Land use law

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Here’s one for you land users which details how the very broad way Hawaii Supreme Court treats claims of jurisidictional ripeness.

In Blake v. County of Kauai Planning Comm’n, No. SCWC-11-0000342 (Dec. 19, 2013), the court held that a third-party challenge to the Kauai Planning Commission’s subidivision approval was ripe for adjudication, and that the trial court should have exercised subject-matter jurisdiction. This case was not an administrative appeal under the Administrative Procedures Act, but nonetheless turned on the issue of whether a state agency had taken “final agency action” under the judicially-adopted doctrine of ripeness. The court concluded that the fact that a state agency’s approval which was necessary before a subdivision could go foward was not an impediment to a challenge to a county’s subdivision approval. 

The details of the case are set out at length in Chief Justice Recktenwald’s opinion, but here are the salient facts.

Continue Reading HAWSCT: State Agency Approval Not A Ripeness Bar To Challenge To County Approvals

Here’s the Brief for the United States in Marvin M. Brandt Revocable Trust v. United States, No. 12-1173 (filed Dec. 17, 2013).

That’s the case, set for argument on January 14, 2014, in which the Court is considering the meaning of the term railroad “right of way” as used in an 1875 federal statute.

As our amici brief argues, if the Court accepts the government’s theory in the case, it could wipe out an entire class of rails-to-trails takings cases.

Brief for the United States, Marvin M. Brandt Revocable Trust v. United States, No. 12-1173 (Dec. 17, 2013)…

Continue Reading Gov’t Merits Brief In Rails To Trails Case

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…or at least an appeal from a contested case.

The Hawaii Supreme Court has issued its latest opinion in the apparently eternal metaphysical question of the circuit courts’ appellate jurisdiction to review decisions under the Hawaii Administrative Procedures Act, Haw. Rev. Stat. § 91-14 of state and county agencies acting in their quasi-judicial capacities.  

As we’ve discussed many times, that statute gives the circuit courts jurisdiction to review agency final decisions in “contested cases” (agency hearings which are required “by law,” i.e., rule, statute, or due process requirements, and that determine the “legal rights, duties, or privileges of specific parties”).

“Contested cases” do not need to be labeled as such, but are fairly easy to identify: for the most part, they look like trials (witnesses, evidence, and the like). But not always so: pretty much any agency ruling in a that is the result of a hearing in…

Continue Reading HAWSCT: Demand A Contested Case, And There’s A Good Chance You’ll Get One

Cover_42_3_ The Urban Lawyer, the law review produced by the ABA Section of State & Local Goverment Law has published my article Recent Developments in Regulatory Takings, 45 Urban Lawyer 769 (2013).

Here’s the Introduction to the article:

THE SUPREME COURT’S 2012 TERM promised to be a banner year in regulatory takings law, with no less than three cases on the Court’s docket. In Arkansas Game and Fish Commission v. United States, a case involving a takings claim against the federal government for compensation resulting from a flood, the Court held that flooding need not be “permanent” in order to result in liability, and reinforced the principle that categorical takings are not favored, and stated that the default analysis is the multi-factored Penn Central test. In Koontz v. St. Johns River Water Management District, the Court held that monetary development exactions fall within the reach of the…

Continue Reading New Article: Recent Developments in Regulatory Takings

Last we checked in, the California Supreme Court had agreed to review the Court of Appeal’s decision in California Building Industry Ass’n v. City of San Jose (6th District June 6, 2013), which held that under rational basis review (and not heightend scrutiny) the city of San Jose’s “inclusionary housing” ordinance might survive challenge because it was designed to promote the development of affordable housing, and not to mitigate the impacts of market priced housing.

Yesterday, the CBIA filed its Opening Brief in the appeal, which presents a single Question Presented:

Must inclusionary housing ordinances which exact property interests or in-lieu development fees as a condition of development permit approval be reasonably related to the deleterious impact of the development on which they are imposed, as set forth in San Remo Hotel L.P. v. City & County of San Francisco, 27 Cal. 4th 643, 670 (2002)?

