Protect and Preserve Kahoma Ahupua'a Association v. Maui Planning Commission. ( 2021 )

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
16-JUN-2021
09:04 AM
Dkt. 35 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---oOo---
________________________________________________________________
PROTECT AND PRESERVE KAHOMA AHUPUA‘A ASSOCIATION,
an unincorporated association,
MICHELE LINCOLN, MARK ALLEN, LINDA ALLEN,
and CONSTANCE B. SUTHERLAND,
Respondents/Plaintiffs-Appellants,
vs.
MAUI PLANNING COMMISSION, COUNTY OF MAUI, and
STANFORD CARR DEVELOPMENT, LLC,
a domestic limited liability company,
Petitioners/Defendants-Appellees/Appellees.
________________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CIVIL NO. 14-1-0616(1))
JUNE 16, 2021
RECKTENWALD, C.J., NAKAYAMA, McKENNA, WILSON, AND EDDINS, JJ.
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
This case arises from Stanford Carr Development, LLC’s
(“Carr”) application for a Special Management Area (“SMA”) use
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permit to build affordable housing (“the Project”) within the
County of Maui’s SMA. The Protect and Preserve Kahoma Ahupua‘a
Association (“PPKAA”) filed a petition to intervene in the SMA
use permit application proceedings with the Maui Planning
Commission (“Commission”) seeking to address the Project’s
environmental and aesthetic impacts. The Commission denied
PPKAA’s petition on the grounds that it failed to demonstrate
its interests were different from those of the general public,
as required by the Rules of Practice and Procedure for the Maui
Planning Commission (“MPC”) § 12-201-41 (2010). The Commission
then approved Carr’s SMA use permit application.
PPKAA appealed the Commission’s denial of its petition to
intervene and approval of Carr’s SMA use permit application to
the Circuit Court of the Second Circuit (“circuit court”), which
affirmed the Commission’s decisions. On appeal, the
Intermediate Court of Appeals (“ICA”) determined PPKAA had
standing to intervene as a matter of right and that PPKAA was
denied procedural due process to protect its Hawai‘i Constitution
article XI, section 9 right to a clean and healthful
environment, as defined by the Coastal Zone Management Act
(“CZMA”). The ICA also held the Commission was required to make
findings on the Project’s consistency with the Maui County
general and community plans pursuant to Hawai‘i Revised Statutes
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(“HRS”) § 205A-26(2)(C) (2017). The ICA vacated the circuit
court’s decision and remanded to the Commission.
On review of Carr’s certiorari application, we agree with
the ICA that (1) PPKAA sufficiently demonstrated that it had
standing to intervene in the SMA use permit proceedings; (2) the
CZMA is a law relating to environmental quality for the purposes
of article XI, section 9 of the Hawai‘i Constitution and that
PPKAA was denied procedural due process to protect its right to
a clean and healthful environment; and (3) the Commission was
required to make findings on the Project’s consistency with the
general and community plans pursuant to HRS § 205A-26(2)(C).
We therefore affirm the ICA’s October 13, 2020 judgment
vacating the circuit court’s June 19, 2015 findings of fact,
conclusions of law, and order denying appeal and final judgment,
and we remand to the Commission for further proceedings
consistent with this opinion.
II. Background
A. Commission proceedings
Pursuant to HRS § 205A-28 (Supp. 1979), “[n]o development
shall be allowed in any county within the [SMA] without
obtaining a permit in accordance with this part.” The
Commission implements the CZMA, including SMA management under
HRS ch. 205A. See HRS § 205A-1 (defining “authority” as the
county planning commission); HRS § 205A-26; Maui County Charter
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§ 8-8.4 (2002) (stating that the Commission acts “as the
authority in all matters related to the Coastal Zone Management
law”). The Commission is part of the Maui County Department of
Planning (“Planning Department”). See Maui County Department of
Planning, Department Organization Chart FY20 (2019).1
On September 27, 2012, the Planning Department received
Carr’s SMA use permit application for the Project. The Project
proposed the construction of approximately 203 housing units and
three resident parks on 24.354 acres of undeveloped land south
of the Kahoma stream channel. The project site was located
within the County of Maui’s SMA and within “Project District 4”
of the West Maui Community Plan. The West Maui Community Plan
described Project District 4 as follows:
This project district involves approximately 24 acres
bounded by Kahoma Stream, Front Street, Kenui Street, and
Honoapiilani Highway. The project district is intended to
provide a mixture of commercial/business and multi-family
and senior citizen residential uses. There shall also be 6
acres of park land within the project district, including a
linear park or greenway adjacent to the south bank of
Kahoma Stream, from Honoapiilani Highway to Front Street,
at least 60 feet wide and approximately 1.5 acres in size.
