Land use law

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In a story titled “Hawaii: Tourists Make Lousy Neighbors,” the Associated Press summarizes the “transient vacation rental” issue that’s been making waves on Oahu, Maui, and Kauai.  Only one county, the Big Island of Hawaii, does not actively regulate vacation rentals.  Not a very encouraging headline for an economy dependent upon tourism and welcoming visitors.

On a related note, Charley Foster at Planet Kauai expands on the inversecondemnation.com link to a story about the recent legal challenge to Sedona, Arizona’s ban on short term rentals.  Charley adds a collection of links to case studies of how vacation rentals have been treated in other jurisdictions.  Check it out here.Continue Reading Associated Press: “Hawaii: Tourists Make Lousy Neighbors”

Jesse Souki’s post on his Hawaii Land Use Law blog, “NIMBY Group Stymies 700 Home Affordable Housing Project on Maui,” about a state-court challenge to a housing project, brings up a topic that is fun to revisit every now and then: the cheeky acronyms that get tossed about in the land use business.

To start off, there’s the Mother of All Land Use Labels, NIMBY, which is commonly used to describe opponents of LULUs (Locally Undesirable Land Uses).  But a host of others are used, including a few that express the same — or more extreme — thought as NIMBY:

  • NOTE – Not Over There Either
  • NIABY – Not In Anyone’s Back Yard
  • BANANA – Build Absolutely Nothing Anything Near Anyone [or Anywhere]
  • CAVE – Citizens Against Virtually Everything
  • DBTD – Death By a Thousand Days (do you really think the sole purpose of an EIS is to

…
Continue Reading NIMBYs, BANANAs, CAVEs and DUDEs

As reported here, a lawsuit was filed in Arizona state courts seeking to invalidate Sedona, Arizona’s prohibition on short-term rentals (less than 30 days):

Approximately 450 short-term rental properties in Sedona have beenimpacted by the new Ordinance making it illegal to advertise short-termrentals, and the Code prohibiting short-term rentals.

This ordinance was enacted by the city council Jan. 22 to putteeth into the Code, on the books since 1995, which made it illegal torent properties for less than 30-days

The tail end of the article lists the claims asserted by the plaintiffs, which include vested rights, selective enforcement, and other constitutional and statutory claims. Continue Reading Legal Challenge to Sedona, Arizona Short-Term Rental Ban

shorelineIn “New Kauai shoreline erosion bill among the nation’s most conservative,” Jan TenBruggencate summarizes the recently enacted Kauai ordinance adopting a variable shoreline setback:

Kaua’i County has adopted the most aggressive shoreline buildingsetback law in the state, a powerful policy that aims to protectcoastal structures against 70 to 100 years of erosion.
. . . .

Under the new legislation, there are two potential ways of calculating how close to the water a structure can be erected.
. . . .

The Kaua’i bill is considerably strongerthan the state’s first such legislation, Maui’s bill. The Maui setbacksare 25 feet plus 50 times the erosion rate.

Forcomparison, on a beach with one foot of erosion per year, a Maui homewould be set back 75 feet from the certified shoreline (25 feet plus50), while the same house on Kaua’i would be set 110 feet back (40 feetplus 70).

Read Jan’s…

Continue Reading Aggressive New Kauai Shoreline Setback Ordinance Adopted

The plaintiff property owner has filed a motion for partial summary judgment in the federal court challenge to Maui County’s “affordable housing” requirement.  Kamaole Pointe Development LP v. County of Maui, Civ. No. CV07-00447 DAE LEK (filed Feb. 28, 2008). 

The Maui ordinance, enacted last year, imposes a 40% to 50% affordable requirement on new housing developments.  I posted on the case earlier here (contains a link to the complaint), and analyzed the legal problems with the ordinance under state law  here . 

