Real Estate Law Journal

Court Shortens Path to Challenge Constitutionality of Hawaii Land Use Decisions

By Bruce Voss

Hawaii courts have made it (slightly) easier to challenge state and county land use agencies that deliberately delay or block projects on land zoned for the proposed development.

The case, Larson v. County of Maui, arose from Maui County’s long-troubled attempts to create a public park at Palauea Beach in Makena. The Larsons own beachfront property currently zoned for residential development but designated for park use on the county’s long-range community plan. Maui county officials-unwilling to spend the money to buy the land-have dragged their feet on development proposals for the property, attempting to allow the public to continue parking on the property to go to the beach. When the Larsons filed an application that would enable them to build a house consistent with the zoning, the county planning director refused to process the application because the property was designated for park use on the community plan.

Exasperated by the delays, the Larsons filed suit in state court, alleging that Maui County had deprived them of all economically viable use of their property in violation of the Hawaii State and U.S. Constitutions. A state judge dismissed the lawsuit on the grounds it was not “ripe”-that is, the Larsons had not gone through all the steps to try to change the Maui community plan.

The Hawaii Intermediate Court of Appeals reinstated the lawsuit. The Court stated that when a Hawaii landowner brings a so-called “regulatory takings” claim against the state or county, the ripeness doctrine “simply requires a final, definitive decision by the initial land-use decision maker regarding how it will apply the regulations at issue to the subject property”. The Maui County planning director’s refusal to process the application was such a “final, definitive decision.”

The ruling gives frustrated Hawaii property owners a strategic option if a government agency unreasonably or illegally delays a legitimate development proposal. While it remains difficult to litigate and prevail on a regulatory takings claim, this ruling at least allows the property owner to get into court.

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