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This post has nothing whatsoever to do directly with land use law or property rights, but there's an interesting article on the San Francisco Chronicle's web site that is too good to resist. "Zen and the art of lawyering" reports on Bay Area lawyers who combat job-related stress by meditation.
The NY Times posts "Now You Own It, Soon You Don't?," a story about property owners fighting eminent domain abuse in Long Branch, NJ, Norwalk, CT, and Port Chester, NY, among other places. The article also details the legislative responses to the Kelo case, focusing on the eastern states:
The lead plaintiff in the United States Supreme Court case, Susette Kelo, a nurse who lived in a pink Victorian cottage in New London, Conn., opposed the town’s condemnation of her neighborhood to make way for a private development of offices, condominiums and a hotel. The 5-to-4 majority opinion held that promoting economic development met the “public use” clause of the Fifth Amendment that allows condemnations. In a dissenting opinion in the case, Justice Sandra Day O’Connor gave voice to the fear that started a revolt: “Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded.”
Land-use restrictions often set neighbor against neighbor, and can be a source of considerable turmoil in otherwise tranquil communities. So it is here: Barbara Cordi-Allen and her husband John Allen (the Allens) are landowners in the Cape Cod town of Truro, Massachusetts (the Town). They own a waterfront lot and wish to improve it. They have thus far been stymied in their efforts by a series of zoning, environmental, and licensing restrictions.
The Allens accuse the Town of singling them out for unfavorable treatment and thwarting their plans. The Town, with equal fervor, accuses the Allens of seeking advantages to which they are not entitled. The ill will has spread like a malignant growth and has come to envelop several of the Allens' neighbors.
The property owners claimed that the disparate treatment violated the Equal Protection Clause, but the First Circuit disagreed.
The Honolulu Star-Bulletin reports an interesting AP story from Washington state, "A good fence makes ... trouble," about property owners whose fence on their own property has been threatened by an obscure federal agency:
Herbert and Shirley-Ann Leu were thinking landscaping, not politics, when they built an 85-foot-long concrete wall in their back yard.
But their yard happens to run along the U.S.-Canadian border -- a situation that has put the Leus in the middle of a property rights battle, led the Bush administration to fire its own handpicked border caretaker and given rise to a legal dispute over the extent of presidential authority.
Full story. The property owners are being represented by my Pacific Legal Foundation colleagues, whose take on the case is posted here.
The Honolulu Star-Bulletin has posted a story on the recent Hawaii Supreme Court decision in Brescia v. North Shore Ohana (No. 27211, July 12, 2007), entitled "Rocker's plans for Kauai home blocked." According to the story, it turns out the decision in Brescia also impacts a neighboring property belonging to the lead singer of the Red Hot Chili Peppers. My thoughts on the case, minus the rockstar references, here.
An article about the aftermath of Kelo by two fellows from the Institute for Justice points out recent data from the U.S. Census Bureau that shows that seems to bear out the Kelo dissenters' warning that the power of eminent domain is disproportionately laid on the minorities, lower-income, and the less-educated:
According to the data, those who live under the threat of eminent domain consistently live on significantly fewer earnings, with a median income of less than $19,000 compared to more than $23,000 in nearby neighborhoods. Twenty-five percent live at or below poverty, compared to only 16 percent in surrounding communities.
Full article here.
More on the Supreme Court of Hawaii opinion in Brescia v. North Shore Ohana (No. 27211, July 12, 2007). The Court took up no less than seven points on appeal, but the most interesting to me was the analysis of the estoppel issue.
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.
"Estoppel" means that if a property owner receives and relies upon "official assurances" from government officials about an issue within their "ambit of authority," the government is precluded from later changing its official mind on the issue. For more on estoppel and the related principle of vested rights, see my recent law review article on the subject. In Brescia, the county planning commission applied a 60-70 foot setback as shown in a subdivision map. The landowner asserted that county officials had informed him that the setback was smaller:
Brescia maintains that "for the past 16 years, the County had understood and represented to the public that the applicable setback was 20 feet." As support for this contention, Brescia submitted a letter written to a neighboring property owner by Deputy Planning Director Sheilah Miyake, in which the shoreline setback for the neighbor's property was confirmed to be 20 feet according to the Kauai Rules. Brescia states that "[a]t the time of and prior to acquiring Lot 6 for more than $900,000, Brescia and his agents inquired and were informed by members of the Kauai Planning Department that the setback for Lot 6 was 20 feet inland of the certified shoreline." According to the Commission, Brescia submitted an affidavit "which stated he 'was informed by Kauai County Officials', whom he did not name, [that] the shoreline setback on Lot 6 was 20 feet inland of the certified shoreline."
