It’s appearing more and more that Honolulu’s massive $4B+ rail project is on the fast track, and the City wants to control all development anywhere near the proposed project. In additon to the technical amendment to eminent domain law noted here allowing the City to to enter into longer term leases for land it grabs by condemnation, the City Council, as reported here, here (video), and here, is contemplating enacting a moratorium on all development within 1/4 mile of the rail route, and 1/2 mile of a transit station.
Supposedly designed to thwart land speculators anticipating the rail project, the proposal as drafted would put a halt to all development or improvement of any kind, large or small, within the noted zones.
In addition to the usual legal problems that accompany development bans (inverse condemnation), it is not clear why the City believes a moratorium in necessary unless it plans on taking huge swaths of private property by eminent domain (which it might if it follows the usual course for mass transit projects) in excess of what is needed for the rail footprint, and leasing or selling off the overage. If that is the case, the proposal may makes sense from the City’s perspective, since it may be seeking to capture any market gain that results from the project. But what does this mean for private property owners who now may find themselves in the path of the rail line? Someone down at the City better go read Klopping v. City of Whittier, a decision which prohibits the government from attempting to depress the market value of property in anticipation of condemnation.
Continue Reading ▪ Contemplating a Rail Development Moratorium
Inverse condemnation
▪ More Maui Land Use Issues
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“County zoning flaws leading landowners to court” reads the headline in the December 10 Maui News, detailing two cases where property owners have alleged that the County of Maui long ago confirmed that certain land uses were legal, and cannot now change its mind.
Under Hawaii’s top-down system of land use classification, the State must first classifiy land as “urban” before the counties are able to zone it. However, decades ago, the County of Maui apparently zoned the parcels at issue before the state got around to classifying it:
Back in 1964, shortly after the new state government established its land use laws, Maui County granted zoning to land in Pukalani and Makena without having the state first approve urban use.
Under the state land use law, counties are allowed to grant zoning only to properties that are in the urban district. The Land Use Commission determines the classification of lands as conservation, agricultural/rural and urban.
In the cases that now are leading to suits in 2nd Circuit Court and for a Makena family, Maui County not only approved the zoning before the lands were classified urban, but issued letters to the landowners verifying the zoning.
Except the county since has retracted the verification of zoning.
The fallout so far has been at least two lawsuits against the county by landowners in Pukalani and an ongoing headache for a Makena family that seeks to get the zoning that had previously been granted and then retracted.
The county’s somewhat casual approach to zoning in the old days has provided plenty of work for lawyers.
But these lawsuits are not a case of “make work” for lawyers, and reflect a serious issue of who must bear the burden of government’s official mistakes, when they are compounded with years of reliance by property owners, most of whom have no inkling of the error. The County, it seems, wants to shift the responsibility for its errors onto innocent property owners. In such instances, however, it seems that the burden of the error should fall on the entity responsible for the mistake, and with the resources to catch it: the government. Given the scope of the problem, this will no doubt not be the last we hear of such lawsuits.
▪ Upcoming Seminars
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In January, I will be speaking on three topics:
- At the Hawaii Land Use Law Conference, I’m presenting “Water, Water, Everywhere: Coastal Zone Management Permits; Hawaii’s Floodway, Floodplain and Coastal Inundation Zone Requirements.” Agenda and registration details here.
- At the annual Advanced Land Use and Zoning seminar, my portion is “US Supreme Court Land Use Update,” which deals with the Rapanos Clean Water Act case, other federal developments in land use law, and some of the more interesting Hawaii Supreme Court land use decisions. I will also be covering “Vested Rights Update” with my colleague Greg Kugle. Complete agenda and registration information here.
- At the HSBA Environmental Law section January meeting, I’m presenting “Clean Water Act Jurisdiction After Rapanos.” Approximately one week before the meeting, I will post materials and resouces on this blog.
I hope to see you at one or more of these events. Drop me an email for sign up information or see the links on the “Events” heading on the right.
▪ Eminent Domain Reform a Big Winner
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Professor Ilya Somin has posted a summary of the Kelo-fueled voter measures:
Why are the anti-Kelo referendum initiatives so much more effective than most of their legislative cousins? I suspect because the former are usually drafted by property rights activists rather than by state legislators. As I discuss in more detail in the posts linked above, politicians often have incentives to give voters the impression that they are “reforming” eminent domain without actually doing so. Activist groups have few if any such incentives and the reforms they draft are therefore likely to have fewer loopholes and be more effective in eliminating economic development takings.
Despite not getting enough votes to pass in California and Idaho, overall, it looks like the property rights issue received a big stamp of approval from the public.
