Real Estate & Property Law

Nollan/Dolan in Federal Court Challenge to Maui's "Affordable Housing" Exaction Scheme

By rht

The plaintiff property owner has filed a motion for partial summary judgment in the federal court challenge to Maui County's "affordable housing" requirement.  Kamaole Pointe Development LP v. County of Maui, Civ. No. CV07-00447 DAE LEK (filed Feb. 28, 2008). 

The Maui ordinance, enacted last year, imposes a 40% to 50% affordable requirement on new housing developments.  I posted on the case earlier here (contains a link to the complaint), and analyzed the legal problems with the ordinance under state law here . 

The plaintiff's motion is posted here (1.5mb pdf).  It asks the court to declare the ordinance unconstitutional on its face 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.  See this post for more on the nexus analysis. 

[Disclosure: I presented testimony against an earlier version of the ordinance.]

Full post as published by inversecondemnation on February 29, 2008 (boomark / email).