Real Estate & Property Law

Update on Federal Court Nollan/Dolan Challenge to Maui's "Affordable Housing" Exaction

By Robert Thomas

An update on the latest filings in the federal court challenge to Maui County's affordable housing exaction ordinance.  Kamaole Pointe Development LP v. County of Maui, Civ. No. CV07-00447 DAE LEK (D. Haw. filed Aug. 23, 2007). 

First, some background.  The Maui "workforce housing" ordinance, enacted last year, 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.  Ordinance 3418 is posted here.  I posted on the case earlier here (contains a link to the complaint), and analyzed the legal problems with the ordinance under state law here.

The plaintiff landowner sought summary judgment on the issue of whether the Ordinance is void on its face.  The motion is posted here (1.5mb pdf).  It asks the court to declare the ordinance unconstitutional under the Nollan/Dolan doctrine of unconstitutional exactions, which requires the government to show a substantial nexus between the exaction and some problem caused by the property owner before the government may demand tribute as a condition of development.  The exaction must also be roughly proportional to the problem.  See this post for more on the nexus analysis.  The County opposed the motion for summary judgment, and filed this brief (160kb pdf).  The property owners recently filed a reply brief responding to the County's argument (850kb pdf). 

The County also filed its own motion for summary judgment (200kb pdf), which was opposed by the landowner in this brief (1.8mb pdf). The County responded in this reply brief (80kb pdf).

Full post as published by inversecondemnation on May 29, 2008 (boomark / email).