Zoning & Planning

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That was quick. As we predicted (and urged), the Hawaii Supreme Court today without comment rejected the County of Maui’s application for a writ of certiorari, which asked the court to review the Intermediate Court of Appeals decision in in Leone v. County of Maui, No 29692 (June 22, 2012) (Supreme Court order here).

[Practice sidebar: Hawaii has one intermediate appellate court (so we don’t have lower court “splits,” and under Hawaii appellate procedure, the Supreme Court may “accept” or “reject” an “application” for cert based on whether the ICA “gravely erred.”]

In Leone, the ICA held that property owners alleging a Lucas regulatory taking are not required to seek an amendment to the Community Plan (in Maui County, the CP is like a General Plan in other jurisdictions) in order to ripen their takings claims. A CP amendment is a legislative act, and plaintiffs are…

Continue Reading HAWSCT Rejects County’s Argument That Property Owner Must Change The Law To Ripen Takings Claim

Here’s what we’re reading today:

  • We know you probably read Professor Gideon Kanner’s blog daily, but in case you missed his thoughts about the U.S. Supreme Court’s opinion in Arkansas Game and Fish Comm’n v. United States, No. 11-597 (Dec. 4, 2012), please read them here. Today’s must-read.
  • Today is Pearl Harbor day, so we are linking to our in-person report from last year’s remembrance ceremony.
  • Check out the cert petition in Johnson v. Paynesville Farmers Union Cooperative Oil Co., No. 12678 (Nov. 29, 2012). The question presented is somewhat opaque and we don’t think there’s much chance that it will grab the Court’s attention, but it does involve an interesting issue about pesticide drift and organic certification. The petition challenges the Minnesota Supreme Court’s dismissal of an organic farmer’s nuisance and negligence per se claims because federal regulations do not regulate pesticide drift. Here’s the Court’s

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Continue Reading Friday Round-Up: Flood Takings, Pearl Harbor, Organic Farming

Anyone who practices land use law is familiar with the primary jurisdiction and exhaustion of administrative remedies doctrines. These rules require courts to either dismiss claims or abstain from exercising jurisdiction unless and until an administrative agency has first developed the record and passed on the issues. If you’ve got notice of the action you claim is wrong, you must challenge that decision and seek a contested case in the agency’s review process as a prerequisite to obtaining judicial review.

The latest case from the Hawaii Intermediate Court of Appeals, Dancil v. Arakawa, No. CAAP-11-001029 (Nov. 16, 2012), presents these issues in a familiar context: the County of Maui approved a coastal zone permit allowing a Halloween party to go forward in Lahaina, and someone was against it. After the County issued the permit, the objector did not appeal that decision up through the County’s administrative appeals process within…

Continue Reading HAWICA: Third-Party Objector Must Seek Administrative Relief To Challenge Halloween Party

Believing that discretion was the better part of valor, we didn’t think there would be a challenge to the Hawaii Intermediate Court of Appeals’ opinion in Leone v. County of Maui, No 29692 (June 22, 2012). But we were wrong, and the County of Maui is going all in. 

Update Dec. 12, 2012: cert rejected.

The County has filed a cert application (remember, under Hawaii appellate procedure we don’t “petition” for cert, we “apply”) arguing that a property owner faced with the County’s refusal to even process its request for a use permitted by zoning has an obligation to appeal that refusal up the County’s administrative chain. The reason for the refusal to even consider the request was that the proposed use, while permissible as of right under applicable zoning, was inconsistent with the Community Plan designation (the same as General Plans in most other places), so the…

Continue Reading New HAWSCT Cert App: Williamson County Ripeness Requires Property Owner Change The Law

13.LULHIIt’s back! Time once again for the bi-annual Hawaii Land Use Law Conference, to be held January 17 and 18, 2013 (Thursday and Friday) at the Downtown YWCA (a very convenient venue).

Planning co-chairs Professor David Callies and Ben Kudo have once again assembled a stellar faculty and put together an agenda that covers most topics of interest.

We’ll be moderating a panel on “Development Through Exemptions – The Evolution of Reclassifications, Permitting, Land Use &Development in Hawaii: The Unintended Consequences ofan Increasingly Complex System of Regulations,” featuring panelists Linda L.W. Chow (Deputy Attorney General State of Hawaii), Oswald K. Stender (Office of Hawaiian Affairs), and Kali Watson (Hawaiian Community Development).

