Things we were reviewing today:

• Check out the just-launched Hawaii Civil Procedure blog. It's a welcome addition to the blogroll for Hawaii civil practitioners.

• My colleague Mark Murakami has set up a resource page for all things about the McDonald v. City of Chicago case. That's the appeal currently being considered by the Supreme Court challenging Chicago's ability to regulate firearms under the Second Amendment. What's most interesting about the case is not the gun issue, but the legal arguments regarding whether the Privileges or Immunities Clause incorporated the entire Bill of Rights against the states. Slaughter-House, anyone?

• The Texas Supreme Court today heard oral arguments in Severance v. Patterson (a case we discussed here). It is in the Texas court on certified questions from the Fifth Circuit. More here including the briefs, and the archive of the video of the arguments here. The certified questions being considered by the court are: (1) whether Texas recognizes a "rolling" public beachfront-access easement; if so (2) whether the rolling easement derives from the common law or the Open Beaches Act; and (3) what extent the landowner would be entitled to compensation for loss of property use apart from the state's offer to remove houses on the easement. More from Land Use Prof blog here.

Another very interesting conference call today, focusing on the upcoming arguments in the Stop the Beach Renourishment case, the New York Court of Appeals' decision in Aspen Creek, and the New Jersey Supreme Court's decision to review Klumpp v. Borough of Avalon. Here are the links to some of the cases and other topics discussed during today's call, and other items of interest which we didn't have time for:

• A resource page for the Stop the Beach Renourishment case - merits and amici briefs, media links, and commentary.

• Our summary of the New York court's decision in Aspen Creek Estates, Ltd. v. Town of Brookhaven, 12 N.Y.3d 735 (N.Y. 2009), cert. denied, No. 08-1444 (U.S. Oct 5, 2009).

• More about the "bizarre condemnation," Klumpp v. Borough of Avalon, No. A-2963-07 (per curiam). See also this post on the case from the New Jersey Condemnation Law blog.

• Noble v. Safe Harbor Family Preservation Trust, No. 80873 (Wash., Sep. 24, 2009) - condemnation of a "private way of necessity."

• The "undivided fee" rule - City of Milwaukee Post No. 2874 VFW v. Redev. Authority of Milwaukee, 768 N.W.2d 749 (Wis., July 17, 2009).

• The Chicago Second Amendment case: was the entire Bill of Rights incorporated by the Privileges or Immunities Clause? More here.

• Grant County Fire Protection Dist. No. 5 v. City of Moses Lake, 150 Wn2d 791, 83 P.3d 419 (2004) - decision under the privileges or immunities clause of the Washington Constitution.

• The fallout from Pfizer's departure from New London.

• People ex rel. Dep't of Transportation v. Acosta, No. C059064 (Cal. Ct. App. Oct. 26, 2009) - in an eminent domain case, the California Court of Appeals, Third District concludes that a claim for lost goodwill was not preempted by federal law (the Petroleum Marketing Practices Act).

• Town of Kearny v. Discount City of Old Bridge, Inc., No. A-6220-07T3 (N.J. Super. Oct. 23, 2009) - analysis and summary here from the New Jersey Condemnation Law blog.

• Recent Developments in Public Use and Pretext in Eminent Domain, 43 Urban Lawyer 563 (2009).

Just a reminder: tomorrow (Wednesday, November 18, 2009), from 2:00 - 3:00 p.m. (Eastern Standard Time), we will be holding the next "recent developments" conference call for members of the Condemnation Law Committee (ABA Section of State & Local Government Law). It's free, but open only to Section members and guests.

Members should have already received an e-mail with the call information, either directly from the Section, or via our listserv (LG-CONDEMNATION). If you are not a member or have not received the information, email me.

These are informal calls to discuss recent developments, get feedback and advice about pending matters, and to otherwise exchange views.

As this is informal, the agenda is open. But we will be covering at least these topics:

• A preview of the December 2, 2009 Supreme Court arguments in Stop the Beach Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009), the "judicial takings" case that is generating a lot of interest.

• Aspen Creek Estates Ltd. v. Town of Brookaven, 12 N.Y.3d 735 (N.Y. 2009), cert. denied, No. 08-1444 (U.S. Oct 5, 2009) - the New York courts permitted a taking for use as farmland.

• Noble v. Safe Harbor Family Preservation Trust, No. 80873 (Wash., Sep. 24, 2009) - condemnation of a "private way of necessity"

• City of Milwaukee Post No. 2874 VFW v. Redev. Authority of Milwaukee, No. 2006AP2866 (Wis., July 17, 2009) - the "undivided fee" rule.

Hope you can join us. For a sample of what we discuss, see this post. If you are not a member of the SLG Section or Condemnation Law Committee and would like to participate in the call, drop me an email.

Here's the Reply Brief filed last month by the property owner in Leone v. County of Maui, No.29696,an appeal in the Hawaii Intermediate Court of Appeals which is considering, among other issues, the question of when a regulatory takings claim is ripe for review under Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985). The brief responds to the County's Answering Brief (posted here).

