Real Estate & Property Law

Court Strikes Facial Due Process and Equal Protection Claims in Maui Affordable Housing Exaction Case

By Robert Thomas (inversecondemnation.com)

The US District Court for the District of Hawaii has granted (in part) the County of Maui's motion for reconsideration of the court's earlier order granting in part and denying in part the County's summary judgment motion.  Here's a copy of the court's latest order.

The court entered summary judgment in favor of the county on the plaintiff's facial equal protection and facial due process claims, and allowed the "class of one" equal protection claim, and the as-applied equal protection and due process claims to proceed. 

The case involves a Maui property owner's challenge to 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. 

In July 2008, the court held 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.

Both parties have also moved for summary judgment (briefs available here).  Hearing is scheduled for later this month.

Full post as published by inversecondemnation on September 13, 2008 (boomark / email).