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Electronically Filed
Supreme Court
SCWC-29440
28-FEB-2014
03:09 PM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
KAUAI SPRINGS, INC.,
Petitioner/Appellant-Appellee,
vs.
PLANNING COMMISSION OF THE COUNTY OF KAUA#I,
Respondent/Appellee-Appellant.
SCWC-29440
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 29440; CIV. NO. 07-1-0042)
FEBRUARY 28, 2014
NAKAYAMA, ACOBA, McKENNA, AND POLLACK, JJ.,
WITH RECKTENWALD, C.J., CONCURRING AND DISSENTING
OPINION OF THE COURT BY POLLACK, J.
This appeal arises out of a decision by
Respondent/Appellee-Appellant Planning Commission of the County
of Kaua#i (Planning Commission) to deny Petitioner/Appellant-
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Appellee Kauai Springs, Inc.’s (Kauai Springs) application for
three permits related to the continued operation of Kauai
Springs’ water bottling facility. The Circuit Court of the Fifth
Circuit (circuit court) reversed in part and vacated in part the
Planning Commission’s decision and order, ordered that all three
permits be issued, and entered final judgment in favor of Kauai
Springs. The Intermediate Court of Appeals (ICA), pursuant to
its published opinion of April 30, 2013, vacated the circuit
court’s final judgment and remanded the case to the Planning
Commission for consideration of whether Kauai Springs can meet
the requirements for the permits. Kauai Springs filed an
application for writ of certiorari to this court (Application),
seeking reversal of the ICA’s May 30, 2013 Judgment on Appeal.
For the reasons set forth herein, we affirm the ICA
Judgment to the extent that it vacated the Final Judgment entered
by the circuit court and remand the case to the Planning
Commission to clarify its findings of fact and conclusions of
law.
I. BACKGROUND
Kauai Springs is a water bottling and distribution
company owned by Jim and Denise Satterfield. Kauai Springs
operates out of land located in Koloa, Kaua#i (the Property).
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The Property is leased from Makana Properties, LLC (Makana
Properties). The majority of the Property is designated
agricultural by the General Plan for the County of Kaua#i (Kaua#i
General Plan), Chapter 7 of the Kaua#i County Code (KCC).
On April 17, 2003, the County of Kaua#i (County) issued
Kauai Springs a Class IV Zoning Permit for the construction of a
watershed on the Property. On September 17, 2003, the County
issued a building permit to Kauai Springs for the construction of
a 1,600 square-foot “bottled water processing facility” on the
Property. On July 9, 2004, the State Department of Health issued
a four-year permit approving Kauai Springs as a “bottled water
manufacturer.”
Kauai Springs subsequently began operating its water
bottling facility. The water that Kauai Springs uses for its
operations originates from an underground spring located several
miles from the Property, 1,000 feet up Kahili Mountain.1 Kauai
Springs apparently “purchases” or “licenses” its water from EAK
Knudsen Trust (Knudsen Trust), the owner of the land where the
1
Contrary to the findings of the circuit court, the EAK Knudsen
Trust does not “own the spring [or] the water.” See, e.g., In re Water Use
Permit Applications, 94 Hawai#i 97, 129, 9 P.3d 409, 441 (2000) (“a public
trust was imposed upon all the waters of the kingdom. That is, . . . not
ownership in the corporeal sense . . . rather, . . . a retention of such
authority to assure the continued existence and beneficial application of the
resource for the common good.”).
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spring is located. The water is transmitted to the Property by a
private, gravity-fed system dating back to the 1890s, which is
owned by Knudsen Trust and operated by Grove Farm Company (Grove
Farm).2
Grove Farm owns the private water tank servicing the
Property. The water tank feeds several lines and services at
least eleven other residences neighboring the Property. Kauai
Springs has installed a tap into the water line connected to the
tank, which feeds a meter and an underground line to the water
bottling facility on the Property. Water overflows from the tank
into a tributary to Waihohonu Stream. Kauai Springs purifies the
water it extracts, bottles the water into five-gallon containers,
and delivers the bottles to customers on Kaua#i.
On May 15, 2006, the County Planning Department
(Planning Department) issued a cease and desist letter to Makana
Properties. The letter provided that upon receiving a complaint,
the Planning Department conducted a field inspection of the
Property on April 27, 2005, and found violations of KCC Chapter
8, The Comprehensive Zoning Ordinance for the County of Kauai
2
According to the State Public Utilities Commission (PUC), “[t]he
Grove Farm water system originates at one of two tunnels located on the land
owned by the [Knudsen Trust] at the foot of Mount Kahili . . . . The water
line delivers water to Kahili Mountain Park and a number of domestic and
agricultural users on various Knudsen Trust-owned and other parcels on its way
to Koloa Town, where it supplies at least eleven residential lots on Wailaau
Road.”