The extension of Wainee Street from its present terminus at
Kenui Street to Front Street, as well as the realignment of
Kenui Street shall also be considered. Said roadway
improvements should be developed and funded in conjunction
with appropriate government agencies. The remaining acres
in the project district shall be evenly divided between the
commercial/business uses, and the multi-family and senior
citizen residential uses, to the greatest extent
practicable.
1 Available at https://perma.cc/NJL5-6Q7H.
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Maui County Council, West Maui Community Plan 52 (1996).2
Carr’s application noted the Project was “partially in
compliance” with the West Maui Community Plan, but it proposed a
combined park area of 1.75 acres instead of the 6 acres of park
land required by the community plan. However, Carr requested
that the Project be exempted as an HRS § 201H-38 (2017)
affordable housing project from Maui County Code (“MCC”) ch.
2.80B,3 “General Plan and Community Plans,” in order for the
Project to be “deemed compliant” with the West Maui Community
Plan.
On February 7, 2014, the Maui County Council (“Council”)
adopted Resolution no. 14-14 (“Resolution 14-14”), citing HRS
§ 201H-38.4 The resolution approved the Project subject to
2 Available at https://perma.cc/C3Y8-DBX3.
3 Available at https://perma.cc/WXH8-LKMX.
4 HRS § 201H-38 provides, in relevant part:
(a) The corporation may develop on behalf of the State or
with an eligible developer, or may assist under a
government assistance program in the development
of, housing projects that shall be exempt from all
statutes, ordinances, charter provisions, and rules of any
government agency relating to planning, zoning,
construction standards for subdivisions, development and
improvement of land, and the construction of dwelling units
thereon; provided that:
(1) The corporation finds the housing project
is consistent with the purpose and intent of
this chapter, and meets minimum requirements of
health and safety;
(2) The development of the proposed housing
project does not contravene any safety
standards, tariffs, or rates and fees approved
by the public utilities commission for public
(continued . . .)
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specified modifications, and “provided that [Carr] shall comply
with all statutes, ordinances, charter provisions, and rules of
governmental agencies relating to planning, zoning and
construction standards for subdivisions, development and
improvement of land, and the construction of units thereon,
except for the exemptions specified in Exhibit ‘2’[.]” Exhibit
2 included an exemption from MCC ch. 2.80B “to permit the
project to proceed without obtaining a community plan
amendment.”
On June 5, 2014, PPKAA, pro se, filed a petition to
intervene in the SMA use permit proceedings. PPKAA described
itself as “an unincorporated organization dedicated to
preserving, protecting and restoring the natural and cultural
environment of the Kahoma ahupua‘a[.]” PPKAA maintained that its
members all owned homes within the Kahoma ahupua‘a.
PPKAA argued it had standing to intervene as a matter of
right under MPC § 12-201-41 (1993)5 because its members owned
utilities or of the various boards of water
supply authorized under chapter 54;
(3) The legislative body of the county in which
the housing project is to be situated shall
have approved the project with or without
modifications[.]
5 MPC § 12-201-41(b) provides:
All persons who have a property interest in land subject to
commission action, who lawfully reside on said land, or can
demonstrate they will be so directly and immediately
affected by the matter before the commission that their
(continued . . .)
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land adjacent to the Project, and the Project would diminish the
use, enjoyment, and rental value of their properties. PPKAA
also asserted the Project would have “adverse impacts on
protected resources within the Coastal Zone Management Area,”
and that the interests PPKAA sought to protect were the “same
interests” protected by the CZMA and the Hawai‘i Constitution.
The petition listed various ways in which the Project would
allegedly impact CZMA interests, including access to public
beaches, adequate public recreation areas, protecting coastal
ecosystems, investigating the presence of Hawaiian burial sites,
and protecting scenic resources. The petition also noted that
the Project did not conform to the community plan as required by
HRS § 205A-26(2)(C), and that it conflicted with the general
plan’s goal of protecting open spaces.6
On June 13, 2014, Carr filed a memorandum in opposition to
PPKAA’s petition to intervene, arguing PPKAA had not
interest in the proceeding is clearly distinguishable from
that of the general public shall be admitted as parties
upon timely application for intervention.
6 At the time the petition was filed, HRS § 205A-26(2)(C) provided: “No
development shall be approved unless the authority has first found . . .
[t]hat the development is consistent with the county general plan and zoning.
Such a finding of consistency does not preclude concurrent processing where a
general plan or zoning amendment may also be required.” (Emphasis added.)
Additionally, MCC § 2.80B.030(B) (2014) provides in pertinent part,
“The countywide policy plan, Maui island plan, and community plans authorized
in this chapter are and shall be the general plan of the County[.]”
(Emphasis added.) Therefore, in Maui County, community plans are part of the
general plan.
