The Supreme Court of Hawaii issued four decisions in legal challenges to the recent primary elections, two in the election of Kauai’s mayor, and two in statewide elections. Election challenges are original proceedings, so the court issued Findings of Fact and Conclusions of Law, rather than the usual opinion of the court. The court made short work of the challenges.
There are two holdings of interest.
First, that Haw. Rev. Stat. § 11-173.5(b) provides for only one remedy for “primary election irregularities” — the court may decide who was elected.
. . .
(b) In primary and special primary election contests, and county election contests held concurrently with a regularly scheduled primary or special primary election, the court shall hear the contest in a summary manner and at the hearing the court shall cause the evidence to be reduced to writing and shall not later than 4:30 p.m. on the fourth day after the return give judgment fully stating all findings of fact and of law. The judgment shall decide what candidate was nominated or elected, as the case may be, in the manner presented by the petition, and a certified copy of the judgment shall forthwith be served on the chief election officer or the county clerk, as the case may be, who shall place the name of the candidate declared to be nominated on the ballot for the forthcoming general, special general, or runoff election. The judgment shall be conclusive of the right of the candidate so declared to be nominated; provided that this subsection shall not operate to amend or repeal section 12-41.
In the Hoff case, the plaintiff had asked for an audit of the Kauai mayoral primary, in which the incumbent received a one vote majority, so was elected outright. The Taylor complaint asked for an investigation. Since neither sought a decision about who was elected, the court entered judgment in favor of the county clerk.
Second, the court held that in order to state a claim for relief under Haw. Rev. Stat. § 11-172 the plaintiff must demonstrate “errors, mistakes or irregularities that would change the outcome of the election,” and that this must be “actual information of mistakes or errors sufficient to change the result.” Quite a burden, since Haw. Rev. Stat. § 11-173.5(b) requires such challenges to be filed within six days after the election:
(a) In primary and special primary election contests, and county election contests held concurrently with a regularly scheduled primary or special primary election, the complaint shall be filed in the office of the clerk of the supreme court not later than 4:30 p.m. on the sixth day after a primary or special primary election, or county election contests held concurrently with a regularly scheduled primary or special primary election, and shall be accompanied by a deposit for costs of court as established by rules of the supreme court. The clerk shall issue to the defendants named in the complaint a summons to appear before the supreme court not later than 4:30 p.m. on the fifth day after service thereof.
Since the plaintiffs did not provide “actual information” — only allegations — they lost their challenges.
The decisions are posted here (look for the Hoff, Taylor, Saunders, and Cunningham links posted on 10/10/2006 and 10/11/2006).
October 2006
▪ Man Bites Dog: Ag Uses to be Required on Ag Land
By Robert H. Thomas on
Posted in Agriculture, Land use law
“Man bites dog” story of the day: Kauai developer to require ag use on ag land. It’s a different twist since most of the controversy regarding “farm dwellings” and ag uses these days goes in the other direction:
The developers of the Kealanani agricultural subdivision hope to break a tradition in which agriculture-zoned lots are sold as country estates with little if any assurance that agricultural production will take place.
Their goal: to sell view lots for premium prices, but to come as near as possible to an ironclad requirement that owners farm on the property.
. . . .
The developers clearly are trying to break the image of “agricultural subdivision” as code for “rich-folks’ estates.” Thus far, their project has generated virtually none of the rancor that has attended projects like the Big Island’s Hokuli’a. At one point, that project was halted by a court order that said it was actually an illegal use of lands earmarked by the state for agriculture.
A settlement in the case eventually allowed the project to continue, but for critics, the development remains an illustration of the so-called “fake farms,” large homes built on agricultural lands where only nominal farming is done in a show of conforming to a state requirement that homes on agricultural lands must be “farm dwellings.”
The Kealanani development’s owners association will have the ability to fine owners who fail to fulfill their agricultural commitments, Kyno said.
