hawaiioceanlaw.com

Update: Development Exactions Case

I put together a quick Legal Alert update on the West Linn Corporate Park v. City of West Linn case which is being appealed to the U.S. Supreme Court.  It will be about two weeks until we receive word if the Supreme Court agrees to hear the case.

In the meantime,

Damon Key Legal Alert: Development Exactions 10-26-2011

News Flash - SCOTUS Review Sought for Ninth Circuit Exactions Case

Just back from a talk with the Land Use Research Foundation of Hawaii.  I posted the outline of my talk earlier, but we will be watching this case, so I thought a post appropriate (bear with me - I know this is an ocean law blog, but I do practice a lot of land use).

Does a municipality have unfettered ability to condition discretionary permits for real estate development on the payment of some fee?  And if not, then does the Fifth Amendment constrain government's ability to impose such fees?

The case is West Linn Corporate Park v. City of West Linn and that is the question put to the U.S. Supreme Court.  The briefs and history below can be found at www.inversecondemnation.com, so I'll just summarize them here.

A developer sought a discretionary permit to develop a business park.  The City required several on and off-site improvements, as well as a fee of over $800,000.  The developer brought a suit in Oregon state court challenging the amount of that fee.  The City removed the case to federal court, where, after a trial, went up to the Ninth Circuit Court of Appeals, over the Oregon Supreme Court, then back to the Ninth Circuit.

The Ninth Circuit held that the constraints of Nollan and Dolan only apply to exactions of real property, ergo, since the City of West Linn was exacting personal property - cash - there was no constitutional bar to such an exaction. 

The decision conflicts with the Texas Supreme Court and the California Supreme Court, so we think it likely that the U.S. Supreme Court will take the case.  Why is this case important in Hawaii?  Many of the governmental regulatory agencies assess monetary charges for real estate development under the names of fair share, impact fee, in lieu fees.  The biggest is probably the affordable housing or workforce housing exactions.  My partner, Robert Thomas, has many posts about these exactions at www.inversecondemnation.com.

Stay tuned.

Presentation for the Land Use Research Foundation of Hawaii - Exactions of Personal Property

This morning I presented a seminar on the case of West Linn Corporate Park v. City of West Linn.  The outline of my talk at the Land Use Research Foundatiaon of Hawaii is below:

Personal Property Exactions for Discretionary Permits:
Supreme Court Considers West Linn Corporate Park v. City of West Linn

• Question:  Do the “essential nexus” and “rough proportionality” tests from Nollan and Dolan apply to exactions of personal property – in this case, cash – for discretionary land use permits?
 
• Parties:  Developer vs. City Government in Oregon

• Issue:  Municipalities seek to exact improvements, on and off-site, from developers to include infrastructure and in some instances, cash.  Does the Fifth Amendment protect personal property, i.e. cash, like it does real property, i.e. easements/access?

• Relevant background facts

-Developer owns property zoned commercial.  Developer sought to develop a corporate office park.  It applied for discretionary permits for such development and the City of West Linn required exactions, including on and off-site improvements and cash.

• Decision Below

-The Ninth Circuit found that the Fifth Amendment did not protect property owners from exactions of personal property, i.e. cash, only real property exactions.
o Note also the procedural hurdles the landowner was forced to go through; this case has been to the federal and state courts in Oregon.

• Short summary of arguments

-Developer argues that Nollan/Dolan should apply equally to exactions of personal property.  Fifth Amendment text supports this.  Supreme Court of California and Texas agree.
o City (and Ninth Circuit) say that unconstitutional conditions should only be compensable when they involve dedications of real property.

• Status of the case – Reply brief filed.  Pending SCOTUS decision to grant cert.

• Why You Should Care?

-Kamaole Point anyone?  Affordable housing requirement = personal property exaction?  If so, what is proof of nexus and proportionality?

-Impact Fees/Fair Shares?

APEC 2011 - Security Zones Draw Some Interesting Comments

One nice feature of the digital age is that it increases transparency in government. 

The "docket" for the APEC 2011 Security Zones, as created by the U.S. Coast Guard, has the ability to submit public comments.

Comments so far discuss the impact of the Waikiki security zone on beachgoers, surf schools and the like.

 

APEC 2011 - Waterside Security Zones

I've obtained graphics from www.regulations.gov and have included them below.  The Ala Wai canal one is the old version.  The regulation states that the zone continues to the northeast side of the McCully bridge.

Ocean side Waikiki:

Koolina:

Video of Hawaii-bound Cessna Ditching and Rescue

Mobile post: Yesterday, a plane bound for Hawaii from Monterey ditched. This is raw footage courtesy of the Coast Guard. http://www.liveleak.com/view?i=84f_1318088915

APEC 2011 Security Zones - Graphic Released by Coast Guard

 

Supreme Court's Busy Ocean (Kinda) Law Docket

I just saw the Petitions to Watch on SCOTUSBLOG. 

