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Sunday, August 15, 2010
State Zoning Statutes As "Environmental" Laws - More On HAWSCT's Ala Loop Decision
By Robert Thomas @ 11:09 AM :: 9143 Views :: Hawaii County , Education K-12, Environment

State Zoning Statutes As "Environmental" Laws - More On HAWSCT's Ala Loop Decision

by Robert Thomas

In County of Hawaii v. Ala Loop Homeowners, No. 27707 (July 9, 2010), the Hawaii Supreme Court held that certain state zoning laws are "environmental" laws that may be enforced by private plaintiffs. 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.

In What Does Right to Clean Environment Mean, Honolulu Civil Beat's Michael Levine reports on the case, and various reactions (including ours):

The right to challenge zoning rules in court will not be totally unfettered. Courts must still decide whether a plaintiff has standing. The majority opinion explained the difference between a right of action and standing:

"The private right of action inquiry focuses on the question of whether any private party can sue to enforce a statute, while the standing inquiry focuses on whether a particular private party is an appropriate plaintiff." (emphasis in original)

Limitations on standing — which differentiate those with a horse in the race from the general public — have historically been used to keep the courts out of the business of answering broad hypotheticals, said land use attorney Robert Thomas. That approach leaves generalized grievances in the hands of lawmakers who are better equipped to address political matters.

Thomas has blogged about the case extensively at and also worked on the Pono vs. Molokai Ranch case that established precedent in this area of Hawaii law before it was relegated to the history books by the Ala Loop decision.

"Based on the court's reasoning, at least, it at appears to be very broad," Thomas said of the potential impact of the Ala Loop decision. "Essentially this is sort of the start of it and we don't know where it's going to go, but it's possible now ... that anyone with standing can run to court. So will that exponentially expand (the number of lawsuits)? We don't know."

Thomas was not alone in his skepticism of the decision.

In an 82-page concurring and dissenting opinion [pdf], Associate Justice Simeon Acoba agreed that the Ala Loop homeowners had standing to challenge the zoning decision in court because they were adjoining landowners who could argue the decision would interfere with the enjoyment of their property.

Any hope that the standing doctrine will serve as a check against state courts being drawn incautiously into political and policy debates needs to read this.

Maui enviro attorney Isaac Hall is quoted as saying it "took a lot of courage" for Recktenwald to author the opinion, which in our view is a curious statement. If the Ala Loop decision was merely applying article XI and was not stretching the term "environmental" well past what it was meant to cover, we have to wonder why it would take "courage" for the court to follow and apply the law. And Hall's implication that authoring Ala Loop torpedoed Justice Recktenwald's chances of being appointed Chief Justice seems farfetched. One decision -- however aberrant it may be considered by the executive branch -- does not an appointment kill, nor a career make. 

Levine's story treats the issues fairly, and his piece is worth reading (it may be partially behind a paywall, but Civil Beat subscriptions are not expensive, and it covers stories more in-depth than the Star-Advertiser is able to).

Note: the State has sought reconsideration of the Ala Loop opinion, so there may be more to come.



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