Trial Court Agrees with State on Stopping Unauthorized Erosion Control Measures on the North Shore of Oahu

This case serves as a cautionary tale for littoral landowners in Hawai‘i. It underscores the importance of understanding shoreline boundaries, obtaining proper permits for erosion control, and respecting the public trust doctrine.  

On September 24, 2024, the State of Hawai‘i filed a complaint against Joshua VanEmmerik, the owner of two residential properties in Haleiwa, for alleged unauthorized erosion control measures that have caused significant debris to fall onto State-owned beach lands and into the ocean. On September 26, 2024, the court granted a Temporary Restraining Order (TRO) to prevent further harm to the environment and public resources.

Here are key takeaways for littoral landowners from this case:

1. Understand Shoreline Boundaries

The State of Hawai‘i owns all land seaward of the “upper reaches of the wash of the waves.” As confirmed in County of Hawai‘i v. Sotomura (1973), this boundary typically aligns with vegetation lines or debris marks left by waves. Littoral landowners must be aware that any construction or erosion control measures that extend seaward of this boundary encroach on State land within Hawaii's Conservation Districts.

2. Unauthorized Erosion Control Measures Can Lead to Legal Action

In this case, VanEmmerik installed erosion control measures, such as geotextile tubes and other solid materials, without obtaining the required permits from the Department of Land and Natural Resources (DLNR). The court found that these unauthorized actions violated the State’s regulations for conservation districts and posed immediate environmental hazards.

Littoral landowners should be aware that all land use activities within Hawaii's Conservation Districts, including erosion control measures, are regulated under Hawai‘i Revised Statutes (HRS) § 183C. Unauthorized actions can lead to enforcement actions, fines, and the need for costly removal of the materials.

3. Permitting Is Critical for Shoreline Management

The State regulates land uses within the Conservation District through a strict permitting process implemented by DLNR's Office of Conservation and Coastal Lands. As highlighted in this case, the owner had requested emergency permits to install erosion control devices but was denied due to prior violations. Littoral landowners must ensure compliance with permit requirements for any activities that may affect coastal lands and submerged lands. Failure to obtain proper permits may result in legal consequences and prevent future emergency approvals.

4. Public Trust Doctrine and Environmental Protection

Hawai‘i’s public trust doctrine ensures that shoreline areas, including beaches and submerged lands, remain open for public use and are protected from environmental harm. In this case, the debris from VanEmmerik’s property blocked public lateral access along the shoreline and created hazards for beachgoers and marine life. Littoral landowners should recognize that their property rights end where the public’s rights begin, and they are obligated to ensure their actions do not infringe on public trust resources.

5. Proactive Compliance Can Prevent Greater Liability

Proactively addressing shoreline erosion in a manner that complies with State regulations can prevent significant legal liability. In this case, the State is seeking declaratory relief, injunctive relief, and damages to restore the impacted shoreline. For landowners, this serves as a reminder that acting prudently to manage erosion and comply with legal requirements is essential to avoiding costly litigation and damage to natural resources.

Hawai‘i Supreme Court Upholds Prohibition on Short-Term Vacation Rentals in Agricultural Districts

In a recent opinion, Rosehill v. State of Hawai’i Land Use Commission, the Hawai’i Supreme Court (HSCT) reinforced the agricultural district’s purpose under state land use law, holding that farm dwellings in the agricultural district cannot be used as short-term vacation rentals. This decision underscores the state’s commitment to preserving agricultural lands for agricultural purposes, a principle enshrined in Hawai’i Revised Statutes (HRS) Chapter 205.

The HSCT’s Holding

At the heart of this case was a dispute over whether short-term vacation rentals could be allowed in farm dwellings in the agricultural district. The Rosehill Petitioners argued that their farm dwellings should be allowed to operate as short-term vacation rentals, pointing to the absence of a specific minimum rental period in the governing statutes. They claimed that their use of the dwellings as rentals for 30 days or fewer should qualify as a permissible use under HRS § 205-4.5(a)(4), which permits farm dwellings in agricultural districts.

However, the HSCT disagreed, siding with the Land Use Commission (LUC) and the County of Hawai’i. Both argued that allowing short-term vacation rentals would undermine the purpose of the agricultural district. The HSCT held that farm dwellings must be used in connection with a farm or involve income from agricultural activity, and short-term vacation rentals are incompatible with this requirement.

Preserving Agricultural Land Use

The HSCT emphasized that the primary goal of the agricultural district is to preserve land for agricultural use. The decision reinforces the legislative intent behind the state’s land use law, which, in sum, prevents agricultural land from being repurposed for non-agricultural uses that could erode the long-term viability of Hawai’i’s agricultural economy.

The HSCT pointed to the clear language of HRS § 205-4.5(b), which restricts any unpermitted uses in the agricultural district. Since short-term vacation rentals are not listed as a permitted use, they are prohibited. The HSCT further rejected the petitioners’ argument that farm dwellings could serve both agricultural and transient accommodation purposes, stating that short-term vacation rentals would undermine the agricultural focus of the land.