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(CZO).3 The Planning Department specified that 1) the “activity
of processing and packaging without the proper permits”
constitutes a violation of KCC § 8-19.14; and 2) the use of the
Property “for Industrial processing and packaging purposes is not
generally permitted within the Agriculture District,” pursuant to
KCC § 8-7.2.5 Makana Properties was instructed to immediately
“[c]ease and desist such use and relocate to an appropriate land
use district.”
On July 5, 2006, the Planning Department accepted Kauai
Springs’ completed application for three zoning permits: 1) a Use
Permit under KCC Article 20 (Use Permit); 2) a Special Permit
under Hawai#i Revised Statutes (HRS) § 205-6 (2005) (Special
Permit); and 3) a Class IV Zoning Permit under KCC Article 19
(Class IV Zoning Permit). According to the Planning Department,
a Use Permit and Special Permit were required because the
proposed use was not generally permitted in the agricultural
3
On December 3, 2012, the County of Kauai enacted the first of two
phases of updating the CZO, which had not been comprehensively updated since
its adoption in 1972. Ordinance No. 935 (Dec. 3, 2012), available at
http://qcode.us/codes/kauaicounty/.
4
KCC § 8-19.1 (1972) provides: “No person shall undertake any
construction or development or carry on any activity or use, for which a
zoning permit is required by this Chapter, or obtain a building permit for
construction, development, activity or use regulated by this Chapter, without
first obtaining the required zoning permit.”
5
KCC § 8-7.2 (1972) specifies the uses and structures permitted in
agriculture districts.
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district. A Class IV Zoning Permit is a procedural requirement
of a Use Permit in the agricultural district.
Kauai Springs’ application provided that it was
“requesting a permit for a water harvesting and bottling
operation.” The application stated that the “maximum current
capacity for the Kauai Springs’ operation is 1,000 [five-gallon]
bottles per day during one 8 hour shift.” Kauai Springs
estimated that it “expect[ed] vehicle capacity to reach a maximum
level of 8 trips per day by delivery and office personnel.”
Furthermore, Kauai Springs planned to expand its operation to
include bottling water in smaller bottles for distribution
throughout the State.
The Planning Commission held four public hearings on
the application, on August 8, September 26, November 14, and
November 28, 2006. The Commission also discussed the application
at a regular meeting on January 23, 2007. Public oral testimony
on the application was taken at each meeting. The minutes of the
hearings indicate that Kauai Springs’ application was identified
at each hearing as follows: “Use Permit U-2007-1, Special Permit
2007-1 and Class IV Zoning Z-IV-2007-1 = Kaua#i Springs, Inc.
(For a spring water bottling facility, Koloa, Tax Map Key 2-8-
2:por. 5.).” There is no indication in the record that members
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of the public were restricted to testifying on any particular
permit at any of the hearings. Many of those testifying
commented generally on the application as a whole rather than on
the permits individually.
Additionally, the Planning Department also requested
input from various State and County agencies throughout its
public hearings process.
Prior to the August 8 public hearing, the Planning
Department prepared a staff report describing the application and
providing a preliminary evaluation. The preliminary evaluation
stated that while Kauai Springs’ existing use is “relatively low
impact,” the expansion of operations “would intensify the use”:
The existing water bottling facility is relatively low
impact . . . in its current function and capacity. However,
expansion of the facility to include small bottle production
at the site would involve increased production machinery,
delivery frequency, generate more traffic, and generally
would intensify the use, which may not be appropriate or
compatible at this location.
At the August 8 hearing, Kauai Springs confirmed that
it had been in business for two to three years at that point and
the purpose of its application was to “increase . . .
productivity.” Kauai Springs stated that it was currently
filling between 300 and 500 five-gallon bottles per week. Kauai
Springs requested approval to expand to their maximum capacity of
1,000 five-gallon bottles per day at the existing facility, seven
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days a week (i.e., 35,000 gallons per week). At maximum
capacity, Kauai Springs anticipated “8 total vehicles” making
daily round-trips.
Kauai Springs stated that “there is no limit” to how
much water can be extracted from the private water system. Kauai
Springs also informed the Planning Commission that it planned to
produce smaller bottles at its existing facility once it had the
capacity to do so. The Planning Commission members discussed
whether they should base their decision on the permits upon Kauai
Springs’ current operations or upon the maximum capacity of the
operations.
The Planning Commission also discussed the overflow
from the water system. The Planning Department planner stated
that it was her understanding that “[t]he overflow from the pipe
and from the water tank . . . is overflowing into Waihohonu
Stream.” Commissioner Imai Aiu noted that if Kauai Springs
reached its full potential, “then that is 1,000 gallons a day
that is basically taken out of the Waihohonu Stream.” In
response to an individual who testified that the water “is being
wasted” by not being bottled, Commissioner Aiu stated, “So I
don’t know how much currently flows through there and how much of
an [effect] that would have but . . . it’s not a waste when it’s
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going through an actual river and riparian environment. That is
a natural system that does deserve to be looked at.”
The Trustee of the Knudsen Trust appeared at the August
8 meeting, in support of Kauai Springs’ application. The trustee
confirmed that the private water system was owned by Knudsen
Trust, and the trust had a signed licensing agreement for Kauai
Springs to take the water. The trustee did not think that the
licensing agreement was received by the Water Commission.
