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Two Big Island Planning Commissions?

Following up on this post.  West Hawaii Times is reporting (free registration may be required) the County of Hawaii is one step away from putting to voters the question of whether to have two Planning Commissions.  The County Council's Planning Committee approved the measure, and the last step before it makes the ballot is the full council. 

A source of controversy in the past, the Hawaii County Planning Commission makes recommendations to the County Council regarding land use changes. However, it also possesses decision-making powers with use permits, special permits including those which regulate shoreline uses, geothermal permits and spaceport permits.

(I like that last bit about "spaceport permits."  Makes me want to apply for one.)

Maui County currently has three Planning Commisions, but as Jesse Souki has pointed out here and here there may be practical and legal problems with having more than one Commission, esp when it covers a single island.

Kauai Springs Zoning Permit Appeal

Today we filed the Opening Brief in Kauai Springs' appeal from the January 2007 decision by the Kauai Planning Commission to deny three zoning permits to the small, Kauai-family-owned water bottling company.

The case is an appeal from an agency decision under the Hawaii Administrative Procedures Act (a procedure known in other jurisdictions as a petition for a writ of administrative mandate or a petition for a writ of mandamus).  I won't go into the details of the case in this post, since the brief spells out the facts and the arguments in support.   

For more information about the case, here are some links to earlier media coverage:

• A May 2006 story about the case from the Honolulu Star-Bulletin

• A story from the Kauai newspaper about the TRO that halted the County's attempt to shut the business down while the appeal was being considered.

• Another story about the preliminary injunction that allowed Kauai Springs to stay open.

• "Kauai Springs: Still Open for Business" from Hawaii Reporter.

The Opening Brief is posted here (2.5mb pdf).

Land Use Seminar - April 3, 2008

On April 3, 2008, I will be on the faculty of "Practical Guide to Zoning and Land Use Law" in Honolulu.  I'll be presenting two subjects, "Current Caselaw and Legislative Update," and "Appealing an Administrative Zoning Decision.  Also on the faculty are Jesse Souki and A. Bernard Bays.  The complete agenda and registration information are available here. 

9th Cir: Senior Citizens Are Not Automatically Considered "Disabled"

With a name like Carefree, Arizona, who wouldn't want to spend the golden years there?  That appears to have been what was on the mind of one F.G. Budnick, a developer, when he decided he wanted to build the "Residences at Carefree," which he described as a "luxurious, age restricted, senior retirement residential community," in the small town north of Phoenix. 

But alas, it was not to be: the Town of Carefree didn't want him, or at least didn't want his proposed development, so the Planning and Zoning Commission denied the application for a Special Use Permit, which would have allowed the Residences to operate in a residential zone.

Budnick, however, would not be denied.  The future senior residents of the Residences would be "healthy, active, independent seniors who will be impossible to tell apart from" other Carefree residents, he asserted, and an appeal was lodged with the Town Council.  But like the Planning Commission, the Council denied the SUP.

Budnick then changed course: the Residence would serve disabled people, and the Town of Carefree was violating federal law by discriminating against the disabled if it denied his permit.  The parties met, but could not find a middle ground.

Budnick filed suit in federal court, alleging the denial of the SUP was a violation of the Fair Housing Amendments Act of 1988, 42 U.S.C. § 3604, the Americans With Disabilities Act, due process and equal protection, and our old friend 42 U.S.C. § 1983 (violation of federal rights under color of state law).  The district court granted Carefree summary judgments on all of Budnick's claims.

In Budnick v. Town of Carefree, No. 06-15841 (Mar. 11, 2008), the Ninth Circuit affirmed.  The court held that Budnick could not establish a prima facie case of discrimination against the disabled for two reasons.

First, the court held that he did not raise triable issues of fact whether the Residence would house "disabled" people.  As the court put it, "Budnick suggests that the [Residence] would naturally house disabled individuals because the senior citizen residents of the [Residence] would have entered into life care contracts and would inevitably experience disabilities as they age."  Slip op. at 2314.  The court rejected the argument, holding:

We hold that potential [Residence] residents do not presently qualify as disabled under the FHAA simply because some of them will become disabled as they age.  To hold that they can currently be considered disabled under the FHAA would mean, in effect, that every senior citizen (indeed, every person) desiring to rent or buy housing could assert a present claim of discrimination based on inevitable disability due solely to the passage of time.  Such a holding would also disregard the reality that even if many individuals become disabled as they age, many do not, and that being old is not, per se, equivalent to being disabled.

Slip op. at 2314 (emphasis original).  In other words, the FHAA does not cover people who may become disabled, but only those who presently are.

Second, the court held that Carefree had valid, nondiscriminatory reasons for denying the SUP, and that a few statements by witnesses at the public hearings that the Residence would turn Carefree into a place where "people came to die," could not be attributed to the Town, and there was no evidence to show that the SUP was denied due to such beliefs.  Slip op. at 2319.

Download the opinion here.

Appellate practice notes:  The panel was comprised of Circuit Judges William C. Canby (born 1931), David R. Thompson (born 1930), and Milan D. Smith (born 1942).  It was an interesting oral argument, trying to convince three Ninth Circuit judges, all of whom presumably would be eligible to reside in the Residence at Carefree were it ever to open, that being elderly makes you "disabled."  The first question asked at orals:

Before we get to that, there's an underlying issue here that's really quite interesting to me.  It seems to me you are saying that -- at least the literature that was given to the city -- says these are going to be able-bodied people, at least 95 percent.  But we're making the claim for disability, and the reason people are disabled is that because they're human beings, and when you get old, you get disabled.  Is that the argument?

