by Robert Thomas www.InverseCondemnation.com
The State (actually Wai Ola/Waters of Life, the defunct charter school) has asked the Hawaii Supreme Court to reconsider its decision in County of Hawaii v. Ala Loop Homeowners, No. 27707 (July 9, 2010). In that case, the court held "[w]e further conclude that article XI, section 9 of the Hawai'i Constitution creates a private right of action to enforce chapter 205 in the circumstances of this case." Slip op. at 4.
The State argues:
Wai 'ola asks for reconsideration for three reasons. First, the Court has made new law that will significantly affect multiple sectors of our community, all levels of state and county government, and countless administrative and judicial proceedings that are pending in the courts and before state and county land use and environmental regulatory agencies.
Given the present procedural posture of the case, the principle of judicial restraint counsels again addressing the argument the Ala Loop Association and amicus advanced on certiorari, that article XI, section 9 implies a private right of action to enforce "laws relating to environmental quality:"
Here are the motion and the Ala Loop Homeowners' response:
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However, once on the Supreme Court, sources say, Lingle and Bennett started to have doubts about Recktenwald.
As the Star-Advertiser's Ken Kobayashi noted, Recktenwald invoked the state Constitution in a ruling last month that changed the way courts deal with competing interests of environmentalists and developers.
Environmental lawyers say it makes clear that private parties can pursue lawsuits under the constitutional provision that says "each person has a right to a clean and healthful environment," Kobayashi reported.