Vested rights

Subscribe to Vested rights via RSS

It can be difficult to piece together the full scope of the issues and arguments in an appeal from the oral arguments alone. Most often, arguments cover narrow issues of concern to the judges, and the advocates do not have the opportunity to cover every argument in the time allotted (that’s what the briefs are for). And although oral arguments in the Hawaii Supreme Court and the Intermediate Court of Appeals are usually scheduled at 30 minutes per side which allows for a wider range of issues and a more in-depth discussion, the briefs are the best guide for what the arguments are.

With that prologue, we wanted to focus your attention on an appeal that was argued last week in the ICA, Goo v. Tavares, No. 30142. The case involves a multitude of land use-related issues, including how “height” is measured, vested rights and estoppel, and the private…

Continue Reading HAWICA Oral Arguments In Appeal About From Where “Height” Is Measured

The top-side brief and supporting amicus briefs have been filed in a case we’ve been following, PPL Montana v. Montana, No. 10-218 (cert. granted June 20, 2011).

In PPL Montana, LLC v. State of Montana, 229 P.3d 421 (Mont. Mar. 30, 2010), the Montana Supreme Court disregarded 100 years of private or federal ownership of the riverbeds under more than 500 miles of river, and held that the state owned them.* The net result of the Montana court’s ruling was that the state was owed millions in back and future rent from the owners of hydropower facilities located on those riverbeds.Sound familiar?

In June, the Supreme Court agreed to review this question:

Does the constitutional test for determining whether a section of a river is navigable for title purposes require a trial court to determine, based on evidence, whether the relevant stretch of the river was…

Continue Reading SCOTUS Reviewing State Court’s Land Grab In Navigability Case

Here’s what we’re reading this fine summer Monday:

  • Land Use Institute – Although we won’t be able to attend the upcoming annual ALI-ABA program in Boston due to a scheduling conflict, we have attended several times in the recent past, and can highly recommend it. The faculty, as usual, is stellar, and includes colleagues Michael Berger,  Amy Brigham Boulris, Bob Foster, Patricia Salkin, Julie Tappendorf, and Gideon Kanner. 
  • 2011 Takings Conference – Another law conference (November 19, 2011), this one devoted (mostly) to how to defeat regulatory

…
Continue Reading Monday Round-Up: Vested Rights, Land Use Institute, And More

Here’s the latest in a case we’ve been following. In Bridge Aina Lea, LLC v. State of Hawaii Land Use Comm’n, the plaintiff filed its complaint in state circuit court alleging that the LUC violated state and federal law (due process, takings, vested rights, and more) when it reclassified “urban” land on the Big Island to “agriculture.” 

The defendants then removed the case to federal court, and have now filed a motion to dismiss that contains a host of defenses: immunity, the unavailability of prospective injunctive relief, whether certain defendants are “persons” under 42 U.S.C. § 1983, abstention on the federal takings claim, the lack of a state damage remedy for deprivation of constitutional rights, and zoning estoppel, among others.

Just the thing to give you flashbacks to your Federal Courts class.

Update: here‘s the errata filed just after the motion to dismiss.

Motion to Dismiss, Bridge at …

Continue Reading Latest In Big Island Takings And Vested Rights Challenge To LUC Reclassification

Today’s Ninth Circuit opinion in Vandevere v. Lloyd, No. 09-35957 (July 11, 2011), raises a couple of interesting questions having little to do with the merits of whether Alaska’s commercial fishing regulations worked a taking or a due process violation because they shortened the fishing season and limited the number of fish that can be harvested under the plaintiff’s entry permits and fishery leases.

