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The oral argument calendar of the Hawaii Supreme Court  looks pretty interesting:

  • Thursday, February 7, 2013, 11:00 a.m. – Sierra Club v. Land Use Comm’n, No SCWC-11-0000625, a case about the qualifications of holdover Land Use Commissioners, which we previewed here. 
  • Thursday, February 21, 2013, 10:00 a.m. – Kanahele v. Maui County Council, No. SCWC-29649, a case involving the “Sunshine Law” and the council’s consideration of a development project on Maui. More here from Record on Appeal.
  • Thursday, February 21, 2013, 11:00 a.m. – County of Hawaii v. UNIDEV, LLC, No. SCWC-10-0000188, a case about contracts between a private developer and the County to build affordable housing. It’s more about arbitration and appellate jurisdiction, but an interesting case nonetheless. More here from Record on Appeal.
  • Thursday, March 14, 2013, 9:30 a.m. – State of Hawaii v. Woodhall, No. SCWC-11-0000097, in which the court

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Continue Reading Upcoming Hawaii Appellate Arguments Of Interest

The speed of the internet: we were all set to summarize our thoughts on the South Carolina Supreme Court’s opinion in Dunes West Golf Club, LLC v. Town of Mount Pleasant, No. 2011-194211 (Jan. 9, 2013), a case involving equal protection, substantive due process, and takings claims, when Dean Patty Salkin at the Law of the Land blog beat us to it. See “SC Supreme Court Finds No Takings After Council Denies Rezoning for Golf Club Property” for the details.

This one thing caught our eye in the opinion. The court held that the “substantially advance a legitimate state interest” test, which the U.S. Supreme Court in Lingle v. Chevron USA Inc., 544 U.S. 528 (2005) held was a test of substantive due process and not one of takings law, was the same thing as the “rational/conceivable basis” test. In other words, the term “substantially advance” is…

Continue Reading S. Carolina: “Substantially Advance” Means “Not Arbitrary And Capricious”

Here’s the inevitable reaction to U. Hawaii law Professor David Callies’ recently-published law review article (and follow-up interview) about the stunning success rates certain parties enjoy in the Hawaii Supreme Court. In that article, the good professor labeled the record of the 1993-2010 Hawaii Supreme Court on property issues “appalling,” so it should come as no surprise that two of the beneficiaries of those rulings have now rallied to that court’s defense.

In “Hawaii Court Upholds Public Responsibility In Environmental Cases,” an opinion piece in Honolulu Civil Beat, an Earthjustice lawyer and the Director of the Hawaii Sierra Club jointly write:

Callies complains that the Supreme Court “created out of whole cloth” the requirement that the Turtle Bay Resort supplement its 25-year old Environmental Impact Statement. He was on the losing end of that argument before the Court, and he’s still wrong now. Supplemental EISs are…

Continue Reading The Empire Strikes Back: Reaction To UH Lawprof’s Study Of Success Rates In Hawaii Supreme Court Cases

The Hawaii Intermediate Court of Appeals, in a unanimous panel opinion authored by Judge Foley, held that a “zoning verification” by the Director of the City and County’s Department of Planning and Permitting is not a “decision of the Director” which a property owner must administratively appeal to the Honolulu Zoning Board of Appeals. Hoku Lele, LLC v. City and County of Honolulu, No. CAAP-11-0001064 (Jan. 25, 2013). The circuit court had dismissed the complaint for lack of jurisdiction because the property owner did not seek administrative review.

We represent the property owner/plaintiff/appellant in the case, so we’re not going to analyze the issue in detail, and leave it up to you to read the opinion. Needless to say, we think it is a correct and well-reasoned decision.

Hoku Lele, LLC v. City and County of Honolulu, No. CAAP-11-0001064 (Jan. 25, 2013)


Continue Reading HAWICA Clarifies What Actions By Planning Dept Trigger Administrative Zoning Appeals

Does the editorial board of the New York Times really have the stones to start off its latest editorial about the Takings Clause, “Where Is the Taking?“, with this:

When a city condemns private property to make way for a public highway, that is a classic “taking” for which government must provide “just compensation” under the Constitution’s Fifth Amendment.

