REAL PROPERTY AND FINANCIAL SERVICES, PART 1
Regulatory Takings After Knick
2020 Virtual Bar Convention | Hawaii State Bar Association
Friday, October 16, 2020 | 9:00 AM -12:00 PM
Due Process Right to a "Clean and Healthful Environment"Jesse Souki
This document summarizes key information about contested cases in Hawaii land use and planning law. It discusses when contested cases are required by the Hawaii Administrative Procedures Act and constitutional due process. It provides examples from Hawaii Supreme Court cases that have found a right to a contested case hearing when claiming a property interest protected by the state constitution, such as traditional and customary practices. The document also outlines the requirements for contested case hearings, including the opportunity to be heard, submit evidence, and cross-examine witnesses. It notes some of the government agencies in Hawaii subject to contested cases in their decision-making processes.
RECENT DEVELOPMENTS IN PLANNING AND LAND USE LAWJesse Souki
This document summarizes recent developments in planning and land use law in Hawaii, including cases from the US Supreme Court, Hawaii Supreme Court, Intermediate Court of Appeals, and new legislation. Key highlights include: the County of Maui v. Hawaii Wildlife Fund case established a case-by-case analysis for Clean Water Act permits; legislative acts established buffers around landfills, prohibited coal power, allowed county inspections of agricultural buildings, and created a school facilities agency.
Recent Developments in Planning and Land Use Law 2021Jesse Souki
Presentation prepared for the annual Hawaii Congress of Planning Officials, Wednesday, October 6, 2021, 3:00 P.M.-4:30 P.M. Covers recent land use related legislation and case law in Hawaii from 2021.
Land Use Law Update Presentation to the Hawaii State Congress of Planning Off...Jesse Souki
A survey of significant land use and planning legislation, judicial opinions, and land use commission activities in 2013.
These materials supported a lecture on the impacts these developments in the law will have on project proponents, regulators, consultants, and the interested public.
TOD City Zoning, Permits, and Related Approval ProcessesJesse Souki
One of the largest public investments in the history of the City and County of Honolulu, the Honolulu Rail Transit project will fundamentally change how we live and do business. Transit-oriented development (TOD) will increase property values near transit stations by providing the opportunity to take advantage of frequent transit service. The project will allow an unprecedented opportunity to direct growth to Honolulu’s Urban Core (the most populated region of the state) away from agricultural, open space, and rural areas; stimulate urban renewal projects near the 21 proposed rail stations along the approximately 20-mile route; support cost-efficient, consolidated infrastructure; and increase housing affordability by reducing one of the highest costs in a Hawaii family’s budget: transportation.
This seminar will provide key insights and analysis from experts and thought leaders on policy, planning, law, and real estate market issues related to TOD.
The document discusses the nature of property estates, including surface, mineral, and groundwater estates, and the relationships between these estates. It notes that mineral estates are considered dominant and carry an implied right to use as much of the surface as is reasonably necessary. It also discusses regulatory takings cases related to groundwater regulation, noting that groundwater conservation districts can effect regulatory takings through rules that deny landowners all economically beneficial use of their groundwater. The document concludes that determining if a regulatory taking has occurred is a fact-specific analysis considering the economic impact, investment-backed expectations, and the nature of the regulation.
2015 Hawaii Congress of Planning Officials -- AICP LawJesse Souki
Presentation for American Institute of Certified Planners (AICP) law credits at the 2015 Hawaii Congress of Planning Officials (HCPO). Pleasentation includes a overview of Hawaii's State Planning Act, implementing regulations, and recent case law.
By Jesse K. Souki, Esq.
Leveraging the Honolulu Rail Transit Project for Economic Growth and Building...Jesse Souki
Presentation by Jesse K. Souki, Esq. of Imanaka-Asato LLLC on how to leverage the Honolulu Rail Transit Project for economic growth and building better communities.
Date: July 24, 2015
Place: Plaza Club 900 Fort Street Mall 20th Floor
Check-in/Networking: 11:45am-12:15pm
Lunch & Program: 12:15pm-1:30pm
Due Process Right to a "Clean and Healthful Environment"Jesse Souki
This document summarizes key information about contested cases in Hawaii land use and planning law. It discusses when contested cases are required by the Hawaii Administrative Procedures Act and constitutional due process. It provides examples from Hawaii Supreme Court cases that have found a right to a contested case hearing when claiming a property interest protected by the state constitution, such as traditional and customary practices. The document also outlines the requirements for contested case hearings, including the opportunity to be heard, submit evidence, and cross-examine witnesses. It notes some of the government agencies in Hawaii subject to contested cases in their decision-making processes.
RECENT DEVELOPMENTS IN PLANNING AND LAND USE LAWJesse Souki
This document summarizes recent developments in planning and land use law in Hawaii, including cases from the US Supreme Court, Hawaii Supreme Court, Intermediate Court of Appeals, and new legislation. Key highlights include: the County of Maui v. Hawaii Wildlife Fund case established a case-by-case analysis for Clean Water Act permits; legislative acts established buffers around landfills, prohibited coal power, allowed county inspections of agricultural buildings, and created a school facilities agency.
Recent Developments in Planning and Land Use Law 2021Jesse Souki
Presentation prepared for the annual Hawaii Congress of Planning Officials, Wednesday, October 6, 2021, 3:00 P.M.-4:30 P.M. Covers recent land use related legislation and case law in Hawaii from 2021.
Land Use Law Update Presentation to the Hawaii State Congress of Planning Off...Jesse Souki
A survey of significant land use and planning legislation, judicial opinions, and land use commission activities in 2013.
These materials supported a lecture on the impacts these developments in the law will have on project proponents, regulators, consultants, and the interested public.
