inversecondemnation.com

Oral Arguments in ICA Appeal on Kuilima EIS (mp3)

The recording of today's oral arguments in Unite Here! Local 5 v. City and County of Honolulu, No. 28603 has been posted here.  (Be prepared -- it's a 93mb file).  The briefs of the parties are posted here.

A report from KHON-TV2, with video of the site and the arguments is posted here.

The appeal involves the question of whether the City should have required the Kuilima Resort to prepare a supplemental Environmental Impact Statement.

Update: Charley Foster has posted a summary of the arguments and analysis. 

Merits Briefs in Upcoming ICA Appeal on Kuilima Resort Environmental Impact Statement

On April 9, 2008, the Hawaii Intermediate Court of Appeals will be hearing oral arguments in Unite Here! Local 5 v. City and County of Honolulu, No. 28603, the appeal involving the question of whether the City should have required the Kuilima Resort to prepare a supplemental Environmental Impact Statement.  Here are the main merits briefs of the parties:

• Opening Brief (2.5mb pdf)
  

• City's Answering Brief (1.3mb pdf)
  

• Kuilima_Resort's Answering Briefs (3mb pdf)

The issue, as stated by the Appellants:

Does the Hawai'i Environmental Protection Act (HEPA) [Haw. Rev. Stat. § 343-1, et seq.] and the Environmental Council Rules (HEPA Rules) obligate a public agency to determine whether a project requires a Supplemental Environmental Impact Statement (Supplemental EIS or SEIS) where new circumstances and evidence bring to light likely increased environmental impacts not previously dealt with in the project's twenty-two (22) year old EIS?

Opening Brief at 1.  The Resort, naturally, phrases the issue somewhat differently:

Plaintiffs challenge Kuilima's development Project, which the City and State entitled in 1986 based in part on the EIS.  Since the entitlements, and until this litigation began in January 2006, the Project proceeded forward.  Plaintiffs emphasized at the trial level that the lapse in time from 1986, without completion of the Project, is a "change" in the Project that, coupled with alleged changes in the regional environment over that time, requires an SEIS.  Plaintiffs continue to rely on alleged regional changes in environmental conditions since the acceptance of the EIS, but now argue that those changes, by themselves, form a stand-alone basis to require an SEIS under the last sentence of HRS [sic] § 11-200-27.  This misinterpretation of the SEIS Rules is just another argument that the lapse of time is enough to require an SEIS. [footnote omitted]

Kuilima Resort's Answering Brief at 1.

Discretion Wins Out Over Valor in Half Moon Bay Inverse Condemnation Case

Remember that whopping $36.8 million inverse condemnation judgment against the City of Half Moon Bay, California by the U.S. District Court back in November 2007?  Yamagiwa v. City of Half Moon Bay, No. 05-4149 VRW (Nov. 28, 2007).  The city said at the time it was going to appeal, and it hired some pretty impressive guns to do so.  Now, however, it appears that the city has changed its mind, as reported in the San Francisco Chronicle's story, "Half Moon Bay's plan to avert fiscal ruin."

In a move to save their city government, Half Moon Bay officials tonight approved a settlement agreement with a developer who won a $36.8 million court judgment last fall that threatened to leave the city in financial ruins.

The Half Moon Bay City Council signed off on an $18 million settlement to developer Charles "Chop" Keenan, whose trustee wanted to build an 83-unit subdivision on a 24-acre property that the city had inadvertently turned into protected wetlands.

Under the agreement, which was accepted by the developer, the city could get out of paying a cent if it can successfully get special legislation passed that would allow Keenan to build 129 lots on the property and an adjoining parcel, bypassing wetlands protection laws.

