The Maui lawsuit attacks the validity of the Upcountry water meter waiting list;
asserting constitutional claims of uncompensated taking and violation of equal protection and due process.
Suit against county claims equal protection,
due process violated
By HARRY EAGAR, Staff Writer
reprinted courtesy Maui News 2/7/10
Addresses on Alanui Place mailboxes in Kula skip lot 25, to the left, which
remains unbuilt because owner John Davis cannot get a water meter, although
other lots in the subdivision, such as the one at right, have meters and
houses.
All James Davis wanted was a water meter for his lot in Kula, like his neighbors have. He asked the Department of Water Supply, was denied, appealed and was denied again.
On Friday, he filed suit in U.S. District Court in Honolulu, but it's about more than just a 2.2-acre residential lot in Kula now. Through his attorney, James Fosbinder, Davis is asserting constitutional claims of uncompensated taking and violation of equal protection and due process. The claims attack the validity of the Upcountry water meter waiting list and, potentially, East Maui Irrigation Co.'s access to water for Hawaiian Commercial & Sugar Co.
The defendants are the county, the Department and Board of Water Supply, Mayor Charmaine Tavares and Director of Water Supply Jeff Eng.
Spokeswoman Mahina Martin said Saturday that the county had not yet seen the lawsuit and had no comment.
Davis was born and raised on Maui and graduated from Baldwin High School. He joined the Air Force, and although he intended to return to Maui, circumstances have kept him in Sacramento, Cailf., since 1974. But, the suit says, 40 years ago he bought a residential lot on Maui, for which he has paid taxes every year. Now he has retired and wants to live on his property in the 19-lot Kealahou Subdivision, which was platted in 1962.
A key claim in the takings allegation is that subdivision covenants limit the land's use to residences. A "regulatory taking" occurs when government makes rules that prevent an owner from beneficial use of his property.
There can be partial takings, but over the years, Maui County has often argued that even if zoning limits an owner's other beneficial uses, there is always agriculture.
Davis says that when he asked for a meter in the early 1970s, he was told he could have it but would have to pay for a $10,000 fire hydrant, which he could not then afford. The department "had or developed a practice of waiving fire hydrant requirements at the discretion of the county officials and in violation of the rules of defendant DWS," the complaint says. But, "such waivers were not generally known . . . and were granted on a discretionary and unfair basis, costing the county millions of dollars. Plaintiff had no notice at any time of such waivers."
Most of the other owners obtained meters and built homes. Davis' lot is now assessed by the Real Property Division at $533,900. But without water, the suit says, the true value is only a fraction of that.
That's the basis of the claim that the government took part of the value of Davis' property by its "arbitrary and unfair rule-making and selective enforcement."
In an interview, Fosbinder said a recent 5-4 U.S. Supreme Court decision on takings concerning a Lake Tahoe development moratorium "seems to invite" a challenge. But because of the seeming uncertainties, this part of the suit would likely go to the 9th U.S. Circuit Court of Appeals, if he can get the District Court to recognize jurisdiction.
As for the other claims in the suit, Fosbinder believes the law is more firmly settled on the issues of procedural due process (the claim that the county's water regulatory process is a sham); substantive due process (the claim that there is no legitimate state interest in using water meters to limit growth Upcountry); and equal protection.
The history of county water in Kula is one of shortages during droughts and controversy about who, if anyone, could have a meter. Fosbinder begins the regulatory history well after Davis bought his land in 1977.
In that year, the water department adopted its rules and regulations, including the Kula Rule, a policy that determined how water meters could be issued Upcountry, which was extended or amended nine times before being abandoned in 1993.
"These rules condition service on the availability of water, but this does not diminish defendants' responsibility to provide water where it is possible to do so and to develop and maintain public water sources and infrastructure," the complaint says.
The suit says all the rules and changes before 2002 don't apply to Davis, but they do establish how the county used meters to both benefit certain developers and to prohibit development in Kula.
