It’s appearing more and more that Honolulu’s massive $4B+ rail project is on the fast track, and the City wants to control all development anywhere near the proposed project. In additon to the technical amendment to eminent domain law noted here allowing the City to to enter into longer term leases for land it grabs by condemnation, the City Council, as reported here, here (video), and here, is contemplating enacting a moratorium on all development within 1/4 mile of the rail route, and 1/2 mile of a transit station.
Supposedly designed to thwart land speculators anticipating the rail project, the proposal as drafted would put a halt to all development or improvement of any kind, large or small, within the noted zones.
In addition to the usual legal problems that accompany development bans (inverse condemnation), it is not clear why the City believes a moratorium in necessary unless it plans on taking huge swaths of private property by eminent domain (which it might if it follows the usual course for mass transit projects) in excess of what is needed for the rail footprint, and leasing or selling off the overage. If that is the case, the proposal may makes sense from the City’s perspective, since it may be seeking to capture any market gain that results from the project. But what does this mean for private property owners who now may find themselves in the path of the rail line? Someone down at the City better go read Klopping v. City of Whittier, a decision which prohibits the government from attempting to depress the market value of property in anticipation of condemnation.
Continue Reading ▪ Contemplating a Rail Development Moratorium
December 2006
▪ More Maui Land Use Issues
By Robert H. Thomas on
“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.
▪ HAWSCT Oral Arguments – Feb. 15, 2007 @ 9 am
By Robert H. Thomas on
The Supreme Court of Hawaii has scheduled rare oral argument in the Kauai Charter Amendment property tax appeal. The issues include standing of government officials to sue themselves to obtain declaratory judgments, and the constitutional role of the counties in establishing real property tax policy. Details of the case, including links to the merits briefs here.
Arguments will be held in the Supreme Court courtroom in the Judiciary Building on Thursday, February 15, 2007 beginning at 9:00 a.m. Each side is allowed one-half hour for argument. The proceedings are open to the public and the media.
Continue Reading ▪ HAWSCT Oral Arguments – Feb. 15, 2007 @ 9 am
▪ Upcoming Seminars
By Robert H. Thomas on
In January, I will be speaking on three topics:
- At the Hawaii Land Use Law Conference, I’m presenting “Water, Water, Everywhere: Coastal Zone Management Permits; Hawaii’s Floodway, Floodplain and Coastal Inundation Zone Requirements.” Agenda and registration details here.
- At the annual Advanced Land Use and Zoning seminar, my portion is “US Supreme Court Land Use Update,” which deals with the Rapanos Clean Water Act case, other federal developments in land use law, and some of the more interesting Hawaii Supreme Court land use decisions. I will also be covering “Vested Rights Update” with my colleague Greg Kugle. Complete agenda and registration information here.
- At the HSBA Environmental Law section January meeting, I’m presenting “Clean Water Act Jurisdiction After Rapanos.” Approximately one week before the meeting, I will post materials and resouces on this blog.
I hope to see you at one or more of these events. Drop me an email for sign up information or see the links on the “Events” heading on the right.