Zoning & Planning

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Our friend Paul Schwind has been keeping us up to date on the progress, vel non, of the legal challenge to the Honolulu rail project in the United States District Court for the District of Hawaii. We last reported on the status of this litigation on February 18, 2014, when the Ninth Circuit issued its opinion dismissing plaintiffs’ appeal of the judgment and partial injunction in Honolulutraffic.com v. Federal Transit Administration, No. 11-0307 (D. Haw. Dec. 27, 2012).

To our mild surprise, the Ninth Circuit concluded it had appelalte jurisdiction, even though there was a colorable argument that the judgment and partial injunction entered by the District Court was not an appealable order, since at the time of the appeal (May 2013) and oral argument (August 2013), the defendants still had not yet reported their compliance with the judgment, the plaintiffs had not, as a consequence, had time to…

Continue Reading Guest Post: District Court’s Rail Compliance Order in Honolulu Rail Case – A Slam Dunk

Zipler Since this is the season for self-congratulatory industry awards, we can’t overlook one of our industry’s highest honors, the Zoning and Planning Law Report Land Use Decision Awards (aka the “ZiPLeRs”). For those of you who do not subscribe to the Zoning and Planning Law Report, the “strangest, or at least more dramatic” land use cases each year are eligible for nomination for a ZiPLeR. 

Our Owners’ Counsel and ABA colleage Dwight Merriam recently announced the 2013 Awards in the December 2013 issue of ZPLR, but before he got to his tongue-in-cheek detailing of such winners as the “You Can’t Pigeonhole These Pets As An Accessory Use Award,” the “Don’t Be An Ass Award,” and “The Grinch Who Stole The Treehouse Award,” he started off with “The Koontz Corner,” a few pages on the goings-on surrounding one our favorite decisions last year, Koontz v. St. Johns Water Management District…

Continue Reading Paging Dr. Merriam, Stat: One Case Of “Koontz Catatonia”

The Hawaii Supreme Court has issued an opinion in Kauai Springs, Inc. v. Kauai Planning Comm’n, No. SCWC 29440 (Feb. 28, 2014). In its preview of the case, the court framed the issue thusly:

In its application, Kauai Springs argues that the ICA gravely erred by: 1) concluding that Kauai Springs impliedly assented to extend the time frame within which the Planning Commission was required to act on two of the permits; and 2) by remanding the case to the Planning Commission when the Commission already had the opportunity to make the relevant inquiries and denied the permits based on standards that the circuit court and ICA concluded were unreasonable, arbitrary and capricious. The Planning Commission responds that: 1) Kauai Springs’ conduct during the Commission’s proceedings was reasonably interpreted as manifesting assent to delaying action on the two permits; and 2) the ICA properly remanded the case because…

Continue Reading HAWSCT On Water, Public Trust Duties, And Autoapproval Requirements

Word comes our way that a bill has been introduced in the Hawaii legislature that would eliminate the primary jurisdiction doctrine and the requirement to exhaust administrative remedies for a narrow class of cases to allow a neighbor to “enforce zoning violations related to transient vacation rental on neighboring property.” 

In Pavsek v. Sandvold, 127 Haw. 390, 279 P.3d 55 (Haw. App. 2012), the Intermediate Court of Appeals concluded that a state statute (Haw. Rev. Stat. § 46-4(a)) allowes a person directly affected by an alleged violation of a county’s land use or zoning ordinance to bring a private enforcement action. The court also held, however, that this private right of action is subject to the usual rules of primary jurisdiction. In other words, you can sue to enforce the zoning code, but you’ve got to do it by first going through the county’s administrative review process…

Continue Reading Bad Idea, Part II: There’s Already A “Private Right Of Action” To Enforce Zoning Ordinances

Here’s more on that bill which we noted the other day that is making its way through the Florida legislature. The bill would prohibit Florida municipal and local governments from inserting a condition in a development permit unless the exaction is related to the “direct impact of a proposed development.”