In Leone, the trial court refused to consider the owner's claim that state law and local regulations resulted in a regulatory taking of beachfront property on the south shore of Maui. The trial court determined the plaintiffs' federal regulatory takings claim -- which they brought in state court, as required by Williamson County -- were not ripe because they should have sought a legislative change to the offending land use regulations which allegedly deprive their property of all economically beneficial uses. The trial court's decision is available here.

Disclosure: we filed an amicus brief (available here) on behalf of the property owners. The brief argues Williamson County only requires a "final decision" by the government applying existing land use regulations to the property, and a property owner is under no obligation to change the law before asserting her federal takings claim.

The case involves an undeveloped 1/2 acre beachfront parcel, one of 11 similarly-situated lots. The zoning on the property is “Hotel-Multifamily,” which permits residential use. The Community Plan (Maui County’s General Plan) designates the property as “Park” because in the 1980’s, the County sought to condemn the 11 parcels for a public beach park. After acquiring two of the parcels, however, the County ran out of money and the other 9 remain in private ownership, and several of them are fully or partially developed.

The entirety of the property is within the Special Management Area, a special zone subject to an additional layer of regulation under the Hawaii Coastal Zone Management Act, Haw. Rev. Stat. § 205A-1, et seq. The CZMA requires plan-zone consistency, meaning that before any "development" within the SMA can go forward, the zoning must be consistent with the Community Plan. See GATRI v. Blane, 962 P.2d 368 (Haw. 1998). The CZMA exempts a single-family residence from the definition of "development" for which a SMA permit is needed, unless the home will have a "cumulative impact, or a significant environmental or ecological effect" on the SMA. Haw. Rev. Stat. § 205A-22.

The CZMA is administered by the counties, and if a Maui property owner believes a proposed use is exempt, under the local rules she must seek an exemption determination from the county planning department and request a ruling that no SMA permit is required. Under Maui's administrative rules, an application for development cannot be processed unless the zoning is consistent with the Community Plan. Consequently, when the property owner filed a request for a determination that a SMA permit was unnecessary, the county refused to process it.

Williamson County requires that property owners initially file their regulatory takings claims in state court, and the property owner did so, asserting the regulations permitted no economically beneficial use of the land. The trial court granted summary judgment to the County, holding among other things, that in order to ripen the takings claim, the property owner had an obligation to change the Community Plan. To change the Community Plan designation on a parcel requires the County Council to enact an ordinance (in other words, it is a legislative act), and requires the production of an Environmental Impact Statement.

The appeal presents several issues, including:

• Whether the County has made a final determination of the use the owners can make of the property.

• Whether there are any "effective remedies" which the owners might seek.

• If there are remedies, whether those remedies are futile.

Here are all the briefs:

• Owner's Opening Brief

• County's Answering Brief

• Owner's Reply Brief

• Pacific Legal Foundation's amicus brief

Oral argument have not yet been scheduled.

Today, we filed the Reply Brief in DeJetley v. Kahoohalahala, No. 29929, the appeal now pending in the Hawaii Supreme Court regarding the Lanai member of the Maui Council who is alleged to not be a resident of Lanai as required by the county charter.

Section 3-3 of the Charter provides that "If a council member ... ceases to be a resident of the council member’s residency area during the council member’s term of office, or if a council member is adjudicated guilty of a felony, the council member shall immediately forfeit office and the seat shall thereupon become vacant."

Several Lanai residents sought a declaratory judgment in circuit court that the council member had forfeited office, and that the seat was vacant because he is not a Lanai resident. The Circuit Court dismissed the complaint, holding that declaratory relief was not available, and the remedy was impeachment or recall. The Lanai voters appealed, and the case was transferred from the Intermediate Court of Appeals to the Supreme Court.

Here are all the briefs in the case:

• Opening Brief

• Answering Brief

• Reply Brief

This case is related to Dupree v. Hiraga, No. 29646 (Oct. 20, 2009), in which the Hawaii Supreme Court held that in order to register to vote as a resident of a district, a person must have a fixed habitation in the district in which he is attempting to register, as well as a "physical presence" there. In that case -- the councilmember's appeal from a determination by the State Board of Registration that he is a Lahaina resident and his attempt to register to vote as a Lanai resident was invalid -- the court held "there was nothing in the record to establish that Kahoohalahala actually lived [at his brother’s home] or anywhere else on Lanai in any commonly-understood meaning of the term." Dupree, slip op. at 53.

Oral arguments have not yet been scheduled.

According to this order dated November 19, 2009, the New Jersey Supreme Court has granted the property owners' petition (available here), and will review the unpublished decision by the Appellate Division in Klumpp v. Borough of Avalon, No. A-2963-07 (per curiam).

This is the decision the New Jersey Law Journal labeled "A Bizarre Condemnation" in a recent article. We called the decision "kafkaesque," since we couldn't quite figure how the appellate court reached the conclusion which it did. 

Why the perjorative labels?

The appellate division held that the government can assert inverse condemnation in order to take property without compensation.

