May 2007

Keepout Hat tip to May it Please the Court for alerting us to a recent decision by the Second District Court of Appeals in California, LT-WR, L.L.C. v. California Coastal Comm’n (No. B187666, May 25, 2007).

In that case, the CCC denied a property owner’s request for a permit to allow it to maintain a fence around its property and post “no trespassing” signs, among other things.  The Coastal Commission’s rationale was stunning in its audacity:

The Commission also denied the gates and signs by finding that there are ‘potential’ public prescriptive rights, that the gates are not ‘necessary’, and that the gates and signs are akin to a ‘gated community.’

Slip op. at 37.  (“Public prescriptive rights” is another way of saying that if an ownerdoes not prevent the public from traversing property for a fixed periodof time, the public may gain a permanent right to “adverse possession”of…

Continue Reading ▪ Upholding The Right to Exclude: Rare Judicial Smackdown of California Coastal Commission

“Sustainability,” “smart growth” and “transit-oriented development” are the catchwords du jour these days in Honolulu, as we anticipate the $4B+ fixed guideway mass transit project.  But from the San Francisco Chronicle comes this “cautionary tale” of a Bay Area Rapid Transit (BART) transit village gone. . .not quite right:

The basic moves are great: Three and four-story buildings filled with apartments and retail space are on busy El Camino Real instead of somewhere on the region’s outskirts. There’s a BART station next door, and 70 of the 361 apartments are reserved for lower-income residents. There’s even a Trader Joe’s, a grocery chain of cultlike status.

But this showcase of so-called smart growth comes packaged in the most generic structures imaginable, an inept cross between Stanford University and Orange County. The best thing about Solaire is that, with luck, it will be a wake-up call to other cities  —  reminding them

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Continue Reading ▪ Designing “Transit Villages” in Honolulu’s Rail Project

The US Supreme Court today granted review to an inverse condemnation case against the US government.  The issue in John R. Sand & Gravel Co. v. United States,is whether the Tucker Act’s six-year statute of limitations is ajurisdictional bar to an inverse condemnation claim.  Apparently, thegovernment on appeal did not assert that the claims were barred by thestatute of limitations.  But the court of appeals did, and dismissedbecause the statute of limitations goes to jurisdiction, and cannot bewaived. 

Whether the statute of limitations is a “jurisdictional” bar, orwhether it is waiveable is an issue for us legal wonk types, andprobably will not rile up the public one way or the other like Kelo,for example.  However, the Court’s decision should clarify an area ofprocedural law that lawyers often presume they understand the basisfor, but nearly as often do not.  (The canon being that statutes oflimitations are jurisdictional, especially in…

Continue Reading ▪ Cert Grant in Inverse Condemnation Case – Are Statutes of Limitations Jurisdictional?

Last week was a busy one — quite a few local stories about land use and property law.  Here’s a rundown:

  • “It’s a tale of 2 ridges – and 17,500 homes” — The Advertiser reports on, and contrasts, two large-scale residential projects in Central Oahu.  One of the projects, Koa Ridge, resulted in a Hawaii Supreme Court decision on the trigger points to an Environmental Impact Statement, Sierra Club v. State of Hawaii Office of Planning, 109 Haw. 411, 126 P.3d 1089 (2006), which I blogged about here. Compare this story to the next one, from Kauai, and there is the same dynamic at play: we all complain about the lack of “affordable” housing, but often complain when new housing is built because it isn’t going in the “right” place, will increase traffic, and on and on.

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Continue Reading ▪ Hawaii Land Use Roundup

Vegline The Garden Island reports that the Kauai County Council has passed a resolution purportedly designed to prevent the planting of “artificial” vegetation to expand private property onto the public beach:

The Kaua‘i County Council wants to halt the practice of beachfront owners to artificially expand their properties seaward with vegetation,

Through a resolution, five of seven council members threw their support behind a “weed-the-beach” program to remove “artificially induced vegetation.”

The council and its supporters view the legislation as a way to protect public access, but some beachfront owners have said the plantings would help deter erosion of the beach in front of their properties.

An official version of the resolution has not yet been posted on the County’s web site, but the fact that the term “artificially induced vegetation” is in quotes leads me to believe that’s the language used in the reso.  There are a couple of troubling …

Continue Reading ▪ “Artificial” Vegetation and the Shoreline Boundary

ThinkTech Hawaii, Jay Fidell’s Hawaii Public Radio program on FM89.3 KIPO, has posted both the show (20mb mp3) and the aftershow podcast (13mb mp3) of  yesterday’s “Honolulu’s Fixed Guideways – How Will The Surrounding Areas be Developed.”  I was a guest along with UH Law Professor David Callies, and Honolulu attorney and developer Vernon Woo.

Stream the show here:

And the aftershow here:

Jay led a wide-ranging discussion on legal, land use, and political issues related to Honolulu’s $4B “fixed guideway” mass transit system.  We talked about public-private development partnerships, eminent domain, transit-oriented development and other related subjects.  Jay’s final question: “if you were King, what would you do about the rail?”  Food for thought.

Honolulu City Councilperson Charles Djou and transit expert Cliff Slater also called in with their thoughts.Continue Reading ▪ Honolulu’s Rail Project: Podcast of Hawaii Public Radio Program (mp3)

A heads up: from 5 – 6 pm on Wednesday, May 23, I will be a guest on Jay Fidell’s ThinkTech Hawaii program on Hawaii Public Radio, KIPO. 

The topic? “Oahu’s Light Rail – How Will the Surrounding Areas be Developed.”   KIPO can be tuned in at FM89.3, or streaming audio is available here.  ThinkTech also posts a podcast of the show a couple of days afterwards, and I will post a link when it becomes available.

Joining me as guests will be Professor David Callies of the UH Law School, and Honolulu City Councilperson Charles Djou.  Hope you can listen in.Continue Reading ▪ Tune In, Turn On: KIPO FM89.3 Wed., May 23 @ 5pm HST

calreview

California Political Review has posted an op-ed about the Kauai real property tax appeal, currently awaiting a decision by the Hawaii Supreme Court.

Californians will recall that Proposition 13, with its promise of relief from crushing property taxation, was opposed by most of the state’s political establishment. Even after its approval by voters at the polls, various forces fought a rearguard campaign against full implementation.

But no strategy to undercut tax-limitation in California has been quite so brazen as what has happened in Hawaii, where local government officials on one island have actually sued themselves in an audacious effort to smother a voter-approved measure to aid hard-pressed homeowners. It is a reminder of how creative government can be when bureaucrats see their self-interest at risk. Government officials on the Island of Kauai evidently think the amount of property tax homeowners pay is a decision too important to be trusted…

Continue Reading ▪ Government’s Creative Assault on Property Tax Relief

Ks_ag_bldg_2A story from today’s Garden Island News, about the Kauai Springs case, reporting that the circuit court has granted the company’s request for a preliminary injunction, preventing the County from putting Kauai Springs out of business while the appeal is being considered. 

The case is the appeal by Kauai’s only bottled water company of the Kauai Planning Commission’s denial of a request for a permit to use agriculturally zoned land for a small bottling facility (pictured).  The Planning Commission denied the request because it had “concerns” that the State Commission on Water Resource Managment and State Public Utilities Commission might regulate Kauai Springs, despite the fact that both agencies expressly told the Planning Commisssion that they had no problem at all.

A state judge has verbally approved a preliminary injunction to allow Kaua‘i Springs to continue operating a water-bottling plant in Koloa as it appeals a county decision to…

Continue Reading ▪ Preliminary Injunction in Kauai Zoning Permit Case