The property owners and the County of Maui have filed their opposition and reply briefs regarding the cross motions for summary judgment 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.
The complaint asserts claims for “unconstitutional conditions,”regulatory takings, substantive and procedural 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 September 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 substantive 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 count remaining in the case is the due process claim, which is now the subject of cross-motions for summary judgment. The property owners filed this motion assertingthe Maui County Council — which under the ordinance has the power togrant waivers to the affordable housing requirement — “irrationallyrefused to grant Plaintiffs’ request,” because “the members of theCouncil were so focused on the end goal, they were unable toimpartially evaluate Plaintiffs’ request for a waiver from theOrdinance.”
The County filed this cross motion asserting,in essence, that the County was free to act arbitrarily because theplaintiffs did not have a property interest in a waiver because theCouncil had discretion not to grant one. No property interest meansfair procedures are not merited. The County’s motion also argues thateven assuming the plaintiffs possessed a property interest, theyreceived due process.
The property owners’ memorandum in opposition to the County’s cross motion argues that Maui Councilmembers harbor an “irrational bias against residential developers,” especially those who attempted to show a lack of nexus between the ordinance’s 40-50% exaction and a proposed residential development, and that “a reasonable juror could not return a verdict for [the County].”
The County’s County’s memorandum in opposition to the property owners’ motion asserts “[t]his case raises a question that is unusual in the annals of constitutional litigation; namely, what do the Plaintiffs hope to gain by this expensive recourse to the busy federal court?” The County asserts the property owners are not seeking money damages for the due process violations, but a remedy that is not available: a declaration that the ordinance does not apply.
The parting shots by each party — their reply briefs — are available here (property owners) and here (County). The property owners clarify their requested remedy (that the request for a waiver from the exaction from the Council should be “deemed approved” because the Council’s process was grossly biased and thus null and void), while the County asserts that the property owners have no protectable “property” interest in a waiver, and thus are owed no process.
The hearing on the cross-motions will be held on Monday, September 28, 2009 at 9:45 a.m. in U.S. District Court.