Zoning & Planning

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Here’s the latest in a case that we’ve been following, which was in both state and federal court, Bridge Aina Lea v. Land Use Comm’n. 

The litigation is a series of 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). 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 flash back to our Federal Courts class in law school, since it raised a host of procedural questions such as the effect of removal, whether certain defendants are “persons” under 42 U.S.C. § 1983, whether the federal court must abstain from addressing the federal takings claim, whether there is a state damage remedy for…

Continue Reading Hawaii Federal Court Gets Rid Of Most Claims Against Land Use Commission, But Allows Takings And Vested Rights Claims To Go Forward

Oral Arguments part I

Oral Arguments part II

Three points before we get to our more involved thoughts on last week’s oral arguments in what is known as the “Thirty Meter Telescope” case, Mauna Kea Anaina Hou v. Bd. of Land and Natural Resources, No. SCAP-14-0000873: 

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Continue Reading Not Quite “Where No Man Has Gone Before” – Hawaii Supreme Court Considers Mauna Kea’s 30 Meter Telescope

We have learned that the North Carolina Supreme Court has granted the State’s request to review Kirby v. North Carolina Dep’t of Transportation, No. COA14-184 (Feb. 17, 2015).

That’s the case in which the Court of Appeals not only held that the property owners’ claims were ripe, but that the Map Act — which gives the DOT the ability to designate property for future highway use and prevent its development in the meantime — effected a taking. The appeals court reversed the trial court’s dismissal and sent the case back down for a calculation of the compensation owed to each property owner.

This is one to watch, for sure. We’ll keep on doing so and let you know as things develop. 

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Continue Reading NC Supreme Court To Review “Map Act” Takings Case

There are many ways to keep nuisance birds off of your building or away from your crops.

There’s this one, a plastic owl perched on the 4th floor of the Maui courthouse.

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There are other devices: scarecrows, balloons, and even dead birds. But our favorite is the scare gun, a “propane powered gas gun which produces a periodic loud explosion.” Sounds like fun.

But not to the powers-that-be in the Town of Trempealeau, Wisconsin. In 2013, the Town adopted an ordinance, amended the following year, which requires anyone who wants to use a scare gun to get a permit. These permits restrict the time, place, and manner in which the owner can employ said gun. 

Farmer Klein had used a scare gun on his property since 1962 to keep blackbirds from devouring his crops. He obtained a permit, but apparently didn’t follow the ordinance closely enough because he…

Continue Reading Wisconsin App: Town’s “Scare Gun” Permit Requirement Not A Taking

A piece on the humor site Cracked, “4 Thriving Communities That Rich People Destroyed On Purpose,” tells an old story: modest-but-decent places “redeveloped” into (1) Dodger Stadium, (2) Brazil’s Olympic venues; (3) the Salton Sea, and (4) Central Park, respectively.

(We note that the segment on the Salton Sea is the odd man out, and we can’t figure out how that one fits with the other three. But no matter.)

In telling the story of the destruction of Los Angeles’ Chavez Ravine to make way for the ballpark, the piece links to the above video, which contains interviews with many of the Ravine’s former residents. The video also recounts how, using eminent domain, the City of Los Angeles condemned the homes in the village, supposedly to make way for a new, modern housing project.

The homeowners were offered about $10,000 for their homes and promised…

Continue Reading Breaking Up Communities For Redevelopment

Photo

Enviro Wars Episode IV: A New Court

You may have heard that the Hawaii Legislature, after an intensive years-long effort by environmental groups, recently created a new court with specialized jurisdiction that could have a big impact on how property and business owners are treated by Hawaii’s courts. 

Known as the “Environmental Court,” this new court has been given the exclusive jurisdiction to hear most civil and criminal cases affecting the environment. Because Hawaii’s court is only just getting off the ground and is in uncharted territory (only one other state—Vermont—has a court with a similar statewide mandate), those who stand to lose the most in this new court—property and business owners—have many unanswered questions.

Here’s what you need to know.

Why A New Court?

According to its proponents, the new Environmental Court is not expressly intended to change outcomes in environmental cases, and is merely designed…

Continue Reading What You Need To Know About Hawaii’s New Environmental Court

Takings nerd alert: we posted about this case late last year, when the Wisconsin Court of Appeals held that two separate parcels owned by the same family must be treated as a single unit for purposes of determining whether there’s been a taking. Eventually, the Wisconsin Supreme Court denied review.

So here’s the next step, the cert petititon in Murr v. Wisconsin, No. ___ (filed Aug. 14, 2015), which asks the U.S. Supreme Court to review a single Question Presented:

In a regulatory taking case, does the “parcel as a whole” concept as described in Penn Central Transportation Company v. City of New York, 438 U.S. 104, 130-31 (1978), establish a rule that two legally distinct, but commonly owned contiguous parcels, must be combined for takings analysis purposes?

Read this post for more background. Disclosure: the petitioners are represented by Pacific Legal Foundation, and we manage PLF’s Hawaii…

Continue Reading New Cert Petition: Does The Takings “Denominator” Rule Require Two Parcels To Be Treated As One?

Here’s a short (approx. 10 minute) summary of the recent decision by the California Supreme Court in California Building Industry Ass’n v. City of San Jose, No. S212072 (June 15, 2015).

In that case, the court upheld the city’s “inclusionary housing” requirement against a Nollan–Dolan–Koontz challenge. The court concluded the ordinance did not impose an “exaction” because it did not demand the owner surrender land — or money in lieu of land — and thus was only subject to rational basis scrutiny and not the N-D-K nexus and rough proportionality requirements. 

The podcast is an excerpt of last week’s IMLA webinar on this case and others. 

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Continue Reading Podcast: Cal. Building Industry Ass’n v. City of San Jose – Is An “Inclusionary” Housing Requirement An Exaction, Or Mere Zoning?

To those able to join us today for IMLA’s “The Takings Issue” webinar, thank you. Here are the links to the items which I discussed:

On Koontz:

On California Building Industry Ass’n v. City of San Jose:

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Continue Reading Links From Today’s “The Takings Issue” Webinar

We’ve been remiss in updating for the past few days, caught up in the whirlwind that is the ABA Annual Meeting. But that’s now over and we can finally return to our usual blogging routine. 

First up, News of the World:

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Continue Reading Takings International – Canada, Philippines … And More