The August 8 meeting was continued to September 26 to
request clarification from the State Land Use Commission
regarding the size of the land area under consideration for a
Special Permit, and receive clarification from the Department of
Land and Natural Resources Commission on Water Resource
Management (Water Commission) regarding whether “the proposed
quantity of water to be captured and bottled by the operation is
of concern to them.” Kauai Springs was also asked “to define
what it wanted more clearly.” Additionally, the Planning
Department noted that “[a] question also arose as to whether the
Public Utilities Commission (PUC) . . . had any jurisdiction over
the water system or the sale of water to the Applicant.”
In a letter dated September 26, 2006, the Water
Commission responded to the Planning Department’s request for
input on the application. The Water Commission commented that
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“[t]here may be the potential for ground or surface water
degradation/contamination,” and therefore “recommend[ed] that
approvals for this project be conditioned upon a review by the
State Department of Health and the developer’s acceptance of any
resulting requirements related to water quality.”6 The Water
Commission further commented that “[g]round-water withdrawals
from this project may affect streamflows, which may require an
instream flow standard amendment.” Finally, the Water Commission
stated that although a water use permit was not required because
the island of Kaua#i was not a designated ground-water management
area, other permits from the Water Commission may be required if
the source of Kauai Springs’ water was modified:
The Island of Kauai has not been designated as a ground-
water management area; therefore a water use permit from the
Commission is not required to use the existing source(s) or
to change the type of water use. However, if the source
needs to be modified in any way, a well modification permit
from the Commission may be required. In addition, if a pump
is to be installed to induce additional water flow, a pump
installation permit from the Commission would be required.
If the source is modified to induce additional water flow,
and the modification results in impacts to surface waters, a
petition to amend the interim instream flow standard for
affected surface waters must be made and approved prior to
use of the water.
6
The State Department of Health (DOH) offered several
“environmental health concerns” for the Planning Commission to consider,
regarding: 1) sanitary facilities and disposal of wastewater; 2) the water
bottling facility’s compliance with applicable ventilating requirements; and
3) air pollution control measures. The DOH concluded that “[d]ue to the
general nature of the application submitted,” it “reserve[d] the right to
implement future environmental health restrictions when more detailed
information is provided.”
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(Emphases added).
At the September 26, 2006 public hearing, Kauai Springs
clarified that it was requesting “approval to fill up to 1,000 5-
gallon bottles of water per day, and up to 1,000 cases of bottled
water per week at the existing facility.” Kauai Springs further
clarified that it was requesting ten vans “to be added to our
existing facility to accommodate steady growth.” The Planning
Commission briefly discussed the Water Commission’s letter with
the applicant, but noted that the Water Commission would be
sending additional comments. At the end of the hearing, the
Planning Department planner commented that she did not know
“whether water is coming out of the tunnel and going into a
stream,” or “how much water is in the system,” although Kauai
Springs had “represented that 275,000 gallons a day are the
capabilities of this tunnel.”
On October 26, 2006, the Planning Department staff
conducted a site visit, accompanied by the applicants, to view
the tunnel where the water system originates, the Kahili Mountain
Park portion of the water system, the water bottling facility,
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and the adjacent Grove Farm water tank.7 The staff described the
water system as follows:
The tunnel entrance is located adjacent to a streambed with
steep sides, where it enters the hillside horizontally. To
prevent infiltration of surface water into the tunnel, a
concrete stem wall was constructed at the bottom of the
entrance to above the water level within the tunnel, and a
steel panel was mounted over the tunnel entrance. Inside
the tunnel, water enters the system through a water pipe
installed at or below the water surface. Except for two
places where the pipe crosses stream beds on piers, the pipe
is buried underground from the tunnel to a water tank on TMK
2-7-01:03. Water is chlorinated at the tank, which serves
the Kahili Mountain Park parcel, and feeds the line going to
Koloa Town. A second tunnel and a Kuia Stream intake used
to join this line in a junction house below the water tank;
however, these two water sources have been bypassed due to
Department of Health concerns for the influence of surface
water. The sole water source is Tunnel #1. Overflow from
the system on Kahili Mountain Park is returned to the
adjacent stream.
In a letter dated November 6, 2006, the Planning
Department requested clarification of the Water Commission’s
comments in its September 26 letter. The Planning Department
summarized its understanding that, providing certain hypothetical
conditions applied, no permit was required for Kauai Springs’ use
of water from the existing water system:
II. The tunnel is not being changed, and the Applicant’s
use of the water is not affecting the source in any way
(i.e. not inducing more water to come out of the source or
tunnel)
III. The existing source has been registered and is
basically grandfathered, and there is an agreement between
the new user (Applicant) and the operator of the system.
7
The Planning Commission did not attend the site visit. Although
the Commission approved a motion for a site visit to the tunnel and bottling
facility sometime between October 25 and October 31, 2006, the visit was not
scheduled due to Sunshine Law concerns and trail conditions.