Read the complete report here.  The city probably should have thought about the consequences before it turned the plaintiff's property into undevelopable wetlands, but government regulators often don't seriously consider the possibility of losing.  The law is stacked against property owners, and government has no problem interposing all sorts of procedural hurtles in an effort to expense the property owner down (as one government attorney once confessed, "we'll 'motion' you for a year before we ever reach the merits").  Even if the government eventually loses, any monetary judgment will be paid with O.P.M. (Other People's Money).  In this case, however, the judgment was more than three times the annual municipal budget, an amount so large it could not be ignored by the city fathers and mothers. 

Read the District Court's 167-page Findings of Fact and Conclusions of Law if you want to find out the whole sordid story of what led up to the judgment. 

Butterfly Effects and Environmental Impact Statements

The Honolulu Advertiser reports that the Chamber of Commerce of Hawaii is advocating in favor of a bill limiting the "use" of a state or county road as a trigger to chapter 343 environmental review:   

The state Department of Transportation, responding to two previous Supreme Court rulings, asked the state Environmental Council early last year to generally exempt the private construction of driveways or the installation of utilities within state road right-of-ways from environmental assessments. The Supreme Court, in a 1997 decision involving the Kahana Sunset project on Maui and in a 2006 decision on the Koa Ridge project in Waiawa, found that projects that touch state road right-of-ways technically use state lands and trigger potential environmental assessments.

Section 343-5, as interpreted by the Hawaii Supreme Court, requires an agency to undertake an environmental assessment if an applicant's project (broadly construed to include both the specific proposal and, as in the Superferry case, the "secondary impacts" of the project) proposes the "use of state lands." 

The "Koa Ridge" case mentioned in the article is Sierra Club v. State of Hawaii Office of Planning, 109 Haw. 411, 126 P.3d 1089 (Jan. 27, 2006), which I discussed in this post.  In that case, the court noted its earlier decisions determining that the "use of state lands" trigger was to be taken both literally and liberally.  "Use of state lands" thus includes construction of two underpasses under a state highway, Citizens for Prot. of N. Kohala Coastline v. County of Hawaii , 91 Haw. 94, 979 P.2d 1120 (1999), and the placement of a drainage system under state land that was part of a larger project.  Kahana Sunset Owners Ass'n v. County of Maui, 86 Haw. 66, 947 P.2d 378 (1997).

Land Use Round Up

A round up of posts of possible interest to readers:

• Koloa Creekside sues county -- a developer is suing the County of Kauai for civil rights violations, and unlawful exactions:

The 18-page lawsuit names as defendants the county of Kaua‘i, the Planning Commission, and the Planning Department and its director. It asks for the Koloa Creekside Estates project to be found exempt from the Koloa-Po‘ipu-Kalaheo Development Plan and, if not, the imposed conditions to be declared unlawful.

The developer also opposes some requirements that it was previously willing to concede — such as a land dedication, impact fees and construction schedule, the lawsuit states.

Attorneys argue in the case for automatic approval of the permits because the county failed to meet its own deadlines.

• Charley Foster at Planet Kauai adds his comments on the NY Times story about the NIMBY phenomenon in Hawaii.

• Jesse Souki at Hawaii Land Use Law blog digests HAWSCT's latest water law decision, In re Contested Case Hearing on the Water Use Permit Application Filed by Kukui (Molokai), Inc., No. 24856 (Dec. 26, 2007), here.  Jesse also comments about Honolulu's proposal for an "affordable housing" exaction here.

• Jay Fidell at Hawaii Public Radio recently had a ThinkTechHawaii program on the possibilities for a constitutional convention.  Podcast here.  HPR news has posted a summary podcast here.

• In Bering Strait Citizens for Responsible Resource Development v. U.S. Army Corps of Engineers, No. 07-35506 (9th Cir. Jan. 3, 2008), the Ninth Circuit upheld a gold mining permit issued pursuant to the Clean Water Act.

2007 in Review: 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. 

Despite the high drama, the issue in the Sierra Club's lawsuit was fairly straightforward: did the Superferry qualify for a categorical exemption from having to undertake an EA.  The Supreme Court held as a matter of law that it did not, and that secondary impacts should have been considered. 

