On July 20, 3rd Circuit Judge Robert Kim heard arguments in the most recent litigation brought by \u2018Aina Le\u2018a, Inc., intended to knock down hurdles that block its planned development of a mix of luxury and affordable housing, commercial space, and shops over more than 1,000 acres in the Big Island district of South Kohala. <\/p>\n\n\n\n
The instant case was filed last March by Lulana Gardens, LLC, a subsidiary of \u2018Aina Le\u2018a that claims to own the 38-acre parcel designated for 385 units of affordable housing. It is asking the court to overturn the Hawai\u2018i County Planning Department\u2019s insistence that a decision by 3rd Circuit Judge Elizabeth Strance in 2013 that tossed out a 2010 environmental impact statement means that the developer must prepare a new one before it can move forward with further work on the site.\u00a0<\/p>\n\n\n\n
Michael Matsukawa, attorney for Lulana Gardens, argued that because construction on the townhouse blocks continued to go on for several years before the county issued a stop-work order, the county was in effect barred from requiring a new EIS. <\/p>\n\n\n\n
\u201cThe most important thing,\u201d Matsukawa told Kim, \u201cis that the construction was allowed to continue.\u201d <\/p>\n\n\n\n
County deputy corporation counsel Sinclair Salas-Ferguson disputed that. The county had no idea that the developer was continuing to work on the afford- able housing project. Yes, the county had issued permits for the townhouses, he acknowledged, but the county still could withhold issuance of certificates of occupancy and other approvals needed before the units could be sold. <\/p>\n\n\n\n
\u201cThe allegation is that from 2013 to 2017, when the county issued a stop-work order, … the county didn\u2019t complain about the construction,\u201d Salas-Ferguson said. <\/p>\n\n\n\n
\u201cThe county [stop-work] letter said yes there are permits, but no valid EIS. … If a developer is doing something without the proper permissions and the county doesn\u2019t catch it, that isn\u2019t equivalent to the county giving the developer permission. … They constructed that on their own volition, and when the county found out about it, they issued the stop-work order…. <\/p>\n\n\n\n
\u201cIf somebody gets away with a violation of the law, that doesn\u2019t mean they have a right to violate the law. … They don\u2019t get the benefit. If they did work that wasn\u2019t authorized, that\u2019s on them. That\u2019s in the county letter: \u2018proceed at your own risk,\u2019\u201d he said. <\/p>\n\n\n\n
At the conclusion of the hearing, Judge Kim denied \u2018Aina Le\u2018a\u2019s motion for partial summary judgment. Then he instructed both attorneys to prepare findings of fact and proposed conclusions of law with respect to most of the points raised in the county\u2019s motion to dismiss the com- plaint. The briefs are due on August 20, with the attorneys having five additional days to reply.
Judge Kim did, however, deny one of the county\u2019s arguments: that the case should be heard in environmental court. <\/p>\n\n\n\n
On July 15, Bridge \u2018Aina Le\u2018a, LLC, the company that at one point owned all 3,000 acres where the Villages of \u2018Aina Le\u2018a were first proposed back in the late 1980s, appealed to the U.S. Supreme Court a decision in 9th Circuit Court that rejected Bridge\u2019s claims of taking against the state of Hawai\u2018i Land Use Commission. <\/p>\n\n\n\n
Bridge agreed to sell its 1,000 or so acres of land that were the subject of the redistricting petition in 1989 to DW \u2018Aina Le\u2018a (now \u2018Aina Le\u2018a, Inc.) more than a decade ago. But when the LUC decided to revert the land to the state Agricultural District after finding that \u2018Aina Le\u2018a and Bridge had failed to complete promised development of the affordable housing units, both Bridge and \u2018Aina Le\u2018a sued the state. <\/p>\n\n\n\n
Bridge ended up pursuing its claim for damages in federal court. The \u201ctakings\u201d that Bridge alleged to have occurred as a result of the reversion were temporary, since the reversion was overturned in court and, in any case, \u2018Aina Le\u2018a eventually paid Bridge handsomely for the Urban District land. A federal district court jury found that Bridge had indeed been damaged \u2013 to the tune of $1. Both the state and Bridge appealed. The 9th Circuit Court decided that even $1 in damages was too much. <\/p>\n\n\n\n
Now Bridge, through attorneys Michael Berger of the national firm Manatt, Phelps & Phillips and Bruce Voss of the Honolulu firm of Bays Lung Rose & Holma, is asking the U.S. Supreme Court to take up the case. The petition for a writ of certiorari focuses on the appellate court\u2019s findings under two takings theories: Penn Central <\/em>and Lucas<\/em>. <\/p>\n\n\n\n The 9th Circuit\u2019s ruling \u201celiminates property owners\u2019 ability to recover for temporary property takings under any theory, and that ruling conflicts with decisions of other courts, including this Court,\u201d the petition states. \u201c[D]oes this <\/p>\n\n\n\n Court need to clarify the rules for recovery for temporary regulatory takings?\u201d <\/p>\n\n\n\n Second, \u201cIn light of the confusion in the lower courts as to the application of the Penn Central <\/em>factors \u2013 to the point where it has become almost impossible for property owners to prevail on this theory \u2013 should this Court reexamine and explain how Penn Central <\/em>analysis is supposed to be done \u2013 or dispensed with?\u201d <\/p>\n\n\n\n Third, the petition suggests that the court may need to clarify the standards to determine whether temporary takings occur under either Penn Central <\/em>or Lucas<\/em>. <\/p>\n\n\n\n Finally, the petition seeks a review by the court of the ability of appellate courts to overturn jury decisions in takings cases. \u201cIn light of Penn Central\u2019s <\/em>clear direction that cases like this are to be determined ad hoc, on their individual facts, and this Court\u2019s approval in City of Monterey v. Del Monte Dunes <\/em>… that takings liability be decided by a jury, do appellate courts need to stay their hands (as mandated by the 7th Amendment\u2019s Re-examination Clause) when \u2013 as here \u2013 reviewing jury findings of fact-based takings issues, particularly when the trial judge confirmed those findings?\u201d <\/p>\n\n\n\n \u2014 Patricia Tummons <\/strong> On July 20, 3rd Circuit Judge Robert Kim heard arguments in the most recent litigation brought by ‘Aina Le‘a, Inc., intended to knock down hurdles that block its planned development of a mix of luxury and affordable housing, commercial space, … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":11061,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[472],"tags":[7],"class_list":["post-12765","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-august-2020","tag-patricia-tummons"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/12765","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=12765"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/12765\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/11061"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=12765"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=12765"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=12765"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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