Vested rights

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Hat tip to Supreme Court of Hawaii Blog for posting a Maui County press release announcing that on December 17, 2007, the US District Court for the District of Hawaii dismissed, for failure to state a claim, most of the allegations in the lawsuit by the Maui Vacation Rental Association.  The Maui News reports the story here, and Jesse Souki amalgamates his posts on the case at his Hawaii Land Use Law blog here. 

Failure to state a claim means either that a cause of action alleged by the plaintiff is not recognized, or, more commonly, that the plaintiff failed to properly plead an essential element of her legal claim.

Here’s the court’s summary order.  When the court issues its full written order, we’ll post it.Continue Reading Federal Court Dismisses Most of Maui Vacation Rental Lawsuit

Here are the latest filings in the federal lawsuit by the Maui Vacation Rental Association against the County of Maui.  The court asked for further briefing on the due process claim.   The plaintiff’s supplemental brief is here, and the County’s supplemental brief is here.

Previous posts on the case, including prior briefs and other pleadings, are here, here (video), here, and here.  The hearing on the County’s motion to dismiss is scheduled for December 19, 2007, at 9:00 a.m.Continue Reading Latest Briefs in Maui Vacation Rental Case

The Wall Street Journal posts “Whose Beach Is This Anyway,” a story about how shoreline erosion is resulting in legal disputes nationwide over ownership and building setbacks.

The story notes Hawaii’s Diamond v. Bd. of Land and Nat. Res., 112 Haw. 161, 145 P.3d 704 (Oct. 24, 2006), a case which I discussed here:

Property owners are battling in some states overso-called building setbacks, which dictate how far new structures mustbe built from the water. Hawaiian counties, for example, require thatnew construction be at least 20 feet and often up to 40 feet inland ofthe shoreline.

In recent years, some landowners planted salt-tolerantplants at their seaward property line, hoping the vegetation line wouldserve as the shoreline for setback purposes even if the tide sometimesextended past the plants. The state agreed in some cases, but concernedneighbors and environmental groups sued to have the issue clarified.Hawaii’s Supreme Court…

Continue Reading Wall St. Journal on Beach Erosion Issues (video)

Thanks to Timothy Sandefur at PLF on Eminent Domain for calling attention to the Colorado Supreme Court’s opinion in Wheat Ridge Urban Renewal Auth. v. Cornerstone Group XXII, LLC, No. 06SC591 (Dec. 3, 2007). 

In that case, the court refused to order a redevelopment agency to condemn private property and turn it over to a developer to build a Walgreen’s store.  The court held that judges have no authority to compel an agency to take property even if the agency had entered into a contract with the developer in which it agreed to do so.  While not expressly relying on separation of powers, the court’s opinion clearly was based on its concern with preserving the agency’s discretion to condemn (or not condemn) private property.  See slip op. at 21-22.  The bottom line is that in Colorado, courts have no jurisdiction to fashion a specific performance remedy requiring the government to exercise a sovereign power.

Professor Ilya Somin calls the victory “Pyrrhic” in his analysis of the decision, suggesting the court’s “reasoning is likely to undermine property rights in the long run.”  While the opinion is often opaque and many of its premises difficult to fathom, I’m not so sure the case should be considered so poorly.  After all, the court reached a good result, although its analysis ventures into areas it need not have gone.  Continue Reading Court Has No Power to Order Government to Take Property

Just received notice of a new book published by University of Hawaii School of Law Professor Jon Van Dyke, Who Owns the Crown Lands of Hawaii.  According to the summary from UH Press:

In this engrossing work, Jon Van Dyke describes and analyzes in detailthe complex cultural and legal history of Hawai‘i’s Crown Lands. Heargues that these lands must be examined as a separate entity and theirunique status recognized. Government Lands were created to provide forthe needs of the general population; Crown Lands were part of thepersonal domain of Kamehameha III and evolved into a resource designedto support the mô‘î [king], who in turn supported the Native Hawaiian people. Continue Reading Hawaii’s Unique Property Law History

The Maui News reports that the County of Maui has filed a “response” (motion to dismiss) to the federal complaint brought by the Maui Vacation Rental Association against the County.  I posted about the case here.  The complaint summarizes the claims:

This is an action for injunctive and declaratory relief againstdefendants, and each of them, for their conduct in dealing with theowners of property being used as Transient Vacation Rentals in theCounty of Maui. Plaintiff alleges procedural and substantive dueprocess and equal protection violations, equitable estoppel, breach ofexpress and implied contract. Plaintiff also alleges municipalliability for failure to adequately train and supervise entityemployees, and for the maintenance of illegal customs and policies,both of which cause and allow constitutional violations of proceduraldue process, substantive due process, equal protection, and deprivationof honest government services, in violation of the Fourth, Fifth andFourteenth Amendments to the U.S. Constitution.

Download the Complaint (800kb pdf)…

Continue Reading ▪ Government Response in Maui Vacation Rental Lawsuit

The Maui Vacation Rental Association has sued the County of Maui, the county Planning Director, and the Department of Planning in federal court in Honolulu for constitutional and other violations, seeking declaratory and injunctive relief.  The complaint summarizes the claims:

This is an action for injunctive and declaratory relief against defendants, and each of them, for their conduct in dealing with the owners of property being used as Transient Vacation Rentals in the County of Maui. Plaintiff alleges procedural and substantive due process and equal protection violations, equitable estoppel, breach of express and implied contract. Plaintiff also alleges municipal liability for failure to adequately train and supervise entity employees, and for the maintenance of illegal customs and policies, both of which cause and allow constitutional violations of procedural due process, substantive due process, equal protection, and deprivation of honest government services, in violation of the Fourth, Fifth and Fourteenth Amendments…

Continue Reading ▪ Maui Sued in Federal Court for Vacation Rental Policies

The Honolulu Star-Bulletin has posted a story on the recent Hawaii Supreme Court decision in Brescia v. North Shore Ohana (No. 27211, July 12, 2007), entitled “Rocker’s plans for Kauai home blocked.”  According to the story, it turns out the decision in Brescia also impacts a neighboring property belonging to the lead singer of the Red Hot Chili Peppers.  My thoughts on the case, minus the rockstar references, here.Continue Reading ▪ More on Brescia — The Rockstar Angle

More on the Supreme Court of Hawaii opinion in Brescia v. North Shore Ohana (No. 27211, July 12, 2007).  The Court took up no less than seven points on appeal, but the most interesting to me was the analysis of the estoppel issue.

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 the counties have authority to regulate uses within the SMA, including the location of the “shoreline setback,” which is (like other setbacks) an unbuildable 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.

“Estoppel” means that…

Continue Reading ▪ HAWSCT: Estoppel and Shoreline Setbacks

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