Confused? You are not alone. Here's our recipe for straightening yourself out:

Start here, our summary of the appellate division's decision. Then, read the property owners' petition for review. Next, read the NJ Law Journal's critique (the aforementioned "Bizarre Condemnation"), and the Atlantic City newspaper's summary, complete with a photo and map.

Finally, review the amici briefs which were filed supporting the property owners:

• Brief Amicus Curiae of Builders League of South Jersey, Inc. In Support of Petitioners

• Brief of Proposed Amicus Curiae New Jersey Land Title Association in Support of Petition for Certification

Then, take a deep breath, and wait for the cavalry to arrive. Hopefully, the New Jersey Supreme Court will see this case the same way we do.

Oral arguments have not yet been scheduled.

Here's what we've been reading today:

• A Turning Point for Eminent Domain? - The NY Times "Room for Debate" forum posts the thoughts of six property law experts on the meaning of Pfizer's decision to close its research headquarters in New London, Connecticut. New London, of course, was the epicenter of the public use case that became Kelo v. City of New London, 545 U.S. 469 (2005). Many of the comments are also worth perusing.

• The Times covers the news side of the above in Pfizer to Leave City That Won Land-Use Case. Complete with photos of Ms. Kelo's relocated Little Pink House.

• At Pacific Legal Foundation's Liberty Blog, Luke Wake searches for The Moral of the Kelo Story. 

• In The Empire State and Eminent Domain, the Wall Street Journal opines that "[Dan] Goldstein should win. The state constitution supports him. If he loses, so will the owners of private property everywhere in the Empire State." They're talking of course about the latest Atlantic Yards case from Brooklyn, Goldstein v. New York State Urban Development Corp. The New York Court of Appeals is present considering Mr. Goldstein's claims of eminent domain abuse in an economic development taking under the New York Constitution. We live-blogged the oral arguments, which are archived here.

• Also from the WSJ is Our "Constitutional Moment" - a report about newspaperman Seth Lipsky and his thoughts about the role of the Constitution. He notes, "'It's [the Kelo decision] just unbelievable, that case,' Mr. Lipsky says—and all the more so in light of the latest development, or rather the lack of development. On Monday, Pfizer Inc., which was to have built offices on the now-barren site, announced that it was leaving New London altogether as part of a consolidation move."

Today, my Damon Key colleagues Ken Kupchak, Mark Murakami, Matt Evans and I filed the Opening Brief in the latest phase of County of Hawaii v. C&J Coupe Family Ltd. P'ship, two condemnation cases arising out of the County of Hawaii's attempts to take a Kona family's property. This brief addresses several issues, but the most critical involve pretext and public purpose, questions left open by the U.S. Supreme Court in Kelo v. City of New London, 545 U.S. 469 (2005), but which were answered, in part, by the Hawaii Supreme Court in its opinion when these cases were first before the court last year. See County of Hawaii v. C&J Coupe Family Ltd. P'ship, 119 Haw. 352, 198 P.3d 615 (2008) (available here)

In that opinion, the court held that a property owner has a right to challenge the government's assertion that a taking is for public use. In reviewing a taking, courts have an obligation to take seriously a property owner's claim that the government's stated public purpose is a pretext masking its true purposes. The court held that substance matters, not form, when government adopts a resolution of taking. Id. at 383, 198 P.3d at 646.

The court held that the trial court erroneously accepted the County’s stated purpose at "face value," and the "single fact that a project is a road does not per se make it a public road." Id. at 381, 198 P.3d at 643 (emphasis original). The court vacated the trial court’s approval of the taking, and remanded the case with instructions to “thoroughly consider” evidence of pretext and private benefit by examining the County’s "actual purposes," its "veracity," and by "look[ing] behind the government’s stated public purpose" with a "closer objective scrutiny of the justification being offered." Id. at 375, 198 P.3d at 638 (“[O]ur case law supports the proposition that a court can look behind the government’s stated public purpose.”).

After the remand from the Hawaii Supreme Court, the trial court again validated the taking, concluding there was "no evidence"of pretext or private benefit. This brief challenges that conclusion. More about the cases here.

The judiciary web site has posted the recording of the November 10, 2009 Intermediate Court of Appeals oral arguments in Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175 (HAWICA) here (caution, it is a massive 88 MB mp3 file).

The issue in the case is whether the state, or littoral landowners, are entitled to ownership of certain accreted lands. In "Act 73," (codifed here and here) the legislature declared that shoreline land naturally accreted belongs to the State of Hawaii and is public property. More about the arguments, including the briefs, here. Disclosure: we filed an amicus brief supporting the property owners, available here.

In July 2009, the Florida Supreme Court issued an opinion in System Components Corp. v. Florida Dep't of Transportation, No. SC08-1507, which resolved resolved a conflict in the lower Florida courts regarding the application of business damages in a condemnation case under Florida Statutes § 73.071(3)(b). The court held that a business is not required to relocate as the result of a partial taking, but if it chooses to do so, only the actual damages suffered by the business are compensable, and "its business damages must be determined in light of its continued existence at its new location." We summarized the opinion here.

