2007

“In a democracy, the people get the government they deserve” states the old dictum.  That pretty much sums up one response to The Wall Street Journal story This Side of Paradise about the “Ohana Kauai” property tax charter amendment case.  A WSJ reader proposes: “It’s Simple: Vote Them Out.”

The need to restrain local taxation in Kauai may be compelling; butthere is another, and undiscussed, option. Vote out the recalcitrantmayor and/or governing council and replace them with officials for whomcontrolling the level of taxation is a high priority. Who knows? Facedwith the broader issues of local government, Ohana Kauai’s voters maybe able to impel all manner of improvements in local policy andadministration.

Full story here. 

He’s got a point, of course.  Removing unresponsive elected officials from their positions, either by voting for the other guy in the next election or by recall (the Kauai Charter provides…

Continue Reading ▪ Getting the Government They Deserve — “Ohana Kauai” Solution Proposed

In “How Eminent Should Domain Be?,” the NY Times writes about an official in a Westchester County town who understands the connection between property rights and constitutional rights, especially in the involuntary taking of property by the government:

The United States Supreme Court ruled in 2005 that a governmentcould use eminent domain to seize private property for economicdevelopment, including commercial uses like malls. (Some of theproperty for the new headquarters of The New York Times was acquiredthrough eminent domain.) Mr. Bianco felt the ruling was wrong, evenun-American, violating the near-sanctity of a place of one’s own. Sodid fellow townsfolk who asked him, as a member of the Town Council:“Will you ever do that?”

“Not on my watch,” he promised.

LastJanuary, he went further and engineered passage of a law barring thetown from condemning private property for commercial purposes, whileallowing it for traditional public uses, like the building of…

Continue Reading ▪ NY Times on Property Rights as Constitutional Rights

The Wall Street Journal (Sep. 1, 2007)

This Side of Paradise

By MALIA ZIMMERMAN
September 1, 2007; Page A6

KAUAI, Hawaii — The island of Kauai has long been a magnet for visitors from the mainland as well as the main island. With white sand beaches and turquoise blue water, the island on the northern edge of the Hawaiian chain looks like a picture-perfect Hollywood set.

But there is trouble brewing on this island paradise. Last month, the state’s Supreme Court declared that voters do not have the power to amend Kauai’s County Charter to bring soaring property taxes down to a manageable level. That power is to be reserved for the county’s mayor and governing council.

The ruling serves as a warning for anyone, fresh from the beach, who is tempted to buy that vacation home or retire to that ocean-front property. In Kauai, owning a slice of heaven…

Continue Reading ▪ National Spotlight on on the “Ohana Kauai” Property Tax Charter Amendment Case — Wall Street Journal: “This Side of Paradise”

A recent editorial in the Pittsburgh Tribune-Review, “Fighting Goliath,” has been brought to our attention:

Every once in a great while, government, as a land-grabbing Goliath,gets thumped by the most diminutive David, especially when the formerfails to follow its own policies.

That may cost Philadelphia $497,230 in damages, plus the plaintiffs’ legal fees.

It began when Ed and Debbie Munoz, in pursuit of the American dream,put up their New Jersey home and borrowed $1 million to buy a groceryand garden center in Juniata Park. Afterward the couple learned –secondhand through customers — that their business was in thefootprint of a planned housing development.

Complete commentary here (original posted here).  Continue Reading ▪ David Wins One Against Goliath

The Wall Street Journal posts “This Side of Paradise,” about the “Ohana Kauai” property tax Charter Amendment case, County of Kauai ex rel. Nakazawa v. Baptiste, No. 27351 (Aug. 6, 2007). 

Inthat 3-2 decision, the Hawaii Supreme Court over a vociferous dissent,held that friendly government officials have standing to manufacturelawsuits against each other to challenge a charter amendment enacted bya vote of the people, and that the Hawaii Constitution delegatesproperty tax power exclusively to “county councils.”

The Pacific Legal Foundation’s Robert Thomas stepped in, arguing the case before the Hawaii Supreme Court on Feb. 15, 2007, on behalf of four property owners. Honolulu attorney Gary Slovin, for the county, countered that allowing people to vote on taxes would create “chaos.” A few members of the County Council publicly agreed. The Hawaii Government Employees Association, fearing government jobs held by union members might be cut, issued a…

Continue Reading ▪ National Spotlight on the “Ohana Kauai” Property Tax Charter Amendment Case — Wall Street Journal: “This Side of Paradise”

Nineteen months after the briefing was completed, but only several days before the Superferry was scheduled to commence operation, the Hawaii Supreme Court issued a unanimous order, holding that the State’s decision to exempt the improvements to Kahului Harbor necessary for the Superferry’s operation from an environmental assessment was erroneous.  The Order noted that an opinion of the court would follow.  The opinion followed today. 

No real surprises, but the court’s analysis of “procedural standing” and when a court should defer to an administrative agency’s determination will make good fodder for a law review article.  Charley Foster’s summary here, and the Honolulu Advertiser’s story here.

Briefs of the parties are posted here.Continue Reading ▪ HAWSCT Issues Opinion in Hawaii Superferry EIS Appeal

  • “Public Use And Zoning Intertwined” by Professor Richard Epstein, comparing the eminent domain power and the zoning power, and how, especially after Kelo, these two powers have been melded:

Now, the tight connection between public use and zoning issues becomesclear. Any local government that uses heavy zoning restrictions courtspublic use fiascos down the road. A constitutional regime that curbedthe excesses of local zoning would give greater security of propertyrights to insiders and outsiders alike, and thus obviate the need forgovernment land grabs like Kelo. Regrettably, our Supreme Court haswashed its hands of oversight for both zoning and public use decisions.But state courts, and state legislators should work to rein in thesedangerous tendencies, which requires a stronger and more systematicdefense of private property. To get this right, we must disabuseourselves of the supposed conflict between private property and someill-defined notion of the public interest. These two are not…

Continue Reading ▪ New Articles on Eminent Domain (Kelo & Midkiff)

The Maui News reports that Maui’s “workforce housing” ordinance has been challenged:

Lawyers for a Canadian condominium developer, who is seeking to buildtwo multiunit projects in the Kamaole area, are seeking a court orderto block the county from implementing the law that the developer saysis defective.

The lawsuit alleges the housing policy adopted by the council last yearfailed to include a “close nexus” between new developments and the needfor affordable housing, is “an arbitrary, unreasonable impairment” ofproperty rights and violates due process rights.

It also charges that the county policy does not meet the standards for imposing impact fees allowed by a state law.

Complete story here.  The Maui ordinance, enacted last year, imposes a 40% to 50% affordable requirement on new housing developments. 

The Complaint for Declaratory and Injunctive Relief (filed Aug. 23, 2007) is posted here.

I also discussed the ordinance earlier here and here.  Continue Reading ▪ Nollan/Dolan Challenge to Maui’s Forty Percent Affordable Housing Exaction

Here are the briefs of the parties in the “Hawaii Superferry EIS” appeal, decided by the Supreme Court of Hawaii last week.  These should clear up any questions about what the litigation is about, and what the parties argued. 

Update: Charley Foster at Planet Kauai has posted a succinct summary of the briefs and the legal arguments, and included some thoughts about the future:

The question left wide open – and that will definitely find its wayback into the courts – is what will be the scope of an environmentalassessment. The state and Superferry will argue that it ought to belimited…

Continue Reading ▪ Superferry EIS Appeal: Hawaii Supreme Court Briefs