January 2007

Several measures have been introduced at the Hawaii Legislature dealing with eminent domain.  Recall that several such measures were introduced last year in response to the Kelo decision, but none made it out of committee.  Nor did last November’s voter reform of eminent domain make its way to Hawaii’s shores, since Hawaii law does not allow statewide initiative or referendum. 

So it is almost entirely up to the legislature.  Here are summaries or excerpts of the proposals, so far.  If I missed any, let me know: 

Restricts the eminent domain powers of the counties to ensure that private property, if acquired by a county through its eminent domain powers, is acquired only for public uses and not for private use.

Same as above, with different language.

Prohibits use of…

Continue Reading ▪ Eminent Domain Measures Introduced

To those who attended today’s land use seminar — thank you.  If you have any questions that were not answered, please emailme, or if you would like additional copies of the law review articlehanded out.  Here are the additional references and materials from mysessions on “Supreme Court Update” and “Vested Rights” — 

   The summary of 2006’s significant land use events is posted here.

Continue Reading ▪ Advanced Land Use Seminar Materials

As a way of saying “aloha” to 2006, I’ve summarized the land use lawhighlights (orlowlights, depending on your point of view) from the Hawaii SupremeCourt, the Ninth Circuit, and the U.S. Supreme Court, roughly inchronological order.  Topics include shorelines, eminent domain,environmental impact statements, RLUIPA, vested rights, and land uselitigation procedures.

If you think I missed any key cases or events, please email me.

    
Continue Reading ▪ 2006 Land Use in Review

Your rights for sale in the Second Circuit: SCOTUS today denied cert, declining to review the Didden v. Village of Port Chester petition.  Details here.  The facts of the case are particularly egregious, a nearly textbook example of the pretextual taking the Court told us would not qualify as a taking “for public use” in Kelo.  In return for a private developer’s promise to withhold an exercise of eminent domain, a landowner was offered a choice: give the developer $800,000, or a one-half interest in the owner’s planned use of the property.

When the Supreme Court denies review it does not establish any precedent or rule of law, and the Second Circuit’s decision in the case has no impact outside of that court’s geographical jurisdiction (New York, Connecticut, Vermont), so the issue remains up for grabs, and will be sure to return. 

    
Continue Reading ▪ Supreme Court: Eminent Domain Extortion OK

Registrations are still being accepted for the upcoming Advanced Land Use and Zoning in Hawaii seminar, taking place on Wednesday, January 17, 2007. 

We will cover a variety of topics.  I’m presenting an update on US and Hawaii Supreme Court decisions from the last year including the Clean Water Act jurisdiction case, and an update on vested rights and development agreements.  My Damon Key colleagues are presenting sessions on shoreline law, the latest in environmental impact statement requirements, the ins-and-outs of rockfall liability, and an update on land use litigation procedures.  Paul Schwind will present an update on legislative developments.  View course details, the complete agenda, and registration information here.Continue Reading ▪ Still Time to Register for Advanced Land Use Seminar

I’ve posted discussion materials for the upcoming HSBA Natural Resources Section talk on the post-Rapanos landscape.  All documents are in pdf format.  Caution: a couple of files are large, and may take a while to download.

If you have any questions you want discussed at the session, please email me.

Continue Reading ▪ HSBA Natural Resources Section Rapanos Discussion Materials

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. 

      Continue Reading ▪ 2006 Land Use in Review: “Fixed Guideway” System Approved

The most recent case involving the long-standing controversy over the Waiahole Ditch, In re Water Use Permit Applications, ___ Haw. ___, 147 P.3 836 (Nov. 29, 2006) was not the usual blockbuster opinion or the latest in water rights, interim instream flow standards, and the public trust doctrine.  Indeed, it was an unsigned per curiam decision.  But I have included it within 2006’s highlights simply because it illustrates the new appellate procedures in Hawaii state courts. 

