Koa Ridge: HAWSCT Invalidates Rezoning Because Holdover Commissioner Voted

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Robert Thomas

In Sierra Club v. Castle & Cooke Homes Hawaii, Inc., No. SCWC-0000625 (Dec. 23, 2013), by a 4-1 majority, the Hawaii Supreme Court concluded that a Land Use Commission commissioner, who had not been approved by the Hawaii Senate for a second term, was neither a statutory “holdover” member, nor a de facto commissioner, and thus could not cast the decisive and sixth vote in a reclassification of land. The court invalidated the reclassification.

The court concluded that the commissioner did not qualify as a valid holdover under Haw. Rev. Stat. § 26-34, and did not qualify as a de facto commissioner. This is the “Koa Ridge” case that we’ve been following, and as we predicted here, it’s never wise to bet against the plaintiff in this case when they take a case to the Hawaii Supreme Court.


Our favorite part of the opinion is note 9 on page 10: Quo Warranto rules!

Chief Justice Recktenwald dissented and concurred, arguing that the commissioner fit within the language of the statute.

The Court of Appeals’ opinion is posted here.

The title of this post called this a “rezoning,” but since this was the State Land Use Commission considering a boundary amendment/land reclassification and not county zoning, technically speaking it wasn’t a “rezoning.” So forgive us, we had to go with that because “boundary amendment” just doesn’t sing.

Sierra Club v. Castle & Cooke Homes Hawaii, Inc., No. SCWC-11-0000625 (Haw. Dec. 23, 2013)

– See more at: https://www.inversecondemnation.com/#sthash.ZbdkQo9x.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.