Environmental law

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The Honolulu Advertiser reports that the Chamber of Commerce of Hawaii is advocating in favor of a bill limiting the “use” of a state or county road as a trigger to chapter 343 environmental review:   

The state Department of Transportation, responding to two previous Supreme Court rulings, asked the state Environmental Council early last year to generally exempt the private construction of driveways or the installation of utilities within state road right-of-ways from environmental assessments. The Supreme Court, in a 1997 decision involving the Kahana Sunset project on Maui and in a 2006 decision on the Koa Ridge project in Waiawa, found that projects that touch state road right-of-ways technically use state lands and trigger potential environmental assessments.

Section 343-5, as interpreted by the Hawaii Supreme Court, requires an agency to undertake an environmental assessment if an applicant’s project (broadly construed to include both the specific proposal and, as…

Continue Reading Butterfly Effects and Environmental Impact Statements

A round up of posts of possible interest to readers:

The 18-page lawsuit names as defendants thecounty of Kaua‘i, the Planning Commission, and the Planning Departmentand its director. It asks for the Koloa Creekside Estates project to befound exempt from the Koloa-Po‘ipu-Kalaheo Development Plan and, ifnot, the imposed conditions to be declared unlawful.

Thedeveloper also opposes some requirements that it was previously willingto concede — such as a land dedication, impact fees and constructionschedule, the lawsuit states.

Attorneys argue in the case for automatic approval of the permits because the county failed to meet its own deadlines.

  • Jesse Souki at Hawaii Land Use Law blog digests HAWSCT’s latest water law decision,

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Continue Reading Land Use Round Up

The Hawaii Supreme Court’s decision in the Hawaii Superferry case, coming as it did mere hours after oral argument and just days before the ferry was scheduled to sail, certainly was the issue dominating the headlines in the last quarter of 2007, especially after the Legislature was called into special session to pass legislation allowing the Superferry and other large capacity ferries to sail while the state conducted an environmental assessment. 

Despite the high drama, the issue in the Sierra Club’s lawsuit was fairly straightforward: did the Superferry qualify for a categorical exemption from having to undertake an EA.  The Supreme Court held as a matter of law that it did not, and that secondary impacts should have been considered. 

Everything on inversecondemnation.com about the case, including the briefs of the parties, oral argument recordings, the court’s decision, and commentary, is posted here.Continue Reading 2007 in Review: All Superferry All The Time

In a story dated December 30, 2007 in the New York Times Travel section, “Not in My Tropical Backyard,” Christoper Pala ties together several seemingly-unrelated threads: the Hawaii Superferry, development on Molokai, the Hokulia project on the Big Island, and expanded resort development on Oahu’s North Shore.  The only issue that seems to have been left out is the question of vacation rentals.  The unstated thesis seems to be that these events are spurred, in large part by “backlash” against tourists and related development, but that seems like only part of the vibe — and it may be more the “drawbridge protectionism” discussed in this post, and a perception that we’re nearing capacity and things just aren’t the way we remember them, than a specific anti-tourism or anti-outsider sentiment.  Continue Reading NY Times Catches a Recurring Vibe

In anticipation of the upcoming eminent domain conferences, ALI-ABA has posted a (free!) short podcast by Michael Berger about the recent $37 million inverse condemnation judgment against a northern California for causing the plaintiff’s land to become undevelopable wetlands (Yamagiwa v. City of Half Moon Bay, No. 05-4149 VRW (Nov. 28, 2007)).  See you at the conference (Jan 3-5, 2008). Continue Reading Podcast on $37m Federal Inverse Condemnation Judgment

As reported here and here, the City of Half Moon Bay, California is going to appeal the $37 million federal inverse condemnation judgment to the Ninth Circuit.  In the first story, the San Francisco Chronicle reports:

The Half Moon Bay CityCouncil on Tuesday night voted to hire a team of appellate lawyers andannounced it would fight a potentially ruinous federal court decisionthat orders the city to pay $36.8 million to a developer in a propertydispute.

“The City Council has decided to go forward with an appeal,” MayorBonnie McClung told a crowd of more than 70 people gathered for thecouncil’s first regular meeting since the ruling came down. “We areunited in our position at this point that this is the best course ofaction for us.”

The council voted unanimously to hire Orrick, Herrington &Sutcliffe, a San Francisco law firm that specializes in public financeand corporate law. In the same

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Continue Reading City Will Appeal $37 Million Inverse Condemnation Judgment to Ninth Circuit

The $37 million inverse condemnation judgment against the City of Half Moon Bay, California by  the US District Court for the Northern District of California is having some repercussions, as reported by the San Francisco Chronicle:

Under the worst-casescenario, officials say, Half Moon Bay would become the first Bay Areacity forced to dissolve, and the coastal town’s land would become anunincorporated part of San Mateo County.

Members of the City Council say that’s unlikely, and they plan tovote at a public meeting tonight to retain an appellate law firm and afinancial consultant to advise them on how to tackle a court judgmentthat is more than three times Half Moon Bay’s $10 million annual budget.

. . .

Funding such a bond wouldmean “significant budget cuts across the board,” the City Council saidin a joint statement last week. “Everything will be affected – parks,streets, libraries, repairs – every municipal function will…

Continue Reading Government’s Response to $37M Inverse Condemnation Judgment

The Wall Street Journal posts “Whose Beach Is This Anyway,” a story about how shoreline erosion is resulting in legal disputes nationwide over ownership and building setbacks.

The story notes Hawaii’s Diamond v. Bd. of Land and Nat. Res., 112 Haw. 161, 145 P.3d 704 (Oct. 24, 2006), a case which I discussed here:

Property owners are battling in some states overso-called building setbacks, which dictate how far new structures mustbe built from the water. Hawaiian counties, for example, require thatnew construction be at least 20 feet and often up to 40 feet inland ofthe shoreline.

In recent years, some landowners planted salt-tolerantplants at their seaward property line, hoping the vegetation line wouldserve as the shoreline for setback purposes even if the tide sometimesextended past the plants. The state agreed in some cases, but concernedneighbors and environmental groups sued to have the issue clarified.Hawaii’s Supreme Court…

Continue Reading Wall St. Journal on Beach Erosion Issues (video)

The County of Hawaii Planning Department has issued Memorandum No. 07-20 (Oct. 3, 2007) setting forth the County’s reevaluated practices in reviewing development applications “to see whether an environmental assessment is needed under Chap. 343 [the Hawaii Environmental Policy Act.]”  The bottom line is set forth on page 2:

Planners will have to review the application to see if there is construction on state or county land involved.  This may be shown on the site plan.  Planners also have to use common sense in looking at the application.  For example, if access to the property will require constructing a new road over a “paper” government road, this will trigger this Chap. 343 review.

. . .

The end result of this is likely that more applications will need environmental assessments, and, because the entire project has to be considered, some will need full EIS’s, even though the only “trigger” is…

Continue Reading Bootstrapping Environmental Assessment Exemptions