This story has been updated in multiple locations to clarify that the court ruling applies to state land use law, not county zoning regulations. The error was identified by University of Hawaii law professor David Callies and Native Hawaiian Legal Corporation attorney David Kimo Frankel. You can read the original, uncorrected version of the story and their e-mails to Civil Beat at the bottom of this page.

Are land use rules just environmental laws by another name? The Hawaii Supreme Court says yes.

When it overturned an appeals court ruling last month, the Supreme Court cleared the way for private citizens and community groups to file lawsuits to enforce the state land use law as part of a personal constitutional right to a clean environment.

The decision gives private citizens across the state another avenue to air their concerns about projects in their neighborhoods and could change the way land is used in Hawaii. But some worry the ruling could cause havoc and might make it that much harder to develop.

The Hawaii Constitution outlines a number of rights that all people in the state enjoy. The right to “life, liberty and the pursuit of happiness” mirrors the Declaration of Independence. The local rights to due process, privacy and to bear arms are derived from similar promises made in the U.S. Constitution’s Bill of Rights.

But Hawaii’s bedrock legal document guarantees some additional powers unique to the islands. The section on traditional and customary rights is one such example. The state also promises all who live here the right to a “clean and healthful environment” in Article XI, Section 9.

The right can be enforced by any person against any party, public or private, the Constitution promises. That might sound pretty clear, but it’s not.

The Hawaii Constitution says the right is “defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources,” and includes the caveat that this enforcement right can be exercised “through appropriate legal proceedings, subject to reasonable limitations and regulation as provided by law.”

That’s where it gets complicated. What are “appropriate” proceedings? What are “reasonable” limitations? What are environmental laws?

The case in question arose after the Waiola Waters of Life Charter School acquired agricultural land on the Hilo side of the Big Island in 2003. Neighboring residents — who convened as the Ala Loop Homeowners — argued that the developer needed to obtain a special use permit before moving forward with plans for a working farm and school campus on a 28-acre parcel formerly known as the Sunshine Farm.

The County of Hawaii, which had originally said the school was exempt from the law requiring a permit, citing a different section of state law, eventually turned to the courts for an answer. After years of procedural delays and legal battles, the Intermediate Court of Appeals (ICA) ruled in 2009 that the neighbors had no “right of action” to sue.

In effect, the ruling meant the public could testify at county planning commission hearings and write letters to the local newspaper editor, but could not challenge land use decisions in court. Only the government could enforce those regulations, so the lower court had no jurisdiction to hear the case at all.

After the Native Hawaiian Legal Corporation [pdf] and Hawaii’s Thousand Friends [pdf] asked the Hawaii Supreme Court to weigh in on the case, an 81-page decision overturning the ICA [pdf] was handed down July 9, 2010.

Associate Justice Mark Recktenwald wrote for the 4-1 majority that Chapter 205 — which created the Land Use Commission and land use districts — was enacted to “to preserve, protect and encourage the development of the lands in the State for those uses to which they are best suited for the public welfare.”

The decision said the Hawaii Constitution’s guarantee of a right to a clean and healthful environment is self-executing and requires no further act of the Hawaii Legislature to have effect.

“The framers (of the Hawaii Constitution) understood that private enforcement would ‘complement’ government enforcement, rather than be supplanted by it,” the decision said.

The right to challenge land use decisions in court will not be totally unfettered. Courts must still decide whether a plaintiff has standing. The majority opinion explained the difference between a right of action and standing:

“The private right of action inquiry focuses on the question of whether any private party can sue to enforce a statute, while the standing inquiry focuses on whether a particular private party is an appropriate plaintiff.” (emphasis in original)

Limitations on standing — which differentiate those with a horse in the race from the general public — have historically been used to keep the courts out of the business of answering broad hypotheticals, said land use attorney Robert Thomas. That approach leaves generalized grievances in the hands of lawmakers who are better equipped to address political matters.

Thomas has blogged about the case extensively at inversecondemnation.com and also worked on the Pono vs. Molokai Ranch case that established precedent in this area of Hawaii law before it was relegated to the history books by the Ala Loop decision.

“Based on the court’s reasoning, at least, it at appears to be very broad,” Thomas said of the potential impact of the Ala Loop decision. He worries the logic used in the Ala Loop case could show what the court might do with a similar case that hinges on the public’s right to enforce other laws — county zoning regulations, for example.

“Essentially this is sort of the start of it and we don’t know where it’s going to go, but it’s possible now … that anyone with standing can run to court,” he said. “So will that exponentially expand (the number of lawsuits)? We don’t know.”

Thomas was not alone in his skepticism of the decision.

In an 82-page concurring and dissenting opinion [pdf], Associate Justice Simeon Acoba agreed that the Ala Loop homeowners had standing to challenge the decision in court because they were adjoining landowners who could argue the decision would interfere with the enjoyment of their property.

But, Acoba said, it was “unnecessary to decide that Ala Loop had a private right of action” to enforce land use rules. He warned the majority’s approach “invites havoc.”

The Office of the Attorney General — which represented the charter school in the case — asked the Supreme Court to revisit its decision, filing a motion for reconsideration [pdf] on July 19.

