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Charley Foster at Planet Kauai has written up the details of the Superferry TRO hearing on Kauai.  Check it out.

Update: Here’s his detailed report.  The critical issues appears to be the 120-day statute of repose to institute challenges under Haw. Rev. Stat. § 343-7(a):

The plaintiffs seemed to view themselves as essentially in the same position as the Sierra Club in its recent successful injunction motion on Maui. However the court expressed its doubts and pointed out that, unlike the plaintiffs here, the Sierra Club filed an objection to the exemption granted Superferry by HDOT two and a half years ago and within the 120-day period required under section 343 of HEPA. Judge Valenciano pointed out that the supreme court’s decision made special mention of this fact – explicitly placing the event triggering the clock on this time limitation back to the grant of the exemption…

Continue Reading ▪ Planet Kauai Blogs the Kauai Superferry TRO Hearing

Ks_ag_bldg_2A 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

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’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

Rapanos v. United States, 547 U.S. ___ (Jun 19, 2006) was this year’s big environmental case from the U.S. Supreme Court, yet it did little to resolve the question over the geographic scope of “navigable waters” as used in the Clean Water Act.  The CWA requires a property owner seek a permit from the Army Corps of Engineers prior to any activity that may involve “navigable waters of the United States.”  The facts of the case are set out here.

The Court split 4-4-1, holding to overturn the decision of the Corps to require a Michigan landowner to seek a permit, but could not agree on a rationale.  The plurality decision left most commentators scratching their heads, unsure of what the rule of law was in the wake of the decision, and how to apply a ruling on which there was no majority opinion.  As in last…

Continue Reading ▪ 2006 Land Use in Review: Clean Water Act Jurisdiction

“Man bites dog” story of the day: Kauai developer to require ag use on ag land. It’s a different twist since most of the controversy regarding “farm dwellings” and ag uses these days goes in the other direction:

The developers of the Kealanani agricultural subdivision hope to break a tradition in which agriculture-zoned lots are sold as country estates with little if any assurance that agricultural production will take place.

Their goal: to sell view lots for premium prices, but to come as near as possible to an ironclad requirement that owners farm on the property.

. . . .

The developers clearly are trying to break the image of “agricultural subdivision” as code for “rich-folks’ estates.” Thus far, their project has generated virtually none of the rancor that has attended projects like the Big Island’s Hokuli’a. At one point, that project was halted by a court order that said it was actually an illegal use of lands earmarked by the state for agriculture.

A settlement in the case eventually allowed the project to continue, but for critics, the development remains an illustration of the so-called “fake farms,” large homes built on agricultural lands where only nominal farming is done in a show of conforming to a state requirement that homes on agricultural lands must be “farm dwellings.”

The Kealanani development’s owners association will have the ability to fine owners who fail to fulfill their agricultural commitments, Kyno said.

The enforcement mechanism will presumably be restrictive covenants (CC&Rs), but this project should not raise the Act 5 issue, which is designed to invalidate CC&Rs that prohibit (not require) ag uses on ag lands.  More on ag subdivisions, CC&Rs, and Act 5 here.

     Continue Reading ▪ Man Bites Dog: Ag Uses to be Required on Ag Land

an earlier version of this post was published in Hawaii Agriculture magazine (July – September 2006)

Hawaii law protects the “right to farm.”  But what exactly does that mean? 

In addition to the Right to Farm Act detailed here, the Hawaii Legislature recently outlawed certain agriculture-restrictive deed restrictions known as “conditions, covenants, and restrictions,” or CC&Rs. 

Ag-restrictive CC&Rs

Use of land within many so-called “agricultural subdivisions” is governed by CC&Rs which limit or restrict otherwise legal agricultural uses.  CC&Rs have been characterized as “private zoning,” because they represent a private agreement among neighboring landowners to mutually restrict the otherwise legal uses of their land. 

For example, ag-restrictive CC&Rs may restrict crop height or prohibit more than a certain number of animals on a parcel, despite these uses being perfectly permissible in an Agriculture district. 

Act 5

Overriding Governor Lingle’s veto, the 2003 Legislature enacted Act 5 (now codified here) and outlawed CC&Rs that restrict “agricultural uses and activities” on land classified “Agriculture,” if the CC&Rs were created after July 8, 2003, the effective date of the Act. 

The definition of “agricultural uses and activities” is somewhat different than the definition of “farm operation” in the Right to Farm Act, but does cover a broad range of activities.

Protected agricultural uses include crop cultivation, orchards, farming, animal husbandry, ranching, aquaculture, forestry, wind energy generation, and accessory uses.  A more detailed list of protected activities is set out in the State Land Use Law.

