The “public trust” doctrine got a further boost in Kelly v. 1250 Oceanside Partners, 111 Haw. 205, 140 P.3d 985 (July 28, 2006).
The public trust doctrine in its original form under Hawaii law was that the Crown or government owns title to all land below the high water mark, which is held in…
In Aha Hui Malama O Kaniakapupu v. Land Use Comm’n, 111 Haw. 14, 139 P.3d 712 (July 24, 2006), the court set forth the standard for when an agency hearing is a “contested case” under the Hawaii Administrative Procedures Act (HAPA). The definition is critical because unless a contested case has been conducted by…
In Keahole Defense Coalition, Inc. v. Bd. of Land and Nat. Res., 110 Haw. 419, 134 P.3d 585 (May 18, 2006), the Hawaii Supreme Court elaborated on the issue of when a party has “property” within the meaning of the due process clause of the Hawaii Constitution.
The twisted procedural history of the case…
Just in case you were wondering whether Hawaii water rights issues were matters of federal or state law, the Hawaii Supreme Court has provided the answer.
In Maui Tomorrow v. State of Hawaii, 110 Haw. 234, 131 P.3d 517 (Apr. 5, 2006), the court held that prevailing on a state law water rights claim in state court does not entitle the victor to federal civil rights attorneys fees.
That conclusion may seem a touch obvious, one might think, but despite a rather clever and “tenuous” argument by the party seeking to fee-shift, the court correctly determined that issues of water rights and the common law public trust were matters of state law. Disclosure: I represented the Hawaii Farm Bureau Federation, one of the prevailing parties in this appeal.
The appeal arose when the owner of a private water transport system on Maui sought a long term lease from the State Board of Land and Natural Resources, allowing the use of surface water originating in state-owned land. Several individuals and organizations intervened in the administrative process, alleging that the lease would interfere with their preexisting water rights, rights as Native Hawaiians, and rights under Hawaii’s public trust in water, and that before entering into a lease, the agency must undertake an environmental assessment under the Hawaii Environmental Policy Act, Haw. Rev. Stat. ch. 343.
The agency rejected the claims, and the intervenors appealed to state court, adding a claim for due process violations. The trial court ruled against the intervenors and in favor of the state on the due process claims, for the intervenors on the EA and public trust claims, and remanded the case back to the agency. After judgment was entered, the intervenors sought nearly a quarter of a million dollars in attorneys fee under the federal fee-shifting statute, 42 U.S.C. § 1988. That statute allows a party who prevails on a federal civil rights claim (42 U.S.C. § 1983) to make the loser pay attorneys fees. The trial court denied the motion and the intervenors appealed.
The Supreme Court held that despite characterizing their water rights and public trust claims as claims under the law admitting Hawaii as the 50th state (the Admission Act), the claims made by the intervenors were, in reality, arguments under state law. The court compared the claims actually made by the intervenors to the claims theintervenors said they made, and found no federal civil rights claim was present, much less a federal claim on which the intervenors prevailed. The court characterized the request for attorneys fees as “tenuous,”but refused to impose Rule 11 sanctions for a frivolous argument.
Continue Reading ▪ 2006 Land Use in Review: Hawaii Water Law is Not a Federal Case
A touch of self-promotion. In February 2006, the University of Hawaii Law Review published an article written by me and my Damon Key colleagues Ken Kupchak and Greg Kugle.
The title “Arrow of Time: Vested Rights, Zoning Estoppel, and Development Agreements in Hawaii” pretty much sums up the contents. The article seeks to…
When is the “earliest practical time” to prepare an environmental assessment under Hawaii’s environmental statutes?
In Sierra Club v. State of Hawaii Office of Planning, 109 Haw. 411, 126 P.3d 1089 (Jan. 27, 2006), the court determined if and when an environmental assessment is required during the boundary amendment process.
The property owner asked the State Land Use Commission to amend the land use classification from “agricultural” to “urban” to permit it to develop the “Koa Ridge” project in central Oahu. This procedure, known as a “boundary amendment,” is required by Hawaii’s top-down system of land use, under which the State classifies all land into one of four categories: agricultural, conservation, rural, or urban. Only then are the counties permitted to separately zone the land classified as urban. The “boundary amendment” process, despite its unusual moniker, is similar to a rezoning.
The Sierra Club and others intervened in the petition process, arguing that before the LUC was permitted to grant the boundary amendment, the agency must have completed an Environmental Assessment under the Hawaii Environmental Policy Act, Haw. Rev. Stat. ch. 343 to determine whether a full-blown Environmental Impact Statement was required. Section 343-5 of HEPA requires an agency to undertake an EA if an applicant proposes the “use of state lands.”