Two cases of relevance to this blog (in my humble opinion anyway):

For the Con Law wonks:  Sun v. United States.  This case arises from the federal district court in the Commonwealth of Northern Mariana Islands.  A criminal defendant challenged his criminal conviction on the basis that the trial judge was not an Article III judge, ergo the judge did not have jurisdiction to hear the case.  The Ninth Circuit summarily affirmed the conviction, finding that the judge was an Article IV judge.

For the International Law wonks:  Bowoto v. Chevron.  The petition asks the court whether American companies can be liable under the Torture Victim Protection Act, 28 U.S.C. 1350 which provides:

An individual who, under actual or apparent authority, or color of law, of any foreign nation— (1) subjects an individual to torture shall, in a civil action, be liable for damages to that individual; or (2) subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual’s legal representative, or to any person who may be a claimant in an action for wrongful death.

No surprise in this petition because the Ninth Circuit acknowledged the split of interpretation of the Death on the High Seas Act, see my earlier post here.  Stay tuned.

Coast Guard Proposes APEC 2011 Security Zones

 
U.S. Coast Guard photo

The U.S. Coast Guard announced its proposed security zones for the upcoming APEC 2011 conference in Waikiki.  The graphic wasn't available yet online, but the temporary zones will include West Waikiki, Ala Wai Boat Harbor and Canal, Ko Olina offshore and East Waikiki. While the safety rules are in place, access to these areas will be restricted to authorized personnel only.

Download the regulation at Federal Register - USCG.

Eleventh Circuit Upholds Semi-Submersible Drug Running Statute

Cocaine smugglers have taken to use semi-submersible vessels attempting to avoid detection.  The below photo is from a recent interdiction.

 
U.S. Coast Guard photo.

New criminal case from the Eleventh Circuit Court of Appeals involving the constitutionality of the semi-submersible drug trafficking statute, 18 U.S.C. 2285.  The case is United States v. Campaz-Guerrero.  The unpublished opinion can be found here.

The Eleventh Circuit upheld the constitutionality of the statute (which I have set forth below).

18 U.S.C. 2285 states:

(a) Offense.— 

Whoever knowingly operates, or attempts or conspires to operate, by any means, or embarks in any submersible vessel or semi-submersible vessel that is without nationality and that is navigating or has navigated into, through, or from waters beyond the outer limit of the territorial sea of a single country or a lateral limit of that countrys territorial sea with an adjacent country, with the intent to evade detection, shall be fined under this title, imprisoned not more than 15 years, or both.

(b) Evidence of Intent To Evade Detection.— 
For purposes of subsection (a), the presence of any of the indicia described in paragraph (1)(A), (E), (F), or (G), or in paragraph (4), (5), or (6), of section 70507 (b) of title 46 may be considered, in the totality of the circumstances, to be prima facie evidence of intent to evade detection.

(c) Extraterritorial Jurisdiction.— 
There is extraterritorial Federal jurisdiction over an offense under this section, including an attempt or conspiracy to commit such an offense.

(d) Claim of Nationality or Registry.— 
A claim of nationality or registry under this section includes only

(1) possession on board the vessel and production of documents evidencing the vessels nationality as provided in article 5 of the 1958 Convention on the High Seas;

(2) flying its nations ensign or flag; or

(3) a verbal claim of nationality or registry by the master or individual in charge of the vessel.

(e) Affirmative Defenses.— 

(1) In general.— 
It is an affirmative defense to a prosecution for a violation of subsection (a), which the defendant has the burden to prove by a preponderance of the evidence, that the submersible vessel or semi-submersible vessel involved was, at the time of the offense

(A) a vessel of the United States or lawfully registered in a foreign nation as claimed by the master or individual in charge of the vessel when requested to make a claim by an officer of the United States authorized to enforce applicable provisions of United States law;

(B) classed by and designed in accordance with the rules of a classification society;

(C) lawfully operated in government-regulated or licensed activity, including commerce, research, or exploration; or

(D) equipped with and using an operable automatic identification system, vessel monitoring system, or long range identification and tracking system.

(2) Production of documents.— 
The affirmative defenses provided by this subsection are proved conclusively by the production of

(A) government documents evidencing the vessels nationality at the time of the offense, as provided in article 5 of the 1958 Convention on the High Seas;

(B) a certificate of classification issued by the vessels classification society upon completion of relevant classification surveys and valid at the time of the offense; or

(C) government documents evidencing licensure, regulation, or registration for commerce, research, or exploration.

(f) Federal Activities Excepted.— 
Nothing in this section applies to lawfully authorized activities carried out by or at the direction of the United States Government.

(g) Applicability of Other Provisions.— 
Sections 70504 and 70505 of title 46 apply to offenses under this section in the same manner as they apply to offenses under section 70503 of such title.

(h) Definitions.— 
In this section, the terms submersible vessel, semi-submersible vessel, vessel of the United States, and vessel without nationality have the meaning given those terms in section 70502 of title 46.