Hawaii Reporter posts “Kauai Springs: Still Open for Business,” a story about the injunction preventing the County of Kauai from shutting down the island’s only drinking water company while its appeal is pending. Full story here.Continue Reading ▪ More on Kauai Springs Zoning Permit Injunction
▪ Government’s Creative Assault on Property Tax Relief
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
▪ Preliminary Injunction in Kauai Zoning Permit Case
A 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
▪ More on Kauai Zoning Permit Case
The Star-Bulletin also reports on the Kauai Springs litigation, a case challenging the Kauai Planning Department’s denial of a request to use land zoned “Agriculture” on grounds wholly outside its authority or jurisdiction:
The lawyer for Kauai Springs, however, said that water is a food like any other agricultural product and that closing down an agricultural business for commercially selling its product is ludicrous.
Robert Thomas, an attorney with Pacific Legal Foundation[*] representing Kauai Springs, said last week that the commission made a hasty decision, overstepped its bounds and made a decision on water rights, not land rights.
Both the state Public Utilities Commission and the State Commission on Water Resource Management wrote letters to the county, saying the company had met all their criteria.
Full story here. [*Note – one correction: I’m representing Kauai Springs in my private capacity, and Pacific Legal Foundation is not presently involved.] Continue Reading ▪ More on Kauai Zoning Permit Case
▪ Kauai Zoning Permit Case Reported
Kauai’s newspaper, in a story entitled “Kauai Springs operating for now,” reports on a case:
“We’re in a holding pattern,” said Robert Thomas, an attorney with Damon Key Leong Kupchak Hastert representing Kaua‘i Springs.
In March, Kaua‘i Springs appealed the Planning Commission’s decision to deny its request for a use permit, special permit and Class IV Zoning permit.
The company had requested the additional permits after a competitor complained that it was conducting industrial activity on agricultural lands, according to Thomas.
When owner Jim Satterfield set up shop in 2004, he did so with county, state and federal approval.
Thomas said that while his client did not agree that more permits were necessary when the issue came up earlier this year, he decided to pursue them because there had not been problems in the past.
Full article here.Continue Reading ▪ Kauai Zoning Permit Case Reported
▪ Amicus Brief in Accretion Appeal: Heads, the State Wins; Tails You Lose
Today, I filed an amicus brief (750k pdf) in the appeal regarding “Act 73,” the state statute (codifed here and here) which declared that shoreline land naturally accreted belongs to the State of Hawaii and is public property.
Act 73 overturned the age-old rule of shoreline accretion and erosion, which held that beachfront owners lose ownership of land when it erodes, but gain it when it accretes. Instead of these balanced rules, Act 73 made the erosion/accretion equation one-sided: the State wins every time.
The trial court held that Act 73 was unconstitutional and violated the Hawaii takings clause, article I, § 20 of the Hawaii Constitution. The court enjoined enforcement of the Act, and the State appealed to the Hawaii Intermediate Court of Appeals. My brief deals with two points:
First, the right to future accretions is property protected by the Hawaii and U.S. Constitutions from
Continue Reading ▪ Amicus Brief in Accretion Appeal: Heads, the State Wins; Tails You Lose
▪ What is “Developed” Property?
The Washington (state) Supreme Court, in Sleasman v. City of Lacey (No. 77590-7, Feb. 8, 2007), decided what it means to have a developed parcel. Actually, the court determined what the terms “undeveloped” and “partially developed” mean within the context of a local ordinance that regulates tree removal on such property. The opinion is a good primer on what it means to own “developed” vs “undeveloped” property, even though it is Washington law-specific, since it discusses decisions from other jurisdictions. Bottom line, according to the court, is that development takes place when the owner makes raw land suitable for residential or commercial use. Best line in the opinion is the last, however:
Lacey claims attorney fees under RCW 4.84.370 as a prevailing party. But it isn’t.
If only all court opinions were that direct.Continue Reading ▪ What is “Developed” Property?
▪ It Ain’t Over ‘Til It’s Over: Transcript of Argument in Attorney’s Fees Case
The transcript of the oral argument in Sole v. Wyner (No. 06-531) (docket listing here) has been posted on the SCOTUS web site here. That case presents the issue of whether a party who wins apreliminary injunction — but ultimately loses the case — has”prevailed” under a federal statute that allows a “prevailing party” to collect its legal fees and costs from the other side when federal civil rights are vindicated by an action pursuant to 42 USC § 1983.
That case arose in the First Amendment free speech context, but the decision will be important to property owners and regulatory authorities since the Fifth and Fourteenth Amendment’s property protections are federal civil rights, and 42 USC § 1983 is often the vehicle by which these rights are protected. Background on the case here, and (from SCOTUSblog) here.
The colloquy between the Justices and
Continue Reading ▪ It Ain’t Over ‘Til It’s Over: Transcript of Argument in Attorney’s Fees Case
▪ HAWSCT: Venue in Declaratory Actions on Legality of Agency Rules is Jurisdictional
In Hawaii Home Infusion Assoc. v. Befitel, (No. 27256, Apr. 16, 2007), the Hawaii Supreme Court held that the venue provisions in the declaratory judgment section of the Hawaii Administrative Procedures Act, Haw. Rev. Stat. § 91-7, are jurisdictional, and such actions must be brought in the judicial circuit in which the petitioner is domiciled.
The critical language is set forth in the statute, which allows “any interested person” to seek a judicial declaration that an agency’s rules are illegal:
§ 91-7 Declaratory judgment on validity ofrules. (a) Any interested person may obtain a judicial declaration as tothe validity of an agency rule as provided in subsection (b) herein by bringingan action against the agency in the circuit court of the county in whichpetitioner resides or has its principal place of business. The action may bemaintained whether or not petitioner has first requested the agency to
▪ Federal Circuit Arguments on the Penn Central Factors (mp3)
Oral arguments in Cienega Gardens v. United States (Fed. Cir. No. 06-5051, Apr. 2, 2007), a case involving the application of the Penn Central ad-hoc test for regulatory takings, have been posted in two parts on the Federal Circuit’s web site: part 1 (68mb mp3), and part 2 (7mb mp3).
Also posted is the oral argument in the related case, Chancellor Manor v. United States (Fed. Cir. No. 06-5052, Apr. 2, 2007) here (39mb mp3).Continue Reading ▪ Federal Circuit Arguments on the Penn Central Factors (mp3)