TOD City Zoning, Permits, and Related Approval ProcessesJesse Souki
One of the largest public investments in the history of the City and County of Honolulu, the Honolulu Rail Transit project will fundamentally change how we live and do business. Transit-oriented development (TOD) will increase property values near transit stations by providing the opportunity to take advantage of frequent transit service. The project will allow an unprecedented opportunity to direct growth to Honolulu’s Urban Core (the most populated region of the state) away from agricultural, open space, and rural areas; stimulate urban renewal projects near the 21 proposed rail stations along the approximately 20-mile route; support cost-efficient, consolidated infrastructure; and increase housing affordability by reducing one of the highest costs in a Hawaii family’s budget: transportation.
This seminar will provide key insights and analysis from experts and thought leaders on policy, planning, law, and real estate market issues related to TOD.
The document discusses the nature of property estates, including surface, mineral, and groundwater estates, and the relationships between these estates. It notes that mineral estates are considered dominant and carry an implied right to use as much of the surface as is reasonably necessary. It also discusses regulatory takings cases related to groundwater regulation, noting that groundwater conservation districts can effect regulatory takings through rules that deny landowners all economically beneficial use of their groundwater. The document concludes that determining if a regulatory taking has occurred is a fact-specific analysis considering the economic impact, investment-backed expectations, and the nature of the regulation.
2015 Hawaii Congress of Planning Officials -- AICP LawJesse Souki
Presentation for American Institute of Certified Planners (AICP) law credits at the 2015 Hawaii Congress of Planning Officials (HCPO). Pleasentation includes a overview of Hawaii's State Planning Act, implementing regulations, and recent case law.
By Jesse K. Souki, Esq.
Leveraging the Honolulu Rail Transit Project for Economic Growth and Building...Jesse Souki
Presentation by Jesse K. Souki, Esq. of Imanaka-Asato LLLC on how to leverage the Honolulu Rail Transit Project for economic growth and building better communities.
Date: July 24, 2015
Place: Plaza Club 900 Fort Street Mall 20th Floor
Check-in/Networking: 11:45am-12:15pm
Lunch & Program: 12:15pm-1:30pm
Planning in the courts by Nancy Stroud, James White & David TheriaqueAPA Florida
This document summarizes two land use cases: St. John's River Water Management District v. Koontz, where the Florida Supreme Court ruled that an agency's denial of a permit based on improper monetary conditions could result in a taking; and Herrin v. Volusia County, where an administrative judge reviewed a comprehensive plan amendment for a large development under new statutory standards. It also briefly discusses Martin County Conservation Alliance v. Martin County, where an appeals court sanctioned organizations for filing an appeal without standing.
Land banks can spur brownfield redevelopment. Pennsylvania local governments are forming land banks and taking advantage of this new tool for returning underutilized and abandoned properties to productive use and the tax rolls. Land bank powers can be used to acquire, hold, assemble, and dispose of problem properties, including brownfields. Key powers: priority access to tax sale properties, sales without a formal redevelopment contract and without the need for competitive bidding. Presentation covers Pennsylvania's land bank law, key powers, implementation of the law to date, and strategies for using land banks to encourage brownfield redevelopment and economic growth. Presented at the 2016 Pennsylvania Brownsfields Conference.
Swim Drink Fish submission regarding Bill C-69LOWaterkeeper
This submission to the Standing Committee on Environment and Sustainable Development is offered to help its review of Bill C-69, which includes major transformations to the environmental assessment process as well as improvements to navigation protections.
This document summarizes key aspects of the legal and institutional framework for land use and resource development in the Philippines. It outlines the country's constitution, which establishes state ownership of natural resources, and laws governing energy development, including those allowing for foreign investment. The document also discusses important laws related to energy projects, such as those protecting indigenous peoples' rights and the environment. Overall, the legal framework emphasizes the state's control over natural resources and requirements for engaging communities and obtaining necessary permits.
The document discusses private ownership of groundwater in Texas. It begins by establishing that groundwater is considered part of the landowner's property rights similarly to how oil and gas are owned in place. The document then discusses how groundwater ownership allows landowners the right to capture a "fair share" of groundwater beneath their land to beneficial use without waste. Finally, the document argues that while landowners have property rights, reasonable regulation of groundwater is allowed under the constitution to prevent waste and achieve conservation goals, and such regulation does not automatically result in a regulatory taking requiring compensation.
This document summarizes a presentation on regulating water and air impacts from shale gas operations. It discusses the drilling, fracturing, and production processes. It then covers current federal law and regulations regarding water impacts, including EPA studies on water usage and disposal. It also discusses proposed and existing state regulations on water usage, discharge, and disposal. For air impacts, it outlines the EPA's proposed standards and regulations regarding emissions from equipment and activities at well sites.
It is horrifying that we have to fight our own government to save the environment. - Ansel Adams
The earth will not continue to offer its harvest, except with faithful stewardship. We cannot say we love the land and then take steps to destroy it for use by future generations. - John Paul II
The document summarizes Louisiana's 2012 legislative session regarding legacy lawsuits and other oil and gas issues. Key bills addressed legacy lawsuits (HB 618, SB 555), non-consent risk charges (SB 505), ultra-deep drilling (HB 504), landowner protections (HBs 853, 1037, SB 525), and hydraulic fracturing disclosure (HB 957). It also discusses CNG vehicles (HB 1213, SB 139) and EPA's new hydraulic fracturing reporting rule. Industry groups supported bills that allowed responsibility admissions, created fair risk charges, and opposed bills seen as detrimental to business.
The document provides an update on recent developments in planning and environmental law from cases heard in UK courts. Key topics covered include:
- Interpretation of policies around development in the Green Belt and assessing housing needs.
- Requirements for local authorities to demonstrate they have objectively assessed housing needs and are cooperating with neighboring authorities to address needs.
- Challenges to neighborhood plan examinations and screening of strategic environmental assessments.
- Enforcement cases regarding inspectors' powers to permit alternative development schemes.
