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Hawaii Public Radio on Transit, Land Use, and Growth (mp3)

Hawaii Public Radio has posted a five-part series of reports on "Transit and Growth in Hawaii," the third of which is the most interesting since it focuses on Honolulu's proposed $4 billion+ rail system.  Each of the segments, however, is worth a listen:

• Part I - did 1970's projections match up to reality?
• Part II - gas prices and growth
• Part III - the cost of rail, and who will pay
• Part IV - the EIS
• Part V - which technology will be employed?

In a similar vein, last year, UH Law professor David Callies, Honolulu attorney Vernon Woo, and I were guests on Jay Fidell's KHPR program on the topic of Honolulu rail, and the development and land use issues sure to surround the project.  Audio of the show is available here.

eminentdomainsucks.com

Here's a property owner from Denver, Colorado not afraid to tell us what he really thinks about eminent domain: the URL for his blog is eminentdomainsucks.com. 

No surprise that someone who grabbed that domain name is a property owner on the business end of a condemnation action. 

▪ Court Strikes Delegation of Eminent Domain and Reimbursement to Private Party

You can read the court's Findings of Fact, Conclusions of Law, and Order here.

I won't be commenting on this decision since my colleagues Ken Kupchak, Mark Murakami and I are the attorneys for the property owner, but the statement of the family that owns the land is below.

# # # #

Circuit Judge Ronald Ibarra has decided in favor of a local Kona family, ruling that the County of Hawaii illegally sold its power of eminent domain to Scottsdale, Arizona-based luxury developer Hokulia.  In the County-Hokulia Development Agreement, the County allowed Hokulia to control what property would be seized, permitted Hokulia's lawyers to threaten the Richards Family and its neighbors, and forced the County to bring lawsuits against its own citizens to take their property. 

The court ruled that the County-Hokulia Development Agreement violated state law because it illegally transferred the County's power to take the property by eminent domain to Hokulia.  The Richards Family's property was targeted by the developer for its "Hokulia Bypass," a road connecting the "luxury golf course real estate development project" to Mamalahoa Highway. 

 

The court struck down the first of the County's multiple attempts to take a portion of the Richards Family's property for the Bypass because the County "did not have a proper public purpose."  The court found "[i]f the government attempts to delegate its power of eminent domain to a private party in an agreement whereby the developer controls what property is taken and pays for all expenses, and the private party is able to demand the government institute eminent domain proceedings against other private property owners, then the attempted delegation is illegal and void." 

 

The court also invalided the portion of the County-Hokulia agreement that would have required the Richards Family and their Onouli neighbors to reimburse Hokulia for the cost of the road. 

 

Under the judge's ruling, however, the County will be able to build the Bypass since a second attempt to take the property did not suffer the same legal defects as the first.  The court awarded the Richards Family over $200,000 in compensation for the taking of their land.

 

"These cases were never about whether another road is needed in Kona," said Richards Family spokesman Charles Coupe.  "Our family fought for our rights and the rights of our neighbors because we couldn't believe that the County could sell governmental powers to the highest bidder.  It didn't seem right that the County could agree to allow Hokulia to take our property for Hokulia's road, and then pass back the cost of the road to us." 

 

After Hokulia directed the County to start eminent domain process in October 2000, the Richards Family called upon Kenneth Kupchak, Robert Thomas, and Mark Murakami, the legal team at Honolulu-based Damon Key Leong Kupchak Hastert (www.hawaiilawyer.com), to protect their rights in court. 

 

"It has been a long fight, but it has been worth it," said Coupe, "Our family knew this wasn't right, and we would stand up for our rights and our neighbors' rights again, if necessary."

 

▪ Land Use Round-Up

• In case you hadn't heard: from West Hawaii Today, a story about a lawsuit over whether a seller of land adequately disclosed the existence of the Big Island's infamous noise-making coqui frogs.

• Maui's affordable housing exaction working...or not? From the Maui News, a report on a proposed development that might not make the grade. 

• Is the valuation claimed in property tax appeal relevant to valuation in eminent domain?  Gideon's Trumpet reports on an Arizona case, Salt River Project v. Miller Park, LLC, 164 P.3d 667 (Ariz. Ct. App. 2007), regarding the relevance of an owner's testimony on valuation in a property tax appeal to the question of valuation in eminent domain.  Professor Kanner details why valuation in a property tax appeal is not all that relevant to just compensation.  Hawaii law provides:

The valuation claimed by the taxpayer in any appeal regarding the assessment of real property tax shall be admissible in evidence as an admission of the fair market value of the real property as of the date of assessment irrespective of the fact that the assessed value from which the taxpayer appealed is adjusted to one hundred per cent fair market value

Haw. Rev. Stat. § 101-12.

