Update: we confirmed with the Clerk that the arguments are on Tuesday, October 13, 2009, and not on “Thursday” October 13 as noted on the Judiciary web site. We will be live blogging the arguments starting at about 9:45 a.m., Hawaii time.
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On Tuesday, October 13, 2009 at 10:00 a.m., the Hawaii Supreme Court will hear oral arguments in a case considering whether Haw. Rev. Stat. § 205-1 et seq., gives rise to a private right of action. The core issue in the appeal is whether Hawaii’s statewide zoning laws are “laws relating to environmental quality” which may be privately enforced, or whether they are classic Euclidean zoning laws which can’t. The Hawaii Constitution (art. XI, § 9) provides that “any person may enforce” the “right to a clean and healthful environment, as defined by law relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources.”
In County of Hawaii v. Ala Loop Homeowners, No. 27707 (cert. granted Sep. 2, 2009) (order here) a “new century charter school” sought to begin operation on land classified (zoned) as agriculture on the island of Hawaii. Such uses are not normally allowed in the Ag zone. The school’s neighbors,the Ala Loop Homeowners, asserted the school needed a special permit pursuant to Haw. Rev. Stat. § 205-6,which allows a county planning commission to permit certain “unusualand reasonable uses” within an agricultural or rural district, despitethe land not being zoned for such use. The County filed a declaratory action, seeking confirmation the school was exempt under state law from any special permit requirement. The trial court permanently enjoined the school. The Intermediate Court of Appeals reversed:
In Pono v. Molokai Ranch, Ltd., 119 Hawai‘i 164, 194 P.3d 1126 (App. 2008), cert. rejected,2008 WL 5392320 (Hawai‘i 12/29/08), this court held that privatecitizens do not have a private right of action to enforce theprovisions of HRS Chapter 205 and, therefore, lack standing to invoke acircuit court’s jurisdiction to determine their claims to enforceChapter 205. The enforcement of HRS Chapter 205 is precisely the reliefsought by the Association and granted by the Circuit Court in thiscase.
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We conclude that the Association did not have a private right of actionto enforce their Chapter 205 claims and, therefore, the Circuit Courtlacked subject matter jurisdiction over the Association’s claims. See Pono, 119 Hawai‘i at 180-90, 194 P.3d at 1142-52; see also Lanai Co., Inc. v. Land Use Comm’n, 105 Hawai‘i 296, 97 P.3d 372 (2004) (HRS § 205-12 authorizes the counties, not the LUC to enforce Chapter 205); accord Rees v. Carlisle113 Hawai‘i 446, 153 P.3d 1131 (2007) (circuit court lackedjurisdiction because the subject ordinance did not create a privateright of action).
The ICA’s summary disposition order is here.
Here are the cert application and the State’s opposition, and two amicus briefs supporting the applicant:
The case relied upon by the ICA, Pono v. Molokai Ranch, Ltd., 119 Haw. 164, 194 P.3d 1126(Haw. Ct. App. 2008), cert. rejected, 2008 WL 5392320 (Haw. Dec. 29, 2008), was rejected for review after the plaintiff made many of the same arguments. We represented Molokai Ranch in that case, and filed this brief in opposition to the application for writ of certiorari, which explained why chapter 205 is a zoning law, and not a “law relating to environmental quality” and why a statute which allows fee-shifting in cases seeking injunctive relief for failure to obtain a permit was not a legislative recognition of a private right of action.
The Judiciary web site summarizes the issues in the oral arguments:
Petitioner Ala Loop Community Association (Ala Loop)filed an application for writ of certiorari requesting that this courtreview the judgment of the Intermediate Court of Appeals (ICA). TheICA, citing Pono v. Molokai Ranch, Ltd., 119 Hawaiʻi 164, 194 P.3d 1126(App. 2008), cert. rejected, 2008 WL 5392320 (Hawaiʻi Dec. 29, 2008),concluded that Ala Loop did not have a private right of action toenforce its Hawaiʻi Revised Statutes (HRS) chapter 205 claims againstRespondent Waiʻola Waters of Life Charter School, and therefore, theCircuit Court of the Third Circuit lacked jurisdiction over thoseclaims. Ala Loop contends that the ICA erred because, inter alia, itfailed to consider Article XI, Section 9 of the Hawaiʻi StateConstitution and HRS § 607-25 (Supp. 2002).
Details of the argument schedule are posted here (as noted above, the site lists the arguments as being held on “Thursday” October 13, but that is confirmed to be a typo).
Requesting certreview by the Hawaii Supreme Court of an ICA decision is a bit different than asking theU.S. Supreme Court to take your case. Like that process, the Hawaiiprocedure asks the court for discretionary review, but it is not calleda “petition” but an “application,” and the application is either”rejected,” “dismissed,” or “accepted” under the standards establishedby Haw. Rev. Stat. § 602-59. Unless the court orders additional briefing, none is submitted, and the decision is made by review of the record, the briefs filed in the ICA, the ICA’s decision, the application briefs, and oral arguments.
The procedures and the short time frame make it difficult for amici to participate meaningfully in these cases, which by their nature are cases of public importance. Amici have little time after an application is filed to muster support or opposition, so almost must know ahead of a filing whether a decision is certworthy and that an application is forthcoming. In other words, you really need to have your fingers on the pulse in order to get full briefing to the court.