The Court's decision did not turn on whether the landowner had in fact been so informed. Rather, the Court assumed he had, but held that because the planning commission had the final authority to establish setback lines, assurances by planning department functionaries were not "official assurances" on which the landowner had a right to rely. The Court put it somewhat differently, however, holding:
Estoppel "cannot be applied to actions for which the agency or agent of the government has no authority." Turner v. Chandler, 87 Hawai`i 330, 334, 955 P.2d 1062, 1066 (App. 1998) (quoting Filipo v. Chang, 62 Haw. 626, 634, 618 P.2d 295, 300 (1980) (other citation omitted)) (emphasis added).
. . . .
"'[a]gents of the government must act within the bounds of their authority; and one who deals with them assumes the risk that they are so acting.'" (Quoting Sangre de Cristo Dev. Co., Inc. v. United States, 932 F.2d 891, 894 (10th Cir. 1991).). The authority to establish setback lines within the SMA, as stated in Brescia's deed, rests with the Commission. It is well accepted that a public employee not vested with decision making authority may not bind the state in its exercise of the police power. See Godbold v. Manibog, 36 Haw. 206 (1942) (holding that a state cannot be estopped by the unauthorized acts or representations of its officers).
True enough. But the more interesting question, in my opinion (and one admittedly not before the Court in Brescia) is what happens when the official or agency charged with "decision making authority" incorrectly informs a landowner, and the landowner relies on that representation -- is it sufficient for the government to say that the official's interpretation of the law was wrong, and that landowners always risk that officials may be wrong?
Under Waianae Model Neighborhood Area Ass'n v. City & County of Honolulu, 55 Haw. 40, 514 P.2d 861 (1973), the inquiry should include whether the official was within the "ambit of his duty," and whether the official's interpretation of the law was "at least debatable" --
[A]n act of an administrative official which is without any semblance of compliance with or authorization in an ordinance, is beyond his competence and is utterly void; but if an act of such official, done in good faith and within the ambit of his duty, upon an erroneous and debatable interpretation of an ordinance, is no more that an irregularity, and the validity of such act may not be questioned after expenditures have been made and contractual obligations incurred in reliance thereon in good faith.
Unfortunately, the facts in Brescia did not squarely present this issue. Maybe next time.
Hawaii Business has posted an interesting article that's worth a read: "The Line in the Sand." Subtitled "How Maui Land & Pine and its eco-icon David Cole became the target for community outrage," the article is a good insider's look at the interplay between the various parties in Maui's (and Hawaii's) land use process.
Two stories in today's Honolulu papers, "Wal-Mart fights Kauai ban on 'big-box' stores," "Wal-Mart says it will fight for Kauai expansion," contain all the buzzwords indicating a vested rights and zoning estoppel dispute may be on the horizon. The Advertiser writes:
A recent Kaua'i County ban on new "big-box" stores shouldn't apply to a planned expansion of Wal-Mart's existing store to a supercenter with a full-line grocery store, according to the retailer.
Wal-Mart yesterday announced it believes its project was approved before the ban because the county approved a masterplan years ago for its 119,000-square-foot Lihu'e store that included future phases to enlarge the store up to 185,000 square feet.
. . .The County Council in May passed an ordinance prohibiting development of any retail or wholesale establishment bigger than 75,000 square feet.
Councilman Jay Furfaro said he was surprised by Wal-Mart's position, especially since the company did not raise the issue before the ordinance was passed.
"You can't reach back and say, 'We're grandfathered,' " Furfaro said. "They have not received their final permit (for expansion), so it should be subject to the ordinance."
Wal-Mart in a statement said the ban shouldn't apply to a project that was already approved.
The Star-Bulletin story:
In May, the Kauai County Council passed a law prohibiting any retail or wholesale store larger than 75,000 square feet -- the first ban of its kind in the state.
But Wal-Mart Stores says it had already won the county's legal approval of the existing Lihue Wal-Mart's expansion long before the new ban went into effect. Therefore, the county should not be able to withdraw that approval.
"When we originally built the Lihue Wal-Mart, the county approved a master plan for the site that called for expanding the store to approximately 185,000 square feet," said Wal-Mart spokesman Kevin Loscotoff. "The County Council has now acted to stop development of any new large-format retail stores on the island, but the ban should not apply to a project that was already approved."Zoning estoppel and vested rights -- sometimes referred to as "grandfathering" -- are legal doctrines prohibiting the government from changing its official mind after it has provided "official assurances" to a property owner that it may use its property in a particular way. I described these doctrines in a 2006 law review article, Arrow of Time, Vested Rights, Zoning Estoppel, and Development Agreements in Hawaii:
Once an owner's rights have "vested," the owner possesses development rights, and these development rights are property rights that "cannot be taken away by government regulation." If the government is estopped, it is prevented from applying any future incompatible, albeit legal, regulations to the property. Vested rights and zoning estoppel thus counterbalance the government's unfettered ability to use its police power to regulate land uses, providing some insulation of the land development process from shifting political winds.
More on the article here and here, or for a copy of the article, drop me an email.
More to follow, as today's reports do not look like the last chapter in Kauai's attempt to prohibit Wal-Mart's expansion.
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