Land use law

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)

The Hawaii Intermediate Court of appeals has issued an opinion in Ohana Pale Ke Ao v. Board of Agriculture, State of Hawaii, No. 27855 (May 21, 2008).  The court ruled on two issues related to the importation of genetically-modifiedalgae into Hawaii by the tenant of a State-owned facility on the BigIsland of Hawaii:

This appeal presents two issues: (1) whether the Board wasrequired to comply with the Hawaii Environmental Policy Act (HEPA),Hawaii Revised Statutes (HRS) chapter 343, before approving a permit toimport genetically engineered (GE) algae for production in a facilityon state lands; and if so, (2) whether two prior environmental impactstatements (EISs) prepared for the state lands where production of theGE algae is planned satisfied the Board’s HEPA obligations.

Slip op. at 1-2.  I attended the oral arguments and blogged about the issues in the case here.

The ICA held the Board should have required an EA. The court rejected the Board’s argument that the permit procedures in Haw. Rev. Stat. ch. 150A, which were enacted after chapter 343 and contain a detailed process for the importation of microorganisms worked an implied repeal of the EA requirement.  The court held that the plan to grow the organisms at the state facility is “an action that proposes the use of state land,” slip op. at 13, and therefore “HRS § 343-5 plainly and unambiguously required the preparation of an EA before the Board could approve [the] application.”  Id.  The court held that although chapters 343 and 150A may “overlap in their application and purpose, they do not conflict and both can be given effect.”  Id. at 16.

On the second issue, the ICA held the two earlier EISs did not satisfy the Board’s obligations:

The two EISs, which were prepared more than three and two decades ago, respectively, confirm that the NELH and HOST parks were still conceptual or in their infancy stages when the EISs were prepared.  It is clear from the EIS that as the nature and details of individual projects to be conducted at either park became known, further HEPA review was expected. 

Slip op. at 21.  The ICA did not address how this holding squares with section 343-5’s requirement that the EA be accomplished at “the earliest practical time.”  The Hawaii Supreme Court addressed this requirement in the “Koa Ridge” case.  Sierra Club v. State of Hawaii Office of Planning, 109 Haw. 411, 126 P.3d 1089 (Jan. 27, 2006). 
Continue Reading HAWICA: EA Required For Importation of GMO Algae

Thanks to David Breemer at Pacific Legal Foundation for calling our attention to this recent Ninth Circuit case.  In North Pacifica, LLC v. City of Pacifica, No. 05-16069 (May 13, 2008), a northern California landowner claimed the city’s delays in processing acondominium permit violated its substantive due process and equalprotection rights.  The Ninth Circuit…

To all who attended Wednesday’s Integrating Water Law and Land Use Planning seminar, thank you.  Here are links to the cases and statutes I discussed:

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Today we filed the Opening_Brief (250kb pdf) in Maui Vacation Rental Association, Inc. v. County of Maui, No. 08-15251, the Ninth Circuit appeal from the Hawaii district court’s dismissal of MVRA‘s complaint which sought to declare Maui’s shut down of vacation rentals illegal. 

I won’t go into details of the case since the…

In Kelo v. City of New London, 545 U.S. 469 (2005), the majority opinion authored by Justice Stevens, framed the issue presented in terms of the validity of “the development plan,” and not whether the particular takings at issue were “for public use.”

The disposition of this case therefore turns on the question whether…

Kauaisprings2Today 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…