January 2009

Thanks to SCOTUSblog for posting the cert petition, filed on January 5, 2008, in Navajo Nation v. United States Forest Service, No. 08A368.

The petition seeks review of an en banc Ninth Circuit panel decision holding it was not a “substantial burden” on the religious exercises of Native American tribes for the Forest Service to allow a ski resort to make artificial snow on a mountain considered by the tribes to be sacred. The artificial snow is made from recycled sewage water. 

The Ninth Circuit held the Religious Freedom Restoration Act, a federal statute which requires the government to justify with compelling reasons actions which substantially burden religious exercises, does not apply.  The court held that religious exercises are only burdened under the RFRA only when a person is forced to choose between adhering to their religion and accepting a government benefit, or when civil or criminal penalties…

Continue Reading Cert Petition Asks: Does Spraying Recycled Sewage Water On A Sacred Mountain “Substantially Burden” Religious Exercise?

2008 saw no blockbuster court decisions on shoreline law, just a continuation of existing trends.

Setbacks

Shoreline setback are a “no build” zone on private beachfront property, measured from a “setback line.”  Hawaii state law establishes a minimum shoreline setback, and the four counties are allowed to establish their own (greater) setbackstandards. In 2008, Kauai enacted what one commentator described as the nation’s “most conservative” shoreline setback regulations (more here), continuing the trend of variable shoreline setbacks measured by historical erosion and accretion rates. For more, check out a U. Hawaii Law Review article on shoreline setbacks, published last year.

Public Access

Shoreline setback lines do not concern ownership, or the boundary between public beaches and private property. Theshoreline certification process under the state Coastal Zone Management Act is not supposed toaffect property rights or determine where the public may or may notaccess.  However, the two concepts continue to…

Continue Reading 2008 Land Use In Review: Shoreline Law

The Hawaii Supreme Court clarified when an agency hearing will be deemed to be a “contested case” in E & J Lounge Operating Co. v. Liquor Comm’n of the City & County of Honolulu,No. 27940 (July 29, 2008). The issue was whether, as the caption of the caseindicates, a public hearing before the Honolulu Liquor Commission was acontested case under Haw. Rev. Stat. § 91-1(5). The court also held that under the automatic approval statute, Haw. Rev. Stat. § 91‑13.5,an agency must act to grant or deny a permit application within acertain time period, but is not required to make a “legally effective”decision, at least procedurally.  Slip op. at 64-65. More here.Continue Reading 2008 Land Use In Review: Contested Cases Refined

We aren’t officially an “environmental law” blog, and when we do cover the issue, it is mostly on the periphery.  However, in 2008, we hit a couple of significant issues that had some relevance to land use law. 

First, in the U.S. Supreme Court’s first decision of the Term, Winter v. Natural Resources Defense Council, Inc.,No. 07-1239 (Nov. 12, 2008), the Court held that prior to issuing preliminary injunctions preventing the Navy from training with mid-frequency active sonar, the lower courts must balance the equities and the public interest, and that the Navy’s interest in training for deployment clearly outweighed the environmental concerns of the plaintiffs.  Why did a land use law blog care about a case involving the Navy’s useof sonar in training exercises off the California coast?  First, as weexplained here,the case is philosophically interesting because of the argumentsregarding when courts should defer to the judgment…

Continue Reading 2008 Land Use In Review: Environmental Law

I usually try to not take too seriously the headlines attached to a newspaper story or op-ed. After all, an editor — and not the reporter or op-ed author — may have written the headline, and it may be designed to grab a reader’s attention or focus on a part of the story the editor thinks important. 

But a headline should at least be in the ballpark, factually. 

However, after reading the headline in a Honolulu Star-Bulletin story on the recent Hawaii Supreme Court decision in the Kona bypass condemnations, “Suit to block highway is dismissed” I was left wondering whether there was another case going on over the Hokulia road that I didn’t know about.  Turns out no, there’s just the two, the headline just got it very, very wrong.   

First, the facts. On December 24, 2008, in County of Hawaii v. C & J Coupe …

Continue Reading Headline On Kona Condemnation Cases – Not In The Ballpark

A round up of interesting and notable zoning decisions:

  • Zoning inspectors need a warrant – The US Court of Appeals for the Sixth Circuit, in  Jacob v. Township of West Bloomfield,531 F.3d 385 (6th Cir. July 3, 2008), held that  zoning inspectorsare required by the Fourth Amendment’s search and seizure clause mustobtain a warrant if the zoning ordinance they are purporting to enforcecan lead to criminal prosecution. Full post here.
  • Zoning can regulate use of property, not ownership – In City of Wilmington v. Hill,657 S.E.2d 670 (N.C. Ct. App. 2008), the court struck down a localordinance that required the owner of a garage apartment to resideeither inthe main residence or the apartment.  When his permit to build a garageapartment was denied and he was cited for violation of the ordinance,the property owner asserted the owner-occupancy requirement was anunconstitutional regulation of his ownership of the property. The

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Continue Reading 2008 Land Use In Review: Zoning