This document summarizes important redevelopment case law from New Jersey, New York, and other states. It discusses cases such as Berman v. Parker, Kelo v. City of New London, Gallenthin Realty v. Paulsboro, and Harrison Redevelopment Agency v. DeRose. The document also discusses legislative responses to Kelo, debates around defining "blight," challenges to stated public purposes for takings, and issues of notice and property owners' ability to challenge redevelopment plans.
The document provides an overview of a lecture on environmental and natural resource protection under tribal law. It discusses how tribes have authority over natural resources on their lands through inherent sovereignty, federal statutes like the Clean Water Act, and treaties. Tribes enact laws and standards to regulate areas like air and water quality. The lecture covers tribal roles as regulators, property owners, and trustees responsible for natural resources. It also gives examples of tribal environmental codes.
Born with a Grey Beard: Canada's Navigable Waters Protection ActLOWaterkeeper
Presented at the 6th Canadian River Heritage Conference Ottawa, Ontario June 15, 2009, this paper examines the process by which the Navigable Waters Protection Act was amended, the reasons and trends behind the changes, and some of the flaws with the process. The paper suggests that fanciful notions of “navigation” and “rights” still matter in todayʼs Canada. It describes how our collective respect and understanding for the act of navigation has crumbled and how, in our hurry to “modernize” our laws, our Parliamentarians have laid the groundwork for two-tier justice and the unnecessary surrender of wealth.
Written by Krystyn Tully, Lake Ontario Waterkeeper.
This document provides a summary of recent developments in UK planning and environmental law across several topics:
- Decision making processes must ensure fairness for all parties and allow for emerging issues to be considered.
- Heritage law gives a strong presumption against harm to listed buildings and conservation areas. Environmental assessments are still required for projects with local impacts.
- Green belt boundaries and appropriate development are interpreted narrowly in England. Welsh law gives more flexibility for balanced decisions.
- Enforcement powers allow for alternative proposals that still remedy breaches. Deception directly undermining planning will not be protected by time limits.
- Strategic environmental assessments must consider reasonable alternatives and objectives, with discretion given to decision makers. Public participation is
This document summarizes permitting policies and challenges for offshore wind projects. It discusses the different permitting authorities and regulations for projects in federal waters versus state waters. It provides an overview of the current state of offshore wind development in the US, including several ongoing projects. It also outlines the transition of permitting authority between the Minerals Management Service and Federal Energy Regulatory Commission.
Several bills were introduced relating to flood planning, notification, and preparedness as well as eminent domain reform. For flood issues, bills addressed statewide planning and funding, creating notification systems for dam releases and disasters, and conducting local infrastructure studies. Reforms for eminent domain included new meeting requirements, survey notice standards, clarifying "actual progress" criteria, and allowing landowners to recover damages from adjacent easement uses.
Dennis Reynolds Legal Implications of SMP UpdateBSH Admin
This document summarizes a presentation on legal issues related to shoreline management in Washington state. It discusses requirements for local governments to update their Shoreline Master Programs according to state guidelines. It also summarizes key principles from the Shoreline Management Act, including no net loss of ecological functions, balancing private property rights and public interest, and limiting new regulations to undeveloped land. Additionally, it addresses issues like the appropriate role of critical area ordinances within shoreline jurisdiction and challenges to standardized buffer sizes.
This document summarizes key aspects of Executive Order 13690 on flood risk management standards and the Federal Flood Risk Management Standard (FFRMS) process. It outlines that EO 13690 updates previous executive orders on floodplain management to establish a new standard for defining floodplains that accounts for climate change. It notes concerns around the lack of non-governmental input, potential impacts on flood insurance rates and water projects, and questions around economic analyses. The document also lists federal agencies and external stakeholders involved in the FFRMS implementation process.
Lake Ontario Waterkeeper's submission on the Navigation Protection Act ReviewLOWaterkeeper
On Wednesday, November 30, 2016, Lake Ontario Waterkeeper submitted comments to the Government of Canada on changes made to the Navigation Protection Act (formerly, "Navigable Waters Protection Act") – one of Canada’s oldest laws. Until 2009, the law remained substantially unchanged, when sweeping changes to the legislation eliminated protections for the majority of navigable waters in Canada and focused the law on specific acts of navigation on waters of interest to the federal government. Waterkeeper was the only environmental organization to participate in the committee review prior to the 2009 changes, and again in 2012. Here are Waterkeeper's recommendations for the Standing Committee on Transport, Infrastructure and Communities’ consideration.
This case establishes that the demolition of most buildings will now require planning permission. It overturns exemptions that previously allowed demolition of buildings other than dwellings without permission. As a result, developers will need to apply for prior approval from local authorities for demolitions beyond just dwellings. They may also need to conduct environmental impact assessments if demolitions could significantly affect the environment. The Court of Appeal ruling upholds a challenge by heritage group SAVE that argued demolitions should be considered a form of development requiring permission or assessment. This is a significant judgment that will impact how local authorities regulate demolitions going forward.
This document is a complaint filed in the United States District Court for the District of Hawaii by several plaintiffs against various government defendants. The plaintiffs are seeking declaratory and injunctive relief to prevent the implementation of the Honolulu High-Capacity Transit Corridor Project, an elevated railroad, until the defendants fully comply with federal environmental laws. The plaintiffs allege the project will have significant negative impacts on historic and cultural resources, parks, schools, views, and public safety without improving traffic conditions.
Vested Rights in Condemnation-1-3.ED Semiinar 2014v4.PowerpointPaul Barkhurst
This document provides an overview of vested rights and condemnation law. It begins with a brief history of property rights dating back to Roman and English common law. It discusses key Supreme Court cases like Euclid that established zoning as a valid use of police power. It explains the difference between police power regulations and condemnation. It outlines the development of common law vested rights doctrines and later statutes in Texas like Chapter 245 of the Local Government Code that were intended to provide more certainty around vested development rights. The document provides examples of relevant case law and outlines exemptions to statutory vesting rights.
