This document discusses various laws and regulations related to land use in Hawaii. It outlines the origins and evolution of land use regulation from pre-zoning common law to modern zoning codes at the state and county level. It also examines concepts like eminent domain, regulatory takings, vested rights, and the public trust doctrine—and how they shape and sometimes limit the government's ability to interfere with private property rights. The layers of overlapping federal, state, and local authorities that govern land use in Hawaii are described.

1. Water Rights, Property Rights,
and the Law of Settled
Expectations
Robert H. Thomas
www.inversecondemnation.com

2. “Land Use”
• What is at stake?
• How is it accomplished?
• Who are the players?
• Where do you go to affect change?

3. Laws are “made” by…
People
Legislature
Agencies
Courts

4. Pre‐zoning land use
• Courts, not Legislature
• Anything not injurious
to neighbors
• Public trust
• Eminent domain

5. Origins of Land Use Regulation
• State Zoning Enabling
Acts
• Broad division of land
classifications
• Everything in its place
• Euclid – zoning
constitutional

6. Multiple Layers
• Clean Water Act, ESA,
Rivers & Harbors Act,
COE, FWS
• LUC, CZMA, BLNR,
CWRM
• Zoning, Building Code,
SMA permits, DPP,
setbacks
• Federal
• State
• County

7. Why Divisions of Authority?
• Federalism
• Home Rule

8. Overlapping State Regulations
State Planning Act
Others (PASH)
County Zoning Codes
Planning Commissions
The Land Use Law
Coastal Zone Management Act
Zoning Enabling Act
ESA
Clean Water Act
HRS 343 EIS

9. Hawaii State Planning Act
• Haw. Rev. Stat. Ch. 226
• State Functional Plans
– Agriculture
– Conservation Lands
– Historic Preservation
• Functional Plans must reflect State priorities
and consider county plans

10. State‐Wide Zoning
• Haw. Rev. Stat. chapter 205
• Enacted in 1961
• Response to perceived lack of
planning and development of
prime agricultural lands by
counties
• Land Use Commission
• Classified all land

11. Urban
• Existing or planned
urban development
• County controlled
• 4% of lands in State

12. Agricultural
• Prime Agricultural (A & B soil rating)
• Non‐Prime Agricultural (C, D, E, U)
• All uses not permitted are prohibited

13. AG Land?

14. Conservation
• Watersheds
• Scenic and historic
areas
• Plant and wildlife
habitats
• Parks
• Open space

15. Rural
• Small farm and large lot residential
• Underutilized District ‐ .2%

16. State Land Use Classes
• Urban
• Rural
• Agricultural
• Conservation
?

17. • Urban
• Rural
• Agricultural
• Conservation
?

18. County Zoning Codes
• State Planning Act, HRS ch. 226
• Zoning Enabling Act, HRS § 46‐4
– Honolulu: LUO ch. 21
– Maui: Maui County Code ch. 19.04
– Hawaii: Hawaii County Code ch. 25
– Kauai: Kauai County Code ch. 8.

19. Restrictions on Government’s ability to interfere with
property
• Fifth Amendment
• Fourteenth Amendment
• Hawaii Constitution
• Statutory
• Governments of limited powers – those not
enumerated are reserved to the people

20. Eminent Domain
• “Nor shall private property be taken without
just compensation”
• Taking by condemnation
• Taking by overregulation

21. Regulatory Takings
• Basis of claim – oppressive regulation = de
facto confiscation
• Shortcut
– Paying for the change
– Unfair distribution of burden
• Key question: how far is “too far?”

22. Vested Rights
• Right = “Property”
• Equitable estoppel
• Green light + assurances
• Unfair to stop

23. Vested?

24. Vested?

25. Public Trust
• “All public natural resources…”
• “…are held in trust…”
• “…for the benefit of the people.”

26. • “…the State and its political subdivisions…”
• “…shall conserve and protect Hawaii's natural
beauty and all natural resources…”
• “…including land, water, air, minerals and energy
sources...”
• “…shall promote the development and utilization
of these resources in a manner consistent with
their conservation and in furtherance of the self‐
sufficiency…”

27. Hawaii Supreme Court’s Public Trust Doctrine
• Leaves the question of how the public trust
doctrine applies to land. Waiahole at 133
• "We need not define the full extent of article
XI, section 1's reference to 'all public
resources' at this juncture.“

28. Govt’s Public Trust Duty
• Act within jurisdiction
• Take “reasonable measures” to consider the
resource
• “make appropriate assessments” to protect
the resource

29. Water Rights, Property Rights,
and the Law of Settled
Expectations
Robert H. Thomas
www.inversecondemnation.com