Climate Change Office on City's Budget Agenda

The City & County of Honolulu is considering the Mayor’s proposed budget.

The Mayor’s budget includes staff and funding for the Office of Climate Change, Sustainability, and Resiliency that was created by voters in the recent City Charter amendment process.  

The agenda for next Tuesday’s Special Budget Committee meeting has been posted.  Click on Bill 25 (agenda item #5) to view the budget request.  The agenda includes information on how to submit testimony.  I used the electronic option.  Here is what I sent:

Dear Chair Manahan and Committee Members:

Please support the budget request of the Mayor regarding the staffing and funding for the Office of Climate Change, Sustainability, and Resiliency.

As you know, the voters of Oahu overwhelmingly approved amending the City Charter to create the Office. Serving as the initial chair for the Charter Commission, one of the first substantive issues for consideration brought before the Commission was the impact of climate change on the people of Oahu.

Experts on the matter from the University of Hawaii showed how Hawaii will be uniquely impacted by climate change. The issue is not only sea-level rise, which is easy enough to observe for people who grew up in the islands, but also the following:

• Recorded warming air temperature in Hawaii has quadrupled in the last 40 years,
• Hawaii has seen an overall decline in rainfall in the last 30 years,
• Sea surface temperatures have warmed, and
• Global ocean acidity has increased by 30 percent.

These local impacts are stressing the ability of our environment to protect us from storm events, to feed us, and to keep us healthy. It is killing our reefs and eroding our beaches, which support our number one economic engine, tourism. The future is bleak, unless we take actions to understand the threat, address our weaknesses and strengths, and begin to strategically invest in making our communities resilient in a post-climate change future.

The issue of climate change is multidimensional, and will require a coordinated effort across agencies, programs, and branches of government. The Office of Climate Change, Sustainability, and Resiliency is intended to serve that purpose and should be given the resources it needs to accomplish this important task. If done right, the work of the Office will undoubtedly benefit current and future generations.

Thank you for your consideration and your difficult task of preparing our City’s budget.

Mahalo,
Jesse K. Souki

ICA Holds that Denial of SMA Permit Assessment is Ripe for Takings Claim without First Pursuing Plan Amendment

In Leone v. County of Maui, 128 Haw. 183 (2012), cert. denied, Appellants purchased property at Palauea Beach in Makena, Maui.

Palauea Beach Facing South

The 1998 Kihei-Makena Community Plan (Community Plan) assigned the beach lots a "park" land use designation, which does not permit the construction of single-family residences.  The Palauea Beach lots are also located in a "special management area" (SMA) under the Hawaii Coastal Zone Management Act (CZMA).  See HRS § 205A-22. Consequently, prior to building Appellants' desired single-family residences, they first needed to seek a Community Plan amendment from "park" to "residential."

A Community Plan amendment is a legislative process that involves review of the proposal by the County Planning Commission and adoption by the County Council. However, the County Planning Commission refused to accept the requisite environmental assessment, which the court found was part of a “deliberate strategy to preserve the status quo.”

Appellants nevertheless filed SMA assessment applications with the County Planning Department. Predictably, the Director rejected Appellants' applications, because the proposed use was inconsistent with the properties' "park" designation in the Community Plan. Appellants then filed inverse condemnation claims under article I, § 20 of the Hawaii Constitution and the Fifth and Fourteenth Amendments to the United States Constitution, alleging that Maui County had engaged in regulatory takings by depriving their properties of any economically viable use.

The Circuit Court dismissed all claims in both cases for lack of subject matter jurisdiction on ripeness grounds. It concluded that the claims were unripe for adjudication, because Appellants failed to exhaust administrative remedies, namely: (1) appealing the Director's decision to the Planning Commission; (2) waiving assessment procedure and submitting an SMA permit application; and (3) seeking an amendment to the Community Plan to change the properties' designation from "park" to "residential."