The document summarizes a presentation about redevelopment and the Port Authority of New York and New Jersey. Some key points:
1) The Port Authority was created in 1921 through an interstate compact between NY and NJ to coordinate transportation and facilities in the port district.
2) Redevelopment projects by the Port Authority can potentially compete with or complement state and local interests and powers.
3) Examples discussed include industrial development projects, the Hoboken waterfront redevelopment, and laws governing Port Authority involvement in these areas.
Planning in the courts by Nancy Stroud, James White & David TheriaqueAPA Florida
This document summarizes two land use cases: St. John's River Water Management District v. Koontz, where the Florida Supreme Court ruled that an agency's denial of a permit based on improper monetary conditions could result in a taking; and Herrin v. Volusia County, where an administrative judge reviewed a comprehensive plan amendment for a large development under new statutory standards. It also briefly discusses Martin County Conservation Alliance v. Martin County, where an appeals court sanctioned organizations for filing an appeal without standing.
Land banks can spur brownfield redevelopment. Pennsylvania local governments are forming land banks and taking advantage of this new tool for returning underutilized and abandoned properties to productive use and the tax rolls. Land bank powers can be used to acquire, hold, assemble, and dispose of problem properties, including brownfields. Key powers: priority access to tax sale properties, sales without a formal redevelopment contract and without the need for competitive bidding. Presentation covers Pennsylvania's land bank law, key powers, implementation of the law to date, and strategies for using land banks to encourage brownfield redevelopment and economic growth. Presented at the 2016 Pennsylvania Brownsfields Conference.
Swim Drink Fish submission regarding Bill C-69LOWaterkeeper
This submission to the Standing Committee on Environment and Sustainable Development is offered to help its review of Bill C-69, which includes major transformations to the environmental assessment process as well as improvements to navigation protections.
This document summarizes key aspects of the legal and institutional framework for land use and resource development in the Philippines. It outlines the country's constitution, which establishes state ownership of natural resources, and laws governing energy development, including those allowing for foreign investment. The document also discusses important laws related to energy projects, such as those protecting indigenous peoples' rights and the environment. Overall, the legal framework emphasizes the state's control over natural resources and requirements for engaging communities and obtaining necessary permits.
The document discusses private ownership of groundwater in Texas. It begins by establishing that groundwater is considered part of the landowner's property rights similarly to how oil and gas are owned in place. The document then discusses how groundwater ownership allows landowners the right to capture a "fair share" of groundwater beneath their land to beneficial use without waste. Finally, the document argues that while landowners have property rights, reasonable regulation of groundwater is allowed under the constitution to prevent waste and achieve conservation goals, and such regulation does not automatically result in a regulatory taking requiring compensation.
This document summarizes a presentation on regulating water and air impacts from shale gas operations. It discusses the drilling, fracturing, and production processes. It then covers current federal law and regulations regarding water impacts, including EPA studies on water usage and disposal. It also discusses proposed and existing state regulations on water usage, discharge, and disposal. For air impacts, it outlines the EPA's proposed standards and regulations regarding emissions from equipment and activities at well sites.
It is horrifying that we have to fight our own government to save the environment. - Ansel Adams
The earth will not continue to offer its harvest, except with faithful stewardship. We cannot say we love the land and then take steps to destroy it for use by future generations. - John Paul II
The document summarizes Louisiana's 2012 legislative session regarding legacy lawsuits and other oil and gas issues. Key bills addressed legacy lawsuits (HB 618, SB 555), non-consent risk charges (SB 505), ultra-deep drilling (HB 504), landowner protections (HBs 853, 1037, SB 525), and hydraulic fracturing disclosure (HB 957). It also discusses CNG vehicles (HB 1213, SB 139) and EPA's new hydraulic fracturing reporting rule. Industry groups supported bills that allowed responsibility admissions, created fair risk charges, and opposed bills seen as detrimental to business.
The document provides an update on recent developments in planning and environmental law from cases heard in UK courts. Key topics covered include:
- Interpretation of policies around development in the Green Belt and assessing housing needs.
- Requirements for local authorities to demonstrate they have objectively assessed housing needs and are cooperating with neighboring authorities to address needs.
- Challenges to neighborhood plan examinations and screening of strategic environmental assessments.
- Enforcement cases regarding inspectors' powers to permit alternative development schemes.
This document summarizes important redevelopment case law from New Jersey, New York, and other states. It discusses cases such as Berman v. Parker, Kelo v. City of New London, Gallenthin Realty v. Paulsboro, and Harrison Redevelopment Agency v. DeRose. The document also discusses legislative responses to Kelo, debates around defining "blight," challenges to stated public purposes for takings, and issues of notice and property owners' ability to challenge redevelopment plans.
The document provides an overview of a lecture on environmental and natural resource protection under tribal law. It discusses how tribes have authority over natural resources on their lands through inherent sovereignty, federal statutes like the Clean Water Act, and treaties. Tribes enact laws and standards to regulate areas like air and water quality. The lecture covers tribal roles as regulators, property owners, and trustees responsible for natural resources. It also gives examples of tribal environmental codes.
Born with a Grey Beard: Canada's Navigable Waters Protection ActLOWaterkeeper
Presented at the 6th Canadian River Heritage Conference Ottawa, Ontario June 15, 2009, this paper examines the process by which the Navigable Waters Protection Act was amended, the reasons and trends behind the changes, and some of the flaws with the process. The paper suggests that fanciful notions of “navigation” and “rights” still matter in todayʼs Canada. It describes how our collective respect and understanding for the act of navigation has crumbled and how, in our hurry to “modernize” our laws, our Parliamentarians have laid the groundwork for two-tier justice and the unnecessary surrender of wealth.
Written by Krystyn Tully, Lake Ontario Waterkeeper.
