2007 Land Use in Review

Another year has come and gone.  In Hawaii, two of the hottest "land use" related topics in the public arena remain public beach access and transient vacation rentals.  Yet, there wasn't much to report in the way of developments in the law in these areas, as the courts did not address these issues directly in any decisions.   Nor were there any true "blockbuster" decisions from the U.S. or Hawaii Supreme Courts.  No Kelo, no Lingle, no Rapanos.  But it doesn't mean that 2007 wasn't an interesting year in land use law. 

Here are the highlights (or lowlights, depending on your point of view) in land use law and other topics covered on inversecondemnation.com.

• Government Gone Wild - the sad case of Wilkie v. Robbins: In perhaps the low point of 2007, the U.S. Supreme Court held that a landowner who was subject to systematic harassment by government officials because he had the temerity to refuse to give up a public easement on his land without just compensation did not have a comprehensive federal remedy.  Details of the case here, and an op-ed I wrote about the decision for the Honolulu Advertiser, "Little-noticed decision erodes property rights," is posted here.

• Private Agreements and Public Process:  Several seemingly unrelated court decisions were tied together with a common thread: private agreements for the most part are not substitutes for public processes, whether it is eminent domain, rezoning, or the granting of permits.  Details here.

• All Superferry, All The Time:  The Hawaii Supreme Court's decision in the Hawaii Superferry case, coming as it did mere hours after oral argument and just days before the ferry was scheduled to sail, certainly was the issue dominating the headlines in the last quarter of 2007, especially after the Legislature was called into special session to pass legislation allowing the Superferry and other large capacity ferries to sail while the state conducted an environmental assessment.  Everything on inversecondemnation.com about the case, including the briefs of the parties, oral argument recordings, the court's decision, and commentary, is posted here.

• Hawaii Supreme Court Rewrites the Constitution: In August, by a 3-2 vote, the Hawaii Supreme Court determined that the term "county" in article VIII, section 3 of the Hawaii Constitution means "county councils."  The dissenting justices accused the majority of "subverting the judicial process" by rearranging the parties after oral argument, and attributing the arguments of the defendants to the plaintiff.  [Disclosure: I had a dog in this hunt, as I was counsel for the homeowners/intervenors who lost the appeal.]  Here are all the inversecondemnation.com posts on the case: opinion, briefs, oral argument transcripts, commentary, and the Wall Street Journal's take on the case.

• Post Kelo Claims of Pretext:  In 2007, the courts started to apply the U.S. Supreme Court's decision in Kelo v. City of New London, 545 U.S. 469 (2005), especially how to mesh the Court's deferential standard of review with property owner claims of pretext.

  Kelo left intact the standard that a determination that a
  taking will be for public use is measured by whether the legislature
  "conceivably" could have believed it would result in
  economic benefit, while leaving open the possibility that certain
  takings would not pass judicial review.  Justice Kennedy elaborated on that issue, and provided the roadmap for how a court should deal with a claim of pretext.  After Kelo, property owners and property takers were left
  with the question of what would qualify as a "pretext" sufficient to
  overcome a claim by government that a condemnation was supported by a
  public purpose.  Several post-Kelo cases addressed the pretext issue, with varying results, and methods of analysis. More...

• Venue in Declaratory Actions on Legality of Agency Rules is Jurisdictional:  In Hawaii Home Infusion Assoc. v. Befitel, (No. 27256, Apr. 16, 2007), the Hawaii Supreme Court held that the venue provisions in the declaratory judgment section of the Hawaii Administrative Procedures Act, Haw. Rev. Stat. § 91-7, are jurisdictional, and such actions must be brought in the judicial circuit in which the petitioner is domiciled.  Find out why this decision is important in the land use arena by reading this post.

• Administrative Procedures in Land Use Cases:  In Citizens Against Reckless Development v. Zoning Bd. of Appeals of the City and County of Honolulu (No. 27264, May 31, 2007), the Hawaii Supreme Court tackled the issue of when a request for an agency to issue a declaratory ruling under Haw. Rev. Stat. § 91-8 can effectively substitute for an appeal of an agency decision, and when it can't.

• Estoppel and Shoreline Setbacks: In Brescia v. North Shore Ohana (No. 27211, July 12, 2007), the Hawaii Supreme Court held that a property owner was not entitled to rely upon a county planning commission's determination of the location of a shoreline setback when the planning commission retained the authority to give official assurances.  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.  More here.

• Hawaii Supreme Court Lowers the Bar in Equal Protection "Rational Basis" Analysis:  It's a pretty rare event when a court invalidates a law for violating the Equal Protection clauses of either the Hawaii or U.S. Constitution under rational basis review.  In Silva v. City & County of Honolulu, No. 27385 (Aug. 10, 2007), the Hawaii Supreme Court did just that, holding that Haw. Rev. Stat. § 46-72 was irrational, and violated the Hawaii Constitution.  More here.

• Notice in Eminent Domain: Several cases focused on the issue of due process notice in eminent domain.  In Divine v Town of Nantucket, 449 Mass. 499, ___ N.E.2d ___ (July 19, 2007), the Supreme Judicial Court of Massachusetts invalidated the town's 1968 exercise of eminent domain since the town's taking listed the owners of the property as "owners unknown," which was not sufficient notice to the landowner.  In Brody v. Village of Port Chester, No. 00 Civ. 7481 (HB) (SDNY, July 18, 2007), a New York federal court held that a municipality wrongfully exercised eminent domain and denied the landowner procedural due process by not providing proper notice of his right to contest the taking.

• Taking Substantive Due Process Seriously Again:  After Lingle v. Chevron, U.S.A., Inc., 544 U.S. 528 (2005) informed us that the "substantially advance a legitimate state interest" test was one of substantive due process, not regulatory takings, the courts began revisiting the long-neglected topic of substantive due process in the land use context.

The Ninth Circuit finally jettisoned the Armendariz v. Penman, 75 F.3d 1311 (9th Cir. 1996) (en banc) doctrine in Crown Point Development, Inc. v. City of Sun Valley, 506 F.3d 851 (9th Cir. Nov. 1, 2007).  Armendariz stood for the unusual proposition that a property owner's claim for violations of substantive due process rights were "subsumed" within the owner's claim for violation of the Takings Clause.  Thus, in land-related issues, a property owner could only bring takings claims.  No longer, as I wrote here.  In Cine SK8, Inc. v. Town of Henrietta (No. 06-1718-cv) (Nov. 8, 2007), the Second Circuit detailed one way to prove a land use substantive due process case.  The court also noted that when a local government agency acts outside the scope of its delegated jurisdiction, it violates due process.  More here.  In  Franco v. National Capital Revitalization Corp., No. 06-CV-645 (July 12, 2007), the Court of Appeals for the District of Columbia also provided guidance on how substantive due process principles may guide the issue of Kelo pretext.  While the issue in Franco involved the public use clause, as I noted in this post, the analysis has much crossover with substantive due process issues.

If you think I missed any key cases or events, please email me or add the topic yourself in a comment.

Here's the summary of 2006