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IV. There is a closed line from the tunnel to the tank.
It was also the Planning Department’s understanding that
additional permits and a petition to amend the interim instream
flow standard for affected surface waters may be required under
the circumstances outlined in the Water Commission’s letter.
At the November 14, 2006 hearing, counsel for Kauai
Springs stated that the application request was to bottle a
maximum of 1,000 gallons of water per day, and to use a maximum
of two vans a day for the delivery of that water. Counsel agreed
that “[t]his would represent an amendment to the previous request
of 1,000 five-gallon bottles a day and one thousand cases of
water in smaller bottles a week to be delivered in ten . . . vans
per day and one 40-foot container per day.”
A consultant for Grove Farm also appeared at the
November 14 hearing. He confirmed that Grove Farm did not own
the water tunnel, but managed the water system and sold the
water. He stated that Grove Farm was not “involved . . . at all”
in Kauai Springs’ Use Permit request because the request did not
involve Grove Farm property. The consultant stated that he had
“no clue” if there were any applicable PUC requirements regarding
Grove Farm selling the water to Kauai Springs. To his knowledge,
Grove Farm had never communicated with the PUC. The Planning
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Department planner suggested that the PUC does not “grandfather
at all so they just probably didn’t know about [the Grove Farm
system]. It wasn’t something that came to anybody’s attention
because it was so small a system.”
By letter dated November 20, 2006, the Water Commission
responded to the Planning Department’s request for clarification.
The Water Commission stated, “We concur with your summary of our
comments and confirm that no permits from the Commission are
required for the proposed use of water under the three conditions
outlined in your letter.”
By letter dated November 22, 2006, the PUC responded to
the Planning Department’s November 6 inquiry “as to whether Grove
Farm’s water system and Kauai Springs, Inc.’s sale of water from
the Grove Farm water system are regulated by the [PUC].” The PUC
responded that based on “the limited information provided, there
is a possibility that Grove Farm may be operating as a public
utility[.]”8 However, the PUC stated that an analysis of whether
Grove Farm was operating as a public utility would include
determining whether Grove Farm provides water service for the
8
A “public utility” is defined as “every person who may own,
control, operate, or manage as owner, lessee, trustee, receiver, or otherwise,
whether under a franchise, charter, license, articles of association, or
otherwise, any plant or equipment, of any part thereof, directly or indirectly
for public use . . . for the production, conveyance, transmission, delivery,
or furnishing of . . . water[.]” HRS § 269-1 (Supp. 2012).
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public’s use and the amount of control its customers may exert
over the water system. Accordingly, “[a]dditional information,
including a review of all relevant facts and possibly testimony
from all concerned parties, would be necessary before a
determination could be made[.]” With respect to Kauai Springs,
the PUC stated that “it does not appear that Kauai Springs would
be a public utility subject to commission jurisdiction.” The PUC
explained:
Such operations may not rise to services of such a public
character and of public consequence and concern that is to
be regulated under HRS Chapter 269, as bottled water may be
obtained from a number of competing sources and providers.
The commission does not currently exercise jurisdiction over
any water bottling facilities in the State.
The PUC cautioned that its letter constituted an “informal
opinion” based on the information provided and was not binding on
the PUC. The PUC concluded, “If you require a formal opinion on
this matter, you may file a petition for declaratory relief
pursuant to chapter 6-61, subchapter 16, Hawaii Administrative
Rules.”
At the November 28, 2006 public hearing, the Planning
Commission discussed granting conditional permits, provided that
Kauai Springs would agree to furnish status reports that would
allow the Commission to monitor progress. Specifically in regard
to the Use Permit, counsel for Kauai Springs informed the
Planning Commission that Kauai Springs would be willing to accept
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restrictions on the permit, such that the permit would be
exclusively for the use of Kauai Springs, it would not be
transferable, and the Commission would have the right to review
the permit if Kauai Springs sold its business.
The Planning Commission also discussed postponing its
decision pending a declaratory ruling by the PUC or Water
Commission, or conditioning approval of the permits on a
declaratory ruling. However, the Planning Commission stated that
it was required to act on the Special Permit by January 31, 2007
and that the rules of the Commission did not allow for an
extension of time. The Commission members thus voted to close
the public hearing.
By letter dated November 28, 2006, counsel for Kauai
Springs wrote to the Planning Commission to “confirm, in writing,
the Applicant’s request.” Counsel wrote, “In order to be capable
of further growth, the Applicant, after careful consideration of
the evidence presented at the public hearings and notwithstanding
the testimony provided by myself to the contrary, has decided to
maintain the request for approval as set forth in his original
application.” This request was for a maximum of 1,000 five-
gallon bottles per day (or 5,000 gallons per day or 35,000
gallons per week), a maximum of ten van round-trips per day, a
maximum of one 40-foot container round-trip per week, and a
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maximum of five employees at any one time. Counsel wrote that he
regretted any confusion caused by his testimony at the November
14 hearing and “look[ed] forward to coming to agreeable terms
that are acceptable to all parties involved.”