The intervenors claimed that the Koa Ridge project would do so because it contemplated construction of a sewage and water lines which would require tunneling under state-owned land. The landowner agreed that an EA was required, but argued it could be accomplished later because section 343-5 requires only that the agency prepare the EA “at the earliest practical time.” The landowner asserted it was too early in the process to accurately set out the possible environmental impacts since the project at the boundary amendment stage was preliminary and conceptual, and the end product might be different.
The court disagreed, holding that because environmental information is important, such information must be provided sooner rather than later, since a later determination may make the final decision fait accompli because the agency may be less inclined to disapprove a request further down the path after more time and money are spent:
We agree with the reasoning of Citizens [for Prot. of N. Kohala Coastline v. County of Hawaii, 91 Haw. 94, 979 P.2d 1120 (1999)] that early environmental assessment comports with the purpose of HEPA to alert decision-makers early in the development process because, “[a]fter major investment of both time and money, it is likely that more environmental harm will be tolerated.”
The court did not address what would happen if, as the landowner predicted, the scope of the project was altered in the future, either on the landowner’s initiative, or in response to a requirement from the LUC, which has the discretion to impose conditions on boundary amendments. Under the court’s reasoning — environmental information is “important,” and care must be taken to insure that the agency’s decision to approve is not a foregone conclusion — it is not difficult to imagine that yet another EA could be required.
Continue Reading ▪ 2006 Land Use in Review: Environmental Assessments, Early and Probably Often
When a statute or ordinance states that an agency “shall” do something, but because of practical limitations or longstanding practice the agency does something else, what will a court do about it?
Leslie v. Board of Appeals, County of Hawaii, 109 Haw. 384, 126 P.3d 1071 (Jan. 25, 2006) involved the meaning of the…
“County zoning flaws leading landowners to court” reads the headline in the December 10 Maui News, detailing two cases where property owners have alleged that the County of Maui long ago confirmed that certain land uses were legal, and cannot now change its mind.
Under Hawaii’s top-down system of land use classification, the State must first classifiy land as “urban” before the counties are able to zone it. However, decades ago, the County of Maui apparently zoned the parcels at issue before the state got around to classifying it:
Back in 1964, shortly after the new state government established its land use laws, Maui County granted zoning to land in Pukalani and Makena without having the state first approve urban use.
Under the state land use law, counties are allowed to grant zoning only to properties that are in the urban district. The Land Use Commission determines the classification of lands as conservation, agricultural/rural and urban.
In the cases that now are leading to suits in 2nd Circuit Court and for a Makena family, Maui County not only approved the zoning before the lands were classified urban, but issued letters to the landowners verifying the zoning.
Except the county since has retracted the verification of zoning.
The fallout so far has been at least two lawsuits against the county by landowners in Pukalani and an ongoing headache for a Makena family that seeks to get the zoning that had previously been granted and then retracted.
The county’s somewhat casual approach to zoning in the old days has provided plenty of work for lawyers.
But these lawsuits are not a case of “make work” for lawyers, and reflect a serious issue of who must bear the burden of government’s official mistakes, when they are compounded with years of reliance by property owners, most of whom have no inkling of the error. The County, it seems, wants to shift the responsibility for its errors onto innocent property owners. In such instances, however, it seems that the burden of the error should fall on the entity responsible for the mistake, and with the resources to catch it: the government. Given the scope of the problem, this will no doubt not be the last we hear of such lawsuits.
In January, I will be speaking on three topics:
- At the Hawaii Land Use Law Conference, I’m presenting “Water, Water, Everywhere: Coastal Zone Management Permits; Hawaii’s Floodway, Floodplain and Coastal Inundation Zone Requirements.” Agenda and registration details here.
- At the annual Advanced Land Use and Zoning seminar, my portion is “US Supreme Court Land Use Update,” which deals with the Rapanos Clean Water Act case, other federal developments in land use law, and some of the more interesting Hawaii Supreme Court land use decisions. I will also be covering “Vested Rights Update” with my colleague Greg Kugle. Complete agenda and registration information here.
- At the HSBA Environmental Law section January meeting, I’m presenting “Clean Water Act Jurisdiction After Rapanos.” Approximately one week before the meeting, I will post materials and resouces on this blog.
I hope to see you at one or more of these events. Drop me an email for sign up information or see the links on the “Events” heading on the right.
Light posting until mid-December. To satisfy your land use fix, try these links:
- hawaiilawyer.com – My firm’s main site, with RSS feed.
- Institute for Justice – RSS feed.
- Land Use Prof Blog.
- PLF on Eminent Domain – frequently updated on eminent domain reform.
- Rapanos blog – Clean Water Act jurisdiction issue.
- SCOTUS blog – US Supreme Court real time opinions, briefs, transcripts, and analysis.
- Supreme Court of Hawaii – November 2006 opinions and orders. December 2006.