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distinguished its members’ concerns from those affecting the
general public, as required by MPC § 12-201-41(b).
On June 24, 2014, the Commission held its regular meeting,
at which members of the public were allowed to testify for up to
three minutes each regarding the Project. Multiple PPKAA
members raised concerns regarding whether the current storm
drain system would be able to accommodate the Project and the
effects on Hawaiian cultural and gathering rights, beach access,
and traffic congestion.
The Commission then held a public hearing on Carr’s SMA use
permit application, during which Carr gave a presentation
discussing the Project’s impacts on water drainage, traffic, and
environmental resources.
The Commission then heard from PPKAA on its petition to
intervene, as mandated by MPC § 12-201-45 (1993).7 Michele
Lincoln (“Lincoln”) spoke on behalf of PPKAA. Lincoln contended
that PPKAA had standing to intervene and suffered injuries
distinguishable from the general public. She testified that
PPKAA members lived within 500 feet of the Project and would
experience the Project’s impacts to traffic, beach access,
tsunami evacuation congestion, the cultural and historic
7 MPC § 12-201-45 provides: “All petitions to intervene shall be heard
and ruled upon prior to the commission taking final action on an
application.”
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importance of the land, storm water drainage, scenic views, and
to the sale and rental values of their properties.
Carr countered that PPKAA’s petition did not show its
members suffered an actual or threatened injury in fact, and
that the concerns raised were not “uniquely confined to these
petitioners” and would be addressed in the regular SMA permit
approval process.
The Commission then denied PPKAA’s petition to intervene
and orally approved Carr’s SMA use permit application. The
Commission did not enter oral or written findings regarding
Carr’s SMA use permit application.
On September 23, 2014, the Commission issued its written
findings of fact (“FOFs”), conclusions of law (“COLs”), and
order denying PPKAA’s petition to intervene. The Commission
determined PPKAA was not entitled to intervention under MPC
§ 12-201-41(b) because it “failed to demonstrate that they will
be so directly and immediately affected by the matter before the
Commission that their interests are clearly distinguishable from
that of the general public.” The Commission also concluded that
PPKAA failed to show a threatened injury traceable to Carr’s
actions.
On October 23, 2014, PPKAA appealed the Commission’s
September 23, 2014 order and June 24, 2014 oral approval of
Carr’s SMA use permit to the circuit court.
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B. Circuit court proceedings
1. PPKAA’s arguments
PPKAA, now represented by counsel, argued the Commission
erred in denying its motion to intervene because Hawai‘i courts
apply less restrictive administrative standing requirements
where environmental interests are involved based on article XI,
section 9 of the Hawai‘i Constitution,8 and that it had shown an
“injury in fact” sufficient for standing. PPKAA also argued the
Commission denied it procedural due process, and that it had
been entitled to a “full hearing” under HRS ch. 91. PPKAA
asserted the Commission erred in failing to find that the
Project was consistent with the general and community plans, as
required by HRS § 205A-36(2)(C). Although the Council had
exempted Carr from obtaining plan amendments under the MCC,
PPKAA argued this did not excuse Carr from the SMA permit
procedures under HRS ch. 205A.
8 Article XI, section 9 of the Hawai‘i Constitution provides:
Each person has the right to a clean and healthful
environment, as defined by laws relating to environmental
quality, including control of pollution and conservation,
protection and enhancement of natural resources. Any
person may enforce this right against any party, public or
private, through appropriate legal proceedings, subject to
reasonable limitations and regulation as provided by law.
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2. Carr’s arguments9
Carr argued PPKAA was not entitled to intervention because
its members’ status as adjacent landowners did not confer an
interest sufficient for standing, PPKAA failed to show that its
interests were distinguishable from the general public, and its
petition did not specify the injuries to its members. Carr
maintained PPKAA was not denied procedural due process because
it was afforded a hearing on its petition to intervene and was
given unlimited time for oral argument to establish standing.
Carr argued Resolution 14-14 and HRS § 201H-38 exempted the
Project from the general and community plan requirements, and
the Commission was not required to find that the Project was
consistent with the community plan.
3. Circuit court’s FOFs, COLs, and order
On June 19, 2015, the circuit court issued its FOFs, COLs,
and order denying PPKAA’s appeal and affirming the Commission.10
The circuit court’s COLs included the following. PPKAA was not
entitled to intervention as a matter of right because it failed
to show its interests were clearly distinguishable from those of
the general public. PPKAA was afforded notice and an
opportunity to be heard on its petition to intervene and was
therefore not denied due process. The Project was a qualified
9 The Commission joined Carr as a defendant-appellee.
10 The Honorable Rhonda I.L. Loo presided.
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housing project under HRS ch. 201H, the Project had been granted
an exemption from the general plan via Resolution 14-14, and the
Commission’s determination that the Project was exempt from the
general plan was not clearly erroneous.