• Honolulu's rail project: a story from the Honolulu Advertiser about the ripple effects of planning for the transit stations on the proposed $4B+ fixed rail system.  More on the proposed transit project here.

▪ Designing "Transit Villages" in Honolulu's Rail Project

"Sustainability," "smart growth" and "transit-oriented development" are the catchwords du jour these days in Honolulu, as we anticipate the $4B+ fixed guideway mass transit project.  But from the San Francisco Chronicle comes this "cautionary tale" of a Bay Area Rapid Transit (BART) transit village gone. . .not quite right:

The basic moves are great: Three and four-story buildings filled with apartments and retail space are on busy El Camino Real instead of somewhere on the region's outskirts. There's a BART station next door, and 70 of the 361 apartments are reserved for lower-income residents. There's even a Trader Joe's, a grocery chain of cultlike status.

But this showcase of so-called smart growth comes packaged in the most generic structures imaginable, an inept cross between Stanford University and Orange County. The best thing about Solaire is that, with luck, it will be a wake-up call to other cities  --  reminding them that the quality of what gets built is every bit as important as the planning theories involved.

▪ Honolulu's Rail Project: Podcast of Hawaii Public Radio Program (mp3)

ThinkTech Hawaii, Jay Fidell's Hawaii Public Radio program on FM89.3 KIPO, has posted both the show (20mb mp3) and the aftershow podcast (13mb mp3) of  yesterday's "Honolulu's Fixed Guideways - How Will The Surrounding Areas be Developed."  I was a guest along with UH Law Professor David Callies, and Honolulu attorney and developer Vernon Woo.

Jay led a wide-ranging discussion on legal, land use, and political issues related to Honolulu's $4B "fixed guideway" mass transit system.  We talked about public-private development partnerships, eminent domain, transit-oriented development and other related subjects.  Jay's final question: "if you were King, what would you do about the rail?"  Food for thought.

Honolulu City Councilperson Charles Djou and transit expert Cliff Slater also called in with their thoughts.

▪ Tune In, Turn On: KIPO FM89.3 Wed., May 23 @ 5pm HST

A heads up: from 5 - 6 pm on Wednesday, May 23, I will be a guest on Jay Fidell's ThinkTech Hawaii program on Hawaii Public Radio, KIPO. 

The topic? "Oahu's Light Rail - How Will the Surrounding Areas be Developed."   KIPO can be tuned in at FM89.3, or streaming audio is available here.  ThinkTech also posts a podcast of the show a couple of days afterwards, and I will post a link when it becomes available.

Joining me as guests will be Professor David Callies of the UH Law School, and Honolulu City Councilperson Charles Djou.  Hope you can listen in.

▪ 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: "Fixed Guideway" System Approved

On Christmas Eve 2006, the Honolulu City Council approved a $4B+ "fixed guideway" mass transit system to run from somewhere in West Oahu to somewhere in town.  The nature of the system has not been selected (rail, busway, something else), nor has the route.  But in January 2007, a half-percent increase in the general excise tax became effective, the proceeds from which are earmarked for the transit system.  City officials say it's a "go."

I've made a few comments about the impact of a mass transit project on property owners (here, here, here, and here), but it is too early in the process to note any concrete legal developments.  I've included the fixed guideway story in 2006's land use highlights, however, since I suspect the legal issues will loom larger and larger as the project -- the largest public works project in Hawaii's history -- moves forward. 

      

▪ A Camel is a Horse Designed by Committee

Is it just me, or is Honolulu's proposed rail system -- whoops, sorry, "fixed guideway" -- beginning to look like the camel in the timeworn cliche?  The city council has approved a transit system, while leaving decisions about the actual location of the route, and whether the system will be rail or something else, until later (but the tax to pay for a portion of the $4B+ cost will be charged starting 1/1/2007). 

On Friday, the council first delayed the final vote on the transit system's footprint in order to consider adding another section, then reconsidered the delay and decided it would vote, then voted 7-2 in favor of the system, whatever it might be.  The delay was suggested in order to consider adding another section to the line, which would have resulted in the need to take even more private property by eminent domain. 

While there may be sound arguments on both sides of Honolulu's mass transit issue (rail? bus? toll lanes?), the one thing for sure is that if the system is expanded, more private property will be needed, and more Honolulu property owners will be receiving the dreaded "dear interested person" letter in the mail.