April 2008

Slgn_frontpageThe ABA Section on State & Local Government has published my article “Because They Can: Judicially Excising the People from the Definition of “County” in the Hawaii Constitution” in the State & Local Government Law News (Spring 2008). 

The article is a summary and analysis of County of Kauai ex rel. Nakazawa v. Baptiste, 165 P.3d 916 (Haw.2007), the 3-2 decision in which the Hawaii Supreme Court creatively overcame justiciability problems to hold that the term “the counties” in the Hawaii Constitution’s provisions regarding property taxes means “county councils.”  In doing so, the court invalidated a voter-enacted Kauai charter amendment that would have rolled back property taxes to 1998 levels, and set a yearly cap on increases.  The dissenting justices accused the majority of “subverting the judicial process,” and would have dismissed the case for lack of standing. 

The article is posted on the ABA’s web …

Continue Reading New Article Published: “Because They Can: Judicially Excising the People from the Definition of ‘County’ in the Hawaii Constitution”

[This article was originally published in Vol. 31 of the State & Local Law News by the ABA Section on State & Local Government (Spring 2008).  ABA members can access it here.  More on the case here.]

Slgn_frontpage The Hawaii Constitution empowers “the counties” to determine propertytaxes.[1] On issues of local concern, theConstitution’s home rule provisions also give county voters the freedomto initiate amendments to their charters, propose ordinances, or refercouncil-enacted ordinances to the electorate for confirmation.[2]  In County of Kauai ex rel. Nakazawa v.Baptiste,[3] the HawaiiSupreme Court invalidated a voter-approved county charter amendment that rolledback property taxes on the island of Kauai to 1998 levels,and capped future increases at 2% per year. The court acknowledged thatestablishment of property tax policy is a home rule power delegated exclusivelyto “the counties.” However, the court concluded the delegation came with strings: thepeople of the counties do…

Continue Reading Because They Can: Judicially Excising the People from the Definition of “County” in the Hawaii Constitution

In a very short (17 page) petition, the State of Hawaii has asked the U.S. Supreme Court to review a decision by the Hawaii Supreme Court regarding “ceded lands.”  The petition argues that by basing its decision in Office of Hawaiian Affairs v. Housing and Community Dev. Corp. of Hawaii, No. 25570 (Jan. 31, 2008) on the “Apology Resolution,” the Hawaii Supreme Court “effectively insulated its decision from any political check at the state level,” an error only the U.S. Supreme Court can correct.  The cert petition is posted here.

The petition was filed filed by heavy-hitter Seth Waxman, a former U.S. Solicitor General, so despite its brevity, it should be taken seriously.  It asks the Court to review a single question: 

In the Joint Resolution to Acknowledge the 100th Anniversary of the January 17, 1893 Overthrow of the Kingdom of Hawaii, Congress acknowledged and apologized for…

Continue Reading Cert Petition in Ceded Lands Case

In Kelo v. City of New London, 545 U.S. 469 (2005), the majority opinion authored by Justice Stevens, framed the issue presented in terms of the validity of “the development plan,” and not whether the particular takings at issue were “for public use.”

The disposition of this case therefore turns on the question whether the City’s development plan serves a “public purpose.”

Relying upon Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926), the case which upheld a municipality’s power to zone provided it is exercised in the context of a “comprehensive plan,” the Kelo majority upheld the New London taking because it was supposedly the product of a well-considered plan of “comprehensive character.”

The City has carefullyformulated an economic development plan that it believes will provideappreciable benefits to the community, including–but by no meanslimited to–new jobs and increased tax revenue. As with other exercisesin…

Continue Reading The Euclidization of Public Use – A Dose of Reality For the Kelo Majority

Kauaisprings2Today we filed the Opening Brief in Kauai Springs‘ appeal from the January 2007 decision by the Kauai Planning Commission to deny three zoning permits to the small, Kauai-family-owned water bottling company.

The case is an appeal from an agency decision under the Hawaii Administrative Procedures Act (a procedure known in other jurisdictions as a petition for a writ of administrative mandate or a petition for a writ of mandamus).  I won’t go into the details of the case in this post, since the brief spells out the facts and the arguments in support.   

For more information about the case, here are some links to earlier media coverage:

  • A May 2006 story about the case from the Honolulu Star-Bulletin
  • A story from the Kauai newspaper about the TRO that halted the County’s attempt to shut the business down while the appeal was being considered.
  • Another story about the

…
Continue Reading Kauai Springs Zoning Permit Appeal

The County of Maui has filed a motion for summary judgment in the federal court challenge to the County’s affordable housing exaction ordinance.  The memorandum in support of the motion is posted here (215k pdf).

The Maui ordinance, enacted last year, imposes a 40% to 50% affordablerequirement on new housing developments.  I posted on the case earlier here (contains a link to the complaint), and analyzed the legal problems with the ordinance under state law here .

The plaintiff landowner earlier filed a motion for partial summary judgment (1.5mb pdf) asking the court to declare the ordinance unconstitutional on its face under the Nollan/Dolandoctrine of unconstitutional exactions, which requires the governmentto show a substantial nexus between the exaction and some problemcaused by the property owner before the government may demand tributeas a condition of development.  The exaction must also be roughlyproportional to the problem.  The plaintiff’s…

Continue Reading County Motion in Maui Affordable Housing Exaction Case

Head’s up to two upcoming seminars worth attending: “Planning Zoning and Eminent Domain” (May 8-9, 2008), and “Planning and Zoning 101” (May 7, 2008), both of which will be put on by the Center for American and International Law, in Plano, Texas.  Registration information for both seminars is here.  The faculty is first-rate, and includes many of the stars in our field — Gideon Kanner, Dwight Merriam, and Robert Freilich.  I won’t be able to attend, but I have in the past, and highly recommend it.Continue Reading Upcoming Land Use and Eminent Domain Seminars

A Lahaina business owner has sued the County of Maui in federal court in Honolulu.  In Goo v. County of Maui, CV 08-00172 DAE (filed Apr. 17, 2008), the Complaint alleges the County and Planning Department officials drove the International Open Market Place, a gift and craft fair, out of business by deliberately favoring a use prohibited under the zoning (a bank/credit union) over uses permitted under the zoning (plaintiff’s business). 

The plaintiff also brings federal constitutional claims as well as claims for civil rights violations under 42 U.S.C. § 1983 and a Monell “deliberate indifference” theory.  The Complaint is posted here.Continue Reading New Federal Court Land Use Case Against County of Maui

The City and County of Honolulu has filed a petition for writ of certiorari in Matsuda v. City and County of Honolulu, No. 06-15337 (9th Cir. Jan. 14, 2008), asking the U.S. Supreme Court to review the case.  We don’t have a copy of the cert petition yet, but when we do, we’ll post it.  The Supreme Court docket report is here (No. 07-1305).

Matsuda involved th repeal of “chapter 38,” Honolulu’s version of the Hawaii Land Reform Act at issue in Hawaii Housing Auth. v. Midkiff,467 U.S. 229 (1984).  Chapter 38 allowed for conversion of condominium interests to fee simple, via a condemnation process. 

In Matsuda, apartment owners applied to the city to “convert” (condemn) theirapartment leases, and entered into written contracts with the city, in which the apartment owners each agreed to pay the city $1,000, in return for whichthe city promised that after its…

Continue Reading Cert Petition in Ninth Circuit Case on Reserved Powers, Contracts Clause in Repeal of Eminent Domain Ordinance (Matsuda)