PPKAA appealed to the ICA.
C. ICA memorandum opinion
On September 14, 2020, the ICA issued its memorandum
opinion vacating the circuit court’s June 19, 2015 order and
final judgment and remanding to the Commission. Protect and
Preserve Kahoma Ahupua‘a Ass’n v. Maui Planning Comm’n (PPKAA),
CAAP-XX-XXXXXXX (Sept. 14, 2020) (mem.).
The ICA held that the Commission restrictively interpreted
MPC § 12-201-41(b)’s standing requirements because environmental
plaintiffs need not assert an injury different in kind from an
injury to the public to establish standing. PPKAA, mem. op. at
8-9 (citing In re Application of Maui Elec. Co. (MECO), 141
Hawai‘i 249, 270, 408 P.3d 1, 22 (2017) (“Environmental
plaintiffs must meet this three-part standing test but need not
assert an injury that is different in kind from an injury to the
public generally.”)). This less rigorous standing requirement
drew support from article XI, section 9 of the Hawai‘i
Constitution. PPKAA, mem. op. at 9 (citing Sierra Club v.
Dep’t. of Transp., 115 Hawai‘i 299, 320, 167 P.3d 292, 313
(2007)). The ICA stated that, in order to demonstrate standing
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to intervene, plaintiffs must demonstrate an injury in fact,
which requires them to show that they suffered an actual or
threatened injury fairly traceable to the defendant’s actions,
and that a favorable decision would likely provide relief.
PPKAA, mem. op. at 9-10 (citing MECO, 141 Hawai‘i at 270, 408
P.3d at 22).
Reviewing the Commission’s FOF/COLs de novo, ICA determined
PPKAA demonstrated a threatened injury in fact in its petition
and at the June 24, 2014 public hearing, noting that PPKAA
members had testified as to concerns regarding the Project’s
effect on storm water runoff, increased traffic, and adverse
impacts on the tsunami evacuation zone. PPKAA, mem. op. at 12-
15. Therefore, the ICA ruled PPKAA had been “so directly and
immediately affected” by the Project that it was entitled to
intervene as a matter of right in the SMA permit application
proceedings. PPKAA, mem. op. at 16-17.
The ICA also held that PPKAA was denied procedural due
process to protect its right to a clean and healthful
environment under article XI, section 9 of the Hawai‘i
Constitution. PPKAA, mem. op. at 17. The ICA applied a two-
step analysis in determining PPKAA had a due process right to a
hearing: (1) whether PPKAA sought to protect a “property
interest,” and (2) if so, what specific procedures were required
to protect it. PPKAA, mem. op. at 18.
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The ICA held that the CZMA is a law relating to
environmental quality that defines the right to a clean and
healthful environment under article XI, section 9. PPKAA, mem.
op. at 19. Therefore, because PPKAA’s petition sought to
protect environmental and aesthetic interests under the CZMA and
the Hawai‘i Constitution, it had asserted a protected property
interest. PPKAA, mem. op. at 18-19.
The ICA then determined that the risk to PPKAA’s right to a
clean and healthful environment was high absent a contested case
hearing because the Project could have adverse impacts to the
SMA, and PPKAA had no other meaningful opportunity to be heard
because the Commission had approved the permit application on
the same day it denied PPKAA’s motion to intervene. PPKAA, mem.
op. at 21. Furthermore, the burden of affording a contested
case hearing was slight because the Commission was “already
required to consider the concerns posited in PPKAA’s petition to
intervene.” Id. Therefore, PPKAA was entitled to a contested
case hearing, “which includes the right to submit evidence and
argument on the impact of the Project on the asserted property
interest.” PPKAA, mem. op. at 21-22.
Finally, the ICA held that the Commission was required
under the CZMA to make findings on the Project’s consistency
with the Maui County general and community plans. PPKAA, mem.
op. at 22. Although the Council exempted the Project from MCC
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ch. 2.80B through Resolution 14-14, the ICA determined it did
not relieve the Commission of making findings pursuant to HRS
§ 205A-26(2)(C), which conditioned the approval of SMA use
permits on findings that “[t]he development is consistent with
the county general plan and zoning.” PPKAA, mem. op. at 23-24.
Therefore, on remand, the Commission was required to make
specific findings on the Project’s consistency with the general
and community plans. PPKAA, mem. op. at 24.
On October 13, 2020, the ICA filed its judgment on appeal.
D. Certiorari application
Carr’s application for certiorari (“Application”) raises
five questions:
1. Whether the ICA gravely erred in holding that the
Commission restrictively interpreted its standing
requirements.
2. Whether the ICA gravely erred by finding that [PPKAA]
sufficiently asserted threatened injuries-in-fact to its
members.
