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Friday, July 27, 2018
Bridge Aina Lea--Next Stop 9th Circuit
By Robert Thomas @ 12:05 PM :: 4680 Views :: Hawaii County , Development, Land Use

No New Trial In Hawaii Regulatory Takings Case; Next Stop, Ninth Circuit

by Robert Thomas, Inverse Condemnation, July 25, 2018

Here's the latest in a case we've been following, a regulatory takings dispute from the Big Island of Hawaii. 

Last we reported, the jury (after deliberating for a grand total of 15 minutes) held the State of Hawaii Land Use Commission liable for a regulatory taking. But unbeknownst to the jurors, the court had already entered summary judgment for the State that the most the owner could recover as just compensation was nominal damages of $1.

The State then renewed its (denied) motion for summary judgment on liability, or alternatively sought a new trial. In this order, however, the District Court denied the motion, concluding that Aina Lea's property right was not a "limited" right even though by the time of the case it had sold some of its rights to another entity:

Even taking the State’s characterizations of the record at face value, they support, at most, the conclusion that Bridge Aina Le‘a sold two sticks out of its ownership bundle: the right to develop the property and the right to exclude DW Aina Le‘a. Even assuming that this conclusion is correct, the jury could have reasonably concluded that Bridge Aina Le‘a retained other property rights, including title to the land; the right to exclude entities other than DW Aina Le‘a; and the right to sell these residual interests. The jury, moreover, could have reasonably inferred that the reversion order diminished the value of Bridge Aina Le‘a’s residual interests. For example, if otherwise barren property cannot be developed, it is not a stretch to think that the right to exclude someone from the land is close to worthless.

Order at 9. 

There's more in the court's 74-page order -- and it is well worth a read for takings mavens -- and it is, no doubt, a preview of the State's arguments when it cross-appeals the owner's appeal to the Ninth Circuit of the $1 verdict. 

We'll cover that when those briefs are filed. Stay tuned.


PDF: Order Denying State of Hawaii's Renewed Motion for Judgment


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