This document provides a summary of recent developments in UK planning and environmental law across several topics:
- Decision making processes must ensure fairness for all parties and allow for emerging issues to be considered.
- Heritage law gives a strong presumption against harm to listed buildings and conservation areas. Environmental assessments are still required for projects with local impacts.
- Green belt boundaries and appropriate development are interpreted narrowly in England. Welsh law gives more flexibility for balanced decisions.
- Enforcement powers allow for alternative proposals that still remedy breaches. Deception directly undermining planning will not be protected by time limits.
- Strategic environmental assessments must consider reasonable alternatives and objectives, with discretion given to decision makers. Public participation is
This document summarizes permitting policies and challenges for offshore wind projects. It discusses the different permitting authorities and regulations for projects in federal waters versus state waters. It provides an overview of the current state of offshore wind development in the US, including several ongoing projects. It also outlines the transition of permitting authority between the Minerals Management Service and Federal Energy Regulatory Commission.
Several bills were introduced relating to flood planning, notification, and preparedness as well as eminent domain reform. For flood issues, bills addressed statewide planning and funding, creating notification systems for dam releases and disasters, and conducting local infrastructure studies. Reforms for eminent domain included new meeting requirements, survey notice standards, clarifying "actual progress" criteria, and allowing landowners to recover damages from adjacent easement uses.
Dennis Reynolds Legal Implications of SMP UpdateBSH Admin
This document summarizes a presentation on legal issues related to shoreline management in Washington state. It discusses requirements for local governments to update their Shoreline Master Programs according to state guidelines. It also summarizes key principles from the Shoreline Management Act, including no net loss of ecological functions, balancing private property rights and public interest, and limiting new regulations to undeveloped land. Additionally, it addresses issues like the appropriate role of critical area ordinances within shoreline jurisdiction and challenges to standardized buffer sizes.
This document summarizes key aspects of Executive Order 13690 on flood risk management standards and the Federal Flood Risk Management Standard (FFRMS) process. It outlines that EO 13690 updates previous executive orders on floodplain management to establish a new standard for defining floodplains that accounts for climate change. It notes concerns around the lack of non-governmental input, potential impacts on flood insurance rates and water projects, and questions around economic analyses. The document also lists federal agencies and external stakeholders involved in the FFRMS implementation process.
Lake Ontario Waterkeeper's submission on the Navigation Protection Act ReviewLOWaterkeeper
On Wednesday, November 30, 2016, Lake Ontario Waterkeeper submitted comments to the Government of Canada on changes made to the Navigation Protection Act (formerly, "Navigable Waters Protection Act") – one of Canada’s oldest laws. Until 2009, the law remained substantially unchanged, when sweeping changes to the legislation eliminated protections for the majority of navigable waters in Canada and focused the law on specific acts of navigation on waters of interest to the federal government. Waterkeeper was the only environmental organization to participate in the committee review prior to the 2009 changes, and again in 2012. Here are Waterkeeper's recommendations for the Standing Committee on Transport, Infrastructure and Communities’ consideration.
This case establishes that the demolition of most buildings will now require planning permission. It overturns exemptions that previously allowed demolition of buildings other than dwellings without permission. As a result, developers will need to apply for prior approval from local authorities for demolitions beyond just dwellings. They may also need to conduct environmental impact assessments if demolitions could significantly affect the environment. The Court of Appeal ruling upholds a challenge by heritage group SAVE that argued demolitions should be considered a form of development requiring permission or assessment. This is a significant judgment that will impact how local authorities regulate demolitions going forward.
This document is a complaint filed in the United States District Court for the District of Hawaii by several plaintiffs against various government defendants. The plaintiffs are seeking declaratory and injunctive relief to prevent the implementation of the Honolulu High-Capacity Transit Corridor Project, an elevated railroad, until the defendants fully comply with federal environmental laws. The plaintiffs allege the project will have significant negative impacts on historic and cultural resources, parks, schools, views, and public safety without improving traffic conditions.
Vested Rights in Condemnation-1-3.ED Semiinar 2014v4.PowerpointPaul Barkhurst
This document provides an overview of vested rights and condemnation law. It begins with a brief history of property rights dating back to Roman and English common law. It discusses key Supreme Court cases like Euclid that established zoning as a valid use of police power. It explains the difference between police power regulations and condemnation. It outlines the development of common law vested rights doctrines and later statutes in Texas like Chapter 245 of the Local Government Code that were intended to provide more certainty around vested development rights. The document provides examples of relevant case law and outlines exemptions to statutory vesting rights.
The document summarizes a presentation about redevelopment and the Port Authority of New York and New Jersey. Some key points:
1) The Port Authority was created in 1921 through an interstate compact between NY and NJ to coordinate transportation and facilities in the port district.
2) Redevelopment projects by the Port Authority can potentially compete with or complement state and local interests and powers.
3) Examples discussed include industrial development projects, the Hoboken waterfront redevelopment, and laws governing Port Authority involvement in these areas.
This document provides an outline for a course on eminent domain and condemnation law. It covers topics such as the eminent domain process, calculating just compensation, trial practice and strategy, and legal resources. Key points include the constitutional and legislative authority for eminent domain, the requirement that takings be for public use and with just compensation, methods for determining property value, and defenses to the government's right to take property.
Overview of eminent domain law, including constitutional basis, necessity and public use requirements, compensation, damages, fair market value, highest and best use, appraisal methodologies, and the date of take.
The document provides an overview of the eminent domain process under Utah law. It discusses:
1) The history of eminent domain law dating back to the Magna Carta and how it is established in the US Constitution and Utah Constitution to allow the taking of private property for public use with just compensation.
2) The requirements for "public use" and "necessity" to legally take property through eminent domain.
3) The pre-litigation steps that must be taken, including reasonable negotiations with property owners and disclosure of their rights.
