Flint et al v. County of Kauai

Filing 54

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFFS' MOTION FOR PARTIAL SUMMARYJUDGMENT re: 27 , 29 - Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 2/18/2021. For the foregoing reason, the County's Motion for Summary Judgment is GRANTED and Plaintiffs' Motion for Partial Summary Judgment is DENIED. The clerk of court is directed to close the case file. (jo)

Case 1:19-cv-00521-JMS-WRP Document 54 Filed 02/18/21 Page 1 of 36

PageID #: 663

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
SUSAN FLINT and GEOFFREY
FLINT,
Plaintiffs,
vs.
COUNTY OF KAUAI, ET AL.,

CIV. NO. 19-00521 JMS-WRP
ORDER GRANTING
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT AND
DENYING PLAINTIFFS’ MOTION
FOR PARTIAL SUMMARY
JUDGMENT

Defendants.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT AND DENYING PLAINTIFFS’ MOTION FOR PARTIAL
SUMMARY JUDGMENT
I. INTRODUCTION
This case arises out of devastating flooding that occurred on the island
of Kauai in 2018. The flooding caused widespread destruction and triggered
numerous landslides that damaged the only road into the north shore’s LumahaiWainiha-Haena area, wholly isolating communities there. In response, the County
of Kauai (“County”) enacted an Emergency Rule temporarily limiting access to the
area to residents and emergency workers until the road could be repaired and
normal travel could safely resume. The Rule remained in effect for slightly less
than one year.

Case 1:19-cv-00521-JMS-WRP Document 54 Filed 02/18/21 Page 2 of 36

PageID #: 664

Plaintiffs Susan and Geoffrey Flint (“Plaintiffs”) owned a property in
the Lumahai-Wainiha-Haena area, which they used as a transient vacation rental
(“TVR”). They were unable to rent the property to vacationers while the rule was
in effect. Plaintiffs allege that this temporary prohibition on vacation rentals
violated the United States and Hawaii Constitutions by (1) effecting a taking of
their property without just compensation; (2) depriving them of their right to
substantive and procedural due process; and (3) denying them equal protection of
the laws. Plaintiffs also allege that the Rule (4) violated the Contract Clause of the
United States Constitution; (5) violated Hawaii Revised Statues (“HRS”) Chapter
127A-21’s prohibition on requisition of property without just compensation; and
(6) that the County was equitably estopped from interfering with their vested right
to use their property as a TVR. ECF No. 1 at PageID ## 10-18.
The County now moves for summary judgment as to each claim and
Plaintiffs moves for summary judgment as to the takings, due process, and
Contract Clause claims. ECF Nos. 27 & 29. For the reasons set forth below, the
County’s Motion is GRANTED and Plaintiff’s Motion is DENIED.
II. BACKGROUND
From April 13 to 16, 2018, the island of Kauai was subject to heavy
rains and devastating flooding. ECF No. 28-15 at PageID # 200. Across the
island, flood waters entered buildings, washed homes off their foundations,
2

Case 1:19-cv-00521-JMS-WRP Document 54 Filed 02/18/21 Page 3 of 36

PageID #: 665

triggered landslides and sinkholes, and caused widespread electrical and water
system disruptions. Id. at PageID ## 201-02. Most severely impacted was the
Lumahai-Wainiha-Haena area on Kauai’s north shore (the “distressed area”). Id. at
PageID # 202; ECF No. 39 at PageID # 474. The flooding triggered more than a
dozen landslides along Kuhio Highway—the only road into the distressed area—
rendering the highway impassible and completely isolating the communities living
there. ECF No. 28-15 at PageID # 202. Because there are no first-responder
services located in the distressed area, these isolated communities were left without
medical supplies or assistance beyond what was available in their own homes and
in lifeguard towers. Id. at PageID # 203.
On April 14, 2018, the mayor of Kauai proclaimed a state of
emergency and assumed emergency powers pursuant to HRS Chapter 127 in order
to “provide relief for disaster damages, losses, and suffering, and to protect the
health, safety, and welfare of the people.” ECF No. 28-9 at PageID # 184. More
than 400 tourists were airlifted out of the distressed area by the U.S. Army and the
Hawaii National Guard and more than 43,000 pounds of food, water, and clothing
were delivered by the U.S. Army to trapped residents. ECF No. 28-15 at PageID #
203. The County considered completely evacuating the distressed area but
determined that relocating all residents from their homes and housing them for a
prolonged period would not be economically or logistically feasible. ECF No. 283

Case 1:19-cv-00521-JMS-WRP Document 54 Filed 02/18/21 Page 4 of 36

PageID #: 666

2 at PageID # 167. Thus, the County moved forward with disaster relief with the
“primary objective” of “[k]eeping residents in [their] homes while balancing
access for employment.” Id.
Pursuant to the emergency proclamation, the mayor issued “Mayor’s
Emergency Rule # 1” (“Emergency Rule”), effective May 4, 2018 through March
4, 2019. ECF 28-10 at PageID # 190. The Rule imposed a “prohibition on the
operation of Transient Vacation Rentals (TVRs) in the area” and limited access to
the distressed area to “[r]esidents (no visitors)” and emergency responders. Id.
The purpose of the Emergency Rule was to ensure the safe and efficient repair of
Kuhio Highway. ECF No. 28-17 at PageID # 209; ECF No. 28-2 at PageID # 168.
Landslides had caused structural damage to the road that required more than
“twenty-two major [repair] tasks[,] including the stabilization of the slope at
Wainiha Bay and the rebuilding of sections where the embankment below the road
was washed away in the disaster” before it would be safe for normal traffic to
resume. ECF No. 28-16 at PageID # 206. The prohibition on vacationers and
other visitors entering the distressed area was intended to reduce the number of
travelers on Kuhio Highway while repairs were ongoing, thereby protecting
construction workers and residents who had no choice but to use the unstable road,
as well as to reduce wear and tear on the road while critical repairs were ongoing.
See ECF No. 28-17 at PageID # 209; ECF No. 28-2 at PageID # 168. Because
4

Case 1:19-cv-00521-JMS-WRP Document 54 Filed 02/18/21 Page 5 of 36

PageID #: 667

Kuhio Highway is the only road into the distressed area and emergency response
resources in the area were virtually non-existent, the Rule also aimed to “maintain
a low number of individuals at risk in the affected area that may have required
emergency assistance.” ECF No. 28-2 at PageID # 168.
On July 11, 2018, the mayor announced his intention to extend the
Emergency Rule “until the roadwork repairs on Kuhio Highway, from Waikoko to
Wainiha, are completed and the highway is deemed safe for normal travel.” ECF
No. 28-18 at PageID # 211. The Rule was ultimately extended from its original
effective end date of March 4, 2019 until April 29, 2019. ECF No. 29-1 at PageID
# 297; ECF No. 27-1 at PageID # 132. On that date, the prohibition on TVRs was
lifted and visitors with verified reservations to stay at a TVR were allowed entry
into the area. ECF No. 28-11 at PageID # 191. All told, the prohibition on TVR
operations lasted just under a year, from May 4, 2018 to April 29, 2019.
In recognition of the economic hardships facing TVR operators while
the Rule was in effect, the County taxed their properties at the residential rate
rather than the higher TVR rate for the 2019 tax year. ECF No. 28-4 at PageID #
174. In addition, TVR operators were not required to comply with permitting