Appellants timely filed notices of appeal to Hawaii’s Intermediate Court of Appeals (ICA). Upon review, the ICA opined the following:

• Appellants are not required to appeal the Director's decision that their assessment application could not be processed because "[t]he proposed Single-Family dwelling is inconsistent with the Community Plan." The Director's decision satisfied the finality requirement for ripeness by setting forth a definitive position regarding how Maui County will apply the regulations at issue to the particular land in question.
• Appellants are not required to seek a change in the applicable law, i.e., the Community Plan, in order to satisfy the ripeness requirement for their takings claims. Citing Williamson Cnty. Reg'l Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 186 (1985), the ICA reasoned that the taking was ripe in this case, because the Director reached a final decision regarding the application of the SMA regulation to the property at issue. Unlike in Williamson, the Appellants did not have a variance process to pursue.  The Court did not agree with the County's argument that an amendment to a Community Plan is like the variance process in Williamson.  In Williamson, the court held that the takings claims were unripe, because the respondent failed to seek available variances, and thus the decision was not final

In conclusion, the ICA held that the Circuit Court erred in its determination that it lacked subject matter jurisdiction, because Appellants' claims were not ripe for adjudication. The ICA vacated the Circuit Court's order and remanded the case for for further proceedings.

Government's Role in Land Use Development

Slide from recent sustainability workshop partially funded by the EPA.

Green Building Legal Issues

Green Building Legal Issues on the Horizon is a free webinar that discusses legal issues and regulatory challenges caused by green building requirements.

The presentation discusses a Marlyland case where Shaw Development sued a building developer who failed to achieve LEED Silver certification in a design-bid-build contract for a condominium development. The presentation also discusses green building mandates, the problem with obtaining surety bonds for guaranteeing green building compliance, cases where the insurance industry refused to insure "green roofs," and green defects, a subset of construction defects.

In Hawaii, counties are considering green mandates for private projects and the State land use commission has mandated LEED compliance as a condition of granting a district boundary amendment.

Maui County Council Proposes Anti-Mixed Use Zoning Bills

The Maui County Council recently proposed two bills that would remove mixed use zoning from the hotel and industrial districts.

According to Wikipedia, "[t]hroughout most of human history, the majority of human settlements developed as mixed-use environments. [...] This historical mixed-used pattern of development declined during industrialisation in favor of large-scale separation of manufacturing and residences in single-function buildings." The idea of mixed use zoning has come full circle. Today, mixed use planning has made a comeback in the form of smart growth. For example, the American Planning Association has developed various smart growth model zoning codes with the aim of "encourag[ing] a mix of uses, the preservation of open spaces and environmentally sensitive areas, a range of housing types and transportation options, and predictable development review processes."

The Maui bills depart from the current smart growth trend. The first bill eliminates residential and apartment uses in hotel districts. The second bill eliminates business and apartment uses in the industrial district.

The Maui Planning Commission must make a recommendation to Council before Council may act on the proposed bill. Resolution No. 09-21 containing a Draft Bill to Amend Section 19.14.020 of the Maui County Code relating to eliminating the stacking of Residential and Apartment uses in the Hotel District will be heard by the Maui County Planning Commission on June 23, 2009. See agenda.

One Who Deals With Government Agents Assumes the Risk that the Agents Act within the Bounds of Their Authority

The Maui Vacation Rental Association’s (“MVRA”) members, who operate transient vacation rentals (“TVRs”), were assured by a previous Maui County administration that they could continue to operate their TVRs without seeking permits required under county law until the County adopted new TVR regulations.  Years later, Council had not adopted new TVR regulations, illegal TVRs proliferated, and the new administration decided to enforce the law as it received complaints from neighbors affected by the illegal TVR operations. 

The MVRA sued the County of Maui in US District Court.  See Federal Suit Filed Against Maui County to Stop it from Enforcing TVR Zoning Laws.  MVRA lost its District Court suit and appealed to the 9th Circuit Court of appeals.  See Maui Transient Vacation Rental (“TVR”) Suit Dismissed in Federal Court.

On December 10, 2008, the 9th Circuit issued its decision in Maui Vacation Rental Association vs. County of Maui, ruling in the County’s favor.  See Unpublished Memorandum.  The MVRA appealed the “the district court’s dismissal (without leave to amend) of its 42 U.S.C. § 1983 due process claim, and its equitable estoppel claim[.]”