4) The process for filing an eminent domain lawsuit, obtaining immediate occupancy of the property, determining just compensation at trial, and entering a final judgment.
This document discusses mechanics liens and payment bonds as tools for contractors, subcontractors, and others to get paid for work performed. It provides details on who can file a mechanics lien, deadlines, notice requirements, defenses to liens, and how to bond off a lien. It also covers payment bonds, their purpose as a surety agreement to guarantee payment if the principal cannot pay, relevant statutes, notice provisions, and statutes of limitations.
Case 5.6Kelo v City of New London545 U.S. 469 (2005)Ye.docxannandleola
Case 5.6
Kelo v City of New London
545 U.S. 469 (2005)
Yes, Actually, They Can Take That Away From You
Facts
In 1978, the city of New London, Connecticut, undertook a redevelopment plan for purposes of creating a redeveloped area in and around the existing park at Fort Trumbull. The plan sought to develop the related ambience a state park should have, including the absence of pink cottages and other architecturally eclectic homes. Part of the redevelopment plan was the city’s deal with Pfizer Corporation for the location of its research facility in the area. The preface to the city’s development plan included the following statement of goals and purpose:
To create a development that would complement the facility that Pfizer was planning to build, create jobs, increase tax and other revenues, encourage public access to and use of the city’s waterfront, and eventually “build momentum” for the revitalization of the rest of the city, including its downtown area.
The affected property owners, including Susette Kelo, live in homes and cottages (15 total) located in and around other existing structures that would be permitted to stay in the area designated for the proposed new structures (under the city’s economic development plan) that would be placed there primarily by private land developers and corporations. The city was assisted by a private, nonprofit corporation, the New London Development Corporation (NLDC), in the development of the economic plan and piloting it through the various governmental processes, including that of city council approval. The central focus of the plan was getting Pfizer to the Fort Trumbull area (where the homeowners and their properties were located) with the hope of a resulting economic boost that such a major corporate employer can bring to an area.
Kelo and the other landowners whose homes would be razed to make room for Pfizer and the accompanying and resulting economic development plan filed suit challenging New London’s legal authority to take their homes. The trial court issued an injunction preventing New London from taking certain of the properties but allowing others to be taken. The appellate court found for New London on all the claims, and the landowners (petitioners) appealed.
Judicial Opinion
STEVENS, Justice Two polar propositions are perfectly clear. On the one hand, it has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation. On the other hand, it is equally clear that a State may transfer property from one private party to another if future “use by the public” is the purpose of the taking; the condemnation of land for a railroad with common-carrier duties is a familiar example. Neither of these propositions, however, determines the disposition of this case.
The disposition of this case therefore turns on the question whether the City’s development plan serves a “public purpos.
Case 5.6Kelo v City of New London545 U.S. 469 (2005)Ye.docxjasoninnes20
Case 5.6
Kelo v City of New London
545 U.S. 469 (2005)
Yes, Actually, They Can Take That Away From You
Facts
In 1978, the city of New London, Connecticut, undertook a redevelopment plan for purposes of creating a redeveloped area in and around the existing park at Fort Trumbull. The plan sought to develop the related ambience a state park should have, including the absence of pink cottages and other architecturally eclectic homes. Part of the redevelopment plan was the city’s deal with Pfizer Corporation for the location of its research facility in the area. The preface to the city’s development plan included the following statement of goals and purpose:
To create a development that would complement the facility that Pfizer was planning to build, create jobs, increase tax and other revenues, encourage public access to and use of the city’s waterfront, and eventually “build momentum” for the revitalization of the rest of the city, including its downtown area.
The affected property owners, including Susette Kelo, live in homes and cottages (15 total) located in and around other existing structures that would be permitted to stay in the area designated for the proposed new structures (under the city’s economic development plan) that would be placed there primarily by private land developers and corporations. The city was assisted by a private, nonprofit corporation, the New London Development Corporation (NLDC), in the development of the economic plan and piloting it through the various governmental processes, including that of city council approval. The central focus of the plan was getting Pfizer to the Fort Trumbull area (where the homeowners and their properties were located) with the hope of a resulting economic boost that such a major corporate employer can bring to an area.
Kelo and the other landowners whose homes would be razed to make room for Pfizer and the accompanying and resulting economic development plan filed suit challenging New London’s legal authority to take their homes. The trial court issued an injunction preventing New London from taking certain of the properties but allowing others to be taken. The appellate court found for New London on all the claims, and the landowners (petitioners) appealed.
Judicial Opinion
STEVENS, Justice Two polar propositions are perfectly clear. On the one hand, it has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation. On the other hand, it is equally clear that a State may transfer property from one private party to another if future “use by the public” is the purpose of the taking; the condemnation of land for a railroad with common-carrier duties is a familiar example. Neither of these propositions, however, determines the disposition of this case.
The disposition of this case therefore turns on the question whether the City’s development plan serves a “public purpos ...
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1. Regulatory Takings
After Knick
REAL PROPERTY AND FINANCIAL SERVICES, PART 1
2020 Virtual Bar Convention | Hawaii State Bar Association
Friday, October 16, 2020 | 9:00 AM - 12:00 PM
2. G. C. Station, 1900
G. C. Terminal Under Construction, 1912
3. New York City's
Landmarks Preservation Law
• Landmarks Preservation Commission
• May designate a building to be a “landmark” on a particular “landmark site”
• May designate an area to be a “historic district”
• Board of Estimate
• Precursor to the N.Y. City Council until 1990 Charter Amendment
• May modify or disapprove the designation
• The Owner
• May seek judicial review of the final designation decision
4. Owner Responsibility
Designated Landmark
• Keep the building's exterior “in good repair”
• Before exterior alterations are made must secure Commission approval
• Certificate of no effect on protected architectural features
• Certificate of appropriateness protection, enhancement, perpetuation, and use of the
landmark
• Certificate of appropriateness economic hardship
• May transfer development rights from a landmark parcel to proximate lots
5. Grand Central Terminal
• Owned by the Penn Central
Transportation Co. and its affiliates
• Designated a “landmark” in 1967 and
the block it occupies a “landmark site”
• Penn opposed the designation before
the Commission
• Penn did not seek judicial review of
the final designation decision
7. Air Rights in Midtown Manhattan
• 20-story office tower part of the
original design never constructed—the
structure includes columns for this
purpose
• Penn owned several buildings in the
area including Waldorf-Astoria Hotels,
the Pan-American Building
• At least 8 buildings could receive
development rights
8. Proposed Project
• In 1968, Penn entered into a 50-year lease with UGP
Properties, Inc.