5

Case 1:19-cv-00521-JMS-WRP Document 54 Filed 02/18/21 Page 6 of 36

PageID #: 668

requirements to maintain their TVR licenses for the year following the expiry of
the Emergency Rule. 1 ECF No. 28-13 at PageID # 197.
Plaintiffs are a married couple living in California. ECF No. 30-2 at
PageID # 324. On January 17, 2017, they purchased a property in the LumahaiWainiha-Haena area for $926,000. ECF No. 28-4 at PageID # 175; ECF No. 30-3
at PageID # 361. The property had a valid nonconforming use TVR license and
Plaintiffs intended to “rent [the property] as a TVR, use it for personal use when
[they] visited Kauai, and as a long-term investment.” ECF No. 30-2 at PageID #
324-25. In March 2017, Plaintiffs purchased an adjacent parcel of land for
$371,000. ECF No. 28-5 at PageID # 177; ECF No. 27-1 at PageID # 131.
Plaintiffs renewed the TVR license for their property for the year 2018, ECF No.
29-1 at PageID # 294, and rented it out to vacationers until the Emergency Rule

1

TVRs are regulated on Kauai with the aim of balancing the interests of tourists and
residents of the island. ECF No. 30-3, at PageID ## 330-31. In 2008, the County enacted
Ordinance No. 864, which restricts TVR operations to areas that are zoned as “Visitor
Destination Areas.” Id. at PageID # 330. But properties that had been operating as legal TVRs
outside of Visitor Destination Areas prior to the promulgation of the ordinance were allowed to
maintain that status, provided they obtained a “non-conforming use certificate for single family
vacation rentals” by March 30, 2009. Id. at PageID # 339.
To obtain a certificate, property owners were required to submit evidence to the County
Planning Director demonstrating “that [the] dwelling unit was being used as a vacation rental on
an ongoing basis prior to the effective date of this ordinance and was in compliance with all State
and County land use and planning laws.” Id. In determining whether to issue a certificate, the
Planning Director was to consider whether the applicant was able to provide appropriate tax
licenses, deposits for reservations, and evidence of consistent occupancy by vacationers prior to
passage of the ordinance. Id. If the Planning Director deemed the applicant’s evidence of prior
use sufficient, he was required to issue a nonconforming use certificate, subject to a number of
restrictions. Id. Every owner or lessee who holds a nonconforming use certificate is required to
apply to renew the certificate each year. Id. at PageID # 340.
6

Case 1:19-cv-00521-JMS-WRP Document 54 Filed 02/18/21 Page 7 of 36

PageID #: 669

came into effect. See ECF No. 30-2 at PageID # 327. Plaintiffs were required to
cancel rental reservations as a result of the prohibition on TVR operations and “lost
significant rental income.” Id. On February 6, 2019, Plaintiffs sold their TVR
property for $920,000—$6,000 less than they had paid for it. See ECF No. 28-4 at
PageID # 175. In the same transaction, Plaintiffs also sold their adjacent property
for $500,000—$129,000 more than they had paid for it. See ECF No. 28-5 at
PageID # 177.
On September 26, 2019, Plaintiffs brought suit against the County
advancing a variety of federal and state constitutional claims, as well as state
statutory and common law claims. See generally ECF No. 1. On October 14,
2020, the County moved for summary judgment on all counts, ECF No. 27. The
same day, Plaintiffs filed a cross-motion for summary judgment as to their takings
claim, substantive and procedural due process claims, and Contract Clause claim.
ECF No. 29-1 at PageID ## 292-93. On December 30, 2020, both parties filed
oppositions, ECF Nos. 36 & 39, and on January 6, 2021, both parties filed replies,
ECF Nos. 41 & 43. A hearing was conducted by video teleconference on January
20, 2021, ECF No. 49.
III. LEGAL STANDARD
Summary judgment is proper where there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. Fed.
7

Case 1:19-cv-00521-JMS-WRP Document 54 Filed 02/18/21 Page 8 of 36

PageID #: 670

R. Civ. P. 56(a). Rule 56(a) mandates summary judgment “against a party who
fails to make a showing sufficient to establish the existence of an element essential
to that party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Broussard v. Univ. of
Cal. at Berkeley, 192 F.3d 1252, 1258 (9th Cir. 1999).
“A party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion and of identifying those portions of
the pleadings and discovery responses that demonstrate the absence of a genuine
issue of material fact.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th
Cir. 2007) (citing Celotex, 477 U.S. at 323). “When the moving party has carried
its burden under Rule 56[(a)], its opponent must do more than simply show that
there is some metaphysical doubt as to the material facts [and] come forward with
specific facts showing that there is a genuine issue for trial.” Matsushita Elec.
Indus. Co. v. Zenith Radio, 475 U.S. 574, 586-87 (1986) (citation and internal
quotation signals omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986) (stating that a party cannot “rest upon the mere allegations or
denials of his pleading” in opposing summary judgment).
“An issue is ‘genuine’ only if there is a sufficient evidentiary basis on
which a reasonable fact finder could find for the nonmoving party, and a dispute is
‘material’ only if it could affect the outcome of the suit under the governing law.”
8

Case 1:19-cv-00521-JMS-WRP Document 54 Filed 02/18/21 Page 9 of 36

PageID #: 671

In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing Anderson, 477 U.S. at
248). When considering the evidence on a motion for summary judgment, the
court must draw all reasonable inferences on behalf of the nonmoving party.
Matsushita Elec. Indus. Co., 475 U.S. at 587; see also Posey v. Lake Pend Oreille
Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir. 2008) (stating that “the evidence
of [the nonmovant] is to be believed, and all justifiable inferences are to be drawn
in his favor.”) (citations omitted).
IV. DISCUSSION
Plaintiffs assert a variety of federal and state constitutional claims as
well as state statutory and common law claims, all arising from the 2018
Emergency Rule. Specifically, Plaintiffs allege that “[u]nder the pretext of an
emergency proclamation” the County’s temporary prohibition on TVRs violated
the United States and Hawaii Constitutions by (1) taking their property without just
compensation; (2) depriving them of procedural and substantive due process; and
(3) depriving them of equal protection under the laws. ECF No. 1 at PageID # 2.
Plaintiffs also allege the Emergency Rule (4) violated the Contract Clause of the
U.S. Constitution; 2 (5) violated HRS § 127A-21 by requisitioning their property
2

Plaintiffs also allege, as a separate count, that the County “violated Plaintiffs
constitutional and civil rights in violation of [42 U.S.C. § 1983].” ECF No. 1 at PageID # 15.
But violations of the United States Constitution may only be brought against states and
municipalities under § 1983. Accordingly, the court construes each of Plaintiffs’ federal claims
as § 1983 claims and does not construe the generic § 1983 count as a separate claim.
9

Case 1:19-cv-00521-JMS-WRP Document 54 Filed 02/18/21 Page 10 of 36
672

PageID #:

without just compensation; and (6) that the County was equitably estopped from
interfering with their “vested rights in the continued use of the Property as a single
family transient vacation rental.” See ECF No. 1 at PageID ## 10-18. The court
considers each claim in turn.
A.

