Vested rights

Subscribe to Vested rights via RSS

The Hawaii Intermediate Court of Appeals, in a unanimous panel opinion authored by Judge Foley, held that a “zoning verification” by the Director of the City and County’s Department of Planning and Permitting is not a “decision of the Director” which a property owner must administratively appeal to the Honolulu Zoning Board of Appeals. Hoku Lele, LLC v. City and County of Honolulu, No. CAAP-11-0001064 (Jan. 25, 2013). The circuit court had dismissed the complaint for lack of jurisdiction because the property owner did not seek administrative review.

We represent the property owner/plaintiff/appellant in the case, so we’re not going to analyze the issue in detail, and leave it up to you to read the opinion. Needless to say, we think it is a correct and well-reasoned decision.

Hoku Lele, LLC v. City and County of Honolulu, No. CAAP-11-0001064 (Jan. 25, 2013)


Continue Reading HAWICA Clarifies What Actions By Planning Dept Trigger Administrative Zoning Appeals

You know how we’re always saying that certain parties have an enviable record of success in the Hawaii Supreme Court? Well, now the statistics are official.

The latest edition of the University of Hawaii Law Review published an article by lawprof David Callies summarzing the decisions of the court during the tenure of now-retired Chief Justice Ronald Moon. The article sets forth the stark numbers (83% win rate, 65% reversal of the intermediate appellate court), and contains a sharp comment about the often-lengthy nature of the court’s opinions:

Second, the Moon Court decided some of thestate’s most important property and related environmental and Native Hawaiianrights cases in favor of the various non-governmental organizations bringingthem (Sierra Club, Earthjustice, Hawaii’s Thousand Friends, and the NativeHawaiian Legal Corporation) approximately eighty-two percent of the time,sixty-five percent of which reversed the Intermediate Court of Appeals (ICA).Third, the court increasingly rendered lengthy opinions, many triple the…

Continue Reading U.H. Lawprof: HAWSCT’s 1993-2010 Record On Private Property Rights “Appalling”

Here’s what we’re reading today:

  • We know you probably read Professor Gideon Kanner’s blog daily, but in case you missed his thoughts about the U.S. Supreme Court’s opinion in Arkansas Game and Fish Comm’n v. United States, No. 11-597 (Dec. 4, 2012), please read them here. Today’s must-read.
  • Today is Pearl Harbor day, so we are linking to our in-person report from last year’s remembrance ceremony.
  • Check out the cert petition in Johnson v. Paynesville Farmers Union Cooperative Oil Co., No. 12678 (Nov. 29, 2012). The question presented is somewhat opaque and we don’t think there’s much chance that it will grab the Court’s attention, but it does involve an interesting issue about pesticide drift and organic certification. The petition challenges the Minnesota Supreme Court’s dismissal of an organic farmer’s nuisance and negligence per se claims because federal regulations do not regulate pesticide drift. Here’s the Court’s

…
Continue Reading Friday Round-Up: Flood Takings, Pearl Harbor, Organic Farming

We’ve talked California raisins before, but the latest is about oysters. Specifically, an oyster farm in a Marin County National Seashore, the Drakes Bay Oyster Company.

Interior Secretary Ken Salazar visited the place a couple of weeks ago to see if he would be willing to extend the farm’s existing license, which has been in place for decades. No deal, he concluded, despite lobbying efforts on the owner’s behalf by powerful U.S. Senator Dianne Feinstein. He ordered the farm to shut down in 90 days. 

When that failed, the next step was federal court, and earlier this week the oyster farmer sued in U.S. District Court in San Francisco. Here’s the complaint, if you want to read the details. The claims center on federal environmental laws and the Administrative Procedures Act, but yes, there’s the obligatory takings claim, alleging that the order to cease operations was a taking…

Continue Reading What’s The Beef In California Oyster Dispute?

Gideon Kanner recently asked “Whatever Happened to Condemnation of Underwater Mortgages?”

Watch this November 23, 2012 interview with the chairman of Mortgage Resolution Partners for the views from the outfit that proposed the idea of using eminent domain to take underwater mortgages. He says the idea is “not dead at all … but it’s a fair characterization to say it’s moving slowly.” When asked whether there is any jurisdiction in which it will defintely happen, he responded that there are places where MRP is “actively working” with government, and he is “highly confident” that it will happen.