In re Kanahele and the Issue of Jurisdiction

In addition to the substantive land use issues, the case highlighted an important procedural point regarding the jurisdiction of appeals from agency declaratory orders under HRS § 91-8.  Citing its recent opinion, In re Kanahele, the HSCT held that Rosehill Petitioners should have directly appealed the LUC’s declaratory order to the HSCT, not the circuit court.

This jurisdictional rule stems from Act 48, which amended Hawai’i’s land use laws to provide for the HSCT’s direct review of certain contested cases. In Kanahele, the HSCT expanded its jurisdiction to hear direct appeals to agency declaratory orders. Consequently, the Rosehill Petitioners’ case was transferred to the HSCT; however, the HSCT held that “the circuit court’s findings of fact and conclusions of law have no weight.” This highlights the importance of navigating the correct procedural path when appealing agency decisions.

HSCT Defers to Agencies

In its decision, the HSCT addressed the issue of agency deference, affirming that it will generally defer to an agency’s interpretation of ambiguous statutes unless that interpretation is “plainly erroneous or inconsistent with the underlying legislative purpose.” The HSCT upheld the LUC’s interpretation of HRS § 205-4.5, emphasizing that the LUC’s reading aligned with the statute’s goal of protecting agricultural lands. In doing so, the HSCT explicitly noted that its approach to administrative deference differs from recent shifts in federal jurisprudence, particularly the U.S. Supreme Court’s (SCOTUS) overruling of Chevron v. Natural Resources Defense Council in Loper Bright Enterprises v. Raimondo. The HSCT pointed out that unlike the federal courts, which have moved away from deferring to agencies in cases of statutory ambiguity, Hawai’i courts continue to respect agency expertise in interpreting complex regulatory schemes when consistent with legislative intent. This approach underscores Hawai’i’s commitment to preserving judicial deference in administrative matters.

Key Takeaways

• Short-Term Rentals in Agricultural Districts Are Prohibited. The HSCT’s decision firmly establishes that short-term vacation rentals are incompatible with farm dwellings in agricultural districts.
• Enforcement of County Ordinances. The County of Hawai’i’s ordinance prohibiting short-term rentals on lots created after June 4, 1976, in the agricultural district was upheld. Counties can enforce such ordinances, even when they impose stricter limitations than state law.
• Direct Appeals Under Act 48. The HSCT’s citation to In re Kanahele reminds us that appeals from LUC declaratory orders must go directly to the HSCT, bypassing the circuit court. 
• Agency Deference. The HSCT expressly stated that it recognizes the principle of agency deference and disagrees with SCOTUS’s overruling of Chevron.

The Rosehill decision affirms the state’s commitment to protecting agricultural lands from incompatible uses and sets a clear line on allowed uses in the agricultural district. 

Hawai'i Court Holds that Consideration of Severance Damages in Honolulu Rail Case Should be Left to the Jury

On December 29, 2023, the Hawai’i Supreme Court ("HSCT") issued an opinion in the City and County of Honolulu v. Victoria Ward.

The case concerns the amount of just compensation the Honolulu Authority for Rapid Transportation (“HART”) must pay for approximately two acres worth of easements on property previously owned by Victoria Ward, Limited (“Victoria Ward”), a Howard Hughes company. That property is located in Victoria Ward’s multi-billion dollar Ward Village development in the Kaka’ako neighborhood of O’ahu. HART obtained the easements to construct portions of its fixed rail system and a proposed Kaka’ako Station to be located at Halekauwila Street and Ward Avenue. 

Source: HART, Station 20 Kaka‘ako, Kūkuluae‘o

The dispute centers around a disagreement over the value of just compensation, which the City owes landowners when condemning all or a portion of their property for public uses under the state (Article I, sec. 20) and federal (5th Amendment) constitutions. HART estimated Victoria Ward’s total just compensation at $13.67 million. Victoria Ward seeks just compensation from HART for the takings comprised of (1) the fair market value of easements on Victoria Ward’s property, plus (2) between $65 million and over $100 million for alleged severance damages.  

Victoria Ward’s theory of the case focuses on severance damages. Severance damages compensate property owners for devaluing non-taken portions of the property. Victoria Ward is seeking damages for lost development opportunities because it claims it was forced to modify, redesign, and/or relocate other building plans in a manner that resulted in less efficient, less valuable, and less profitable projects relative to what the development could have been worth absent rail and the associated takings.

The questions before the HSCT on interlocutory appeals involved several summary judgment motions granted in whole and in part by the circuit court. The key holdings of the HSCT are:

•  “. . . by entering into the Master Plan Permit and Development Agreement [with the Hawai’i Community Development Authority], Victoria Ward is obligated to address and incorporate rail. But it is the province of the jury to determine the contours of this obligation and to calculate the amount of severance damages, if any, to which Victoria Ward is entitled.”
• “. . . there is a genuine dispute of material fact as to whether Victoria Ward adequately reserved the right to collect severance damages in exchange for the benefits arising from the Master Plan Permit and the accommodations of rail. Thus, Victoria Ward is not precluded as a matter of law from seeking severance damages under an estoppel by acceptance theory.”
• “. . . the circuit court properly exercised its discretion to pause the accrual of statutory interest for the duration of the appeals.”

