Vested rights

Subscribe to Vested rights via RSS

The return trip of the “Hawaii Superferry” case, Sierra Club v. Dep’t of Trans., No. 29035 (visit our page with all resources on the case here), to the Hawaii Supreme Court at first gloss presents a somewhat metaphysical question: when is duly enacted legislation which on its surface appears to be of general applicability, really meant for a single beneficiary?

This has been the debate thus far on whether “Act 2,” the statute enacted after the Hawaii Supreme Court held in ————————–, that the State Department of Transportation’s exemption of the Hawaii Superferry from detailed environmental review violated the Hawaii Environmental Policy Act, Haw. Rev. Stat. ch. 343.  Continue Reading What’s Really At Stake in the Hawaii Superferry “Act 2” Appeal

Just in case you wanted even more to read tonight before tomorrow’s Hawaii Supreme Court oral arguments in the Hawaii Superferry appeal redux, posted below is a nearly complete set of briefs. Some are upwards of 2 MB, so you — and your internet service provider — have been duly warned.

Believe it or not, this is not a complete set of briefs (it’s somewhat ironic that “environmental litigation” can kill so many trees), but only those that seemed to us likely to be of interest when we scanned the files at the Clerk’s office. The case involves three major parties (Sierra Club, State of Hawaii Department of Transportation, and the Hawaii Superferry) and there are not only appeals, but cross-appeals, so yes, there are other briefs not included here.

For the Court’s summary of the issues in the case, go here. For a summary of what goes on…

Continue Reading More Superferry Round 2 Briefs

Another reminder: tomorrow morning, the “Hawaii Superferry” litigation is back in the Hawaii Supreme Court Round 2, with oral arguments scheduledto commence at 9 a.m.  I’ll be attending the arguments, and technology and typing skills permitting, live blogging it.

Visit this page to sign up for an email reminder, or just visit at 8:45 a.m. on Thursday, November 18, to tune in. You don’t need special software, just a web browser.

For those not familiar with appellate oral arguments, here’s a short primer/FAQ:

Why oral argument? –  Appellate oral argument has been described as the Court’s “conversation with counsel” about the case and the law.  Oral argument can illuminate legal or logical problems not evident from the briefs and which may not otherwise be discovered, distill arguments by testing them, and allow the advocates to respond to the Court’s specific concerns. See, e.g., Blair v. Harris…

Continue Reading Live Blogging The HAWSCT Superferry Oral Arguments 12.18.08

The case that would not go away, the “Hawaii Superferry” litigation, is back in the Hawaii Supreme Court this week for Round 2, with oral arguments scheduled for 9 a.m. on Thursday, December 18, 2008.  The Court generally allocates 1/2 hour per side, for a total of one hour of argument (which may be extended at the Court’s discretion, but it rarely is).

I’ll be attending the arguments, and technology and typing skills permitting, live blogging it.  Visit this page to sign up for an email reminder, or just visit at 8:45 a.m. on Thursday to tune in.

The key briefs of the parties are posted below:

  • (Hawaii Superferry filed an Answering Brief, which “incorporatesby reference the arguments set forth in the State’s Answering Brief,filed August 18, 2008.”)

The Court’s web site describes the issues in…

Continue Reading Hawaii Superferry Supreme Court Briefs

In a lengthy opinion, the Hawaii Intermediate Court of Appeals in Pono v. Molokai Ranch, Ltd., No. 28359 (Oct. 21, 2008), held that the State Land Use Law, Haw. Rev. Stat. ch. 205, does not create a private right of action allowing for non-governmental enforcement of the law.  The court also held there is no private right of action to enforce the Molokai Community Plan. 

Judge Foley concurred, and would have held that the plaintiff did not exhaust its administrative remedies because it did not appeal the Public Works Director’s decision to the Board of Variances and Appeals.

Disclosure: my Damon Key colleagues Greg Kugle and Ken Kupchak represented Molokai Ranch.

More to follow after a chance to digest the opinion.  Continue Reading HAWICA: No Private Right of Action to Enforce Land Use Laws

A worthwhile article in the latest edition of The Urban Lawyer about settling land use disputes with processes that may not adhere strictly to the usual permit consideration procedures.  Here’s the summary from the ABA’s site:

Paul D. Wilson, Of Synagogues and Nude Juice Bars: Can a Municipality Settle Land Use Litigation Without a Permitting Process?, 40 Urb. Law. 535 (Summer 2008).This article examines conditional use permits and the appropriatenessof settlement agreements between municipalities and controversialzoning permit applicants. The author examines a recent ninth courtdecision, League of Residential Neighborhood Advocates v. City of LosAngeles, in which the court struck down a settlement agreement betweena city and an Orthodox Jewish synagogue wishing to locate in aresidential zone, finding that the settlement was not a substitute fora conditional use-permit. The author then examines several analogouscases which present variations of the issue and possible solutions formunicipalities.

The Urban Lawyer is…

Continue Reading Settling Land Use Litigation: Private Agreements and Public Process

You snooze, you lose.  That’s the lesson from Turnacliff v. Westly, No. 07-15287 (Oct. 15, 2008), where the Ninth Circuit rejected a claim that California’s escheat statute, which sets a rate for interest on abandoned property, violated the Takings Clause.  The owner whose abandoned property was eventually returned (with statutory interest) claimed that the state had a constitutional obligation to use some form of market rate for calculating the interest.

The court assumed the existence of a property right in interest earned on escheated property, but held that because that property itself had been abandoned, the owner had forfeited any property claim in the interest on the property.  The owner got its money back, with interest, and the court held the owner

. . . has no Fifth Amendment right to “actual” or “constructive” interest earned by its property while held by the State; California need not further compensate…

Continue Reading Ninth Circuit: No Taking of Interest on Abandoned (Escheated) Property

The California Court of Appeals, Second District (Los Angeles) today struck down a municipal moratorium on development, which in some cases prevented landowners from developing their properties for 30 years:

We conclude that the resolution, by implementing the moratorium and continuing to prevent plaintiffs from building on their properties, “deprive[d] [plaintiffs’] land of all economically beneficial use.” (Lucas v. South Carolina Coastal Council (1992) 505 U.S. 1003, 1027 [112 S. Ct. 2886, 2899] (Lucas).) Consequently, the city had the burden at trial of proving that the construction ban was justified by “background principles of the State’s law of property and nuisance.” (Id. at p. 1029 [112 S. Ct. at p. 2900]; see id. at pp. 1031–1032 [112 S.Ct. at pp. 2901–2902].)

The city failed to meet its burden of justifying the moratorium — as applied to plaintiffs’ lots — through evidence showing a reasonable…

Continue Reading Cal. Court of Appeals: Development Moratorium a Taking Under Lucas

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.

…
Continue Reading Links From UH Historic Preservation Workshop