Two highlights of the conference:

First, Mike Berger will give the keynote presentation on our favorite topic, regulatory takings: “Taking a Critical Look at 30 Years of the Supreme Court’s Taking Jurisprudence.” Mike has taken the lead in…

Continue Reading Mark Your Calendars: 10th Hawaii Land Use Law Conference (Jan. 17-18, 2013)

Will the multi-billion dollar Honolulu rail project be halted by a federal court over a failure to adequately study the project’s possible effects on Chinatown and an old urban park/playground, or a failure to articulate the reasons why a tunnel under a major city street was rejected?

It might, but not just yet.

Today’s Order on Cross-Motions for Summary Judgment in Honolulutraffic.com v. Federal Transit Administration, No. 11-00307 (D. Haw. Nov. 1, 2012) gave some clues about whether the court would conclusively halt the project, but deferred a ruling until December.

Ninth Circuit Judge A. Wallace Tashima is hearing the case because the entire Hawaii district court bench is recused (see page 39 of the slip opinion for the reason why). In today’s order, he rejected most of the plaintiffs’ challenges to the project under three federal statutes (the Transportation Act, the Natonal Environmental Policy Act, and the National…

Continue Reading Honolulu Rail: Set Phasers On Stun

The U.S. District Court for the District of Hawaii (Circuit Judge A. Wallace Tashima sitting by designation, because the entire Hawaii district court bench is recused) has issued an Order on Cross-Motions for Summary Judgment in the federal challenge to the Honolulu rail project. 

More to follow after a chance to read it.

Our past posts on the Honolulu Rail Project: start here.

Order on Cross-Motions for Summary Judgment, Honolulutraffic.com v. Federal Transit Admin., No. 11-00307 AW…Continue Reading Fed Court: City Failed To Consider Alternatives To Rail

The three-part Penn Central test for an ad hoc regulatory taking tasks courts with evaluation of the economic impact of the regulation on the property’s use, the property owner’s distinct investment-backed expectations, and the character of the government action. Throw all of these “factors” into a pot, stir, and voila, the answer of whether the regulation goes “too far” is supposed to emerge. But try as they might, many courts don’t really have a good idea of how to apply this test, even though in Lingle, the Supreme Court affirmed that it remains the “default” analysis to evaluate most takings claims.

The latest regulatory takings opinion from the Ninth Circuit, Laurel Park Community, LLC v. City of Tumwater, No. 11-35466 (Oct. 29, 2012) is another example of a court applying the test, in this case to evaluate property owners’ claims that the enactment of a new zoning…

Continue Reading 9th Cir: No Facial Penn Central Taking In Ordinance Creating Mobile Home Zoning

If you need another reminder of what land use and zoning law looks like on Kauai in practice (and, in turn, in Hawaii generally), see this article, Hanalei vs. Hanalei in The Garden Island newspaper. It’s about a proposal to develop a new resort that (not surprisingly) is “meeting staunch opposition from a rapidly growing group of people.”

The developer side has its own view, touting the proposed resort as “the most environmentally and culturally responsible visitor-oriented project ever to be proposed in the state.” The story reports that one of the project’s backers is “billionaire and eBay founder Pierre Omidyar,” so that could make this a very interesting development instead of the usual enviros vs developer scenario, since Omidyar, according to at least one of the project’s opponents “has the right mind,” and “right heart” to donate at least part of the land to preserve a viewplane.

The…

Continue Reading A Microcosm Of Hawaii Land Use Law

Rice-cookerCheck out this complaint, filed last week in federal court in Honolulu by a Kauai councilmember against the County of Kauai, a Planning Department Official, and the Kauai prosecutor. The councilmember claims the defendants maliciously prosecuted him for a zoning violation.

And just what was the alleged zoning violation?

While the Planning official was conducting a warrantless search of the councilmember’s home supposedly to respond to a complaint about an alleged zoning violation, she “allegedly observed a rice cooker and a refrigerator in the addition/family room in the family home.” Complaint para 44. 

The addition/family room was a permitted structure in which no kitchen was allowed. The Planning official apparently concluded that the presence of the rice cooker and the fridge turned this room into a kitchen, and the councilmember received a Zoning Notice Violation.

The complaint goes on to explain how the case was dismissed by a State…

Continue Reading Allegations Of Zoning Enforcement Outrages On Kauai (Part II) – A Rice Cooker Is A Kitchen?