In a letter dated November 30, 2006, the Office of
Hawaiian Affairs (OHA) wrote that it was concerned with Kauai
Springs’ application “because it involves the use of an important
public trust resource - fresh water - for personal financial
gain,” and it “appear[ed] to be the first attempt to bottle and
sell Hawaii’s surface water[.]” OHA stated that the Planning
Commission had acted pursuant to its public trust duty “by
requesting clarification on public trust issues from [the Water
Commission] and the [PUC].” OHA wrote that it was not enough to
require Kauai Springs to request a declaratory ruling from the
Water Commission. Rather, the Water Commission should
investigate whether “Hawai#i water law is already being
violated.” “For example, the off-stream flows may have already
increased with Kauai Springs’ use of the water, or there may be
transport of water outside the watershed of origin.” OHA
requested that the Commission require these studies to be
conducted prior to issuing any permits. OHA further requested
that the Planning Commission resolve the “outstanding PUC issues”
regarding whether Grove Farm and Kauai Springs were operating as
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public utilities. Given the January 27, 2007 deadline for a
decision on the application, OHA argued that the Commission
“uphold its public trust responsibilities by denying Kauai
Springs’ permit applications without prejudice, until the
applicant can show, and the appropriate agencies can concur, that
Kauai Springs’ proposed use is reasonable-beneficial and will not
interfere with public trust purposes.” At a minimum, OHA
contended that Kauai Springs should be required to obtain a
declaratory ruling from the Water Commission “regarding the need
for an instream flow standard amendment and a final decision from
the PUC regarding the need to register as a public utility.”
By letter dated December 1, 2006, counsel for Kauai
Springs wrote to the Planning Commission, suggesting specific
language regarding the “non-transferability” condition to the Use
Permit that had been discussed at the prior public hearing.
At the January 23, 2007 regular meeting of the Planning
Commission, the Commission considered the recommendation to deny
the permits made by Planning Department planner Bryan Mamaclay,
who had recently replaced the prior planner. Counsel for Kauai
Springs stated that he “was really surprised” when he received
Mr. Mamaclay’s staff report recommending that the permits be
denied. Counsel believed that Mr. Mamaclay “was put in a
difficult position by inheriting this file at the last minute.”
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Counsel explained that based on his last conversation with Mr.
Mamaclay, his impression had been that Mr. Mamaclay “would like
to have some more time to look at it but because of the rules we
weren’t afforded that opportunity. So instead of working with
conditions . . . as you are enabled to do he chose to take the
denial route.”
Mr. Mamaclay explained that the comments received from
the Water Commission, PUC, and OHA were “an issue because . . .
we need some comfort level or some certainty that the applicant
has the right or the authority to extract and draw the water on a
commercial basis.” Mr. Mamaclay noted that the Water
Commission’s letter included “caveats or some qualifying
statements,” which raised the question of whether Kauai Springs
had gone “through a process to ensure that there is no violation
of any [Water Commission] rules.” Mr. Mamaclay further informed
the Commission that the “absolute deadline” for the Special
Permit was January 31, 2007.
After further discussion and public testimony, the
Planning Commission voted 6-1 to deny the three permits. That
same day, January 23, 2007, the Commission issued its Findings of
Fact, Conclusions of Law, Decision and Order (Decision and Order)
denying the application.
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With respect to time constraints for acting on the
application, the Planning Commission found that “[t]he absolute
deadline for action on the application based on procedures for
action on Special Permits is 210 days after the acceptance of the
application or January 31, 2007.” The Planning Commission found
that “[t]he delay in reaching a decision . . . was attributed to
staff’s effort in obtaining additional information relating to
the Applicant’s authority and right to obtain and extract the
water for commercial purposes.”
The Planning Commission summarized the findings and
comments submitted by the Water Commission and the PUC. In
relation to the Water Commission’s input, the Planning Commission
found the Water Commission had qualified its comments by stating
that permits may be required if certain modifications were made:
b. The Planning Department further acknowledges the
qualifying remarks by [the Water Commission] that:
I. if the source needs to be modified in any way, a well
modification permit from [the Water Commission] may be
required;
II. if a pump is to be installed to induce additional
water flow, a pump installation permit from [the Water
Commission] would be required;
III. if the modification results in impacts to surface
waters, a petition to amend the interim instream flow
standard for affected surface waters must be made and
approved prior to use of the water.
Relative to these comments, the Planning Commission found that
the Planning Department’s site visit to the tunnel where the
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private water line is located confirmed that a “concrete stem
wall” and “steel panel” had been constructed at the tunnel
entrance:
c. Relative to the foregoing, it is also acknowledged as
confirmed during a site visit to Tunnel #1, that to prevent
infiltration of surface water into the tunnel, a concrete
stem wall was constructed at the bottom of the tunnel
entrance to above water level within the tunnel and a steel
panel was mounted over the tunnel entrance. Furthermore and
as noted by the staff, inside the tunnel, water enters the
system through a water pipe installed at or below the water
surface. Thereafter, the water line is buried up to a water
tank . . . where it is chlorinated before servicing Kahili
Mountain Park and the 11 homes in Koloa Town.