The enforcement mechanism will presumably be restrictive covenants (CC&Rs), but this project should not raise the Act 5 issue, which is designed to invalidate CC&Rs that prohibit (not require) ag uses on ag lands. More on ag subdivisions, CC&Rs, and Act 5 here.
Continue Reading ▪ Man Bites Dog: Ag Uses to be Required on Ag Land
▪ Religion vs Land Use Regulation
By Robert H. Thomas on
Posted in RLUIPA | religious land use
The NY Times posts this article, attempting to put the RLUIPA debate into larger context, focusing on a church in Boulder, Colorado that is running into opposition to its expansion plans from the local land use regulators.
RLUIPA requires local land use decisions that impact religious uses to meet the “strict scrutiny” test — precise tailoring to further the stated government interest, while minimizing the impact on religious freedom. The Ninth Circuit recently held RLUIPA constitutional in a decision regarding a Sikh temple in rural California, invalidating the local government’s refusal to allow construction.
▪ 9th Circuit: Army Needs Better Environmental Review
By Robert H. Thomas on
Posted in Environmental law
A panel of the U.S. Court of Appeals for the Ninth Circuit today ruled 2-1 that the U.S. Army must complete a more comprehensive Environmental Impact Statement (EIS) before “planning its programs to modernize and streamline its forces, while simultaneously maintaining readiness.”
In Ilioulaokalani Coalition v. Rumsfeld, (Oct. 5, 2006), the two judge majority wrote:
[w]hile the metamorphosis of the Army and the strategic planning accompanying this transformation is the business of the Army, not the courts, the Army’s compliance with NEPA does involve us.
The case involves the transformation of the 25th Infantry Division’s 2d Brigade to a Stryker unit. Hawaii environmental groups challenged the Army’s environmental reviews as insufficient. While the Army accomplished environmental reviews, the Ninth Circuit held that these reviews did not consider “all reasonable alternatives to transform the 2d Brigade in Hawaii . . . most notably the potential for transforming the 2d Brigade outside of Hawaii.” The majority said the Army failed to answer the foremost question, “why Hawaii?.”
The dissenting judge stated:
In the name of environmental “concerns,” [footnote omitted] the majority would require the Army to consider what it has already reasonably rejected: whether it should consider moving Army units around the country for the new training — regardless it would cause delay in modernizing, lack of combat-readiness and entail prohibitive costs — because of possible environmental impacts training “in place” would cause.
The court remanded the case to the District Court, and required the preparation of a supplemental EIS, which could take two years.
Continue Reading ▪ 9th Circuit: Army Needs Better Environmental Review
▪ Review of Maui Shoreline Setback Rules Underway
By Robert H. Thomas on
According to this story, the County of Maui is in the process of revising its shoreline setback rules.
The county’s shoreline setback rules determine where beachfront landowners can build on their property. The current formula to determine a setback is 20 feet, plus 50 times the annual erosion rate of the property. The minimum setback is 25 feet, while the maximum is 150 feet.
The proposed amendments include increasing the base used in the setback formula from 20 to 25 feet.
Abbott said the change was needed because some landowners whose properties had zero erosion have argued they should have a 20-foot setback based on the formula. He said the change would make the formula consistent with the minimum setback.
As I recently posted here, shoreline legal issues are a touchy subject, but in the rush to “protect” beaches, you cannot just blow by the property rights of owners. Government escapes liability for regulations imposing “no build” easements (setbacks being a classic example) only to the extent that the regulation is closely tailored. The reason advanced for Maui’s variable setback rules is the supposed history of beachfront erosion at particular locations, with a fixed “buffer zone” plus historical erosion rates added together to calculate the “no build zone” on a specific parcel. The major justification for setbacks is protecting the homeowner from building on property that may eventually be eroded.
If so, it seems odd that if a shoreline parcel has had “zero erosion” that the owner should be subject to a setback at all. What harm is caused by building where there has been no erosion, and what danger is being prevented?
Continue Reading ▪ Review of Maui Shoreline Setback Rules Underway