Florida eminent domain attorney Carlos A. Kelly authors today's post, an article about the meaning of the case.

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

What Does The Florida Supreme Court's Ruling in System Components Corp. v. Florida Department of Transportation Mean?

Introduction

In System Components Corp. v. Florida Department of Transportation, 14 So.3d 967, 971 (Fla. 2009), the Florida Supreme Court determined whether an award of business damages under §73.071 (3)(b), Florida Statutes (2004), in an eminent domain action may take into consideration only the actual damages sustained by the affected business when the business relocates after a partial taking. In a lengthy opinion, the Florida Supreme Court concluded that" if an affected business chooses to relocate, its business damages must be determined in light of its continued existence at its new location." Id. Systems Components is an important case because it changes how business owners must think when confronted by a right-of-way condemnation that could take some part of their land and damage their business. The route to this decision, in the words of The Beatles, was a "long and winding road."[1]

The Trial

At trial, the only issue involved was the proper measure of business damages in light of the relocation of the System Components facility and the continued existence and operation of the business at a new location. Id. at 973. The dispute at trial "centered on the significance of the statutory command that the land/business owner receive 'the probable damages to such business which the denial of the use of the property so taken may reasonably cause.'" System Components, 14 So.3d at 980. (citation omitted). System Components contended it was entitled to the total take value of its business as though the business had ceased to exist on the date of taking. Id. By making this argument, System Components wanted the court to overlook the fact that the business had actually relocated. Id.

The jury returned a verdict determining that the total value of the System Components business, as derived from an income-based approach, was $2,394,964.00. Id. at 974. The verdict determined that the business damages, in light of the relocation and continued existence of System Components, totaled $1,347,911.00. Id.  After the trial court deducted the good-faith registry deposit of $348,300.00 from the business damages award of $1,347,911.00,[2] the balance of business damages awarded to System Components totaled $999,611.00. Id.

The Appeal to the Fifth District

System Components then sought review by the Fifth District Court of Appeal. On appeal, the Fifth District affirmed the trial court's award of business damages. Id. at 975. The Fifth District, however, certified a conflict with the Fourth District Court of Appeal's decision in Florida Department of Transportation v. Tire Centers, LLC, 895 So.2d 1110 (Fla. 4th DCA 2005). System Components, 14 So.3d at 975. In Tire Centers, the appellate court had found "that the trial court did not err by excluding consideration of mitigated business damages made by wayan off-site cure." System Components, 14 So.3d at 973 (citing Tire Centers) (emphasis supplied). In other words, the Fifth District in System Components and the Fourth District in Tire Centers reached opposite conclusions.

The Florida Supreme Court

The Florida Supreme Court agreed with the Fifth District Court of Appeal's affirmance of the trial court's decision in the System Components litigation and rejected the Fourth District Court of Appeal's reasoning in the Tire Centers decision. Id. at 985. The Florida Supreme Court focused on the fact that System Components had relocated its business and never ceased operations. See generally id. As a result, the Florida Supreme Court seemed to suggest that the jury had simply calculated business damages based on what System Components had actually sustained in damages. Id. at 981. According to the Florida Supreme Court, to do otherwise would have provided System Components with a windfall because it would have received damages for a loss of business, when the business had actually continued, albeit at a different location. Cf. id. at 975-976 (approving the Fifth District's opinion in System Components as "well reasoned").

The Florida Supreme Court concluded its opinion stating that:

When a qualified partial taking destroys a business at its prior location, and the land/business owner chooses to relocate, the resulting business damages must be measured by the probable financial impact reasonably suffered as a result of the taking. Therefore, these business damages must be determined in light of the true economic realities of the given case, which, here, involved a relocated business's continued existence at its new location.

System Components, 14 So.3d at 985.

Analysis

The legal rule announced by the Florida Supreme Court in System Components makes sense. If damages have not been suffered, and will not be suffered, then they should not be awarded. This is consistent with rules regarding the award of damages, generally. See 17 Florida Jurisprudence 2d, Damages §7 (2004) (plaintiff not entitled to recover compensatory damages in excess of an amount representing the loss actually caused by defendant's wrongful act).

The System Components decision should help practitioners and litigants because it clarifies an area of the law regarding business damages. Also, the System Components decision provides a comprehensive overview of damages and, in particular, business damages, in an eminent domain case. There is, however, at least one aspect of the case that is difficult to understand. Specifically, it is unclear why the business damages were reduced by the entire good-faith deposit amount. According to the Florida Supreme Court, the trial court's reason for the deduction was "to avoid the award of duplicative damages." Systems Components, 14 So.3d at 974.

The trial court's rationale was misplaced, however, in respect to a significant portion of the $348,300.00 good-faith deposit. Section 73.071 (3) (b), Florida Statutes, allows for an award of business damages, but business damages may not include compensation for property taken by the condemning authority. Instead, it is section 73.071 (3) (a), Florida Statutes, that implements the Florida Constitution's requirement of compensation for property taken by the condemning authority. In this case, the compensation for the property taken would be $88,300.00 for the value of the land taken by the condemnation and $109,400.00 for the value of the appurtenances and improvements taken by the condemnation.

