If Robert Frost’s poetic adage is true, is the inverse also correct? Do bad fences make bad neighbors?
Perhaps so, if this story (yet another article about the Diamond decision conflating the legal definition of “shoreline” for setback purposes with the public/private boundary “shoreline,” which I posted about here, here, and here) is accurate:
Hawaii residents may be encouraged by the court ruling to insist that an eroding beach means the private landowner loses part of his property, as public property moves inland. But whether that’s a good thing depends on one’s point of view.
Dean Uchida, executive director of the Land Use Research Foundation of Hawaii, is worried that overzealous members of the public might try to claim public land if they see a debris line running through a back yard.
What does it say about the ability of the legal “fence” — the defining line between public beaches and private property — to provide certainty if some may think the law sanctions this type of behavior? Not much. Yet, the formulation of the boundary as an inchoate line seems to invite just this sort of action, since it inherently moves: the “upper reaches of the wash of the waves.”
Another issue highlighted by the article is the erosion/accretion debate:
But if there is serious erosion, private land becomes public land, said Issac Moriwake, an attorney for Earthjustice, the nonprofit environmental law firm.
“It doesn’t matter where the shoreline was a year ago or two years ago,” Moriwake said. “The question is where is the shoreline now.”
That might be correct, if the law — and the ocean — worked one way only. But beachfront land accretes as well as erodes. Age old legal traditions reconized this reality, and a shoreline property owner took the bitter (erosion) with the sweet (accretion), losing property when it eroded, but gaining it when accreted.
But as I posted here, the Hawaii Legislature in Act 73 attempted to overthrow that tradition, instead legislating that a shoreline property owner could not gain land by accretion, and leaving untouched the rule that the owner lost eroded property. The circuit court invalidated the legislation as unconstitutional, and an appeal is pending, so it looks like Diamond won’t be the last case about shorelines in the headlines.
October 2006
▪ Shoreline Definition History in a Nutshell
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The Diamond shoreline decision is considered in this piece on the Advertiser’s op-ed pages. It does a very good job of explaining the historical context of the legal definitions of shoreline:
The court essentially endorsed a concept originally created by the court led by Chief Justice William Richardson in the late 1960s and 1970s. Richardson, part Hawaiian, believed that the law in areas such as shoreline access or use of natural resources should look to Hawaiian tradition and practice as well as western law.
As the court said in the 1995 PASH decision, certain “western concepts” of property are “not universally applicable in Hawaii.” The piece continues:
In three famous decisions, the Richardson case affirmed that theory: Ashford (1968), Sotomura (1973) and Zimring (1977). While the facts and details of the three cases were different, the basic principle was the same: In contested cases, control of beachfront property tilts toward the public rather than the private landowner.
This was not an entirely popular position. Justices such as Masaji Marumoto argued that basing legal opinions on theories about Hawaiian practices and oral history was a dangerous and haphazard approach.
But the philosophy held.
Where this analysis goes slightly off-track is the conflation of of the Ashford-Sotomura-Zimring definition of “shoreline” for boundary purposes with the CZMA definition of “shoreline” for setback purposes. The boundary issue was not before the court in Diamond, and the court held only that the agency was not following the CZMA mandates (the language of which was derived from Ashford, hence the confusion). This rule of decision is not precedent for any furture boundary case, which will be decided on its own facts and the common law, not the CZMA.
Continue Reading ▪ Shoreline Definition History in a Nutshell
▪ HAWSCT to Hear Oral Arguments in Kauai Property Tax Appeal
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The Supreme Court of Hawaii issued an order reversing its earlier denial of oral arguments in the appeal about the legality of the Kauai Charter amendment relating to property taxes. Details of the appeal are posted here, and our briefs in the case can be found here or from the links on your right under “Briefs – Ohana Kauai Property Tax merits/reply brief.”
The facts of the case are straightforward: the people of the County of Kauai approved an amendment to their Charter addressing property taxes, but after the election, the County Attorney sued the county Mayor and other county officials asserting the amendment is illegal. The County Attorney represents both sides in the lawsuit, and the litigation was backed with a $100,000 war chest of taxpayer money, earmarked to hire private lawyers to attack the amendment.
No one was defending the legality of the Charter Amendment, so several local homeowners were forced to intervene, but the trial court dismissed their objections and ruled in favor of the County Attorney/Mayor. I represent the homeowners on appeal.
There are three issues in the appeal:
1. Standing/justiciability: May the County Attorney dispense entirely with the injury and controversy requirements for standing to sue, and is she entitled to “inherent” standing merely by virtue of her office?