Takings
The Fifth Amendment guarantees that private property shall not be

“taken for public use, without just compensation.” U.S. Const., amend. 5; see also
Haw. Const., art. 1, § 20 (“Private property shall not be taken or damaged for
public use without just compensation.”). 3 As a threshold matter, to advance a
takings claim a plaintiff must establish that they possess a constitutionally
protected property interest. See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1000
(1984). Here, Plaintiffs argue that their “nonconforming TVR use is a vested
property right protected by the United States and Hawaii Constitutions.” ECF No.
29-1 at PageID # 299. “Generally speaking, state law defines property interests.”
Stop the Beach Nourishment, Inc. v. Florida Dept. of Env’t Protection, 560 U.S.
702, 707 (2010). But whether nonconforming TVR use constitutes a property right
appears to be an unsettled area of state law. See Maui Vacation Rental Ass’n, Inc.

3

Plaintiffs allege a taking without just compensation in violation of both the United
States and Hawaii Constitutions. Because “[t]he elements of takings claims under federal and
Hawaii law are the same,” Bridge Aina Leʻa, LLC v. Land Use Comm’n, 2018 WL 6705529, at
*4 (D. Haw. Dec. 20, 2018), the court analyzes these claims together.
10

Case 1:19-cv-00521-JMS-WRP Document 54 Filed 02/18/21 Page 11 of 36
673

PageID #:

v. Maui Cnty. Plan. Dep’t, 2020 WL 6829753, *4-6 (D. Haw. Nov. 20, 2020)
(declining to rule on this sensitive question of state law under the Pullman
abstention doctrine) (citing R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496
(1941)); Thinh Tran v. Dep’t of Plan. for Cnty. of Maui, 2020 WL 3146584, at *67 (D. Haw. June 12, 2020) (same). Here, and as set forth below, because
Plaintiffs’ takings claims fail on separate grounds, the court assumes without
deciding—and solely for the purposes of this Order—that Plaintiffs’ have a
constitutionally protected interest in the nonconforming use of their property as
a TVR.
Next, the court considers whether the County’s temporary prohibition
on TVR operations amounted to a taking of Plaintiffs’ property. The plain
language of the Takings Clause requires compensation when the government
physically takes possession of private property. Tahoe-Sierra Preservation
Council, Inc. v. Tahoe Regional Plan. Agency, 535 U.S. 302, 321 (2002). But
although “the Constitution contains no comparable reference to regulations that
prohibit a property owner from making certain uses of [their] private property,”
the Supreme Court has developed a separate “regulatory takings” jurisprudence to
address such situations. Id. at 321-22 (emphasis added). Because Plaintiffs argue
that a County Rule effected a taking, the court engages in a regulatory taking
analysis.
11

Case 1:19-cv-00521-JMS-WRP Document 54 Filed 02/18/21 Page 12 of 36
674

PageID #:

Underlying regulatory takings jurisprudence is the understanding that
the state must be afforded broad latitude to regulate for the public good. See
Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 491 (1987).
Nevertheless, “government regulation of private property may, in some instances,
be so onerous that its effect is tantamount to a direct appropriation or ouster . . .
compensable under the Fifth Amendment.” Lingle v. Chevron U.S.A. Inc., 544
U.S. 528, 537 (2005). Outside of two “relatively narrow categories” that are not
applicable here, 4 “regulatory takings challenges are governed by the standards set
forth in Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978).” Id.
at 538.
When reviewing a regulatory takings claim, Penn Central instructs
courts to consider: “(1) ‘[t]he economic impact of the regulation on the claimant,’
(2) ‘the extent to which the regulation has interfered with distinct investmentbacked expectations,’ and (3) ‘the character of the governmental action.’” Bridge
Aina Leʻa, LLC v. Land Use Commission, 950 F.3d 610, 630 (9th Cir. 2020)
(quoting Penn Central, 438 U.S. at 124), petition for cert. filed, (U.S. July 22,

4

These categories are (1) a permanent physical invasion of the plaintiff’s property, see
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982); and (2) a “total
regulatory taking,” in which the government action completely deprives the plaintiff of any use
of their property. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1993); see also
Tahoe-Sierra Preservation Council, 531 U.S. at 303 (holding that a temporary taking cannot
amount to a total regulatory taking because “[b]oth dimensions of a real property interest—the
metes and bounds describing its geographic dimensions and the term of years describing its
temporal aspect—must be considered when viewing the interest in its entirety”).
12

Case 1:19-cv-00521-JMS-WRP Document 54 Filed 02/18/21 Page 13 of 36
675

PageID #:

2020) (No. 20-54). In considering these factors, the court’s aim is “to determine
whether a regulatory action is functionally equivalent to the classic [physical]
taking.” Guggenheim v. City of Goleta, 638 F.3d 1111, 1120 (9th Cir. 2010) (en
banc) (internal quotation marks omitted).
Although the first and second Penn Central factors are the “primary
factors,” Bridge Aina Leʻa, 950 F.3d at 630 (citing Lingle, 544 U.S. at 538-39), the
outcome “depends largely upon the particular circumstances” of the case. Id.
(quoting Palazzolo v. Rhode Island, 533 U.S. 606, 633 (2001) (O’Connor, J.,
concurring)); see also Tahoe-Sierra Preservation Council, 535 U.S. at 322
(explaining that regulatory takings analysis consists of “essentially ad hoc, factual
inquiries, designed to allow careful examination and weighing of all the relevant
circumstances” (citation and internal quotation marks omitted)). Nevertheless,
“the contours” of regulatory takings analysis have been established: a regulation
“‘does not constitute a taking if the regulation does not deny a landowner all
economically viable use of the property and if the regulation substantially advances
a legitimate government interest.’” Hotel & Motel Ass’n of Oakland v. City of
Oakland, 344 F.3d 959, 965 (9th Cir. 2003) (quoting Buckles v. King Cnty., 191
F.3d 1127, 1140 (9th Cir. 1999)).
///
///
13

Case 1:19-cv-00521-JMS-WRP Document 54 Filed 02/18/21 Page 14 of 36
676

1.

