Zoning & Planning

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The final words in most appellate oral arguments by the jurists are usually something along the lines of “we’ll let you know.” In Hawaii state courts, the Chief Justice signals you’re done with “we’ll take the case under advisement,” while in many federal courts, the presiding judge informs you “the case is submitted.” Or words to that effect. 

It was no different in the Ninth Circuit oral arguments in Bridge Aina Lea, LLC v. Chock, Nos. 12-15971, 12-16076, case argued earlier this week before the Ninth Circuit at its session in Honolulu. The case was “submitted for decision.” Listen yourself at the end of the oral argument recording.

Today, however, the panel issued this order withdrawing the submission, in anticipation of the upcoming Hawaii Supreme Court oral arguments in the related state litigation, scheduled for June 25, 2014. The NInth Circuit judges were keenly interested in the Hawaii…

Continue Reading 9th Cir Says “Let’s Wait” On Hawaii Supreme Court To Rule In Bridge Aina Lea

Here is the oral argument recording in Bridge Aina Lea, LLC v. Chock, Nos. 12-15971, 12-16076, case argued yesterday in the Ninth Circuit at its session in Honolulu. As we previewed, the issues involved Pullman abstention and immunity. As for Williamson County ripeness, an issue the court asked the parties to brief separately, one of the judges (it sounds to us like Judge William Fletcher) said he was “haunted by Williamson County” (click forward to the 12:25 mark). Aren’t we all, Your Honor, aren’t we all. 

Ninth Circuit Oral Argument No.12-15971

Next up, the oral arguments in the Hawaii Supreme Court in the state court case, scheduled for June 25, 2014, which may have an impact on the federal appeal (one judge asked counsel, “What if we wait until the Hawaii Supreme Court does whatever it’s about to do, will that illuminate these issues for us?”). More…

Continue Reading 9th Circuit Orals In Bridge Aina Lea: Pullman Abstention, Qualified Immunity, And “Haunted By Williamson County”

It’s been our experience that when a court of appeals — particularly when it’s the Ninth Circuit, and it’s the eve of oral argument — raises an issue on its own after the briefs have been filed and requests supplemental briefing, then whatever that issue is must really be on the judges’ minds. They’re the cream of the crop (right?) and along with their cohort of law clerks (the next generation cream), they know the law (right?). And, as one Ninth Circuit judge candidly revealed at one of those bench/bar tip sessions last year, law clerks like nothing better than to catch the advocates in a misstatement or to find a missed argument, so they can present the issue to their judge like a cat bringing home a dead bird to its master (we’re paraphrasing that last bit, of course, but the judge did say that clerks groove on finding things…

Continue Reading Ninth Circuit Sua Sponte Raises Williamson County Ripeness, Asks For Briefing, Gets Some

Worth reading: Gideon Kanner, Detroit and the Decline of Urban America, 2013 Mich. St. L. Rev. 1547 (2014), in the forthcoming issue of that august publication. Its not yet available on the law review’s web site, but Professor Kanner has written up a summary on his blog (he might even send you a copy of the complete article if you ask him):

It deals with the causes of decline of older American cities; what caused their populations to leave en masse and move to the suburbs, leaving behind empty swaths of urban desolation (If you want to see how desolate, go to Google, type in “ruins of Detroit” and hit “enter.’ Here are some samples).

His summary includes the key points of the article, and identifies six factors as contributing to urban flight and depopulation, including abuse of the eminent domain power. 

The article is a fascinating and…

Continue Reading New Article Of Note: The Role Of Eminent Domain Abuse In Detroit’s Downfall

Before we get to today’s post (kindly provided by our colleague and friend Paul Schwind), and the Ninth Circuit briefs, here’s some background on the cases he writes about. 

On June 10, 2014, the Ninth Circuit will ride circuit to Honolulu and hear oral arguments in a case which we’ve posted about before. 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 essence of the plaintiff’s allegations is that the State Land Use Commission wrongfully amended the land use boundaries from urban to agriculture. Under Hawaii’s statewide land use planning scheme, the LUC, a state agency, has jurisdiction over these “boundary amendments,” which look and act a whole lot like a change in municipal zoning for those of…

Continue Reading Guest Post: Upcoming Ninth Circuit Oral Argument In Bridge Aina Lea: Pullman Abstention, Williamson County Ripeness, And Absolute Immunity

A few months ago, we commented on the proposed “environmental court,” a bill working its way through the Hawaii legislature. We called it a bad idea, and hoped the Lawgivers would see the light and let this idea fade away.

