In a decision that at first blush seems to have little to do with land use law, the Hawaii Supreme Court reiterated the standard for when an agency hearing is a “contested case” under the Administrative Procedures Act, and clarified what constitutes agency “action” for purpose of the permit application autoapproval statute.
Contested Case
From today’s Honolulu Star-Bulletin: Judge approves company’s permits
Yesterday, the Kauai circuit court granted a permanent injunction, and ordered that Kauai Springs‘s applications for three zoning permits should not have been denied by the Kauai Planning Commission in January 2007. The case is an appeal from an agency decision under the HawaiiAdministrative Procedures Act (a procedure known in other jurisdictionsas a petition
Yesterday, we filed the Reply Brief in Kauai Springs‘ appeal from the January 2007 decision by the Kauai Planning Commission to deny three zoning permits to the small, Kauai-family-owned water bottling company.
For more information about the case, here are some links to earlier media coverage:
Two recent U. Hawaii Law Review articles worth mentioning. Although neither is available free on the web, they can be obtained through legal research services such as Westlaw or Lexis, or through the U. Hawaii Law Review. If you don’t have a UHLR subscription, you should. It’s only $30 per year for US addresses.
Water Regulation, Land Use and the Environment
David L. Callies and Calvert G. Chipchase; 30 U. Haw. L. Rev. 49 (Winter 2007)
In this article, the authors assert that the “public trust” doctrine, as misconstrued by the Hawaii Supreme Court, has distorted water law and the land use process:
Problems arise in the planning process when water and non-economic uses of water are given a sacrosanct status that abjures private use for the benefit of “the public.” This is increasingly happening under flawed interpretations of the public trust doctrine.
p. 49 (citing In re Water Use Permit Applications (Waiahole), 84 Haw. 97, 9 P.3d 409 (2000); In re Water Use Permit Applications, 105 Haw. 1, 93 P.3d 643 (2004); In re Water Use Permit Applications, 113 Haw. 52, 147 P.3d 836 (2006)). The article continues:
Many courts have forgotten that the jus privatem is as much a part of the public trust doctrine as the jus publicum. Certainly water should be available for future use, but is also should be readily available for current use. When the balance between current private and abstract or future public needs is distorted, water use and availability of water becomes the primary, or even sole, consideration in the process. This leads to the preservation of water for such uses as “minimum stream flows” and non-beneficial use by selected segments of the public and, ultimately, an elitist, communitarian regime that bears no relationship to either traditional notions of water rights or constitutionally protected rights in property.
Id
. The authors analyze the multi-layered land use planning laws in Hawaii, the state Water Code (Haw. Rev. Stat. ch. 174C), and the Hawaii Supreme Court’s extension of the public trust doctrine beyond navigation and commerce to the promotion of reasonable and beneficial use of water resources in Waiahole. p. 70. The article also discusses how Arizona, Colorado, and New Mexico regulate their water resources, and what lessons these jurisdictions may provide for Hawaii. pp. 77-92.
More Than a Line in the Sand: Defining the Shoreline in Hawai’i After Diamond v. State
Simeon L. Vance and Richard J. Wallsgrove; 29 U. Haw. L. Rev. 521 (Summer 2007)
In this article, the authors analyze the differences in the various definitions of the “shoreline” under Hawaii law, and the Hawaii Supreme Court decision in Diamond v. State, 112 Haw. 161, 145 P.3d 704 (2006) . As detailed in this post about the Diamond case, the term “shoreline” is used to define both the boundary between public and private property as well as the baseline for measuring the shoreline setback (a no-build zone on beachfront property).
The difference between a certified shoreline and a seaward boundary line has become a confusing and potentially divisive issue. Confusion is predictable because the definition of shoreline for certification purposes is essentially identical to the definition Hawai’i courts have used to determine property boundary lines. Despite their similarity, however, the two lines are not necessarily the same because their purposes, the impacts and the processes for determining these lines’ are uniquely and significantly different.
The most critical of these differences is that shoreline certifications are not designed to determine ownership. Instead, the line of ownership dividing public and private coastal property is the seaward boundary. Markedly different from the shoreline certification process outlined above, determinations of seaward boundary lines often take the form of quiet title actions, eminent domain actions, or land court petition actions. The state’s responsibility to uphold the public trust and preserve its interest in property triggers the need for a more rigorous and cautious approach. In these situations, the state does not rely on shoreline certifications, but conducts its own survey in recognition of the “importance of lateral [shoreline] access over state-owned lands for recreation, native gathering practices and other purposes.”
p. 532 (footnotes omitted). The article is a good introduction to Hawaii’s unique approach to shoreline law, and a worthy read. And I’m not just saying that because it cites several posts from this blog as authority (See, e.g., notes 92, 146, 179, and 180, and accompanying text).
Continue Reading Two Recent Law Review Articles (Water Law and Shoreline Issues)
Following up on this post. West Hawaii Times is reporting (free registration may be required) the County of Hawaii is one step away from putting to voters the question of whether to have two Planning Commissions. The County Council’s Planning Committee approved the measure, and the last step before it makes the ballot is
Today we filed the Opening Brief in Kauai Springs‘ appeal from the January 2007 decision by the Kauai Planning Commission to deny three zoning permits to the small, Kauai-family-owned water bottling company.
The case is an appeal from an agency decision under the Hawaii Administrative Procedures Act (a procedure known in other jurisdictions as
On April 3, 2008, I will be on the faculty of “Practical Guide to Zoning and Land Use Law” in Honolulu. I’ll be presenting two subjects, “Current Caselaw and Legislative Update,” and “Appealing an Administrative Zoning Decision. Also on the faculty are Jesse Souki and A. Bernard Bays. The complete agenda and registration information are
With a name like Carefree, Arizona, who wouldn’t want to spend the golden years there? That appears to have been what was on the mind of one F.G. Budnick, a developer, when he decided he wanted to build the “Residences at Carefree,” which he described as a “luxurious, age restricted, senior retirement residential community,”
How often do you see a published opinion from a federal court of appeals that uses the word “hassle” to describe needless litigation? Well, thanks to the irrepressible Chief Judge Kozinski, we now have citeworthy precedent from Clement v. City of Glendale, No. 05-56692 (Mar. 11, 2008):
Officer Young could have avoided years of