Real Estate & Property Law

Materials From Hawaii Land Use Law Conference

Posted on January 15, 2009
To those who attended today's sessions, thank you. Here are the cases and other materials I mentioned in my portion: Shoreline setbacks and equitable estoppel - Brescia v. North Shore Ohana 115 Haw. 477, 168 P.3d 929 (2007) State shoreline...

California Coastal Commission's Brief In Opposition In Charles A. Pratt Construction Co. Cert Petition (Penn Central and Williamson County)

Posted on January 15, 2009
The California Coastal Commission has filed its Brief in Opposition to the cert petition in Charles A. Pratt Const. Co. v. California Coastal Comm'n, No. 08-668 (cert. petition filed Nov. 18, 2008) (SCOTUS docket report here). The California Court of...

2008 Land Use In Review: Ripeness Games In Regulatory Takings

Posted on January 14, 2009
In 2008, we continued to castigate the Williamson County ripeness rules, culminating in December when we filed an amicus brief urging the Supreme Court to take a harder look at how the "final determination" aspect of the rule is being...

Admin Note: hawaiilawyer.com Email Back Online

Posted on January 13, 2009
Thanks to everyonefor your patience while our tech people worked through our email issues. You can resume sending email to us at hawaiilawyer.com.

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Latest Gambit In SCOTUS Ceded Lands Case

Posted on January 13, 2009
Here's the latest in the "ceded lands" case, now being briefed in the U.S. Supreme Court. The Honolulu Advertiser writes that "OHA looks for some backup," and has drafted a bill, to be considered by the Hawaii Legislature in its...

Owners' Counsel Of America

Posted on January 12, 2009
I'm honored to have been designated as the Hawaii member of the Owners' Counsel of America. OCA is "a voluntary network of experienced eminent domain attorneys from every state of the nation, representing property owners facing condemnation or other infringement...

Admin Note: hawaiilawyer.com Email Servers Down

Posted on January 12, 2009
If you're trying to reach me (or any of my Damon Key colleagues) via email at the hawaiilawyer.com domain, please note that our email servers are down. The tech people are working on the problem but in case you don't...

Upcoming: Hawaii Land Use Law Conference

Posted on January 12, 2009
It's not too late to register to attend the Hawaii Land Use Law Conference, taking place January 15 and 16, 2009, in Honolulu. Items on the agenda include eminent domain, environmental law, transit-oriented development, subdivision requirements, and cultural impact statements...

New York Court Of Appeals To Hear Appeal Challenging Reason For Taking

Posted on January 12, 2009
Thanks to Professor Patty Salkin's Law of the Land blog for letting us know that on January 14, 2009, the New York Court of Appeals (that state's highest court) will be hearing oral arguments in Aspen Creek Estates, Ltd. v....

Admin Update: FAIL Mail

Posted on January 12, 2009
It looks like the hawaiilawyer.com email outage is lasting longer than anticipated. If you need to email me, use inversecondemnation@gmail.com instead for the time being.

2008 Land Use In Review: The Ninth Circuit Rediscovers Substantive Due Process

Posted on January 10, 2009
In a development that began in November 2007 (2005 actually, if the starting point is seen as the U.S. Supreme Court's decision in Lingle v. Chevron, U.S.A., Inc., 544 U.S 528 (2005)), the Ninth Circuit finally ditched Armendariz v. Penman,...

At The ALI-ABA Conference On Eminent Domain And Land Valuation

Posted on January 08, 2009
Currently at the annual conference on eminent domain law - as always, well worth attending.In the morning's session, Professor Kanner mentioned the recent decision in County of Hawaii v. C & J Coupe Family Limited Partnership, No. 28882 (Dec. 24,...

Cert Petition Asks: Does Spraying Recycled Sewage Water On A Sacred Mountain "Substantially Burden" Religious Exercise?

Posted on January 07, 2009
Thanks to SCOTUSblog for posting the cert petition, filed on January 5, 2008, in Navajo Nation v. United States Forest Service, No. 08A368. The petition seeks review of an en banc Ninth Circuit panel decision holding it was not a...

New Article: The Ninth Circuit Rediscovers Substantive Due Process In Land Use Cases

Posted on January 07, 2009
The Zoning and Planning Law Report (Thomson | West) has published my article about the post-Lingle developments in substantive due process in the Ninth Circuit. Download a pdf of the article here. From the introduction:Substantive due process asserted as a...

2008 Land Use In Review: Public Use And Pretext In Eminent Domain

Posted on January 07, 2009
One of the bigger developments, at least in Hawaii law, came in the last week of the year. We're talking about the Hawaii Supreme Court's decision in County of Hawaii v. C & J Coupe Family Limited Partnership, No. 28882...