2. Hawaii Constitution: By delegating real property tax power to “the counties,” did the people of Hawaii in article VIII, section 3 of the Hawaii Constitution grant the power only to county councils, to the exclusion of the people of the counties acting in accordance with their charter?
3. Charter Amendment: Can an amendment to a county’s charter violate the existing charter, when the amendment was proposed, certified, labeled, and passed as a charter amendment?
Continue Reading ▪ HAWSCT to Hear Oral Arguments in Kauai Property Tax Appeal
▪ More on Shoreline Definitions
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Honolulu’s two major dailies have produced front page stories about the Diamond shoreline opinion (detailed posting here).
The first — “Ruling sparks beach debate” — understands the difference between defining “shoreline” for certification purposes under the CZMA, and the “shoreline” for ownership purposes:
ENVIRONMENTALISTS have asserted that a Hawaii Supreme Court ruling this week opens public beach access and prevents private property owners from encroaching.
But private property advocates caution that the ruling should not be interpreted that broadly and does not affect beach access.
But the other article — “Ruling upholds shoreline access” — does not distinguish between shoreline definition for setback certification purposes, and the definition for the public/private boundary purposes:
The Hawai’i Supreme Court, in a landmark ruling that resolves three decades of conflict over shoreline property, has clearly ruled that the public beach must be established as wide as is reasonably possible.
As I mentioned yesterday, although the language of the certification statute tracks the language of the common law boundary cases, the court in Diamond could not and did not consider the issue of boundary or public access. Any application of this case to boundary issues is what lawyers call “dicta.” That’s a fancy way of saying that any discussion about access is only an aside by the court, not a rule of precedent that must be followed in future cases.
Future cases could contrast, for example, the differences between the policies underlying the CZMA’s shoreline definition, with the common law traditions and history of the term “ma ke kai” that on many parcels defines the boundary between private property and the public beach. The CZMA, after all, cannot be a tool to “expand” the public beach without compensation.
▪ What is ‘Artificial’ Vegetation?
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Continuing this post on the Diamond shoreline certification case, one of the most interesting aspect of the opinion is the court’s attempt to distinguish “artificial” from “natural” vegetation:
The utilization of artificially planted vegetation in determining the certified shoreline encourages private land owners to plant and promote salt-tolerant vegetation to extend their land further makai, which is contrary to the objectives and policies of HRS chapter 205A as well as the public policy we set forth in Sotomura. Merely because artificially planted vegetation survives more than one year does not deem it “naturally rooted and growing” such that it can be utilized to determine the shoreline. We therefore reconfirm the public policy set forth in Sotomura and HRS chapter 205A and reject attempts by landowners to evade this policy by artificial extensions of the vegetation lines on their properties.
Aside from the obvious issues of proof, any rule attempting to distinguish “artificiallly” planted and grown vegetation from “natural” vegetation seems nearly impossible to apply. Will the mere touch of man anywhere in the planting or growing process be sufficient to qualify vegetation as “artificial” under the court’s new rule?
Does this mean all the veggies in my dinner salad are now “artificial?”
▪ Shifting Sands of Shoreline Definitions
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What’s in a name? That which we call a rose
By any other word would smell as sweet– William Shakespeare, Romeo and Juliet
Or, to paraphrase Gertrude Stein, the shoreline is the shoreline is the shoreline, right?
Wrong. Under Hawaii law, the term “shoreline” has multiple meanings and a variety of applications, and defining the “shoreline” is not necessarily a one-size-fits-all proposition, applicable to all situations.
For example, the “shoreline” is the boundary between public beaches and private land as defined by Hawaii’s common law. However, “shoreline” can also mean the baseline from which statutory building setbacks (what my colleague Sat Freedman refers to as the “no build zone”) are measured.
In Diamond v. State Board of Land & Natural Resources, No. 26997 (Oct. 24, 2006), the Supreme Court of Hawaii addressed the latter application, the definition of “shoreline” for setback measurement purposes.
The court held that the State of Hawaii Board of Land and Natural Resources (the agency tasked with certifying the “shoreline” when an oceanfront property owner seeks to build on her land) must follow the language of the Coastal Zone Management Act (CZMA), which defines “shoreline” for setback purposes.
The CZMA defines the “shoreline” for certification and setback purposes only as:
[T]he upper reaches of the wash of the waves, other than storm and seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of vegetation growth, or the upper limit of debris left by the wash of the waves.