The brief answers …

Continue Reading Opening Brief In Cal Supreme Court “Inclusionary Housing” Exactions Case

14.AGRHIOne of the hottest issues in Hawaii at the moment is agriculture. From the spreading county restrictions on GMO crops and pesticides, to water issues, to estate planning, the issues impacting farmers, ranchers, and owners of Ag land are growing. 

On January 8 and 9, 2014, the Seminar Group is putting on what we hope will become a regular event – the Hawaii Agriculture Conference. This two-day conference is for both farmers and lawyers, and covers these issues and others:

  • Contracts and marketing methods for Hawaii agriculture products
  • The Hawaii coffee industry
  • GMO vs organic
  • Zoning and land use issues
  • Exporting issues
  • Water rights
  • Labor law for farmers and ranchers
  • Best husbandry practices
  • Crop loss insurance

I’m the Planning Co-chair, along with David Bateman, a retired lawyer who also happens to be the owner of Heavenly Hawaiian Farms, an award-winning coffee farm on the Big Island. We’ve…

Continue Reading Mark Your Calendars: Hawaii Agriculture Conference, January 8-9, 2014

Usually, in disputes about who owns oceanfront property (in Waikiki, the really nice part of Waikiki, down on the Diamond Head side), each party claims ownership. Beachfront property, after all, is pretty valuable.

But sometimes, it can be a liability. 

So maybe “hot potato” is more accurate in this case, since it involves an old seawall that is badly in need of repair, and it seems everyone is claiming they don’t own it, and that it belongs to someone else. The seawall is located partly on private property and partly on state land, and no one wants to pay to fix it. The private landowners claim the seawall is a public thoroughfare, and argue it was surrendered to the State because they had not exercised ownership for at least five years.

The trial court agreed, and issued these findings of fact and conclusions of law. The most interesting part of …

Continue Reading Hawaii Trial Court: Seawall No One Wants Belongs To State

A key win for property rights today in the Minnesota Supreme Court’s decision in White v. City of Elk River, No. A12-0681 (Dec. 4, 2013). In that case, the court concluded that a municipality could not revoke a campground’s nonconforming use as penalty for alleged violations of the conditions of the conditional use permit. The court also held that a nonconforming use is an independent property right, not a mere privilege as a product of a CUP ordinance. 

The campground had been operating since 1973, well before the city adopted zoning. Seven years later, the city adopted an ordinance which banned campgrounds. Three years later, the city amended the ordinance to allow campgrounds as a conditional use (which required a CUP). But later, the city amended the ordinance yet again, to bar campgrounds entirely. During the time that a CUP was required, the campground got one from the city…

Continue Reading Minn S Ct: Zoning Requirement To Obtain CUP Does Not Affect Nonconforming Use Owner’s Property Rights

We’re offline today because we’re arguing a case in the Hawaii Supreme Court about automatic approval statutes and zoning law. Here’s the summary of the issues, via the Judiciary web site:

This appeal arises out of a decision by the Respondent Planning Commission of the County of Kaua`i (Planning Commission) to deny the Petitioner Kauai Springs, Inc.’s (Kauai Springs) application for three permits related to the continued operation of Kauai Springs’ water bottling facility. The Circuit Court of the Fifth Circuit (circuit court) reversed in part and vacated in part the Planning Commission’s decision and ordered that all three permits be issued to Kauai Springs. The Intermediate Court of Appeals (ICA) subsequently vacated the circuit court’s judgment and remanded the case to the Planning Commission for consideration of whether Kauai Springs could satisfy the relevant permit requirements.

In its application, Kauai Springs argues that the ICA gravely erred by: 1)…

Continue Reading HAWSCT Oral Arguments: Inferring Assent To Extend Auto-approval Deadlines