Here’s the latest in the Maui affordable housing case now being litigated in the U.S. District Court, Kamaole Pointe Development LP v. County of Maui, No. 07-00447 DAE (D. Haw.). The case is a challenge to the County of Maui’s “workforce housing”ordinance, enacted in in 2006, which imposes a40% to 50% affordable requirement on new housing developments of fiveor more units, and on an application to subdivide a lot into five ormore parcels. In lieu of providing actual units, a developer may eitherpay a fee equivalent to 30% of the total project sales, donate improvedland of the same value, or donate raw land valued at 200% of thein-lieu fee. Ordinance 3418 is posted here. We posted on the case earlier here and here.
The complaint asserts claims for “unconstitutional conditions,”regulatory takings, substantive due process, equal protection, andclaims under Hawaii law. The Complaint for Declaratory and InjunctiveRelief (filed Aug. 23, 2007) is posted here(note, the Complaint was amended on Sep. 6, 2007). The court earlierdismissed the “unconstitutional conditions” claim, holding it was aregulatory takings claim and was not ripe under Williamson County because the plaintiffs had not pursued a state compensation remedy. That order is posted here.
As detailed here, onNovember 25, 2008, the court issued an Order Denying Plaintiffs’ Motionfor Partial Summary Judgment; and Order Granting in Part and Denying inPart Defendants’ Motion for Summary Judgment. The court held that the Williamson Countyripeness rules also apply to the due process and equal protectionchallenges, which were not ripe because the property owner had notobtained a “final decision” from the County. The court also dismissed the state law claims.
The only claim left was due process, which is now the subject of cross-motions for summary judgment. The property owners filed this motion asserting the Maui County Council — which under the ordinance has the power to grant waivers to the affordable housing requirement — “irrationally refused to grant Plaintiffs’ request,” because “the members of the Council were so focused on the end goal, they were unable to impartially evaluate Plaintiffs’ request for a waiver from the Ordinance.”
The County filed this motion asserting, in essence, that the County was free to act arbitrarily because the plaintiffs did not have a property interest in a waiver because the Council had discretion not to grant one. No property interest means fair procedures are not merited. The County’s motion also argues that even assuming the plaintiffs possessed a property interest, they received due process.
We’ll post the opposition and reply briefs when they become available.