Vested rights

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Mark your calendars for Saturday, September 27, 2008.  Ka Huli Ao Center for Excellence in Native Hawaiian Law at the University of Hawaii School of Law will be presenting a workshop “Hawaii State Historic Preservation Laws: Reclaiming the Past, Shaping the Future.” 

I will be speaking on “Background Principles and Paradigm Shifting: The Role of Property Rights in Historic Preservation Laws.”

The other speakers will be Dr. Kehau Abad, Oahu Island Burial Council; Dawn N.S. Chang, Kuiwalu; Prof. Carl C. Christensen, William S. Richardson School of Law; Dr. Thomas S. Dye, T.S. Dye and Associates; Moses Haia, Esq., Native Hawaiian Legal Corporation; Dr. Holly McEldowney, DLNR, Division of State Parks; Nancy McMahon, DLNR, Historic Preservation Division; Kai Markell, Office of Hawaiian Affairs; and William M. Tam, Esq., Alston Hunt Floyd & Ing. 

The keynote speaker will be Dr. Patrick Kirch, Departments of Anthropology and Integrative Biology, University of…

Continue Reading Upcoming UH Law School Workshop on Preservation Laws

The Ninth Circuit has scheduled oral arguments in Maui Vacation Rental Association, Inc. v. County of Maui, No. 08-15251, the Ninth Circuit appeal from the Hawaii district court’s dismissal of MVRA‘s complaint which sought to declare Maui’s shut down of vacation rentals illegal. The court will hear argument on November 21, 2008, at 9:00 a.m. in Honolulu.

The issues in the case are spelled out in the briefs:

The case and the issues have also been reported in the media:

…
Continue Reading Oral Argument Scheduled in Ninth Circuit Maui Vacation Rental Appeal

So the federal government tells you that the device you are making is not a “machine gun” and you go ahead and start to manufacture them.  Times change, though, and three years later “upon further review” (as they say in the NFL), the government tells you that the device is is an illegal “machine gun” and that you can’t sell it to anyone but law enforcement agencies.

In Akins v. United States, No. 08-136C (July 24, 2008), the Court of Federal Claims dismissed a claim that the government’s reversal of position amounted to a taking of property without compensation. 

The plaintiff had obtained a patent from the U.S. Patent and Trademark Office for a device to increase the rate as which a semi-automatic rifle fires.  (Go here to view the patent.)  In other words, it would make a rifle shoot faster.  The Bureau of Alcohol, Tobacco, Firearms and Explosives…

Continue Reading Three Times The Pain, And Your Own Self To Blame*

Today we filed the Reply Brief (925kb pdf) in Maui Vacation Rental Association, Inc. v. County of Maui, No. 08-15251, the Ninth Circuit appeal from the Hawaii district court’s dismissal of MVRA‘s complaint which sought to declare Maui’s shut down of vacation rentals illegal.

I won’t go into the details, since the Reply Brief spells out the arguments.  It responds to the arguments in the County of Maui’s Answering Brief, posted here.  MVRA’s Opening Brief, as well as links to media coverage of the case and issue, is posted here.Continue Reading Reply Brief in Ninth Circuit Maui Vacation Rental Appeal

The speed of information on the internet sure is fast.  I was preparing a post summarizing the recent Court of Federal Claims decision in Estate of Hage v. United States,No. 91-1470L (May 6, 2008), which awarded Nevadaproperty owners several million dollars in just compensation for the taking of theirvested water rights by the federal government, but Professor Gideon Kanner and the Real Estate and Construction Law Blog both beat me to the punch.

Kanner’s commentary on the case, “Posthumous Victory for Hage” is posted here. “Federal Claims Court Awards $4.2M to Ranchers’ Estate for Taking of Water Rights” is posted here.

Read the CFC’s opinion here.Continue Reading Court of Federal Claims Awards Compensation for Taking of Vested Water Rights

My colleague Mark Murakami posted a link to a recent newspaper article about lateral beach access; that article spurred the Star-Bulletin editorial “State upholding public policy in Kahala beach access issue.”  It seems that vegetation growing on private property is moving — either on its own or with help — makai (towards the ocean), thus crowding onto the public beach.  The editorial rightly recognizes:

Sooner or later, vegetation and waves converge, preventing people frommoving laterally along public land, which law defines as the highestwash of waves at high tide during the highest surf season, “usuallyevidenced by the edge of vegetation or by the line of debris left bythe wash of the waves.”

As I detailed in this post, the above is a correct statement of law; unlike jurisdictions that define the public-private boundary on beaches as the mean high water mark, Hawaii law says all beaches are…

Continue Reading Shoreline Boundaries And Shoreline Setbacks

The County of Maui has filed its Answering Brief in Maui Vacation Rental Association, Inc. v. County of Maui, No. 08-15251, the Ninth Circuit appeal from the Hawaii district court’s dismissal of MVRA‘s complaint which sought to declare Maui’s shut down of vacation rentals illegal.