The good-faith deposit of $348,300.00 included taking damages (i.e., compensation for property taken by the condemning authority, such as land and structures), severance damages, and demolition costs. System Components, 14 So.3d at 972. Only the severance damages ($130,900.00) and demolition costs ($19,700.00) could have overlapped with the $1,347,911.00 of business damages awarded by the jury because taking damages are not included within the statutory scheme authorizing business damages. See §§73.071 (3)(a), (b), Fla. Stats. (2009). As a result, it seems that the trial court improperly reduced System Components' business damages by $88,300.00 for the land taken and $109,400.00 for the improvements taken. It appears that, in total, the trial court incorrectly subtracted $197,700.00 from the business damages award. For whatever reason it appears that, System Components chose not to challenge this reduction. Perhaps System Components made the tactical decision to avoid litigating this issue on appeal so that the Fifth District could not "split the baby." In other words, perhaps System Components wanted to give the appellate court the choice to either deny all relief or award the full relief that System Components sought on appeal, rather than giving the appellate court the option of awarding the "middle ground" relief of correcting the $197,700.00 reduction.

This decision highlights the need for businesses, faced with right-of-way condemnation, to consult counsel in order to consider the impact of a relocation on a potential business damages award. Legal and business considerations must both be carefully weighed in order to take account of the new legal landscape.

The property owners have filed their Reply Brief in Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009), the case about "judicial takings" and the rights of littoral owners to accretion.

Oral arguments in the Supreme Court are set for December 2, 2009.

More about the case on our resource page.

Disclosure: we filed an amicus brief supporting the Petitioners, available here.

Here's the Answering Brief filed by a Maui Councilmember in the case in which Lanai residents and voters assert he forfeited the Lanai seat on the Maui County Council under section 3-3 of the Maui Charter since he is not a resident of Lanai.

Section 3-3 of the Charter provides that "If a council member...ceases to be a resident of the council member’s residency area during the council member’s term of office, or if a council member is adjudicated guilty of a felony, the council member shall immediately forfeit office and the seat shall thereupon become vacant."

The Maui Circuit Court dismissed the complaint, and the Lanai voters appealed.

Disclosure: we represent the Lanai voters; the Opening Brief we filed earlier is posted here.

More to follow as the appeal progresses. This was earlier transferred from the Intermediate Court of Appeals to the Supreme Court.

Note: on October 20, 2009, the Hawaii Supreme Court issued an opinion in a separate but related case, Dupree v. Hiraga, No 29464, the councilmember's appeal from a determination by the State Board of Registration hearing that he is a Lahaina resident and his attempt to register to vote as a Lanai resident was invalid. More about that decision here.

The Hawaii Supreme Court and Intermediate Court of Appeals will be hearing two appeals of note:

• Tuesday, November 10, 2009, 9:00 a.m. - Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175 (HAWICA). The issue is whether the state, or littoral landowners, are entitled to ownership of certain accreted lands. In "Act 73," (codifed here and here) the legislature declared that shoreline land naturally accreted belongs to the State of Hawaii and is public property. More about the arguments, including the briefs, here. Disclosure: we filed an amicus brief supporting the property owners.

• Thursday, December 17, 2009, 9:00 a.m. - Unite Here! Local 5 v. City and County of Honolulu, No. 28602 (HAWSCT). The Supreme Court is reviewing the ICA's conclusion that unless the project changes, a supplemental EIS is not required under the Hawaii Environmental Policy Act, Haw. Rev. Stat. ch. 343. The application for writ of certiorari asked the court to review this Question Presented:

Under HRS Chapter 343 an its enabling rules, is a supplemental environmental review required when there are significant changes to a project's circumstances, such as increased environmental and community impacts, or are supplemental reviews limited solely to changes in project design?

More about the case here. Note: the oral arguments apparently were rescheduled, as earlier notices listed the date as Thursday, November 19, 2009 at 11:00 a.m.

Mark your calendars for Wednesday, November 18, 2009, from 2:00 - 3:00 p.m. (Eastern Standard Time). That's when we will be having the next "recent developments" conference call for members of the Condemnation Law Committee (ABA Section of State & Local Government Law). It's free, but open only to Section members. Members should receive an e-mail with the call information, either directly from the Section, or via our listserv (LG-CONDEMNATION). If you are not a member, see below.

These are informal calls to discuss recent developments, get feedback and advice about pending matters, and to otherwise exchange views.

As this is informal, the agenda is open. But we will be covering at least these topics:

• A preview of the December 2, 2009 Supreme Court arguments in Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009), the "judicial takings" case that is generating a lot of interest.

• Aspen Creek Estates Ltd. v. Town of Brookaven, 12 N.Y.3d 735 (N.Y. 2009), cert. denied, No. 08-1444 (U.S. Oct 5, 2009) - the New York courts permitted a taking for use as farmland.

