Land use law

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I had the pleasure and honor to participate as faculty in this year’s Hawaii Land Use Conference, which wrapped up yesterday. 

The two-day conference covered the spectrum of topics relating to land use, including eminent domain, regulatory takings, endangered species act and federal Corps of Engineers permits, the treatment of agricultural land under Hawaii’s unique regulatory system, zoning and subdivision rules, RLUIPA, vested rights and development agreements, and cultural impact statements.  All presented by the leaders in their respective fields.  I presented a session of shoreline law and regulation (materials posted here), and spent the remainder of the time listening. 

Great stuff.  If you didn’t have the chance to attend this year, you should consider it for next.Continue Reading ▪ Hawaii Land Use Conference Summary

According to one U.S. District Court (N.D. Iowa), there is no right to a jury trial on the issue of whether a land use ordinance is constitutional.  The decision applies City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999).  In Doctor John’s Inc., v. City of Sioux City, a case involving the regulation of the plaintiff’s “adult” store, the district court held that the  City has no Seventh Amendment right to trial by jury on the issue of whether its ordinances are constitutional.

The court’s decision can be found here (pdf).

    
Continue Reading ▪ No Jury Trial on “Constitutionality” of Land Use Laws

As a way of saying “aloha” to 2006, I’ve summarized the land use lawhighlights (orlowlights, depending on your point of view) from the Hawaii SupremeCourt, the Ninth Circuit, and the U.S. Supreme Court, roughly inchronological order.  Topics include shorelines, eminent domain,environmental impact statements, RLUIPA, vested rights, and land uselitigation procedures.

If you think I missed any key cases or events, please email me.

    
Continue Reading ▪ 2006 Land Use in Review

VeglineOne of 2006’s bigger cases was Diamond v. Bd. of Land and Nat. Res., 112 Haw. 161, 145 P.3d 704 (Oct. 24, 2006), involving the location of the “shoreline” for purposes of determining the buildable area on an oceanfront parcel. 

There was news coverage a-plenty, and I posted more than a few comments on the case and on the coverage.  Start here, then read this, this, this, then this post.

I’d bet this case will have lasting impact, even though it was not about the public-private boundary, and only analyzed the location of the “shoreline” under Hawaii’s Coastal Zone Management Act.Continue Reading ▪ 2006 Land Use in Review: Shoreline Tales

Revisiting the RLUIPA issue, the Ninth Circuit held in Guru Nanak Sikh Society of Yuba City v. County of Sutter, 456 F.3d 978 (9th Cir., Aug. 1, 2006) that a local land use decision regarding a church’s proposed use of its property violated the federal Religious Land Use and Institutionalized Persons Act of 2000.  While it is not a groundbreaking case, it illustrates the competing dynamics when a church’s desires to use its property clashes with local land use rules.  My summary of the case is posted here.
     Continue Reading ▪ 2006 Land Use in Review: RLUIPA and Local Land Use

I commented upon the decision in  Hui Kakoo Aina Hoopulapula v. Bd. of Land and Nat. Res.,112 Haw. 28, 143 P.3d 1230 (Sep. 21, 2006) earlier in this post. 

This opinion, detailing when and how a contested case may be demanded, should be read together with Aha Hui Malama O Kaniakapupu v. Land Use Comm’n, 111 Haw. 14, 139 P.3d 712 (July 24, 2006) and Keahole Defense Coalition, Inc. v. Bd. of Land and Nat. Res., 110 Haw. 419, 134 P.3d 585 (May 18, 2006).Continue Reading ▪ 2006 Land Use in Review: Contesting Contested Cases

The “public trust” doctrine got a further boost in Kelly v. 1250 Oceanside Partners, 111 Haw. 205, 140 P.3d 985 (July 28, 2006). 

The public trust doctrine in its original form under Hawaii law was that the Crown or government owns title to all land below the high water mark, which is held in trust for the people for navigation and other public purposes.  In other words, land under the ocean is a public resource, and incapable of private ownership.  This doctrine has historical roots in American and English common law. 

In more recent times, that ancient doctrine was expanded when the courts, following the suggestion of influential academics, began using the doctrine to justify finding that more and more resources were subject to the trust, and therefore not private property.  While there is some debate about whether the public trust affects ownership of property subject to the trust…

Continue Reading ▪ 2006 Land Use in Review: Who Protects the Public Trust?

