Final Briefs On Due Process Motions In Maui Affordable Housing Exaction Case

The property owners and the County of Maui have filed their opposition and reply briefs regarding the cross motions for summary judgment in the Maui affordable housing case now being litigated in the U.S. District Court, Kamaole Pointe Development LP v. County of Maui, No. 07-00447 DAE (D. Haw.).

The case is a challenge to the County of Maui's "workforce housing" ordinance, enacted in in 2006, which imposes a 40% to 50% affordable requirement on new housing developments of five or more units, and on an application to subdivide a lot into five or more parcels. In lieu of providing actual units, a developer may either pay a fee equivalent to 30% of the total project sales, donate improved land of the same value, or donate raw land valued at 200% of the in-lieu fee. Ordinance 3418 is posted here.

The complaint asserts claims for "unconstitutional conditions," regulatory takings, substantive and procedural due process, equal protection, and claims under Hawaii law. The Complaint for Declaratory and Injunctive Relief (filed Aug. 23, 2007) is posted here (note: the Complaint was amended on September 6, 2007). The court earlier dismissed the "unconstitutional conditions" claim, holding it was a regulatory takings claim and was not ripe under Williamson County because the plaintiffs had not pursued a state compensation remedy. That order is posted here.

As detailed here, on November 25, 2008, the court issued an Order Denying Plaintiffs' Motion for Partial Summary Judgment; and Order Granting in Part and Denying in Part Defendants' Motion for Summary Judgment. The court held that the Williamson County ripeness rules also apply to the substantive due process and equal protection challenges, which were not ripe because the property owner had not obtained a "final decision" from the County. The court also dismissed the state law claims.

The only count remaining in the case is the due process claim, which is now the subject of cross-motions for summary judgment. The property owners filed this motion asserting the Maui County Council -- which under the ordinance has the power to grant waivers to the affordable housing requirement -- "irrationally refused to grant Plaintiffs' request," because "the members of the Council were so focused on the end goal, they were unable to impartially evaluate Plaintiffs' request for a waiver from the Ordinance."

The County filed this cross motion asserting, in essence, that the County was free to act arbitrarily because the plaintiffs did not have a property interest in a waiver because the Council had discretion not to grant one. No property interest means fair procedures are not merited. The County's motion also argues that even assuming the plaintiffs possessed a property interest, they received due process. 

The property owners' memorandum in opposition to the County's cross motion argues that Maui Councilmembers harbor an "irrational bias against residential developers," especially those who attempted to show a lack of nexus between the ordinance's 40-50% exaction and a proposed residential development, and that "a reasonable juror could not return a verdict for [the County]."

The County's County's memorandum in opposition to the property owners' motion asserts  "[t]his case raises a question that is unusual in the annals of constitutional litigation; namely, what do the Plaintiffs hope to gain by this expensive recourse to the busy federal court?" The County asserts the property owners are not seeking money damages for the due process violations, but a remedy that is not available: a declaration that the ordinance does not apply.

The parting shots by each party -- their reply briefs -- are available here (property owners) and here (County). The property owners clarify their requested remedy (that the request for a waiver from the exaction from the Council should be "deemed approved" because the Council's process was grossly biased and thus null and void), while the County asserts that the property owners have no protectable "property" interest in a waiver, and thus are owed no process.

The hearing on the cross-motions will be held on Monday, September 28, 2009 at 9:45 a.m. in U.S. District Court.