12-29-2009, 03:22 PM
Nexus was granted in favor of the city. The right to place conditions on property via zoning codes, building codes, development codes, etc. are legal for government. The unconstitutional condition was granted in favor of Dolan. The degree of the conditions amounted to an unconstitutional taking by government. But the issue we are discussing is codes, permits and regulations and that part was upheld as a legal right of government. Even Dolan agreed government had a legitimate right to use permits and codes.
The case was legitimate because it was a taking under the 5th Amendment. But the court noted that permits required by government is also legal and was not a violation of law. As I said, we are talking permits and codes, both of which the US Supreme Court ruled are legal for government to require going back to 1904.
The government has the right to require permits; it’s not a legal issue that will ever succeed in a challenge. Its been tried and failed since the 1900's with the Supreme Court. Now is Hawaii’s absolute prohibition on owner/builder from doing any electrical or plumbing work legal? That depends if you can show that that requirement is inconsistent with law or is fatally flawed to rise to being unconstitutional on other grounds. That's what I'm searching for on the other post about this.
As far as shoreline access is concern, Hawaii law requires the private property be open to public use without control of the property owner. The property owner can not limit, restrict or bar passage. That is a taking. That is what Dolan won on. Developers know that and use the wording of Hawaii's shoreline access laws against the county.
The case was legitimate because it was a taking under the 5th Amendment. But the court noted that permits required by government is also legal and was not a violation of law. As I said, we are talking permits and codes, both of which the US Supreme Court ruled are legal for government to require going back to 1904.
The government has the right to require permits; it’s not a legal issue that will ever succeed in a challenge. Its been tried and failed since the 1900's with the Supreme Court. Now is Hawaii’s absolute prohibition on owner/builder from doing any electrical or plumbing work legal? That depends if you can show that that requirement is inconsistent with law or is fatally flawed to rise to being unconstitutional on other grounds. That's what I'm searching for on the other post about this.
As far as shoreline access is concern, Hawaii law requires the private property be open to public use without control of the property owner. The property owner can not limit, restrict or bar passage. That is a taking. That is what Dolan won on. Developers know that and use the wording of Hawaii's shoreline access laws against the county.