Real Estate & Property Law

Latest Developments in Maui Affordable Housing Exaction Case

By Robert Thomas (inversecondemnation.com)

New filings in the federal district court litigation challenging the County of Maui's "workforce housing" ordinance.  Enacted in 2006, the Maui ordinance imposes a 40% to 50% affordable requirement on most development, including the subdivision of land.  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. 

In July 2008, 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 sought reconsideration of the denial of its motion for summary judgment, and has also filed an additional motion for summary judgment on the substantive due process, equal protection, and state law claims.  The property owner has also sought summary judgment:

• The County's Reply Brief for its motion for reconsideration of the denial of the County's motion to dismiss.

• The County's motion for summary judgment (filed Aug. 13, 3008).

• The property owner's motion for summary judgment (filed Aug. 13, 2008).

Hearing on these motions are scheduled for September 2008.

Full post as published by inversecondemnation on August 25, 2008 (boomark / email).