Big Island Projects Stall After Judge Finds County Violates Coastal Zone Law
The plans of SoBay Hawai`i, Inc., to build a 21-unit condominium building along the waterfront makai of Ali`i Drive in Kailua-Kona came to a grinding halt in late June. That was when Third Circuit Judge Ronald Ibarra, hearing an appeal of a Special Management Area permit given to the project by the Hawai`i County Planning Commission last November, determined that the permit had been issued in violation of the state’s Coastal Zone Management law.
A similar appeal of an SMA permit issued to Ka`upulehu Developments for a residential and commercial project was heard in Ibarra’s court a month after the SoBay hearing. Again, Ibarra found that the county Planning Commission erred in issuing the permit.
As a consequence, both projects are on hold now. And, in both cases, attorneys for the county and the developers have requested that Ibarra reconsider his rulings.
A Novel Approach
The SoBay ruling was issued on June 22. In a short four pages, Ibarra laid out his reasoning: First, the county had failed to carry out the public participation element that was added to the state CZM law (Chapter 205A) in 1993; second (a technical point), three of the “conclusions of law” contained in the Planning Commission’s decision were not properly adopted by the commission; and third, the one-year period of validity of the shoreline certification that had been required as a part of the application process had expired before the permit was issued, and the Planning Commission had no authority to determine whether it continued to be valid, since this authority properly rests with the Board of Land and Natural Resources.
Attorneys for the county and developers expressed surprise at Ibarra’s finding with respect to the public participation requirement of Chapter 205A. In the past, the public participation requirement was thought to apply only to the statewide CZM program. To meet that requirement, the state has established the Marine and Coastal Zone Management Policy Advisory Group. No county has established any formal body to advise on coastal zone policies.
Yet despite the attorneys’ views that the legal requirement for public participation does not fall upon the individual counties, the actual Planning Commission decisions suggest a different view. For example, in the Ka`upulehu decision, the Planning Commission determined that “the objectives and policies relating to the public participation are available through the Planning Commission’s public hearing where public participation occurs in the form of oral or written testimony and within the Planning Commission’s contested case hearing procedures.” As Matsukawa notes, “the Planning Commission deliberated on this point” (whether the public participation requirement was met), “found that the public participation objective and policies were applicable and that the Commission had fulfilled the same.”
In his legal memorandum on the subject, Matsukawa goes on to say that, in the wake of Ibarra’s ruling, the county “now argues that the Planning Commission has no duty to execute public participation objective,” since that is a state function. “A litigant cannot ‘blow hot and cold’ and change its position after receiving an adverse ruling.”
Panic
The county and developers have strategized together on their challenge to Ibarra. First, they have filed for reconsideration, which has been granted in the SoBay case. Second, they have asked to be allowed to “supplement” the record by introducing new evidence, consisting largely of friendly testimony they solicited from the head of the Office of Planning, David Blane, about the public participation requirements.
In the request to supplement the record, county deputy corporation counsel Frederick Giannini notes that state law allows the record to be supplemented “by live testimony where there are ‘alleged irregularities in procedure’ before the agency which are not shown in the record.”
“In this case,” he continues, “there was a meager examination before the Planning Commission of the issues raised concerning the interpretation” of the public participation requirement. And, he goes on to say, while this is “not truly an ‘irregularity,’ [it] is a shortcoming in the record that should be supplemented in order to provide a more certain basis for a decision.”
Judge Ibarra heard arguments on the request for reconsideration of the SoBay decision on August 2. He took the matter under advisement. A similar hearing on the reconsideration request for Ka`upulehu was set for August 30.
(For additional background on the SoBay case, see the article, “[url=/members_archives/archives_more.php?id=825_0_26_0_C]Condominium Planned for Kona Sparks Debate Over Shoreline Rules, Seawalls[/url],” in the August 1998 issue of Environment Hawai`i, pages 4-6. For further reading on the Ka`upulehu project, see “[url=/members_archives/archives_more.php?id=997_0_28_0_C]LUC Acknowledges Bishop Estate As Konohiki of Ka`upulehu Land[/url],” the cover story in the July 1996 edition of Environment Hawai`i.)
— Patricia Tummons
Volume 10, Number 3 September 1999