This statute does not define “shoreline” for purposes of the public/private boundary. Nor can it. The CZMA is concerned only with regulation of certain activities within the coastal zone. Were the statute to attempt to define the boundary between public and private land, or regulate away all beneficial use within the coastal zone (by declaring private property to be part of the public beach, for example), it would be an unconstitutional taking, along the lines of Lucas v. South Carolina Coastal Council.
Until a few months ago, BLNR’s regulations for how to apply this statute to a particular parcel defined “shoreline” differently than the CZMA:
[T]he upper reaches of the wash of the waves, other than storm or tidal waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of vegetation growth, or where there is no vegetation in the immediate vicinity, the upper limit of debris left by the wash of the waves.
Hawaii Admin. R. § 13-222-2 (1988). See the difference between that definition and the statutory definition? The regulation added the italicized phrase, enacting what appeared to be a preference for the vegetation line. The statute, on the other hand, showed no such preference. Indeed, under the statute, both the vegetation line or the debris line are simply evidence of the high wash of the waves, which remains the true benchmark.
Consequently, as I mentioned in this post, in May 2006, BLNR amended the regulation (effective June 2006) to conform the regulation precisely to the statutory language. The current regulation defines “shoreline” as:
[T]he upper reaches of the wash of the waves, other than storm or seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of vegetation growth, or the upper limit of debris left by the wash of the waves.
(Note that the only difference between the statute and the current regulation is the “or” between “storm” and “seismic”).
In Diamond, neighbors challenged BLNR’s attempts to certify the shoreline on a parcel on Kauai, arguing that the prior language of BLNR’s regulations did not conform to the statutory language, and are invalid. However, between the time the trial court decided in favor of BLNR, and the time the supreme court considered the appeal, the regulations had changed as noted above. Thus, the challenge to the legal validity of BLNR’s former rule was moot.
The court nevertheless addressed the issue of whether BLNR’s alleged preference for the vegetation line conformed to the CZMA’s definition because the issue was capable of repetition, yet would evade review (shoreline certifications are only good for one year, and the litigation process cannot be completed during that time).
The court held the agency was not correctly applying the CZMA. The language in section 205A-1 is plain, and shows no preference for either the vegetation line or the debris line.
Applying the language of the statute to the Kauai parcel, the court held the debris line should have measured the “shoreline” for certification purposes.
The decision is limited. BLNR has no jurisdiction to define where public beaches start and end, and the certification process has nothing to do with the boundary between public beaches and private land. As the Chair of the BLNR wrote, in an op-ed entitled “Certified shorelines don’t determine ownership” —
The Hawaii Supreme Court has held that “according to ancient tradition, custom and usage, the location of a public and private boundary dividing private land and public beaches was along the upper reaches of the waves.”
Why, then, wouldn’t a certified shoreline be the property boundary line? Shouldn’t they be the same? The answer is that they are not necessarily the same because their purposes, the impacts and the processes for determining these lines are significantly different.
Correct. It wis a mistake to read this case too broadly, and view it as the court extending public beaches inland. That is not what the court did. As one story put it incorrectly:
“The Hawaii Supreme Court on Wednesday defined the boundary between public beach and private property.”
No it didn’t. Diamond involved only the location of the shoreline for setback purposes, not the shoreline for defining the public/private boundary. Further, the plaintiff challenged only the agency’s interpretation of a statute, not the boundary between private property and the public beach. The difference in the legal consequences, and the process of determination of the location between the certified shoreline and the boundary shoreline is critical, as the BLNR Chair recognized:
When property boundaries and ownership are in question, the state does not rely on shoreline certifications, but instead takes a more rigorous approach to locating the property’s seaward boundary.
When shorefront property owners bring quiet title actions (lawsuits seeking the court’s determination of ownership,) the state enters the action to preserve all of its rights and title to its coastal property.
Certified shorelines do not determine ownership. Ultimately, the court decides ownership of the property and the boundary line dividing private and public lands. Because the certified shoreline serves a purpose different from ownership, the certified shoreline may be at a different location than the property’s seaward boundary line.
If the decision is viewed as moving the public/private boundary more inland (mauka), rather than only addressing the setback baseline, and if the court is viewed as further extending the public beach further inland that the rule in Sotomura and Ashford, the decision may suffer from severe constitutional defects. Granted, the definitions used to define shoreline for ownership purposes and setback purposes sure look the same (the legislature derived the CZMA definintion from the Sotomura and Ashford decisions, so to say that Diamond defines ownership is a case of the tail wagging the dog).
