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Bridge Aina Le'a, LLC v. Hawaii Land Use Commission
Paid petition · United States Court of Appeals for the Ninth Circuit, No. 18-15738, 18-15817 · judgment February 19, 2020
Before the decision, about 1.5× the 4.1% base rate. The model weighted this up for a Ninth Circuit decision below, a circuit split argued in the petition, and a dissent in the court below (flagged in the petition), and down for a state or local-government respondent.
Questions presented
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, raising these questions:
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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?
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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?
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In light of the Ninth Circuit’s holding that almost no value loss — no matter how great — can
Counsel of record
For petitioner
Michael M. Berger
Manatt, Phelps & Phillips, LLP
For respondent
Neal Kumar Katyal
Milbank LLP
Case
Conference history
Distributed for 5 conferences
Amicus briefs
6 cert-stage
Argument & decision
Decided February 22, 2021.
Proceedings
- Feb 22 2021Petition DENIED. Justice Thomas, dissenting from the denial of certiorari. (Detached Opinion)
- Feb 12 2021DISTRIBUTED for Conference of 2/19/2021.
- Jan 19 2021DISTRIBUTED for Conference of 1/22/2021.
- Jan 11 2021DISTRIBUTED for Conference of 1/15/2021.
- Jan 04 2021Rescheduled.
- Dec 09 2020DISTRIBUTED for Conference of 1/8/2021.
- Dec 02 2020Reply of petitioner Bridge Aina Le'a, LLC filed.
- Nov 25 2020Brief of respondent Hawaii Land Use Commission in opposition filed.
- Oct 26 2020Brief amicus curiae of Center for Constitutional Jurisprudence filed.
- Oct 02 2020Motion to extend the time to file a response is granted and the time is extended to and including November 25, 2020.
- Sep 30 2020Motion to extend the time to file a response from October 26, 2020 to November 25, 2020, submitted to The Clerk.
- Sep 24 2020Response Requested. (Due October 26, 2020)
- Sep 09 2020Blanket Consent filed by Respondent, Hawaii Land Use Commission
- Aug 21 2020Brief amici curiae of National Association of Home Builders, et al. filed. (Distributed)
- Aug 21 2020Brief amicus curiae of Owners' Counsel of America, National Association of Reversionary Property Owners, NFIB Small Business Legal Center, Reason Foundation, and Professor Shelley Ross Saxer submitted.
- Aug 21 2020Brief amicus curiae of Matteoni, O'Laughlin & Hechtman submitted.
- Aug 20 2020Brief amici curiae of Pacific Legal Foundation, et al. filed. (Distributed)
- Aug 20 2020Brief amici curiae of Four Takings Scholars filed. (Distributed)
- Aug 19 2020DISTRIBUTED for Conference of 9/29/2020.
- Aug 14 2020Waiver of right of respondent Hawaii Land Use Commission to respond filed.
- Jul 17 2020Petition for a writ of certiorari filed. (Response due August 21, 2020)