(Emphasis added).
In relation to the PUC’s comments, the Planning
Commission found that “Kauai Springs would not be a public
utility subject to commission jurisdiction since the commission
does not currently exercise jurisdiction over any water bottling
facility in the State.” However, the Commission found that the
“PUC further draws interest in its findings relating to Grove
Farm as the seller of the water from its system to the Applicant
and its status with the PUC.” The Commission found in this
regard that the PUC’s letter stated “there is a possibility that
Grove Farm may be operating as a public utility,” and that the
PUC qualified its response as an “informal opinion based on the
limited information provided[.]” (Quotation marks omitted).
In light of the observations made during the site visit
and the comments made by the PUC and the Water Commission, the
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Planning Commission found “there may be outstanding regulatory
processes” that Kauai Springs must satisfy:
In view of the foregoing, there may be outstanding
regulatory processes with [the Water Commission] that the
Applicant must satisfy. Based on the comments provided by
[the Water Commission] and staff observations during the
field trip, it should be the Applicant’s responsibility to
confirm and determine the need for any permits that may be
required for the construction of the concrete stem wall and
the steel panel mounted over the tunnel entrance. The
permit requirements administered by [the Water Commission]
are cited in HRS Section 174C-71(3)(A), (Protection of
Instream Uses) . . . and requires persons to obtain a permit
from the Commission prior to undertaking stream channel
alteration provided that routine streambed and drainage way
maintenance activities and maintenance of existing
facilities are exempt from obtaining a permit.
Comments received from the PUC also draws interest to the
extent that as a purchaser of the water from Grove Farm, the
operation may be subject to PUC regulation. The PUC in this
regard encourages that a declaratory ruling be sought to
allow more diligent review of the relevant facts and
information associated with the proposed water bottling
facility.
As evidenced by additional testimony provided by [OHA] and
concerned parties, the Planning Commission is being
requested to exercise caution and deny the Applicant’s
request in its role as decision maker in the land use permit
process.
(Emphases added).
Based on the above findings, the Planning Commission
concluded that Kauai Springs had failed to carry its burden of
demonstrating that its proposed use did not violate all
applicable requirements and regulatory processes relating to
water rights, and that there was no substantive evidence that
Kauai Springs had legal standing and authority for its proposed
water use:
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3. In view of the comments received from [the Water
Commission] and PUC the land use permit process should
insure that all applicable requirements and regulatory
processes relating to water rights, usage, and sale are
satisfactorily complied with prior to taking action on the
subject permits. The Applicant, as a party to this
proceeding should also carry the burden of proof that the
proposed use and sale of the water does not violate any
applicable law administered by [the Water Commission], the
PUC or any other applicable regulatory agency.
4. There is no substantive evidence that the Applicant has
any legal standing and authority to extract and sell the
water on a commercial basis.
(Emphases added).
At the Planning Commission’s February 13, 2007 regular
meeting, the Commission considered Kauai Springs’ request for
reconsideration of the Decision and Order. At the hearing,
counsel for Kauai Springs argued that the purpose of the motion
for reconsideration was “to prevent hasty or ill advised action.”
Counsel stated that “after four months of lengthy public hearings
the new planning staff person received the file just days before
the purported deadline that we were told a decision had to be
made[,] which was the 210 day deadline [for the Special Permit].”
Counsel argued that it was a mistake for the Commission to deny
the permits based on issues raised in OHA’s letter, where OHA
erroneously stated that the application involved a surface water
system, and where every other administrative agency had
“responded favorably to the applicant.” Counsel requested that
the Commission “vote to reconsider and then continue this matter
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to a time in the not to[o] distant future when we can all get our
arms around any of the remaining issues including any issues
raised by that OHA letter that came in just days before [the
staff] report and that we can make a fully reasoned decision.”
In response to counsel’s comments, Commissioner Randall
Nishimura questioned whether granting reconsideration would place
the Commission in violation of the “210 day requirement for the
Special Permit.” The County Attorney responded that it was his
impression that the Commission could not grant an extension of
the deadline even if Kauai Springs requested it. Counsel for
Kauai Springs stated that he had discussed this issue with a
County Attorney and the Mayor, and it was his understanding that
Kauai Springs could waive the 210 day requirement. The County
Attorney informed the Commission that the Decision and Order had
been issued on the 203rd day following acceptance of the
application, which would leave the Commission with seven days to
act upon reconsideration.
After further discussion, counsel for Kauai Springs
stated that “[t]he applicant would certainly be willing to waive
something to avoid a hasty decision[.]” Counsel continued:
I think we would have asked for that two weeks ago in my
discussions with the planner had we known that we could and
that was why I was somewhat heartened after our meeting a
week and a half ago with the Mayor. But absolutely we would
be willing to execute a document, I’m happy to work with the
County Attorney, a waiver of our rights. We are not trying
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to have you open it today and then argue that that’s an
automatic approval we want to get this right. We believe
there are important issues to be resolved. We are not
trying to sneak anything by here.
