2012

Anyone who practices land use law is familiar with the primary jurisdiction and exhaustion of administrative remedies doctrines. These rules require courts to either dismiss claims or abstain from exercising jurisdiction unless and until an administrative agency has first developed the record and passed on the issues. If you’ve got notice of the action you claim is wrong, you must challenge that decision and seek a contested case in the agency’s review process as a prerequisite to obtaining judicial review.

The latest case from the Hawaii Intermediate Court of Appeals, Dancil v. Arakawa, No. CAAP-11-001029 (Nov. 16, 2012), presents these issues in a familiar context: the County of Maui approved a coastal zone permit allowing a Halloween party to go forward in Lahaina, and someone was against it. After the County issued the permit, the objector did not appeal that decision up through the County’s administrative appeals process within…

Continue Reading HAWICA: Third-Party Objector Must Seek Administrative Relief To Challenge Halloween Party

Believing that discretion was the better part of valor, we didn’t think there would be a challenge to the Hawaii Intermediate Court of Appeals’ opinion in Leone v. County of Maui, No 29692 (June 22, 2012). But we were wrong, and the County of Maui is going all in. 

Update Dec. 12, 2012: cert rejected.

The County has filed a cert application (remember, under Hawaii appellate procedure we don’t “petition” for cert, we “apply”) arguing that a property owner faced with the County’s refusal to even process its request for a use permitted by zoning has an obligation to appeal that refusal up the County’s administrative chain. The reason for the refusal to even consider the request was that the proposed use, while permissible as of right under applicable zoning, was inconsistent with the Community Plan designation (the same as General Plans in most other places), so the…

Continue Reading New HAWSCT Cert App: Williamson County Ripeness Requires Property Owner Change The Law

13.LULHIIt’s back! Time once again for the bi-annual Hawaii Land Use Law Conference, to be held January 17 and 18, 2013 (Thursday and Friday) at the Downtown YWCA (a very convenient venue).

Planning co-chairs Professor David Callies and Ben Kudo have once again assembled a stellar faculty and put together an agenda that covers most topics of interest.

We’ll be moderating a panel on “Development Through Exemptions – The Evolution of Reclassifications, Permitting, Land Use &Development in Hawaii: The Unintended Consequences ofan Increasingly Complex System of Regulations,” featuring panelists Linda L.W. Chow (Deputy Attorney General State of Hawaii), Oswald K. Stender (Office of Hawaiian Affairs), and Kali Watson (Hawaiian Community Development).

Two highlights of the conference:

First, Mike Berger will give the keynote presentation on our favorite topic, regulatory takings: “Taking a Critical Look at 30 Years of the Supreme Court’s Taking Jurisprudence.” Mike has taken the lead in…

Continue Reading Mark Your Calendars: 10th Hawaii Land Use Law Conference (Jan. 17-18, 2013)

Check out “Property rights take center stage in disputes over wetlands, flooding,” by Greenwire‘s Lawrence Hurley, asking whether the U.S. Supreme Court’s recent “flurry of activity” in property cases augurs a renewed interest in these issues by the Court, or is, as lawprof John Echeverria is quoted as suggesting, “serendipity.”

So far this Term, the Court has agreed to review two major property rights cases, Arkansas Game & Fish Comm’n (is government-caused flooding a taking) and Koontz (do the Nollan/Dolan limitations for land exactions apply to government demands for cash), and could grant cert in others. Lawprof Jonathan Adler suggesting this might not be a new trend, but simply “a return to the norm.”

One of the views noted in the article is ours:

In analyzing why property rights is making a comeback at the high court, some court-watchers point to an active and ideologically driven…

Continue Reading Supreme Court Again Focused On Property Cases?

Will the multi-billion dollar Honolulu rail project be halted by a federal court over a failure to adequately study the project’s possible effects on Chinatown and an old urban park/playground, or a failure to articulate the reasons why a tunnel under a major city street was rejected?

It might, but not just yet.

Today’s Order on Cross-Motions for Summary Judgment in Honolulutraffic.com v. Federal Transit Administration, No. 11-00307 (D. Haw. Nov. 1, 2012) gave some clues about whether the court would conclusively halt the project, but deferred a ruling until December.

Ninth Circuit Judge A. Wallace Tashima is hearing the case because the entire Hawaii district court bench is recused (see page 39 of the slip opinion for the reason why). In today’s order, he rejected most of the plaintiffs’ challenges to the project under three federal statutes (the Transportation Act, the Natonal Environmental Policy Act, and the National…

Continue Reading Honolulu Rail: Set Phasers On Stun

The U.S. District Court for the District of Hawaii (Circuit Judge A. Wallace Tashima sitting by designation, because the entire Hawaii district court bench is recused) has issued an Order on Cross-Motions for Summary Judgment in the federal challenge to the Honolulu rail project. 

More to follow after a chance to read it.

Our past posts on the Honolulu Rail Project: start here.

Order on Cross-Motions for Summary Judgment, Honolulutraffic.com v. Federal Transit Admin., No. 11-00307 AW…Continue Reading Fed Court: City Failed To Consider Alternatives To Rail

The three-part Penn Central test for an ad hoc regulatory taking tasks courts with evaluation of the economic impact of the regulation on the property’s use, the property owner’s distinct investment-backed expectations, and the character of the government action. Throw all of these “factors” into a pot, stir, and voila, the answer of whether the regulation goes “too far” is supposed to emerge. But try as they might, many courts don’t really have a good idea of how to apply this test, even though in Lingle, the Supreme Court affirmed that it remains the “default” analysis to evaluate most takings claims.

The latest regulatory takings opinion from the Ninth Circuit, Laurel Park Community, LLC v. City of Tumwater, No. 11-35466 (Oct. 29, 2012) is another example of a court applying the test, in this case to evaluate property owners’ claims that the enactment of a new zoning…

Continue Reading 9th Cir: No Facial Penn Central Taking In Ordinance Creating Mobile Home Zoning

We love any opinion that begins with “[t]his case’s story started in 1942…” A typical long-fact-pattern takings case, perhaps? Well, not quite. This case, which we’ve been meaning to post for a while, deals with who is entitled to intervene in a takings case.

In Wolfsen Land & Cattle Co. v. United States, No 2011-5113 (Sep. 21, 2012), the U.S. Court of Appeals for the Federal Circuit affirmed the Court of Federal Claims’ denial of a motion to intervene by an environmental organization in a takings case. In an earlier separate case, the organization and others had sued the federal government over the operation of a dam. To settle that case, the government and the organizaitons entered into an agreement that “obliged the government to release water from the dam for the purpose of restoring and maintaining fish populations downstream[.]” Slip op. at 4.

As a result of the…

Continue Reading Federal Circuit: Federal Gov’t Adequately Represents Enviros’ Rights