3. Whether the ICA gravely erred by relying on the public
testimony portion of the Commission hearing to support the
Petition.
4. Whether the ICA gravely erred in holding that PPKAA was
denied procedural due process to protect their right to a
clean and healthful environment under article XI, section
9, as defined by the [CZMA].
[5.] Whether the ICA gravely erred in holding that the
Commission was required to make specific findings on the
Project’s consistency with the Maui County General and
Community Plans.
III. Standards of Review
A. Constitutional law
This court reviews questions of constitutional law by
exercising our own independent constitutional judgment based on
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the facts of the case. State v. Phua, 135 Hawai‘i 504, 511-12,
353 P.3d 1046, 1053-54 (2015). Therefore, questions of
constitutional law are reviewed under the right/wrong standard.
Phua, 135 Hawai‘i at 512, 353 P.3d at 1054.
B. Administrative agency appeals
Review of a decision made by the circuit court upon its
review of an agency’s decision is a secondary appeal. The
standard of review is one in which this court must
determine whether the circuit court was right or wrong in
its decision, applying the standards set forth in HRS § 91–
14(g) (1993) to the agency’s decision.
Sierra Club v. Office of Planning, 109 Hawai‘i 411, 414, 126 P.3d
1098, 1101 (2006) (citations and alterations omitted).
HRS § 91-14(g) (Supp. 2016) provides:
(g) Upon review of the record, the court may affirm the
decision of the agency or remand the case with instructions
for further proceedings; or it may reverse or modify the
decision and order if the substantial rights of the
petitioners may have been prejudiced because the
administrative findings, conclusions, decisions, or orders
are:
(1) In violation of constitutional or statutory
provisions;
(2) In excess of the statutory authority or
jurisdiction of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable,
probative, and substantial evidence on the
whole record; or
(6) Arbitrary, or capricious, or characterized
by abuse of discretion or clearly unwarranted
exercise of discretion.
IV. Discussion
A. PPKAA had standing to intervene in the SMA permit
application proceedings
Carr argues the ICA erred in holding the Commission
restrictively interpreted its standing requirements and
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misapplied the standard for standing because PPKAA failed to
show that it suffered an injury in fact.11
The ICA determined that the Commission had restrictively
interpreted its standing requirements, noting environmental
plaintiffs need not assert an injury different in kind from the
general public, and that this “less rigorous standing
requirement” draws support from article XI, section 9 of the
Hawai‘i Constitution. PPKAA, mem. op. at 9, 11-12 (citing Sierra
Club, 115 Hawai‘i at 320, 167 P.3d at 313). The ICA then held
that PPKAA had established a threatened injury in fact and
demonstrated it was “so directly and immediately affected” that
it was entitled to intervention as a matter of right. PPKAA,
mem. op. at 12-17.
Our decision in MECO has clarified that petitioners have a
right to intervene where they have established their right to a
clean and healthful environment pursuant to article XI, section
9 of the Hawai‘i Constitution. 141 Hawai‘i at 266-67, 408 P.3d
at 18-19. As discussed in the next section, PPKAA had a
protectable property interest in the right to a clean and
11 Carr also argues the ICA erred by relying on the public testimony
portion of the Commission’s hearing in determining that PPKAA demonstrated an
injury in fact because the public testimony was not presented as part of
PPKAA’s petition. However, the ICA’s discussion of the public testimony was
in the context of the Commission’s unchallenged FOFs in its order denying
PPKAA’s petition to intervene, which summarized the PPKAA members’ public
testimony and which Carr prepared. PPKAA, mem. op. at 14. Carr also
responded to the public testimony concerns during the hearing on its SMA use
permit application.
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healthful environment, as defined by the CZMA.12 PPKAA “must
also show that it is entitled to request a review of the agency
determination,” which requires PPKAA to establish “an actual or
threatened injury [that is] fairly traceable to the defendant’s
actions; and a favorable decision would likely provide relief
for the plaintiff’s injury.” Id. at 270, 408 P.3d at 22
(quotation marks and citations omitted). The ICA correctly
concluded that PPKAA “assert[ed] harm to legally protected
interests in a clean and healthful environment.” Id. As the
ICA identified, PPKAA alleged “direct personal environmental and
aesthetic interests, including those of adjacent landowners” and
“potential actual injury from the Project” which was “fairly
traceable to Carr Development’s SMA permit application” and from
which the Commission’s decision could provide relief. PPKAA,
mem. op. at 16. Therefore, PPKAA had standing to intervene in
the SMA permit application proceedings.
B. PPKAA was denied procedural due process to protect its
right to a clean and healthful environment under article
XI, section 9 of the Hawai‘i Constitution, as defined by the
CZMA
Carr argues PPKAA was not denied procedural due process
because unilateral expectations of aesthetic and environmental
12 Furthermore, it appears that PPKAA’s property interest in the right to
a clean and healthful would entitle it standing under MPC § 12-201-41(b).
