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▪ 2006 Land Use in Review

As a way of saying "aloha" to 2006, I've summarized the land use law highlights (or lowlights, depending on your point of view) from the Hawaii Supreme Court, the Ninth Circuit, and the U.S. Supreme Court, roughly in chronological order.  Topics include shorelines, eminent domain, environmental impact statements, RLUIPA, vested rights, and land use litigation procedures.

• Depends What the Meaning of "Shall" Is:  Leslie v. Bd. of Appeals, County of Hawaii (HAWSCT) (nondiscretionary actions, shoreline area boundaries)
  
• Environmental Assessments, Early and Probably Often:  Sierra Club v. Office of Planning, State of Hawaii (HAWSCT) (environmental assessments, boundary amendments)
• Eminent Domain and Land Reform Revisited:  City & County of Honolulu v. Sherman (HAWSCT) (eminent domain, RLUIPA)
• What to do if the Government Changes its Mind:  Arrow of Time: Vested Rights, Zoning Estoppel, and Development Agreements in Hawaii, 27 U. Haw. L. Rev. 17 (Feb. 2006) (vested rights)
• Hawaii Water Law is Not a Federal Case:  Maui Tomorrow v. State of Hawaii (HAWSCT) (attorneys fees, water rights)
• No Leg to Stand On: Keahole Defense Coalition, Inc. v. Bd. of Land and Nat. Res.  (HAWSCT) (standing, what is a "property" interest)
• The Supreme Court Muddies the Clean Water Act: Rapanos v. United States (SCOTUS) (Clean Water Act jurisdiction)
• Return to Sender - Elvis and Notice: Jones v. Flowers (SCOTUS) (due process notice to property owners)
• What is a "Contested Case?" - Aha Hui Malama O Kaniakapupu v. Land Use Comm'n (HAWSCT) (administrative appeals, contested cases)
• Who Protects the Public Trust? - Kelly v. 1250 Oceanside Partners (HAWSCT) (water pollution, public trust)
• Contesting Contested Cases:  Hui Kako Aina Hoopulapula v. Bd. of Land and Nat. Res. (HAWSCT) (administrative appeals, contested cases)
• RLUIPA and Local Land Use: Guru Nanak Sikh Society of Yuba City v. County of Sutter (9th Cir.) (RLUIPA and local land use)
• Hawaii Eminent Domain Compendium (eminent domain)
• Shoreline Tales: Diamond v. Bd. of Land and Nat. Res. (HAWSCT) (CZMA shoreline certifications)
• Voters Nationwide (But Not Hawaii) Enact Eminent Domain Reform (property rights, eminent domain)
• New Appellate Track: In re Water Use Permit Applications [Waiahole] (HAWSCT) (appellate jurisdiction, water rights)
• Honolulu "Fixed Guideway" Mass Transit Approved (eminent domain)

If you think I missed any key cases or events, please email me.

    

▪ 2006 Land Use in Review: "Fixed Guideway" System Approved

On Christmas Eve 2006, the Honolulu City Council approved a $4B+ "fixed guideway" mass transit system to run from somewhere in West Oahu to somewhere in town.  The nature of the system has not been selected (rail, busway, something else), nor has the route.  But in January 2007, a half-percent increase in the general excise tax became effective, the proceeds from which are earmarked for the transit system.  City officials say it's a "go."

I've made a few comments about the impact of a mass transit project on property owners (here, here, here, and here), but it is too early in the process to note any concrete legal developments.  I've included the fixed guideway story in 2006's land use highlights, however, since I suspect the legal issues will loom larger and larger as the project -- the largest public works project in Hawaii's history -- moves forward. 

      

▪ 2006 Land Use in Review: New Appellate Track

The most recent case involving the long-standing controversy over the Waiahole Ditch, In re Water Use Permit Applications, ___ Haw. ___, 147 P.3 836 (Nov. 29, 2006) was not the usual blockbuster opinion or the latest in water rights, interim instream flow standards, and the public trust doctrine.  Indeed, it was an unsigned per curiam decision.  But I have included it within 2006's highlights simply because it illustrates the new appellate procedures in Hawaii state courts. 

