Real Estate & Property Law

Materials From Hawaii Land Use Law Conference

By Robert Thomas (inversecondemnation.com)

To those who attended today's sessions, thank you.  Here are the cases and other materials I mentioned in my portion:

• Shoreline setbacks and equitable estoppel - Brescia v. North Shore Ohana 115 Haw. 477, 168 P.3d 929 (2007) 

• State shoreline setback - Haw. Rev. Stat. § 205A-43

• Counties have authority to enact their own setbacks - Haw. Rev. Stat. § 205A-45

• No private right of action to enforce zoning - The Hawaii Intermediate Court of Appeals, in Pono v. Molokai Ranch, Ltd., 119 Haw. 163, 194 P.3d 1126 (2008), held that a private party had no standing to enforce the state's land use laws. The Hawaii Supreme Court rejected certiorari review of the case.  Disclosure: we represent the landowner. More here.

• Maunalua Bay Beach Ohana 28 v. State of Hawaii, the appeal now pending in the Intermediate Court of Appeals.  The issue in that case is whether the state or littoral landowners are entitled to ownership of accreted land. In "Act 73," the legislature declared that shoreline land naturally accreted belongs to the State of Hawaii and is public property.  The act overturned the age-old rule of shoreline accretion and erosion, which held that beachfront owners lose ownership of land when it erodes, but gain it when it accretes.  Instead of these balanced rules, Act 73 made the erosion/accretion equation one-sided: the State wins every time.  We filed an amicus brief in the appeal, a copy of which is available here.

• Substantive due process in the Ninth Circuit after Lingle - The Ninth Circuit Rediscovers Substantive Due Process in Land Use Cases

• County of Hawaii v. C & J Coupe Family Limited Partnership, No. 28882 (Dec. 24, 2008) - public use, pretext, and damages for failed taking

The majority opinion by Justice Acoba, joined by Justices Nakayama and Duffy is posted here:

We hold that (1) a landowner in a condemnation action is entitled to damages under HRS § 101-27 where the property at issue is not finally taken in the context of a particular condemnation proceeding, irrespective of whether the government attempts to take the land through subsequent condemnation proceedings; (2) abatement does not apply where the relief sought in two concurrent actions is not the same; and (3) although our courts afford substantial deference to the government's asserted public purpose for a taking in a condemnation proceeding, where there is evidence that the asserted purpose is pretextual, courts should consider a landowner's defense of pretext.  Therefore, (1) automatic denial of statutory damages under HRS §101-27 in Condemnation 1 is vacated and the case remanded for a determination of damages, (2) the court's conclusion that Condemnation 2 was not abated by Condemnation 2 is vacated and the case remanded for a determination of whether the public purpose asserted in Condemnation 2 was pretextual.

Slip op. at 5. Here's the concurring and dissenting opinion by Chief Justice Moon joined by Justice Levinson. The briefs in the case are available here:  Opening Brief, Answering Brief of the County of Hawaii, Reply Brief. Disclosure: we represent the property owner.

Full post as published by inversecondemnation on January 15, 2009 (boomark / email).