Land use law

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Two stories in today’s Honolulu papers, “Wal-Mart fights Kauai ban on ‘big-box’ stores,” “Wal-Mart says it will fight for Kauai expansion,” contain all the buzzwords indicating a vested rights and zoning estoppel dispute may be on the horizon.  The Advertiser writes:

A recent Kaua’i County ban on new “big-box” stores shouldn’t apply to a planned expansion of Wal-Mart’s existing store to a supercenter with a full-line grocery store, according to the retailer.

Wal-Mart yesterday announced it believes its project was approved before the ban because the county approved a masterplan years ago for its 119,000-square-foot Lihu’e store that included future phases to enlarge the store up to 185,000 square feet.
. . .

The County Council in May passed an ordinance prohibiting development of any retail or wholesale establishment bigger than 75,000 square feet.

Councilman Jay Furfaro said he was surprised by Wal-Mart’s position, especially since…

Continue Reading ▪ Vested Rights/Zoning Estoppel Dispute Brewing on Kauai

The Hawaii Supreme Court has issued an opinion in Brescia v. North Shore Ohana (No. 27211, July 12, 2007), a case discussing shoreline setbacks, due process, and vested rights.  I haven’t had a chance to read the majority opinion authored by Justice Acoba, or the concurring opinion by Justice Levinson, but will post more after I review them.Continue Reading ▪ HAWSCT: Shoreline Setbacks, Due Process and Vested Rights

The Advertiser has published my commentary on Wilkie, the decision from the Supreme Court denying a comprehensive remedy for violation of property rights by federal officials. 

Little-Noticed Decision Erodes Property Rights

Imagine this: You own land, and federal officials ask you to allow the public to cross over it, but they don’t offer you anything in return. Their bargaining position is blunt: Give us the easement, or else. So you politely say, “No, thanks.” It’s your land, and the U.S. Constitution’s Fifth and 14th Amendments recognize your right to keep others off your property, even government officials.

The Fifth Amendment provides that “nor shall private property be taken for public use, without just compensation,” which means if the government wants an easement, it needs to pay for it. But an official tells you, “The federal government does not negotiate.” So instead of backing off, or purchasing the land, the…

Continue Reading ▪ Honolulu Advertiser Op-ed on Wilkie v. Robbins

In a decision out of Ohio, the US Court of Appeals for the Sixth Circuit, held in Pagan v. Fruchey, No. 04-4414 (6th Cir. June 29, 2007) that the First Amendment prohibits the government from outlawing a “for sale” sign on cars parked on a public street. 

After he was threatened with a ticket for leaving his car on a Glenwood, Ohio street with such a sign, the car’s owner brought suit in federal court for violation of his First Amendment commercial speech rights.  The question before the court was not whether the sale sign was commercial speech or whether it was constitutionally protected — the parties agreed that it was.  The issue was whether Glenwood had justified its restrictions as advancing an important regulatory objective.  Glenwood claimed that the ordinance advanced its interests in traffic safety and “aesthetics,” but the court held these were mere conclusions, and there…

Continue Reading ▪ “For Sale” Signs on Cars on Public Property

The above-the-fold headline story in today’s Honolulu Advertiser screams “Public denied access to some Oahu beaches.”  The only thing missing is a string of exclamation points following the headline.  The story details the relatively rare situation where the public is not permitted to cross private land to access a beach, but you wouldn’t know that from the lede:

The clean, white sandy beach along Iroquois Point offers a stunning view of downtown Honolulu, Waikiki and Diamond Head.

But unless you live there, this beach is off limits. Iroquois Point Island Club, the civilian subdivision that has replaced what was once the Pu’uloa Naval Housing complex, does not allow public access to its beach.

“It’s private property, the roads are private, they’re not city and county,” said Steve Colon, president of Hunt Development’s Hawai’i division, which operates the property.

Other private, oceanfront developments on O’ahu — including Ko Olina and Turtle Bay — offer beach access to the public.

State law requires all beaches remain accessible to the public, and counties must make sure the public can reach the beach in areas where private property dominates.

But the Iroquois Point Island Club, which rents homes to the public, can refuse access to its beach because it is on land belonging to the Navy. Military property is exempt from the state and county beach access rules. The Navy leased Iroquois Point to a private developer for 65 years.

It takes six paragraphs to get to the crux of the issue — its federal land, so naturally, state and local law does not govern what the property owners (or its lessees) can and can’t do with it.  That principle alone should not be controversial, as it is based in the US Constitution’s Supremacy Clause and the doctrine of federal preemption.  But if a few of the comments on the story are any indication, the legal niceties matter little. 

That seems to be more the norm than the exception when shoreline ownership and access are concerned, as anything even touching upon our beaches becomes a highly charged issue, not just in Hawaii, but as I mentioned in the July 2006 ABA Journal in a story about seawalls and property rights in Florida:

“It’s hard to find a middle ground on this,” . . . “Every time someone sneezes on the shoreline, it’s front-page news.”

That’s literally true, today.Continue Reading ▪ Shoreline Public Access on Federally Owned Land

More on the US Supreme Court’s opinion (400kb pdf) in Wilkie v. Robbins (No. 06-219, June 25, 2007) (also posted here in HTML), a decision that unfortunately has not garnered much attention, despite the fact that its this year’s version Kelo.  The following items have been posted so far:

My previous posts on the case:

  • Bong Hits, Pull My Finger Fred, and Remedies for Fifth Amendment Violations (about the oral arguments)
  • Links to Further Wilkie Analysis
  • More on Wilkie

    • …
    Continue Reading ▪ Government Gone Wild: More on Wilkie v. Robbins

    The US Supreme Court has issued its opinion in Wilkie v. Robbins (No. 06-219, June 25, 2007), a case I posted about here.  The legal issues in the case were whether there is a claim for RICO violations and a private claim for relief when federal officials are alleged to violate a property owner’s Fifth Amendment rights, retailing against him when he refused to provide free access to his land.  The Court held “no.”  More to follow after a better chance to digest the many opinions.  Preemptive Karma posts her (his? its?) thoughts here:

    The Supreme Court basically said that even if government officialsengage in behavior that would normally be considered racketeering, ifthey’re doing it in pursuit of their duties for the government and notfor any benefit for themselves, then they cannot be held personallyresponsible for racketeering. It pretty much seals sovereign immunityin stone. No matter where…

    Continue Reading ▪ Government Gone Wild: Wilkie v. Robbins Decided

    West Hawaii Today has posted a story on an ongoing eminent domain case:

    Counsel for the developer William Meheula Jr. saidinverse condemnation can only be proven if the defendants admit thatthe government is taking possession of the private property for apublic purpose. The Coupe case claims the lack of public purpose fortaking the 3-acre strip of land for the highway.

    Meheula saidOceanside was not opposing the Coupe’s claims regarding public purposeand would address those during the trial, but said it was notappropriate to argue inverse condemnation at the same time.

    However,Robert Thomas, counsel for the defendants, who counter sued the countyto block the eminent domain proceedings, said there are no HawaiiSupreme Court cases that can be used to support Meheula’s claims.

    Ifthey do not prevail, the Coupe’s attorneys are also arguing “blight ofsummons damages,” which compensates a landowner in a condemnationaction for the damages resulting from the government’s delay in…

    Continue Reading ▪ Inverse Condemnation, Eminent Domain, and Development Agreements