In the 2003 minutes of the Board of Water Supply, Fosbinder found a statement from the chairman that " only the water department has had 'the balls' to 'create smart growth' by perpetuating the unavailability of water."
In a brief historical and enviromental statement that reveals why this suit, if successful, would be a threat to EMI, Fosbinder writes, "Upcountry drought was caused by people, not nature. Before 1850, Kula had an abundance of water, with large forests harvesting rain from the clouds."
He adds, "There is an ocean of sugar cane Upcountry in Haliimaile, sucking water and polluting the aquifer with toxic chemicals, while the unprofitable crop helps HC&S and its parent company hold land and water rights for investment purposes. In the inevitable transition out of sugar, wells have been dug Upcountry for high-end residences. . . . Upcountry aquifers have even been tapped to feed development on other parts of the island. At the same time, existing wells, reservoirs and distribution systems for the benefit of the general public Upcountry have been badly neglected, and new ones are not built.
"Individuals such as plaintiff cannot afford to drill a well, which would cost $2 million to $5 million. The availability of water for private developers and sugar cane demonstrates that there is no real shortage of water. Upcountry water shortages have been and still are perpetuated by defendants' complicity in the private control of public water and their intentional failure to remedy inadequate storage and distribution capacity and an aging, inefficient infrastructure.
"Defendants are engaged in an ongoing effort to support large agricultural users and favored developers, while denying water to local residents and small landowners."
In more recent history, dissatisfaction with the Kula Rule led the water director in 1993 to make a "finding" that there was a water shortage in the entire Upcountry area and institute a moratorium on new water service. However, the courts found this was invalid rule-making.
The board then advised the director to continue to deny meters, but only after reviewing applications individually. That led to the creation of the Upcountry water meter priority list.
It was a big issue on Maui, but Davis says he never knew about it, because the county did not make an effort to inform off-island property owners.
The original list acknowledged that property owners of old had meter rights, even if the department could not satisfy them, so in 2002 the county moved to extinguish those rights, after giving owners 60 days to pay for a meter or a meter reservation.
Davis says he did not know about the change and so did not act to preserve his interest, so that's when he applied for four meters in 2008, he was rejected and put at the bottom of the priority list, which the suit claims is a perpetual moratorium, since there are 1,300 names on it, but only a few dozen new meters are issued each year.
The suit says, "The water meter regulatory scheme illegally deprives individuals and families Upcountry of their right to water under the County Water Code and also under state law."
The complaint's statement of facts and allegations concludes: "Smart growth is undeniably a laudable policy, which should be legally implemented through the Maui County Planning Department and fairly enforced. With the planning process stalled for 20 years in Maui County, plaintiff is one of many innocent and trusting individuals and families denied water, as defendants attempt to manage growth by unfair administrative discretion and deals with favored developers. "
The lawsuit asks for a jury trial. It asks for an injunction, a declaration that the county's practices are illegal and unconstitutional, and money damages.
There are six claims: that "implementation of rolling (and now permanent) moratoria on water meters Upcountry constitutes a per se and total regulatory taking of the property without compensation"; that due process was violated by not providing notice; that substantive due process was denied because the regulations are "arbitrary and irrational . . . not related to any legitimate government purpose, and impose an arbitrary burden on small Upcountry landowners and on out-of-state landowners"; that equal protection of the law was denied because the regulations have a disparate impact on small Upcountry landowners and on out-of-state landowners; that an injunction should prevent the county from denying meters to Davis and others in similar situations; and that the county measures should be declared illegal.
* Harry Eagar can be reached at heagar@mauinews.com.
reprinted courtesy Maui News 2/7/10, original link www mauinews.com/page/content.detail/id/528426.html
brought to you by Wailea Makena Real Estate Inc.
www.Wailea-Makena-real-estate.com
Peter Gelsey R (PB)
Wailea Makena Real Estate, Inc.
direct (808) 344-8000
Toll free 800-482-5089
fax (808) 442-0946
email peter@petergelsey.com