• Noble v. Safe Harbor Family Preservation Trust, No. 80873 (Wash., Sep. 24, 2009) - condemnation of a "private way of necessity"

• City of Milwaukee Post No. 2874 VFW v. Redev. Authority of Milwaukee, No. 2006AP2866 (Wis., July 17, 2009) - the "undivided fee" rule.

Hope you can join us.  For a sample of what we discuss, see this post. If you are not a member of the SLG Section or Condemnation Law Committee and would like to participate in the call, drop me an email.

On October 16, the U.S. Court of Appeals for the D.C. Circuit heard oral arguments in  Rumber v. District of Columbia, No. 09-7035, the appeal challenging an attempt to take a shopping center by the District of Columbia and the National Capital Revitalization Corporation. We previewed the arguments and posted the briefs of the parties here.

The Blog of Legal Times reported on the arguments in D.C. Circuit Tries to Untangle Eminent Domain Battle, noting:

The D.C. Circuit judges—Chief Judge David Sentelle was sitting with Senior Judges Stephen Williams and A. Raymond Randolph—grappled with just how many plaintiffs are left in the suit. Sentelle, during oral argument, ordered both sides to submit supplemental briefs that address the status of the plaintiffs.

Read the entire article here.

Here are the latest blogs we've added to our list:

• California Eminent Domain Report - A fairly new, and very active blog from the Nossaman firm's Eminent Domain and Valuation Group.
  

• Section 1983 Blog - A fun blog about our second favorite cause of action.
  

• The California Constitution -  Following the California Supreme Court, and all things constitutional.
  

• California Appellate Report - Focuses on California state courts of appeals decisions and those from the Ninth Circuit. Always an entertaining and informative read.

• Real Estate, Land Use and Environmental Law Blog - Just like the title says; from the Shepard Mullin firm.
  

Remember the "ceded lands" case? The one where the U.S. Supreme Court held 9-0 that the U.S. had absolute fee simple title to the ceded lands, and that the Apology Resolution was hortatory fluff? See Hawaii v. Office of Hawaiian Affairs, 129 S. Ct. 1436 (2009). We were all over that case, which we summarized here on our resource page.

After it reversed the Hawaii Supreme Court's decision, SCOTUS remanded the case back to the Hawaii court "for further proceedings not inconsistent with this opinion." Today, the Hawaii Supreme Court dealt with the last remaining thread in the litigation, the claim of one of the plaintiffs who refused to settle. Office of Hawaiian Affairs v. Housing and Community Development Corp. of Hawaii, No. 25570 (Oct. 27, 2009).

Since SCOTUS issued its opinion, all of the plaintiffs but one settled with the state. See slip op. at 2 n.2. The state challenged the standing of the holdout plaintiff to continue the fight, arguing that he asserted rights as a Hawaiian. The court held that the holdout plaintiff claimed standing both as a native Hawaiian, and as a member of the public. See Haw. Const. art. XII, §  4. See slip op. at 15. The court noted that the plaintiff was claiming specific rights as a Hawaiian, but that did not exclude him from claiming standing as a member of the public also. Id. at 17.

The court held the plaintiff met the "injury in fact" test for standing because he alleged he is a "Hawaiian member of the general public," and may "suffer cultural and religious injury if ceded lands are transferred from the trust in violation of the State's fiduciary duties." Id. at 20 (emphasis omitted). The court also noted the other two elements of the standing test were met (slip op. at 21 - 24).

However, the court concluded that while the holdout plaintiff has standing, his claims were not yet ripe. "[J]udicial review at this time would be premature and, additionally, would constitute a violation of the separation-of-powers doctrine," slip op. at 32, because the state legislature must first approve of any transfer of ceded lands, which it has not done here.

The court sent the case back down to the circuit court with instructions to enter a dismissal without prejudice. Slip op. at 33.

Charley Foster summarizes the opinion here.

Here are some recently-released opinions; none so earth-shattering that they merit their own post, but definitely worth reading:

• People ex rel. Dep't of Transportation v. Acosta, No. C059064 (Cal. Ct. App. Oct. 26, 2009) - In an eminent domain case, the California Court of Appeals, Third District concludes that a claim for lost goodwill was not preempted by federal law (the Petroleum Marketing Practices Act).

• Town of Kearny v. Discount City of Old Bridge, Inc., No. A-6220-07T3 (N.J. Super. Oct. 23, 2009) - Analysis and summary here from the New Jersey Condemnation Law blog.

• River of Life Kingdom Ministries v. Village of Hazel Crest, No. 08 C 950 (7th Cir., Oct. 27, 2009) - In a case involving a church's claims that a rezoning violated RLUIPA, the U.S. Court of Appeals for the Seventh Circuit affirmed the denial of church's motion for preliminary injunction because the "Church has only a slim chance of success on the merits," among other reasons.