• UGP was to construct a multistory office building over
the Terminal
• UGP to pay Penn $1 million annually during
construction and at least $3 million annually thereafter
• Two Proposals by Marcel Breuer
• 55-story office building, to be cantilevered above the
existing facade and to rest on the roof of the Terminal
• 53-story office building, after tearing down a portion of
the Terminal façade
• The Commission rejected the plans for the building as
“destructive of the Terminal's historic and aesthetic
features”
9. Ada Louise Huxtable
New York Times, June 20, 1968
• “Who needs it?”
• “[A]nother Pan Am Building only
221 feet from the first one and at
least 150 feet higher.”
• “It would be a monument . . . to
the awesome value of New York air
rights.”
10. State Court Challenge
• Penn claimed that the application of the Landmarks Law
• “Taken” their property without just compensation in violation of the 5th and 14th Amendments
• Arbitrarily deprived them of their property without due process of law in violation of the 14th Amendment
• January 21, 1975 and February 4, 1975, Supreme Court, New York County (J. Saypol) issued orders in favor
of Penn
• December 16, 1975, Supreme Court, Appellate Division reversed on appeal
• the restrictions on the development of the Terminal site were necessary to promote the legitimate public purpose of
protecting landmarks
• therefore that appellants could sustain their constitutional claims only by proof that the regulation deprived them of all
reasonable beneficial use of the property
• “all appellants had succeeded in showing was that they had been deprived of the property's most profitable use”
11. Grand Central Landmark Status Voided
New York Times, January 22, 1975
• “Justice Saypol did not question the
constitutionality of the city’s landmark law,
but he did find that the law’s application in
the case of Grand Central Terminal, by
preventing the bankrupt railroad from
earning income . . . , caused ‘economic
hardship’ and therefore ‘constitutes a
taking of property.’”
• “We think the public has a basic right to
protect the great buildings of the past and
we mean to fight for that right.”
–Municipal Art Society
12. Court of Appeals of New York, Affirmed
June 23, 1977
• No “taking” since the Landmarks Law
• Had not transferred control of the property to the city
• Only restricted appellants' exploitation of it
• No denial of due process
• The same use of the Terminal was permitted as before
• The appellants had not shown that they could not earn a reasonable return on their investment in the
Terminal itself
• Even if the Terminal proper could never operate at a reasonable profit, some of the income from Penn
Central's extensive real estate holdings in the area must realistically be imputed to the Terminal
• The development rights above the Terminal, which were made transferable to numerous sites in the vicinity,
provided significant compensation for loss of rights above the Terminal itself
13. SCOTUS Affirms
Court of Appeals of New York
Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978)
Justice Brennan delivered the opinion of the Court
14. Landmark Express
Jacqueline Kennedy Onassis
Amtrak NEWS, May 1978
• Charter train with 400 advocates
for the preservation of Grand
Central Terminal
• Organized by the Committee To
Save Grand Central Terminal
• The group arrived in D.C. on the
day before SCOTUS was to hear
arguments
15. Question Before the Court
• Whether the restrictions imposed by New York City's law upon appellants'
exploitation of the Terminal site effect a “taking” of appellants' property for
a public use within the meaning of the 5th Amendment
• If so, whether the transferable development rights afforded appellants
constitute “just compensation” within the meaning of the Fifth Amendment
• Footnote 25, Regulatory Takings
• “As is implicit in our opinion, we do not embrace the proposition that a ‘taking’ can never
occur unless government has transferred physical control over a portion of a parcel.”
16. The State of Landmark Laws
• All 50 States and over 500 municipalities have enacted laws
• To address two concerns
• recognition that, in recent years, large numbers of historic structures, landmarks, and areas have been
destroyed
• a widely shared belief that structures with special historic, cultural, or architectural significance enhance
the quality of life for all
• New York adopted its Landmarks Preservation Law in 1965
• Major Theme – Ensure landowners have
• a “reasonable return” on their investments
• maximum latitude to use private property not inconsistent with preservation goals
17. 5th Amendment Jurisprudence
• 5th Amendment “nor shall private property be taken for public use, without
just compensation”
• Bars “government from forcing some people alone to bear public burdens
which, in all fairness and justice, should be borne by the public as a whole”
• “ad hoc, factual inquiries” regarding “whether a particular restriction will be
rendered invalid by the government's failure to pay for any losses proximately
caused by it”
18. “Factors that Have Particular Significance”
• Economic impact of the regulation on the claimant
• Extent to which the regulation has interfered with distinct investment-backed
expectations
• Character of the governmental action
• Physical Taking – a physical invasion by government
• Regulatory Taking – public program adjusting the benefits and burdens of economic
life to promote the common good
19. Generally Not Takings by Government Action
• “Government hardly could go on if to some extent values incident to property
could not be diminished without paying for every such change in the general law”
• Government may execute laws or programs that adversely affect recognized
economic values
• Economic harm did not interfere with interests that were sufficiently bound up with
the reasonable expectations of the claimant to constitute “property”
• Instances in which a state tribunal reasonably concluded that “the health, safety,
morals, or general welfare” would be promoted by prohibiting particular
contemplated uses of land
20. Pennsylvania Coal Co. v. Mahon,
260 U.S. 393 (1922)
• Where state statute that substantially
furthers important public policies may so
frustrate distinct investment-backed
expectations as to amount to a “taking.”
