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Here are the cert briefs in Kellberg v. Yuen, No. SCWC-12-0000266 (Haw. Jan. 22, 2014), the case in which the Hawaii Supreme Court held that there is only one “final decision” that a challenger must administratively appeal when objecting, and that due process requires the agency to give a challenger notice of the administrative process. 

We represent the prevailing Petitioner in the case, and promised to post the cert briefs, which, along with the briefs filed in the Intermediate Court of Appeals, are all of the appellate briefs filed in the case (the court did not request additional briefing after accepting cert). So here they are:

We’re still at the ALI-CLE Eminent Domain conference, so have not had a chance to write up our thoughts on the opinion, so until we do, here’s…

Continue Reading Cert Briefs In Admin Due Process Case

The Hawaii Supreme Court has issued an opinion that is very good for property owners and anyone who must use the administrative appeals process. [Disclosure: we represent the prevailing Petitioner in this case.]

In Kellberg v. Yuen, No. SCWC-12-0000266 (Jan. 22, 2014), the unanimous court, in a detailed opinion by Justice Pollack, held that a person who challenged the County of Hawaii’s admittedly illegal subdivision of a neighboring parcel need only appeal to the Board of Appeals from the “final” subdivision approval, and not a decision made months later. The court also held that if an agency believes that its decision must be appealed via its administrative process, it has an obligation to say so in a clear way:

If the goal of the exhaustion doctrine is to redirect grievances to their proper forum, then such a goal is not served by fostering uncertainty over the Director’s decisions and…

Continue Reading HAWSCT: Triggers To Administrative Appeals Must Be Clear And Noticed

Next week, we’ll be in New Orleans for the 2014 edition of the ALI-CLE Eminent Domain program, now in its 31st year. 

As usual, my Owners’ Counsel colleagues Leslie Fields and Joe Waldo (the programming co-chairs) have put together a fantastic 2.5 day of programming, taught by expert faculty.  At 11:00 a.m. on the first day of the program, I will be joining Professor James Ely to speak about “The Full and Perfect Equivalent for Just Compensation: The Historical Context and Practice.” 

Should be fun. If you are not joining us in-person, ALI-CLE is producing it as a live webcast, and will make the coursebook and video and audio available for later listening or viewing. 

More details here, or download the brochure here, or below. 

31st Annual Eminent Domain and Land Valuation Litigation, ALI-CLE Program (CV023) (Jan. 23-25, 2014) New Or…

Continue Reading 31st Annual ALI-CLE Eminent Domain And Land Valuation Litigation (New Orleans)

In Powell v. County of Humboldt, No. A137238 (Jan. 16, 2014), the California Court of Appeal held the County’s demand that landowners who sought an after-the-fact building permit for a carport and porch for their mobile home dedicate an overflight easement for the nearby Eureka airport did not run afoul of Nollan–Dolan–Koontz. 

The court concluded that the overflight easement did not consitute a per se physical taking of the Powell’s property, and thus they did not meet that part of the NDK standard which prohibits the conditioning of a permit on the surrender of the right to compensation for a taking. Here, the court held, the Powells did not show that the easement was a taking. See slip op. at 15. Although property owners generally have airspace rights, there is no right to exclude aircraft from the “navigable airspace above their property in accordance…

Continue Reading Cal App: County Can Condition Building Permit On Landowner Allowing Aircraft Overflight Easement

Here are the written materials from today’s HSBA Appellate Section presentation on administrative law and appeals in Hawaii courts. 

A video of the presentation is posted above — it may be a bit dark, but no matter: all you really need is the sound, anyway. Listen to the audio-only session here:

GWK-RHT-HSBA-appellate-admin-appeals-1-13-2014

Administrative Appeals in Hawaii Courts: How Do You Get There, and How Do You Get Out? (Hawaii State Bar As…

Continue Reading Materials From State Bar Association Appellate Section Presentation: Admin Law Appeals

Last month, we posted a decision about nonconforming uses, White v. City of Elk River, No. A12-0681 (Minn. Dec. 4, 2013), and want to follow up by posting a good summary of the issues, as well as the amicus brief that was filed in the case in support of the property owner.

Start here (“Can Government Revoke Your Right to Continue an Existing Business?“) by Luke Wake (also one of the counsel who filed this amici curiae brief). Luke’s piece discusses the Minnesota Supreme Court’s holding that the city could not revoke a campground’s nonconforming use as penalty for alleged violations of the conditions of the conditional use permit. The court also held that a nonconforming use is an independent property right, not a mere privilege as a product of a CUP ordinance. Luke writes:

The case raised a question of fundamental importance in Minnesota—one that might…

Continue Reading Do You Have A Right To Continue A Business?

Next Monday, January 13, 2014, from noon to 1:00 p.m., I’ll be speaking — along with my Damon Key partner Greg Kugle — to the Hawaii State Bar’s Appellate Law Section about administrative appeals, in a session entitled “Administrative Appeals: How Do You Get There And How Do You Get Out Of There?” 

Because of the areas in which we practice, we’re going to be focusing on the issues in the context of land use cases, but the principles are generally applicable to any matter in which there is the possibility of agency appeal or contested case, followed by judicial review under the Administrative Procedures Act. Because most of the recent interesting decisions have come out of the Hawaii Supreme Court, we’ll be limiting our presentations to state law. 

Details: 

Date: Monday, January 13, 2014

Time: noon – 1:00 p.m.

Location: Damon Key offices, 1003 Bishop Street…

Continue Reading Upcoming HSBA Program: Administrative Appeals – How Do You Get There And How Do You Get Out Of There?

14.AGRHI

Here are links to some of the materials mentioned at our session today on the GMO issue at the Hawaii Agriculture Law Conference:

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My co-planning Chair, Dave Bateman (a lawyer and a coffee farmer), Continue Reading Links From Today’s Session On GMO Issues

Here’s one for you land users which details how the very broad way Hawaii Supreme Court treats claims of jurisidictional ripeness.

In Blake v. County of Kauai Planning Comm’n, No. SCWC-11-0000342 (Dec. 19, 2013), the court held that a third-party challenge to the Kauai Planning Commission’s subidivision approval was ripe for adjudication, and that the trial court should have exercised subject-matter jurisdiction. This case was not an administrative appeal under the Administrative Procedures Act, but nonetheless turned on the issue of whether a state agency had taken “final agency action” under the judicially-adopted doctrine of ripeness. The court concluded that the fact that a state agency’s approval which was necessary before a subdivision could go foward was not an impediment to a challenge to a county’s subdivision approval. 

The details of the case are set out at length in Chief Justice Recktenwald’s opinion, but here are the salient facts.

Continue Reading HAWSCT: State Agency Approval Not A Ripeness Bar To Challenge To County Approvals

Cover_42_3_ The Urban Lawyer, the law review produced by the ABA Section of State & Local Goverment Law has published my article Recent Developments in Regulatory Takings, 45 Urban Lawyer 769 (2013).

Here’s the Introduction to the article:

THE SUPREME COURT’S 2012 TERM promised to be a banner year in regulatory takings law, with no less than three cases on the Court’s docket. In Arkansas Game and Fish Commission v. United States, a case involving a takings claim against the federal government for compensation resulting from a flood, the Court held that flooding need not be “permanent” in order to result in liability, and reinforced the principle that categorical takings are not favored, and stated that the default analysis is the multi-factored Penn Central test. In Koontz v. St. Johns River Water Management District, the Court held that monetary development exactions fall within the reach of the…

Continue Reading New Article: Recent Developments in Regulatory Takings