Regarding its due process claim, the court held that “[t]he district court properly dismissed MVRA’s claims, because MVRA cannot prove a set of facts in support of its claims that would entitle its members to relief.”  The basis for its decision was the principle that “property interests arise only when the state law ‘truly ma[kes] [conferral of the benefit] mandatory.’”  Therefore, even if MVRA properly raised its “official assurances” argument, MVRA could not cite any Hawaii case or statutory law that supports a legitimate claim to its asserted entitlements; i.e., “that its members have both (1) the right to operate transient vacation rentals (“TVRs”) without required permits while Maui County processes permit applications and (2) the right to have Maui County indefinitely maintain its enforcement by complaint policy.”

Regarding MVRA’s estoppel claim, the court started with the definition of equitable estoppel as articulated in Life of the Land, Inc. v. City Council of City & County of Honolulu, 606 P.2d 866, 902 (Haw. 1980); i.e., “[e]quitable estoppel protects a developer’s change of position resulting from a ‘substantial expenditure of money in connection with his project in reliance . . . on official assurance . . . that necessary approvals will be forthcoming in due course, and he may safely proceed with the project.’”  In this case, the court held that MVRA members did not receive “official” assurances under Hawaii law, because “(1) government agents ‘must act within the bounds of their authority,’ and ‘one who deals with [government agents] assumes the risk that [the agents] are so acting’”, and (2) “MVRA members operating TVRs without permits were on notice that their conduct was unlawful and that Maui County retained discretionary authority to enforce the permit requirement.”

Penn Central Analysis Applies to 12-inch Pipe Upgrade Ordinance; Takings Did Not Apply where Landowner Agreed to Improvments

Tapps Brewing Inc v. City of Sumner, No. 07-35231, (9th Cir. 2008).

This case involves an issue of first impression for the 9th Circuit regarding which 5th Amendment takings analysis should apply to a land use ordinance, Penn Central or Nollan/Dolan?

Facts.  At issue before the court were two different upgrades, which the court considered separately:  Ordinance 1603 requiring that all new developments include a minimum of 12-inch storm pipe, and the City’s request that the McClungs install a 24-inch pipe.  In 1995, Daniel and Andrea McClung (the “McClungs”) sought to develop property they owned in the City of Sumner (the “City”), Washington, and learned that their underground storm drain pipe did not meet the City’s requirement for new developments to include pipes at least 12 inches in diameter.  The City Engineer offered to waive certain fees in exchange for the McClungs installing a 24-inch instead of 12-inch pipe.  The McClungs revised their development plans accordingly, which was then approved.  Despite voicing no objection to the 24-inch pipe installation, the McClungs assert that the City’s request effected an illegal taking of their property.

Question Presented.  The question before the 9th Circuit was as follows:

[W]hether a legislative, generally applicable development condition that does not require the owner to relinquish rights in the real property, as opposed to an adjudicative land-use exaction, should be reviewed pursuant to the ad hoc standards of Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978), or the nexus and proportionality standards of Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994).

Holding.  Regarding Ordinance 1603, “the facts of this case involve neither an individual, adjudicative decision, nor the requirement that the McClungs relinquish rights in their real property”; therefore, “the Penn Central analysis applies to the 12-inch pipe requirement.”  As for the installation of the 24-inch pipe, “the McClungs voluntarily contracted with the City to install the 24-inch pipe and thus the installation of that pipe was not a “taking” by the City.”  The court did not consider the City’s request in the taking’s context, because “the McClungs impliedly contracted to install a 24-inch pipe.”

Jurisdiction.  Aside from the ruling on the merits of the case, the court also had something interesting to say about its jurisdiction to hear the case.  The court found jurisdiction to hear this 5th Amendment case not on the standard articulated in Williamson, but on so called “prudential” grounds, which it described as follows:

We need not determine the exact contours of when takings claim ripeness is merely prudential and not jurisdictional.  In this case, we easily conclude that the facts presented raise only prudential concerns. The McClungs installed the storm pipe over ten years ago, resulting in a clearly defined and concrete dispute. See Thomas, 220 F.3d at 1139 (stating that Article III ripeness requires the court to analyze whether the “alleged injury is too ‘imaginary’ or ‘speculative’ to support jurisdiction”). Because this case raises only prudential ripeness concerns, we have discretion to assume ripeness is met and proceed with the merits of the McClungs’ takings claim. Accordingly, we do not resolve whether this claim is ripe under the standards articulated in Williamson, and instead assume without deciding that the takings claim is ripe in order to address the merits of the appeal.

Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), held that takings claims are not ripe for federal court adjudication until a state fails “to provide adequate compensation for the taking.”

