BY ROBERT THOMAS – The Hawaii Supreme Court ON JULY 9, 2010, by a 4-1 margin issued an opinion that has fundamentally rewritten Hawaii land use law. In County of Hawaii v. Ala Loop Homeowners, No. 27707 (cert. granted Sep. 2, 2009), the four-Justice majority in an 81-page opinion authored by Justice Recktenwald held “[w]e further conclude that article XI, section 9 of the Hawai’i Constitution creates a private right of action to enforce chapter 205 in the circumstances of this case.” Slip op. at 4.

In an equally lengthy concurring and dissenting opinion, Justice Acoba wrote: “I respectfully disagree, then, with the majority’s holding that the court abused its discretion in denying Wai’ola’s motion to set aside default. Thus, in my view, it is unnecessary to decided that Ala Loop had a private right of action to enforce HRS chapter 205 under article XI, section 9 of the Hawai’i State Constitution, but inasmuch as the majority does so hold, I believe it is wrong.” Dissent at 1.

We have not yet had time to digest the 162 pages of opinion and will post more thoughts after we do, but in the meantime, here are the cert application and the State’s opposition, and two amicus briefs supporting the applicant:

We live blogged the oral arguments here.

This case did not garner the broad public interest of the Superferry litigation, but the case could be more important. The core issue in the case was whether Hawaii’s statewide zoning laws are “laws relating to environmental quality” which may be privately enforced, or whether they are classic Euclidean zoning laws which can’t. The Hawaii Constitution (art. XI, § 9) provides that “any person may enforce” the “right to a clean and healthful environment, as defined by law relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources.”

The case involves a “new century charter school” located in the County of Hawaii (Big Island). The school sought to begin operations on land classified (zoned) as agriculture on the island of Hawaii. Such uses are not normally allowed in the Ag zone. The school’s neighbors, the Ala Loop Homeowners, asserted the school needed a special permit pursuant to Haw. Rev. Stat. § 205-6, which allows a county planning commission to permit certain “unusual and reasonable uses” within an agricultural or rural district, despite the land not being zoned for such use. The County filed a declaratory action, seeking confirmation the school was exempt under state law from any special permit requirement. The trial court permanently enjoined the school.

The Intermediate Court of Appeals reversed:

In Pono v. Molokai Ranch, Ltd., 119 Hawai‘i 164, 194 P.3d 1126 (App. 2008), cert. rejected, 2008 WL 5392320 (Hawai‘i 12/29/08), this court held that private citizens do not have a private right of action to enforce the provisions of HRS Chapter 205 and, therefore, lack standing to invoke a circuit court’s jurisdiction to determine their claims to enforce Chapter 205. The enforcement of HRS Chapter 205 is precisely the relief sought by the Association and granted by the Circuit Court in this case.

. . . .

We conclude that the Association did not have a private right of action to enforce their Chapter 205 claims and, therefore, the Circuit Court lacked subject matter jurisdiction over the Association’s claims. See Pono, 119 Hawai‘i at 180-90, 194 P.3d at 1142-52; see also Lanai Co., Inc. v. Land Use Comm’n, 105 Hawai‘i 296, 97 P.3d 372 (2004) (HRS § 205-12 authorizes the counties, not the LUC to enforce Chapter 205); accord Rees v. Carlisle113 Hawai‘i 446, 153 P.3d 1131 (2007) (circuit court lacked jurisdiction because the subject ordinance did not create a private right of action).

The ICA’s summary disposition order is here.

The Supreme Court, as noted above, reversed. More to follow.

Robert Thomas is an attorney in Honolulu. See more at http://www.inversecondemnation.com/

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