HAWSCT Rejects County's Argument That Property Owner Must Change The Law To Ripen Takings Claim

by Robert Thomas, InverseCondemnation.com

That was quick. As we predicted (and urged), the Hawaii Supreme Court today without comment rejected the County of Maui's application for a writ of certiorari, which asked the court to review the Intermediate Court of Appeals decision in in Leone v. County of Maui, No 29692 (June 22, 2012) (Supreme Court order here).

[Practice sidebar: Hawaii has one intermediate appellate court (so we don't have lower court "splits," and under Hawaii appellate procedure, the Supreme Court may "accept" or "reject" an "application" for cert based on whether the ICA "gravely erred."]

In Leone, the ICA held that property owners alleging a Lucas regulatory taking are not required to seek an amendment to the Community Plan (in Maui County, the CP is like a General Plan in other jurisdictions) in order to ripen their takings claims. A CP amendment is a legislative act, and plaintiffs are not required to try to change the law before they seek just compensation. The County's cert app argued that a CP amendment was like a variance, and that under Williamson County, the property owners had an obligation to try to get an amendment before their takings claims were ripe.

Disclosure: we filed an amicus brief supporting the property owners' arguments.

More on the case here.