Sunday, July 05, 2020
Hawai'i Free Press

Current Articles | Archives

Friday, January 13, 2017
Hawaii Supreme Court: Do County Plans Override Zoning Laws?
By Robert Thomas @ 1:55 PM :: 4241 Views :: Maui County, Land Use

Hawaii Supreme Court Oral Arguments In Lucas "Economically Beneficial Use" Taking Case


by Robert Thomas, InverseCondemnation, January 12, 2017

After the Hawaii Supreme Court decided GATRI v. Blane, 962 P.2d 367 (Haw. 1998) one big question remained.

In GATRI, the court held that in the coastal zone, a county Community Plan (also known as a "General Plan" in some counties) is a binding land use regulation, and thus has the force and effect of law. (Outside the coastal zone, the CP/GP's don't actually control any land uses, and are general statements of long-term planning goals. The zoning, and the zoning alone, regulates the uses of land.)

But the state legislature in the Coastal Zone Management Act mandated a different result in the coastal zone and there, the planning also controls land use, as the court held in GATRI. Thus, in order to develop property in the coastal zone in accordance with the applicable zoning, the applicable CP/GP must also permit the use. This is know as "plan-zone consistency," and when the zoning and the planning are consistent, all is well.

The big question, however, is what happens when the zoning and the CP/GP are not consistent? First, we know that as a consequence of the inconsistency, the landowner cannot use her land in accordance with the zoning. Second, what, if any uses can be made of the property under the CP/GP designation? If none, this should set off your takings alarm bells: when a property is deprived by regulation of its economically beneficial uses, what is left but a Lucas wipeout?

As we detailed in our preview post, this is the issue confronting the Hawaii Supreme Court in a case argued last week, Leone v. County of Maui. There, the parcel is zoned "Hotel" (which permits residential use as a matter of right), but is designated on the CP as "park." In other words, its GATRI inconsistent.

We won't go into the background or the arguments made by each side (for details, see our earlier post, and the amicus brief we filed in support of the property owners in an earlier phase of the case in which the County lost its argument that the case wasn't ripe under Williamson County because the owners hadn't made an attempt to get the hotel zoning and the park CP consistent by seeking an amendment to the CP which would allow for residential use). Instead, we've posted the oral argument recording above for your edification.

After the Court of Appeals correctly determined that Williamson County doesn't require a takings plaintiff to seek a change in the law in order to ripen her claim, the Lucas wipeout question ended up being presented to a Maui jury, which somehow concluded that despite the plan/zone inconsistency, the Leones' have some economically viable uses remaining.

What those uses are, we can't imagine. We know the Leones can't build a home which the hotel zoning would otherwise permit. And we know the Leones can't make use of it as a park because the lot is too small (the minimum lot size in the park CP is 1 acre, and the Leone parcel is less than 1 acre). That should have been game, set, and match.

But it wasn't, and after the adverse jury decision, the property owners appealed. To explain the verdict, the County made all sorts of arguments that in our view, can't be harmonized in a way that makes any sense under the Fifth Amendment or federal court case law. Who knows, maybe the jury bought the County's argument the Leones could hold the property for "investment" purposes (in other words, despite it being frozen out of present uses today, in the future it might have value), despite that argument being foreclosed as a matter of Fifth Amendment law by cases like Lost Tree. Or maybe the Leones really could open a park concession or something and that is an economically beneficial use of the parcel, even though the CP says otherwise. Or maybe they could have somehow convinced the County to let them build a home, even though it is flatly prohibited by their own rules and GATRI, and that it wasn't the inconsistency which caused the County to deny the Leones' application to build. (Other neighboring homeowners eventually secured the County's ok, and even though those parcels were in different situations, the County pointed to them and argued why not the Leones as well?)


The oral argument recording (above and at the top of the post) has all of the details, and is a worthy listen for you takings junkies. The issues are all there: Williamson County, Lucas, Nollan/Dolan, nothing omitted.

Check it out.

PDF: Brief Amicus Curiae of Pacific Legal Foundation, Leone v. County of Maui, No. 29696 (Haw. App. filed. Sep....


TEXT "follow HawaiiFreePress" to 40404

Register to Vote


808 Silent Majority

808 State Update AM940


ACA Signups Hawaii



Alliance Defending Freedom

Aloha Life Advocates

Aloha Pregnancy Care Center

American Council of Trustees and Alumni

American Mothers of Hawaii



Antonio Gramsci Reading List

A Place for Women in Waipio

Astronomy Hawaii

Audit The Rail

Ballotpedia Hawaii

Better Hawaii 

Blaisdell Memorial Project

Broken Trust 

Build More Hawaiian Homes Working Group

CAFR Hawaii

Castaway Conservative

Children's Alliance Hawaii

Children's Rights Institute

Christian Homeschoolers of Hawaii

Citizens for Recall

Cliff Slater's Second Opinion

Coffee Break

CSIS Pacific Forum

DAR Hawaii

DVids Hawaii

E Hana Kakou Kelii Akina

E Māua Ola i Moku o Keawe

Farmers For Choice Hawaii


Fix Oahu!

