July 2007

        Land-use restrictions often set neighbor against neighbor, and can be a source of considerable turmoil in otherwise tranquil communities. So it is here: Barbara Cordi-Allen and her husband John Allen (the Allens) are landowners in the Cape Cod town of Truro, Massachusetts (the Town). They own a waterfront lot and wish to improve it. They have thus far been stymied in their efforts by a series of zoning, environmental, and licensing restrictions.

         The Allens…

Continue Reading ▪ Land Use Round-up

The Honolulu Star-Bulletin reports an interesting AP story from Washington state, “A good fence makes … trouble,” about property owners whose fence on their own property has been threatened by an obscure federal agency: 

Herbert and Shirley-Ann Leu were thinking landscaping, not politics,when they built an 85-foot-long concrete wall in their back yard.

But their yard happens to run along the U.S.-Canadian border — asituation that has put the Leus in the middle of a property rightsbattle, led the Bush administration to fire its own handpicked bordercaretaker and given rise to a legal dispute over the extent ofpresidential authority.

Full story.  The property owners are being represented by my Pacific Legal Foundation colleagues, whose take on the case is posted here.Continue Reading ▪ Good Fences Make Bad Borders?

The Honolulu Star-Bulletin has posted a story on the recent Hawaii Supreme Court decision in Brescia v. North Shore Ohana (No. 27211, July 12, 2007), entitled “Rocker’s plans for Kauai home blocked.”  According to the story, it turns out the decision in Brescia also impacts a neighboring property belonging to the lead singer of the Red Hot Chili Peppers.  My thoughts on the case, minus the rockstar references, here.Continue Reading ▪ More on Brescia — The Rockstar Angle

An article about the aftermath of Kelo by two fellows from the Institute for Justice points out recent data from the U.S. Census Bureau that shows that seems to bear out the Kelo dissenters’ warning that the power of eminent domain is disproportionately laid on the minorities, lower-income, and the less-educated:

According to the data, those who live under the threat of eminentdomain consistently live on significantly fewer earnings, with a medianincome of less than $19,000 compared to more than $23,000 in nearbyneighborhoods. Twenty-five percent live at or below poverty, comparedto only 16 percent in surrounding communities.

Full article here.Continue Reading ▪ Dissenters’ Kelo Warnings Coming to Pass?

More on the Supreme Court of Hawaii opinion in Brescia v. North Shore Ohana (No. 27211, July 12, 2007).  The Court took up no less than seven points on appeal, but the most interesting to me was the analysis of the estoppel issue.

The case involved Kauai property within the coastal “Special Management Area.”  The SMA is, generally speaking, the land nearest the shoreline, as defined in Hawaii’s Coastal Zone Management Act, Haw. Rev. Stat. ch. 205A.  The CZMA established special controls for this strip of land, and the counties have authority to regulate uses within the SMA, including the location of the “shoreline setback,” which is (like other setbacks) an unbuildable zone that “sets back” structures from the shoreline.  The statewide minimum setback is established by the CZMA, but the individual counties are permitted to establish greater setbacks, which vary from county-to-county.

“Estoppel” means that…

Continue Reading ▪ HAWSCT: Estoppel and Shoreline Setbacks

Two stories in today’s Honolulu papers, “Wal-Mart fights Kauai ban on ‘big-box’ stores,” “Wal-Mart says it will fight for Kauai expansion,” contain all the buzzwords indicating a vested rights and zoning estoppel dispute may be on the horizon.  The Advertiser writes:

A recent Kaua’i County ban on new “big-box” stores shouldn’t apply to a planned expansion of Wal-Mart’s existing store to a supercenter with a full-line grocery store, according to the retailer.

Wal-Mart yesterday announced it believes its project was approved before the ban because the county approved a masterplan years ago for its 119,000-square-foot Lihu’e store that included future phases to enlarge the store up to 185,000 square feet.
. . .

The County Council in May passed an ordinance prohibiting development of any retail or wholesale establishment bigger than 75,000 square feet.

Councilman Jay Furfaro said he was surprised by Wal-Mart’s position, especially since…

Continue Reading ▪ Vested Rights/Zoning Estoppel Dispute Brewing on Kauai