Each summer, The Urban Lawyer (the ABA's Section of State and Local Government Law's peer-reviewed law review), devotes an issue to recent developments in various areas of law. A subscription to the journal, which is published each quarter, is among the benefits of section membership. The just-published Summer 2009 issue includes my article on recent developments in public use and pretext in eminent domain, which I have creatively titled Recent Developments in Public Use and Pretext in Eminent Domain (43 Urban Lawyer 563 (2009)).

If that's not descriptive enough, here's a summary of the article:

The Supreme Court’s controversial 5-4 decision in Kelo v. City of New London renewed both public and judicial interest in the contours of the public use requirement of the Fifth Amendment and its counterparts in state constitutions. Courts began to take a harder look at how the government’s claim that property is being condemned for a public use or purpose can be challenged by a landowner, and what degree of deference is owed by the courts to the  government's assertion. This article summarizes recent developments in public use and pretext litigation.

The decisions the article covers include the most significant cases handed down between 2007 and early 2009, and include County of Hawaii v. C&J Coupe Family Ltd. P'ship, 198 P.3d 615 (Haw. 2008); City of Stockton v. Marina Towers, L.L.C., 88 Cal. Rptr. 3d 909 (Cal. Ct. App. 2009); In re Condemnation by the Redev. Auth. of Lawrence County, 962 A.2d 1257 (Pa. Commw. Ct. 2008); Aspen Creek Estates, Ltd. v. Town of Brookhaven, 848 N.Y.S.2d 214 (N.Y. App. Div. 2007), aff'd, 2009 WL (N.Y. 2009); Middletown Township v. Lands of Stone, 939 A.2d 331 (Pa. 2007); and Goldstein v. Pataki, 516 F.3d 50 (2d Cir.), cert. denied, 128  S. Ct. 2964 (2008).

The article is available in pdf format here. If you'd like a hard copy reprint, send me an email.

The Summer 2009 issue also includes articles about recent developments in land use law, exactions and impact fees, RLUIPA, and other topics. If you are a member of the SLG Section look for it in the mail soon.

More about Klumpp v. Borough of Avalon, the decision from New Jersey's Appellate Division which held that the government can assert inverse condemnation in order to take property without compensation.

In Avalon stole land, appeal to New Jersey high court claims, the Atlantic City paper reports on the case:

A Moorestown couple is asking the state's highest court to consider whether the borough stole a beachfront parcel from them after the great northeaster of 1962.

Edward and Nancy Klumpp's Nantucket-style home on 75th Street was destroyed by the infamous storm. The couple looked into rebuilding the home over the years, and in 1997 applied for a coastal permit.

By then, the borough had built an extensive network of dunes along the ocean to protect people from future coastal storms.

The case has resonated among coastal towns across New Jersey. Avalon has fielded calls from a dozen other beach towns that also have vacant beachfront lots in private hands, Mayor Martin Pagliughi said.

Read the entire article here.

Earlier this week, the New Jersey Law Journal called the appellate court's decision "a bizarre condemnation." We posted the Klumpps' petition for review here.

Here are a couple of reports about yesterday's decision by the Hawaii Supreme Court in Dupree v. Hiraga, No. 29646 (Oct. 20, 2009):

• Kaho‘ohalahala not a Lanai resident (The Maui News)

• Activist is not a Lanai resident, court says (Honolulu Star-Bulletin)

The court held that in order to establish residency as a voter, a person must have a fixed habitation in the district in which he is attempting to register, as well as a "physical presence" there.  Intent to return is not enough. The case concerned whether the State Board of Registration (County of Maui) correctly concluded that a Maui County councilperson who registered to vote as a Lanai resident is actually a resident of Maui. The unanimous court, in an opinion by Justice Mark Recktenwald, affirmed. More about the opinion here.

[Disclosure: my Damon Key colleagues and I represent the Lanai voters who prevailed in the appeal.] 

In an order issued yesterday, the U.S. Supreme Court granted the SG's motion for leave to participate in oral argument as amicus curiae and for divided argument in Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). The federal government's amicus brief is available here.

In Walton County v. Stop the Beach Renourishment, Inc., 998 So.2d 1102 (Fla. Sep. 29, 2008), the Florida Supreme Court held that a state statute which prohibits "beach renourishment" without a permit did not effect a taking of littoral (beachfront) property, even though it altered the long-standing rights of the owners to accretion on their land and direct access to the ocean. The U.S. Supreme Court is considering whether the Florida court's reversal of more than 100 years of Florida law was a judicial taking, and whether the Florida court's decision violated due process.

We filed an amicus brief in the case supporting the property owners, which is available here.

Oral arguments are scheduled for Wednesday, December 2, 2009. All briefs and more about the case on our resource page and in this report from the Destin Log (the hometown newpaper).

In an opinion issued today, the Hawaii Supreme Court held that in order to register to vote as a resident of a district, a person must have a fixed habitation in the district in which he is attempting to register, as well as a "physical presence" there. Dupree v. Hiraga, No. 29646 (Oct. 20, 2009). Intent to return is not enough.

