Posted by: Patricia Salkin | December 11, 2008

Hawai’i Court of Appeals Rules Private Citizens Cannot Enforce State Land-Use Statute

In 1995, Molokai Ranch (MR) proposed developing 15 commercial overnight campgrounds along the “Great Molokai Ranch Trail” on the west end of the island of Molokai. In response to MR’s inquiry whether its project could be developed on non-prime agricultural land, the director of the Maui County Department of Public Works (DPW), the person charged with enforcing the zoning ordinance, stated the project was a permitted use. MR then acquired the required building permits and began construction. In 1997, Pono, an unincorporated association of island residents sought an injunction to stop the project. The trial court ruled in favor of MR and the county defendants, holding it did not have jurisdiction to determine whether the project violated the state land-use law, because Pono had not exhausted its administrative remedies. It also ruled the project did not violate the Molokai Community Plan.


The Hawai’i courts follow the U.S. Supreme Court’s reasoning that in cases where a statute does not explicitly provide a private remedy, a court must consider three relevant factors, the appeals court said: Is the plaintiff one of the class of persons for whose especial benefit the statute was enacted? Is there any indication of a legislative intent to create such a remedy? Would it be consistent with the underlying purpose of the statute to imply such a remedy? Put another way, for a private citizen to seek a declaratory judgment that a statute has been violated, he or she must have a private right of action to enforce the statute.

The court observed as an initial matter that there is no provision in HRS ch 205 expressly authorizing private persons to enforce it. The court noted the state legislature has enacted numerous other statutes that expressly authorize private causes of action for their violation. It was apparent, the court said, that when the legislature wants to provide a private cause of action it knows how to do so and has done so. It has not done so in the case of the state land-use law. The legislative history of the statute is completely silent on the question whether the legislature intended to create a private right of action, the court continued. Implying such a right in the face of legislative silence would be a hazardous enterprise at best, it declared.

 

The underlying purpose of the land-use law was to encourage development of the state’s lands for those uses to which they are best suited for the public welfare, the court said. The law created a regulatory system under which all land in the state is classified by the Land Use Commission (LUC) into one of four districts: rural, agricultural and conservation. Within the agricultural district, land is further subclassified according to its soil productivity. Once lands are classified, each county is authorized to enact zoning ordinances to regulate the use of land. Enforcement of restrictions and conditions relating to land-use classification districts rests with the county official charged with administering the zoning laws. The court noted that in 2004, the Hawai’i Supreme Court ruled the LUC did not have authority to enforce ch 205. While the LUC had authority to impose conditions to uphold the intent and spirit of ch 205, it lacked the power to enforce those conditions, the supreme court said. That power clearly rested with the appropriate officer or agency charged with enforcing the county zoning laws. In light of that holding, the appeals court said it would be incongruous to hold the legislature intended to grant private citizens authority to enforce the provisions of ch 205, if the LUC lacked such authority. Consequently, the court concluded, a private citizen does not have standing to enforce the land-use law, because such authority is not explicitly or implicitly contained in the law, and implying such authority would be contrary to the legislature’s intent in enacting the law.

 

Pono v. Molokai Ranch, Ltd., 2008 WL 4639719 (HI App. 10/21/2008).

 

The opinion can be accessed at: http://www.state.hi.us/jud/opinions/ica/2008/ica28359.htm

 

Special thanks to James Lawlor, Esq. of the Land Use Legal Report for this abstract.  For subscription information to the bi-weekly Report, contact Jim Lawlor at landlaw@verizon.net.


Responses

  1. Pono has applied for cert review with the Hawaii Supreme Court. The application and opposition briefs are available at:

    http://www.inversecondemnation.com/inversecondemnation/2008/12/-hawsct-cert-briefs-in-jurisdiction-case.html

  2. Dec 29, 2008 update: the Hawaii Supreme Court has rejected the application for writ of certiorari, so the Intermediate Court of Appeals’ decision, as summarized by Prof Salkin, stands.

    http://www.inversecondemnation.com/inversecondemnation/2008/12/hawsct-declines-to-review-ica-decision-no-private-standing-to-enforce-land-use-law.html


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