MPC § 12-201-41(b) provides that “[a]ll persons who have a property interest
in land subject to commission action . . . shall be admitted as parties upon
timely application for intervention.” MPC ch. 201 does not define “property”
or “property interest.”
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values do not constitute a protectable property interest, citing
Sandy Beach Defense Fund v. City Council of Honolulu (Sandy
Beach), 70 Haw. 361, 773 P.2d 250 (1989).
This court has stated that “[c]onstitutional due process
protections mandate a hearing whenever the claimant seeks to
protect a ‘property interest,’ in other words, a benefit to
which the claimant is legitimately entitled.” Pele Defense Fund
v. Puna Geothermal Venture, 77 Hawai‘i 64, 68, 881 P.2d 1210,
1214 (1994). This court conducts a two-step analysis to
determine whether there was a due process right to a contested
case hearing, considering: “(1) [whether] the particular
interest which [the] claimant seeks to protect by a hearing [is]
‘property’ within the meaning of the due process clauses of the
federal and state constitutions, and (2) if the interest is
‘property,’ what specific procedures are required to protect
it.” Sandy Beach, 70 Haw. at 376, 773 P.2d at 260.
Sandy Beach involved a challenge to an SMA use permit
application by community members, some of whom lived near the
proposed development. 70 Haw. at 366, 773 P.2d at 254. The
community group claimed their personal, economic, and aesthetic
interests, such as their view of the ocean and value of their
properties, would be injured by the development. 70 Haw. at
367, 773 P.2d at 255. We stated that “[t]o have a property
interest in a benefit, a person clearly must have more than an
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abstract need or desire for it. [They] must have more than a
unilateral expectation to it. [They] must, instead, have a
legitimate claim of entitlement to it.” 70 Haw. at 377, 773
P.2d at 260 (citations omitted). We then held that the
community group’s interests were “of an aesthetic and
environmental nature” and did not rise to the level of a
property interest within the meaning of the due process clause
of the Hawai‘i Constitution. 70 Haw. at 377, 773 P.2d at 261.
However, this court distinguished Sandy Beach in MECO,
which involved the Sierra Club’s assertion of its members’
constitutional right to a clean and healthful environment under
article XI, section 9 of the Hawai‘i Constitution. MECO, 141
Hawai‘i at 264-65, 408 P.3d at 16-17. This court noted that the
petitioners in Sandy Beach “did not identify any source granting
them a substantive legal right to enforcement of environmental
laws.” 141 Hawai‘i at 265, 408 P.3d at 17. In contrast, the
Sierra Club’s asserted right to a clean and healthful
environment was “not a freestanding interest in general
aesthetic and environmental values” or a “unilateral
expectation,” but a “right guaranteed by the Constitution and
statutes of this state.” 141 Hawai‘i at 264-65, 408 P.3d at 16-
17.
As in MECO, PPKAA did not merely assert unilateral
expectations of aesthetic and environmental values, but a
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protectable property interest in its constitutional right to a
clean and healthful environment under article XI, section 9 of
the Hawai‘i Constitution. Article XI, section 9 states that
“[e]ach person has the right to a clean and healthful
environment, as defined by laws relating to environmental
quality, including control of pollution and conservation,
protection and enhancement of natural resources.” This court
has held that article XI, section 9 is self-executing and that
the right to a clean and healthful environment is “defined by
existing law relating to environmental quality.” MECO, 141
Hawai‘i at 261, 408 P.3d at 13; see Cty. of Hawai‘i v. Ala Loop
Homeowners (Ala Loop), 123 Hawai‘i 391, 417, 235 P.3d 1103, 1129
(2010), abrogated on other grounds by Tax Found. v. State, 144
Hawai‘i 175, 439 P.3d 127 (2019).
HRS ch. 205A is a law “relating to environmental quality”
for the purposes of article XI, section 9. The stated purpose
of HRS ch. 205A is to “preserve, protect, and where possible, to
restore the natural resources of the coastal zone of Hawai[‘]i.”
HRS § 205A-21 (Supp. 1977). The provisions of HRS ch. 205A also
“expressly require consideration of issues relating to the
preservation or conservation of natural resources.” Ala Loop,
123 Hawai‘i at 410, 235 P.3d at 1122; see HRS § 205A-4 (Supp.
1989) (providing that agencies “shall give full consideration to
ecological, cultural, historic, esthetic, recreational, scenic,
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and open space values” in implementing the CZMA program); HRS
§ 205A-26 (Supp. 1994) (setting guidelines for the review of
developments proposed in special management areas); HRS § 205A-
28 (Supp. 1979) (prohibiting development in special management
areas without a permit).
