Land use law

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It’s a pretty rare event when a court invalidates a law for violating the Equal Protection clauses of either the Hawaii or U.S. Constitution under rational basis review.  In Silva v. City & County of Honolulu, No. 27385 (Aug. 10, 2007), the Hawaii Supreme Court did just that, holding that Haw. Rev. Stat. § 46-72 was irrational, and violated the Hawaii Constitution.  More here.Continue Reading 2007 Land Use in Review: Hawaii Supreme Court Lowers the Bar in Equal Protection “Rational Basis” Analysis

In Brescia v. North Shore Ohana(No. 27211, July 12, 2007), the Hawaii Supreme Court held that a property owner was not entitled to rely upon a county planning commission’s determination of the location of a shoreline setback when the planning commission retained the authority to give official assurances.  The case involved Kauai property within the coastal “Special Management Area.”  The SMA is, generally speaking, the land nearest the shoreline, as defined in Hawaii’s Coastal Zone Management Act, Haw. Rev. Stat. ch. 205A. The CZMA established special controls for this strip of land, and thecounties have authority to regulate uses within the SMA, including thelocation of the “shoreline setback,” which is (like other setbacks) anunbuildable zone that “sets back” structures from the shoreline.  The statewide minimum setback is established by the CZMA, but the individual counties are permitted to establish greater setbacks, which vary from county-to-county.  Continue Reading 2007 Land Use in Review: Estoppel and Shoreline Setbacks

Administrative Procedures in Land Use Cases:  In Citizens Against Reckless Development v. Zoning Bd. of Appeals of the City and County of Honolulu (No. 27264, May 31, 2007), the Hawaii Supreme Court tackled the issue of when a request for anagency to issue a declaratory ruling under Haw. Rev. Stat. § 91-8can effectively substitute for an appeal of an agency decision, and when it can’t.Continue Reading 2007 Land Use in Review: CARD v. ZBA – Administrative Procedures in Land Use Cases

In Hawaii Home Infusion Assoc. v. Befitel,(No. 27256, Apr. 16, 2007), the Hawaii Supreme Court held that thevenue provisions in the declaratory judgment section of the HawaiiAdministrative Procedures Act, Haw. Rev. Stat. § 91-7,are jurisdictional, and such actions must be brought in the judicialcircuit in which the petitioner is domiciled.  Find out why thisdecision is important in the land use arena by reading this post.Continue Reading 2007 Land Use in Review: Venue in Declaratory Actions on Legality of Agency Rules is Jurisdictional

In John R. Sand & Gravel v. United States, No. 06-1164 (Jan. 8, 2008), the U.S. Supreme Court held that the six year statute of limitations in the Tucker Act is “jurisdictional,” and must be ruled upon by a court when raised by an amicus on appeal, even when the government had waived it.  The property owner brought an inverse condemnation action in the Court of Federal Claims, asserting the federal government took its property without compensation when it placed fences on its leased property.  Inverse condemnation claims seeking compensation from the federal government in excess of $10,000 must be brought in the CFC.  The Federal Circuit opinion is posted here (500kb pdf).

The short majority opinion by Justice Breyer held that the Court had reached the same result in earlier decisions, and those decisions should not be overruled.  Invoking the principle of stare decisis, the Court held…

Continue Reading Supreme Court: Getting It Right Doesn’t Matter – Statute of Limitations in Inverse Condemnation Claims Against the Federal Government is Jurisdictional

An important case from the Pennsylvania Supreme Court.  In Middletown Township v. The Lands of Josef Seegar Stone, No 64 MAP 2006 (Dec. 28, 2007), the court upheld the power of a local government to take property “for any legitimate purpose,” notwithstanding statutory language that did not extend authority to the town to take property for “open space.”  However, the court struck down the attempted taking because the evidence showed that the realpurpose of the taking was something other than the Township’s stated reason. 

The Township filed a Declaration of Taking to condemn farmland the Stone family wanted to subdivide and presumably develop.  The Township wanted to take the property for “recreational and open space purposes.”  Slip op. at 2.  The property owner objected, arguing the Township was specifically prohibited by state statute from taking land to preserve open space and prevent development.  Pennsylvania’s Lands Act prohibits local government…

Continue Reading PA Supreme Court on Public Use and Pretext – Take That, Kelo

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

A federal regulatory takings claim being litigated in the first instance in federal court?  Why, that’s as rare as hen’s teeth.

Here’s the deal: under Williamson County Regional Planning Comm’n v. Hamilton Bank,473 U.S. 172 (1985), a federal regulatory takings claim is not ripe until the property owners has first pursued compensation through available state procedures.  In other words, property owner, go first to state court.  But under City of Chicago v. Int’l College of Surgeons, 522 U.S. 156 (1997), the same rules don’t apply to the government, since it can choose to remove a state court takings claim to federal court, and have the property owner’s federal claims heard initially in federal court.  So in those rare circumstances when a local government wants to buck conventional wisdom and litigate a takings claim in federal court, it has the choice of forum.

For one recent example of this…

Continue Reading Regulatory Takings Claims in Federal Court?

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

These seemingly unrelated court decisions were tied together with a common thread: private agreements for the most part are not substitutes for public processes, whether it is eminent domain, rezoning, or the granting of permits.   

Several courts determined that agreements in which government agreed with private parties to exercise eminent domain were invalid: 

  • One case (in which I am involved as counsel for the property owners so won’t comment in detail) involved a development agreement between the County of Hawaii and a developer to take property for a road.  The trial court struck down the attempt — here is the court’s Findings of Fact and Conclusions of Law.  More on the case here.
  • In a similar vein, a Washington state court of appeals in HTK Mgm’t, L.L.C. v. Rokan Partners, No. 58113-9-I (Wash. Ct. App., July 23, 2007) held that eminent domain “is an inherent power

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Continue Reading 2007 in Review: Private Agreements and Public Process