In “Bills would expand on U.S. Supreme Court ruling in Florida property ‘takings’ case,” in the Florida Current, Bruce Richie writes that “HB 1077 and SB 1310 appear to have backing from property rights supporters following a U.S. Supreme Court decision last year involving the St. Johns River Water Management District.” He was also kind enough to seek out our input:

Robert H. Thomas, a lawyer in Hawaii who represents the Pacific Legal Foundation in cases there, said having a state law in place provides another layer of protection beyond the U.S. Supreme Court decision. He said some legal…

Continue Reading More On Florida’s Post-Koontz Legislation

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I have a long-running and good-natured contest with my Owners’ Counsel and ABA colleague Dwight Merriam about who gets items of interest “fastest with the mostest.”  More than a few times has he sent me items, only to find out that we’ve already posted on the subject, or there is a post in the hopper. 

But sometimes, not only is Dwight ahead of me, he’s way in front. Today is one of those days. Dwight sends along a bill (HB 1077), now making its way through the Florida Legislature that we were not even aware of until today, but which is of great interest. The bill would prohibit Florida municipal and local governments from inserting a condition in a development permit unless the exaction is related to the “direct impact of a proposed development.”

(1) The Legislature finds that in the land use planning and permitting process, a…

Continue Reading Inverse Schadenfreude: We Are Beaten To The Punch With Florida’s Proposal To Limit Exaction Demands

Looks like they’re at it again, a solution in search of a problem: a bill has been proposed in the Hawaii Legislature to create an “Environmental Court,” whose mission would be to handle “environmental disputes” arising under a wide range of state statutes:

…administrative proceedings and proceedings for declaratory judgment on the validity of agency rules authorized under chapter 91, arising under chapters 6D, 6E, 6K, 54, 58, 128D, 128E, 201N, 205, 205A, 220, 269, 339, 339D, 340A, 340B, 340E, 340F, 342B, 342C, 342D, 342E, 342F, 342G, 342H, 342I, 342J, 342L, 342P, 343, 508C, and 664, and Titles 11 and 12.

(And the regulations promulgated by state agencies, and ordinances and regulations promulgated by the counties, no doubt.) The bill (SB 632) would task this new court with “maintenance and improvement” of the environment and with exercising “constant vigilence” to “promote and protect Hawaii’s natural environment through consistent…

Continue Reading Does Hawaii Need An “Environmental Court?” (Part II)

The Hawaii Supreme Court has been on a roll lately, giving us a series of decisions clarifying appellate procedure. So in the past couple of months, we’ve got cases about appealability, dismissing appeals for a brief not conforming to the rules, and what is a final appealable order. Good stuff for those of us who practice a lot in the appellate courts. 

Here’s the latest (and bonus for us, it’s a land use case). It addresses what remedy should be applied by a court of appeals when a case becomes moot while on appeal, and what a court should do with the appealed-from judgment: leave it in place even though it has been rendered academic, or vacate it and wipe it off the books as if it never existed at all? 

The court framed the issue and its conclusion in Goo v. Arakawa, No. SCWC-30142 (Feb.

Continue Reading How Do You Solve A Problem Like … Appellate Mootness? More Process!

BadspockReading the Alabama Supreme Court’s decision in City of Alabaster v. Shelby Land Partners, LLC, No.1120677 (Jan. 24, 2014), we are reminded of that episode of Star Trek where the gang accidentally ends up in a parallel universe, where things are all backwards. That’s the episode that probably started the meme that in order to portray someone as “evil,” just give ’em a Van Dyke, like mirror Mr. Spock. Well, to an outside observer like us, nearly every party in the City of Alabaster case may need a beard, because the situation, with the exception of the final result, seemed so backwards from the situation that we’re used to in zoning cases.

Here, the developer wanted to make less intensive use of its property — it asked for a downzoning to allow a senior residence in a commercial district — and asked the City for a change in designation…

Continue Reading The “Alternate Universe” Of Alabama Land Use

Coy Koontz, Jr., the prevailing property owner in Koontz v. St. Johns Water Management District, No. 11-1147 (June 25, 2013) joined our Pacific Legal Foundation colleague Jim Burling for an interview on Fox and Friends.

Kudos to Jim and Mr. Koontz for getting down to the studio in the wee hours of the morning — we shared dinner last night (Mr. Koontz has joined us to accept the 2014 Crystal Eagle award from Owners’ Counsel of America on Saturday), and even after all that a New Orleans meal involves, they were able to drag themselves to the studio and look remarkably fresh. Good work, guys.Continue Reading Coy Koontz, Prevailing Property Owner In SCOTUS Victory, Interviewed