Land Use Law: An Overview at LII

If you haven't found it yet, the Legal Information Institute (LII) at the Cornell Law School is a terrific Web resource for court opinions, case summaries, and all kinds of information about particular areas of law.  Today I stumbled on LII's Land use porthole.  It provides basic information and a jumping off point for further exploration.

Please donate to LII if you are able.

Maui County to Overhaul Department of Planning Fees

The County of Maui, Department of Planning, Current Division is seeking proposals from consultants to prepare a fee study and cost recovery plan for the department. The plan should address how the department can recover department operation costs for planning and community development through a revised fee structure. Current fees are posted here.

The Current Planning Division reviews and analyzes current planning projects including bed and breakfast permits, conditional permits (including transient vacation rentals), changes in zoning, community plan amendments, historic district and demolition permits, country town business design review, and state and county special use permits.

The complete request for proposal ("RFP") is posted at http://www.co.maui.hi.us/bids.asp?bidID=130.

State Unveils $4.2 billion, Six-Year Highway Modernization Plan

According to a January 22, 2009 press release, Governor Linda Lingle, together with Senate Transportation Chair Kalani English, House Transportation Chair Joe Souki, and State Transportation Director Brennon Morioka unveiled a $4.2 billion dollar, six-year Highway Modernization Plan. 

The statewide plan would implement critical highway projects and programs aimed at reducing traffic congestion, improving highway safety, maintaining roads, and saving motorists time and money.

Under the proposed legislation (which has not been submitted to the legislature as of this posting), funding for the plan would be raised as follows:

• The state fuel tax which is currently $0.17 per gallon would be raised to $0.27 per gallon, generating an estimated increase in annual revenues of $51 million. 
• Vehicle weight taxes, currently set at 3/4 of a cent per pound for vehicles up to 4,000 pounds, would be raised to 2 and 3/4 of a cent per pound, generating an additional $68 million in annual revenues. 
• Motor vehicle registration fees would also be increased from $25 per year to $45 per year, adding an additional $23.3 million in annual revenues. 
• The rental vehicle surcharge tax would be increased from $3 per day or portion of day to $5 per day or portion of day, creating an additional $32 million annually. 

Financial impacts to the average taxpayer would be a total of $170 per year.

The Department of Transportation's Web site has additional information, including a breakdown of proposed projects, at http://hawaii.gov/dot/news/state-unveils-comprehensive-six-year-highways.

Ceded Lands Case Debate at UH Law School

Event: Ceded Lands Debate and Lunch

Date: Thursday, February 12, 2009

Time: 12:45 - 2:00 pm

Place: Classroom 2, University of Hawaii Law School 

This promises to be an interesting presentation by Ilya Shapiro, Senior Fellow at the Cato Institute's Center for Constitutional Studies and Editor-in-Chief of the Cato Supreme Court Review, and Carl Christensen, Visiting Assistant Professor of Law and former Senior Counsel to the U.S. Senate Committee on Indian Affairs and as Staff Attorney with the Native Hawaiian Legal Corporation.

Visit inversecondemnation.com for more information and to reserve a seat.

For more on the ceded lands case, see this Blawg’s Ceded Lands archive.

Report Surveys State and Local Strategies to Increase Affordable Housing

Source: National Association of Home Builders, Research on State and Local Means of Increasing Affordable Housing Highlights, Jan. 2008, available at http://www.nahb.org/fileUpload_details.aspx?contentTypeID=3&contentID=91006&subContentID=138628.

Summary:  This report surveys and analyzes various affordable housing strategies in various states and counties.  Analysis includes describing the the policy framework, assessing whether the policy worked, and providing a discussion of pros and cons.  

Reported findings include:

• Lengthy approval processes can discourage affordable housing development.  
• Building codes can discourage affordable housing development. 
• NIMBY attitudes can result in loss of affordable housing.  
• Impact fees can increase the cost of housing.  
• The lack of infill policies can decrease the affordable housing supply.  
• Tax policies can increase the cost of housing.  
• Zoning regulations can discourage affordable housing development.

