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Continue Reading Monday Reading: Raisin Redux, Beach Appeal Dismissal, Zoning, And More

HSBA 2017 Land Use Conference

Registration is now open for the 2017 Hawaii Land Use Conference, presented by the Hawaii State Bar Association and the University of Hawaii Law School, at the downtown Honolulu YWCA’s Fuller Hall on January 19-20, 2017. “This 2 day conference is a must attend for any attorney or professional whose practice involves land use and development,” as the registration web site says (we agree).  

Topics include the latest in Transit-Oriented Development, the Thirty Meter Telescope, GMO (including the recent rulings from the Ninth Circuit), and the topic we’ll be presenting, “Takings: Regulatory and Physical.”

The final agenda has not yet been released, but if experience is any guide, Planning Chair Professor David Callies will put together two days of timely topics, presented by distinguished faculty. 

And the cost can’t be beat: $200 for members of the Real Property and Financial Services Section and government lawyers, $300…

Continue Reading 2017 Hawaii Land Use Law Conference, January 19-20, 2017

We’ve had bridges on our minds lately. Plus, we’ve been meaning to post the Nebraska Supreme Court’s opinion in Strode v. City of Ashland, No. S-15-956 (Oct. 28, 2016) for a while, and it is coincidentally about a bridge. So the title to this post came to us quickly, and naturally. But writing up the case didn’t.

But while we dawdled, Dean Patty Salkin wrote the case up on her blog, Law of the Land. Which has now saved us the effort of writing the case up in its entirety, and we suggest you start by reading her post for the background and the court’s ruling. 

The case involved two inverse condemnation claims brought by husband and wife property owners, asserting the City’s zoning regulations worked a taking of their land in two ways. They first that the regulations prohibited their use of the land for their…

Continue Reading Nebraska: Inverse Condemnation Claims A Bridge Too Far

Here’s what we’re reading today:

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Continue Reading Monday Round-Up: Food Takings; Honolulu And Nebraska Takings; Property Rights And The Environment

All you preemption, agriculture, municipal and local government law junkies, take note: later today, a panel of the U.S. Court of Appeals will hear arguments in three cases, each of which is an appeal of the District Court’s seriatim invalidation of county ordinances which regulated GMO and pesticide use in Kauai, Maui, and Hawaii Counties, respectively. The Ninth Circuit live streams its arguments, so those of you not able to be present in the downtown Honolulu courthouse today can follow along. 

In each of the three cases, the District Court invalidated the ordinances, mainly on the ground that county ordinances regulating GMO production and pesticide use are preempted by state law. 

We won’t go into the details of the cases, having covered them many times previously. Disclosure: we also filed an amicus brief in one of the cases in the District Court, and represented the “vote no” campaign in…

Continue Reading Today: Ninth Circuit Oral Arguments In Hawaii Anti-GMO Cases

PICT0632

2013. August 28. 2:00 p.m. I was working the day watch patrol on the Belt Highway. I observed a green flatbed pickup truck driving towards Hilo with a load of open containers loaded with a green leafy substance. I suspected this could either be cabbage or lettuce. I pursued to investigate. Approximately a half a mile to a mile up the road, I began observing cabbage or lettuce on and to the side of the road. I had passed this location approximately 45 minutes earlier, and there was no such cabbage. I observed no other vehicle with cabbage. I then engaged my siren and lights and commenced a pursuit of the suspect green flatbed pickup truck which I had earlier observed. I apprehended the suspect and issued a citation for violation of Hawaii Revised Statutes § 291-C-131, which prohibits the transportation of a load without preventing any of it —…

Continue Reading HAWSCT: Removal Of Cabbage Trimmings From Highway Would Have Been Unreasonable

In a ruling that no one who was paying attention could claim to be surprised by, the Hawaii Supreme Court yesterday issued a 4-1 memorandum opinion holding that the “agricultural lands” section of the Hawaii Constitution isn’t self-executing, and which approved the State Land Use Commission’s reclassification of land on Oahu from agricultural to urban uses for the “Koa Ridge” master-planned community:  

its constitutional history as well as the legislative history of Act 183 do not reveal an intent to require the LUC to delay reclassifying agricultural land pending formal designation of [Important Agricultural Lands].

Slip op. at 3. Justice Pollack, as he did in a prior case on the same issue, dissented.

No Surprises

We say no surprise, because only a few months ago, the same majority (Chief Justice Recktenwald, and Justices Nakayama and McKenna, joined by a circuit judge sitting for the recused — and now…

Continue Reading HAWSCT Says It Again: Court Won’t Create A Moratorium While “Important Ag Lands” Process Completes

When people think of “Hawaii,” many of them, me included, think of sugar. Those of us of a certain vintage who were raised in the islands, and whose families were tied to the sugar plantations once so ubiquitous (my mother’s family was from the Halawa Plantation and lived on what is now the site of Aloha Stadium), share a certain nostalgia for those days.

But things inevitably change, and most of the sugar and pineapple plantations (ask me about my pre-law days working at “the cannery,” a now-defunct summertime ritual for many local kids) are long-gone, save one, Hawaiian Commercial and Sugar’s Puunene plantation on Maui.

Earlier this week the other shoe dropped, and HSC’s parent company, Alexander and Baldwin, announced that at the end of the year, Hawaii’s sole remaining sugar plantation will be closed. There are a lot of reasons — labor costs…

Continue Reading Lawsuits Have Consequences: Aloha To Hawaii Sugar

Lawprofs and other academics will tell you that nuisance law is about “negative externalities” and the like, but to us, it has always been about the smell.

Especially when it comes to nuisance claims about farms and ranches. Excessive noise, dust, weird hours. No question, those can be disturbing to neighbors and the public, but man, the smell. As one Indiana court put it about a pig farm, “so long as the human race consumes pork, someone must tolerate the smell.” Shatto v. McNulty, 509 N.E.2d 897, 900 (Ind. App. 1987). 

Deciding who has to tolerate the smells is of the main driving forces behind “right to farm” acts, adopted by many states. These laws generally restrict the ability to bring nuisance lawsuits, or even prohibit them, against farmers and ranchers for the usual “negative externalities” which result from normal farming operations. Hawaii has a right to farm…

Continue Reading Pa Supreme Court Loves The Smell Of Biosolids In The Morning: “Normal Agricultural Operation” Under Right To Farm Act For Judge, Not Jury

Here’s one in a land use case we’ve been following, both because it is a huge issue and because our partners Greg Kugle and Matt Evans represent the prevailing land owner.  

All Hawaii land users need to read this, a 4-1 decision (Justice McKenna writing for the majority, with Justice Pollack in in dissent) that involves the LUC, the “Important Agricultural Lands” process, and reclassification. We haven’t yet read it in detail, but here’s the holding:

This appeal involves a long-standing issue in this state: balancing agricultural and urban land uses.

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Pursuant to Save Sunset Beach Coalition v. City & County of Honolulu, 102 Hawaii 465, 476, 78 P.3d 1, 12 (2003), Article XI, Section 3, standing alone, is not self-executing; rather, its mandate is carried out through the provisions of Part III. Therefore, the plain language of Article XI, Section 3 does not require the LUC…

Continue Reading HAWSCT: Land Use Comm’n Need Not Impose Moratorium Until After “Important Ag Lands” Process Is Complete