A Hint Of Judicial Takings From The HAWICA

by Robert Thomas, InverseCondemnation, July 23, 2014

We usually don't pay a whole lot of attention to unpublished opinions. Not that they are not interesting mind you, but if the court itself, for whatever reason doesn't believe the case is worthy of publication, then who are we to say otherwise? But occasionally, we read one that has something worth sharing. Like this case, for example.

In Dagres v. County of Hawaii Planning Dep't, No. CAAP-11- 0000071 (June 30, 2014), the Hawaii Intermediate Court of Appeals gave us one of those blogworthy tidbits, a short (one page) discussion of the appellant's judicial takings claim. We don't see many of those, so we had to follow up.

The case involved three buildings near the shoreline on the Big Island. The owner wanted to fix them up, and the Planning Department concluded that two of the buildings were exempt from the requirement to obtain a Special Management Area use permit, while the third needed only a SMA Minor permit. The neighbors didn't agree and appealed to the County Board of Appeals, which upheld the Department's conclusions. Up the chain they went under the Administrative Procedures Act, and the circuit court reversed, concluding that at least one of the buildings wasn't even permitted or legal, much less than it deserved to be exempt from the shoreline regulations. Next stop, ICA.

Fast forward to page 30 of the ICA's Memorandum Opinion, where the court addressed the property owner's contention "that the circuit court's reversal of the Planning Director's and Board's decisions to exempt Buildings A and C amounted to a judicial taking." So here's your schlimmbesserung lesson of the day: sometimes, in trying to make things better, it ends up worse, because the owner asserted that "the buildings on the Property went from being taxed by the county and in the county's records, to being no longer legally 'existing.'" Slip op. at 30. The owner asserted this was so off the charts that it "amounts to a retroactive alteration of state law that constitutes an unconstitutional taking." The ICA rejected the argument:

Even if we were to assume that HCF posits a viable judicial taking theory, the circuit court's decision was not a retroactive alteration of state law. In Waikiki Marketplace, this court merely held that a property owner "should not have been required to produce a building permit in order to establish that [an] addition was a 'nonconforming use'" under the applicable land use ordinance because terms such as "lawful use" and "previously lawful" as used in the land use ordinances only refer to compliance with previous zoning laws. The instant matter did not involve whether HCF could demonstrate status as a "nonconforming structure" or "nonconforming use" under the Zoning Code.

Slip op. at 30 (citation omitted). Not much of a discussion of judicial takings, but we'll take what we can get.

Dagres v. County of Hawaii Planning Dep't, No. CAAP-11-0000071 (Haw. App. June 30, 3014) (mem.)