OHA Lobbies State Legislature for Ceded Lands Legislation

Before the U.S. Supreme Court rules on the ceded lands question, the Office of Hawaiian Affairs (OHA) is lobbying the state legislature to pass a bill that would codify the state Supreme Court ruling.The ruling forbids the sale of 1.2 million acres of land.  This maneuver may help OHA’s case at the U.S. Supreme Court, since the ban would be supported by both the judicial and legislative branches of the state.

Source: Gordon Y.K. Pang, OHA looks for some backup, Jan. 13, 2009, available at here.

For more on the ceded lands case, see this Blawg’s Ceded Lands archive.

Agency Use of Video Surveillance without a Warrant is Permissible

Here’s an interesting case regarding agency enforcement and the use of modern surveillance technology: namely, a hidden, fixed-range, motion-activated video camera placed in the appellant’s open fields, without a warrant.

Mr. Vankesteren owned a farm in Virginia. Someone reported that traps set by Vankesteren in a field on his farm, trapped foul that was protected under the Migratory Bird Treaty Act. Based on the complaint, the Virginia Department of Game and Inland Fisheries ("VDGIF") installed, without a warrant, video surveillance on Mr. Vankesteren’s farm. He was subsequently caught on tape killing a trapped protected bird—a red-tailed hawk. The lower court ruled in VDGIF’s favor and Vankesteren appealed to the U.S. Court of Appeals for the 4th Circuit

On appeal, Vankesteren conceded in oral argument that the VDGIF placed its camera in a constitutionally unprotected open field. The Court found the following facts relevant in its analysis of the open fields exception to the 4th Amendment:

Vankesteren’s fields were located a mile or more from his home, the land was being used for farming and not intimate activities, VDGIF had received a report of a trapped protected bird, and there is no indication in the record that Vankesteren had taken any steps to protect his field from observation. Therefore, under the Supreme Court’s jurisprudence, the subject land must be classified as open fields and not curtilage [i.e., area immediately surrounding the home], and Vankesteren has no reasonable expectation of privacy in those open fields.

However, Vankesteren argued that hidden surveillance cameras are subject to a higher degree of 4th Amendment scrutiny. On this point, the Court opined as follows:

The idea of a video camera constantly recording activities on one’s property is undoubtedly unsettling to some. Individuals might engage in any number of intimate activities on their wooded property or open field—from romantic trysts under a moonlit sky to relieving oneself, as in Mr. Vankesteren’s case—and do so under the belief that they are not being observed. But the protection of the Fourth Amendment is not predicated upon these subjective beliefs. "[O]pen fields do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance." Anyone could have walked onto Vankesteren’s property, including a VDGIF agent, and observed his traps. Under our jurisprudence, VDGIF could have stationed agents to surveil Vankesteren’s property twenty-four hours a day. That the agents chose to use a more resource-efficient surveillance method does not change our Fourth Amendment analysis.

(Citations omitted.)

Given the public’s concern over an Orwellian slippery slope, the Court was careful to point out the narrow facts of this case, which were:

[T]his camera was in a fixed location, was focused on a limited area of Vankesteren’s fields, was activated only by motion, and recorded only during the daylight hours. Essentially, the camera did little more than the agents themselves could have physically done, and its use was therefore notunconstitutional.

Consequently, the Court held that since "Vankesteren had no legitimate expectation of privacy, the agents were free, as on public land, to use video surveillance to capture what any passerby would have been able to observe."

Case Link: U.S.A. v. Vankesteren, No. 084110p, slip op., (4th Cir. Jan. 8, 2009).

Highlights of Maui’s New Bed and Breakfast Ordinance

Maui’s Mayor signed into law Ordinance 3611 (2009), which amends chapter 19.64 of the Maui County Code (“MCC”) and other parts of Title 19 related to bed and breakfast (“B&B”) homes. (Note: The new law has not been codified as of this posting.)

