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Two Recent Law Review Articles (Water Law and Shoreline Issues)

Two recent U. Hawaii Law Review articles worth mentioning.  Although neither is available free on the web, they can be obtained through legal research services such as Westlaw or Lexis, or through the U. Hawaii Law Review.  If you don't have a UHLR subscription, you should. It's only $30 per year for US addresses.

Water Regulation, Land Use and the Environment
David L. Callies and Calvert G. Chipchase; 30 U. Haw. L. Rev. 49 (Winter 2007)

In this article, the authors assert that the "public trust" doctrine, as misconstrued by the Hawaii Supreme Court, has distorted water law and the land use process:

Problems arise in the planning process when water and non-economic uses of water are given a sacrosanct status that abjures private use for the benefit of "the public." This is increasingly happening under flawed interpretations of the public trust doctrine.

p. 49 (citing In re Water Use Permit Applications (Waiahole), 84 Haw. 97, 9 P.3d 409 (2000); In re Water Use Permit Applications, 105 Haw. 1, 93 P.3d 643 (2004); In re Water Use Permit Applications, 113 Haw. 52, 147 P.3d 836 (2006)). The article continues:

Many courts have forgotten that the jus privatem is as much a part of the public trust doctrine as the jus publicum. Certainly water should be available for future use, but is also should be readily available for current use. When the balance between current private and abstract or future public needs is distorted, water use and availability of water becomes the primary, or even sole, consideration in the process. This leads to the preservation of water for such uses as "minimum stream flows" and non-beneficial use by selected segments of the public and, ultimately, an elitist, communitarian regime that bears no relationship to either traditional notions of water rights or constitutionally protected rights in property.

Id. The authors analyze the multi-layered land use planning laws in Hawaii, the state Water Code (Haw. Rev. Stat. ch. 174C), and the Hawaii Supreme Court's extension of the public trust doctrine beyond navigation and commerce to the promotion of reasonable and beneficial use of water resources in Waiahole.  p. 70.  The article also discusses how Arizona, Colorado, and New Mexico regulate their water resources, and what lessons these jurisdictions may provide for Hawaii.  pp. 77-92.

More Than a Line in the Sand: Defining the Shoreline in Hawai'i After Diamond v. State
Simeon L. Vance and Richard J. Wallsgrove; 29 U. Haw. L. Rev. 521 (Summer 2007)

In this article, the authors analyze the differences in the various definitions of the "shoreline" under Hawaii law, and the Hawaii Supreme Court decision in Diamond v. State, 112 Haw. 161, 145 P.3d 704 (2006) .  As detailed in this post about the Diamond case, the term "shoreline" is used to define both the boundary between public and private property as well as the baseline for measuring the shoreline setback (a no-build zone on beachfront property).

The difference between a  certified shoreline  and a  seaward boundary line  has become a confusing and potentially divisive issue. Confusion is predictable because the definition of  shoreline  for certification purposes is essentially identical to the definition Hawai'i courts have used to determine property boundary lines. Despite their similarity, however, the two lines  are not necessarily the same because their purposes, the impacts and the processes for determining these  lines' are uniquely and significantly different.

The most critical of these differences is that shoreline certifications are not designed to determine ownership.  Instead, the line of ownership dividing public and private coastal property is the seaward boundary. Markedly different from the shoreline certification process outlined above, determinations of seaward boundary lines often take the form of quiet title actions, eminent domain actions, or land court petition actions.  The state's responsibility to uphold the public trust and preserve its interest in property triggers the need for  a more rigorous and cautious approach.  In these situations, the state does not rely on shoreline certifications, but conducts its own survey in recognition of the "importance of lateral [shoreline] access over state-owned lands for recreation, native gathering practices and other purposes."

p. 532 (footnotes omitted).  The article is a good introduction to Hawaii's unique approach to shoreline law, and a worthy read.  And I'm not just saying that because it cites several posts from this blog as authority (See, e.g., notes 92, 146, 179, and 180, and accompanying text).

Land Use Round Up

Some interesting items, worth reading:

• According to this story, the preferred developer of the New London, Connecticut project that gave us Kelo apparently is on the ropes.  Professor Gideon Kanner's take on the latest misstep is here.

• From Dean Patty Salkin's Law of the Land blog, a summary of Agripost, LLC v. Miami-Dade County, No. 05-16499 (11th Cir. Apr. 22, 2008), the latest case on the Williamson County ripeness/res judicata Catch-22. 

