September 2007

When does a person or organization have enough legal interest in an issue such that it can be a plaintiff in lawsuit?  Are there any systematic checks in place to keep the courts from being co-opted for political ends?  These were key issues raised by the Hawaii Supreme Court’s opinion in the “Hawaii Superferry EIS case,” Sierra Club v. State of Hawaii Dep’t of Trans., No. 27407 (Aug. 31, 2007).  This post looks at the procedural issue of “standing,” an issue that took up a majority of the court’s 104-page opinion. 

An earlier post focuses on the substantive issue of whether the State DOT erred when it determined that improvements to Maui’sKahului Harbor necessary to the Superferry’s Maui operation were within the categorical administrative exemptions tothe Hawaii Environmental Policy Act, Haw. Rev. Stat. ch. 343,and therefore no Environmental Assessment was necessary.Continue Reading ▪ Superferry EIS Case Summary pt. II: Throwing Open The Barn Door After the Horses Have Been Let Out

The Maui Vacation Rental Association has sued the County of Maui, the county Planning Director, and the Department of Planning in federal court in Honolulu for constitutional and other violations, seeking declaratory and injunctive relief.  The complaint summarizes the claims:

This is an action for injunctive and declaratory relief against defendants, and each of them, for their conduct in dealing with the owners of property being used as Transient Vacation Rentals in the County of Maui. Plaintiff alleges procedural and substantive due process and equal protection violations, equitable estoppel, breach of express and implied contract. Plaintiff also alleges municipal liability for failure to adequately train and supervise entity employees, and for the maintenance of illegal customs and policies, both of which cause and allow constitutional violations of procedural due process, substantive due process, equal protection, and deprivation of honest government services, in violation of the Fourth, Fifth and Fourteenth Amendments…

Continue Reading ▪ Maui Sued in Federal Court for Vacation Rental Policies

You can read the court’s Findings of Fact, Conclusions of Law, and Order here.

I won’t be commenting on this decision since my colleagues Ken Kupchak, Mark Murakami and I are the attorneys for the property owner, but the statement of the family that owns the land is below.

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Circuit Judge Ronald Ibarra has decided in favor of a local Kona family, ruling that the County of Hawaii illegally sold its power of eminent domain to Scottsdale, Arizona-based luxury developer Hokulia.  In the County-Hokulia Development Agreement, the County allowed Hokulia to control what property would be seized, permitted Hokulia’s lawyers to threaten the Richards Family and its neighbors, and forced the County to bring lawsuits against its own citizens to take their property. 

The court ruled that the County-Hokulia Development Agreement violated state law because it illegally transferred the County’s power to take the property

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Continue Reading ▪ Court Strikes Delegation of Eminent Domain and Reimbursement to Private Party

New Jersey Eminent Domain Blog posts “Eminent Domain, Fifth Amendment Property Rights, and Government Retaliation” about last Term’s US Supreme Court decision in Wilkie v. Robbins:

But what makes Wilkie particularly troubling is the clearpattern of harassment against Robbins by the BLM over the course offive years. While the alleged violations by BLM employees againstRobbins have administrative and state court remedies, the problemremains that these could only be pursued piecemeal, at the greatexpense of time and money by the property owner.

. . .

The question remains: Where does an aggrieved citizen like Robbins seekredress? Administrative and state judicial actions for individualincidents are a far from satisfactory remedy. However, this isprecisely what the Court suggested, and it is consistent with theCourt’s decision in San Remo Hotel L.B. v. City and County of San Francisco,125 S.Ct. 2491 (2005). The message is clear: A property owner must seekrelief…

Continue Reading ▪ More on Wilkie v. Robbins – Where to go When Government Goes Wild

The “Daily Dish” blog at the Honolulu Advertiser poses an intriguing question: “Should anyone own the beach?”  The issue, however, isn’t about beach ownership, but rather restriction of access to publicly-owned beaches via private roads:

This past August a group of homeowners in Kailua installed a 6-foottall gate — with a combination lock! — at the end of their private roadto stop people from using the right-of-way to the beach.

Naturally,this has infuriated a collection of Kailua residents, surfers andbeachgoers who are fed up with wealthy homeowners restricting access toa beach everyone should be able to enjoy.