No More Sunset Weddings without a Permit

The Maui News reports,

Commercial wedding coordinators who want to arrange ceremonies on state beaches will be required to obtain right-of-entry permits from the Department of Land and Natural Resources starting Aug. 1.

(See, Harry Eagar, Not without a permit.)

This is not surprising news since lands makai of the certified shoreline are within state jurisdiction and held in public trust by the state. The public trust doctrine allows the public to use this area for recreational and gathering/fishing. These rights are protected under the state constitution as interpreted by Hawaii’s Supreme Court.

However, when it comes to commercial uses, as in the cases reported by the Maui News, the use of lands between the certified shoreline and state marine waters require permission (e.g., right of entry agreement) from the state. Other permissions may be required for certain uses within the shoreline area including county special management area permits, shoreline setback permits, and/or state conservation district use application approval.

LEED Isn't the Only Game in Town

As I wrote previously, the City and the state Office of Planning's attempts to impose mandatory LEED standards on residential homes is not a well thought policy. (See, Proposed LEED Mandate Fails, Working Group Created to Investigate Issue, City and County of Honolulu to Require All New Buildings to be LEED Platinum Certified by 2014, and Energy Efficiency Building Requirements: Hawaii’s Regulatory Maze.)

Most would agree that the policy goal of reducing our energy consumption is good, if not necessary, for society, but importing a third party rating system from abroad, untailored to the specific needs and restraints of Hawaii's unique market and environment would miss the mark and add to housing costs.

If LEED is imposed, it should be tailored to Hawaii with the input of stakeholders and the community and with incentives to help defray implementation costs. But more importantly, policymakers should consider incorporating other green building programs or other energy saving measures unique to Hawaii.

In the following quote from KHNL News, John Bendon of Green Building LLC talks about a home on Maui that is LEED Gold certified:

Yes, this is a $2.4 million home but Bendon says it's not that costly for an average home to go just as green.

He says to get a solar water heater, use energy efficient appliances and lighting and reduce your need for air conditioning.

"You can plant trees in the proper place. You can put a radiant barrier on your roof and reduce the heat gain in the attic," said Bendon.

Project leaders say they are simple concepts that, like the Good Home, can show what can be done today, and what may be done tomorrow.

There are two other green ratings systems in Hawaii - Energy Star and Hawaii BuiltGreen. LEED is the most stringent and is affiliated with the United States Green Building Council.

Source: Mari-ela David, Green Maui Home Gets National Attention, May 14, 2008, available at http://www.khnl.com/Global/story.asp?S=8319959.

SCOTUS Opines on Facial Challenge to Washington State Election System Statute: How this Opinion May Affect Unconstitutional Land Use Statutes

On March 18, 2008, the U.S. Supreme Court validated Washington State’s primary election system, holding that the voting law does not on its face impose a severe burden on political parties’ associational rights, and that respondents’ arguments about voter confusion can be evaluated only in the context of an as-applied challenge. Washington State Grange v. Washington State Republican Party, (Nos. 06-713 and 06-730), March 18, 2008.

In its opinion, the Court concisely stated the underlying law and issues that a court must consider when determining the validity of a facial challenge to a statute. The following is the relevant excerpt from the case (citations omitted):

[A] plaintiff can only succeed in a facial challenge by “establish[ing] that no set of circumstances exists under which the Act would be valid,” i.e., that the law is unconstitutional in all of its applications. While some Members of the Court have criticized [this] formulation, all agree that a facial challenge must fail where the statute has a “ ‘plainly legitimate sweep.’ . . . In determining whether a law is facially invalid, we must be careful not to go beyond the statute’s facial requirements and speculate about “hypothetical” or “imaginary” cases. . . . Exercising judicial restraint in a facial challenge “frees the Court not only from unnecessary pronouncement on constitutional issues, but also from premature interpretations of statutes in areas where their constitutional application might be cloudy.”

Facial challenges are disfavored for several reasons. Claims of facial invalidity often rest on speculation. As a consequence, they raise the risk of “premature interpretation of statutes on the basis of factually barebones records.”. . . Facial challenges also run contrary to the fundamental principle of judicial restraint that courts should neither “‘anticipate a question of constitutional law in advance of the necessity of deciding it’ ” nor “ ‘formulate a rule of constitutional law broader than is
required by the precise facts to which it is to be applied.’ ” . . . Finally, facial challenges threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution. We must keep in mind that “‘[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people.’”