Until the new procedures which became effective in July 2006, Hawaii state court cases had a unique appellate track.  After a trial court entered judgment, all appeals were made to the Supreme Court of Hawaii, which then assigned cases to the Intermediate Court of Appeals.  If a litigant was not satisfied with the decision from the ICA, she could seek review in the Supreme Court by way of an application for a discretionary writ of certiorari.  Most cases, however, were not assigned from the Supreme Court to the ICA, and the high court routinely disposed of most appeals.  The “up-then-down” procedure was unwieldy and an anachronism, a leftover from the days before the legislature created the ICA, and all appeals were straight to the Supreme Court.  The procedure also was a factor in creating a backlog of appeals on the Supreme Court’s docket.

In July 2006, however, new jurisdictional statutes became effective, resulting in the ICA having primary appellate jurisdiction over all appeals, with the Supreme Court retaining discretionary certiorari review. 

Apparently, however, the drafters at the legislature did not catch all of the language regarding appellate jurisdiction scattered throughout the Hawaii Revised Statutes.  For example, the Water Code still states that appeals from contested case decisions by the Commission on Water Resource Management are made “directly to the supreme court.”

After CWRM issued (yet another) order in the contest over the water in the Waiahole Ditch in July 2006, a party noticed its appeal on August 11, 2006 with the Supreme Court, even though the new appellate structure had become effective the month before.  Understandable, for considering the plain language of the Water Code, what else should the litigant have done?

The Supreme Court ordered the case transferred to the ICA, holding that the legislature’s failure to amend the Water Code language was merely an oversight since it amended fifth-three other sections in the statute books relating to appellate jurisdiction, and that the legislature no doubt intended to amend the Water Code as well.  Lesson?  File all appeals with the ICA. 

It will be helpful after a few years under this system to see if the Supreme Court as a purely discretionary body experiences a shrinking of its docket, and a speedier process from filing to disposition.  It would be helpful to those of us who practice appellate law, for example, to establish criteria for when a decision by the ICA is “certworthy” and likely to be reviewed by the Supreme Court.  Hawaii has only one ICA, so there are no circuit or district “splits.”  If the Supreme Court is simply to be yet another level of appellate review for dissatisfied litigants without clear standards for when it would be worthwhile to seek review, why does anyone think this will significantly decrease the court’s workload?

    
Continue Reading ▪ 2006 Land Use in Review: New Appellate Track

The big story nationwide in property rights and eminent domain was, of course, the overwhelming negative reaction to 2005’s Kelo v. City of New London decision, which overflowed into 2006.  That reaction has manifested itself in three ways:

  • Taking up the Supreme Court’s suggestion that state law was the means to protect property from eminent domain abuse, state legislatures and local governments around the country began restricting how the condemnation power has been exercised.
  • State courts have also taken up the challenge, the biggest development in 2006 being the City of Norwood v. Horney decision from the Ohio Supreme court.  That case held that economic benefit standing alone will not support a claim of public use under the Ohio Constitution.  The court also held that a blight designation was too vague to have any legal force, and violated the Ohio Constitution.  Now, if only Mrs. Kelo and other property

…
Continue Reading ▪ 2006 Land Use in Review: Voters Nationwide (But Not Hawaii) Enact Eminent Domain Reform

VeglineOne of 2006’s bigger cases was Diamond v. Bd. of Land and Nat. Res., 112 Haw. 161, 145 P.3d 704 (Oct. 24, 2006), involving the location of the “shoreline” for purposes of determining the buildable area on an oceanfront parcel. 

There was news coverage a-plenty, and I posted more than a few comments on the case and on the coverage.  Start here, then read this, this, this, then this post.

I’d bet this case will have lasting impact, even though it was not about the public-private boundary, and only analyzed the location of the “shoreline” under Hawaii’s Coastal Zone Management Act.Continue Reading ▪ 2006 Land Use in Review: Shoreline Tales