PageID #:

Economic Impact
To determine the economic impact of an alleged taking, courts

“‘compare the value that has been taken from the property with the value that
remains in the property.’” Colony Cove Props., LLC v. City of Carson, 888 F.3d
445, 450 (9th Cir. 2018) (quoting Keystone Bituminous Coal Ass’n, 480 U.S. at
497). “Not every diminution in property value caused by a government regulation
rises to the level of an unconstitutional taking.” Id. (citing Penn Coal Co. v.
Mahon, 260 U.S. 393, 413 (1922) (“Government hardly could go on if to some
extent values incident to property could not be diminished without paying for
every such change in the general law.”)).
In keeping with the objective of identifying regulatory actions that are
“functionally equivalent” to a classic taking, the Ninth Circuit has held that
“diminution in property value because of governmental regulation ranging from
75% to 92.5% does not constitute a taking.” Colony Cove Props., 888 F.3d at 451.
And the Federal Circuit has noted that it is “‘aware of no case in which a court has
found a taking where diminution in value was less than 50 percent.’” Id. (quoting
CCA Assocs. v. United States, 667 F.3d 1239, 1246 (Fed. Cir. 2011)). “The
severity of the loss can be determined only by comparing the post-deprivation
value to the pre-deprivation value.” Id.

14

Case 1:19-cv-00521-JMS-WRP Document 54 Filed 02/18/21 Page 15 of 36
677

PageID #:

Plaintiffs purchased the property for $926,000 in 2017. ECF No. 28-4
at PageID # 175. And they allege that they suffered the following economic
impacts as a result of the Emergency Rule: (1) they were forced to cancel vacation
reservations and refund deposits to renters, resulting in loss of “significant rental
income”; and (2) they sold their property on February 6, 2019 (two months before
the emergency rule expired) “at a value less than they would have received had
TVRs been allowed at the time”—namely, $920,000, or $6,000 less than the
purchase price. 5 ECF No. 29-1 at PageID # 298; ECF No. 28-4 at PageID # 175.
Plaintiffs have failed to allege a diminution of value sufficient to rise
to the level of a taking. Colony Cove is instructive. In that case, the plaintiffs
alleged that a municipal regulation deprived them of $5.7 million in rental income
over an 8-year period. Colony Cove, 888 F.3d at 451. The Ninth Circuit explained
that “the mere loss of some income because of regulation does not itself establish a
taking. Rather, economic impact is determined by comparing the total value of the
affected property before and after the government action.” Id. But because there
was no evidence submitted as to the post-deprivation value of the property, the

5

Plaintiffs also argue that the County taxed their property at “the significantly higher
‘transient vacation rental’ rates, while depriving [Plaintiffs] of the rental income to pay those
taxes.” ECF No. 29-1 at PageID # 298. But this argument appears to be unfounded. Indeed, the
County has provided documentation that Plaintiffs’ property was “taxed at the lower residential
rate in tax year 2019, rather than as a vacation rental.” ECF No. 27-1 at PageID # 133; ECF No.
28-4 at PageID # 174 (documentation of tax rates on the property for the years 2010 through
2020).
15

Case 1:19-cv-00521-JMS-WRP Document 54 Filed 02/18/21 Page 16 of 36
678

PageID #:

Ninth Circuit compared the purchase price, $23 million, to the lost rental income—
assuming without deciding that lost rental income could constitute a diminution of
property value. Id. Because the $5.7 million loss in income amounted to only
24.8% of the $23 million pre-deprivation value of the property, the court
concluded that this loss was “far too small to establish a regulatory taking.” Id.
Here, Plaintiffs purchased the property for $926,000 and sold it for
$920,000. Thus, the difference in pre-deprivation and post-deprivation value of
the property is only $6,000, or less than one percent (.065%) of pre-deprivation
value. 6 In addition, Plaintiffs allege that they lost $85,000 in rental income. ECF
No. 28-22 at PageID # 232. This figure is disputed by the Defendants’ expert, who
estimates that Plaintiffs lost a total of $21,684. Id. at PageID # 233. But even
assuming Plaintiffs’ figure is correct—and assuming lost rental income may be
considered a diminution in property value—this loss is still too small to establish a
regulatory taking. Including the lost rental income, Plaintiffs allege a total loss of
$91,000 ($6,000 + $85,000), or just 9.8% of the property’s pre-deprivation value of
$926,000. A loss of 9.8% falls far short of even the most liberal standard for
establishing a regulatory taking (50% loss). See CCA Assocs., 667 F.3d at 1246.

6

In fact, Plaintiffs may not have suffered a loss at all. As the County points out,
Plaintiffs also sold their adjacent property as part of the same transaction for $500,000, or
$129,000 more than they paid for it. Thus, Plaintiffs made a net profit of $123,000 on the sale.
ECF Nos. 28-4 at PageID # 175; 28-5 at PageID # 177. Nevertheless, for the purposes of this
order, the court assumes a loss of $6,000.
16

Case 1:19-cv-00521-JMS-WRP Document 54 Filed 02/18/21 Page 17 of 36
679

PageID #:

In short, the economic impact prong does not provide any support for Plaintiff’s
argument that a regulatory taking occurred.
2.

Investment-backed Expectation
Next, the court considers the extent to which the Emergency Rule

interfered with Plaintiffs’ distinct investment-backed expectations. Plaintiffs argue
that the Emergency Rule “eliminated Plaintiffs’ investment-backed expectation of
the Property as a long-term vacation rental investment.” ECF No. 29-1 at PageID
# 308. Plaintiffs explain that they purchased the property “with the intention of
renting it as a vacation rental and it had been successfully and consistently rented
as a vacation rental by the previous owner.” Id. Because they held a nonconforming use permit, Plaintiffs explain, “the only expectation was that Plaintiffs
would submit the renewal paperwork every year, but could otherwise rent the
Property without interference.” Id.
“To form the basis for a taking claim, a purported distinct investmentbacked expectation must be objectively reasonable.” Colony Cove, 888 F.3d at
452; see also Bridge Aina Leʻa, 950 F.3d at 633. The reasonableness of a
plaintiff’s expectations must be evaluated against “the regulatory environment at
the time of the acquisition of the property.” Bridge Aina Leʻa, 950 F.3d at 634.
“Unilateral expectations” cannot form the basis of a takings claim. Id. at 633-34.

