RECENT DEVELOPMENTS IN PLANNING AND LAND USE LAW from Jesse Souki ..read more

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 ..read more

The Hawaii Supreme Court has been creating new real estate and land use law over recent months, e.g., HawaiiUSA Fed. Credit Union v. Monalim, No. SCWC-16-0000807 (Apr. 30, 2020) (changing foreclosure math; concurring and dissenting opinion by Nakayama, J. in which Recktenwald, C.J., joins); and Haynes v. Haas, No. SCWC-16-0000570 (May 5, 2020) (expanding public nuisance damage awards). The latest is Lana’ians for Sensible Growth v. Land Use Comm’n, No. SCOT-17-0000526 (Haw. May 15, 2020) (concurring in the judgment and dissenting by Recktenwald, C.J., in which Nakayama, J., joins).  In ..read more

In a 3-2 decision, decided on April 30, 2020, in Hawaiiusa Federal Credit Union v. Monalim, the Hawaii Supreme Court took the opportunity to rewrite foreclosure law from the bench.  The Concurring and Dissenting Opinion (Nakayama and Recktenwald) summarizes the issue: The Majority adopts a new rule that will change Hawai‘i’s traditional method of calculating deficiency judgments. Under the new rule, mortgagors are entitled to a hearing to determine the “fair market value” of a property at the time of a foreclosure sale. The circuit court will be required to calculate the amount of ..read more

In the County of Maui, Hawaii v. Hawaii Wildlife Fund, decided by the U.S. Supreme Court on April 23, 2020, the Court weighed in on a long-simmering issue: What test should apply to determine whether a permit is required under the federal Clean Water Act (CWA)? Essentially, "[t]he Clean Water Act forbids the 'addition' of any pollutant from a 'point source' to 'navigable waters' without the appropriate permit from the Environmental Protection Agency (EPA)." In this case, "the County of Maui, operates a wastewater reclamation facility on the island of Maui, Hawaii. The fa ..read more

Due Process Right to a "Clean and Healthful Environment" from Jesse Souki ..read more

The Office of Environmental Quality Control ("OEQC") and State Environmental Council ("Council") submitted the final proposed rules to the Governor’s Office in April 2019.  Governor Ige announced that he plans to sign the rules on July 30, 2019, and the rules will take effect on August 9, 2019. The new rules will repeal the existing Hawai‘i Administrative Rules (HAR) Chapter 11-200, and adopt a new chapter, HAR Chapter 11-200.1.  OEQC provides a Rationale for Final Proposed HAR Chapter 11-200.1. Here are some things to consider when the new rules take effect: These rules do not amend or chan ..read more