• From the Court of Federal Claims comes Schooner Harbor Ventures, LLC v. United States, No. 06-87L (Apr. 15, 2008), where the landowner sought compensation after the Fish and Wildlife Service designated property as critical habitat for the Mississippi Sandhill Crane.  The landowner asserted that the designation killed a deal for it to sell the property to the Navy.  Too bad said the CFC, the right to sell the property to the Navy without restrictions is not a "property" right subject to Fifth Amendment protections:

The plaintiff’s argument fails in that the plaintiff is asserting that it had the right to sell its property to the government, without conditions imposed, in this instance to meet regulatory burdens  imposed on the Navy, by obtaining the mitigation parcel. Whereas, the right to alienate the property is a cognizable property interest, the right to sell the property to the government at a particular price and without conditions is not a cognizable property interest which is protected by the Fifth Amendment. 

Slip op. at 13. 

• The LA Times has commentary on California's upcoming Propositions 98 and 99, two items on the ballot regarding the exercise of eminent domain power and property rights:

Your decision on Prop. 98 may come down to how you answer two questions: Is it worth risking future public works projects, including water? Is rent control bad? If the answer is yes to both questions, vote yes on 98. If the answer is no to either question, vote no -- then yes on 99.

New Article Published: "Because They Can: Judicially Excising the People from the Definition of 'County' in the Hawaii Constitution"

The ABA Section on State & Local Government has published my article "Because They Can: Judicially Excising the People from the Definition of “County” in the Hawaii Constitution" in the State & Local Government Law News (Spring 2008). 

The article is a summary and analysis of County of Kauai ex rel. Nakazawa v. Baptiste, 165 P.3d 916 (Haw. 2007), the 3-2 decision in which the Hawaii Supreme Court creatively overcame justiciability problems to hold that the term "the counties" in the Hawaii Constitution's provisions regarding property taxes means "county councils."  In doing so, the court invalidated a voter-enacted Kauai charter amendment that would have rolled back property taxes to 1998 levels, and set a yearly cap on increases.  The dissenting justices accused the majority of "subverting the judicial process," and would have dismissed the case for lack of standing. 

The article is posted on the ABA's web site here.  For those of you who are not section members and don't receive a copy in the mail, the article is reposted here.  More on the case, including the majority and dissenting opinions, a Wall St. Journal story about the decision, and the briefs and oral arguments, is posted here.   

▪ Meditations on the Practice of Law

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. 

▪ Vested Rights/Zoning Estoppel Dispute Brewing on Kauai

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.

▪ Inversecondemnation.com Reviewed

My thanks to Walt Harvey at Grassroot Institute of Hawaii for posting a very kind review of my work and this blog in Grass in Review:

When Robert is not wearing his private property ‘Superman’ suit he’s a practicing attorney with Damon, Key, Leong, Kupchak & Hastert and has been selected by his peers to be included in the guide Best Lawyers in America as an expert in  eminent domain and condemnation law.

The  best news is that Robert has created a web log that’s loaded with invaluable information: www.InverseCondemnation.com. He regularly posts issue analysis and case summaries and links to podcasts. He has provided a review and analysis of 2006 significant private property rights issues in Hawaii. His site is a daily ‘must read’ to keep current and we highly recommend it!

Thanks, Walt.  Don't overlook Walt and Arla Harvey's comprehensive real estate news site, www.coastalhawaii.com, where on a daily basis they gather and post links to articles of interest to property owners on subjects such as the Hawaii real estate market, affordable housing, and property taxes.  I stop by their site most every day for "one stop shopping" for a summary of news sources that do not have RSS feeds.

▪ 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: 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: What to do if the Government Changes its Mind

A touch of self-promotion.  In February 2006, the University of Hawaii Law Review published an article written by me and my Damon Key colleagues Ken Kupchak and Greg Kugle. 

The title "Arrow of Time: Vested Rights, Zoning Estoppel, and Development Agreements in Hawaii" pretty much sums up the contents.  The article seeks to answer the question: can the government change its mind after it gives a property owner the "green light" to develop?

Details, including how to obtain a copy, here.

▪ Eminent Domain Compendium Published

I have recently completed the Hawaii chapter in a compendium on the eminent domain laws of each of the fifty states entitled (not surprisingly): Law and Procedure of Eminent Domain in the 50 States.

Each chapter of this publication is devoted to a summary of a single state's eminent domain laws, and provides the basic tools for understanding each jurisdiction's condemnation law, including who has the power to take, sources for condemnation authority, the rules of just compensation, and the procedural aspects of eminent domain litigation.

The compendium is sponsored and published by the ABA Section on Litigation (Committee on Condemnation, Zoning and Land Use). 

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