17

Case 1:19-cv-00521-JMS-WRP Document 54 Filed 02/18/21 Page 18 of 36
680

PageID #:

Plaintiffs have failed to demonstrate that the Emergency Rule
interfered with any objectively reasonable investment-backed expectation. First,
Plaintiffs’ expectation that they could utilize their property as a vacation rental
with absolutely no limitations or restrictions is not reasonable. By contrast, it is
objectively reasonable that the government would act to protect the public in
response to a major natural disaster. See, e.g., Or. Restaurant & Lodging Ass’n v.
Brown, 2020 WL 6905319, at *6 (D. Or. Nov. 24, 2020) (holding that an
emergency order barring in-person restaurant service did not interfere with
restaurants’ distinct investment-backed expectations because “[t]here is no
reasonable investment-backed expectation that the state would not act in the face
of a historic public health crisis. The Governor’s authorities to protect the public
are long-standing . . .”).
Second, while Plaintiffs’ expectation of using the property as a “longterm vacation rental investment” may be reasonable, Plaintiffs have failed to show
that the Emergency Rule interfered with that expectation. The temporary rule
remained in force for approximately one year. Once road conditions were deemed
sufficiently safe, the prohibition on vacation rentals was lifted and property owners
were able to resume renting. A short-term use restriction in order to deal with a
natural disaster does not interfere with the viability of the property as a long-term
vacation rental investment. See Tahoe-Sierra Preservation Council, 535 U.S. at
18

Case 1:19-cv-00521-JMS-WRP Document 54 Filed 02/18/21 Page 19 of 36
681

PageID #:

342, 342 n.36 (concluding that a 32-month moratorium on development did not
interfere with the plaintiffs’ investment-backed expectation in the long-term use of
their property; noting that “the temporary restriction [on any use of private land
due to flooding] that was ultimately upheld in [First English Evangelical Lutheran
Church of Glendale v. Cnty. of Los Angeles, 482 U.S. 304 (1987)] lasted for more
than six years”; and suggesting that “[t]here may be moratoria that last longer than
one year which interfere with reasonable investment-backed expectations”)
(emphasis added) (citing First English Evangelical Lutheran Church of Glendale
v. Cnty. of Los Angeles, 210 Cal. App. 3d 1353, 258 Cal. Rptr. 893 (1989)).
3.

Character of the State Action
Even assuming the Emergency Rule had resulted in significant

economic loss and disruption of Plaintiffs’ investment-backed expectations, the
character of the government action at issue outweighs any harm the Plaintiffs may
have experienced under the other two factors. Penn Central provides that state
actions that “‘adjust[] the benefits and burdens of economic life to promote the
common good’ . . . rarely constitute a taking.” PCG-SP Venture I LLC v. Newsom,
2020 WL 4344631, at *10 (C.D. Cal. June 23, 2020) (quoting Penn Central, 438
U.S. at 124); see also Mugler v. Kansas, 123 U.S. 623, 668 (1887) (“[P]rohibition
simply upon the use of property for purposes that are declared, by valid legislation,
to be injurious to the health, morals, or safety of the community, cannot, in any just
19

Case 1:19-cv-00521-JMS-WRP Document 54 Filed 02/18/21 Page 20 of 36
682

PageID #:

sense, be deemed a taking.”); cf. United States v. Caltex, 344 U.S. 149, 154 (1952)
(holding, in the physical takings context, that “in times of imminent peril—such as
when fire threatened a whole community—the sovereign could, with immunity,
destroy the property of a few that the property of many and the lives of many more
could be saved.”); Miller v. Schoene, 276 U.S. 272, 279-80 (1928) (“[W]here the
public interest is involved preferment of that interest over the property interest of
the individual, to the extent even of its destruction, is one of the distinguishing
characteristics of every exercise of the police power which affects property.”)
Thus, in Keystone Bituminous Coal Ass’n, a state law that prohibited
the plaintiffs from mining on their property was held not to constitute a taking, in
part, because the state had “acted to arrest what it perceives to be a significant
threat to the common welfare . . . [by] minimiz[ing] subsidence in certain areas.”
480 U.S. at 485. Likewise, in Hotel & Motel Ass’n of Oakland, an ordinance
requiring nonconforming use hotels to meet standards imposed on other hotels was
not considered a taking because “[b]ased on legislative findings” “[t]he
ordinance[], on [its] face, [is] directed toward protecting the health and welfare of
citizens and visitors in Oakland.” 343 F.3d at 967.
And, over the past year, courts across the country have been rejecting
takings claims stemming from state and municipal prohibitions on business
operations enacted to curb the spread of COVID-19. These prohibitions have been
20

Case 1:19-cv-00521-JMS-WRP Document 54 Filed 02/18/21 Page 21 of 36
683

PageID #:

deemed “quintessential examples” of regulations that “adjust[] the benefits and
burdens of economic life to promote the common good” by converting “public
health burdens into economic burdens.” PCG-SP Venture I, 2020 WL 4344631, at
*10 (“To the extent the Orders temporarily deprive Plaintiff of the use and benefit
of its Hotel, the Takings Clause is indifferent. The State is entitled to prioritize the
health of the public over the property rights of the individual.”). For example, in
Blackburn v. Dare County, 2020 WL 5535530 (E.D.N.C. Sept. 15, 2020), as in this
case, the plaintiff non-resident property owners alleged that a county emergency
declaration that prohibited them and non-resident visitors from entering the county
to access their vacation homes in order to slow the spread of COVID-19
constituted a taking. Id. at *1. The court rejected this argument, holding that the
county’s “legitimate exercise of its emergency management powers . . . to protect
public health . . . weighed against loss of use indirectly occasioned by preventing
plaintiffs from personally accessing their vacation home . . . does not plausibly
amount to a regulatory taking.” Id. at *8; see also, e.g., Oregon Restaurant and
Lodging Ass’n, 2020 WL 6905319 at *5; Bimber’s Delwood, Inc. v. James, 2020
WL 6158612, at *15-17 (W.D.N.Y. Oct. 21, 2020); Baptiste v. Kennealy, 2020 WL
5751572, at *21-22 (D. Mass. Sept. 25, 2020).
Here, too, the County was entitled to prioritize the health and safety of
residents and emergency workers over the Plaintiffs’ desire to rent their property.
21

Case 1:19-cv-00521-JMS-WRP Document 54 Filed 02/18/21 Page 22 of 36
684

PageID #:

The rule was enacted in response to a devastating natural disaster in order to
“protect the health, safety, and welfare of the people.” ECF No. 28-9 at PageID #
184. And it was extended “until the roadwork repairs on Kuhio Highway . . . are
completed and the highway is deemed safe for normal travel.” ECF No. 28-18 at
PageID # 211. These repairs were necessary to reconnect the isolated communities
in the distressed area to the rest of the island. Allowing vacationers to traverse the
unstable road to reach their rentals would have both increased wear and tear—
thereby slowing completion of the repairs—and endangered emergency workers
and residents who had no choice but to use the road. ECF No. 28-2 at PageID #
168. Kauai’s Emergency Rule, too, is a “quintessential example” of legitimate
public action to which “the Takings Clause is indifferent.” PCG-SP Venture I,
2020 WL 4344631, at *10.
In short, there is no genuine issue of material fact suggesting that a
taking occurred. The Rule resulted in insignificant economic loss, did not interfere
with reasonable investment-backed expectations, and advanced the most legitimate
of government interests: protecting public health and welfare. Defendants’ Motion
for Summary Judgment as to the state and federal takings claims is GRANTED
and Plaintiffs’ Motion for Summary Judgment as to the takings claim is DENIED.
///
///
22

Case 1:19-cv-00521-JMS-WRP Document 54 Filed 02/18/21 Page 23 of 36
685

B.