It looks like we were unjustifiably optimistic, and both houses have now passed the bill (view its current form here (SD632)). See also “Bill would create environmental court” from West Hawaii Today, which correctly notes that the only thing standing between the bill and the rest of us is Governor Abercrombie’s veto pen.  

Rather than redo our earlier comments, we simply repost them below since our thoughts remain unchanged. All we have to add at this point is the above video, a longer piece, but worth your time if interested. Its title is “Price of Paradise,” and it explores why Hawaii housing prices —…

Continue Reading Hawaii’s “Environmental Court” – A Bad Idea Whose Time (Apparently) Is Nigh

Update: PLF’s Dave Breemer on the decision “In a New Victory, Court Blasts Rules Barring Court Access for Property Owners,” while Gideon Kanner adds his thoughts in “Be Still, My Heart! Second Circuit Rules for a Property Owner In a Stinging Inverse Condemnation Opinion.” 

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Check this out, just received: In Sherman v. Town of Chester, No. 13-1503-cv (May 16, 2014), the U.S. Court of Appeals for the Second Circuit held that a takings claim was ripe, and that Williamson County does not stand in the way. 

We love the way this opinion starts off, with a literary reference:

Hungry Joe packed up his bags and wrote happy letters home. He had flown the 25 missions required to complete a tour of duty. But thing were not so simple on Catch-22’s Pianosa island. He soon discovered that Colonel Cathcart had just raised the number of…

Continue Reading 2d Cir and Catch-22: Takings Case Ripe, “Seeking a final decision from the Town would be futile”

We offer this one to you without comment, since we haven’t had a chance to read anything more than the abstract. Sounds intriguing, no? 

This Article proposes a paradigm shift in takings law, namely “inclusionary eminent domain.” This new normative concept provides a framework that molds eminent domain takings and economic redevelopment into an inclusionary land assembly model equipped with multiple tools to help guide municipalities, private developers and communities construct or preserve affordable housing developments. The tools to achieve this include Community Benefit Agreements (“CBAs”), Land Assembly Districts (“LADs”), Community Development Corporations (“CDCs”), Land Banks (“LABs”), Community Land Trusts (“CLTs”) and Neighborhood Improvement Districts (“NIDs”). The origin of the concept derives from the zoning law context, where exclusionary zoning in the suburbs excluded affordable housing for the poor. Courts intervened, applying exclusionary zoning doctrines, which led to the enactment of inclusionary zoning programs to achieve a fair share …

Continue Reading New Article: “Inclusionary Eminent Domain,” A “Paradigm Shift In Takings Law”

Update: there’s been an en banc petition filed.

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An interesting discussion is going on about so-called “judicial fact finding” in the legal blogs, triggered by the acknowledgement by Seventh Circuit Judge Posner that he did an “experiment with a novel approach” in a recent case:

The issue in the case was whether the time poultry workers spent changing into and out of their sanitary gear for their lunch breaks must be compensated. The old “donning and doffing” issue from labor law. [Takings sidebar: federal judges constantly tell us that they want no part of land use and takings cases — despite their plain textual basis in the Fifth…

Continue Reading On “Judicial Factfinding”

Here’s an interesting case upcoming on the Hawaii Supreme Court’s oral argument calendar that is worth following. (April 29, 2014, at 10:00 a.m. – the court is taking the show on the road, and the arguments will be at the gym at Kealakehe High School, in Kailua-Kona, on the Big Island.)

In Molfino v. Yuen, No. SCWC-10-150 (cert. app. filed Dec. 9, 2013), the petitioner asks whether a county government has any obligation to maintain accurate and complete records. Your first reaction may be “well, duh.” But like many other things in the legal business, it isn’t necessarily as simple as all that. Indeed, the Intermediate Court of Appeals concluded in a Summary Disposition Order (Aug. 28, 2014) that government does not have an obligation to keep its own records accurately. The ICA relied on a 1986 Hawaii Supreme Court case which held:

Without a reasonable and proper limitation of…

Continue Reading HAWSCT Considering Whether A County Has A Duty To Maintain Accurate Public Records