The Court’s analysis does not depart from precedent and is instructive when arguing that a particular land use statute is unconstitutional on its face. For example, if a land use law is drafted such that it would effect an unconstitutional taking in all its applications, then that statute is invalid on its face. This means that an affected party would not need to wait until he is harmed by the statute before he can bring a suit. This is particularly relevant in the recent challenge to Maui’s Residential Workforce Housing Policy which I discuss here. That ordinance begs the question: Can a 50 percent uncompensated taking of private property without any supporting nexus study ever be constitutional in light of the 5th Amendment?

Maui County Council Proposes Moratorium on Timeshares

Another moratorium proposed by Councilmember Jo Anne Johnson, this time the subject is time shares. She has proposed several moratoriums in the past including one for development of agricultural land which I wrote about here and here.

At the Council’s March 7, 2008 meeting, the Council considered Communication No. 08-72, Councilmember Johnson, Transmitting a Proposed Resolution Entitled "Urging the Administration to Suspend the Issuance of Permits for Time Share Projects for One Year." The proposed moratorium is a resolution, so it needs one reading of full council and is not binding on the administration. The moratorium resolution was forwarded to the council’s Planning Committee for further consideration.

Time shares are regulated by state law under HRS Chapter 514E. A time share plan is defined as a plan or program in which the use, occupancy, or possession of one or more time share units circulates among various persons for less than a 60-day period in any year, for any occupant. In Maui County, time share plans are only allowed in (i) the hotel district or (ii) as a non-conforming use in other districts if in existence prior to the passage of MCC section 19.37.010.

Despite the simple zoning limitations for time shares, this particular use is a point controversy for the county, which views the flourishing of time shares as a vehicle for the movement of new residents to Maui. It perceives this in-migration as a threat to "Maui culture." In addition, time shares are often confused with bed and breakfasts or transient vacation rentals which I discussed here. These three very different uses are conflated during policy discussions concerning zoning regulation.

As with other moratoria proposed by Councilmember Johnson, this one will likely not pass council. Generally, moratoria are blunt legislative instruments that fail to address underlying issues or resolve any concerns in a meaningful, productive way.

The E.L.F. Burns Down Eco Friendly Homes in Washington State: Homes Not Green Enough?

When are environmental building standards not good enough to mitigate our impact on the environment? The Environmental Liberation Front, or ELF, has taken the debate to new lows by burning down several eco friendly homes in Washington State. It appears, from the sign it left at the scene of the crime (see below), that ELF doesn't agree with a Snohomish County ordinance which allows landowners more building density per lot in exchange for preserving wetland, wilderness or other open space.

It's a generally accepted principle of sustainable planning that density is better for the environment than sprawl. Among other things, it encourages more efficient use of space, makes processing of waste-water and solid wastes more efficient, it provides a better platform for recycling programs, and it provides a canvas for walkable communities and a variety of inter-modal transportation options. Density bonuses in exchange for preservation is an excellent way to encourage landowners to preserve open green spaces and minimize a project's footprint on the environment.

An excerpt from the Seattle P.I.:

Monday's arsons threw into high relief a simmering debate over how eco-friendly "sustainable" design really is. Though homes featured in last year's Street of Dreams were intentionally built with a smaller footprint -- about half the size of the 8,000-square-foot homes featured in previous years -- some neighbors said even eco-friendly materials, decreased water consumption, and lower heating bills can harm the environment.

The five showcase homes were the first completed as part of a 100-acre rural cluster development, or RCD, with about 50 homes called Quinn's Crossing. Per the cluster formula, Snohomish County allows more density per lot in exchange for preserving wetland, wilderness or other open space. The rest of the site was rural and woodsy,
broken only by meandering trails.

The arsonists made an apparent mocking reference to Quinn's Crossing in its message left at the scene: "McMansions + RCD's R not GREEN.

Full article at http://seattlepi.nwsource.com/local/353498_arson04.html.

Proposed LEED Mandate Fails, Working Group Created to Investigate Issue

Bill 87, introduced by Councilmember Donovan Dela Cruz, which would require all new buildings on Oahu to be LEED Platinum certified by 2014, failed to pass the Council according to the Honolulu Advertiser.