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.

NY Times Catches a Recurring Vibe

In a story dated December 30, 2007 in the New York Times Travel section, "Not in My Tropical Backyard," Christoper Pala ties together several seemingly-unrelated threads: the Hawaii Superferry, development on Molokai, the Hokulia project on the Big Island, and expanded resort development on Oahu's North Shore.  The only issue that seems to have been left out is the question of vacation rentals.  The unstated thesis seems to be that these events are spurred, in large part by "backlash" against tourists and related development, but that seems like only part of the vibe -- and it may be more the "drawbridge protectionism" discussed in this post, and a perception that we're nearing capacity and things just aren't the way we remember them, than a specific anti-tourism or anti-outsider sentiment. 

Podcast on $37m Federal Inverse Condemnation Judgment

In anticipation of the upcoming eminent domain conferences, ALI-ABA has posted a (free!) short podcast by Michael Berger about the recent $37 million inverse condemnation judgment against a northern California for causing the plaintiff's land to become undevelopable wetlands (Yamagiwa v. City of Half Moon Bay, No. 05-4149 VRW (Nov. 28, 2007)).  See you at the conference (Jan 3-5, 2008).

City Will Appeal $37 Million Inverse Condemnation Judgment to Ninth Circuit

As reported here and here, the City of Half Moon Bay, California is going to appeal the $37 million federal inverse condemnation judgment to the Ninth Circuit.  In the first story, the San Francisco Chronicle reports:

The Half Moon Bay City Council on Tuesday night voted to hire a team of appellate lawyers and announced it would fight a potentially ruinous federal court decision that orders the city to pay $36.8 million to a developer in a property dispute.

"The City Council has decided to go forward with an appeal," Mayor Bonnie McClung told a crowd of more than 70 people gathered for the council's first regular meeting since the ruling came down. "We are united in our position at this point that this is the best course of action for us."

The council voted unanimously to hire Orrick, Herrington & Sutcliffe, a San Francisco law firm that specializes in public finance and corporate law. In the same action, the panel also hired Piper Jaffray, a financial firm that has worked with cities across the state, to serve as a financial adviser.

The firms will work with the council on what to do about a court judgment that is more than three times the coastal city's $10 million annual budget. The judgment, the council said in a joint statement, threatens the "very existence of our city government."

Read the entire report here.  Gideon Kanner adds his insight to the latest developments here.

Government's Response to $37M Inverse Condemnation Judgment

The $37 million inverse condemnation judgment against the City of Half Moon Bay, California by  the US District Court for the Northern District of California is having some repercussions, as reported by the San Francisco Chronicle:

Under the worst-case scenario, officials say, Half Moon Bay would become the first Bay Area city forced to dissolve, and the coastal town's land would become an unincorporated part of San Mateo County.

Members of the City Council say that's unlikely, and they plan to vote at a public meeting tonight to retain an appellate law firm and a financial consultant to advise them on how to tackle a court judgment that is more than three times Half Moon Bay's $10 million annual budget.

. . .

Funding such a bond would mean "significant budget cuts across the board," the City Council said in a joint statement last week. "Everything will be affected - parks, streets, libraries, repairs - every municipal function will face cuts."

Paying the judgment outright appears to be out of the question. The City Council said: "The very existence of our city government is threatened."

Read the complete article here.  I wrote about the decision here, here and here.  The city probably should have thought about the consequences before it turned the plaintiff's property into undevelopable wetlands, but government regulators often don't seriously consider the possibility of losing.  The law is stacked against property owners (as one government attorney once confessed, "we'll motion you for a year before we ever reach the merits"), and even if the government eventually loses, any monetary judgment will be paid with O.P.M. (Other People's Money).   

Professor Gideon Kanner has also posted further commentary about the apparent lack of widespread media interest in the decision.