Real Estate & Property Law

Latest In Maui Affordable Housing Exaction Case: Cross-Motions On Due Process

By Robert Thomas (inversecondemnation.com)

Here's the latest in the Maui affordable housing case now being litigated in the U.S. District Court, Kamaole Pointe Development LP v. County of Maui, No. 07-00447 DAE (D. Haw.). The case is a challenge to the County of Maui's "workforce housing" ordinance, enacted in in 2006, which imposes a 40% to 50% affordable requirement on new housing developments of five or more units, and on an application to subdivide a lot into five or more parcels. In lieu of providing actual units, a developer may either pay a fee equivalent to 30% of the total project sales, donate improved land of the same value, or donate raw land valued at 200% of the in-lieu fee. Ordinance 3418 is posted here.  We posted on the case earlier here and here.

The complaint asserts claims for "unconstitutional conditions," regulatory takings, substantive due process, equal protection, and claims under Hawaii law. The Complaint for Declaratory and Injunctive Relief (filed Aug. 23, 2007) is posted here (note, the Complaint was amended on Sep. 6, 2007). The court earlier dismissed the "unconstitutional conditions" claim, holding it was a regulatory takings claim and was not ripe under Williamson County because the plaintiffs had not pursued a state compensation remedy. That order is posted here.

As detailed here, on November 25, 2008, the court issued an Order Denying Plaintiffs' Motion for Partial Summary Judgment; and Order Granting in Part and Denying in Part Defendants' Motion for Summary Judgment. The court held that the Williamson County ripeness rules also apply to the due process and equal protection challenges, which were not ripe because the property owner had not obtained a "final decision" from the County. The court also dismissed the state law claims.

The only claim left was due process, which is now the subject of cross-motions for summary judgment. The property owners filed this motion asserting the Maui County Council -- which under the ordinance has the power to grant waivers to the affordable housing requirement -- "irrationally refused to grant Plaintiffs' request," because "the members of the Council were so focused on the end goal, they were unable to impartially evaluate Plaintiffs' request for a waiver from the Ordinance."

The County filed this motion asserting, in essence, that the County was free to act arbitrarily because the plaintiffs did not have a property interest in a waiver because the Council had discretion not to grant one. No property interest means fair procedures are not merited. The County's motion also argues that even assuming the plaintiffs possessed a property interest, they received due process.

We'll post the opposition and reply briefs when they become available.

Full post as published by inversecondemnation on August 10, 2009 (boomark / email).