Additionally, HRS § 607-25 (Supp. 1997), which authorizes
the recovery of attorney’s fees against private parties who
undertake development without the approvals required under
various laws, including chapter 205A, also “reflects the
legislature’s determination that chapter 205[A] is an
environmental quality law.”13 Ala Loop, 123 Hawai‘i at 410, 235
P.3d at 1122. As we recognized in Ala Loop, the legislative
purpose of HRS § 607-25 was to allow the award of attorney’s
fees in cases involving illegal development by private parties
“to improve the implementation of laws to protect health,
environmental quality, and natural resources[.]” Id. (quoting
1986 Haw. Sess. Laws Act 80, § 1 at 104-05) (emphasis added).
In enacting HRS § 607-25, the legislature recognized that HRS
ch. 205A “implements the guarantee of a clean and healthful
environment established by article XI, section 9.” Id.
13 HRS § 607-25(c) provides: “For purposes of this section, the permits or
approvals required by law shall include compliance with the requirements for
permits or approvals established by chapters . . . 205A[.]” (Emphasis
added.)
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Therefore, HRS ch. 205A is a “law relating to environmental
quality” for the purposes of article XI, section 9.
Having determined that PPKAA asserted a protected property
interest to a clean and healthful environment, we turn to
whether PPKAA’s right to procedural due process was violated.
Procedural due process “requires that parties be given a
meaningful opportunity to be heard. This implies the right to
submit evidence and argument on the issues.” Application of
Hawai‘i Elect. Light Co., 67 Haw. 425, 430, 690 P.2d 274, 278
(1984). However, “[d]ue process is not a fixed concept
requiring a specific procedural course in every situation,” and
“calls for such procedural protections as the particular
situation demands.” Sandy Beach, 70 Haw. at 378, 773 P.2d at
261 (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972))
(emphasis added). In determining the procedures required to
comply with constitutional due process, courts consider the
following factors: “(1) the private interest which will be
affected; (2) the risk of an erroneous deprivation of such
interest through the procedures actually used, and the probable
value, if any, of additional or alternative procedural
safeguards; and (3) the governmental interest, including the
burden that additional procedural safeguards would entail.” Id.Here, the private interest was PPKAA’s constitutional right
to a clean and healthful environment. The risk of an erroneous
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deprivation of PPKAA’s interest was high absent PPKAA’s
participation in the contested case hearing because the Project
could have adverse and long-term environmental impacts to the
SMA. See MECO, 141 Hawai‘i at 266, 408 P.3d at 18. As the ICA
recognized, PPKAA raised concerns regarding the Project’s
potential impacts to the SMA, including loss of scenic and open
space resources, drainage and runoff impacts, and impacts on the
tsunami evacuation zone. PPKAA, mem. op. at 14-15. While PPKAA
members testified about the Project at the public hearing and
the hearing on its petition to intervene, they were not able to
submit evidence or cross-examine opposing witnesses, which the
Commission’s rules would have allowed them the opportunity to do
had their petition been granted.14 See MECO, 141 Hawai‘i at 269,
408 P.3d at 21. As adjacent landowners to the Project, PPKAA’s
members would likely bear the brunt of adverse impacts to the
SMA, and their knowledge of the area could have supplemented the
findings of the environmental assessment. Finally, as the
Commission was already required to consider the CZMA in making
its decision on Carr’s SMA use permit, it would not unduly
burdensome to allow PPKAA to participate in the contested case
hearing. 141 Hawai‘i at 266, 408 P.3d at 18.
14 The Commission’s rules provide for procedures where intervention is
granted and requires pre-hearing mediation, the appointment of a hearing
officer, and the opportunity for cross-examination, discovery, and the
submission of evidence. MPC §§ 12-201-53 (1993); 12-201-54 (1993); 12-201-60
(1993); 12-201-67 (1993); 12-201-69 (1993).
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Therefore, the ICA did not err in holding that PPKAA was
denied procedural due process under the circumstances and was
entitled to participate in a contested case hearing on Carr’s
SMA use permit application.
C. The Commission was required to find the Project was
consistent with the community plan pursuant to HRS § 205-
26(2)(C)
Carr argues the ICA erred in holding the Commission was
required to make findings on the Project’s consistency with the
community plan because Resolution 14-14 exempted the Project
from MCC ch. 2.80B to “permit the project to proceed without
obtaining a community plan amendment.” Carr further contends
that, under HRS § 201H-38, qualified housing projects “shall be
exempt” from all statutes relating to the development and
improvement of land, which would include HRS § 205A-26(2)(C).
HRS § 201H-38(a) states that, subject to certain
provisions:
The corporation may develop on behalf of the State or with
an eligible developer, or may assist under a government
assistance program in the development of, housing projects
that shall be exempt from all statutes, ordinances, charter
provisions, and rules of any government agency relating to
planning, zoning, construction standards for subdivisions,
development and improvement of land, and the construction
of dwelling units thereon[.]
