Real Estate & Property Law

Upcoming HAWSCT Oral Arguments: Are State Zoning Laws "Environmental" Statutes?

By Robert Thomas (inversecondemnation.com)

On Tuesday, October 13, 2009 at 10:00 a.m., the Hawaii Supreme Court will hear oral arguments in a case considering whether Haw. Rev. Stat. §  205-1 et seq., gives rise to a private right of action. The core issue in the appeal is whether Hawaii's statewide zoning laws are laws "laws relating to environmental quality," or whether they are classic Euclidean zoning laws. The Hawaii Constitution (art. XI, § 9) provides that "any person may enforce" the "right to a clean and healthful environment, as defined by law relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources."

In County of Hawaii v. Ala Loop Homeowners, No. 27707 (cert. granted Sep. 2, 2009) (order here) a "new century charter school" sought to begin operation on land classified (zoned) as agriculture on the island of Hawaii. Such uses are not normally allowed in the Ag zone. The school's neighbors,the Ala Loop Homeowners, asserted the school needed a special permit pursuant to Haw. Rev. Stat. § 205-6, which allows a county planning commission to permit certain "unusual and reasonable uses" within an agricultural or rural district, despite the land not being zoned for such use. The County filed a declaratory action, seeking confirmation the school was exempt under state law from any special permit requirement. The trial court permanently enjoined the school. The Intermediate Court of Appeals reversed:

In Pono v. Molokai Ranch, Ltd., 119 Hawai?i 164, 194 P.3d 1126 (App. 2008), cert. rejected, 2008 WL 5392320 (Hawai?i 12/29/08), this court held that private citizens do not have a private right of action to enforce the provisions of HRS Chapter 205 and, therefore, lack standing to invoke a circuit court's jurisdiction to determine their claims to enforce Chapter 205. The enforcement of HRS Chapter 205 is precisely the relief sought by the Association and granted by the Circuit Court in this case.

. . . .

We conclude that the Association did not have a private right of action to enforce their Chapter 205 claims and, therefore, the Circuit Court lacked subject matter jurisdiction over the Association's claims. See Pono, 119 Hawai?i at 180-90, 194 P.3d at 1142-52; see also Lanai Co., Inc. v. Land Use Comm'n, 105 Hawai?i 296, 97 P.3d 372 (2004) (HRS § 205-12 authorizes the counties, not the LUC to enforce Chapter 205); accord Rees v. Carlisle 113 Hawai?i 446, 153 P.3d 1131 (2007) (circuit court lacked jurisdiction because the subject ordinance did not create a private right of action).

The ICA's summary disposition order is here.

Here are the cert application and the State's opposition, and two amicus briefs supporting the applicant:

• Application for writ of certiorari
  

• State of Hawaii's Opposition

• Amicus brief of Native Hawaiian Legal Corporation

• Amicus brief of Hawaii's Thousand Friends

The case relied upon by the ICA, Pono v. Molokai Ranch, Ltd., 119 Haw. 164, 194 P.3d 1126 (Haw. Ct. App. 2008), cert. rejected, 2008 WL 5392320 (Haw. Dec. 29, 2008), was rejected for review after the plaintiff made many of the same arguments. We represented Molokai Ranch in that case, and filed this brief in opposition to the application for writ of certiorari, which explained why chapter 205 is a zoning law, and not a "law relating to environmental quality" and why a statute which allows fee-shifting in cases seeking injunctive relief for failure to obtain a permit was not a legislative recognition of a private right of action.

The Judiciary web site summarizes the issues in the oral arguments:

Petitioner Ala Loop Community Association (Ala Loop) filed an application for writ of certiorari requesting that this court review the judgment of the Intermediate Court of Appeals (ICA). The ICA, citing Pono v. Molokai Ranch, Ltd., 119 Hawai?i 164, 194 P.3d 1126 (App. 2008), cert. rejected, 2008 WL 5392320 (Hawai?i Dec. 29, 2008), concluded that Ala Loop did not have a private right of action to enforce its Hawai?i Revised Statutes (HRS) chapter 205 claims against Respondent Wai?ola Waters of Life Charter School, and therefore, the Circuit Court of the Third Circuit lacked jurisdiction over those claims. Ala Loop contends that the ICA erred because, inter alia, it failed to consider Article XI, Section 9 of the Hawai?i State Constitution and HRS § 607-25 (Supp. 2002).

Details of the argument schedule are posted here (the site notes the arguments will be held on "Thursday" October 13, but I assume that's a typo).

Requesting cert review by the Hawaii Supreme Court of an ICA decision is a bit different than asking the U.S. Supreme Court to take your case. Like that process, the Hawaii procedure asks the court for discretionary review, but it is not called a "petition" but an "application," and the application is either "rejected," "dismissed," or "accepted" under the standards established by Haw. Rev. Stat. § 602-59. Unless the court orders additional briefing, none is submitted, and the decision is made by review of the record, the briefs filed in the ICA, the ICA's decision, the application briefs, and oral arguments.

The procedures and the short time frame make it difficult for amici to participate meaningfully in these cases, which by their nature are cases of public importance. Amici have little time after an application is filed to muster support or opposition, so almost must know ahead of a filing whether a decision is certworthy and that an application is forthcoming. In other words, you really need to have your fingers on the pulse in order to get full briefing to the court.

Full post as published by inversecondemnation on September 28, 2009 (boomark / email).