In a classic case of burying the lede, be sure to pay attention at the 5:15 mark where he notes that “this is about economics … they own a piece of paper, it has a value. You might argue about what that value is or isn’t, but they [the bondholders]…

Continue Reading Condemnation Of Underwater Mortgages Not Off The Table Yet

Believing that discretion was the better part of valor, we didn’t think there would be a challenge to the Hawaii Intermediate Court of Appeals’ opinion in Leone v. County of Maui, No 29692 (June 22, 2012). But we were wrong, and the County of Maui is going all in. 

Update Dec. 12, 2012: cert rejected.

The County has filed a cert application (remember, under Hawaii appellate procedure we don’t “petition” for cert, we “apply”) arguing that a property owner faced with the County’s refusal to even process its request for a use permitted by zoning has an obligation to appeal that refusal up the County’s administrative chain. The reason for the refusal to even consider the request was that the proposed use, while permissible as of right under applicable zoning, was inconsistent with the Community Plan designation (the same as General Plans in most other places), so the…

Continue Reading New HAWSCT Cert App: Williamson County Ripeness Requires Property Owner Change The Law

You can take the Justice out of the Court, but you apparently can’t take the Court out of the Justice. Retired Justice John Paul Stevens has added the “ninth vote” (his words, not ours) in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (June 17, 2010), the case is which the other eight Justices all agreed that the Florida Supreme Court had not changed the law, so there had been no “judicial taking.” Four Justices, however, opined that if a court declares that what was once an established right of private property no longer exists, it has taken that property in violation of the Takings Clause.

Justice Stevens sat that one out, recusing himself because news stories had noted his wife owned a beachfront condo in Ft. Lauderdale. But the lure of adding his reaction to Justice Scalia’s opinion has proven too much to…

Continue Reading Justice Stevens, Recused In The “Stop The Beach Renourishment” Case, Weighs In On The “Stop The Beach Renourishment” Case

Watch this case: it is likely to be a landmark in Hawaii water law.

Hawaii water law cases tend to be vast adventures in history, culture, irreconcilable arguments, and oddball doctrines (e.g., appurtenant water rights are keyed to the amount of taro under cultivation at the time of the 1848 Mahele), and the appeal to be heard by the Hawaii Supreme Court on Wednesday, June 6, 2012, starting at 9:00 a.m., appears to be no different. It seems to have something for everyone: appellate jurisdiction, administrative law (the old metaphysical question of what is a “contested case”), instream flow standards, Native Hawaiian rights, and the public trust in water resources.

Here’s the description of In re `Iao Ground Water Management Area High-Level Source Water Use Permit Applications and Petition to Amend Interim Instream Flow Standards of Waihe`e River and Waiehu, `Iao, and Waikapu Streams Contested Case Hearing…

Continue Reading HAWSCT Oral Arguments: The Next Big Hawaii Water Case

We’ve been meaning to post the latest developments in a case we’ve been following, two lawsuits that originated in state court in the Third Circuit (Big Island), one an original jurisdiction civil rights lawsuit, the other an administrative appeal (that’s a writ of administrative mandate for you Californians) against the State of Hawaii Land Use Commission.

Our colleague Paul Schwind provided a comprehensive guest post on the civil rights case, and summarized the facts that led to both lawsuits here. In short, the Land Use Commission reclassified (rezoned) property as a sanction after it asserted the developers failed to comply with certain conditions, chief among them to provide a certain number of “affordable housing” units by a certain date.

The State removed the civil rights lawsuit to U.S. District Court in Honolulu and promptly moved to dismiss, and this portion of the case nearly caused us to…

Continue Reading Court: State Land Use Commission Exceeded Its Authority, Violated Developers’ Due Process And Equal Protection Rights

Today, the Texas Supreme Court issued opinions in Severance v. Patterson, No. 09-0387, the case before the court on certified questions from the U.S. Court of Appeals for the Fifth Circuit. The Fifth Circuit asked whether Texas recognizes a “rolling” beachfront access easement (a public easement on littoral property that moves with naturally caused changes in the vegetation line without proof of prescription, if Texas does recognize such an easement, what is its source (statute or common law), and would a landowner subject to this easement be able to obtain compensation under Texas procedures?  More on the case background here.

The Texas Supreme Court had issued opinions in 2010 affirming that no such “rolling easement” existed (opinions and briefs available here), only to grant the government’s motion for rehearing, apparently something you can do under Texas appellate procedure. So nearly a year ago, the Supreme Court…

Continue Reading Texas (Again) Affirms Property Rights: No “Rolling Easement” On Beaches