“(T)he opinion has the very real potential for significantly diminishing the force of the administrative processes and proceedings previously established by the Legislature and the counties for the purpose of protecting each person’s right to a clean and healthful environment,” the motion argues. “There is a real possibility that pending proceedings will be abandoned altogether in favor of actions brought directly in the courts.

“The opinion of the court in this appeal abandons precedent and extends the common law of Hawaii with regard to ‘environmental quality’ and ‘land use’ far beyond its prior boundaries,” it says.

The Ala Loop Homeowners filed their response [pdf] Aug. 4.

The argument pits Gov. Linda Lingle and Attorney General Mark Bennett against Associate Justice Recktenwald, Lingle’s longtime compatriot, her appointee to the high court and one of six potential nominees for chief justice.

Maui attorney Isaac Hall told the Honolulu Star-Advertiser that it “took a lot of courage” for Recktenwald to author the Ala Loop decision with the potential nomination hanging over his head. Hall said he was immediately concerned about Recktenwald’s candidacy after reading it.

Instead, Judge Katherine Leonard — who was on the three-judge ICA panel to rule in the state’s favor in the Ala Loop case — was Lingle’s surprising nominee to be Supreme Court chief justice. She will remain on the appeals court after the Hawaii Senate voted 14-8 against her confirmation last week.


DISCUSSION Do you believe the Hawaii Supreme Court‘s decision will make it harder to develop in Hawaii? Join the conversation and learn more about land use regulations.


This story was updated in multiple locations to correct errors. Below is the original, uncorrected version of the story.

David Callies, the Benjamin A. Kudo professor of law at the University of Hawaii Law School, teaches land use, state and local government and real property. He e-mailed Civil Beat on Sunday and wrote, in part:

My point is that the Court’s ruling has absolutely nothing to do with county zoning. HRS 205 does not relate to zoning at all. It is the state land use law, which divides the state into 4 land categories, and provides a process (before the Land Use Commission) for amending boundaries between those 4 categories. Counties share certain enforcement and use permit authority with the LUC. Among those are the granting of permits for certain unusual uses in certain categories (ag, for example) and interpretation of what is or is not permitted of right in certain disticts (ag, for example, again). None of this has anything to do with zoning.

It is not particularly surprising that the Court would find and hold that special or permitted uses under 205 are subject to the state constitution’s environmental rights article since there is much in 205 of an environmental and conservation nature, and all of 205 is subject to our state plan (HRS 225), which has environmental and conservation principles throughout. Counties exercising their powers to zone and to specially permit uses and variances under their zoning codes (all as permitted in the county zoning enabling act, an entirely different statute) are almost certainly not subject to that state constitutional environmental guarantee article, and the Court does not suggest that they are.

In sum, 205 has nothing whatsoever to do with county zoning regulations and I am therefore not saying anything at all about county zoning or private enforcement of zoning in the state rural and urban districts. There is virtually nothing in the Court’s opinion about what the counties can do under their zoning ordinances in either district, or whether the public can enforce county zoning in either district. Any discussion about county zoning connected with the Court’s opinion is unwarranted because the Court does not have any county zoning matter before it and so therefore made no rulings about county zoning. The Court simply said that to the extent the counties have certain shared (with the LUC) powers with the state in enforcing the state land use law, these are subject to private enforcement under the state constitution’s environmental rights/guarantees article because the state land use law is so shot through with environmental and conservation goals and purposes that the state land use law — 205 — qualifies as an environmental law enforceable by citizens like any other environmental law under the Court’s previous holdings. I’m very much afraid this is not merely an interpretation, but in fact what the court did. To imply that anything in the opinion applies to county zoning is flat wrong.

David Kimo Frankel, an attorney for the Native Hawaiian Legal Corporation, authored the amicus brief linked to in the story. He e-mailed Civil Beat on Friday and wrote, in part:

The whole introduction really misses the point of the Supreme Court’s decision. And, as I said, the Court never addressed county zoning in its decision. …

THE issue is the public’s right to enforce our environmental laws. That is the most important holding of the case — from any perspective (legally, journalistically, academically). Your introduction fails to get that point across.

Having said, that, there is a subtle distinction to keep in mind: The Court’s ruling does not open any floodgates. People have been suing successfully to enforce environmental and land use laws for years. I’m not even going to try to rattle off the case names. The ability to sue over the State Land Use Law was arguably closed (temporarily) by the ICA’s decision in Pono. The Supreme Court opened it back up again after about a year. So, the practical effect is not that great. On the other hand, the decision is significant because for the first time the appellate courts have provided a very clear (and quite frankly, really well researched and well written) explanation of the constitutional provision. That is terribly exciting for us nerds.

You say, “by ruling that the Land Use Law relates to environmental quality, the court said that county zoning regulations authorized by that statute are subject to the same enforcement guarantee.” The sentence contains false premises. 1. The State Land Use Law (HRS Chapter 205) is a STATE law — not county — that classifies or designates land. 2. The Court said nothing about county zoning regulations. 3. I’m not sure what county regulations you are referring to that are authorized by HRS Chapter 205, but the court was not addressing them and they aren’t relevant to the decision. Having said that, it is logical to argue … that one implication of the decision is that in the future the court may hold that citizens can sue to enforce all county zoning ordinances. But the court did not address that issue — and in any case, citizens and corporations have sued over violations of county ordinances in the past.

Thank you to Callies and Frankel for their assistance with this story — ML.

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