The comments posted are worth reading, if only to get a feel for how the issue — and the law — is perceived — and often mistakenly applied.  Many beachfront property owners are not (contrary to common perception) “wealthy homeowners” intent on claiming public beaches as their own.  Many are…

Continue Reading ▪ Beach “Ownership” and Access Over Private Property

Thanks to Professor Gideon Kanner at Gideon’s Trumpet for pointing out a recent important eminent domain case from the Court of Appeals of Washington (state), HTK Mgm’t, L.L.C. v. Rokan Partners, No. 58113-9-I (Wash. Ct. App., July 23, 2007).  The court summarized the case:

The power of eminent domain is an inherent power of the state and redelegations of that power to private parties are invalid.  Here, the Seattle Monorail Project agreed to assign its rights in an uncompleted condemnation proceeding to a private party.  Because the Seattle Monorail Project did not have the power to make such an assignment, and because the Seattle Monorail Project’s actions evidenced its intent to abandon the condemnation proceedings, we affirm the trial court on this issue.

Opinion posted here, Professor Kanner’s thoughts here.Continue Reading ▪ Eminent Domain Power Can’t Be Delegated to Private Party

What purpose is served by the Legislature providing for an environmental assessment “exemption” if there are always exceptions to the exemption? 

That is the question raised by the Hawaii Supreme Court’s opinion in the “Hawaii Superferry EIS case,” Sierra Club v. State of Hawaii Dep’t of Trans., No. 27407 (Aug. 31, 2007).

This post looks at the substantive issue in the case — whether DOT erred when it determined that improvements to Maui’s Kahului Harbor were within the categorical administrative exemptions to the Hawaii Environmental Policy Act, Haw. Rev. Stat. ch. 343, and therefore no Environmental Assessment was necessary. The Hawaii Supreme Court held DOT was wrong, and the improvements were not exempt.  The issue of “standing” took up a majority of the court’s opinion, and I deal with that issue in this post.

I won’t go into a blow-by-blow outline of the court’s reasoning, which…

Continue Reading ▪ Superferry EIS Case Summary pt. I: Do Statutory Exemptions Mean Anything?

In a case that illustrates the lengths a court will go to avoid dealing with the merits of a takings challenge, the Ninth Circuit in Equities Lifestyle Prop., Inc., v. County of San Luis Obispo (No. 05-55406) (Sep. 17, 2007), held that the plaintiff was both too early (not yet ripe under Williamson County) and too late (missed the statute of limitations).  In that opinion, the Ninth Circuit affirmed the dismissal of a challenge to a voter-approved mobilehome “rent stabilization” (rent control) ordinance.  The court ruled:

  • Standing: the county challenged the ability of the plaintiff to bring suit because it did not have “title ownership” of the mobilehome park.  The court held that pecuniary injury, not title ownership is the key to standing, and allowed the suit to proceed.
  • Takings: the court rejected the “as applied” takings challenge on Williamson County grounds because the plaintiff had not availed itself

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Continue Reading ▪ Ninth Circuit: No Takings and Due Process Challenge to Cal. Rent Control Ordinance

Interesting item in today’s Advertiser “Bureaucracy Buster” column, where a reader asks whether streams are “public property” —

Q. I was walking in a stream and was told by a security guard that the stream was private property as well as all the land surrounding and I could not be in it.

It was my understanding that Hawai’i streams are public property and the public can be in them. What is the law?

The response correctly notes the answer is “no,” that Hawaii streams are not like beaches and can be privately owned.  Worth a read.Continue Reading ▪ Streams as “Public” Property

There’s an interesting discussion going on over at Professor Patty Salkin’s Law of the Land blog about a recent Ohio appeals court decision applying Lingle v. Chevron USA, 544 U.S. 528 (2005). 

Lingle didn’t get rid of the “substantially advance” test, it merelyrelocated it to due process, and reminded us that in thosecircumstances where there is not a per se taking by wipeout of“beneficial” use (Lucas) or an occupation (Kaiser Aetna, Loretto),courts go back to Penn Central where no factor appears to bedispositive. So even if there is some value or use left in the land,Penn Central could allow for a finding of a taking, depending on thecircumstances of the case and how the other elements factor into thecalculus.

The opinion in Boice v. Village of Ottawa Hills (No. L-06-1208) (Aug. 31, 2007) is posted here.Continue Reading ▪ Ohio Court Applies Lingle and Penn Central