In Aha Hui Malama O Kaniakapupu v. Land Use Comm’n, 111 Haw. 14, 139 P.3d 712 (July 24, 2006), the court set forth the standard for when an agency hearing is a “contested case” under the Hawaii Administrative Procedures Act (HAPA).  The definition is critical because unless a contested case has been conducted by an agency, a circuit court will have no subject matter jurisdiction to consider an appeal from the agency’s decision.

A group opposed to a landowner’s use of its property argued that conditions imposed by the Land Use Commission in its earlier approval of a boundary amendment had not been complied with by the landowner.  The group filed a motion for an order to show cause why the boundary amendment should not be revoked.  The LUC held a hearing and denied the motion.  The group appealed to the circuit court under HAPA.

The circuit court dismissed…

Continue Reading ▪ 2006 Land Use in Review: What is a Contested Case

In Keahole Defense Coalition, Inc. v. Bd. of Land and Nat. Res., 110 Haw. 419, 134 P.3d 585 (May 18, 2006), the Hawaii Supreme Court elaborated on the issue of when a party has  “property” within the meaning of the due process clause of the Hawaii Constitution. 

The twisted procedural history of the case is not worth repeating in detail.  Suffice it to say that the appellant claimed that a state-issued license to provide telecommunications service was “property” protected by article I, section 20 of the Hawaii Constitution. 

The court disagreed, holding the license holder did not have “standing,” and the license was not a constitutionally-protected property interest  The court emphasized these points:

  1. “Standing” is a jurisdictional doctrine – no standing, no jurisdiction.  Important because: the lack of standing can be raised at any time in a case.
  2. The test for standing to appeal is somewhat different than other

…
Continue Reading ▪ 2006 Land Use in Review: No Leg to Stand On

Just in case you were wondering whether Hawaii water rights issues were matters of federal or state law, the Hawaii Supreme Court has provided the answer. 

In Maui Tomorrow v. State of Hawaii, 110 Haw. 234, 131 P.3d 517 (Apr. 5, 2006), the court held that prevailing on a state law water rights claim in state court does not entitle the victor to federal civil rights attorneys fees. 

That conclusion may seem a touch obvious, one might think, but despite a rather clever and “tenuous” argument by the party seeking to fee-shift, the court correctly determined that issues of water rights and the common law public trust were matters of state law.  Disclosure: I represented the Hawaii Farm Bureau Federation, one of the prevailing parties in this appeal.

The appeal arose when the owner of a private water transport system on Maui sought a long term lease from the State Board of Land and Natural Resources, allowing the use of surface water originating in state-owned land.  Several individuals and organizations intervened in the administrative process, alleging that the lease would interfere with their preexisting water rights, rights as Native Hawaiians, and rights under Hawaii’s public trust in water, and that before entering into a lease, the agency must undertake an environmental assessment under the  Hawaii Environmental Policy Act, Haw. Rev. Stat. ch. 343.

The agency rejected the claims, and the intervenors appealed to state court, adding a claim for due process violations.  The trial court ruled against the intervenors and in favor of the state on the due process claims, for the intervenors on the EA and public trust claims, and remanded the case back to the agency.  After judgment was entered, the intervenors sought nearly a quarter of a million dollars in attorneys fee under the federal fee-shifting statute, 42 U.S.C. § 1988.  That statute allows a party who prevails on a federal civil rights claim (42 U.S.C. § 1983) to make the loser pay attorneys fees.  The trial court denied the motion and the intervenors appealed.

The Supreme Court held that despite characterizing their water rights and public trust claims as claims under the law admitting Hawaii as the 50th state (the Admission Act), the claims made by the intervenors were, in reality, arguments under state law. The court compared the claims actually made by the intervenors to the claims theintervenors said they made, and found no federal civil rights claim was present, much less a federal claim on which the intervenors prevailed.  The court characterized the request for attorneys fees as “tenuous,”but refused to impose Rule 11 sanctions for a frivolous argument.

    
Continue Reading ▪ 2006 Land Use in Review: Hawaii Water Law is Not a Federal Case