The bottom line is that the court in Diamond made no ruling on what is public beach and what is private property. That issue simply was not before it, and the court did not address it.
One of the more interesting aspects of the Diamond opinion is the court’s decision to create a legal distinction between “artificial” and “natural” vegetation. That issue is discussed separately here.
▪ Big Problems With Maui’s Proposed “Affordable Housing” Exaction Ordinance (pt II)
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This post continues the prior, discussing the legal problems with the County of Maui’s proposed “affordable housing” impact fee ordinance. The details of the proposed ordinance are reported here.
The blanket requirement that a property owner who wishes to make reasonable use of his or her property first donate some portion of it to the pool of affordable housing, or instead pay a cash fee, would be subject to challenge under both Hawaii Const. art. 1 § 20, and the Fifth Amendment to the U.S. Constitution. The courts have established two requirements before an exaction may be imposed as a mandatory condition of development, “nexus” and “rough proportionality.”
First, there must be a close connection (also known as a “nexus”) between the condition imposed on the use of land and the social evil that would otherwise be caused by the unregulated use of the owner’s property. See Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987).
Absent a nexus, a permit condition is “not a valid regulation of land use but ‘an out-and-out plan of extortion.’ ” Id. (citations omitted). In other words, the courts are worried that impact fees, in-lieu fees, and development exactions would become a form of “pay to play” where local governments are tempted to take advantage of the fact that a property owner seeks permits, and treat it as an opportunity to leverage land, other property, or cash in order to address other impacts not caused by the property owner.
The constitutional protections are designed to keep property owners from being forced to shoulder a disproportionate share of public burdens, if it cannot be shown individually that they caused the problem. The protections are “designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U.S. 40 (1960).
In other words, if there is a shortage of affordable housing on Maui, the proposed bill’s requirements must be related to some condition the developer created. The proposed bill makes no attempt to establish this factual nexus. There are many factors that have resulted in the issue the Council seeks to address, not just developers.
The second requirement is that there must be a close “fit” between the development exaction and the burdens created by a proposed development plan. See Dolan v. City of Tigard, 512 U.S. 374 (1994). As the Supreme Court held, if there is a “nexus” as required by Nollan, there must also be a “degree of connection between the exactions and the projected impact of the proposed development.” Id. at 386. In other words, there must be “rough proportionality” — “some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development.” Id. at 391.
Under this second requirement, it is difficult to imagine how the proposed bill would pass judicial scrutiny. It proposes blanket rules and percentages, not “individualized determination[s] that the required dedication is related both in nature and extent to the impact of the proposed development.” The law requires an examination of whether this development is causing a particular problem, and then only allows the government to address the problem in a proportional manner by imposing mitigation measures on a developer.
Continue Reading ▪ Big Problems With Maui’s Proposed “Affordable Housing” Exaction Ordinance (pt II)
▪ Big Problems With Maui’s Proposed “Affordable Housing” Exaction Ordinance (pt I)
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As reported here, the County of Maui is attempting to address a shortage of “affordable housing” by considering a new ordinance requiring property owners who wish to develop their land to first commit a percentage of it to “affordable housing” or pay a cash “in-lieu” fee.
There are two major legal infirmities with the proposal, which is, in essence, an impact fee: First, Hawaii’s counties have no power to enact an “affordable housing” impact fee, or require affordable housing exactions. Second, the bill does not conform to constitutional requirements of close tailoring to mitigate any impacts on the stock of affordable housing that particular developments may cause.
This post deals with the first issue, the power of the counties. The constitutional issue is examined in a separate post.
REASONABLE USE OF PROPERTY IS A FUNDAMENTAL RIGHT
All questions regarding regulation of property should start at the same point: that the right to own and make beneficial use of property is a fundamental constitutional right.
The framers of the U.S. Constitution and the Hawaii Constitution both recognized that the ability to use property is the building block to all other freedoms, and the government may not place unreasonable conditions on that right. As noted by the U.S. Supreme Court:
The right to build on one’s own property – even though its exercise can be subjected to legitimate permitting requirements – cannot remotely be described as a “governmental benefit.”
Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987). An “exaction” (a forced donation of land) or “impact” or “in-lieu” fees (cash payments instead of land exactions), may not impermissibly burden the right to build on one’s own property.
HAWAII COUNTIES ONLY HAVE AUTHORITY TO ENACT IMPACT FEES WITHIN THE LIMITATIONS OF HRS § 46-142
Counties have been delegated a limited power to enact impact fees, but have no power to enact impact fees regarding “affordable housing.”