(Emphasis added.)
The ICA held that, while Resolution 14-14 exempted the
Project from MCC ch. 2.80B, it did not relieve the Commission
from its duties under HRS § 205A-26(2)(C) to make findings on
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the Project’s consistency with the community plan. PPKAA, mem.
op. at 22. Under HRS § 205A-26(2)(C):
(2) No development shall be approved unless the authority
has first found:
. . .
(C) That the development is consistent with the county
general plan and zoning. Such a finding of consistency
does not preclude concurrent processing where a general
plan or zoning amendment may also be required.
(Emphasis added.)
We agree with the ICA that Resolution 14-14 did not exempt
the Project from HRS § 205A-26(2)(C) and that the Commission was
required to find that the Project was consistent with the West
Maui Community Plan. While HRS § 201H-38(a) states that
qualified housing projects “shall be exempt” from statutes and
ordinances related to the development and improvement of land,
these exemptions are contingent on the legislative body of the
county, in this case, the Council, approving the proposed
project “with or without modifications[.]” In this case,
Resolution 14-14 provided that the Project “shall comply with
all statutes, ordinances, charter provisions, and rules of
governmental agencies relating to planning, zoning and
construction standards for subdivisions, development and
improvement of land, and the construction of dwelling units
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thereon,” except for the attached specified exemptions.15
(Emphasis added.) Resolution 14-14 exempted the Project from
MCC ch. 2.80B, but it did not exempt the Project from HRS
§ 205A-26(2)(C).
However, even if Resolution 14-14 had included HRS § 205A-26(2)
among its listed exemptions, the Council would not have been
able to exempt the Project from HRS § 205A-26(2)’s requirements.
Although Carr argues that HRS § 205A-26(2)(C) is a law “relating
to the development and improvement of land” that may be exempted
under HRS § 201H-38, HRS ch. 201H does not define “relating to”
or provide guidance as to how broadly or narrowly to read that
phrase. The United States Supreme Court has recognized that the
words “relating to” are “broad and indeterminate,” and “extended
to the furthest stretch of their indeterminacy, stop nowhere.”
Mellouli v. Lynch, 575 U.S. 798, 811-12 (2015) (cleaned up).
“Context, therefore, may tug in favor of a narrower reading.”
Mellouli, 575 U.S. at 812. (cleaned up).
HRS ch. 205A is, viewed as a whole, an environmental law.
See HRS § 205A-21 (declaring that it is the state’s policy to
“preserve, protect, and where possible, to restore the natural
15 Carr acknowledges that HRS § 201H-38(a)’s use of the word “shall” is
qualified by subsections (1) through (4). HRS § 201H-38(a)(3) requires the
legislative body of the county in which the housing project is proposed to
approve the project “with or without modifications.” Carr also acknowledges
that Resolution 14-14 provided that the Project “shall comply” with all
statutes not specifically exempted.
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resources of the coastal zone of Hawai[‘]i.”); Morgan v. Planning
Dept., Cty. of Kauai, 104 Hawai‘i 173, 181, 86 P.3d 982, 990
(2004) (“The CZMA is a comprehensive State regulatory scheme to
protect the environment and resources of our shoreline areas.”)
(emphasis added). While “managing development” is also one of
the CZMA’s objectives, HRS § 205A-2 describes this objective as
“[i]mprov[ing] the development review process, communication,
and public participation in the management of coastal resources
and hazards.” To the extent the CZMA affects development, it is
“in order to preserve, protect, and, where possible, restore the
natural resources of Hawai‘i’s coastal zone,” not to “improve”
the land. Morgan, 104 Hawai‘i at 182, 86 P.3d at 991. We
therefore do not construe HRS ch. 205A as a law “relating to”
the development and improvement of land for the purposes of
exemptions under 201H-38.
Therefore, the Commission was required under HRS § 205A-
26(2)(C) to make findings on the Project’s consistency with the
West Maui Community Plan.
V. Conclusion
We therefore affirm the ICA’s October 13, 2020 judgment
vacating the circuit court’s June 19, 2015 findings of fact,
conclusions of law, and order denying appeal and final judgment,
and we remand to the Commission for further proceedings
consistent with this opinion.
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Lance D. Collins, /s/ Mark E. Recktenwald
for PPKAA
/s/ Paula A. Nakayama
Arisma A. Muller and /s/ Sabrina S. McKenna
Craig G. Nakamura,
for the Commission /s/ Michael D. Wilson
/s/ Todd W. Eddins
Moana M. Lutey,
Thomas W. Kolbe, and
Caleb P. Rowe,
for Carr
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