2007

Registrations are still being accepted for the upcoming Advanced Land Use and Zoning in Hawaii seminar, taking place on Wednesday, January 17, 2007. 

We will cover a variety of topics.  I’m presenting an update on US and Hawaii Supreme Court decisions from the last year including the Clean Water Act jurisdiction case, and an update on vested rights and development agreements.  My Damon Key colleagues are presenting sessions on shoreline law, the latest in environmental impact statement requirements, the ins-and-outs of rockfall liability, and an update on land use litigation procedures.  Paul Schwind will present an update on legislative developments.  View course details, the complete agenda, and registration information here.Continue Reading ▪ Still Time to Register for Advanced Land Use Seminar

I’ve posted discussion materials for the upcoming HSBA Natural Resources Section talk on the post-Rapanos landscape.  All documents are in pdf format.  Caution: a couple of files are large, and may take a while to download.

If you have any questions you want discussed at the session, please email me.

Continue Reading ▪ HSBA Natural Resources Section Rapanos Discussion Materials

On Christmas Eve 2006, the Honolulu City Council approved a $4B+ “fixed guideway” mass transit system to run from somewhere in West Oahu to somewhere in town.  The nature of the system has not been selected (rail, busway, something else), nor has the route.  But in January 2007, a half-percent increase in the general excise tax became effective, the proceeds from which are earmarked for the transit system.  City officials say it’s a “go.”

I’ve made a few comments about the impact of a mass transit project on property owners (here, here, here, and here), but it is too early in the process to note any concrete legal developments.  I’ve included the fixed guideway story in 2006’s land use highlights, however, since I suspect the legal issues will loom larger and larger as the project — the largest public works project in Hawaii’s history — moves forward. 

      

Continue Reading ▪ 2006 Land Use in Review: “Fixed Guideway” System Approved

The most recent case involving the long-standing controversy over the Waiahole Ditch, In re Water Use Permit Applications, ___ Haw. ___, 147 P.3 836 (Nov. 29, 2006) was not the usual blockbuster opinion or the latest in water rights, interim instream flow standards, and the public trust doctrine.  Indeed, it was an unsigned per curiam decision.  But I have included it within 2006’s highlights simply because it illustrates the new appellate procedures in Hawaii state courts. 

Until the new procedures which became effective in July 2006, Hawaii state court cases had a unique appellate track.  After a trial court entered judgment, all appeals were made to the Supreme Court of Hawaii, which then assigned cases to the Intermediate Court of Appeals.  If a litigant was not satisfied with the decision from the ICA, she could seek review in the Supreme Court by way of an application for a discretionary writ of certiorari.  Most cases, however, were not assigned from the Supreme Court to the ICA, and the high court routinely disposed of most appeals.  The “up-then-down” procedure was unwieldy and an anachronism, a leftover from the days before the legislature created the ICA, and all appeals were straight to the Supreme Court.  The procedure also was a factor in creating a backlog of appeals on the Supreme Court’s docket.

In July 2006, however, new jurisdictional statutes became effective, resulting in the ICA having primary appellate jurisdiction over all appeals, with the Supreme Court retaining discretionary certiorari review. 

Apparently, however, the drafters at the legislature did not catch all of the language regarding appellate jurisdiction scattered throughout the Hawaii Revised Statutes.  For example, the Water Code still states that appeals from contested case decisions by the Commission on Water Resource Management are made “directly to the supreme court.”

After CWRM issued (yet another) order in the contest over the water in the Waiahole Ditch in July 2006, a party noticed its appeal on August 11, 2006 with the Supreme Court, even though the new appellate structure had become effective the month before.  Understandable, for considering the plain language of the Water Code, what else should the litigant have done?

The Supreme Court ordered the case transferred to the ICA, holding that the legislature’s failure to amend the Water Code language was merely an oversight since it amended fifth-three other sections in the statute books relating to appellate jurisdiction, and that the legislature no doubt intended to amend the Water Code as well.  Lesson?  File all appeals with the ICA. 

It will be helpful after a few years under this system to see if the Supreme Court as a purely discretionary body experiences a shrinking of its docket, and a speedier process from filing to disposition.  It would be helpful to those of us who practice appellate law, for example, to establish criteria for when a decision by the ICA is “certworthy” and likely to be reviewed by the Supreme Court.  Hawaii has only one ICA, so there are no circuit or district “splits.”  If the Supreme Court is simply to be yet another level of appellate review for dissatisfied litigants without clear standards for when it would be worthwhile to seek review, why does anyone think this will significantly decrease the court’s workload?