Here are some of the more significant changes:

• The definition of B&B has changed from an accommodation provided for guests for a period of less than 30 days, to a period less than 180 days.
• No more than two detached single-family dwellings can be used for B&B operations per lot.
• In addition to residential and business districts, B&Bs are now a permitted use in hotel, rural, and agricultural districts.
• The permit shall be in the name of the “owner-proprietor, who shall be a natural person and the owner of the real property . . . [n]o bed and breakfast home permit shall be held by a corporation, partnership, limited liability company, or similar entity.”
• No more than six bedrooms may be used as a B&B in a home on Lanai and Maui—no more than three on Molokai.
• Guests are limited to two adults and two minors per room.
• B&Bs “shall make breakfast available to onsite guests.” (Note: “Shall” implies that providing breakfast is mandatory.)
• In Hana, Lanai, and Molokai, B&Bs must have a one square foot sign that identifies the B&B permit number. On Molokai, the proprietor’s phone number must also be included.
  Parking must be off-street.
• Housing policies must be posted and include quiet hours from 9:00 p.m. to 8:00 a.m.; amplified sound permeating the boundaries of the lot are prohibited; and vehicles cannot be parked on the street overnight.
• B&B caps are as follows: Hana, 48; Kihei-Makena, 100; Makawao-Pukalani-Kula, 40; Paia-Haiku, 88; Wailuku-Kahului, 36; and West Maui, 88.
• Mitigation may be imposed by the director or the planning commission related to impacts created by B&B.
• A project notice sign shall be posted along the front of the property five days prior to submission of application and removed no less than five days after final decision on the permit application.
• For B&Bs that are one to six bedrooms, permits are approved by the director of planning. Public hearing and commission approval is required when 30 percent of homeowners with 500 feet of the B&B complain; if a variance is granted from B&B requirements; for more than three bedrooms in Hana; and for all B&Bs on Molokai and Lanai.
• Initial permits are valid for a maximum of three years. Subsequent permits are valid for a maximum of five years on Maui and Lanai and for one year on Molokai.
• An annual report is required for permits lasting longer than two years.
• Owner-proprietors do not qualify for a homeowner’s exemption.

The department of planning has a new B&B application posted on their Web site.

For more on B&Bs see this blawg’s Bed and Breakfasts archive.

Draft EIS for the Hawaii Superferry Available for Public Comments

Act 2 (2007), exempted the Hawaii Superferry from Hawaii’s EIS requirements under HRS chapter 343 so that it could operate without conducting an environmental review.

However, Act 2 required that the State Department of Transportation (“DOT”) prepare an EIS type document for the Office of Environmental Quality Control’s ("OEQC") review and acceptance. The document, Statewide Large-Capacity Ferry Environmental Impact Statement, Draft Environmental Impact Statement, is available for public review. According to the DOT’s Web site:

Written comments to the OEQC, with a copy of the comments to the DOT, should be received or postmarked within 45 days of today’s release of the report. Because the close of the 45-day comment period (February 22, 2009) falls on a Sunday, comments postmarked one day thereafter, on February 23, 2009, will be accepted.

After the 45-day comment period, DOT will prepare a Final EIS that incorporates the public’s comments, DOT responses to those comments, and any amendments to the document. The OEQC must accept or not accept the Final EIS based on the following criteria under Act 2, Section 12:

(c) Acceptability of a statement shall be evaluated on the basis of whether the statement, in its completed form, represents an informational instrument which fulfills the definition of an environmental impact statement and adequately discloses and describes all identifiable environmental impacts and satisfactorily responds to review comments.

(d) A statement shall be deemed to be an acceptable document by the office only if all of the following criteria are satisfied:

(1) The procedures for consultation process, review, and the preparation and submission of the statement, have all been completed satisfactorily as specified in this part;

(2) The content requirements described in this part have been satisfied; and

(3) Comments submitted during the review process have received responses satisfactory to the office, and have been incorporated in the statement.

What happens after OEQC’s acceptance is not clear. Under HRS chapter 343-7(c), “[a]ny judicial proceeding, the subject of which is the acceptance of an environmental impact statement required under section 343-5, shall be initiated within sixty days after the public has been informed pursuant to section 343-3 of the acceptance of such statement.” However, Act 2 provides that the “the environmental review process for state actions in connection with a large capacity ferry vessel company shall be governed by this Act, and not by chapter 343, Hawaii Revised Statutes.” Since Act 2 does not have a judicial challenge mechanism or statute of limitations, challengers may need to satisfy higher standing requirements under common law but with no restriction on when they can bring an action. In the alternative, the court may subject claims to HRS chapter 343 notwithstanding Act 2. Another round of courtroom arguments may be in the near future.

For more on the Hawaii Superferry case, see this blawg's Hawaii Superferry archive.