Until the new procedures which became effective in July 2006, Hawaii state court cases had a unique appellate track.  After a trial court entered judgment, all appeals were made to the Supreme Court of Hawaii, which then assigned cases to the Intermediate Court of Appeals.  If a litigant was not satisfied with the decision from the ICA, she could seek review in the Supreme Court by way of an application for a discretionary writ of certiorari.  Most cases, however, were not assigned from the Supreme Court to the ICA, and the high court routinely disposed of most appeals.  The "up-then-down" procedure was unwieldy and an anachronism, a leftover from the days before the legislature created the ICA, and all appeals were straight to the Supreme Court.  The procedure also was a factor in creating a backlog of appeals on the Supreme Court's docket.

In July 2006, however, new jurisdictional statutes became effective, resulting in the ICA having primary appellate jurisdiction over all appeals, with the Supreme Court retaining discretionary certiorari review. 

Apparently, however, the drafters at the legislature did not catch all of the language regarding appellate jurisdiction scattered throughout the Hawaii Revised Statutes.  For example, the Water Code still states that appeals from contested case decisions by the Commission on Water Resource Management are made "directly to the supreme court."

After CWRM issued (yet another) order in the contest over the water in the Waiahole Ditch in July 2006, a party noticed its appeal on August 11, 2006 with the Supreme Court, even though the new appellate structure had become effective the month before.  Understandable, for considering the plain language of the Water Code, what else should the litigant have done?

The Supreme Court ordered the case transferred to the ICA, holding that the legislature's failure to amend the Water Code language was merely an oversight since it amended fifth-three other sections in the statute books relating to appellate jurisdiction, and that the legislature no doubt intended to amend the Water Code as well.  Lesson?  File all appeals with the ICA. 

It will be helpful after a few years under this system to see if the Supreme Court as a purely discretionary body experiences a shrinking of its docket, and a speedier process from filing to disposition.  It would be helpful to those of us who practice appellate law, for example, to establish criteria for when a decision by the ICA is "certworthy" and likely to be reviewed by the Supreme Court.  Hawaii has only one ICA, so there are no circuit or district "splits."  If the Supreme Court is simply to be yet another level of appellate review for dissatisfied litigants without clear standards for when it would be worthwhile to seek review, why does anyone think this will significantly decrease the court's workload?

    

▪ 2006 Land Use in Review: Voters Nationwide (But Not Hawaii) Enact Eminent Domain Reform

The big story nationwide in property rights and eminent domain was, of course, the overwhelming negative reaction to 2005's Kelo v. City of New London decision, which overflowed into 2006.  That reaction has manifested itself in three ways:

• Taking up the Supreme Court's suggestion that state law was the means to protect property from eminent domain abuse, state legislatures and local governments around the country began restricting how the condemnation power has been exercised.

• State courts have also taken up the challenge, the biggest development in 2006 being the City of Norwood v. Horney decision from the Ohio Supreme court.  That case held that economic benefit standing alone will not support a claim of public use under the Ohio Constitution.  The court also held that a blight designation was too vague to have any legal force, and violated the Ohio Constitution.  Now, if only Mrs. Kelo and other property owners subject to overaggressive use of eminent domain could move their properties to Ohio or Michigan. 

• In the November 2006 election, several states passed eminent domain reform by constitutional amendment or initiative.  New Jersey Eminent Domain blog posted a summary of the election results.  These results tell me that property rights in general, and eminent domain reform specifically, are topics that have some traction and may cut across political lines. 

None of these approaches has yet been adopted by the Hawaii Legislature, the Hawaii courts, or Hawaii voters. 

How come?  The legislature had before it at least four proposals to reform eminent domain, and not one made it out of committee.  Hawaii appellate courts have not yet been confronted squarely with the issue, which did not arise in the one major eminent domain decision issued by the Hawaii Supreme Court in 2006.  Finally, initiative is not available in Hawaii on matters of state law, or locally on matters of statewide concern, so there is no possibility of Hawaii voters having a chance to directly enact eminent domain measures if the legislature refuses to do so.