First of all, what’s the Ninth Circuit doing reviewing a federal takings claim at all? As we’ve discussed repeatedly (most recently here), we thought that under Williamson County, federal courts could only review takings claims for compensation after a property owner has sought (and been denied) compensation in state procedures, which include an inverse condemnation claim in state court. A search of the Vandevere opinion reveals no citation to Williamson County. But check out page 9226 of the slip opinion, which references…

Continue Reading Judicial Takings Overtones In The Ninth Circuit

A new case worth watching has been filed in Hawaii state court (Third Circuit, the Big Island) that involves allegations of vested rights and estoppel, Nollan/Dolan exactions, state and federal due process and takings, inverse condemnation, and equal protection.The

See below, the Complaint in Bridge Aina Le’a v. State of Hawaii Land Use Comm’n, No 11-1-1145-06 (KKS), filed last week, in which the plaintiff asserts that the Land Use Commission changed the land use boundaries from “urban use to agricultural use while affordable housing was being constructed on the property.”

More here, from West Hawaii Today.

Complaint, Bridge Aina Le’a v. State of Hawaii Land Use Comm’n, No. 11-1-1145-06 (KKS) (filed 6-7-2011)Continue Reading New Lawsuit To Watch: Land Use Commission, Vested Rights, Civil Rights

Civil Beat‘s recent report on the mayor’s plan to demolish the Waikiki Natatorium War Memorial, a salt-water swimming pool erected to honor those who served in “the Great War,” not only brought back some childhood memories (I swam there as a kid) but reminded us of the cost of preservation. When the thing or property sought to be preserved  — or, to use the bumper-sticker vernacular, “saved” — is public property like the Natatorium, the discussion usually involves the cost of doing so balanced against the desire to keep it.

But when the property involved is private property, you usually hear very little about the burdens placed on the owner, or the cost to the public of preservation. Which brings us to the tile of this post, which was inspired by a recent column by Howard Dicus “What do you want to save in Honolulu that’s old?…

Continue Reading What Do You Want To Save In Honolulu (And How Much Will It Cost?)

In Levine v. Town of Sterling, No. 18470 (Apr. 12, 2011), the Connecticut Supreme Court held that a property owner need not show that his property was rendered worthless or that he made “capital investment” to prove that he relied on a resolution by the town’s board of selectmen that he could build more than one house on his land.

Levine involved zoning estoppel (aka equitable estoppel, permit estoppel, or, as in Connecticut, “municipal estoppel”), the claim that the government cannot apply existing land use regulations to a parcel because the owner has relied on some kind of official assurance that she could do something else. In that case, Mr. Levine owned a parcel with an existing house and wanted to build two others and convert it to a planned unit development. The board “noted that [the plaintiff] was within his rights to do so but stressed that none…

Continue Reading Connecticut: Soft Costs Sufficient To Show “Substantial Loss” For Zoning Estoppel

VTLREV_coverAs we noted here (when we posted our article), the latest issue of the Vermont Law Review deals with the U.S. Supreme Court’s “judicial takings” case, Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, 130 S.Ct. 2592 (June 17, 2010). 

In eight essays, the authors of several of the many amicus briefs add their post-opinion thoughts. Authors include Ilya Shapiro (Cato Institute), Professor John D. Echeverria (Vermont Law), and Julia Wyman (Marine Affairs Institute). The groundwork is laid in the first article, by Professor L. Kevin Wroth:

If hard cases make bad law, bizarre cases may make no law at all. The recent Supreme Court decision, Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection is a case in point. In the Essays that follow, the Vermont Law Review has brought together the reflections of seven lawyers, or teams of lawyers, for amici curiae…

Continue Reading Vermont Law Review: Essay Reflections From The Amicus Curiae In The Judicial Takings Case

To all of you who attended the first day of the Hawaii Land Use Conference today, thank you. As promised, here are the items I discussed during my two sessions:

  • United States v. Milner, 583 F.3d 1174 (9th Cir. 2009) – the case in which the Ninth Circuit affirmed a finding of common law trespass for the building of a wall on fast land, because the shoreline eventually eroded up to it. Both parties had “vested rights” to an ambulatory littoral boundary. The U.S. Supreme Court denied review, as noted here.

…
Continue Reading Cases And Links From Today’s Hawaii Land Use Conference Sessions On Coastal Issues And Water Law