PageID #:

Due Process
The United States and Hawaii Constitutions protect individuals from

deprivation of life, liberty, or property without due process of law. U.S. Const.
amend. XIV, § 1; Haw. Const. art. 1, § 5. This protection includes both a
procedural and substantive component. The right to procedural due process
protects individuals from deprivation of a constitutionally protected interest
without adequate procedural protections. Endy v. Cnty. of Los Angeles, 975 F.3d
757, 764 (9th Cir. 2020); Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist.,
149 F.3d 971, 982 (9th Cir. 1998); State v. Guidry, 105 Haw. 222, 227, 96 P.3d
242, 247 (2004). And the right to substantive due process protects individuals
from arbitrary and irrational state interference with such interests. Lingle, 544 U.S.
at 54; Halverson v. Skagit Cnty., 42 F.3d 1257, 1261 (9th Cir. 1994); State v.
Mallan, 86 Haw. 440, 446, 950 P.2d 178, 184 (1998). Here, Plaintiff argues that
the Emergency Rule and resultant deprivation of their TVR use 7 violates both their
procedural and substantive due process rights. Both arguments fail. 8

7

Once again, the court assumes without deciding that Plaintiffs’ nonconforming use of
their property as a TVR constitutes a protected property interest.
8

The analysis of due process claims under the Hawaii Constitution is substantially
similar to the analysis of due process claims under the United States Constitution. See Sandy
Beach Defense Fund v. City Council of City & Cnty. of Honolulu, 70 Haw. 361, 378-79, 773
P.2d 250, 261-62 (Haw. 1989) (procedural due process); Mallan, 86 Haw. at 446, 950 P.2d at
184 (substantive due process). And neither party attempts to differentiate their arguments under
the United States and Hawaii Constitutions. Accordingly, the court analyzes the state and federal
due process claims together.
23

Case 1:19-cv-00521-JMS-WRP Document 54 Filed 02/18/21 Page 24 of 36
686

1.

PageID #:

Procedural Due Process
Plaintiffs argue that the Emergency Rule violated their procedural due

process rights because it deprived them of their property without notice or an
opportunity to be heard. ECF No. 29-1 at PageID # 310. And it is true that,
ordinarily, due process requires “notice and an opportunity for some kind of
hearing prior to the deprivation of a significant property interest.” Halverson, 42
F.3d at 1260 (internal quotation and citation omitted). But when a government
action is legislative in nature—that is, “when governmental decisions . . . affect
large areas and are not directed at one or a few individuals”—“general notice as
provided by law is sufficient.” Id. at 1261. The greater procedural rights of
individual notice and hearing “may attach where only a few persons are targeted or
affected and the state’s action exceptionally affects them on an individual basis.”
Hotel & Motel Ass’n of Oakland, 344 F.3d at 969 (internal quotation and citation
omitted).
In Hotel & Motel Ass’n, the Ninth Circuit determined that a city
ordinance applicable to all nonconforming use hotels in the city did not violate
procedural due process because it affected “a broad geographic area and the
complete range of [legal nonconforming hotels], as opposed to one or a few
individuals or establishments.” Id. In that case, the ordinance at issue was
specifically targeted at a smaller number of hotels that had problems with drugs
24

Case 1:19-cv-00521-JMS-WRP Document 54 Filed 02/18/21 Page 25 of 36
687

PageID #:

and prostitution. But “the mere fact that a subcategory of hotels motivated the City
Council to act does not change the legislative quality of the ordinance.” Id. Put
another way, the requirements of notice and the opportunity to be heard were not
implicated because the county’s ordinance did not “specifically target[] a single
individual’s property for a zoning change”; rather, the ordinance “affect[ed] an
entire class of Oakland hotels.” Id.; see also Samson v. City of Bainbridge Island,
683 F.3d 1051, 1056-1060, 1060 n.10 (9th Cir. 2012) (holding that an emergency
ordinance imposing a moratorium on shoreline development that was enacted
without a public hearing did not run afoul of procedural due process because it
“applied generally to all owners of shoreline property on Bainbridge Island”).
Here, too, Plaintiffs have failed to put forth any evidence that the
Emergency Rule “specifically target[ed]” or “exceptionally affect[ed]” them on an
individual basis. The Rule broadly prohibited all visitors from entering the
distressed area and prohibited all TVRs from operating. And although the Rule
could be fairly described as specifically targeting TVR owners, it would still not
offend due process. Like the nonconforming use hotels in Hotel & Motel Ass’n
and the shoreline property owners in Samson, the rule affected the “entire class” of
TVR owners in the disaster area—approximately 80 properties. See generally ECF
No. 42-8; cf. Hotel & Motel Ass’n, 344 F.3d at 970 (“None of the allegations made
by the Association, or by the forty-nine individual plaintiffs who brought this
25

Case 1:19-cv-00521-JMS-WRP Document 54 Filed 02/18/21 Page 26 of 36
688

PageID #:

action, support the claim that one or only a few individuals were targeted or
affected.”). 9 The County’s Motion for Summary Judgment as to the state and
federal procedural due process claims is GRANTED and Plaintiffs’ Motion as to
the same is DENIED.
2.

Substantive Due Process
Plaintiffs advancing a substantive due process claim must meet an

“exceedingly high burden.” Shanks v. Dressel, 540 F.3d 1082, 1088 (9th Cir.
2008) (quoting Matsuda v. City & Cnty. of Honolulu, 512 F.3d 1148, 1156 (9th
Cir. 2008)). A state action violates substantive due process only if it was “clearly
arbitrary and unreasonable, having no substantial relation to the public health,
safety, morals, or general welfare.” Lingle, 544 U.S. at 541 (emphasis in original)
(quoting Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 395 (1926));
Mallan, 86 Haw. at 452, 950 P.2d at 190 (setting out the same standard); see also
Shanks, 540 F.3d at 1088 (“[T]he irreducible minimum of a substantive due
process claim . . . is failure to advance any legitimate governmental purpose.”)
(internal quotation omitted). There is no substantive due process violation if it is
“at least fairly debatable” that the government’s conduct is rationally related to a
9

Further undermining Plaintiffs’ position—at least with respect to the initial enactment
of the Emergency Rule—is the well-settled rule that “summary administrative action may be
justified in emergency situations,” including actions that effect a “deprivation of property to
protect the public health and safety.” Carmichael v. Ige, 470 F. Supp. 3d 1133, 1148 (D. Haw.
2020) (quoting Hodel v. Va. Surface Mining & Reclamation Ass’n, Inc., 452 U.S. 264, 300
(1981)).
26