• Landowner expressly reserved the right to
remove the coal thereunder
• Pennsylvania statute, enacted after the
transactions, forbade any mining of coal
that caused the subsidence
• The statute made it commercially
impracticable to mine the coal
Example of a hotel collapsed in the wake of mine subsidence in
Hazelton, PA in 1914.
21. States v. Causby,
328 U.S. 256 (1946)
• Government actions characterized
as acquisitions of resources to
permit or facilitate uniquely public
functions have often been held to
constitute “takings.”
• Direct overflights above the
claimant's land, that destroyed the
present use of the land as a chicken
farm, constituted a “taking.”
22. Is the New York City law rendered invalid by its failure to
provide “just compensation” whenever a landmark owner
is restricted in the exploitation of property interests?
No.
23. The Arguments
• Airspace above the Terminal is a valuable property interest
• Landmarks Law has deprived landowner of any gainful use of their “air rights” above the Terminal
• Irrespective of the value of the remainder of their parcel, the city has “taken” their right to this
superadjacent airspace
• Entitling to “just compensation” measured by the fair market value of these air rights
• Landmark designation is inevitably arbitrary or at least subjective
• Law is inherently incapable of producing the fair and equitable distribution of benefits and burdens of
governmental action
• Government, acting in an enterprise capacity, has appropriated part of their property for some strictly
governmental purpose
24. Court’s Analysis
Parcel as a Whole
• Simply showing that they have been denied the
ability to exploit a property interest that they
heretofore had believed was available for
development is quite simply untenable.
• “Taking” jurisprudence does not divide a single
parcel into discrete segments and attempt to
determine whether rights in a particular segment
have been entirely abrogated.
• The focus should be both on the character of the
action and on the nature and extent of the
interference with rights in the parcel as a
whole—here, the city tax block designated as
the “landmark site.”
Landmark Site
Air Rights Everything Else
25. Court’s Analysis
Character and Impact of the Law
• Significantly diminished the value of the
Terminal site is not per se a “taking”
• Decisions uniformly reject the proposition
that diminution in property value, standing
alone, can establish a “taking,” where land
use law in question is reasonably related to
the promotion of the general welfare
• A showing of diminution in property
value would not establish a taking if the
restriction had been imposed as a result of
historic-district legislation
Euclid v. Ambler Realty Co.
Remaining Value Diminished Value
26. Whether the interference with appellants' property is of
such a magnitude that “there must be an exercise of
eminent domain and compensation to sustain [it].”
No.
27. Court’s Analysis
Severity of Impact on Appellants' Parcel
• Law does not interfere in any way with the present uses of the Terminal
• Designation not only permits but contemplates that appellants may continue
to use the property
• The law does not interfere with what must be regarded as Penn Central's
primary expectation concerning the use of the parcel: “railroad terminal
containing office space and concessions”
• The law permits Penn Central to profit from the Terminal and obtain a
“reasonable return” on its investment
28. Court’s Analysis
Penn not prohibited from occupying any portion of the airspace
• Record does not show the Commission’s intention to prohibit
any construction above the Terminal
• Construction may be allowed that “would harmonize in scale, material and
character with [the Terminal]”
• Appellants have not sought approval for the construction of a smaller
structure
29. Court’s Analysis
Penn not denied all use of pre-existing air rights
• Air rights are made transferable to at least eight parcels in the vicinity of the
Terminal
• New York courts here supportably found that, at least in the case of the
Terminal, the rights afforded are valuable
• The rights mitigate whatever financial burdens the law has imposed on
appellants and, for that reason, are to be taken into account in considering
the impact of regulation
30. Conclusion and Holding
• The application of New York City's Landmarks Law has not effected a “taking” of appellants'
property
• The restrictions imposed are substantially related to the promotion of the general welfare
• The law not only permit reasonable beneficial use of the landmark site but also afford appellants
opportunities further to enhance not only the Terminal site proper but also other properties.
• FN 36, Taking if Ceases to be Economically Viable
• “We emphasize that our holding today is on the present record, which in turn is based on Penn Central's
present ability to use the Terminal for its intended purposes and in a gainful fashion. The city conceded at oral
argument that if appellants can demonstrate at some point in the future that circumstances have so changed
that the Terminal ceases to be ‘economically viable,’ appellants may obtain relief.”
• Affirmed.
31. The Dissent
Justices Rehnquist, Burger, and Stevens
• The City has “destroyed—in a literal sense, ‘taken’—substantial property rights of Penn Central,” . . . “a multimillion dollar loss has been imposed on appellants[.]”
• Because “not every destruction or injury to property by governmental action has been held to be a ‘taking’ in the constitutional sense . . . does not end our inquiry.”
• Nuisance Exception
• “A prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community[.]”
• “Unlike land-use regulations, appellees' actions do not merely prohibit Penn Central from using its property in a narrow set of noxious ways.”
• Burden of the Law
• The Fifth Amendment “prevents the public from loading upon one individual more than his just share of the burdens of government[.]”
• Zoning is not a taking because “the burden is shared relatively evenly and it is reasonable to conclude that on the whole an individual who is harmed by one aspect of the
zoning will be benefited by another.”
• “A taking does not become a noncompensable exercise of police power simply because the government in its grace allows the owner to make some ‘reasonable’ use of his
property.”
• “[I]t is the character of the invasion, not the amount of damage resulting from it, so long as the damage is substantial, that determines the question whether it is a taking.”
• Just Compensation
• “[J]ust compensation shall be paid, and the ascertainment of that is a judicial inquiry.”
• Cannot assume that TDR's constitute a “full and perfect equivalent for the property taken.”