Vested rights

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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

Last week was a busy one — quite a few local stories about land use and property law.  Here’s a rundown:

  • “It’s a tale of 2 ridges – and 17,500 homes” — The Advertiser reports on, and contrasts, two large-scale residential projects in Central Oahu.  One of the projects, Koa Ridge, resulted in a Hawaii Supreme Court decision on the trigger points to an Environmental Impact Statement, Sierra Club v. State of Hawaii Office of Planning, 109 Haw. 411, 126 P.3d 1089 (2006), which I blogged about here. Compare this story to the next one, from Kauai, and there is the same dynamic at play: we all complain about the lack of “affordable” housing, but often complain when new housing is built because it isn’t going in the “right” place, will increase traffic, and on and on.

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Continue Reading ▪ Hawaii Land Use Roundup

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

Recently, I was a guest on Jay Fidell’s ThinkTech program on Hawaii Public Radio, talking about legal issues that may arise when legislation is targeted at specific individuals or companies (what I refer to as “single victim legislation”). 

The issue raised its head when the Hawaii Legislature seemed ready to consider a proposal requiring one company — and one company only — to undertake an environmental impact statement before beginning its interisland ferry service.  Further background here and here. 

In short, whenever the government attempts to change the ground rules mid-stream, it raises several concerns:

  • Contracts Clause – the US Constitution prohibits a state from enacting a law “impairing the Obligation of Contracts.”  This prohibits a state legislature from altering the terms of a contract existing at the time of the law’s passage, especially when directed at specific parties.  A law is even more suspect when a state is

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Continue Reading ▪ Legal Issues in Single Victim Legislation

A touch of self-promotion.  In February 2006, the University of Hawaii Law Review published an article written by me and my Damon Key colleagues Ken Kupchak and Greg Kugle. 

The title “Arrow of Time: Vested Rights, Zoning Estoppel, and Development Agreements in Hawaii” pretty much sums up the contents.  The article seeks to answer the question: can the government change its mind after it gives a property owner the “green light” to develop?

Details, including how to obtain a copy, here.Continue Reading ▪ 2006 Land Use in Review: What to do if the Government Changes its Mind

City & County of Honolulu v. Sherman, 110 Haw. 39, 129 P.3d 542 (Feb. 28, 2006), is the latest chapter in the use of eminent domain to effect “land reform” in Hawaii.

I.  Background

The story begins long ago when the Hawaii legislatureenacted the statutethat was challenged and sustained in HawaiiHous. Auth. v. Midkiff, 467 U.S. 229 (1984).  Finding thatthe economic ills purportedly caused by the concentrated ownership of privatesingle-family residential property in Hawaii,Haw. Rev. Stat. ch. 516 allowed homeowner/lessees to petition the HawaiiHousing Authority to exercise eminent domain on the homeowner’s behalf andcondemn the fee simple interest underneath their homes from the lessor, andtransfer it to the lessee upon payment of just compensation.

After that statute was upheld by the U.S.Supreme Court against a Fifth Amendment public use challenge in Midkiff,and under the Hawaii Constitution’s public use clause by the Hawaii SupremeCourt in Hawaii Hous. Auth.

Continue Reading ▪ 2006 Land Use in Review: Land Reform Revisited