Land use law

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In a decision that at first blush seems to have little to do with land use law, the Hawaii Supreme Court reiterated the standard for when an agency hearing is a “contested case” under the Administrative Procedures Act, and clarified what constitutes agency “action” for purpose of the permit application autoapproval statute.

Contested Case Broadly Defined

The first issue in E & J Lounge Operating Co. v. Liquor Comm’n of the City & County of Honolulu, No. 27940 (July 29, 2008) was whether, as the caption of the case indicates, a public hearing before the Honolulu Liquor Commission was a contested case under Haw. Rev. Stat. § 91-1(5).  The court held it was.

This case is important for land use law since many of the public hearings before agencies are not formally defined as contested cases.  The court held that the designation did not matter, and an…

Continue Reading HAWSCT Defines “Contested Case” Broadly, Reviews Autoapproval Statute

Kauaisprings2 Yesterday, the Kauai circuit court granted a permanent injunction, and ordered that Kauai Springs‘s applications for three zoning permits should not have been denied by the Kauai Planning Commission in January 2007.  The case is an appeal from an agency decision under the HawaiiAdministrative Procedures Act (a procedure known in other jurisdictionsas a petition for a writ of administrative mandate or a petition for awrit of mandamus).

As reported in today’s Garden Island:

In a legal victory that was described by its attorney as a “total home run,” the Kaua‘i Springs bottled water company was granted three permits by 5th Circuit Judge Kathleen Watanabe yesterday in a strong rebuke of obstacles put up by the Kaua‘i County Planning Commission.

Kaua‘i Springs owner Jim Satterfield, who attended the proceeding with some 10 family members, said that he was almost “moved to tears” by the decision and categorized it as

…
Continue Reading Victory in Kauai Springs Zoning Permit Appeal

The Supreme Court of Hawaii has scheduled oral arguments in County of Hawaii v. Richards,No. 28882, the consolidated appeal from two eminent domain lawsuitsfiled by the County in 2000 and 2005.  The issues in the case include:

  • application of Haw. Rev. Stat. § 101-27(1993), the statute that provides that the government must make aproperty owner whole and pay damages when an attempt to take propertyby eminent domain is discontinued or dismissed
  • whether the government may concurrently prosecute more than one condemnation lawsuit to take the same property, at the same time
  • the standards for demonstrating that the government’s claim of public use is pretext to hide private benefit

The briefs are posted here, and a summary of the case and the trial court’s findings are here.  The argument will be held on Thursday, October 16, 2008, at 9:00 a.m. in the Supreme Court courtroom at the Continue Reading Oral Argument Scheduled in Kona Eminent Domain Appeals: Damages for Failed Condemnations, Abatement, and Pretext

How much growth is “too much,” and who gets to make that decision under Washington law?  In Thurston County v. Western Washington Growth Management Hearings Board, No. 80115-1 (Aug. 14, 2008), the Washington Supreme Court issued an interesting — but highly technical — ruling on the issue that provides some insight into the issue.  The bottom line: counties have great discretion when adopting their growth plans, and Growth Management Hearings Boards should not establish statewide growth policies.

Under the Growth Management Act, Washington counties are required to draw boundaries  around urban areas (Urban Growth Boundaries) to limit how much development may occur outside of these boundaries.  Under the GMA, these boundaries must be “sufficient” to allow for projected population growth.  Thurston County adopted its first comprehensive plan in 1995, and updated it, including the urban growth boundary, in 2004.  In the update, the County relied on population estimates…

Continue Reading Washington Supreme Court: Growth Board Can’t Grow Its Powers

An interesting Sixth Circuit case summarized on Law of the Land by Professor Patty Salkin, Jacob v. Township of West Bloomfield, 531 F.3d 385 (6th Cir. July 3, 2008), which held that zoning inspectors are required by the Fourth Amendment’s search and seizure clause must obtain a warrant if the zoning ordinance they are purporting to enforce can lead to criminal prosecution. 

I won’t go into the details of the decision since Professor Salkin analyzes the case here, but the case is important since many zoning ordinances are criminal or quasi-criminal in nature.  The primary penalties for violation of Maui County’s zoning ordinance, for example, are criminal, with the administrative enforcement process serving as an alternative — or additional — process. 

In Jacob, the property owner was actually prosecuted criminally, but the court held that this was not the determinative factor, and that a zoning inspector is…

Continue Reading Zoning Inspectors Need A Warrant

There is still time to sign up to attend an upcoming seminar, Coastal Engineering and Land Use Issues, in Honolulu.  It’s being held on Thursday, August 14, 2008, at at Hilton Waikiki Prince Kuhio Hotel.  My colleagues and fellow law bloggers Mark Murakami and Jesse Souki are among the faculty.  Topics on the agenda include: Development and Land Use Issues in the Special Management Area, Construction and Land Use Issues in the Shoreline Area, and Managed Retreat Through the Redevelopment Process.  Go here for more information including the complete agenda and faculty list, and registration information.  Continue Reading Coastal Land Use Law Seminar

In a case a lot of folks have been following, a New Jersey appellate court yesterday struck down an attempt to declare properties “blighted.”  Turns out these properties in a residential neighborhood which was proposed to be cleared for luxury condos were not in fact blighted, or at least the government had not proven that they were.  The court remanded the case to the trial court since the city had not established the case that there was “substantial evidence of blight.”  City of Long Branch v. Anzalone, No. A-0067-06T2 (N.J. Super. Aug. 7, 2008).  This decision follows up on the New Jersey Supreme Court’s decision in Gallenthin Realty Dev., Inc. v. Borough of Paulsboro, 924 A.2d 447 (N.J. 2007), which held that “blight” means more than “not fully productive.”

The opinion is posted here.  A summary of the case from New Jersey Eminent Domain Law blog is…

Continue Reading New Jersey: Blight Not Right

Here is what the ripeness requirements of Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985) have brought us: a seemingly endless procedural game where property owners are forced to keep guessing which shell the pea is under, all the while paying their attorneys to litigate matters having nothing to do with the question of whether a local government’s regulations have gone “too far.”  The latest example is West Linn Corporate Park, LLC v. City of West Linn, Nos. 05-36061, 05-46062 (9th Cir. July 28, 2008), a case in which the Ninth Circuit, after removal from state court and trial in federal court, referred the takings issues in the case to the Oregon Supreme Court, effectively handing off the decision in the case to that court. 

Like a good plaintiff is supposed to do under Williamson County, West Linn Corporate Park (WLCP) began this…

Continue Reading Takings Claim Goes From State Court To Federal Court, And Now Back To State Court