The HSCT was critical of the circuit court’s granting of summary judgment motions where there were genuine issues of material fact that should be decided by the jury, for example:

• “[S]eeking severance damages involves disputed questions of fact and should be presented to a jury,”. . . “it is the province of the jury to determine the contours of this obligation and to calculate the amount of severance damages, if any, to which Victoria Ward is entitled.”
• “[B]oth parties present substantial evidence in support of their positions, and determination of the disputed question of whether Ordinance 07-001 and the LPA ‘established’ the rail route must be presented to a jury.” The City Council adopted Ordinance 07-001, which sets the locally preferred alternative, or LPA, for the “Honolulu High-Capacity Transit Corridor Project . . . a fixed guideway system between Kapolei and the University of Hawaii at Manoa, starting at or near the intersection of Kapolei Parkway and Kalaeloa Boulevard.”
• “[A] jury should have the opportunity to ascertain the parties’ understanding of the Master Plan Permit” to determine compensable development expectations.
• The HSCT agreed with Victoria Ward that “[t]his is a classic battle of the experts for the jury to consider.”

Read more at https://www.courts.state.hi.us/wp-content/uploads/2023/12/SCAP-22-0000335.pdf.

Presentation at the 2022 VIRTUAL BAR CONVENTION

How to Help the Maui Community after Devastating Wildfires in Lāhainā and Upcountry Maui

Last week brought us news of multiple, devastating fires across Maui, causing loss of life and property. The fires continue to burn.

According to the County of Maui, multiple structures have burned, and numerous evacuations are in place as firefighter crews continue battling brush and structure fires in the Upcountry and Lahaina areas. The American Red Cross is staffing emergency shelters.

According to the Pacific Disaster Center, as of August 11, 2023, damage assessments related to the Lahaina Fire resulted in an estimated total of 2,719 structures exposed, 2,207 structures damaged or destroyed, and 2,170 acres burned. Eighty-six (86) percent of buildings exposed to the fire were classified as residential.

The people of Maui will need our help in the days to come. Here are some ways you can help now:

• Maui Red Cross. Providing Shelter and Comfort to Victims.
• Maui Food Bank. Donate money or drop off your food donations at any Maui location.
• Maui Humane Society. Donate money to help impacted pets and pet owners; information on how to help lost pets reunite with their owners.
• University of Hawai‘i Maui College Student Aid Fund. 100% of your gift will directly support students and/or faculty or staff.
• Maui United Way. Aloha United Way has created the Maui Relief Fund that will go directly to efforts supporting victims of the fires.
• Maui Community Foundation. The Maui Strong Fund supports Maui communities affected by recent fires, including response and recovery efforts.
• Hawai‘i Salvation Army. Accepting monetary donations and large volume meal donations from restaurants and certified kitchens to aid in mass meal service at Maui shelters.

Resources for Maui folks Directly Impacted:

• Maui Nui Strong. Donate. Volunteer. Find resources. Maui Nui Strong is a County of Maui economic development program that connects its residents, businesses, and visitors to useful information about Maui County, its diverse islands, and various resources that help promote thriving and vibrant communities.
• Hawai‘i Emergency Management Agency, State of Hawai‘i. The Hawai‘i Emergency Management Agency supports wildfire response and recovery efforts in Hawai‘i and Maui counties. Daily situation updates are posted on Facebook. 
• Hawaiʻi Fire Relief Housing Program. A program offered by the Hawai‘i Housing Finance & Development Corporation, State of Hawai‘i. The program aims to connect those in urgent need of housing due to the Maui fires with Hawaiʻi homeowners willing to assist by temporarily offering unoccupied rooms, units, or houses.
• Maui Fire Resources. This list includes information on Shelters, Finding Loved Ones, Returning Home, FEMA Individual Assistance, Food Assistance, Small Business Administration Disaster Loans, Crisis Counseling, Disaster Distress Helpline, and more from the Office of U.S. Representative Jill Tokuda.
• Legal Aid Society of Hawaiʻi (LASH). Coordinates and collaborates on pro bono disaster recovery legal services, part of the State’s emergency recovery efforts. Their Maui response page is up.
• Hawai‘i Department of Commerce and Consumer Affairs. Guidance regarding Insurance Policy Claims Following Wildfires.
• Hawai‘i State Bar Association Legal Hotline. FREE legal hotline to provide legal assistance to the residents of Maui and the Big Island. Attorneys will be available to answer questions regarding document replacement, insurance claims process, landlord-tenant matters, and other issues.

May our family, friends, and neighbors on Maui stay safe.

Annual Planning Law Update at the Hawaii Congress of Planning Officials

RECENT DEVELOPMENTS IN PLANNING AND LAND USE LAW from Jesse Souki

Penn Central Presentation at 2020 Hawaii State Bar Association Virtual Convention

On Friday, October 16, 2020, I joined a panel at the 2020 Hawaii State Bar Association Virtual Convention on Regulatory Takings After Knick.  I was surrounded by takings luminaries, but I held my own with an introduction to the Penn Central Test.  Here it is.

Penn Central Regulatory Takings from Jesse Souki