Real Estate & Property Law

Nollan/Dolan Challenge to Maui's 50% Housing Exaction Is A Takings Claim Subject To Williamson County

By Robert Thomas (inversecondemnation.com)

Relying on Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985), the US District Court for the District of Hawaii today denied a property owner's motion for summary judgment in a case challenging the County of Maui's "workforce housing" exaction ordinance.  Kamaole Pointe Development LP v. County of Maui, No. 07-00447 DAE.

The ordinance requires a property owner to commit 40% to 50% of the units in most new housing developments to below-market-rate ownership or rental.  A property owner subject to this exaction challenged the ordinance 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.

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 district court's lengthy opinion held that despite labeling its claim as one under the "unconstitutional conditions doctrine," the claim was a facial takings claim which is subject to Williamson County's requirement that the plaintiff first seek -- and be denied -- compensation via state procedures. 

More to follow after I've had a chance to review the 59 page opinion in more detail.

Full post as published by inversecondemnation on July 03, 2008 (boomark / email).