An “impact fee” is defined by state law as:
[t]he charges imposed upon a developer by a county or board to fund all or a portion of the public facility capital improvement costs required by the development from which it is collected, or to recoup the cost of existing public facility capital improvements made in anticipation of the needs of a development.
Haw. Rev. Stat. § 46-141 (Supp. 2005). The power of the counties to enact impact fee requirements is narrow, and must be exercised within the scope of the statutory authority. Section 46-142 is the critical guideline for what the counties may and may not do:
(a) Impact fees may be assessed, imposed, levied, and collected by:
(1) Any county for any development, or portion thereof, not involving water supply or service; or
(2) Any board for any development, or portion thereof, involving water supply or service;
provided that the county enacts appropriate impact fee ordinances or the board adopts rules to effectuate the imposition and collection of the fees within their respective jurisdictions.
(b) Except for any ordinance governing impact fees enacted before July 1, 1993, impact fees may be imposed only for those types of public facility capital improvements specifically identified in a county comprehensive plan or a facility need assessment study. The plan or study shall specify the service standards for each type of facility subject to an impact fee; provided that the standards shall apply equally to existing and new public facilities.
Haw. Rev. Stat. § 46-142 (1993 & Supp. 2005).
HRS SECTION 46-142(B)
Analysis of the statutory authority in a four-step process demonstrates that the proposed affordable housing bill falls outside the permissible scope of the County’s authority to enact impact fee laws.
Subsection (a) provides that impact fees “may be assessed” by the counties for development. Thus, we start with a presumption that counties generally have the power to enact impact fee requirements, provided they do so by ordinance or agency rule.
However, the authority delegated to the counties by the statute is not unlimited or lacking specific guidelines. Ultimate sovereignty, of course, rests with the people of Hawaii. Haw. Const. art. I, § 1. The people have delegated their power via the Hawaii Constitution to the state Legislature, which in turn has the power to establish counties. See Haw. Const. art. VIII, § 1.
Thus, a county is not a sovereign entity, but rather a political subdivision that must remain within the confines of whatever authority is delegated to it by the Legislature, no matter how narrow.
With respect to impact fees, those limitations are contained in Haw. Rev. Stat. § 46-142(b), so the second step in determining the scope of the County’s impact fee authority is focused on this critical language: “impact fees may be imposed only for those types of public facility capital improvements specifically identified in a county comprehensive plan or a facility needs assessment study.”
Thus, if an impact fee purports to be for a “public facility capital improvement” — however that is defined — the County has no power to enact it.
A County has no power to enact affordable housing impact fees because the term “public facility capital improvement” is defined in section 46-141 to expressly exclude affordable housing:
“Public facility capital improvement costs” means costs of land acquisition, construction, planning and engineering, administration, and legal and financial consulting fees associated with construction, expansion, or improvement of a public facility. Public facility capital improvement costs do not include expenditures for required affordable housing, routine or periodic maintenance, personnel, training, or other operating costs.
Haw. Rev. Stat. § 46-141 (1993 & Supp. 2005).
Thus, a County’s general power to enact impact fees in subsection (a) of section 46-142 is expressly curtailed in subsection (b).
Other sections of chapter 46 – the state law that establishes the limited powers of the counties – similarly do not provide any authority to assess impact fees, in-lieu fees, or exactions for affordable housing. These provisions permit impact fees or exactions for other subjects, or limit the powers of the counties to address affordable housing issues by tools other than impact fees.
Section 46-6 permits the counties to impose exactions, but only for “parks and playgrounds.” Affordable housing exactions are not permitted. Haw. Rev. Stat. § 46-6 (1993).
Similarly, subdivision approval may be conditioned on a property owner’s agreement to provide access to beaches. Haw. Rev. Stat. § 46-6.5 (1993). There is no authority for affordable housing impact fees or exactions.
Other portions of chapter 46 permit the counties to address affordable housing issues, but do not permit them to do so by enacting impact fee or exaction requirements. For example, sections 46-15.1 and 15.2 permit the counties to develop and fund affordable housing projects either as public projects or in public-private partnerships with developers. Counties may also issue bonds. There is no authority in these sections, however, permitting counties to use impact fees or exactions to accomplish these goals.
The Development Agreement statute, Haw. Rev. Stat. § 46-121 et seq., permits the counties to enact development agreement ordinances providing a process for a county to enter into a voluntary agreement with a developer which may include affordable housing.
