{"id":16671,"date":"2025-08-01T16:41:00","date_gmt":"2025-08-02T02:41:00","guid":{"rendered":"https:\/\/www.environment-hawaii.org\/?p=16671"},"modified":"2025-08-12T11:47:17","modified_gmt":"2025-08-12T21:47:17","slug":"new-noteworthy-mala-wharf-marconi","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=16671","title":{"rendered":"New & Noteworthy: Mala Wharf, Marconi"},"content":{"rendered":"\n

Mala Wharf Remand: <\/strong>On July 28, the Intermediate Court of Appeals issued an order remanding to the 2nd<\/sup> Circuit Court a case involving the Board of Land and Natural Resources\u2019 denial of a contested case hearing to groups and individuals that had sought to challenge the award of permits to commercial companies using Mala Wharf, on the west side of Maui. In October 2021, the BLNR denied their request for a contested case. Judge Peter Cahill of the 2nd<\/sup> Circuit Court upheld the BLNR\u2019s actions.<\/p>\n\n\n\n

The permit renewals expired on October 31, 2022, but the ICA still took up the case under exceptions to the mootness doctrine, determining that the matter at issue was \u201ccapable of repetition, yet evading review\u201d and involved the public interest.<\/p>\n\n\n\n

The appellants \u2013 Ka Malu o Kah\u0101l\u0101wai, N\u0101 Papa\u02bbi Waiwae \u02bbUla\u02bbula, Kekai Keahi, and Kai Nishiki \u2013 had asked the ICA to void the companies\u2019 permits and require the BLNR to hold a contested-case hearing on any reissuance of the permits. <\/p>\n\n\n\n

But the ICA denied this, stating that first, the only matter before it was whether the Circuit Court erred in its decision. \u201cAdditionally,\u201d the ICA wrote, \u201cit appears that the permit renewals \u2026 expired on or about October 31, 2022. Although we have decided this appeal based on exceptions to the mootness doctrine, Appellants\u2019 request that we remand to BLNR for a contested case hearing on the expired renewals still appears to be moot.\u201d<\/p>\n\n\n\n

In reviewing the lower court\u2019s order, the ICA determined that Judge Cahill had erred in agreeing, with the BLNR, that the \u201cattempt to secure a contested-case hearing is in fact an attempt to raise a policy-based challenge\u201d to administrative rules and not subject to a contested case. But, the ICA noted, \u201cWhether a contested case proceeding is the \u2018appropriate procedural mechanism\u2019 \u2026 is not the applicable test for determining whether a party has a constitutional due process right to a contested case hearing.\u201d<\/p>\n\n\n\n

With that, the ICA remanded the case to the Circuit Court \u201cto determine what, if any, relief is available to Appellants in these circumstances.\u201d<\/p>\n\n\n\n

For background, see \u201cPetitioners Allege Rights Infringement by Commercial Users at Mala Wharf,\u201d Environment Hawai\u02bbi, <\/em>April 2022.<\/p>\n\n\n\n

Marconi Hearing:<\/strong> On August 29 at 9 a.m., U.S. District Judge Jill A. Otake will hold a hearing on a motion by the City & County of Honolulu and its Department of Planning and Permitting for summary judgment in a case brought two years ago by companies owned by the developer of the Marconi Point Condominiums on O\u02bbahu\u2019s North Shore.<\/p>\n\n\n\n

Early on, Judge Otake dismissed the companies\u2019 claims surrounding building permits and a roadway subdivision that they argued should have been granted without having to secure or apply for a Special Management Area permit. The 96-acre project lies entirely within the SMA.<\/p>\n\n\n\n

Then in May, Judge Otake supported a magistrate judge\u2019s order denying the companies\u2019 request to amend their complaint for a third time to re-allege their building permit claims. (In their second amended complaint, they re-alleged their roadway subdivision application claims.)<\/p>\n\n\n\n

The companies argue that their February 14, 2020, agricultural subdivision application was automatically approved. The city, however, argues that they failed to meet tentative approval requirements before the application expired.<\/p>\n\n\n\n

A trial date has been set for December 1, but the city argued in a July 21 filing that the companies\u2019 \u201ctheory of the case\u201d has proved to be baseless. <\/p>\n\n\n\n

\u201cThey alleged a convoluted theory that DPP only required that plaintiffs apply for a Special Management Area permit due to influence exerted by plaintiffs\u2019 former consultant William Wong. Their theory that Wong sabotaged plaintiffs\u2019 subdivision applications disappeared in plaintiffs\u2019 Opposition and Counter-Concise Statement of Facts.<\/p>\n\n\n\n

\u201cPlaintiffs are left with the reality that DPP simply exercised its discretion to require an SMA permit in light of potential cumulative impacts to the natural and cultural resources on plaintiffs\u2019 unique property. Their opposition fails to create any genuine dispute that plaintiffs do not have a legal injury, do not have ripe claims, nor establish a prima facie case for their claims,\u201d the city wrote.<\/p>\n","protected":false},"excerpt":{"rendered":"

Mala Wharf Remand: On July 28, the Intermediate Court of Appeals issued an order remanding to the 2nd Circuit Court a case involving the Board of Land and Natural Resources’ denial of a contested case hearing to groups and individuals … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":14340,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[21,540,338,18],"tags":[7,3],"class_list":["post-16671","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-agriculture","category-august-2025","category-land-use","category-new-noteworthy","tag-patricia-tummons","tag-teresa-dawson"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/16671","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=16671"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/16671\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/14340"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=16671"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=16671"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=16671"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}