Real Estate & Property Law

HAWSCT: Order Denying Expungment of Lis Pendens is Appealable Collateral Order

Posted on September 19, 2008
Title says it all. Canales v. Artiga, No. 28908 (Sep. 19, 2008) (per curiam).

Cal. Court of Appeals: Public Trust Extends to Wildlife, Plaintiffs Must Sue Enforcement Agency for Breach

Posted on September 18, 2008
The California Court of Appeals, First District (San Francisco and other Northern California counties) in Center for Biological Diversity, Inc. v. FPL Group, Inc., No. A116362 (Sep. 18, 2008) held thatThe plaintiffs brought suit against the owners and operators of...

The Fifth Amendment and the Eighth Commandment

Posted on September 18, 2008
Professor Kent Schooland has posted "Eminent Domain and the Eighth Commandment," a piece with his thoughts about the morality of condemning property and the system of "just compensation."Given the realities of eminent domain, perhaps we should prepare our children with...

Further (Final?) Amicus Briefs in Navy Sonar Case

Posted on September 17, 2008
Three more amicus briefs have been filed in Winter v. Natural Resources Defense Council, Inc., No. 07-1239, the case about the Navy's use of mid-frequency active (MFA) sonar in training exercises off the California coast: Brief of two UCLA law...

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Land Use Law Round-up

Posted on September 16, 2008
Some interesting items from around the land use law blogosphere: A write up of an Eleventh Circuit (which covers Alabama, Florida, and Georgia) decision striking down as unconstitutional a municipal ordinance that prohibited national chain retail stores because it violates...

Ecological Society Amicus Brief in Navy Sonar Case

Posted on September 15, 2008
The Ecological Society of America has filed a brief amicus curiae urging the Supreme Court to uphold the Ninth Circuit's injunction in Winter v. Natural Resources Defense Council, Inc., No. 07-1239, the case about the Navy's use of mid-frequency active...

Transcript of Arguments in Maui Affordable Housing Exaction Case

Posted on September 14, 2008
The transcript of the June 2, 2008 arguments in the federal lawsuit challenging Maui's affordable ("workforce") housing exaction have been released. That hearing resulted in a lengthy opinion by the District Court holding that the plaintiff's Nollan/Dolan claims were not...

Insurance Law Hawaii Named a "Top 50 Blog for Insurance"

Posted on September 14, 2008
Insurance Law Hawaii, the law blog authored by my Damon Key colleagues Robert Harris and Tred Eyerly which covers insurance coverage issues, has been selected as one of LexisNexis' Top 50 Blogs for Insurance. "These blogsites contain some of the...

Court Strikes Facial Due Process and Equal Protection Claims in Maui Affordable Housing Exaction Case

Posted on September 13, 2008
The US District Court for the District of Hawaii has granted (in part) the County of Maui's motion for reconsideration of the court's earlier order granting in part and denying in part the County's summary judgment motion. Here's a copy...

Upcoming UH Law School Workshop on Preservation Laws

Posted on September 13, 2008
Mark your calendars for Saturday, September 27, 2008. Ka Huli Ao Center for Excellence in Native Hawaiian Law at the University of Hawaii School of Law will be presenting a workshop "Hawaii State Historic Preservation Laws: Reclaiming the Past, Shaping...

Ninth Circuit: Court Has No Jurisdiction to Review Corps' Clean Water Act Jurisdictional Determination

Posted on September 12, 2008
In a determination by the Corps of Engineers that property contains "waters of the United States" and is therefore subject to regulation under the Clean Water Act a "final agency action" subject to judicial review under the Administrative Procedures Act?...

Ninth Circuit: Local Zoning Ordinance Does Not Conflict With Federal Statute

Posted on September 11, 2008
District Court: San Diego county's zoning ordinance -- which "imposes restrictions and permit requirements on the construction and location of wireless telecommunications facilities" -- conflicts with federal law, and is preempted. The county is permanently enjoined from enforcing the zoning...

NRDC Brief in Navy Sonar Case

Posted on September 09, 2008
The Natural Resources Defense Council has filed its brief in the US Supreme Court case about the Navy's use of mid-frequency active (MFA) sonar in training exercises off the California coast, Winter v. Natural Resources Defense Council, Inc., No. 07-1239:The...

California Coastal Commission Brief in Navy Sonar Case

Posted on September 08, 2008
The California Coastal Commission today filed its brief in the U.S. Supreme Court case about the Navy's use of mid-frequency active (MFA) sonar in training exercises off the California coast, Winter v. Natural Resources Defense Council, Inc., No. 07-1239...

Kanner on Midkiff

Posted on September 07, 2008
For an interesting take on Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229 (1984) (the pre-Kelo case that equated the Public Use Clause with the police power) check out Professor Gideon Kanner's summary of the case in his recent post...