As I discussed in City and County of Honolulu to Require All New Buildings to be LEED Platinum Certified by 2014, Bill 87 is painfully lacking forethought. For one, LEED is one of MANY ways to achieve an environmentally, low impact building. But the bill mandates just one tool from a plethora of options. Second, other municipalities have passed similar bills, but not until they revised some of the requirements of LEED, or tailored a policy that fits their community and market. Third, successful programs include incentives and flexibility for obtaining the objective. Command and control mandates are doomed to fail.

The underlying policy of the bill is laudable and could enjoy wide support if properly drafted after input from stakeholders. This bill lacks vision and sophistication. A working group is an excellent start to formulating a policy that works.

Kauai County Affordable Housing Bill Becomes Law

Bill 2202, Housing Policy for the County of Kauai, (which I wrote about here) took effect as of December 10, 2007, as Ordinance No. 860, without the mayor's signature.

The Ordinance imposes buyer and price restrictions on residential and resort projects when developers seek any of the following county entitlements: State Land Use District Boundary Amendments (15 acres or less), Zoning District Boundary Amendments, amendments into the Visitor Destination Area, subdivision, zoning permits, and building permits.

Resort projects are broadly defined to include “a project that primarily provides accommodations for transient vacation rentals, including, but not limited to, hotel rooms, multiple-family dwellings, time share units or single-family dwellings, which project area also contains tourist-oriented commercial or recreational facilities, support services or amenities, including, but not limited to, restaurants, bars, shops, spas, golf courses, or other attractions or services, that may generate a need for workforce housing for employees.”

The standard exaction requires that 30 percent of a residential project must be sold at affordable prices. This may be offset by mixing units within the project, building single family units, building affordable rentals, etc. Density bonuses, waiver of certain development fees, and permit fast tracking is offered by the County.

No appeal administrative mechanism is provided to challenge the exaction which is ultimately facilitated by the County Housing Agency.

For more on affordable housing measures in Hawaii, see my Affordable Housing page.

U.S. 9th Cir. Court Holds that City and County of Honolulu Eminent Domain Contracts are Enforceable

On January 14, 2008, the U.S. 9th Circuit Court issued an opinion in Matsuda v. City and County of Honolulu, No. 06-15337 (9th Cir. 2008) which addressed the following question: Can the City repudiate a contract to convey property to a private citizen in connection with its leasehold conversion program under Chapter 38, ROH? The crux of the Court's analysis was whether the City and the Lessees at Discovery Bay could enter into a valid contract for eminent domain. The Circuit Court's answer was, yes.

In short, Appellants/Lessees applied to the City under Chapter 38, ROH, to convert their leasehold interests at Discovery Bay into fee simple interests in their units and the appurtenant land. Upon receipt of the Lessees’ application, the City entered into individual written contracts with each Lessee. However, before the contract could be acted on, Chapter 38, ROH, was repealed.

The lower court dismissed Lessees appeal on the ground that a contract between the City and Lessees was unenforceable under the reserved powers doctrine. However, the Circuit Court disagreed, holing that a contract did exist and that it was enforceable.

Therefore, the lower court’s decision was vacated and the case remanded to the lower court so that it could rule on Lessees’ due process and contracts clause claims.

What does a 24-story family home for six with three helipads and a 168-car garage, and the Three Gorges Dam project in China have in common?

Both projects are seeking, and will likely obtain, green building certification under LEED according to a recent article from Slate at http://www.slate.com/id/2180862/.

This is another reason why the arbitrary requirement of LEED certification for private structures, considered by some Hawaii lawmakers, is a bad idea as I previously discussed here.

Maui Transient Vacation Rental (“TVR”) Suit Dismissed in Federal Court

Today the Maui News reported that the vacation rental suit I discussed here, here, and here, was dismissed in federal court.

It appears that most of the Plaintiffs’ claims were dismissed; however, the court will allow Plaintiffs to amend the counts alleging equal protection violations under the 14th Amendment of the U.S. Constitution. The Plaintiffs will need to show that they were intentionally treated differently from others similarly situated and that there is no rational basis for such treatment. Equal protection cases in the land use entitlement arena are relatively new, but a recent U.S. Supreme Court decision gave landowners the go-ahead to challenge municipal land use decisions based on equal protection grounds. (See Village of Willowbrook v. Olech, S. Ct. 2000.)