Case 1:19-cv-00521-JMS-WRP Document 54 Filed 02/18/21 Page 27 of 36
689

PageID #:

legitimate interest. Kawaoka v. City of Arroyo Grande, 17 F.3d 1227, 1238 (9th
Cir. 1994) (internal quotation and citation omitted); see also Halverson, 42 F.3d at
1262 (explaining that plaintiffs in substantive due process claims “shoulder [the]
heavy burden” of demonstrating “the irrational nature of the County’s actions by
showing that the County could have had no legitimate reason for its decision”)
(internal quotation and citation omitted).
Where, as here, an executive action is at issue, “only ‘egregious
official conduct can be said to be arbitrary in the constitutional sense’: it must
amount to an ‘abuse of power’ lacking any ‘reasonable justification in the service
of a legitimate governmental objective.’” Shanks, 540 F.3d at 1088 (quoting Cnty.
of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (internal quotations omitted)).
And where, as here, the contested government action does not interfere with
fundamental rights, courts “do not require that the government’s action actually
advance its stated purposes, but merely look to see whether the government could
have had a legitimate reason for acting as it did.” Wedges/Ledges of California,
Inc. v. City of Phoenix, 24 F.3d 56, 66 (9th Cir. 1994) (emphasis in original)
(evaluating deprivation of property claim).
Plaintiffs have wholly failed to advance a substantive due process
claim. They assert that the Emergency Rule was applied arbitrarily because it
allowed emergency workers, construction workers, and residents into the disaster
27

Case 1:19-cv-00521-JMS-WRP Document 54 Filed 02/18/21 Page 28 of 36
690

PageID #:

area, but did not allow vacationers the same access. ECF No. 29-1 at PageID #
312 (“the County arbitrarily limited one set of users who would otherwise have a
lawful destination in the area—vacation rental guests.”). 10
But it is Plaintiffs’ argument—not the County’s Emergency Rule—
that is irrational. As discussed above, the Emergency Rule was enacted to “protect
the health, safety, and welfare of the people” by limiting the number of individuals
in an unsafe and isolated area ravaged by flooding and landslides. ECF No. 28-9 at
PageID # 184. The decision to allow emergency responders, construction workers,
and residents into the area while prohibiting vacationers from doing the same was
rationally related to that legitimate interest. Emergency responders and
construction workers were engaged in essential services to repair the damage
caused by the floods. And the County determined that it was not logistically or
economically feasible to evacuate residents. ECF No. 28-2 at PageID # 167. By
contrast, allowing vacationers into the disaster area would only have “increased the
number of people who needed emergency assistance” and “could have further

10

Plaintiffs also argue that “while long-term tenants of properties that were not TVR
properties were allowed to access those properties . . . TVR owners were not able to rent longterm.” ECF No. 29-1 at PageID ## 312-13. But this argument is spurious. The County has
explained that it allowed Plaintiffs and other TVR owners to rent their properties to residents of
the area—many of whom had been displaced from their homes and were in need of housing—
while the rule was in effect, ECF No. 28-2 at PageID # 168, and the Emergency Rule does not,
on its face, prohibit TVR operators from renting their properties long-term. ECF No. 37-4 at
PageID # 417.
28

Case 1:19-cv-00521-JMS-WRP Document 54 Filed 02/18/21 Page 29 of 36
691

PageID #:

damaged the road and endangered both uses of the road and workers.” ECF No.
27-1 at PageID # 146.
In short, there is simply no evidence suggesting that the County’s
temporary prohibition on vacationers entering the distressed area was irrational or
arbitrary. Defendants Motion for Summary Judgment as to the state and federal
substantive due process claim is GRANTED and Plaintiff’s Motion is DENIED.
C.

Equal Protection
Both the United States and Hawaii Constitutions guarantee every

person “equal protection of the laws.” U.S. Const., amend. XIV, § 1; Haw. Const.
art. 1, § 5; see also Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)
(explaining that the Equal Protection Clause protects “every person within the
State’s jurisdiction against intentional and arbitrary discrimination”). Plaintiffs
allege that the County discriminated against TVR operators by treating them
differently from other property owners in the distressed area. Such a classification,
“‘neither involving fundamental rights nor proceeding along suspect lines . . .
cannot run afoul of the Equal Protection Clause if there is a rational relationship
between disparity of treatment and some legitimate governmental purpose.’”
Armour v. City of Indianapolis, 566 U.S. 673, 680 (2012) (quoting Heller v. Doe,
509 U.S. 312, 319-320 (1993)); Nagle v. Board of Ed., 63 Haw. 389, 395, 629 P.2d
109, 113 (1981).
29

Case 1:19-cv-00521-JMS-WRP Document 54 Filed 02/18/21 Page 30 of 36
692

PageID #:

Under this standard, a state law will survive an equal protection
challenge if there is “any reasonably conceivable state of facts that could provide a
rational basis for the classification.” Armour, 566 U.S. at 681 (internal quotation
omitted). The inquiry is not whether the challenged action “actually furthered a
legitimate interest; it is enough the governing body could have rationally decided
that the action would further that interest.” Crawford v. Antonio B. Won Pat Int’l
Airport Auth., 917 F.3d 1081, 1095 (9th Cir. 2019) (internal quotation omitted).
Put another way, to prevail on an equal protection claim, the plaintiff must
“negative every conceivable basis which might support the [government action]
that he challenges.” Id. (quoting Armour, 566 U.S. at 681).
As discussed when evaluating Plaintiffs’ substantive due process
claim, the Emergency Rule’s differential treatment of vacationers on the one hand
and residents and emergency responders on the other was rationally related to the
government’s interest in protecting public health and safety and facilitating the safe
and timely repair of the damaged road. The County’s Motion for Summary
Judgment as to the state and federal equal protection claims is GRANTED.
D.

Contract Clause
Next, Plaintiffs argue that the County’s Emergency Rule violated the

Contract Clause of the United States Constitution by “disrupt[ing] the rental
contracts that Plaintiffs had entered into with guests” who had planned to stay at
30

Case 1:19-cv-00521-JMS-WRP Document 54 Filed 02/18/21 Page 31 of 36
693

PageID #:

Plaintiffs’ property during the time the Rule was in effect. ECF No. 29-1 at
PageID # 313.
The Contract Clause states that “[n]o State shall . . . pass any . . . Law
impairing the Obligation of Contracts.” U.S. Const., art. I, § 10, cl. 1. “Despite
the sweeping terms of its literal test, the Supreme Court has construed this
prohibition narrowly in order to ensure that local governments retain the flexibility
to exercise their police powers effectively.” Matsuda, 512 F.3d at 1152; see also
Exxon Corp. v. Eagerton, 462 U.S. 176, 190 (1983) (“The Contract Clause does
not deprive the States of their broad power to adopt general regulatory measures
without being concerned that private contracts will be impaired, or even destroyed,
as a result.”) (internal quotation omitted); Ching Young v. City & Cnty. of
Honolulu, 639 F.3d 907, 913 (9th Cir. 2011) (“But, despite its seemingly absolute
language, the clause does not prohibit a State from acting ‘for the general good of
the public,’ even where contractual obligations may be affected.”) (quoting Allied
Structural Steel Co. v. Spannaus, 438 U.S. 234, 242 (1978)).
Courts apply a two-step analysis to address Contract Clause claims.
Sveen v. Melin, 138 S. Ct. 1815, 1821 (2018). First, courts consider whether the
state action constitutes a substantial impairment of contract. Id. at 1821-22.
Second, if the action does work such an impairment, it is still constitutional if “the
state law is drawn in an ‘appropriate’ and ‘reasonable’ way to advance ‘a
31