    

▪ 2006 Land Use in Review: Shoreline Tales

One of 2006's bigger cases was Diamond v. Bd. of Land and Nat. Res., 112 Haw. 161, 145 P.3d 704 (Oct. 24, 2006), involving the location of the "shoreline" for purposes of determining the buildable area on an oceanfront parcel. 

There was news coverage a-plenty, and I posted more than a few comments on the case and on the coverage.  Start here, then read this, this, this, then this post.

I'd bet this case will have lasting impact, even though it was not about the public-private boundary, and only analyzed the location of the "shoreline" under Hawaii's Coastal Zone Management Act.

▪ 2006 Land Use in Review: Hawaii Eminent Domain Compendium Published

In September, the ABA Section on Litigation (Committee on Condemnation, Zoning and Land Use) published Law and Procedure of Eminent Domain in the 50 States, a state-by-state summary of each jurisdiction's eminent domain laws and cases.  I authored the chapter on Hawaii.

Topics covered include who has the power to take, sources for condemnation authority, the rules of just compensation, and the procedural aspects of eminent domain litigation.

The individual state chapters, mine included, are posted for download for ABA members here.

    

▪ 2006 Land Use in Review: RLUIPA and Local Land Use

Revisiting the RLUIPA issue, the Ninth Circuit held in Guru Nanak Sikh Society of Yuba City v. County of Sutter, 456 F.3d 978 (9th Cir., Aug. 1, 2006) that a local land use decision regarding a church's proposed use of its property violated the federal Religious Land Use and Institutionalized Persons Act of 2000.  While it is not a groundbreaking case, it illustrates the competing dynamics when a church's desires to use its property clashes with local land use rules.  My summary of the case is posted here.
    

▪ 2006 Land Use in Review: Contesting Contested Cases

I commented upon the decision in  Hui Kakoo Aina Hoopulapula v. Bd. of Land and Nat. Res.,112 Haw. 28, 143 P.3d 1230 (Sep. 21, 2006) earlier in this post. 

This opinion, detailing when and how a contested case may be demanded, should be read together with Aha Hui Malama O Kaniakapupu v. Land Use Comm'n, 111 Haw. 14, 139 P.3d 712 (July 24, 2006) and Keahole Defense Coalition, Inc. v. Bd. of Land and Nat. Res., 110 Haw. 419, 134 P.3d 585 (May 18, 2006).

▪ 2006 Land Use in Review: Who Protects the Public Trust?

The "public trust" doctrine got a further boost in Kelly v. 1250 Oceanside Partners, 111 Haw. 205, 140 P.3d 985 (July 28, 2006). 

The public trust doctrine in its original form under Hawaii law was that the Crown or government owns title to all land below the high water mark, which is held in trust for the people for navigation and other public purposes.  In other words, land under the ocean is a public resource, and incapable of private ownership.  This doctrine has historical roots in American and English common law. 

In more recent times, that ancient doctrine was expanded when the courts, following the suggestion of influential academics, began using the doctrine to justify finding that more and more resources were subject to the trust, and therefore not private property.  While there is some debate about whether the public trust affects ownership of property subject to the trust, the doctrine was expanded to cover all water resources (not just submerged land), new land formed by lava flows, and beachfront land makai of the high wash of the waves.  These forms of property, the court determined, was held in trust by the government as a public resource, to be protected for "future generations."

The Kelly case, however, was not about further geographic expansion of the public trust, as it involved waters well within the scope of the original doctrine -- nearshore ocean waters, which the parties did not dispute were subject to the trust.  Rather, the question before the court was the scope of the duty imposed by the trust, namely which government entity has the obligation to enforce and protect the trust.

The background facts:  After heavy rains caused a landowner's erosion control measures to fail, dirt and other runoff ended up in the nearby ocean.   The plaintiffs asserted, among a litany of claims, that the County of Hawaii had a public trust duty to prevent the runoff and water pollution since it had allowed the landowner to grade its property as part of a large scale luxury development.  The plaintiffs also alleged that the landowner violated the terms of a water pollution control permit issued by the State of Hawaii Department of Health.