Follow the Money Hawaii

Frank in Hawaii

Front Page Magazine

Frontline: The Fixers

Genetic Literacy Project

Get Off Your Butts!

God, Freedom, America

Grassroot Institute

Hawaii Aganst Assisted Suicide

Hawaii Aquarium Fish Report

Hawaii Aviation Preservation Society

Hawaii Catholic TV

Hawaii Christian Coalition

Hawaii Cigar Association

Hawaii Coalition Against Legalized Gambling

Hawaii ConCon Info

Hawaii Credit Union Watch

Hawaii Crime Victims' Rights

Hawaii Crop Improvement Association

Hawaii Debt Clock

Hawaii Defending Marriage

Hawaii Defense Foundation

Hawaii Family Advocates

Hawaii Family Forum

Hawaii Farmers and Ranchers United

Hawaii Farmer's Daughter

Hawaii Federalist Society

Hawaii Federation of Republican Women

Hawaii Firearm Community

Hawaii Fishermen's Alliance

Hawaii Future Project

Hawaii Gathering of Eagles

Hawaii History Blog

Hawaii Homeschool Association

Hawaii Jihadi Trial

Hawaii March for Life

Hawaii Meth Project

Hawaii's Partnership for Appropriate & Compassionate Care

Hawaii Public Charter School Network

Hawaii Rifle Association

Hawaii Right to Life -- Big Island

Hawaii Right to Life -- Oahu

Hawaii Shield Law Coalition

Hawaii Shippers Council

Hawaii Smokers Alliance

Hawaii State Data Lab

Hawaii Together

Heritage Foundation

HI Coalition Against Legalized Gambling



Hiram Fong Papers

Homeschool Legal Defense Hawaii

Honolulu Homeless Crisis

Honolulu Navy League

Honolulu Traffic

Horns of Jericho Blog

House Minority Blog

House Republican Caucus YouTube


Hump Day Report

I Vote Hawaii

If Hawaii News

Imua TMT

Inouye-Kwock, NYT 1992

Inside the Nature Conservancy

Inverse Condemnation

Investigative Project on Terrorism

Iowa Meets Maui

Jackson v Abercrombie

Jihad Watch

July 4 in Hawaii

Kahle v New Hope

Kakaako Cares

Kau TEA Party

Kauai Co GOP

Keep Hawaii's Heroes


Land and Power in Hawaii

Legislative Committee Analysis Tool

Lessons in Firearm Education

Lingle Years

Malulani Foundation

Managed Care Matters -- Hawaii

Malama Pregnancy Center of Maui

Mauna Kea Recreational Users Group

Middle East Forum--The Legal Project

Mililani Conservatives for Change

Military Home Educators' Network Oahu

Missile Defense Advocacy

MIS Veterans Hawaii

Muslim Brotherhood in America

NAMI Hawaii


National Christian Foundation Hawaii

National Parents Org Hawaii

National Wind Watch

New Hawaiian

New Zeal

NFIB Hawaii News

No GMO Means No Aloha

Northwest Economic Policy Seminar

Not Dead Yet, Hawaii

Now What I Really Think

NRA-ILA Hawaii

Oahu Alternative Transport

ObamaCare Abortion Hawaii


OHA Lies

Opt Out Today

Pacific Aviation Museum

Patients Rights Council Hawaii

PEACE Hawaii

People vs Machine

Pritchett Cartoons 

Pro-GMO Hawaii


Rental by Owner Awareness Assn

Republican Party -- Hawaii State

Research Institute for Hawaii USA

Rick Hamada Show

RJ Rummel

Robotics Organizing Committee

Save Dillingham Airfield

School Choice in Hawaii

SIFE Remington

SIFE W. Oahu 

Sink the Jones Act

Smart About Marijuana--Hawaii

St Marianne Cope

State Budget Solutions Hawaii

State Policy Network

Statehood for Guam

Tax Foundation of Hawaii

The Harriet Tubman Agenda

The Long War Journal

The Real Hanabusa

Time Out Honolulu

Trustee Akina KWO Columns

Truth About Trade & Technology - Hawaii

UCC Truths

Union Members Know Your Rights

US Tax Foundation Hawaii Info

Valor in the Pacific

VAREP Honolulu

West Maui Taxpayers Association

What Natalie Thinks

Whole Life Hawaii