Saturday, October 17, 2009

On Appeal

Two interesting land use cases will be heard by the Hawaii appellate courts in the coming months.

The first case is Unite Here! Local 5 v. City and County of Honolulu. Petitioners Keep the North Shore Country and Sierra Club, Hawai‘i Chapter's application for writ of certiorari, filed September 8, 2009, was accepted by the Supreme Court on October 13, 2009 and will be scheduled for oral argument. The Supreme Court will consider whether a 20 year old EIS document prepared under the Hawaii Environmental Policy Act should be supplemented, if the proposed project were developed today. The Intermediate Court of Appeal's ("ICA") held that a supplemental EIS was not required because the proposed project analyzed in the EIS did not change. For a complete summary and analysis of the ICA decision, see Appellate Court Issues Opinion in Turtle Bay EIS Case.

The second case is Maunalua Beach Ohana v. Hawaii. In that case, the ICA will determine whether the circuit court properly granted Plaintiffs' partial summary judgment motion. Plaintiffs' motion argued that Act 73 was unenforceable under the Hawaii Constitution unless and until the State pays just compensation to Plaintiffs. The Plaintiffs' motion also sought an injunction forbidding the State from asserting ownership or control over the affected property and from enforcing Act 73. Act 73 (2003), amended various statutes to provide that (1) owners of oceanfront lands could no longer register or quiet title to accreted lands unless the accretion restored previously eroded land, (2) only the State could register or quiet title to land accreted along the ocean, and (3) accreted lands not otherwise awarded would be "public lands." The ICA will hear oral argument on Thursday, November 10, 2009 - 9 a.m.

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