Real Estate & Property Law

Additional Amicus Briefs in Navy Sonar Case

Posted on August 16, 2008
Three more amicus briefs have been filed 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. The California...

Zoning Inspectors Need A Warrant

Posted on August 14, 2008
An interesting Sixth Circuit case summarized on Law of the Land by Professor Patty Salkin, Jacob v. Township of West Bloomfield, 531 F.3d 385 (6th Cir. July 3, 2008), which held that zoning inspectors are required by the Fourth Amendment's...

Admirals' Amicus Brief in SCOTUS Navy Sonar Case

Posted on August 14, 2008
Today, we filed a brief amicus curiae in the case now pending in the U.S. Supreme Court 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.,...

Three Times The Pain, And Your Own Self To Blame*

Posted on August 13, 2008
So the federal government tells you that the device you are making is not a "machine gun" and you go ahead and start to manufacture them. Times change, though, and three years later "upon further review" (as they say in...

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Coastal Land Use Law Seminar

Posted on August 12, 2008
There is still time to sign up to attend an upcoming seminar, Coastal Engineering and Land Use Issues, in Honolulu. It's being held on Thursday, August 14, 2008, at at Hilton Waikiki Prince Kuhio Hotel. My colleagues and fellow law...

New Jersey: Blight Not Right

Posted on August 08, 2008
In a case a lot of folks have been following, a New Jersey appellate court yesterday struck down an attempt to declare properties "blighted." Turns out these properties in a residential neighborhood which was proposed to be cleared for luxury...

Cal. Court of Appeals: Goverment Does Not Have To Own The Entire Faulty Drainage System To Be Liable For Inverse Condemnation

Posted on August 04, 2008
An interesting decision from the California Court of Appeals (First Appellate District) about a distinct branch of inverse condemnation law -- government liability for flooding and erosion. Generally, any physical invasion of property by or caused by the government, no...

Takings Claim Goes From State Court To Federal Court, And Now Back To State Court

Posted on August 03, 2008
Here is what the ripeness requirements of Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985) have brought us: a seemingly endless procedural game where property owners are forced to keep guessing which shell the pea is...

Opposition To Reconsideration Motion In Maui Affordable Housing Exaction Case

Posted on July 31, 2008
The property owner has filed its brief in opposition to the County of Maui's motion for reconsideration of the court's recent decision in the federal court challenge to the County's 40-50% affordable housing exaction, Kamaole Pointe Development LP v. County...

Ninth Circuit: "Lawyers Must Eat, So They Generally Won?t Take Cases Without A Reasonable Prospect Of Getting Paid."

Posted on July 29, 2008
In Moreno v. City of Sacramento, No. 06-15021 (9th Cir. July 28, 2008), the Ninth Circuit clarified the rules for calculating "prevailing party" attorneys fees in civil rights cases under 42 U.S.C. § 1988. The district court rejected the plaintiff's....

Zoning Can Regulate Use Of Property, Not Ownership

Posted on July 25, 2008
A noteworthy case from the North Carolina Court of Appeals about the limits Euclidean zoning. Although the decision was issued in March 2008, it seems no one else has posted on the case, so we will. In City of Wilmington...

County Motion For Reconsideration in Maui Affordable Housing Exaction Case

Posted on July 23, 2008
The County of Maui has asked the federal court to reconsider its recent order granting in part and denying in part the County's summary judgment motion. A Maui property owner challenged the County's "workforce housing" exaction ordinance, which requires a...

State's Reply in Ceded Lands Case

Posted on July 18, 2008
The State of Hawaii has filed its Reply Brief to the Office of Hawaiian Affairs' Brief in Opposition in the "ceded lands" case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert. petition filed Apr. 29, 2008). The State has...

CFC: No "Border Patrol" Servitude

Posted on July 14, 2008
In D & D Land Holdings v. United States, No. 06-877L (filed under seal: June 25, 2008, reissued: June 30, 2008), the Court of Federal Claims held the landowner's claim that the Border Patrol's activities on its land resulted in...

Protesting Eminent Domain Abuse

Posted on July 13, 2008
An interesting story in the LA Times about eminent domain abuse and free speech in St. Louis, Missouri, "Political protest hits a brick wall." The story details the conflict between a property owner who commissioned a two-story mural on the...

Washington (State) Court Of Appeals: One-Size-Fits-All Open Space Regulation Is Not Roughly Proportional

Posted on July 10, 2008
In Citizens' Alliance for Property Rights v. Sims, No. 59416-8-1 (Wash. Ct. App. July 7, 2008), the Court of Appeals of the State of Washington held that a county ordinance which prohibited a landowner from clearing 50% to 65% of...