    
Continue Reading ▪ 2006 Land Use in Review: New Appellate Track

The big story nationwide in property rights and eminent domain was, of course, the overwhelming negative reaction to 2005’s Kelo v. City of New London decision, which overflowed into 2006.  That reaction has manifested itself in three ways:

  • Taking up the Supreme Court’s suggestion that state law was the means to protect property from eminent domain abuse, state legislatures and local governments around the country began restricting how the condemnation power has been exercised.
  • State courts have also taken up the challenge, the biggest development in 2006 being the City of Norwood v. Horney decision from the Ohio Supreme court.  That case held that economic benefit standing alone will not support a claim of public use under the Ohio Constitution.  The court also held that a blight designation was too vague to have any legal force, and violated the Ohio Constitution.  Now, if only Mrs. Kelo and other property

…
Continue Reading ▪ 2006 Land Use in Review: Voters Nationwide (But Not Hawaii) Enact Eminent Domain Reform

VeglineOne of 2006’s bigger cases was Diamond v. Bd. of Land and Nat. Res., 112 Haw. 161, 145 P.3d 704 (Oct. 24, 2006), involving the location of the “shoreline” for purposes of determining the buildable area on an oceanfront parcel. 

There was news coverage a-plenty, and I posted more than a few comments on the case and on the coverage.  Start here, then read this, this, this, then this post.

I’d bet this case will have lasting impact, even though it was not about the public-private boundary, and only analyzed the location of the “shoreline” under Hawaii’s Coastal Zone Management Act.Continue Reading ▪ 2006 Land Use in Review: Shoreline Tales

In September, the ABA Section on Litigation (Committee on Condemnation, Zoning and Land Use) published Law and Procedure of Eminent Domain in the 50 States, a state-by-state summary of each jurisdiction’s eminent domain laws and cases.  I authored the chapter on Hawaii.

Topics covered include who hasthe power to take, sources for condemnation authority, the rules ofjust compensation, and the procedural aspects of eminent domainlitigation.

The individual state chapters, mine included, are posted for download for ABA members here.

     Continue Reading ▪ 2006 Land Use in Review: Hawaii Eminent Domain Compendium Published

Revisiting the RLUIPA issue, the Ninth Circuit held in Guru Nanak Sikh Society of Yuba City v. County of Sutter, 456 F.3d 978 (9th Cir., Aug. 1, 2006) that a local land use decision regarding a church’s proposed use of its property violated the federal Religious Land Use and Institutionalized Persons Act of 2000.  While it is not a groundbreaking case, it illustrates the competing dynamics when a church’s desires to use its property clashes with local land use rules.  My summary of the case is posted here.
     Continue Reading ▪ 2006 Land Use in Review: RLUIPA and Local Land Use

I commented upon the decision in  Hui Kakoo Aina Hoopulapula v. Bd. of Land and Nat. Res.,112 Haw. 28, 143 P.3d 1230 (Sep. 21, 2006) earlier in this post. 

This opinion, detailing when and how a contested case may be demanded, should be read together with Aha Hui Malama O Kaniakapupu v. Land Use Comm’n, 111 Haw. 14, 139 P.3d 712 (July 24, 2006) and Keahole Defense Coalition, Inc. v. Bd. of Land and Nat. Res., 110 Haw. 419, 134 P.3d 585 (May 18, 2006).Continue Reading ▪ 2006 Land Use in Review: Contesting Contested Cases

The “public trust” doctrine got a further boost in Kelly v. 1250 Oceanside Partners, 111 Haw. 205, 140 P.3d 985 (July 28, 2006). 

The public trust doctrine in its original form under Hawaii law was that the Crown or government owns title to all land below the high water mark, which is held in trust for the people for navigation and other public purposes.  In other words, land under the ocean is a public resource, and incapable of private ownership.  This doctrine has historical roots in American and English common law. 

In more recent times, that ancient doctrine was expanded when the courts, following the suggestion of influential academics, began using the doctrine to justify finding that more and more resources were subject to the trust, and therefore not private property.  While there is some debate about whether the public trust affects ownership of property subject to the trust…

Continue Reading ▪ 2006 Land Use in Review: Who Protects the Public Trust?