Bulletin‘s story on the decision reported:

But [Rep. Cynthia] Thielen[(R, Kailua-Kaneohe Bay), who pushed the law] said the landowners might have a tough road ahead in pursuing theirclaims against the state for land existing as of 2003.

“It will have to play out in the courts, and there is quite a burden ofproof on the landowners,”…

Continue Reading DRAFT

Here is a collection of all the inversecondemnation.com posts on the Hawaii Superferry litigation:

Case documents —

Commentary and analysis —

Continue Reading ▪ Hawaii Superferry EIS Case Posts

The Wall Street Journal (Sep. 1, 2007)

This Side of Paradise

By MALIA ZIMMERMAN
September 1, 2007; Page A6

KAUAI, Hawaii — The island of Kauai has long been a magnet for visitors from the mainland as well as the main island. With white sand beaches and turquoise blue water, the island on the northern edge of the Hawaiian chain looks like a picture-perfect Hollywood set.

But there is trouble brewing on this island paradise. Last month, the state’s Supreme Court declared that voters do not have the power to amend Kauai’s County Charter to bring soaring property taxes down to a manageable level. That power is to be reserved for the county’s mayor and governing council.

The ruling serves as a warning for anyone, fresh from the beach, who is tempted to buy that vacation home or retire to that ocean-front property. In Kauai, owning a slice of heaven…

Continue Reading ▪ National Spotlight on on the “Ohana Kauai” Property Tax Charter Amendment Case — Wall Street Journal: “This Side of Paradise”

Here are links to all the posts on the “Ohana Kauai” Charter Amendment case, in which the Hawaii Supreme Court in a 3-2 decision held that friendly government officials have standing to institute lawsuits against each other to challenge a charter amendment enacted by a vote of the people.  Chief Justice Ronald Moon authored the majority opinion, which was joined by Associate Justices Steven Levinson and Paula Nakayama. 

In the words of the dissenting opinion, the majority, on its own initiative and after briefing and argument, rearranged the parties by

deleting [the Defendant Kauai County Council] as a defendant in this case and adding it back as the putative plaintiff in order to create a supposed controversy between the County Council and Defendant Mayor of Kauai . . . manipulating the lawsuit so as to create a controversy that did not in fact exist when the suit was filed, when…

Continue Reading ▪ County of Kauai ex rel. Nakazawa v. Baptiste: Kauai Property Tax Decision Summary Page

I’m in court this week, so won’t be posting as much as usual.  If anything big happens, of course, I’ll post. 

But in the meantime, check out these links for your daily land use/eminent domain/property rights fix:

Continue Reading ▪ Admin note: light posting this week

To obtain a copy of the article “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).

From the article’s Introduction —

The modern land regulation and development process – particularly in Hawai`i where both the state or the local government may be involved in excruciating detail – is a complex, lengthy, expensive, and very often uncertain undertaking for any property owner desiring to exercise the fundamental right to make reasonable use of its property.  The uncertainty is compounded by the ability of the government to change the regulations applicable to property after the owner has begun planning or building but has not completed construction.  Operating within a system that is rightly or wrongly perceived as…

Continue Reading ▪ Arrow of Time: Vested Rights, Zoning Estoppel, and Development Agreements in Hawaii

In Mt. San Jacinto Community College v. Superior Court, the California Supreme Court addressed two constitutional issues regarding the quick-take process:

First, does a statutory property valuation date that occurs at the time the condemner deposits the probable compensation in court under section 1263.110, et seq. deny the property owner just compensation under the California Constitution when litigation in the eminent domain action is not expected to end until several years after the deposit is made? 

Second, is the owner’s statutory waiver of rights after withdrawing the funds an unconstitutional condition on the statutorily required “prompt release” of the deposit?

“Quick-take” is the procedure under which condemnors obtain immediate possession of property upon a deposit of estimated compensation to the court.  (The quick-take procedures are codified under Hawaii eminent domain law at Haw. Rev. Stat. § 101-28, -29, and -30.)  The opinion details the history of…

Continue Reading ▪ Cal Supreme Court on “Quick Take” Procedures