“County zoning flaws leading landowners to court” reads the headline in the December 10 Maui News, detailing two cases where property owners have alleged that the County of Maui long ago confirmed that certain land uses were legal, and cannot now change its mind.
Under Hawaii’s top-down system of land use classification, the State must first classifiy land as “urban” before the counties are able to zone it. However, decades ago, the County of Maui apparently zoned the parcels at issue before the state got around to classifying it:
Back in 1964, shortly after the new state government established its land use laws, Maui County granted zoning to land in Pukalani and Makena without having the state first approve urban use.
Under the state land use law, counties are allowed to grant zoning only to properties that are in the urban district. The Land Use Commission determines the classification of lands as conservation, agricultural/rural and urban.
In the cases that now are leading to suits in 2nd Circuit Court and for a Makena family, Maui County not only approved the zoning before the lands were classified urban, but issued letters to the landowners verifying the zoning.
Except the county since has retracted the verification of zoning.
The fallout so far has been at least two lawsuits against the county by landowners in Pukalani and an ongoing headache for a Makena family that seeks to get the zoning that had previously been granted and then retracted.
The county’s somewhat casual approach to zoning in the old days has provided plenty of work for lawyers.
But these lawsuits are not a case of “make work” for lawyers, and reflect a serious issue of who must bear the burden of government’s official mistakes, when they are compounded with years of reliance by property owners, most of whom have no inkling of the error. The County, it seems, wants to shift the responsibility for its errors onto innocent property owners. In such instances, however, it seems that the burden of the error should fall on the entity responsible for the mistake, and with the resources to catch it: the government. Given the scope of the problem, this will no doubt not be the last we hear of such lawsuits.
