Thursday, September 6, 2007

Unsuccessful Due Process Challenge to BLNR Rules

In Waimea Bay Assocs. One, LLC v. Young, 438 F. Supp. 2d 1186 (D. Haw. 2006), Plaintiff challenged the validity of Board of Land and Natural Resources (“BLNR”) rules on the ground that there is no rational basis for allowing permit applications for the construction of single family residences within floodplains and coastal high hazard areas, but not within other areas of the Limited subzone. Therefore, the rule (HAR § 13-5-23(L-6)) violates the equal protection clause of the 14th Amendment of the U.S. Constitution. The Hawaii federal district court denied Plaintiff’s claim.

This case provides a clear roadmap for due process challenges as follows:

“The Equal Protection Clause of the Fourteenth Amendment commands that no State shall “‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike.” “An equal protection attack on zoning will typically focus on whether the differential treatment is rationally related to the advancement of some legitimate police power objective.” States and counties generally have broad discretion when it comes to the enactment of land use and zoning laws and regulations.

“Equal protection is not denied simply because an ordinance treats one class of persons differently from another. Where there is no suspect classification, and purely economic interests are involved, a municipality may impose any distinction which bears some ‘rational relationship’ to a legitimate public purpose. . . . Courts consistently defer to legislative determinations as to the desirability of such distinctions. . . . The ordinance will be upheld so long as the issue is ‘at least debatable.’"
. . .
Rational basis review is a two-step process. The court determines (1) whether the challenged classification serves a legitimate government purpose and; (2) if so, whether the discriminatory classification is rationally related to the achievement of that legitimate purpose.

Id. at 1189 (citations omitted.)

The court held the rule at issue was not facially unconstitutional under the equal protection clause of the 14th Amendment of the U.S. Constitution on its finding that that (1) the state had a “legitimate interest in enacting land use laws and in establishing a conservation district,” and (2) the rule is rationally related to the land use policies discussed by the court including the conservation of important natural resources of the State and the promotion of public health, safety, and welfare.

The Supreme Court in Lingle v. Chevron held that the “legitimate state interest” inquiry is not the appropriate test for determining whether a regulation effects a Fifth Amendment taking. The above case reminds us of the proper place for the “legitimate state interest” inquiry.

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