Friday, July 12, 2024
Hawai'i Free Press

Current Articles | Archives

Sunday, July 19, 2020
Bridge Aina Lea Heading to US Supreme Court?
By Robert Thomas @ 12:13 AM :: 3679 Views :: Hawaii County , Land Use

New (Mike Berger) Cert Petition: "This case is the proverbial 'Exhibit A' of much that is wrong [with takings law]."

by Robert Thomas, InverseCondemnation, July 17, 2020

Here's the latest in a case we've been following for what seems like forever. This is also a fact situation that has resulted in litigation in a variety of different fora, and at times has seemed like the final exam question in a Federal Courts law school class. We wrote about this latest phase -- the issues raised by the Ninth Circuit's opinion -- in this article, even.

We won't go into the background of the case, but if you are interested, you can find out more at this post ("What Constitutes a Loss"). The property owner has also summarized the situation thusly:

The State of Hawaii zoned for agricultural use land that it knew was not viable or appropriate for such use. At the property owner’s request, it rezoned it for urban use but, after Plaintiff Bridge Aina Le‘a began developing it, the State illegally (as the Hawaii Supreme Court later held) “reverted” the land to agricultural use. A jury found this to be a 5th Amendment taking under this Court’s standards in both Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) and Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978). The Ninth Circuit reversed, in an opinion which effectively eliminates property owners’ ability to recover for temporary regulatory takings of property[.]

Today, the property owners filed this cert petition, asking the US Supreme Court to take up these Questions Presented:

1. As the Ninth Circuit’s extensive, published ruling eliminates property owners’ ability to recover for temporary property takings under any theory, and that ruling conflicts with decisions of other courts, including this Court, does this Court need to clarify the rules for recovery for temporary regulatory takings?

2. In light of the confusion in the lower courts as to the application of the Penn Central factors — to the point where it has become almost impossible for property owners to prevail on this theory — should this Court reexamine and explain how Penn Central analysis is supposed to be done — or dispensed with?

3. In light of the Ninth Circuit’s holding that almost no value loss — no matter how great — can ever establish a temporary taking under either Lucas or Penn Central, is it necessary for this Court to clarify the standards?

4. In light of Penn Central’s clear direction that cases like this are to be determined ad hoc, on their individual facts, and this Court’s approval in City of Monterey v. Del Monte Dunes, 526 U.S. 687 (1999) that takings liability be decided by a jury, do appellate courts need to stay their hands (as mandated by the 7th Amendment’s Re-examination Clause) when — as here — reviewing jury findings of fact-based takings issues, particularly when the trial judge confirmed those findings?

Counsel of record for the property owners is Michael Berger, who has an enviable track record in Supreme Court advocacy for property owners.

One to watch. Stay tuned, we shall bring you developments as they happen.

PDF: Petition for a Writ of Certiorari, Bridge Aina Lea, LLC v. State of Hawaii Land Use Comm'n, No. ____ (U.S....


TEXT "follow HawaiiFreePress" to 40404

Register to Vote


Aloha Pregnancy Care Center


Antonio Gramsci Reading List

A Place for Women in Waipio

Ballotpedia Hawaii

Broken Trust

Build More Hawaiian Homes Working Group

Christian Homeschoolers of Hawaii

Cliff Slater's Second Opinion

DVids Hawaii


Fix Oahu!

Frontline: The Fixers

Genetic Literacy Project

Grassroot Institute

Hawaii Aquarium Fish Report

Hawaii Aviation Preservation Society

Hawaii Catholic TV

Hawaii Christian Coalition

Hawaii Cigar Association

Hawaii ConCon Info

Hawaii Debt Clock

Hawaii Defense Foundation

Hawaii Family Forum

Hawaii Farmers and Ranchers United

Hawaii Farmer's Daughter

Hawaii Federation of Republican Women

Hawaii History Blog

Hawaii Jihadi Trial

Hawaii Legal News

Hawaii Legal Short-Term Rental Alliance

Hawaii Matters

Hawaii Military History

Hawaii's Partnership for Appropriate & Compassionate Care

Hawaii Public Charter School Network

Hawaii Rifle Association

Hawaii Shippers Council

Hawaii Together


Hiram Fong Papers

Homeschool Legal Defense Hawaii

Honolulu Navy League

Honolulu Traffic

House Minority Blog

Imua TMT

Inouye-Kwock, NYT 1992

Inside the Nature Conservancy

Inverse Condemnation

July 4 in Hawaii

Land and Power in Hawaii

Lessons in Firearm Education

Lingle Years

Managed Care Matters -- Hawaii

Missile Defense Advocacy

MIS Veterans Hawaii

NAMI Hawaii

National Parents Org Hawaii

NFIB Hawaii News

NRA-ILA Hawaii


OHA Lies

Opt Out Today

Patients Rights Council Hawaii

Practical Policy Institute of Hawaii

Pritchett Cartoons

Pro-GMO Hawaii

Rental by Owner Awareness Assn

Research Institute for Hawaii USA

Rick Hamada Show

RJ Rummel

School Choice in Hawaii

Talking Tax

Tax Foundation of Hawaii

The Real Hanabusa

Time Out Honolulu

Trustee Akina KWO Columns

West Maui Taxpayers Association

What Natalie Thinks

Whole Life Hawaii