Two stories in today’s Honolulu papers, “Wal-Mart fights Kauai ban on ‘big-box’ stores,” “Wal-Mart says it will fight for Kauai expansion,” contain all the buzzwords indicating a vested rights and zoning estoppel dispute may be on the horizon. The Advertiser writes:
A recent Kaua’i County ban on new “big-box” stores shouldn’t apply to a planned expansion of Wal-Mart’s existing store to a supercenter with a full-line grocery store, according to the retailer.
Wal-Mart yesterday announced it believes its project was approved before the ban because the county approved a masterplan years ago for its 119,000-square-foot Lihu’e store that included future phases to enlarge the store up to 185,000 square feet.
. . .
The County Council in May passed an ordinance prohibiting development of any retail or wholesale establishment bigger than 75,000 square feet.
Councilman Jay Furfaro said he was surprised by Wal-Mart’s position, especially since the company did not raise the issue before the ordinance was passed.
“You can’t reach back and say, ‘We’re grandfathered,’ ” Furfaro said. “They have not received their final permit (for expansion), so it should be subject to the ordinance.”
Wal-Mart in a statement said the ban shouldn’t apply to a project that was already approved.
The Star-Bulletin story:
In May, the Kauai County Council passed a law prohibiting any retail or wholesale store larger than 75,000 square feet — the first ban of its kind in the state.
But Wal-Mart Stores says it had already won the county’s legal approval of the existing Lihue Wal-Mart’s expansion long before the new ban went into effect. Therefore, the county should not be able to withdraw that approval.
“When we originally built the Lihue Wal-Mart, the county approved a master plan for the site that called for expanding the store to approximately 185,000 square feet,” said Wal-Mart spokesman Kevin Loscotoff. “The County Council has now acted to stop development of any new large-format retail stores on the island, but the ban should not apply to a project that was already approved.”
Zoning estoppel and vested rights — sometimes referred to as “grandfathering” — are legal doctrines prohibiting the government from changing its official mind after it has provided “official assurances” to a property owner that it may use its property in a particular way. I described these doctrines in a 2006 law review article, Arrow of Time, Vested Rights, Zoning Estoppel, and Development Agreements in Hawaii:
Once an owner’s rights have “vested,” the owner possesses development rights, and these development rights are property rights that “cannot be taken away by government regulation.” If the government is estopped, it is prevented from applying any future incompatible, albeit legal, regulations to the property. Vested rights and zoning estoppel thus counterbalance the government’s unfettered ability to use its police power to regulate land uses, providing some insulation of the land development process from shifting political winds.
More on the article here and here, or for a copy of the article, drop me an email.
More to follow, as today’s reports do not look like the last chapter in Kauai’s attempt to prohibit Wal-Mart’s expansion.