Transit Oriented Development and Affordable Housing

In a recent entry at HawaiiBusiness.com, two sides fired off on whether Honolulu's transit project will impact the availability of housing for working families.

Transit per se will not affect the availability or unavailability of affordable housing. In order to provide more affordable housing, transit must be paired with transit oriented development (“TOD”). According to the Transit Cooperative Research Program, sponsored by the Federal Transportation Association, TOD has three primary traits (1) Mixed-use development; (2) Development that is close to and well-served by transit; and (3) Development that is conducive to transit riding.

According to a 2002 study, Factors for Success in California’s Transit-Oriented Development, commissioned by the California Department of Transportation,

TOD can contribute to more affordable housing. TOD can add to the supply of affordable housing [1] by providing lower-cost and accessible housing, and [2] by reducing household transportation expenditures. Housing costs for land and structures can be significantly reduced through more compact growth patterns.

First, providing lower-cost and accessible housing is achieved through various developer incentives that promote development near transit stations in exchange for affordable units, including:

• Reducing the minimum parking requirements or setting maximum parking requirements around major transit stops,
• Density bonuses, and
• Property tax abatements to developers of higher-density, mixed-use, residential developments.

In addition to developer incentives, potential homeowners may be eligible for a Location Efficient Mortgage (“LEM”). An LEM, sponsored by Fannie Mae, is a mortgage that helps people become homeowners in location efficient communities such as TOD projects.

Second, reducing household transportation expenditures can also promote housing affordability. The average annual expenditure per capita in Honolulu for transportation between 2004 and 2005 was about $10,000. TOD can help to reduce the cost of transportation by reducing a homeowner's dependence on vehicles. According to the Center for Neighborhood Technology,

A growing body of research has shown a strong relationship between increased density, transit access and pedestrian friendliness on the one hand, and reduced vehicle miles traveled and automobile ownership on the other.

The bottom line: Transit paired with TOD creates an opportunity for increased housing affordability.

For more on affordable housing policies in Hawaii see this blawg’s Affordable Housing archive.

Mitigation Allows Surf School to Continue as Nonconforming Use

Save Diamond Head Waters, LLC v. Hans Hedemann Surf, Inc., ICA No. 27804, December 19, 2008, is a recent Hawaii zoning case involving nonconforming uses. The underlying points of law in this case are that nonconforming uses can be changed, but they cannot be expanded.  Also, an accessory use must be secondary to the allowed primary use.  The Surf School in this case was allowed to continue, because it was not an accessory use but a changed nonconforming use.

Hans Hedemann Surf, Inc. (“Hedemann”), operates Hans Hedemann Surf School (“Surf School”). The Surf School is located on the ground floor in a space called “Shop #7” of the New Otani Kaimana Beach Hotel.

The Hotel was constructed in 1950 and expanded in 1962. When built, zoning at the site allowed “commercial uses other than businesses that primarily served the tenants and occupants of the buildings in which they were located, known as ‘accessory uses’” Current zoning at the site is “A-2 Medium Density Apartment District designation. Hotel and accessory uses are not permitted in A-2 districts. However, because hotel use was acceptable at the time of the Hotel's construction and the Hotel has continued to be used as a hotel, hotel use survives as a nonconforming use.”

Neighbors protested the Surf School’s operation at the Hotel and sought a declaratory order from the Director of the Department of Planning and Permitting. The Director ruled in favor of the Surf School as follows:

. . . [t]he Hotel itself is a nonconforming use and although "accessory" commercial businesses are allowed within the Hotel, the operation of the Surf School was not an accessory use, because it did not draw its students/customers primarily from the Hotel. The Director also ruled that the Surf School's operation did not represent an expansion of the nonconforming use as there had been no physical expansion of the existing structure, no extension of operating hours insofar as the Hotel operated on a 24-hour basis, no evidence of an increase of "visitor units" within the Hotel or any other increase in density or intensity of use on the site. The Director concluded that the Surf School was more properly characterized as a change of use rather than an expansion of the nonconforming use and that the activities conducted on-site --assembly and registration of, and distribution of surfboards to students, as opposed to actual instruction -- was an "office" use. The ZBA agreed with the Director on these matters.  (Emphasis added.)