Thank You, Star-Bulletin: Corrections And Clarifications

Posted on January 07, 2009
Following up on this post, where we pointed out several errors in a headline and subheadline in a Honolulu Star-Bulletin story on the Hawaii Supreme Court's landmark eminent domain decision in County of Hawaii v. C & J Coupe Family...

2008 Land Use In Review: Shoreline Law

Posted on January 06, 2009
2008 saw no blockbuster court decisions on shoreline law, just a continuation of existing trends. SetbacksShoreline setback are a "no build" zone on private beachfront property, measured from a "setback line." Hawaii state law establishes a minimum shoreline setback, and...

2008 Land Use In Review: Contested Cases Refined

Posted on January 05, 2009
The Hawaii Supreme Court clarified when an agency hearing will be deemed to be a "contested case" in E & J Lounge Operating Co. v. Liquor Comm'n of the City & County of Honolulu, No. 27940 (July 29, 2008). The...

2008 Land Use In Review: Environmental Law

Posted on January 04, 2009
We aren't officially an "environmental law" blog, and when we do cover the issue, it is mostly on the periphery. However, in 2008, we hit a couple of significant issues that had some relevance to land use law. First, in...

Headline On Kona Condemnation Cases - Not In The Ballpark

Posted on January 03, 2009
I usually try to not take too seriously the headlines attached to a newspaper story or op-ed. After all, an editor -- and not the reporter or op-ed author -- may have written the headline, and it may be designed...

2008 Land Use In Review: Zoning

Posted on January 02, 2009
A round up of interesting and notable zoning decisions: Zoning inspectors need a warrant - The US Court of Appeals for the Sixth Circuit, in Jacob v. Township of West Bloomfield, 531 F.3d 385 (6th Cir. July 3, 2008), held...

2008 Land Use In Review

Posted on January 01, 2009
Yet another year has come and gone -- our third at this blog, -- so it's time to start off our annual summary of the past year's highlights (or lowlights, depending on your point of view) in land use law...

Pa Court: No Public Use Because Residential Use Is Not "Blight"

Posted on December 31, 2008
You own a home built in 2002. A couple of years later, the county redevelopment authority decides that your home, and the properties your neighbors own, would together make a grand site for an industrial park. Your properties are "shovel-ready"...

HAWSCT Declines To Review ICA Decision: No Private Standing To Enforce Land Use Law

Posted on December 30, 2008
In a brief order available here, the Hawaii Supreme Court has rejected an application for writ of certiorari, declining to review the Intermediate Court of Appeals' decision in Pono v. Molokai Ranch, Ltd., 119 Haw. 163, 194 P.3d 1126 (2008)....

More Amici Supporting Grant of Cert in Pratt (Penn Central and Williamson County)

Posted on December 30, 2008
There have now been a total of five briefs amicus curiae filed supporting the petition for writ of certiorari in Charles A. Pratt Construction Co. v. California Coastal Commission, No. 08-668 (cert. petition filed Nov. 18, 2008) (SCOTUS docket report...

Cal. Court of Appeals: No Record And No Findings By Coastal Commission = No Consideration

Posted on December 30, 2008
Section 30010 of California's Public Resource Code provides that the California Coastal Commission may grant a development permit that otherwise could not be granted in order to avoid a taking:The Legislature hereby finds and declares that this division is not...

Further Amici Supporting Grant of Cert in Pratt (Penn Central and Williamson County)

Posted on December 29, 2008
Here is the brief amici curiae of the National Association of Home Builders, California Building Industry Association, Building Industry Association Legal Defense Foundation, and Home Builders Association of Northern California urging the U.S. Supreme Court to review the California Court...

Op-Ed Previewing OHA Arguments In SCOTUS Ceded Lands Case: Independent and Adequate State Grounds?

Posted on December 28, 2008
It's not often that you see an opinion piece previewing an attorney's arguments in a pending case being published before his or her brief has been filed. Most commonly, if counsel publishes in the op-ed pages about a case, it...

A Holdout

Posted on December 27, 2008
The New York Times posts a story, "House Stands as Legacy to Fight Against Developers," about one woman's refusal to sell her modest Seattle, Washington area home to a redeveloper, even when offered $1 million. If a picture is worth...

Show Me The Money (In The Court of Federal Claims), Williamson County Ripeness, And A Possible Circuit Split

Posted on December 26, 2008
When the case is captioned "Jerry McGuire v. United States," and involves an inverse condemnation claim seeking compensation from the government, how could anyone resist making a reference to Jerry Maguire, the 1996 Cameron Crowe film that added "show me...

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