Robert Thomas
Robert Thomas
Robert Thomas

BY ROBERT THOMAS – Here are the merits briefs in an important case set for argument later this month in the Hawaii Supreme Court.

The litigation is a series of two lawsuits that originated in state court in the Third Circuit (Big Island), one an original jurisdiction civil rights lawsuit, the other an administrative appeal.

The essence of the plaintiff’s allegations is that the State Land Use Commission wrongfully amended the land use boundaries from urban to agriculture.

Many years earlier, the LUC had amended the boundary to urban on the condition that the owner provide a certain number of affordable units by 2006.

In 2008, the developer had not done so and the LUC ordered it to show cause why the land classification should not revert to agricultural.

The State removed the civil rights lawsuit to U.S. District Court in Honolulu and promptly moved to dismiss, and this is the matter now before the Ninth Circuit.

In the administrative appeal, the state court smacked the LUC pretty hard, and issued issued an order vacating the LUC’s reclassification. The court concluded the LUC exceeded its statutory authority, and violated the developers’ due process, fifth amendment, and equal protection rights. That’s the ruling now on appeal in the Hawaii Supreme Court. More background on the case here.

This appeal was transferred from the Intermediate Court of Appeals (hence the ICA caption on the briefs). Under Hawaii’s appellate rules, after the briefs are filed, a party may ask that the appeal be moved from the ICA to the Supreme Court, thus skipping one level.

Here is the summary of the issues to be argued, from the Judiciary web site:

This appeal arises out of a dispute over the classification of approximately 1,060 acres of land in Waikoloa on Hawai`i Island. In 1989, the land was reclassified from the agricultural land use district to the urban land use district in order to allow for the development of a residential community.

The land was reclassified subject to the condition that at least 60 percent of the units be for affordable housing. Over time, the land changed hands several times and the Land Use Commission (LUC) amended the affordable housing condition.

By 2005, the condition required Bridge Aina Le`a (Bridge) to construct no fewer than 385 affordable housing units, provide certificates of occupancy for all of these units by November 17, 2010, and submit a joint venture agreement and mass grading contract no later than November 17, 2006.

In December 2008, the LUC issued an order to show cause why the land should not revert to the former agricultural land use classification. The LUC stated that it had reason to believe that Bridge and its predecessors in interest had “failed to perform according to the conditions imposed and to the representations and commitments made to [the LUC] in obtaining reclassification of the Subject Area and in obtaining amendments to conditions of reclassification.” The LUC specifically cited the affordable housing condition in the order, among others.

Early in 2009, Bridge informed the LUC that it intended to assign its interest in the land to DW Aina Leʻa Development (DW) through an installment sale. After proceedings over the course of several years, the LUC issued an order reverting the land to the agricultural use district. Bridge and DW each appealed and their cases were consolidated.

The Circuit Court of the Third Circuit issued findings of fact, conclusions of law, and an order reversing and vacating the LUC’s order. The circuit court concluded that the LUC: (1) exceeded its statutory authority and violated HRS chapter 205; (2) violated HRS §§ 205-4(h), 205-17, and 205-4(g); (3) violated HRS chapters 91 and 205 and HAR chapter 15; and (4) violated Bridge’s and DW’s due process and equal protection rights.

On appeal, the LUC raises the following three points of error. First, the LUC asks whether the circuit court erred in equating the reclassification process set forth in HRS § 205-4(a) (Supp. 2012) with the reversion process set forth in HRS § 205-4(g) (2001).

Second, the LUC asks whether the circuit court erred in considering matters not part of the record in violation of HRS § 91-14(g) (2012) and HRS § 91-9(e) (2012). Third, the LUC asks whether the circuit court erred in determining in an agency appeal that the LUC and individual commissioners violated Bridge’s and DW’s constitutional rights to equal protection and due process.

We’ve been covering the briefs and oral arguments in the related Ninth Circuit appeal (including the panel’s request for supplemental briefing about Williamson County ripeness), and last week, just two days after arguments in that appeal, the panel said that it would wait for the outcome in the Hawaii court.

What makes this interesting is that during arguments, one of the Ninth Circuit judges noted that the Hawaii Supreme Court has “the more interesting case,” and “that I have to say, as I read Judge Strance’s decision [the Hawaii trial judge], you guys [the plaintiffs] were right about ten ways from Sunday. If you lose this case, I’ll be astounded.” Oral Argument recording at 28:45.

We’ll have a better idea in a couple of weeks whether the Hawaii Supreme Court agrees. Stay tuned.

– See more at: http://www.inversecondemnation.com/inversecondemnation/2014/06/hawsct-briefs-in-bridge-aina-lea-takings-state-land-reclassification-and-orders-to-show-cause.html#.dpuf

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Robert H. Thomas is one of the preeminent land use lawyers in Hawaii. He specializes in land use issues including regulatory takings, eminent domain, water rights, and voting rights cases. He has tried cases and appeals in Hawaii, California, and the federal courts. Robert received his LLM, with honors, from Columbia Law School where he was a Harlan Fiske Stone Scholar, and his JD from the University of Hawaii School of Law where he served as editor of the Law Review. Robert taught law at the University of Santa Clara School of Law, and was an exam grader and screener for the California Committee of Bar Examiners. He currently serves as the Chair of the Condemnation Law Committee of the American Bar Association’s Section on State & Local Government Law. He is the Hawaii member of Owners’ Counsel of America, a national network of the most experienced eminent domain and property rights lawyers. Membership in OCA is by invitation only, and is limited to a single attorney from each state. Robert is also the Managing Attorney for the Pacific Legal Foundation Hawaii Center, a non-profit legal foundation dedicated to protecting property rights and individual liberties. Reach him at rht@hawaiilawyer.com He is also a frequent speaker on land use and eminent domain issues in Hawaii and nationwide. For a list of upcoming events and speaking engagements.