The only ag-restrictive CC&Rs allowed are those that protect environmental or cultural resources, agriculture leases, or utility or access easements.  Act 5 also permits the counties to enact further limitations under their zoning power, but no county has yet done so.

“Voidable” not “Void”

Act 5 makes ag-restrictive CC&Rs “voidable,” not “void.”  What this means is that if a community association or neighboring landowner attempts to enforce an ag-restrictive CC&R, it is not automatically invalid and the farmer must properly assert Act 5 as a defense. 

In other words, if Act 5 is applicable, care must be taken to insure that the farmer does not inadvertently waive Act 5’s protections. 

Finally, what if a deed contains ag-restrictive CC&Rs that were agreed to before July 8, 2003?  If that’s the case, the Act 5 defense may not be available.  The Legislature avoided constitutional problems of interfering with existing agreements and property rights when it enacted the law, so only outlawed CC&Rs entered into after the Act’s passage.

    Continue Reading ▪ Examining the Impact of Act 5 on Restrictive Deed Covenants (CC&Rs)

an earlier version of this post was published in Hawaii Agriculture magazine (April – June 2006)

Hawaii law protects the “right to farm,” but what does that mean? 

Can a farm’s or ranch’s neighbors complain about tractor noise, flies that may be attracted to livestock, the height of crops, or if spray drifts over their property?

Hawaii law, like the laws of many other states, contains a powerful legal tool to protect a farm against such claims: the Right to Farm Act, which prohibits certain tort claims against farmers and ranchers involving their use of their property.

Nuisance Lawsuits

Generally speaking, a property owner may sue neighboring landowners if his or her property is being used in a way that harms another’s property or the public.  These claims are known as “nuisance” lawsuits.

Typical claims in the agriculture context involve a neighbor complaining about odors, noise, dust, and insects, and other activities typical of farming operations.  And, unfair as it may seem, the result in a nuisance lawsuit is not governed by which landowner was there first

For example, a newly arrived neighbor might sue a nearby ranch claiming a nuisance, even if the ranch existed long before the neighbor purchased the property, and even if it was bought with the full awareness of the ranch’s operations.

The ability to bring a nuisance lawsuit is not set out in statutes or rules, but comes to us via the common law, or precedent-setting decisions by judges.  The Legislature, however, may supplant the common law by enacting statutes limiting the ability to file such lawsuits.

Constitutional Rights

The people of Hawaii recognize the importance of agriculture to our economy, our environment, and our lifestyle, and the Hawaii Constitution spells out the state’s express policy favoring agriculture and agricultural uses of land. 

In the Constitution, the State is commanded to “conserve and protect agricultural lands, promote diversified agriculture, increase agricultural self-sufficiency and assure the availability of agriculturally suitable lands.”

Reasonable Practices

In 1982, the Legislature recognized the potential threat to agriculture posed by nuisance lawsuits interfering with reasonable farm uses.  Implementing the constitutional mandate to “conserve and protect” agricultural lands, the Legislature enacted the Right to Farm Act, which bars nuisance lawsuits if certain conditions are met.

First, the protected activity must be a “farm operation.”   This is very broadly defined to include commercial agriculture, aquaculture, forestry, ranching and livestock, poultry, and beekeeping operations, among others. 

Also included within the definition of “farm operations” are accessory uses such roadside stands, machinery or irrigation pumps, chemical fertilizer and pesticide application, and labor operations

Second, the farming operation must use “generally accepted agriculture and management practices.”  In other words, if a farmer uses reasonable practices – as established by fellow farmers – those practices are protected.  The law also places the burden of proof on this issue on the person alleging the nuisance by creating a legal presumption that a farm is being operated reasonably according to industry standards.

The farming activity cannot be causing water pollution or flooding.  Also, the Act only limits nuisance claims by private parties, and does not prohibit the government from stopping farm operations that threaten the public health or safety. 

Right to Farm Act

If these conditions are met, the courts and all “public employees” – a term not defined but most likely meaning state and local government personnel and agency officials – are prohibited from determining that farming activity is a nuisance.   A farm that qualifies may operate normally without fear of being sued by neighbors.  As the Indiana Court of Appeals held when it determined that the Indiana Right to Farm Act protected a hog operation from a neighbor’s nuisance lawsuit about odors, “so long as the human race consumes pork, someone must tolerate the smell.”

As a final disincentive to nuisance lawsuits, the law also provides that if a farmer is frivolously sued for a nuisance despite the Right to Farm Act, the farmer may recover attorneys’ fees and costs.

In sum, the Hawaii Right to Farm Act allow the farmer – not neighbors or judges – to manage the farm.

    Continue Reading ▪ Protecting the Right to Farm