Case 1:19-cv-00521-JMS-WRP Document 54 Filed 02/18/21 Page 32 of 36
694

PageID #:

significant and legitimate public purpose.’” Id. at 1822 (quoting Energy Reserves
Grp., Inc. v. Kansas Power & Light Co., 459 U.S. 400, 411-412 (1983)). Unless
the state is a party to the contract, courts “‘defer to [the government’s] judgment as
to the necessity and reasonableness of a particular measure.’” Campanelli v.
Allstate Life Ins. Co., 322 F.3d 1086, 1098 (9th Cir. 2003) (quoting Energy
Reserves Grp., 459 U.S. at 412-413).
Here, assuming without deciding that the Emergency Rule worked a
substantial impairment on Plaintiffs’ contracts, the Contract Clause claim fails
because—as by this point oft repeated—the Rule was enacted for a legitimate
public purpose: protecting public health and safety in the wake of a devastating
natural disaster. See Campanelli, 322 F.3d at 1099 (finding that although a state
law substantially impaired contracts, it did not violate the Contracts Clause
because “it was passed for a legitimate public purpose”: “to bring needed relief to
the victims of the Northridge Earthquake.”); see also Spannaus, 438 U.S. at 242
(explaining that a legitimate governmental purpose exists where a rule is enacted
“to protect a basic societal interest, not a favored group”). This purpose was
reflected on the face of the Rule itself, which declared that its aim was to “provide
relief for disaster damages, losses, and suffering, and to protect the health, safety,
and welfare of the people.” ECF No. 28-9 at PageID # 184; see Spannaus, 438
U.S. at 242 (explaining that it is significant for the purpose of a Contract Clause
32

Case 1:19-cv-00521-JMS-WRP Document 54 Filed 02/18/21 Page 33 of 36
695

PageID #:

claim that the government had “declared in the Act itself that an emergency need
. . . existed”).
Further, the Rule was “appropriately tailored to the emergency that it
was designed to meet.” Spannaus, 438 U.S. at 242. The Rule served its stated
purpose of reducing the number of at-risk individuals in the distressed area and
reducing traffic on the road while it was under repair. And the conditions imposed
by the Rule were reasonable. The Rule remained in force for just one year—the
amount of time it took for road repairs to reach a stage where it became safe for
normal traffic to resume, and TVR operators were granted relief from taxing and
permitting requirements during that period. See, e.g., Campanelli, 322 F.3d at
1099 (holding that statute reviving insurance claims for all victims of an
earthquake was appropriately tailored to provide relief for earthquake victims
because the earthquake was a one-time event with a discrete, albeit large, number
of victims and because the claims were revived for only one year). The County’s
Motion for Summary Judgment as to the Contract Clause claims is GRANTED.
E.

HRS § 127A-21
Plaintiffs argue that the Emergency Rule violated HRS § 127A-21 by

requisitioning their property without just compensation. HRS § 127A-21 provides
that “[t]he governor or mayor may requisition and take over any materials,
facilities, or real property or improvements, required for the purposes of this
33

Case 1:19-cv-00521-JMS-WRP Document 54 Filed 02/18/21 Page 34 of 36
696

PageID #:

chapter, or requisition and take over the temporary use thereof” so long as the
property owner is provided adequate notice and compensation. This provision has
no applicability here. The mayor did not invoke § 127A-21 in his emergency
proclamation. And, more to the point, Plaintiffs have provided no evidence that
the County took over, requisitioned, or temporarily used their property. There are
no genuine issues of material fact to support Plaintiffs’ HRS § 127A-21 claim.
The County’s Motion for Summary Judgment as to the HRS § 127A-21 claim is
GRANTED.
F.

Vested Rights/Zoning Estoppel
Finally, Plaintiffs argue under the “related” state law doctrines of

“vested rights” and “zoning estoppel” that the County was precluded from
abrogating Plaintiffs’ right to use their property as a TVR. ECF No. 29-1 at
PageID # 299-301; see also Allen v. City & Cnty. Of Honolulu, 58 Haw. 432, 435,
571 P.2d 328, 329 (Haw. 1977) (explaining that while “theoretically distinct,
courts across the country seem to reach the same results when applying [the zoning
estoppel and vested rights doctrines] to identical factual situations”); Kauai Cnty v.
Pacific Standard Life Ins. Co., 65 Haw. 318, 326, 653 P.2d 766, 773 (Haw. 1982)
(explaining that “[e]stoppel focuses on whether it would be inequitable to allow the
government to repudiate its prior conduct; vested rights upon whether the owner
acquired real property rights which cannot be taken away by government
34

Case 1:19-cv-00521-JMS-WRP Document 54 Filed 02/18/21 Page 35 of 36
697

PageID #:

regulation.”) (citation and internal quotations omitted). Both doctrines are
implicated when the plaintiff has suffered a change in position based on a
“substantial expenditure of money in connection with his project in reliance, not
solely on existing zoning laws or on good faith expectancy that his development
will be permitted, but on official assurance on which he has a right to rely that his
project has met zoning requirements, that necessary approvals will be forthcoming
in due course, and he may safely proceed with the project.” Kauai Cnty., 65 Haw.
at 327, 653 P.2d at 774.
It is not clear that these doctrines—which are typically applied to
cases concerning the effect of amendments to zoning regulations on development
projects—are relevant here, in a case about a temporary emergency rule. But the
court need not reach that question. The Hawaii Supreme Court made clear in Allen
that “damages [are] unavailable under both theories.” Bridge Aina Le‘a, LLC v.
State of Haw. Land Use Comm’n, 125 F. Supp. 3d 1051, 1080 (D. Haw. 2015)
(citing Allen, 58 Haw. at 437-38, 571 P.2d at 328-30 (“The remedy is to allow
continued construction, not award damages.”)). Because the Emergency Rule was
lifted in April 2019, there is no basis for equitable relief in this case. Accordingly,
the County’s Motion for Summary Judgment as to the vested rights/zoning
estoppel claim is GRANTED and Plaintiff’s Motion as to this claim is DENIED.

35

Case 1:19-cv-00521-JMS-WRP Document 54 Filed 02/18/21 Page 36 of 36
698

PageID #:

V. CONCLUSION
For the foregoing reason, the County’s Motion for Summary
Judgment is GRANTED and Plaintiffs’ Motion for Partial Summary Judgment is
DENIED. The clerk of court is directed to close the case file.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, February 18, 2021.
/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge

Flint v. County of Kauai, Civ. No. 19-00521, Order Granting Defendants’ Motion for Summary
Judgment and Denying Plaintiffs’ Motion for Partial Summary Judgment.
36