2007

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

The Hawaii Supreme Court has issued an opinion in Brescia v. North Shore Ohana (No. 27211, July 12, 2007), a case discussing shoreline setbacks, due process, and vested rights.  I haven’t had a chance to read the majority opinion authored by Justice Acoba, or the concurring opinion by Justice Levinson, but will post more after I review them.Continue Reading ▪ HAWSCT: Shoreline Setbacks, Due Process and Vested Rights

I’m in court this week, so won’t be posting as much as usual.  If anything big happens, of course, I’ll post. 

But in the meantime, check out these links for your daily land use/eminent domain/property rights fix:

Continue Reading ▪ Admin note: light posting this week

To obtain a copy of the article “Arrow of Time, Vested Rights, Zoning Estoppel, and Development Agreements in Hawaii’ (published by the U. Hawaii Law Review in Feb. 2006), drop me an email, and I will email you a pdf, or send you a hard copy (tell me which).

From the article’s Introduction —

The modern land regulation and development process – particularly in Hawai`i where both the state or the local government may be involved in excruciating detail – is a complex, lengthy, expensive, and very often uncertain undertaking for any property owner desiring to exercise the fundamental right to make reasonable use of its property.  The uncertainty is compounded by the ability of the government to change the regulations applicable to property after the owner has begun planning or building but has not completed construction.  Operating within a system that is rightly or wrongly perceived as…

Continue Reading ▪ Arrow of Time: Vested Rights, Zoning Estoppel, and Development Agreements in Hawaii

Today’s NY Times is running a story, After Lobbying, Wetland Rules Are Narrowed, on the aftermath of Rapanos v. United States, the decision where a plurality of the Supreme Court decided the Corps of Engineers’ Clean Water Act jurisdictional rules were too broad.

The story’s headline and lede are off base, implying that the regulations were being “pulled back” since the “rules could lead to federal protection of isolated and insignificant swamps, potholes and ditches” —

After a concerted lobbying effort by property developers, mine ownersand farm groups, the Bush administration scaled back proposedguidelines for enforcing a ruling governing protected wetlands and streams.

(emphasis added).

Whoa, hold on a minute there, hoss. I thought that scaling back jurisdiction was the whole point of this post-Rapanos exercise. 

In that case, five Justices agreed on the result (although not the reasoning) that the then-existing Corps regulations exceeded their statutory…

Continue Reading ▪ NYT on Clean Water Act Rules After Rapanos

The Advertiser has published my commentary on Wilkie, the decision from the Supreme Court denying a comprehensive remedy for violation of property rights by federal officials. 

Little-Noticed Decision Erodes Property Rights

Imagine this: You own land, and federal officials ask you to allow the public to cross over it, but they don’t offer you anything in return. Their bargaining position is blunt: Give us the easement, or else. So you politely say, “No, thanks.” It’s your land, and the U.S. Constitution’s Fifth and 14th Amendments recognize your right to keep others off your property, even government officials.

The Fifth Amendment provides that “nor shall private property be taken for public use, without just compensation,” which means if the government wants an easement, it needs to pay for it. But an official tells you, “The federal government does not negotiate.” So instead of backing off, or purchasing the land, the…

Continue Reading ▪ Honolulu Advertiser Op-ed on Wilkie v. Robbins

In a decision out of Ohio, the US Court of Appeals for the Sixth Circuit, held in Pagan v. Fruchey, No. 04-4414 (6th Cir. June 29, 2007) that the First Amendment prohibits the government from outlawing a “for sale” sign on cars parked on a public street. 

After he was threatened with a ticket for leaving his car on a Glenwood, Ohio street with such a sign, the car’s owner brought suit in federal court for violation of his First Amendment commercial speech rights.  The question before the court was not whether the sale sign was commercial speech or whether it was constitutionally protected — the parties agreed that it was.  The issue was whether Glenwood had justified its restrictions as advancing an important regulatory objective.  Glenwood claimed that the ordinance advanced its interests in traffic safety and “aesthetics,” but the court held these were mere conclusions, and there…

Continue Reading ▪ “For Sale” Signs on Cars on Public Property