Yet another year has comeand gone — our blog’s fourth — so it’s time for ourannual summary of the past year’s highlights in land use law and other topics we cover.
Like 2008, it was mostly a year of infill and incrementaldoctrinal shifts, with a couple of sea changes thrown in forexcitement: the Ninth Circuit finally ditched Armendariz andrecognized the validity of substantive due process in land use cases;the Hawaii Supreme Court came out strongly in favor of property owner’srights in eminent domain proceedings, holding that courts should notsimply take the government’s word that a taking is for public use, andrequiring the government to bear the economic burden when its attemptsto take property fail; the Hawaii intermediate appellate court heldthat there is no private right of action under the state land use laws.
It was also a year in which certain issues kept coming back: Williamson Countyripeness (the trending on this case will continue, as it dawns on moreand more courts — and maybe perhaps the Supremes sometime soon — whatthat decision is all about), and state courts around the country struckout on their own on the takings-for-economic-development issue.
Hottopics in Hawaii: the impending condemnations for Honolulu’smulti-billion rail project which was approved by voters in November;the continuing issue of “vacation rentals,” the upcoming “ceded lands”decision by the U.S. Supreme Court; and the seemingly perpetual HawaiiSuperferry litigation. Yet, for all the heat generated in the mediaabout these topics, there was very little actual movement in the law. Maybe 2009 will provide that.
If you think we missed any key cases or events, please send an email, or suggest a topic yourself in a comment. .
- Zoning – In 2008, we saw decisions that held thatzoning inspectors may need a warrant if the zoning code containscriminal sanctions; a limitation on the zoning powers to questions ofuse, not ownership; a ruling that there is no federal constitutionalright to have the government enforce the zoning code; and a ruling thatprivate citizens have no cause of action against another landowner forallegedly violating a zoning statute. More here.
- Environmental Law – The US Supreme Court held thatthe Navy’s training requirements must be considered before imposing aninjunction to protect marine mammals from the supposed effects ofactive sonar; the Hawaii Supreme Court held that the connection of newdrainage lines to an existing system did not meet thedefinition of “use” of state or county land, even though the existingsystem is public; and the Hawaii Intermediate Court of Appeals heldthat the State Board of Agriculture wasrequired to undertake an Environmental Assessment prior to approving apermit for the importation ofgenetically-modified algae for processing in facility on state-ownedland at which non GMO algae was already being processed. More aboutthese cases here.
- Administrative Law – The Hawaii Supreme Courtrefined the definition of “contested case” and when an agency hearingwill lead to appellate review by the courts. More here.
- Shoreline Law – 2008 saw no blockbuster courtdecisions on shoreline law, just a continuation of existing trends insetbacks, public access, and takings. Doesn’t mean it wasn’t aninteresting year, as shoreline issues are always compelling in Hawaii. More here.
- Eminent Domain – Pretextual Takings – In a landmark decision involving the attempted taking of property for a road, the Hawaii Supreme Court in County of Hawaii v. C & J Coupe Family Limited Partnership, No. 28882 (Dec. 24, 2008) held that government, not property owners, bears the financial risk that acondemnation fails and, importantly, joins a number of courts inholding that the government’s proclamation that a taking is for publicuse is not immune from judicial inquiry. Details here.