BIO In Penn Central And Lucas Takings Case
UPDATE: SCOTUS will consider whether to hear case on Jan 8, 2021.
by Robert Thomas, Inverse Condemnation, November 30, 2020
Here's the State of Hawaii's Brief in Opposition in a case we've been following for what seems like forever.
Check it out. The State waived response, but after a whole bunch of amici filed briefs in support of a cert grant (ours included), at least one of the Justices wanted to hear its arguments in opposition.
Instead of the State's "Solicitor General" filing the brief, it hired a SCOTUS player to argue that this case isn't worth the Court's time. The need to hire the D.C. big guns with name-recognition instead of relying on the in-house lawyers who are the State's appellate experts somewhat belies any assertion that the State isn't concerned about this case.
Here are the Questions Presented as (re)framed by the BIO:
1. Whether the Ninth Circuit correctly held that Petitioner did not suffer a taking where the State rezoned Petitioner’s property because Petitioner repeatedly agreed to and failed to satisfy conditions precedent to its existing classification, and where the property retained additional economically productive uses and most of its economic value after the rezoning.
2. Whether this Court should overrule Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978)—a 42-year-old precedent it has repeatedly reaffirmed—in a record-intensive case where Petitioner is eligible only for nominal damages and despite Petitioner’s failure to propose any alternative test.
3. Whether the panel correctly held that, on the facts of this case, the State was entitled to judgment as a matter of law.
Of course we shall keep following along.
PDF: Brief in Opposition, Bridge Aina Lea, LLC v. State of Hawaii Land Use Comm'n, No. 20-54 (Nov. 25, 2020)
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Reply In Penn Central And Lucas Takings Case
by Robert Thomas, InverseCondemnation, Dec 3, 2020
Here's the Reply in Support of what we think is a very worthy cert petition, and which responds to the recently-filed BIO.
For the background of the case, check out this post ("What Constitutes a Loss"). The property owner has also summarized the situation thusly in its petition:
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[.]
Here's a summary of the Reply's arguments:
What stands out starkly in the State of Hawaii Land Use Commission (LUC)’s Brief in Opposition is its inability to discuss any of the legal issues without relying on the 9th Circuit’s usurpation of the jury’s fact finding and consequent violation of the 7th Amendment’s Re-examination Clause.
This distortion of the case starts on page 1 and continues throughout the brief. See discussions of what the 9th Circuit “found” (pp. 3, 17, 22, 24), or what “finding” the 9th Circuit made (pp. 3, 22, 24), or noting that the issues are “fact-bound” (pp. 1, 2, 4, 22, 32, 33), without acknowledging that the making of “findings” and resolution of “fact-bound” questions is the province of the jury in takings cases—as this Court held in City of Monterey v. Del Monte Dunes, 526 U.S. 687 (1999)—not the reviewing court.
Contrary to LUC’s attempt to reframe the Petition, the issue here is not whether the Court should correct the way the 9th Circuit acted under Fed.R.Civ.P. 50. That issue, in the ubiquitous words of LUC, would not be “cert-worthy.” The cert-worthy issue is whether the 9th Circuit violated the 7th Amendment by redeciding factual issues (and making credibility determinations and reweighing evidence in a manner precluded by Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150-151 (2000)) on which the jury has the decisive voice.
Beyond that overreaching by the 9th Circuit, the Petition demonstrated the legal problems in applying this Court’s directions in 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 9th Circuit purported to apply those decisions by requiring a total wipeout in value before either of them would authorize the finding of a 5th Amendment taking. If that is the law, then this Court wasted time and energy in writing those opinions and property rights are once again relegated to the status of a “poor relation” to other guarantees in the Bill of Rights. See Dolan v. City of Tigard, 512 U.S. 374, 392 (1994).
Reply at 1-2 (footnote omitted).
Stay tuned, we shall bring you developments as they happen.
PDF: Reply in Support of Petition for a Writ of Certiorari, Bridge Aina Lea, LLC v. State of Hawaii Land Use