(Emphasis added).
Following public oral testimony on the request for
reconsideration, a formal motion to reconsider the Decision and
Order was made. Several Commissioners stated that they could not
support the motion due to their belief that the Commission was
not in a position to resolve the “water rights issue.” The
Planning Commission voted 4-1 to deny the motion for
reconsideration.
In a letter dated February 15, 2007, the Planning
Department confirmed the Commission’s vote to deny the motion for
reconsideration and notified Kauai Springs that continued
operation on the Property constituted a land use violation. On
March 13, 2007, the Planning Department ordered Kauai Springs to
shut down its operations on the Property. The Planning
Department’s Notice of Violation dated March 13, 2007 provided
that the department inspected the Property on March 8, 2007, and
found violations of the Kauai CZO based on the continued
operation of the water bottling facility without the required
permits. Kauai Springs was ordered to correct the violation(s)
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within fifteen days and to cease and desist the illegal
activities.
II. Circuit Court Proceedings
On March 15, 2007, Kauai Springs appealed the Decision
and Order to the circuit court. On May 15, 2007, the circuit
court granted Kauai Springs’ motion for a preliminary injunction
and enjoined the Planning Department from enforcing the Decision
and Order.
On September 17, 2008, the circuit court issued its
order, reversing in part and vacating in part the Planning
Commission’s Decision and Order.
The circuit court concluded that pursuant to
HRS § 91-13.5 (Supp. 2006) and the relevant county code
provisions, and based upon the Planning Commission’s acceptance
of Kauai Springs’ application on July 5, 2006, the Commission was
required to act upon the three requested permits by the following
dates: 1) October 18, 2006 for the Use Permit; 2) November 2,
2006 for the Class IV Zoning Permit; and 3) January 31, 2007 for
the Special Permit.9 The circuit court concluded that the
9
For use permits, the Planning Director is required to either make
a decision on the permit or refer the permit application to the Planning
Commission within forty-five (45) days. KCC § 18-9.5(d). See KCC § 8-20.6(a)
(providing that use permit procedures are governed by KCC § 18-9.5, which
describes the procedures for a Class III zoning permit). If the application
is referred to the Planning Commission, the Planning Commission is required to
act on the application within sixty (60) days. KCC § 18-9.5(f). Thus the
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Planning Commission’s failure to act within the time frame for
the Use and Class IV Zoning permits meant that “Kauai Springs had
a legitimate claim of entitlement” to those permits and those
permits were “deemed approved” as of the date of the deadlines.
The circuit court further concluded that Kauai Springs
did not waive the deadlines or assent to extensions by appearing
and participating in subsequent public hearings or by not
demanding that its application be approved. The circuit court
concluded that “[i]t was reasonable for Kauai Springs to await
the Planning Commission’s decision,” and “[t]he failure to adhere
to the time requirements was due solely to the actions of the
Planning Commission.”
In regard to the criteria applied by the Planning
Commission in denying the permits, the circuit court concluded
Planning Commission had a total of 105 days from July 5, 2006 to act upon the
Use Permit, unless there was assent to an extension of the deadline.
For Class IV zoning permits, the Planning Director is required to
prepare a report on the application within sixty (60) days. KCC § 18-9.6(c).
Within sixty (60) days of receiving the report, the Planning Commission is
required to hold at least one public hearing on the application and to make a
determination on the application. KCC § 18-9.6(d). Thus the Planning
Commission had a total of 120 days from July 5, 2006 to act upon the Class IV
Zoning Permit, absent assent to an extension.
Special Permits are governed by Chapter 13 of the Rules of
Practice and Procedures of the Planning Commission (Planning Commission
Rules). Section 13-7(a) provides that the Commission must vote on a Special
Permit application no later than 210 days after the acceptance of the
application, “or within a longer period as may be agreed by the applicant to
the extent permitted by law.” For purposes of HRS § 91-13.5, if the
Commission fails to vote on the petition within the established time frame,
the petition is deemed approved after an additional thirty (30) days. § 13-
8(a)(2).
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that the Planning Commission did not consider the proper
criteria, although the “applicable standards” for the three
permits were “clearly established.”
Regarding the Use Permit, the circuit court concluded
that the Kauai CZO provides that the purpose of the permit, to
assure proper integration into the community of uses, was
satisfied by Kauai Springs’ proposed use:
42. The Kauai Zoning Code provides “the purpose of the ‘use
permit’ is to assure the proper integration into the
community of uses which may be suitable only in specific
locations in a district . . . and to prohibit such uses if
the proper integration cannot be assured.”
43. Kauai Springs is properly integrated into the community
of uses. It had been operating without issue and with all
the state and county permits necessary including two County
building permits. The Planning Department staffer remarked
about Kauai Springs, “[t]he existing water bottling facility
is relatively low impact at the subject location in its
current function and capacity.”
