Vested rights

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I promised back in this post to digest the Hawaii Supreme Court’s opinion in Colony Surf, Ltd. v. Director of the Dep’t of Planning and Permitting, No 26037 (Dec. 26, 2007).  However, because the opinion is so opaque it is difficult to understand, and the issue so narrow, I never quite got around to doing so. 

Professor Patty Salkin saves the day by posting a summary of the decision here on her Law of the Land blog.  Continue Reading Nonconforming Uses and “Grandfathering” of Land Uses

  • Today’s oral arguments in Missouri Supreme Court in the Tourkakis appeal, a case of an attempted taking for economic development, have been posted here (9mb mp3).
  • Background on the case is posted here by PLF on Eminent Domain, and the briefs are posted here.
  • Charley Foster at Planet Kauai has an interesting post on Hawaii’s automatic permit approval statute here. 

Continue Reading Eminent Domain and Land Use Round-up

I’ve had a chance to review Matsuda v. City and County of Honolulu, No. 06-15337 (Jan 14, 2008), a decision by the Ninth Circuit on the Contracts and Due Process clauses, but which also involves how local governments exercise the power of eminent domain.  The case revolves around Chapter 38 of the Honolulu Revised Ordinances, which was the local version of the “land reform act” at issue in HawaiiHous. Auth. v. Midkiff, 467 U.S. 229 (1984) before it was repealed in 2005.

Background

Finding thatthe economic ills purportedly caused by the concentrated ownership of privatesingle-family residential property in Hawaii,Haw. Rev. Stat. ch. 516 allowed homeowner/lessees to petition the HawaiiHousing Authority to exercise eminent domain on the homeowner’s behalf andcondemn the fee simple interest underneath their homes from the lessor, andtransfer it to the lessee upon payment of just compensation.

After that statute was upheld by the U.S.

Continue Reading Deal Or No Deal: Ninth Circuit Says Honolulu May Have to Live Up to Its Eminent Domain Promises

The US Court of Appeals for the Ninth Circuit has issued an opinion in Matsuda v. City and County of Honolulu, No. 06-15337 (Jan 14, 2008), a case involving the city’s repeal of Chapter 38, Honolulu’s version of the “land reform act” at issue in Midkiff, allowing the conversion of condominium leases to fee simple absolute by eminent domain.   Leaseholders who were caught mid-process when Chapter 38 was repealed, brought claims under the Due Process and Contracts clauses.  The district court dismissed the claims under the reserved powers doctrine, but the Ninth Circuit reversed, and sent the case back for further proceedings.  I haven’t had a chance to digest it in full, but will post a complete rundown shortly. 

Update: complete summary of the opinion here.Continue Reading 9th Cir. on Due Process and Contracts Clause

These seemingly unrelated court decisions were tied together with a common thread: private agreements for the most part are not substitutes for public processes, whether it is eminent domain, rezoning, or the granting of permits.   

Several courts determined that agreements in which government agreed with private parties to exercise eminent domain were invalid: 

  • One case (in which I am involved as counsel for the property owners so won’t comment in detail) involved a development agreement between the County of Hawaii and a developer to take property for a road.  The trial court struck down the attempt — here is the court’s Findings of Fact and Conclusions of Law.  More on the case here.
  • In a similar vein, a Washington state court of appeals in HTK Mgm’t, L.L.C. v. Rokan Partners, No. 58113-9-I (Wash. Ct. App., July 23, 2007) held that eminent domain “is an inherent power

…
Continue Reading 2007 in Review: Private Agreements and Public Process

The US District Court for the District of Hawaii dismissed most of the counts of the Maui Vacation Rental Association’s complaint against the County of Maui.  The court held that MVRA had the right to bring suit on behalf of its members, but dismissed — without leave to amend — the substantive and procedural due process claims, the breach of contract claim, the breach of implied covenant of good faith and fair dealing claim, the equitable estoppel claim, and the illegal customs and policies claim.  The court also dismissed the equal protection claim, but allowed MVRA to amend its complaint. 

Here’s the court’s written order.  (The court’s summary order also mentioned a “First Amendment” claim, but no such claim is mentioned in the written order.)

County Fails to Process 90% of Applications

Vacation rentals outside of the “Hotel” zones are generally prohibited.  Those vacation rentals that were not operating…

Continue Reading Federal Court Dismisses Maui Vacation Rental Due Process Claims — Details