The case concerned whether the State Board of Registration (County of Maui) correctly concluded that a Maui County councilperson who registered to vote as a Lanai resident is actually a resident of Maui. The unanimous court, in an opinion by Justice Mark Recktenwald, affirmed.

[Disclosure: my Damon Key colleagues and I represent the Lanai voter who prevailed in the appeal.] 

The court held:

The Board concluded in COL No. 14 that Dupree established that Kaho'ohalahala did not abandon his residence in Lahaina and relocate his permanent residence to Lana'i. The Board did not clearly err in reaching that conclusion. The Board found, and there is substantial evidence in the record to establish, that Kaho'ohalahala did not own or work for a business on Lana'i, and did not own or rent a house or keep a car on the island. Hiraga and Kaho'ohalahala argue that those findings are immaterial or not dispositive. While they are certainly not dispositive, they are relevant because they support an inference that Kaho'ohalahala had not established the necessary physical presence on Lana'i.

The Board further found that Dupree had not seen Kaho'ohalahala at "the post office, either bank, the Lana'i store, the gas station or any restaurant on Lana'i." There was substantial evidence to support that conclusion as well. Once again, while none of those observations are dispositive, they are relevant. The record establishes that Lana'i is a small, close knit community where residents would likely see each other at such locations. Thus, the observations support the inference that Kaho'ohalahala had not established a sufficient physical presence on Lana'i.

Slip op. at 51-52 (footnotes omitted). More about the case, including the briefs of the parties here. The oral argument recording is available here.

Remember a while back when we noted that a property owner has asked the New Jersey Supreme Court to review what we called a "Kafkaesque" decision by the Appellate Division which held that the government can assert inverse condemnation in order to take property without compensation?  See Klumpp v. Borough of Avalon, No. A-2963-07 (per curiam).

Well, we're not alone.  The New Jersey Law Journal today published an editorial entitled "A Bizarre Condemnation." It's not available on-line except for subscribers, but we will note some of the key passages:

Rarely is there an appellate decision so bizarre that it leaves seasoned lawyers and laypersons alike shaking their heads in disbelief. It is a basic premise of constitutional law that the government may not take property without due process and just compensation. Yet according to Klumpp v. Borough of Avalon, 2009 WL 2341554 (July 31, 2009), a New Jersey municipality can do just that.

. . . .

The court agreed that the Klumpps had fee simply or "record title" based on such evidence as tax bills, borough records and recorded title, but called this evidence "indicia of plaintiffs' bare legal title ... and nothing more." Rather, the court held, it is "equitable title" that is important and the borough has this because it had taken the property in 1962 by making it "essentially unavailable to [plaintiffs] for any purpose." Although the taking occurred, no compensation was due, apparently because it was accomplished by inverse condemnation -- the very finding that should have entitled the Klumpps to compensation.

In sum, the court made two fundamental legal errors. First, it held, with no facts to support it, that a taking had occurred in 1962, effectively ignoring clear evidence that the Klumpps continued to own the property, and it did so by inexplicable and improperly bestowing so-called "equitable title" on Avalon versus the Klumpps' "mere legal title." It misunderstood the situations in which the fiction of "equitable title" has been used to work an equitable result. Second, it misunderstood the concept of inverse condemnation, using it not as a remedy for property owners but as a sword by which the government can circumvent the Constitution and the Eminent Domain Act and usurp property without paying.

More about the case here, including the petition for review. Several amicus briefs have been filed, urging the New Jersey Supreme Court to review the decision:

• Brief Amicus Curiae of Builders League of South Jersey, Inc. In Support of Petitioners

• Brief of Proposed Amicus Curiae New Jersey Land Title Association in Support of Petition for Certification

Update: In this order, the Court declined to review the case.

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On Monday, October 19, 2009, the Supreme Court is scheduled to consider whether to review the Alaska Supreme Court's decision in Reust v. Alaska Petroleum Contractors, Inc., 206 P.3d 437 (Alaska, Apr. 10, 2009).

The case is listed on SCOTUSblog's list of "petitions to watch."

The Questions Presented:

The Supreme Court of the State of Alaska upheld the validity of a state statute that took a percentage of Reust's recovery in a civil action for public use, aligning the Alaska Supreme Court with the Ninth Circuit and six State Supreme Courts that have held such statutes constitutional and furthering the split with two State Supreme Courts that have held such statutes violate the Takings Clause of the Fifth Amendment to the United States Constitution. The first question presented is:

1. Whether a state statute that allows a percentage of a civil judgment to be taken for public use violates the Takings Clause of the Fifth Amendment to the United States Constitution?

The Supreme Court of the State of Alaska upheld the taking of a percentage of Reust’s recovery even though the recovery was through a settlement and not a judgment as required by the State statute. The second question presented is:

2. Did the taking of a percentage of Reust's civil recovery violate the Due Process Clause of the Fourteenth Amendment?

SCOTUSblog also posts the petition and BIO:

• Reust v. Alaska Petroleum Contractors, Inc., 206 P.3d 437 (Alaska, Apr. 10, 2009)

• Petition

• Brief in opposition

• Reply