Our live blog of the Hawaii Supreme Court oral arguments in County of Hawaii v. Ala Loop Homeowners, No. 27707 (cert. granted Sep. 2, 2009).
The mp3 recording of the argument is posted here.
More details on the case below the window.
The court is considering whether Haw. Rev. Stat. § 205-1 et seq., gives rise to a private right of action. The core issue in the appeal is whether Hawaii's statewide zoning laws are "laws relating to environmental quality" which may be privately enforced, or whether they are classic Euclidean zoning laws which can't. The Hawaii Constitution (art. XI, § 9) provides that "any person may enforce" the "right to a clean and healthful environment, as defined by law relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources."
The case involves a "new century charter school" located in the County of Hawaii (Big Island) . The school sought to begin operations on land classified (zoned) as agriculture on the island of Hawaii. Such uses are not normally allowed in the Ag zone. The school's neighbors, the Ala Loop Homeowners, asserted the school needed a special permit pursuant to Haw. Rev. Stat. § 205-6, which allows a county planning commission to permit certain "unusual and reasonable uses" within an agricultural or rural district, despite the land not being zoned for such use. The County filed a declaratory action, seeking confirmation the school was exempt under state law from any special permit requirement. The trial court permanently enjoined the school.
The Intermediate Court of Appeals reversed, and concluded that the plaintiffs could not institute a suit to privately enforce chapter 205. The ICA's summary disposition order is here.
Here are the cert application and the State's opposition, and two amicus briefs supporting the applicant:
The case relied upon by the ICA, Pono v. Molokai Ranch, Ltd., 119 Haw. 164, 194 P.3d 1126 (Haw. Ct. App. 2008), cert. rejected, 2008 WL 5392320 (Haw. Dec. 29, 2008), was rejected for review after the plaintiff made many of the same arguments. We represented Molokai Ranch in that case, and filed this brief in opposition to the application for writ of certiorari, which explained why chapter 205 is a zoning law, and not a "law relating to environmental quality" and why a statute which allows fee-shifting in cases seeking injunctive relief for failure to obtain a permit was not a legislative recognition of a private right of action.