There is no authority in those sections allowing counties to impose mandatory requirements.
The constitutional problems with the bill are detailed in a separate post.
Continue Reading ▪ Big Problems With Maui’s Proposed “Affordable Housing” Exaction Ordinance (pt I)
▪ Cert Denied in Exaction Appeal
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The US Supreme Court today denied review to an appeal seeking to overturn Olympia, Washington’s requirement that a developer pay a “traffic impact fee” as a condition of developing a four-story office building. In Drebick v. City of Olympia, the city demanded the developer pay the traffic impact fee even though the proposed office building was on the edge of town, and would not affect traffic.
Exactions are land use law’s version of “pay to play.” Local governments often condition development permits on a property owner’s agreement to “donate” land (exactions) or cash in-lieu fees (aka “impact fees”). These demands only pass muster under the Fifth Amendment when they meet two requirements:
1. They must have a logical connection (nexus) to the proposed development, and
2. They must be be roughly proportional to the impact anticipated to be created by the proposed use.
These requirements were first enunciated by the Court in Nollan v. California Coastal Comm’n and Dolan v. City of Tigard, respectively.
They are designed to limit the obvious potential for abuse: if the government has unfettered ability to condition use permits on the owner’s concession to turn over property or money, the result, as the Court pointed out in Nollan, would be an “out-and-out plan of extortion,” and an impermissible burden on an owner’s right to make reasonable use of his or her own property.
An example from my own experience: in a case involving an owner’s request to develop its own property, the head of the planning department testified that permission would not be forthcoming unless and until the owner agreed to give up “the goodies” (his word, not mine) for a public park, which just happened to be the most valuable portion of the parcel. This illustration highlights another rationale for the exaction limitations — the legitimate concern that exactions would substitute as a compensation-and-due-process-free shortcut to an exercise of eminent domain power. If the city needed a public park, it should have condemned and paid for it, not exacted it from the owner as a condition of use. The Nollan/Dolan rules were meant to curb just this sort of demand.
The Drebick petition presented two questions: whether cash in-lieu fees are exempt from Nollan/Dolan, and whether exactions imposed by a legislature are similarly immune(disclosure: Pacific Legal Foundation filed the Drebick petition).
Denials of cert do not establish precedent, so today’s action has no effect on the law in other cases.
Sidebar: commenting on the decision, PropertyProf Blog cheekily suggests the Court not grant review to another takings case for a few years to permit the lower courts to flush out doctrine, and to allow legal scholars to focus on other interests for a while. Not to worry: the Kelo-Lingle-San Remo triad may have dampened whatever mojo the federal courts had for eminent domain and regulatory takings cases, even though there remain many issues, like those in the Drebeck petition, deserving of resolution. In-lieu fees are a favorite of local governments (especially in Hawaii), even though they are of questionable constitutionality.
▪ Spot Takings and Kelo
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Professor Ilya Somin has posted a summary of a recent Fifth Circuit decision upholding an exercise of eminent domain for economic development because it was in accordance with an integrated plan.
Justice Stevens’ Kelo opinion took great effort to analogize New London’s exercise of eminent domain with the Euclidean zoning process. Those of us who practice land use law know that in order to pass Constitutional muster, zoning must be neutral, transparent, and comprehensive, or else it is subject to a due process challenge. The case that gave us this standard and upheld zoning, and is still the touchstone of comprehensive planning, is the 1926 case Village of Euclid v. Ambler Realty Co., upholding citywide zoning against a due process challenge.
The limitation on the government’s power, and the basis for a court’s deferral to the legislative judgment of the legislative branch, is that zoning of property is supposedly comprehensive and part of a larger plan. In the absence of comprehensiveness, zoning would violate due process. Justice Stevens refers to Euclid expressly as a reason why the taking in Kelo was for a public use/purpose. Look to the language in his recitation of the facts, where he repeatedly emphasizes the “neighborhood meetings,” the “integrated development plan,” the “carefully considered development plan,” and that “The City has carefully formulated an economic development plan,” etcetera.
Property owners can still challenge a zoning ordinance as a due process violation, or as “spot zoning,” which has constitutional overtones. A good example is the 1996 case from the New York Court of Appeals, Town of Orangetown v. Magee, 665 N.E.2d 1061, where the court held that public opposition to a vested development project was the reason for the town’s behavior, not comprehensive planning.
In the post-Kelo world will property owners have to prove “spot takings” in order to prevail under the Public Use clause of the Fifth Amendment?