Robert Thomas
Robert Thomas

BY ROBERT THOMAS – In “Why big development is so difficult in Hawaii,” Hawaii Businessmagazine tackles an issue first raised by U. Hawaii lawprof David Callies in recently-published law review article (and follow-upinterview), where he labeled the record of the 1993-2010 Hawaii Supreme Court on property issues “appalling” (80% overall success rate for environmental and native Hawaiian litigants, 65% of cases reversing the Intermediate Court of Appeals).

As Callies said in anearlier presentation, “ninety percent of the time, government and the private sector are wrong? Give me a break.” (Remember, this is the court that concluded that “western concepts” of property law such as exclusivity are “not universally applicable in Hawaii.”)

Callies’ conclusions sparked reaction from his academic colleague environmental lawprof Denise Antolini, who defended the court’s environmental jurisprudence in an article on the grounds that it wasn’t so much focused on outcome, but on process. Yes, plaintiffs happened to win a whole lot, but don’t be fooled by the results, she wrote, because the court was only insuring that the doors to the courthouse remain open to all comers under the environmental standing doctrine. Callies’ article also got a less measured response from two beneficiaries of the court’s rulings who upped the ante by calling Callies a liar (“a lie told often enough [that it] becomes the truth”) and a sell-out (listing all of the “bad” clients he’s represented). Callies responded with a spirited defense of constitutional property rights:

I make no apologies for attempting to defend the rights of all landowners to use their property. The U.S. Supreme Court has equated protection of such rights with civil rights like freedom of press, expression, and security against unreasonable search and seizure. I agree. The use of land is not a privilege but a right subject to governmental exercise of its police power for the protection of the health, safety and welfare of its citizens.

The Hawaii Business article rehashes that territory and contains comments by Callies, Antolini, and Sierra Club Hawaii Chapter Director Robert Harris, as well as a mini-debate on whether the State Land Use Commission remains necessary. The article concludes:

There’s another way to look at this. Maybe our regulatory system is working just as it was designed to work. Instead of complaining about our complicated land-use laws, or overzealous environmentalists, or policy-making by the state Supreme Court, we should look inward. These are laws, after all, that were written by elected officials: state legislators, county councilors and constitutional convention delegates. If we don’t like the laws anymore, we can elect officials to change them.

The laws’ main obstacle to development may not be that they’re too restrictive, it may be that they’re too democratic. Callies complains that the Moon Court vastly extended the concept of ‘standing,’ which defines who can bring a case to court. Extensive public participation and access to information is hard to revoke, especially in an arena as contentious as land use.

While an interesting read, the article unfortunately missed the opportunity to address the biggest looming issue: if, as Professor Antolini and Harris argue, the way things are is truly the way the system is supposed to work and is just a reflection of the codified popular sentiment, then where are you going to put people? Is it simply a matter of “I got mine” so the heck with those who come after me? Others can live in Hong Kong-style apartments so I can enjoy my place in the country?

But that’s a very closed viewpoint, because, after all, very few people in Hawaii live in homes that were not built by a “developer” on land that was at one time pristine, so very few of us are not tainted with that brush. If you make development — especially residential development — too painful, should you be surprised that the median price of a single-family Oahu residence is 600 grand, that “you would need 2.4 full-time jobs at the mean renter wage to afford a two-bedroom place in Hawaii,” or that Hawaii leads the nation in the highest numbers of multi-generation households? Or are we just counting on people to vote with their feet by seeking greener pastures in places where home ownership isn’t some distant dream, where the public schools are decent and the cost of living not as crushing, thus making the environment better for those who have the means to remain in Hawaii?

We don’t know how to answer these questions. But it can’t be that more of the same is what we need, because if we just keep doing what we’re doing, the present situation surely is not “sustainable” to use the current terminology, and Hawaii will end up as Fiji writ large.

One final comment: expansion of the judicial standing doctrine is not “democratic.” Since when is a panel of unelected judges deciding that public policy is better served by making it easier to file lawsuits “democratic?” The Moon Court, after all, was the court that expanded the standing doctrine to give government officials standing to sue other government officials to overturn a popularly-enacted county charter provisions the officials didn’t like. Throwing open the courthouse doors to certain plaintiffs may be a good thing, or it may not be. But sorry, it’s not “democracy” either way you cut it.

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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.