Our Opening Brief for MVRA is posted here, along with information about the issues in the case, which include what is necessary to plead a due process property interest, and what are elements of a claim for estoppel and vested rights under Hawaii law. Continue Reading County of Maui’s Brief in Ninth Circuit Vacation Rental Appeal

The property owner has filed a Petition for Rehearing asking the California Court of Appeal (2d District)to reconsider its decision in Charles A. Pratt Constr. Co., Inc. v. Cal. Coastal Comm’n,No. B190122 (May 8, 2008).  In that case, the court held the property owner’s right to develop was not vested, and that atakings claim was not ripe since the owner could submit other plans fordevelopment.  The Land Use Law Blog details the case and provides commentary in “The Development Blues: Property Lies Undeveloped for 30 Years and Counting.”

The opinion’s opening paragraphs took a literary approach to the issue, citing “September Song,” Einstein, and Heraclitus.  The Petition responds with flourishes of its own, quoting Stephen Hawking’s “A Brief History of Time,” and Jim Croce’s “Time in a Bottle,” arguing that the opinion overlooked or misstated the facts of the case…

Continue Reading Petition for Rehearing in Pratt Construction v. Cal. Coastal Comm’n

As noted in this post, the City and County of Honolulu has sought US Supreme Court review of Matsuda v. City and County of Honolulu, 512 F.3d 1148 (9th Cir. Jan 14, 2008).  I’ve finally obtained a copy of the petition, which is posted here (2mb pdf).  The Supreme Court docket report is here (No. 07-1305).

After detailing the background facts, the petition advances a single Question Presented:

Several lessees of a residential condominium apartment complex (“Lessees”) filed a lawsuit against the City and County of Honolulu (the “City”) challenging Ordinance 05-001 (2005).  Ordinance 05-001 repealed the City’s leasehold conversion ordinance, Chapter 38, Revised Ordinances of Honolulu (“ROH”), the statutory process by which leasehold condominium owners, including Lessees, could purchase the leased fee title to their units, through the use of the City’s power of eminent domain.  Pursuant to Chapter 38, the Lessees executed contracts with the City for the acquisition of the leased fee interests in their condominium units.  However, Lessees never received City Council approval prior to the repeal of Chapter 38, and therefore they were unable under Ordinance 05-001 to complete their leasehold conversion.

The Ninth Circuit Court of Appeals departed from the longstanding policy of judicial deference to local legislative determinations of public use in the exercise of the power of eminent domain and held that the City’s repeal of Chapter 38 may violate the Contracts Clause and/or the Due Process Clause of the Constitution of the United States.

Therefore, the question presented in this petition is as follows:

Whether the Ninth Circuit erred in concluding that the Honolulu City Council’s repeal of the leasehold conversion ordinance may violate the Contracts Clause and/or the Due Process Clause, and whether after the repeal, the City can still be contractually bound to exercise its power of eminent domain to acquire property for the leasehold conversion?

Petition at i-ii. 

Chapter 38 was Honolulu’s version of the Hawaii Land Reform Act at issue in Hawaii Housing Auth. v. Midkiff,467 U.S. 229 (1984), and permitted conversion of condominium interests to fee simple, via a condemnation process. In Matsuda, apartment owners applied to the city to”convert” (condemn) theirapartment leases, and entered into written contracts with the city, inwhich the apartment owners each agreed to pay the city $1,000, inreturn for whichthe city promised that after its acquisition of the lease, it wouldconvey it to the apartment owner.  The owners subsequently received thecity’s approvals, but final approval by the City Council was withheldbecause the council was already considering repealing chapter 38, whichit did in 2005. 

Theordinance repealing chapter 38 eventually contained a provisionallowing any conversion proceeding which has been approved by the CityCouncil to be completed, but because Matsuda’s had not received finalcouncilapproval, the taking was denied.  Matsuda and others filed suit againstthe city in federal court,alleging that the repeal of chapter 38 was a violation of the U.S.Constitution’s Contracts Clause.  The district court dismissed the case since in the court’s view, the plaintiffs had no legally enforceable contract with the City. 

The Ninth Circuit held that thedistrict court should have viewed the repeal of Chapter 38 with”heightened scrutiny” because therepeal of Chapter 38 was the city voiding its own contracts, and remanded the case for further proceedings. Acomplete summary of the Ninth Circuit’s opinion is posted here.

Download the complete Petition for Writ of Certiorari.  The Brief in Opposition is posted here.
Continue Reading PING: use of ultrasonographyURL: http://www.kiwibox.com/ultrasoundtech/portrait/IP: 64.191.76.118BLOG NAME: use of ultrasonographyDATE: 02/04/2013 10:46:06 AMinversecondemnation.com: Can a City Bind Itself to Exercise Eminent Domain? Cert Petition in Ninth Circuit Case on Reserved Powers, Public Use, and Contracts Clause (Matsuda)