How about Hawaii? Last session, the legislature did not pass any of the four eminent domain reform measures proposed after Kelo, and Hawaii law does not permit statewide initiative or referendum. The only way to get a measure on a statewide ballot is a constitutional amendment, most of which originate in the Legislature.
▪ Protecting Property Rights in Beachfront Land
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Shoreline and beach issues in Hawaii are a sensitive and often heated topic. It is natural that in an island state with 1,052 miles of coastline, people get passionate about beaches, especially when the economy relies in large part on images of sandy shores and beautiful ocean.
But the very things that make Hawaii beautiful, just as naturally, also attract people who want to live near those beaches and ocean. A recent story in the Honolulu Advertiser, Erosion hasn’t slowed shoreline construction, highlights many of the competing concerns when the desire to protect the shoreline runs into people’s homes: on one hand, the public is concerned about the perceived “loss” of sandy beaches, while on the other, the existing homes of shoreline property owners may be in danger, while other owners may be prevented by restrictive regulations from building upon their undeveloped property.
That is not a recipe for compromise, or even reasoned discourse. What I said in the July 2006 ABA Journal — in a story about seawalls and property rights in Florida — is just as true in Hawaii:
“It’s hard to find a middle ground on this,” . . . “Every time someone sneezes on the shoreline, it’s front-page news.”
In Hawaii, all beaches are public up to the “high wash of the waves,” as usually evidenced by the vegetation line. This differs dramatically from the rule in other states, where the public beach ends at the mean high water mark.
Several years ago, the Hawaii Supreme Court revisited the long-standing rule and “reinterpreted” a phrase (“ma ke kai“) to mean upper reaches of the wash of the waves, not mean high water mark. The public-private boundary In Hawaii can therefore be much further mauka (inland) than in other states. And as shorelines erode, this public-private boundary can move and encroach further on private property. Note: as shorelines accrete, the public-private boundary should, conversely, move further makai (seaward). However, in 2003 the Hawaii Legislature enacted Act 73, which altered these age-old rules. For a related post on a circuit court’s striking down of Act 73, go here.
Shoreline legal issues, like the shorelines themselves, are in flux. The State Board of Land and Natural Resources recently revised its administrative rules regarding the definition of shoreline for certification and setback purposes to conform more closely to the common law definitions established by the courts. These rules and other proposed regulations have not yet been challenged in the courts.
My Damon Key colleague Sat Freedman has posted a very good primer on the subject of Shorelines, Setbacks, & Seawalls, detailing the different definitions of “shoreline” (setback vs public-private boundary), how Hawaii’s counties handle the administration of setbacks, and how seawall construction and other property protection measures may be impacted by restrictive regulation.
In the back-and-forth on the issue, the question of the property rights of the owners of shoreline property should not get pushed aside. The Fifth Amendment to the U.S. Constitution and article I, section 20 of Hawaii’s Constitution provide that private property may not be taken for public use without just compensation. Property may be taken by overbearing regulation as well as outright confiscation (also known as a “regulatory taking” or “inverse condemnation” — so yes, you have reached the right blog), and the issue of whether the government has gone too far and crossed the line between permissible regulation and confiscation is sure to arise again. The public often clamors for expansion of the public beach, with little to no concern shown for the property owners who are called upon to sacrifice their property upon the altar of the “public good” usually with no compensation.
Those fortunate enough to own beachfront property — whether they are recent purchasers or long-time local residents (the law makes no distinction) — must vigorously protect their rights to insure they alone are not forced to bear the cost of a desired public benefit.Continue Reading ▪ Protecting Property Rights in Beachfront Land
▪ Regulatory Taking of Accreted Beachfront Land
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A Hawaii circuit (trial) court, as reported here, has declared that “Act 73,” (codifed here and here) which determined that certain land “accreted” on Hawaii’s shorelines is “public land,” is an “uncompensated taking” of private property.
The court held that the Act was a “sudden change in the common law,” and prevented the littoral owner from registering the property or quieting title.
The common law doctrines of accretion and erosion were generally uniform, and the littoral property owner took the bitter (erosion) with the sweet (accretion): if her property naturally washed away, she lost it; but, conversely, if land naturally accreted on her property, it was hers. One of the incidentals of owning property next to the ocean or stream.
Act 73 radically altered that balance, determining as a matter of legislative fiat that the State owned accreted land, while not disturbing the usual rules of erosion. Under Act 73, the littoral owner could not secure title to accreted land, yet continued to lose title to eroded land.
In other words, “heads the State wins, tails you lose.”
Continue Reading ▪ Regulatory Taking of Accreted Beachfront Land