9th Circuit: No First Amendment, NEPA Violation in Kauai Superferry Protest

Posted on September 05, 2008
In a brief opinion (the case was decided without oral argument), the Ninth Circuit affirmed the Hawaii district court's dismissal of claims that the security zone established by the U.S. Coast Guard violated the protester's First Amendment rights. Even if...

Oral Argument Scheduled in Ninth Circuit Maui Vacation Rental Appeal

Posted on September 04, 2008
The Ninth Circuit has scheduled oral arguments in Maui Vacation Rental Association, Inc. v. County of Maui, No. 08-15251, the Ninth Circuit appeal from the Hawaii district court's dismissal of MVRA's complaint which sought to declare Maui's shut down of...

My So-Called Exaction Case: More on Action Apartment

Posted on September 04, 2008
When a court labels the Nollan/Dolan line of decisions "so-called exaction cases" (and your claim is that an exaction is not related or proportional) you know right away you are in trouble.First, the dry summary. In Action Apartment Ass'n v....

Eminent Domain and the Holy Rail: "Dear Homeowner" Letters in the Mail?

Posted on August 29, 2008
In a story titled "Honolulu notifying landowners in way of planned rail route," the Honolulu Advertiser reports "The city has started notifying residents living in the path of the planned $3.7 billion elevated commuter rail that all or part of...

California Court Rejects Facial Nollan/Dolan Claim to Affordable Housing Exaction

Posted on August 29, 2008
In Action Apartment Ass'n v. City of Santa Monica, No. B201176 (Aug. 28, 2008), the California Court of Appeal (Second District) denied a facial challenge to the city of Santa Monica's affordable housing exaction ordinance. The court relied upon the....

Ninth Circuit: City's (Alleged) Failure to Enforce the Zoning Code Is Not A Substantive Due Process Violation (Oh, And Armendariz is Still Overruled)

Posted on August 28, 2008
In Shanks v. Byrd, No. 06-35665 (Aug. 27, 2008), the Ninth Circuit held that a municipality's alleged failure to enforce its zoning laws was not a violation of the Fourteenth Amendment.Developers who convert homes into student residents apparently did not...

Ninth Circuit: Unions Have Right Under California Constitution to Picket and Handbill in Shopping Centers

Posted on August 26, 2008
In a 2-1 decision applying California law, the U.S. Court of Appeals for the Ninth Circuit held in United Brotherhood of Carpenters and Joiners of America Local 848 v. National Labor Relations Bd., No. 05-75295 (Aug. 25, 2008), held that...

Cert Petition Asks Supreme Court to Overrule Williamson County

Posted on August 26, 2008
The property owners have asked the U.S. Supreme Court to review the Sixth Circuit's decision in Braun v. Ann Arbor Charter Township, 519 F.3d 564 (6th Cir. 2008), a decision we analyzed here. The cert petition contains three Questions Presented:1....

Latest Developments in Maui Affordable Housing Exaction Case

Posted on August 25, 2008
New filings in the federal district court litigation challenging the County of Maui's "workforce housing" ordinance. Enacted in 2006, the Maui ordinance imposes a 40% to 50% affordable requirement on most development, including the subdivision of land...

HAWSCT: Contested Case Broadly Defined

Posted on August 24, 2008
In a decision that at first blush seems to have little to do with land use law, the Hawaii Supreme Court reiterated the standard for when an agency hearing is a "contested case" under the Administrative Procedures Act. The issue...

More on Oral Arguments in Kona Eminent Domain Abuse Appeal

Posted on August 22, 2008
As noted in this post, the Supreme Court of Hawaii has scheduled oral arguments in the consolidated appeal from two eminent domain lawsuits filed by the County of Hawaii in 2000 and 2005. Today's West Hawaii Today has this story...

More on Kauai Springs Zoning Permit Appeal Victory

Posted on August 22, 2008
From today's Honolulu Star-Bulletin: Judge approves company's permits

Victory in Kauai Springs Zoning Permit Appeal

Posted on August 21, 2008
Yesterday, the Kauai circuit court granted a permanent injunction, and ordered that Kauai Springs's applications for three zoning permits should not have been denied by the Kauai Planning Commission in January 2007. The case is an appeal from an agency...

Oral Argument Scheduled in Kona Eminent Domain Appeals: Damages for Failed Condemnations, Abatement, and Pretext

Posted on August 20, 2008
The Supreme Court of Hawaii has scheduled oral arguments in County of Hawaii v. Richards, No. 28882, the consolidated appeal from two eminent domain lawsuits filed by the County in 2000 and 2005. The issues in the case include: application...

Washington Supreme Court: Growth Board Can't Grow Its Powers

Posted on August 17, 2008
How much growth is "too much," and who gets to make that decision under Washington law? In Thurston County v. Western Washington Growth Management Hearings Board, No. 80115-1 (Aug. 14, 2008), the Washington Supreme Court issued an interesting -- but....

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