Given the unusual, seemingly irrational approach the County has taken in allowing or denying TVR’s, the Plaintiff’s may have some ammunition to move forward.

West Maui Development Moratorium Bill Scheduled for Hearing on December 18, 2007

Councilmember Johnson introduced a moratorium on development for West Maui agricultural land (e.g., Lahaina and Ka’anapali) until such time as the West Maui community plan is enacted. As I discussed in Maui County Council Invokes the "M" Word, moratoriums are blunt instruments that dance on the edge of legality.

In the October 22, 2007 draft, “development” is defined as subdivision, discretionary approvals under the zoning code, and building permits. The bill exempts Hawaiian Homes projects and affordable housing projects.

There are a few weaknesses in the bill besides the nature of moratoriums. First, Hawaiian Homes are generally exempt from most local zoning, so that’s not a surprise, but why exempt affordable housing projects? Affordable housing projects have the same effect on the cited concerns in the bill including impacts on traffic, water, and the environment. In fact, affordable housing projects may have a greater impact since those projects tend to be denser, multi-family projects.

Second, the bill prohibits development on agricultural lands, which are defined as lands zoned agriculture in the County of Maui. Sure, there are landowners who brave the tedious requirements implicit in an agricultural subdivision, but most landowners take the safer route and have the property reclassified as state urban first, then seek rezoning. In those circumstances, the improvements would not occur on agricultural land. Granted, zoning ultimately lies with the county council; however, it would have no legally permissible reason to deny zoning to a project with conditions if it were reclassified as state urban.

Thrid, the moratorium would end with passage of the community plan, which has already suffered from delay. There is no telling when the community plan will be enacted. That uncertainty could have a negative impact on land values in West Maui which already is, or soon will be, suffering the downward swing in the real estate market and the impending recession.

The Maui moratorium bill was forwarded to the Council Planning Committee under County Communication No. 07-299, item number PC-27. It is scheduled for a committee vote on December 18, 2007. The committee may recommend passage with or without revisions.

City and County of Honolulu to Require All New Buildings to be LEED Platinum Certified by 2014

Bill 87, introduced by Councilmember Donovan Dela Cruz would require all new buildings to be LEED Silver certified by 2010, LEED Gold certified by 2012, and LEED Platinum certified by 2014. Presently, Revised Ordinances of Honolulu § 2-9.3 (2006), requires only county buildings to implement LEED Silver if doing so is not “infeasible or inappropriate.”

As I discussed in Energy Efficiency Building Requirements: Hawaii’s Regulatory Maze, private developments are already subject to myriad energy efficient building requirements, mostly through building codes adopted by the counties based on state energy efficiency requirements. Bill 87 would add one more layer of regulation which is not based on any study or analysis. Some questions that come to mind are (1) how does Bill 87 fit the exiting regulatory scheme in Hawaii, (2) whether the proposed legislation, which is an off-the-shelf ordinance used in a few other municipalities, will fit Hawaii’s market (i.e., cost of implementing the highest LEED certification, availability of building material, impact of higher building costs on affordable housing, et cetera), and (3) whether it is wise to export legislative drafting and compliance standards to the private mainland organization (USGBC) which owns the rights to the LEED standard.

On December 12, 2007, Bill 87 unanimously passed first reading and was referred to the committee on planning and sustainability (Gary H. Okino, Chair; Romy M. Cachola, Vice Chair; Todd K. Apo, Member; Ann H. Kobayashi, Member; and Rod Tam, Member).

Maui County Council Invokes the "M" Word

Oops she did it again! Council Member Jo Anne Johnson introduced a moratorium bill like she did in 2002. The bill is not yet available at the Council's web site, but today's Pacific Business News reports that the bill would "halt new development in the [West Maui] region, particularly agricultural subdivisions."

Rarely legal, with much scrutiny from courts, a moratorium on development bill usually stops development for a specific period of time, in a specific area, for a public purpose; for example, a one year moratorium in a community plan region until the community plan goes into effect at a specific date certain.

However, even if a moratorium meets judicial scrutiny, its a blunt, unwieldy tool that raises complex and potentially expensive issues for the counties based on estoppel and vested rights claims by landowners.