Our live blog of the Hawaii Supreme Court oral arguments in County of Hawaii v. Ala Loop Homeowners, No. 27707 (cert. granted Sep. 2, 2009).
The mp3 recording of the argument is posted here.
More details on the case below the window.
The court is considering whether Haw. Rev. Stat. § 205-1 et seq.,gives rise to a private right of action. The core issue in the appealis whether Hawaii’s statewide zoning laws are “laws relating toenvironmental quality” which may be privately enforced, or whether theyare classic Euclidean zoning laws which can’t. The Hawaii Constitution (art. XI, § 9)provides that “any person may enforce” the “right to a clean andhealthful environment, as defined by law relating to environmentalquality, including control of pollution and conservation, protectionand enhancement of natural resources.”
Thecase involves a “new century charter school” located in the County ofHawaii (Big Island) . The school sought to begin operations on landclassified (zoned) as agriculture on the island of Hawaii. Such usesare not normally allowed in the Ag zone. The school’s neighbors, theAlaLoop Homeowners, asserted the school needed a special permit pursuantto 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, and concluded that the plaintiffs could not institute a suit to privately enforce chapter 205. 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 theplaintiff made many of the same arguments. We represented Molokai Ranchin 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 “lawrelating to environmental quality” and why a statute which allowsfee-shifting in cases seeking injunctive relief for failure to obtain apermit was not a legislative recognition of a private right of action.