The neighbors appealed to the first circuit court, which reversed the Director’s decision. The Surf School appealed to the intermediate court of appeals (“ICA”), which reversed the first circuit and upheld the Director’s decision.

The question before the ICA was “whether the Director, in response to [the neighbors’] petition for a declaratory ruling, acted beyond his authority to issue that ruling when it set the permissible limits of a lessee's use of its leased space under the [Land Use Ordinance].” 

In affirming the Director’s decision, the ICA approved that the Director “set the standard for the impact of a surfing class as ‘no greater than if it operated as an accessory use of the hotel’ and focused on determining ‘the level of activity or intensity of use which results in greater adverse effects.’” The Director’s decision was not an abuse of discretion, because his “ruling was reasonably based on the evidence before [him] and constituted a reasonable application of the applicable zoning ordinance and the DPP's previous interpretation of that ordinance.”

2009 Honolulu City Council Committee Assignments

Today, Honolulu City Council Chair, Todd Apo, announced the following council committee assignments:

• Committee on Budget: Nestor Garcia (Chair), Gary Okino (Vice Chair), Duke Bainum, Charles Djou, and Rod Tam
  
• Committee on Executive Matters & Legal Affairs: Charles Djou (Chair), Barbara Marshall (Vice Chair), Todd Apo, Duke Bainum, Romy Cachola, Donovan Dela Cruz, Nestor Garcia, Gary Okino, and Rod Tam
  
• Committee on Public Infrastructure: Duke Bainum (Chair), Nestor Garcia (Vice Chair), Charles Djou, Donovan Dela Cruz, and Barbara Marshall
• Committee on Public Safety & Service: Donovan Dela Cruz (Chair), Romy Cachola (Vice Chair), Duke Bainum, Charles Djou, and Rod Tam
• Committee on Transportation & Planning: Gary Okino (Chair), Donovan Dela Cruz (Vice Chair), Nestor Garcia, Barbara Marshall, Rod Tam
• Committee on Zoning: Rod Tam (Chair), Duke Bainum (Vice Chair), Romy Cachola, Barbara Marshall, and Gary Okino
  

All councilmembers are members of all the committees. The above indicates “voting members.”

The following committees have been dissolved and incorporated into the above committees: Affordable Housing and Economic Development Committee; Public Health, Safety and Welfare Committee; Transportation and Public Works Committee; and Intergovernmental Affairs Committee.

Chair Apo hopes that by reducing the committees from 8 to 6, the council will work more efficiently.

Honolulu City Council Reorganization

The Honolulu City Council met today to officially reorganize by adopting Resolution 08-273, Relating to the Officers of the Council of the City and County of Honolulu.

The officers of the Council shall be as follows:

1. Todd K. Apo, Chair and Presiding Officer;
2. Nestor R. Garcia, Vice-Chair; and
3. Barbara Marshall, Floor Leader.

Council also passed Resolution 08-274, Relating to the Rules of the Council of the City and County of Honolulu.

Public Use Asserted in Condemnation May Meet Initial Judicial Muster but Courts Must Also Consider Pretext Defense

On Christmas Eve, the Hawaii Supreme Court (“HSCT”) issued an opinion in County of Hawaii v. C&J Coupe Family Limited Partnership, Haw. S. Ct. No. 28822, Dec. 24, 2008 involving a condemnation action related to the infamous Hokulia subdivision by 1250 Oceanside Partners.

Background. 

This case involves two condemnation actions related to the Hokulia project. The project is located on a 1550-acre parcel extending from the ocean toward the Mamalahoa Highway on the Island of Hawaii. See LUC Petition No. A06-769 1250 Oceanside Partners for a complete project description and maps.

C&J Coupe Family Limited Partnership’s (“Coupe Family”) property is contiguous to the southern border of Hokulia. In order to build the project, the property needed to be rezoned. The Hawaii County Council rezoned the land and as a condition of rezoning, Oceanside agreed to construct a Bypass so that the project could be accessed from Mamalahoa Highway.

The agreement between the County and Oceanside was that Oceanside was responsible for acquiring the property necessary for the Bypass and for the cost of constructing the Bypass, the County would use its eminent domain power in connection with the construction of the Bypass, and once built, the County would assume all responsibility and costs for operation, maintenance, repair, or reconstruction of the Bypass.