The plaintiff’s motion is posted here (1.5mb pdf).  It asks the court to declare the ordinance unconstitutional on its face under the Nollan/Dolan doctrine of unconstitutional exactions, which requires the government to show a substantial nexus between the exaction and some problem caused by the property owner before the government may demand tribute as a condition of development.  The exaction must also be…

Continue Reading Nollan/Dolan in Federal Court Challenge to Maui’s “Affordable Housing” Exaction Scheme

There’s still time to register for the “Advanced Land Use and Zoning Law” seminar to be held on Wednesday, February 20, 2008 at the Ala Moana Hotel in Honolulu. 

Topics include vacation rentals, big box zoning, affordable housing exactions, landowner liability for rockfalls, an environmental law update, and a summary of recent key decisions from Hawaii and other jurisdictions on land use and related issues.  The faculty is comprised of my Damon Key Land Use Practice Group colleagues Greg Kugle, Mark Murakami, Robert Harris, and Noelle Catalan.  I’ll be covering the topic “U.S. Supreme Court, Regulatory Takings, and Eminent Domain Update.”

Full agenda and registration information here.  Hope you can make it — if you do, stop by and say hello.Continue Reading Land Use Seminar: February 20, 2008

Hawaii Public Radio has posted a five-part series ofreports on “Transit and Growth in Hawaii,” the third of which is themost interesting since it focuses on Honolulu’s proposed $4 billion+ railsystem.  Each of the segments, however, is worth a listen:

  • Part I – did 1970’s projections match up to reality?
  • Part II – gas prices and growth
  • Part III – the cost of rail, and who will pay
  • Part IV – the EIS
  • Part V – which technology will be employed?

In a similar vein, last year, UH Law professor David Callies, Honolulu attorney Vernon Woo, and I were guests on Jay Fidell’s KHPR program on the topic of Honolulu rail, and the development and land use issues sure to surround the project.  Audio of the show is available here.Continue Reading Hawaii Public Radio on Transit, Land Use, and Growth (mp3)

Thanks to Professor Patty Salkin for calling attention to a recent case from a Missouri federal court that provides a good (if that word can be used) illustration of the weird shell game that is played by the federal courts when it comes to regulatory takings claims, Reagan v. City of St. Louis, No. 4:07CV1487 (Jan. 31, 2008).

Reagan brought regulatory takings claims against the city for downzoning her land from industrial to residential, making her land unsuitable for her business.  Reagan filed suit against the city in state court, alleging that the city’s actions violated the federal takings and due process clauses, and the Missouri takings clause.  Prior to trial, Reagan dismissed the federal takings claim, presumably because she was trying to keep open the possibility of federal court review of the issue at some point in the future. 

In other words, the property owner did expressly did…

Continue Reading Williamson County Illustrated: You’re Either Too Early, or You’re Too Late

The Garden Island reports that a property owner’s appeal of the County of Kauai’s approval of its permits with allegedly illegal conditions is going forward after the County withdrew its motion to dismiss.

The County Attorney’s Office filed for themotion to dismiss based on the Planning Commission failing to issue a“written decision and order containing findings of fact and conclusionsof law,” which it claims is the only decision the court can review.Without it, there is no subject matter to base a case.

ThePlanning Commission has this on its Feb. 12 agenda, which, if approved,would apparently ratify the commission’s Dec. 11 approval ofCreeksides’ permit applications.

Full report here.

Continue Reading County Withdraws Motion to Dismiss Land Use Civil Rights Complaint

The Garden Island reports that the Kauai County Council is considering a ban on “gated communities” —

A stalled plan to ban gated communitiesshould return to County Council’s agenda by the end of February, MayorBryan Baptiste said yesterday. 
   
“It’s not a public safety issue to me,” he said. “It’s so we don’t isolate ourselves from each other.”

All I can say about the issue is, what about the right to excludeothers?  This may be the most fundamental “stick” in the bundle of rightsknown as property, and can’t be taken away by regulation, no matter how well-intentioned the regulation may be. 

After all, if you can’t keep others off your property, what have you got left?  According to the U.S. Supreme Court, nothing (except perhaps a per se regulatory takings claim).  As the Court held in Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987):

We have repeatedly…

Continue Reading The Right to Exclude Others From Gated Communities