Real Estate & Property Law

County Motion For Reconsideration in Maui Affordable Housing Exaction Case

By Robert Thomas (inversecondemnation.com)

The County of Maui has asked the federal court to reconsider its recent order granting in part and denying in part the County's summary judgment motion.  A Maui property owner challenged the County's "workforce housing" exaction ordinance, which requires a property owner to commit 40% to 50% of the units in most new housing developments to below-market-rate ownership or rental.  Kamaole Pointe Development LP v. County of Maui, No. 07-00447 DAE.  The plaintiff 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, and that the exaction is roughly proportional to the problem.

The court held that the plaintiff's Nollan/Dolan claims are takings claims that are not ripe under Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985).  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.  The court allowed the remaining federal claims to go forward.  Professor Patty Salkin summarized the opinion on her Law of the Land blog here.

The County's current motion argues the court committed a "manifest error of law" when it did not dismiss the plaintiff's substantive due process and equal protection claims.  The County argues that the plaintiff bears the burden of proof on both claims under rational basis review, and it cannot meet that burden as a matter of law.  The County's motion and supporting memorandum is posted here.

Full post as published by inversecondemnation on July 23, 2008 (boomark / email).