Condemnation 1: After negotiations for acquisition of a portion of the Coupe Family property failed, Oceanside sent a letter to the County requesting that it exercise its power of eminent domain on May 23, 2000. On July 26, 2000, the Council adopted a resolution finding it necessary for the County to initiate eminent domain proceedings against the Coupe Family land to acquire the right-of-way for the Bypass. Condemnation 1 sought only 2.9 acres of Appellant's property—the final subdivision approval indicated that 3.348 acres of Appellant's property would be needed for the Bypass. The ultimate result of Condemnation 1 was a court order which stated that "[t]he Condemnation is invalid. Judgment is hereby ordered to be entered in favor of [the Coupe Family] and against [the County] . . . ."

Condemnation 2: During the pendency of Condemnation 1, the County initiated procedures to condemn the Coupe Family’s property, on January 23, 2003. The Council adopted another resolution, this time for approximately 3.348 acres of the Coupe Family’s land and for the state purpose of providing “a regional benefit for the public purpose and use which will benefit the County.” Condemnation 2 was granted in favor of the County.

Questions on Appeal. 

On appeal, the Coupe Family brought the following questions:

1. May [the County] forever avoid its obligation under [HRS] § 101-27 to pay damages for discontinued or failed takings by instituting serial condemnation actions?
   
2. Is an eminent domain action abated—and the circuit court deprived of subject matter jurisdiction—when the court is already considering another, earlier-filed eminent domain action, instituted by the same plaintiff, in the same court, against the same defendants, for the same relief?
   
3. Does a circuit court have any duty under the [United States] and Hawaii Constitutions to examine the record to determine whether the government's proffered public purpose supporting a taking is a pretext hiding a predominantly private benefit, or may it simply take the government's word?
   

Holdings.

First, the issue of whether the Coupe Family is entitled to statutory damages under HRS § 101-27 turns upon whether the property in question "was finally taken" under that statute. I previewed this issue in Should the Government Pay a Landowner for Its Failed Attempt to Condemn a Landowner's Property?  Under the statute, finally taken means that a condemnation is either "abandoned", "discontinued," or "the property concerned [was] not finally taken for public use[.]” Based on its reading of HRS § 101-27, the HSCT held that “the property concerned [was] not finally taken for public use" in Condemnation 1, because the circuit court ordered that the Condemnation was invalid. That the property was eventually condemned after the County prevailed in Condemnation 2 was of no import to the HSCT—the court looked at Condemnation 1 and Condemnation 2 as separate actions for purposes of HRS § 101-27. This question was remanded to the circuit court for a calculation of damages in Condemnation 1.

Second, abatement is "[t]he suspension or defeat of a pending action for a reason unrelated to the merits of the claim[.]" In this case, Condemnation 2 was started while Condemnation 1 was still being considered by the circuit court. The HSCT held that the Coupe Family’s contention that abatement necessarily implicates a court's subject matter jurisdiction over a case is not correct; rather, “abatement is a remedy for a variety of defects, including lack of subject matter jurisdiction.” After reviewing case law from several jurisdictions, the HSCT held that “the pendency of Condemnation 1 did not deprive the court of subject matter jurisdiction over Condemnation 2[.]”

Third, constitution (U.S. and Hawaii) requires that eminent domain powers can only be used for a “public use.” The Coupe Family argued that "that the asserted public use was a pretext . . . to hide the predominantly private benefit of the [Bypass] to Oceanside[.]" The HSCT noted that the Supreme Court's decision in Kelo v. City of New London, Conn., 545 U.S. 469 (2005) is consistent with prior state decisions which “allows courts to look behind an eminent domain plaintiff's asserted public purpose under certain circumstances.” Furthermore, HSCT cited Kelo for the premise that just because a public purpose may exist on its face, the government may not “condemn private property for the sole purpose of transferring title to a different private owner.” This would be a proper use of eminent domain powers on the pretext of improperly transferring private property for another’s private benefit. In this case, the HSCT held that on its face, the Bypass condemnation resolution asserted a public purpose; however, the circuit court must expressly consider the question of whether the County’s asserted public purpose underlying Condemnation 2 was pretextual.