Here’s the Reply Brief filed last month by the property owner in Leone v. County of Maui, No.29696,an appeal in the HawaiiIntermediate Court of Appeals which is considering, among other issues,the question of when a regulatory takings claim is ripe for reviewunder Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985). The brief responds to the County’s Answering Brief (posted here).
In Leone, the trial court refused to consider the owner’s claim that statelaw and local regulations resulted in a regulatory taking of beachfrontproperty on the south shore of Maui. Thetrial court determined the plaintiffs’ federal regulatory takings claim — which they brought in state court, as required by Williamson County — werenot ripe because they should have sought a legislative change to theoffending land use regulations which allegedly deprive their propertyof all economically beneficial uses. The trial court’s decision isavailable here.
Disclosure: we filed an amicus brief (available here) on behalf of the property owners. The brief argues Williamson County only requires a “final decision” by the government applying existingland use regulations to the property, and a property owner is under noobligation to change the law before asserting her federal takings claim.
The case involves an undeveloped 1/2 acre beachfront parcel, one of11 similarly-situated lots. The zoning on the property is“Hotel-Multifamily,” which permits residential use. The Community Plan(Maui County’s General Plan) designates the property as “Park” becausein the 1980’s, the County sought to condemn the 11 parcels for a publicbeach park. After acquiring two of the parcels, however, the County ranout of money and the other 9 remain in private ownership, and severalof them are fully or partially developed.
The entirety of theproperty is within the Special Management Area, a special zone subjectto an additional layer of regulation under the Hawaii Coastal ZoneManagement Act, Haw. Rev. Stat. § 205A-1, et seq.The CZMA requires plan-zone consistency, meaning that before any”development” within the SMA can go forward, the zoning must beconsistent with the Community Plan. See GATRI v. Blane,962 P.2d 368 (Haw. 1998). The CZMA exempts a single-family residencefrom the definition of”development” for which a SMA permit is needed, unless the home willhave a “cumulative impact, or a significant environmental or ecologicaleffect” on the SMA. Haw. Rev. Stat. § 205A-22.
TheCZMA is administered by the counties, and if a Maui property ownerbelieves a proposed use is exempt, under the local rules she must seekan exemption determination from the county planning department andrequest a rulingthat no SMA permit is required. Under Maui’s administrative rules, anapplication for development cannot be processed unless the zoning isconsistent with the Community Plan. Consequently, when the propertyowner filed a request for a determination that a SMA permit wasunnecessary, the county refused to process it.
Williamson Countyrequires that property owners initially file their regulatory takingsclaims in state court, and the property owner did so, asserting theregulations permitted no economically beneficial use of the land. Thetrial court granted summary judgment to the County, holding among otherthings, that in order to ripen the takings claim, the property ownerhad an obligation to change the Community Plan. To change the CommunityPlan designation on a parcel requires the County Council to enact anordinance (in other words, it is a legislative act), and requires theproduction of an Environmental Impact Statement.
The appeal presents several issues, including:
- Whether the County has made a final determination of the use the owners can make of the property.
- Whether there are any “effective remedies” which the owners might seek.
- If there are remedies, whether those remedies are futile.
Here are all the briefs:
Oral argument have not yet been scheduled.