On Tuesday, October 13, starting at 10:00 am (Hawaii Standard Time), the Hawaii Supreme Court will hear oral arguments in County of Hawaii v. Ala Loop Homeowners, No. 27707 (cert. granted Sep. 2, 2009) (order here). We will be covering the arguments live here.
Details of the argument schedule are posted on the Judiciary site here (the site notes the arguments will be held on “Thursday” October 13, but we’ve confirmed with the Clerk that’s a typo, and the date is Tuesday, October 13).
The last time we live blogged Hawaii Supreme Court oral arguments was in the second “Superferry” appeal. We used the Cover it Live application which seemed to work well and does not require the viewer to install any extra software beyond a web browser, so we’re using it again.
Go to this page to check if the viewer window works in your browser, and to sign up for an email reminder as the date approaches. Or, you can just come back here next Tuesday when we go live at about 9:45 a.m.Hawaii time. The live window will be the top post on the blog that day.
This case has not garnered the broad public interest of the Superferry litigation, but the case could be more important. 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.”
The case involves a “new century charter school” located in the County of Hawaii (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, the AlaLoop 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:
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.
. . . .
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 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.
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).