Brief in Opposition in Ceded Lands Case

Posted on July 09, 2008
The State of Hawaii Office of Hawaiian Affairs has filed its Brief in Opposition, arguing the U.S. Supreme Court should not review the "ceded lands" case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert. petition filed Apr. 29, 2008)....

Op-Ed on GMO Algae Case

Posted on July 07, 2008
Check out Jay Fidell's op-ed in the Honolulu Advertiser, "Appeals court decision threatens our biotech sector" about the recent Intermediate Court of Appeals decision in Ohana Pale Ke Ao v. Bd. of Agriculture, State of Hawaii, No. 27855 (May 21,...

Nollan/Dolan Challenge to Maui's 50% Housing Exaction Is A Takings Claim Subject To Williamson County

Posted on July 03, 2008
Relying on Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985), the US District Court for the District of Hawaii today denied a property owner's motion for summary judgment in a case challenging the County of Maui's...

Professor Tribe on Wilkie v. Robbins: Death by a Thousand Cuts

Posted on June 30, 2008
I've finally had a chance to read the article posted on SSRN by Professor Laurence Tribe about the Supreme Court's decision in Wilkie v. Robbins, 127 S. Ct. 2588 (2007), "Death by a Thousand Cuts: Constitutional Wrongs without Remedies after...

Calling Bill Clinton: the Ninth Circuit Has Your Answer About What The Meaning of "Is" Is

Posted on June 26, 2008
This is only tangentially related to the usual topics of this blog, but given the first sentence in the Ninth Circuit's opinion in Guidiville Band of Pomo Indians v. NGV Gaming, Ltd., No. 05-17066 (June 26, 2008), I could not...

Seminar: Land Use Institute - Planning, Regulation, Litigation, Eminent Domain and Compensation (August 13-16)

Posted on June 25, 2008
Get ready for this year's Land Use Institute conference on "Planning, Regulation, Litigation, Eminent Domain, and Compensation," to be held in Boston on August 13-16, 2008. I can't attend this year, but have in the past, and like all ALI-ABA...

Ninth Circuit Rejects Public Use Challenge to Taking for Power Grid

Posted on June 24, 2008
In United States v. 14.02 Acres of Land, More or Less in Fresno County, No. 05-17347 (Jun. 24, 2008), the Ninth Circuit upheld a taking by the federal government for the Western Area Power Administration against challenges that the taking...

Note to Self: Avoid June 23 at the Supreme Court

Posted on June 23, 2008
If my office ever takes another Fifth Amendment case up to the U.S. Supreme Court (my Damon Key colleagues Charlie Bocken and Diane Hastert argued and won Kaiser Aetna v. United States, 444 U.S. 164 (1979)), we're going to do...

Cert Denied in Three Cases

Posted on June 23, 2008
The US Supreme Court today denied review to three cases we've been following: Goldstein v. Pataki, No. 07-1247 (petition for cert. filed Mar. 31, 2008) (pleading pretext post-Kelo) - Justice Alito would have granted the petition. Justice Alito had not...

Reply Brief in Ninth Circuit Maui Vacation Rental Appeal

Posted on June 23, 2008
Today we filed the Reply Brief (925kb pdf) 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...

Court of Federal Claims Awards Compensation for Taking of Vested Water Rights

Posted on June 22, 2008
The speed of information on the internet sure is fast. I was preparing a post summarizing the recent Court of Federal Claims decision in Estate of Hage v. United States, No. 91-1470L (May 6, 2008), which awarded Nevada property owners...

Honolulu Star-Bulletin Features Damon Key Law Blogs

Posted on June 22, 2008
In "Blogs are not just for venting anymore," Erika Engle's "TheBuzz" column features four Damon Key attorneys who blog about the law: Mark Murakami, Robert Harris, Tred Eyerly, and me. Our firm is pretty "bloggish," and between the four of...

Federal Circuit En Banc Petition in AmeriSource

Posted on June 18, 2008
The property owner has filed a Petition for Rehearing and Suggestion for Rehearing En Banc in AmeriSource Corp. v. United States, No. 07-1521 (Fed. Cir. May 1, 2008). In that case, the Federal Circuit held that when an innocent party's...

Public Use/Kelo Round Up

Posted on June 17, 2008
Several items today with a common theme of eminent domain and public use - PropertyProf Blog posts a link to Professor Richard Epstein's latest article, "Public Use in a Post-Kelo World." I agree with Professor Barros' recommendation: "Given the author,...

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