Land use law

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Thanks to Professor Friedman’s Religion Clause blog for the post about the federal government seeking Supreme Court review of the Ninth Circuit’s decision in Buono v. Kempthorne, No. 05-55852 (Sep. 6, 2007). In that case, the Ninth Circuit invalidated a land swap on Establishment Clause grounds. The Solicitor General’s cert petition suggests two Questions Presented:

More than 70 years ago, the Veterans of Foreign Wars (VFW) erected a cross as a memorial to fallen service members in a remote area within what is now a federal preserve. After the district court held that the presence of the cross on federal land violated the Establishment Clause and the court permanently enjoined the government from permitting the display of the cross, Congress enacted legislation directing the Department of the Interior to transfer an acre of land including the cross to the VFW in exchange for a parcel of equal value. The…

Continue Reading US Seeks Cert Review in the Mojave Cross Case

In a lengthy opinion, the Hawaii Intermediate Court of Appeals in Pono v. Molokai Ranch, Ltd., No. 28359 (Oct. 21, 2008), held that the State Land Use Law, Haw. Rev. Stat. ch. 205, does not create a private right of action allowing for non-governmental enforcement of the law.  The court also held there is no private right of action to enforce the Molokai Community Plan. 

Judge Foley concurred, and would have held that the plaintiff did not exhaust its administrative remedies because it did not appeal the Public Works Director’s decision to the Board of Variances and Appeals.

Disclosure: my Damon Key colleagues Greg Kugle and Ken Kupchak represented Molokai Ranch.

More to follow after a chance to digest the opinion.  Continue Reading HAWICA: No Private Right of Action to Enforce Land Use Laws

A worthwhile article in the latest edition of The Urban Lawyer about settling land use disputes with processes that may not adhere strictly to the usual permit consideration procedures.  Here’s the summary from the ABA’s site:

Paul D. Wilson, Of Synagogues and Nude Juice Bars: Can a Municipality Settle Land Use Litigation Without a Permitting Process?, 40 Urb. Law. 535 (Summer 2008).This article examines conditional use permits and the appropriatenessof settlement agreements between municipalities and controversialzoning permit applicants. The author examines a recent ninth courtdecision, League of Residential Neighborhood Advocates v. City of LosAngeles, in which the court struck down a settlement agreement betweena city and an Orthodox Jewish synagogue wishing to locate in aresidential zone, finding that the settlement was not a substitute fora conditional use-permit. The author then examines several analogouscases which present variations of the issue and possible solutions formunicipalities.

The Urban Lawyer is…

Continue Reading Settling Land Use Litigation: Private Agreements and Public Process

Here are the materials from today’s discussion:

Continue Reading Hawaii Farm Bureau Federation: Materials From Friday’s Discussion

Farmers and ranchers should be aware of a new law passed by theLegislature last session that adds another layer of protection forHawaii agriculture.

A new section was added to the Land Use Law (chapter 205) requiringthat before the State Land Use Commission approves a petition for a“boundary amendment” (a change in the state’s land use designation fora parcel), for lands “contiguous or adjacent to” land designatedagricultural, it must include two conditions.

First, the conditions must prohibit any action that would interferewith or “restrain” farming operations, as long as those farmingoperations are consistent with generally accepted agricultural andmanagement practices. This requirement mirrors the language in Hawaii’sRight to Farm Act, which prohibits nuisance lawsuits against farmersand ranchers who employ generally accepted practices. In other words,farmers and ranchers determine what are the best agricultural andmanagement practices.

“Farming operation” is also defined by reference to the Right to FarmAct, which defines the term broadly…

Continue Reading Hawaii’s “Buffer Bill”

West Hawaii Today reports on yesterday’s oral arguments in the Supreme Court of Hawaii in County of Hawaii v. Richards, the appeal from two eminent domain actions on the Big Island of Hawaii.   [Disclosure: my Damon Key colleagues Ken Kupchak, Mark Murakami, and Christi-Anne Kudo Chock and I represent the property owners.]

“These arguments are not about a road. They’re about the law,” said Robert Thomas, an attorney for the trust. “Thegovernment in cases of eminent domain has a huge advantage. It createsthe facts. … If they lose, they’re not prohibited from trying againand again and again.”

. . . .

Hawaii County lost its first condemnationlawsuit when a Circuit Court judge found the condemnation served moreof a private purpose for Oceanside than a public purpose, as isrequired before government can take land by force. The county, under anew County Council, amended its condemnation plan, adding another …

Continue Reading Oral Arguments in Kona Eminent Domain Abuse Appeals: Damages for Failed Condemnations, Abatement, and Pretext

Interesting decision from the California Second District Court of Appeals in Manufactured Home Communities, Inc. v. County of San Luis Obispo, No. B196426 (Oct. 15, 2008).  The case involves a writ of administrative mandate (administrative appeal for you non-Californians) reviewing the decision by the county Rent Review Board denying a request to increase the rent in a mobile home park. 

What’s interesting about the decision is not the result (basing a decision on the testimony of witnesses not subject to cross-examination surely violates even the often loose evidentiary rules in administrative hearings), but the court’s opening paragraph:

The Constitution protects everyone, the poor, the wealthy, the weak, the powerful, the guilty and the innocent. This court has held its guarantees extend to lawyers (Cunningham v. Superior Court (1986) 177 Cal.App.3d 336); dogs (more precisely their owners), (Phillips v. San Luis Obispo County Department of Animal Regulation (1986)…

Continue Reading California Court of Appeals: Property Owners Have Constitutional Rights!

You have to wait until the government enacts a lousy law before you can run to court to challenge it.

That’s the lesson from Stonehouse Homes v. City of Sierra Madre, No. B195552 (Oct. 9, 2008), in which California’s Second District Court of Appeals held that a lawsuit challenging the city’s “moratorium resolution” was not ripe for judicial review.  In the moratorium resolution, the city stated it was considering amending an existing zoning ordinance regarding minimum lot sizes in the city’s “Hillside Management Zone.”  The city is “located in the steep hillsides of the San Gabriel Mountains northeast of Pasadena.”  Slip op. at 2. 

The complaint alleged the moratorium resolution violated the plaintiff’s due process rights, among other issues.  The city demurred because the resolution was not a law, but rather was a notice of a potential change in the city’s zoning code.  Slip op. at 5.  The trial…

Continue Reading California Court of Appeals: Development Moratorium Challenge Not Ripe

The title for today’s editorial in the Honolulu Star Bulletin about the “ceded lands” case now before the U.S. Supreme Court says it all: “Court should reverse freeze on land sales.” 

The Lingle administration should be encouraged by the U.S. SupremeCourt’s decision to review an unconscionable state ruling thatprohibits the sale or transfer of virtually all state-owned land inHawaii. Overturning of the ruling would restore the successful formulafor devoting part of the land sales revenue to improving conditions fornative Hawaiians.

The complete editorial is posted here.  Visit our page which contains links to the briefs, the Hawaii Supreme Court decision, and media reports on the case. Continue Reading Honolulu Star Bulletin: Court Should Reverse Ceded Lands Case