Land use law

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ThinkTech Hawaii, Jay Fidell’s Hawaii Public Radio program on FM89.3 KIPO, has posted both the show (20mb mp3) and the aftershow podcast (13mb mp3) of  yesterday’s “Honolulu’s Fixed Guideways – How Will The Surrounding Areas be Developed.”  I was a guest along with UH Law Professor David Callies, and Honolulu attorney and developer Vernon Woo.

Stream the show here:

And the aftershow here:

Jay led a wide-ranging discussion on legal, land use, and political issues related to Honolulu’s $4B “fixed guideway” mass transit system.  We talked about public-private development partnerships, eminent domain, transit-oriented development and other related subjects.  Jay’s final question: “if you were King, what would you do about the rail?”  Food for thought.

Honolulu City Councilperson Charles Djou and transit expert Cliff Slater also called in with their thoughts.Continue Reading ▪ Honolulu’s Rail Project: Podcast of Hawaii Public Radio Program (mp3)

A heads up: from 5 – 6 pm on Wednesday, May 23, I will be a guest on Jay Fidell’s ThinkTech Hawaii program on Hawaii Public Radio, KIPO. 

The topic? “Oahu’s Light Rail – How Will the Surrounding Areas be Developed.”   KIPO can be tuned in at FM89.3, or streaming audio is available here.  ThinkTech also posts a podcast of the show a couple of days afterwards, and I will post a link when it becomes available.

Joining me as guests will be Professor David Callies of the UH Law School, and Honolulu City Councilperson Charles Djou.  Hope you can listen in.Continue Reading ▪ Tune In, Turn On: KIPO FM89.3 Wed., May 23 @ 5pm HST

Ks_ag_bldg_2A story from today’s Garden Island News, about the Kauai Springs case, reporting that the circuit court has granted the company’s request for a preliminary injunction, preventing the County from putting Kauai Springs out of business while the appeal is being considered. 

The case is the appeal by Kauai’s only bottled water company of the Kauai Planning Commission’s denial of a request for a permit to use agriculturally zoned land for a small bottling facility (pictured).  The Planning Commission denied the request because it had “concerns” that the State Commission on Water Resource Managment and State Public Utilities Commission might regulate Kauai Springs, despite the fact that both agencies expressly told the Planning Commisssion that they had no problem at all.

A state judge has verbally approved a preliminary injunction to allow Kaua‘i Springs to continue operating a water-bottling plant in Koloa as it appeals a county decision to…

Continue Reading ▪ Preliminary Injunction in Kauai Zoning Permit Case

The Star-Bulletin also reports on the Kauai Springs litigation, a case challenging the Kauai Planning Department’s denial of a request to use land zoned “Agriculture” on grounds wholly outside its authority or jurisdiction:

The lawyer for Kauai Springs, however, said that water is a food like any other agricultural product and that closing down an agricultural business for commercially selling its product is ludicrous.

Robert Thomas, an attorney with Pacific Legal Foundation[*] representing Kauai Springs, said last week that the commission made a hasty decision, overstepped its bounds and made a decision on water rights, not land rights.

Both the state Public Utilities Commission and the State Commission on Water Resource Management wrote letters to the county, saying the company had met all their criteria.

Full story here.  [*Note – one correction: I’m representing Kauai Springs in my private capacity, and Pacific Legal Foundation is not presently involved.]  Continue Reading ▪ More on Kauai Zoning Permit Case

Kauai’s newspaper, in a story entitled “Kauai Springs operating for now,” reports on a case:

“We’re in a holding pattern,” said Robert Thomas, an attorney with Damon Key Leong Kupchak Hastert representing Kaua‘i Springs.

In March, Kaua‘i Springs appealed the Planning Commission’s decision to deny its request for a use permit, special permit and Class IV Zoning permit.

The company had requested the additional permits after a competitor complained that it was conducting industrial activity on agricultural lands, according to Thomas.

When owner Jim Satterfield set up shop in 2004, he did so with county, state and federal approval.

Thomas said that while his client did not agree that more permits were necessary when the issue came up earlier this year, he decided to pursue them because there had not been problems in the past.

Full article here.Continue Reading ▪ Kauai Zoning Permit Case Reported

Waves

Today, I filed an amicus brief (750k pdf) in the appeal regarding “Act 73,” the state statute (codifed here and here) which declared that shoreline land naturally accreted belongs to the State of Hawaii and is public property.

Act 73 overturned the age-old rule of shoreline accretion and erosion, which held that beachfront owners lose ownership of land when it erodes, but gain it when it accretes.  Instead of these balanced rules, Act 73 made the erosion/accretion equation one-sided: the State wins every time.

The trial court held that Act 73 was unconstitutional and violated the Hawaii takings clause, article I, § 20 of the Hawaii Constitution.  The court enjoined enforcement of the Act, and the State appealed to the Hawaii Intermediate Court of Appeals.  My brief deals with two points:

First, the right to future accretions is property protected by the Hawaii and U.S. Constitutions from…

Continue Reading ▪ Amicus Brief in Accretion Appeal: Heads, the State Wins; Tails You Lose

The Washington (state) Supreme Court, in Sleasman v. City of Lacey (No. 77590-7, Feb. 8, 2007), decided what it means to have a developed parcel.  Actually, the court determined what the terms “undeveloped” and “partially developed” mean within the context of a local ordinance that regulates tree removal on such property.  The opinion is a good primer on what it means to own “developed” vs “undeveloped” property, even though it is Washington law-specific, since it discusses decisions from other jurisdictions.  Bottom line, according to the court, is that development takes place when the owner makes raw land suitable for residential or commercial use.  Best line in the opinion is the last, however:   

Lacey claims attorney fees under RCW 4.84.370 as a prevailing party.  But it isn’t.

If only all court opinions were that direct.Continue Reading ▪ What is “Developed” Property?

The transcript of the oral argument in Sole v. Wyner (No. 06-531) (docket listing here) has been posted on the SCOTUS web site here.  That case presents the issue of whether a party who wins apreliminary injunction — but ultimately loses the case — has”prevailed” under a federal statute that allows a “prevailing party” to collect its legal fees and costs from the other side when federal civil rights are vindicated by an action pursuant to 42 USC § 1983.

That case arose in the First Amendment free speech context, but the decision will be important to property owners and regulatory authorities since the Fifth and Fourteenth Amendment’s property protections are federal civil rights, and 42 USC  § 1983 is often the vehicle by which these rights are protected.  Background on the case here, and (from SCOTUSblog) here.

The colloquy between the Justices and…

Continue Reading ▪ It Ain’t Over ‘Til It’s Over: Transcript of Argument in Attorney’s Fees Case

In Hawaii Home Infusion Assoc. v. Befitel, (No. 27256, Apr. 16, 2007), the Hawaii Supreme Court held that the venue provisions in the declaratory judgment section of the Hawaii Administrative Procedures Act, Haw. Rev. Stat. § 91-7, are jurisdictional, and such actions must be brought in the judicial circuit in which the petitioner is domiciled. 

The critical language is set forth in the statute, which allows “any interested person” to seek a judicial declaration that an agency’s rules are illegal:

§ 91-7  Declaratory judgment on validity ofrules.  (a)  Any interested person may obtain a judicial declaration as tothe validity of an agency rule as provided in subsection (b) herein by bringingan action against the agency in the circuit court of the county in whichpetitioner resides or has its principal place of business.  The action may bemaintained whether or not petitioner has first requested the agency to…

Continue Reading ▪ HAWSCT: Venue in Declaratory Actions on Legality of Agency Rules is Jurisdictional