Judge Smith, the youngest member of the panel, authored the opinion.  The oral argument recording is posted here (6mb wav).

9th Cir: Due Process "Hassle"

How often do you see a published opinion from a federal court of appeals that uses the word "hassle" to describe needless litigation?  Well, thanks to the irrepressible Chief Judge Kozinski, we now have citeworthy precedent from Clement v. City of Glendale, No. 05-56692 (Mar. 11, 2008):

Officer Young could have avoided years of litigation and needless hassle for himself, the Glendale Police Department, the towing company, the courts, Ms. Clement and her daughter, by simply erring on the side of caution and good public service by letting her know that her vehicle was illegally parked. Instead, the rush to tow led to this protracted litigation that, no doubt, has consumed far more city resources than it would have taken to properly notify Clement.

Slip op. at 2357-58. The case involved how much notice and process was due to the owner of a car before the police towed it away.  The opinion isn't a groundbreaking decision on due process, but it is still a fun read.  Some of the better bits include the opening paragraph, which sums the issue up succinctly:

Virginia Clement lived in a residential hotel and parked her 1981 Cadillac Eldorado Biarritz in the hotel’s parking lot.  The car had not been driven in seven years and Clement did not keep the car’s registration current. But she did dutifully complete an alternate form of vehicle registration, she had the hotel’s permission to park there and the car was in its proper space. Without so much as a letter, a knock on the door, a note on her windshield or even a parking ticket, the Glendale police towed and impounded Clement’s car. They left no clue to where it had gone. Only  later did Clement discover that it had been towed for allegedly violating California vehicle registration laws.

Slip op. at 2351.  My favorite: "After discovering what happened to her car, Clement did the American thing: She sued."  Id. at 2352.  The car owner lost, by the way -- both the police officer and the towing company successfully asserted immunity from civil lawsuits, even though Ms. Clement's due process rights were violated.

Land Use Round Up

• Professor Ilya Somin posts "Once Blighted, Always Blighted" about how long-lasting "blight" designations are more likely to impede development, not encourage it."

• Charley Foster at Planet Kauai posts "Monkeypod preliminary injunction motion," his analysis of a pending motion for preliminary injunction, seeking to prevent a property owner from removing trees on its property.

• In  Noghrey v. Town of Brookhaven, No. 2006-05365 (Feb. 13, 2008), the New York Supreme Court Appellate Division held that the downzoning of property was not a regulatory taking under Penn Central.  New York Zoning and Municipal Blog posts on the case here, and Professor Patty Salkin summarizes the opinion on Law of the Land here.

• An Indiana trial court has held that a public utility cannot use eminent domain to take property because it acted in bad faith.  As reported here by the Louisville, Kentucky Courier-Journal:

Wymberly's attempt to use eminent domain was "in bad faith" because it had promised, in asking the state for a territory expansion to include the Lynn developments, that it would serve "as many customers as possible." But Whitis said its plan was to serve a "single customer, Lynn," and the proposed route would allow only two or three other property owners besides Lynn to connect.

The court's Findings of Fact and Conclusions of Law can be downloaded here (6mb pdf).

• An additional hat tip to Professor Salkin for posting a summary of the New Mexico Supreme Court's opinion in Albuquerque Commons Partnership v. City Council, No. 29792 (Feb. 18, 2008), a case about big box rezoning and moratoriums, among other things.

Land Use Seminar: February 20, 2008

There's still time to register for the "Advanced Land Use and Zoning Law" seminar to be held on Wednesday, February 20, 2008 at the Ala Moana Hotel in Honolulu. 

Topics include vacation rentals, big box zoning, affordable housing exactions, landowner liability for rockfalls, an environmental law update, and a summary of recent key decisions from Hawaii and other jurisdictions on land use and related issues.  The faculty is comprised of my Damon Key Land Use Practice Group colleagues Greg Kugle, Mark Murakami, Robert Harris, and Noelle Catalan.  I'll be covering the topic "U.S. Supreme Court, Regulatory Takings, and Eminent Domain Update."

Full agenda and registration information here.  Hope you can make it -- if you do, stop by and say hello.

County Withdraws Motion to Dismiss Land Use Civil Rights Complaint

The Garden Island reports that a property owner's appeal of the County of Kauai's approval of its permits with allegedly illegal conditions is going forward after the County withdrew its motion to dismiss.

The County Attorney’s Office filed for the motion to dismiss based on the Planning Commission failing to issue a “written decision and order containing findings of fact and conclusions of law,” which it claims is the only decision the court can review. Without it, there is no subject matter to base a case.

The Planning Commission has this on its Feb. 12 agenda, which, if approved, would apparently ratify the commission’s Dec. 11 approval of Creeksides’ permit applications.

Full report here.

Nonconforming Uses and "Grandfathering" of Land Uses

I promised back in this post to digest the Hawaii Supreme Court's opinion in Colony Surf, Ltd. v. Director of the Dep't of Planning and Permitting, No 26037 (Dec. 26, 2007).  However, because the opinion is so opaque it is difficult to understand, and the issue so narrow, I never quite got around to doing so. 

Professor Patty Salkin saves the day by posting a summary of the decision here on her Law of the Land blog. 

2007 Land Use in Review: 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.