The County did not contest the existence of a public trust duty to protect nearshore waters, but argued it was the State's duty, not the County's.  The court disagreed, holding that the Hawaii Constitution requires all governmental entities, including the state and "political subdivisions" to "conserve and protect Hawaii's natural beauty and natural resources."  Haw. Const. art. XI, § 1.  The court noted that the terms "political subdivision" and "county" as used in the constitutional text are straightforward, and expressly command both the State and County governments to affirmatively protect public trust resources.  The court held, however, that despite the existence of this duty, the plaintiffs had not proven the County breached it. 

Additionally, the court determined that the state's duty to protect the public trust went beyond simply enforcing its statutes.  The court held that the government has the obligation at "every stage" of the planning process to "take the initiative" in protecting the resource, and its role goes beyond that of a "mere umpire." 

While the decision was, technically, a win for the State and the County (the court found that neither breached their duties in this case), it certainly does not forecast an easier future for governments or especially for property owners who wish to exercise their constitutional right to make reasonable use of their land.  By adding yet another layer of regulation with a constitutional nature -- while leaving the standards very amorphous -- Kelly has further complicated the land use process with little guidance to governments or property owners.

    

▪ 2006 Land Use in Review: What is a Contested Case

In Aha Hui Malama O Kaniakapupu v. Land Use Comm'n, 111 Haw. 14, 139 P.3d 712 (July 24, 2006), the court set forth the standard for when an agency hearing is a "contested case" under the Hawaii Administrative Procedures Act (HAPA).  The definition is critical because unless a contested case has been conducted by an agency, a circuit court will have no subject matter jurisdiction to consider an appeal from the agency's decision.

A group opposed to a landowner's use of its property argued that conditions imposed by the Land Use Commission in its earlier approval of a boundary amendment had not been complied with by the landowner.  The group filed a motion for an order to show cause why the boundary amendment should not be revoked.  The LUC held a hearing and denied the motion.  The group appealed to the circuit court under HAPA.

The circuit court dismissed for lack of subject matter jurisdiction because the hearing on the motion for an order to show cause was not a "contested case" as defined by the administrative procedures act. The Supreme Court affirmed the dismissal for lack of subject matter jurisdiction.  A hearing to consider a motion for an order to show cause was not a "contested case" as defined in HAPA, so the circuit court lacked appellate jurisdiction under Haw. Rev. Stat. § 91-14.  The court reiterated the two-part test to determine whether a hearing qualifies as a contested case:

1. The hearing is "required by law," which means that a rule, statute, or constitutional due process require a hearing;
2. The hearing determines the "rights, duties, or privileges of specific parties."

The court held that the LUC was required by its rules to hold a hearing on motions when requested by a party, and that the first part of the above test was satisfied.  However, the hearing did not determine the objecting group's rights, only perhaps the rights of the landowner, so the second part of the test was not met.  If the LUC had granted the motion and held a hearing on the order to show cause, then the result would have been different, as that hearing would be a "contested case." 

Finally, the court held that the correct result was jurisdictional dismissal, not a remand to hold a contested case.  If a court does not have subject matter jurisdiction to hear an appeal under Haw. Rev. Stat. § 91-14, it has no jurisdiction to remand.  What about the seeming lack of judicial review of the LUC's decision to deny the request to hold a hearing on the order to show cause?  On that issue, the court did not seem bothered by the fact that LUC's decision is essentially immune:

Lastly, the Hui argues that, "[i]f the [c]ircuit [c]ourt has no jurisdiction to determine if an appellant were entitled to a contested case hearing after having requested one, any agency could arbitrarily and capriciously deny anyone a hearing at any time, regardless of whether such hearing were required by law, and the aggrieved party could never obtain judicial review of such denial." However, in this case, the Hui did not request a contested case hearing. Indeed, the Hui concedes that "there is no procedural vehicle for '[a]ny party or interested person' to obtain a contested case hearing on whether a petitioner has failed to perform according to the conditions imposed or has failed to perform according to the representations or commitments she made[.]" Consequently, the Hui's assertion is without merit.

To the court it is simple: no contested case, no judicial review (at least under HAPA).