Hawaii Water Law And The Law Of Settled Expectations

Water Rights, Property Rights, and the Law of Settled Expectations Robert H. Thomas www.inversecondemnation.com

“Land Use” • What is at stake? • How is it accomplished? • Who are the players? • Where do you go to affect change?

Laws are “made” by… People Legislature Courts Agencies

Pre‐zoning land use • Courts, not Legislature • Anything not injurious to neighbors • Public trust • Eminent domain

Origins of Land Use Regulation • State Zoning Enabling Acts • Broad division of land classifications • Everything in its place • Euclid – zoning constitutional

Multiple Layers • Federal • Clean Water Act, ESA, Rivers & Harbors Act, COE, FWS • State • LUC, CZMA, BLNR, CWRM • Zoning, Building Code, • County SMA permits, DPP, setbacks

Why Divisions of Authority? • Federalism • Home Rule

Overlapping State Regulations ESA Others (PASH) Zoning Enabling Act The Land Use Law State Planning Act Coastal Zone Management Act County Zoning Codes Planning Commissions HRS 343 EIS Clean Water Act

Hawaii State Planning Act • Haw. Rev. Stat. Ch. 226 • State Functional Plans – Agriculture – Conservation Lands – Historic Preservation • Functional Plans must reflect State priorities and consider county plans

State‐Wide Zoning • Haw. Rev. Stat. chapter 205 • Enacted in 1961 • Response to perceived lack of planning and development of prime agricultural lands by counties • Land Use Commission • Classified all land

Urban • Existing or planned urban development • County controlled • 4% of lands in State

Agricultural • Prime Agricultural (A & B soil rating) • Non‐Prime Agricultural (C, D, E, U) • All uses not permitted are prohibited

AG Land?

Conservation • Watersheds • Scenic and historic areas • Plant and wildlife habitats • Parks • Open space

Rural • Small farm and large lot residential • Underutilized District ‐ .2%

State Land Use Classes • Urban • Rural ? • Agricultural • Conservation

• Urban • Rural ? • Agricultural • Conservation

County Zoning Codes • State Planning Act, HRS ch. 226 • Zoning Enabling Act, HRS § 46‐4 – Honolulu: LUO ch. 21 – Maui: Maui County Code ch. 19.04 – Hawaii: Hawaii County Code ch. 25 – Kauai: Kauai County Code ch. 8.

Restrictions on Government’s ability to interfere with property • Fifth Amendment • Fourteenth Amendment • Hawaii Constitution • Statutory • Governments of limited powers – those not enumerated are reserved to the people

Eminent Domain • “Nor shall private property be taken without just compensation” • Taking by condemnation • Taking by overregulation

Regulatory Takings • Basis of claim – oppressive regulation = de facto confiscation • Shortcut – Paying for the change – Unfair distribution of burden • Key question: how far is “too far?”

Vested Rights • Right = “Property” • Equitable estoppel • Green light + assurances • Unfair to stop

Vested?

Public Trust • “All public natural resources…” • “…are held in trust…” • “…for the benefit of the people.”

• “…the State and its political subdivisions…” • “…shall conserve and protect Hawaii's natural beauty and all natural resources…” • “…including land, water, air, minerals and energy sources...” • “…shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the self‐ sufficiency…”

Hawaii Supreme Court’s Public Trust Doctrine • Leaves the question of how the public trust doctrine applies to land. Waiahole at 133 • "We need not define the full extent of article XI, section 1's reference to 'all public resources' at this juncture.“

Govt’s Public Trust Duty • Act within jurisdiction • Take “reasonable measures” to consider the resource • “make appropriate assessments” to protect the resource

Water Rights, Property Rights, and the Law of Settled Expectations Robert H. Thomas www.inversecondemnation.com

http://www.inversecondemnation.com	542
http://webcache.googleusercontent.com	2
http://cc.bingj.com	1
http://search.yahoo.com	1
http://dedi158-156.envisional.net	1

Hawaii Water Law And The Law Of Settled Expectations

by inversecondemnation

Accessibility

Categories

Upload Details

Usage Rights

5 Embeds 547

Statistics

Hawaii Water Law And The Law Of Settled Expectations Presentation Transcript