Seriously, Times? How about when it’s not a “classic” taking, and the city condemns an entire block of urban private property to make way for the 52-story office headquarters of a large corporation … say, for example, a newspaper with the initials “NYT?” Would it be a “classic” exercise of power to use emient domain to take property so that:

A high rise office tower would be built at Site 8 South providing the Times with a new headquarters, as well as providing 700,000 square feet of space…

Continue Reading We Can Try To Understand The New York Times’ Effect On Man (When It Opines On Eminent Domain Law)

We’re tied up all day in the 10th Hawaii Land Use Law Conference, but two other bloggers have stepped up to fill the gap, offering cogent analysis and some contrarian thoughts about the recent oral arguments in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012).

Most of the existing commentary, ours included, thought that the decision may turn on whether Justice Scalia, the author of Nollan, thought it fatal to a takings theory that the property owner declined to accept the permit. However, Florida land use lawyer Jacob Cremer has a slightly different view, and does not share the pessimism. He attended the oral arguments and provides an eyewitness account and his analysis here. His conclusion? Don’t be so quick to write off the case just yet. Same for “Koontz oral argument: Should Nollan and Dolan apply …

Continue Reading More On Koontz Oral Arguments: Is Nollan A Theory Dependent Upon Accepting An Unconsitutional Condition, Then Challenging It As A Taking?

In addition to our summary of and reaction to yesterday’s oral arguments in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012), here is the leading commentary from other sources:

  • Lyle Denniston at SCOTUSblog: “The very idea that an unconstitutional “taking” had occurred to an owner of a small plot of ground in Florida seemed near to vanishing, propelled toward oblivion by a spreading fear on the bench that maybe the entire regulatory apparatus of government might be at risk. Credit lawyers for a state agency and the federal government for deepening this anxiety.”
  • Greenwire‘s Lawrence Hurley: Supreme court: Justices weigh Fla. property rights dispute: “Rather than focus on the two Supreme Court precedents on permitting conditions, some justices seemed to agree with the Obama administration that, if Koontz did have a claim, it would be in the form of

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Continue Reading The Good, The Bad, And The Scalia: Koontz Oral Argument Round-Up

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When you are a property owner making a takings argument and Justice Scalia gives you a hard time at oral argument, you would be safe in thinking that you’ve got an uphill battle.

That was the situation today during the oral argument (transcript here) in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012), the case in which the Court is considering whether the “essential nexus” and “rough proportionality” standards of Nollan and Dolan are applicable only to exactions for land, or whether they are generally-applicable tests for all exactions.

Justice Scalia, author of the Nollan opinion, did not seem all that concerned with the second Question Presented (whether only exactions of real property are subject to Nollan/Dolan), but more on whether a takings claim can be based on an excessive exaction attached to a permit when the property…

Continue Reading SCOTUS Arguments In Monetary Exactions Case: (Sliced) Bread And Circuses

For those of us who were far, far away, and thus not able to be in D.C. for today’s oral arguments in person, here is the transcript in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012).

Here’s the first recap of the arguments, from Greenwire‘s Lawrence Hurley, “Supreme court: Justices weigh Fla. property rights dispute.”

More, after a chance to digest the transcript.

Transcript of oral arguments, Koontz v. St John’s River Water Mgmt Dist., No. 11-1447 (Jan. 15, 2013) 


Continue Reading SCOTUS Transcript In Koontz

Here‘s the Legal Information Institute’s preview of tomorrow’s U.S. Supreme Court arguments in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012). That’s the case in which the Court will be addressing whether the “essential nexus” and “rough proportionality” standards of Nollan and Dolan are applicable only to exactions for land, or whether they are generally-applicable tests for all exactions.

Disclosure: we filed an amicus brief in the case in support of the property owner/petitioner. The property owner’s brief on the merits is available here. The other amicus briefs supporting the property owner are available here, here, and here. The Water Management District’s merits brief is posted here. The amicus briefs suporting the Water District are posted here. The property owner’s reply brief is here.

The LII’s preview has a good “he said she said”…

Continue Reading LII Preview: Koontz “has the potential to drastically modify takings jurisprudence with regard to exactions”