44. The Planning Department staffer also stated that the
watershed on the Property looked “just like any other Ag.
Building.”
45. There is nothing in the Decision and Order or the Record
to indicate that Kauai Springs’ existing or proposed uses
were not or will not be integrated.
(Citations omitted) (emphases added). The circuit court further
concluded that KCC § 8-20.5 “sets forth the standards the
Planning Commission should have applied when considering Kauai
Springs’ application for a Use Permit.” The circuit court
concluded that the Decision and Order did not state, and the
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record did not indicate, that Kauai Springs did not meet these
standards.
In regard to the standards for the Special Permit, the
circuit court similarly concluded that HRS § 205-6, county
ordinances, and the Planning Commission Rules set forth the
proper standard for issuing the permit and there was no
indication in the Decision and Order or the record that Kauai
Springs failed to meet these criteria. The circuit court reached
a similar conclusion for the Class IV Zoning Permit.
The circuit court then addressed the Planning
Commission’s duties under the public trust. The circuit court
first concluded that the County has duties under the public
trust:
61. The State of Hawaii and its political subdivisions have
duties under the public trust. Haw. Const. art. IX; Kelly v.
1250 Oceanside Partners, 111 Hawai#i 205, 140 P.3d 985
(2006).
62. “Political subdivisions” of the State include the County
of Kauai. Kelly v. 1250 Oceanside Partners, 111 Hawai#i 205,
140 P.3d 985 (2006).
(Emphases added). The circuit court then concluded that the
record was devoid of any evidence that Kauai Springs’ proposed or
existing use would affect public trust resources, and nothing to
indicate that the Planning Commission did not fulfill its public
trust duties:
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63. Decisions on permit applications must be grounded in
fact and the Record, not speculation, and the Record in this
case is devoid of any evidence that Kauai Springs[’]
existing or proposed uses might affect water resources
subject to the public trust.
64. In the Decision and Order, the Planning Commission
concluded that Kauai Springs’ applications could be denied
because Kauai Springs should have pursued “outstanding
regulatory processes.” The only regulatory process asserted
by the Planning Commission as being outstanding was that
Kauai Springs had not “proactively sought a declaratory
ruling” from either the Water Commission or the PUC.
With respect to the Water Commission and the PUC’s
input, the circuit court found that those agencies informed the
Planning Commission that Kauai Springs was not within their
“jurisdictions, interests, or concerns,” and the Water Commission
stated that no permits were required because of the circumstances
of Kauai Springs’ water use:
53. The Decision and Order stated the Planning Commission
had sought and received the input of the . . . Water
Commission and the PUC, both of which informed the Planning
Commission that Kauai Springs was not within their
respective jurisdictions, interests, or concerns.
. . . .
RA at 344 (FOF #18).
54. The Decision and Order stated the Water Commission
informed the Planning Commission that Kauai Springs required
“no permits” because “the Applicant's use of the water is
not affecting the source in any way (i.e., not inducing more
water to come out of the source or tunnel),” “the existing
source has been registered and is basically grandfathered,
and there is an agreement between the new user (Applicant)
and the operator of the system,” and “there is a closed line
from the tunnel to the tank.” RA at 344 (FOF #19.a.).
The circuit court concluded that the Water Commission and PUC
disclaimed interest in the application, state law did not require
“pursuit of futile administrative processes,” and the Commission
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had not identified “any other outstanding regulatory processes”
required to be fulfilled by Kauai Springs:
65. The Water Commission and the PUC are authorized pursuant
to Haw. Rev. Stat. ch. 269 and ch. 174C respectively to
regulate water allocations and public utilities. Both
agencies informed the Planning Commission that Kauai
Springs’ uses were of no significant interest to them.
. . . .
70. Hawaii law does not require pursuit of futile
administrative processes.
71. The Planning Commission did not identify any other
outstanding regulatory processes that it claimed must have
been fulfilled in order to satisfy any duty under the public
trust that it may have had.
(Citations omitted). Accordingly, the circuit court concluded
that there was “nothing in the Record . . . to show that the
Planning Commission did not fulfill any duty it may have under
the public trust.”
Finally, the circuit court concluded that Kauai Springs
carried its burden of showing that its proposed use did not
violate any applicable law administered by any applicable
regulatory agencies:
73. If Kauai Springs bore the burden of proof that its
proposed use did “not violate any applicable law
administered by [the Water Commission], the PUC or any other
applicable regulatory agency,” Kauai Springs plainly carried
that burden of proof. Both of these agencies had provided
their input to the Planning Commission, and neither agency
had any substantial concerns with Kauai Springs, as
reflected in the Decision and Order.
74. There was no evidence presented at the public hearings,
and no findings made by the Planning Commission that Kauai
Springs did not carry any of its burdens to show it was
entitled to the three permits at issue in this appeal, and
the Planning Commission was clearly erroneous when it
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determined that Kauai Springs did not meet the burden on the
zoning permit applications.
(Citations omitted) (emphases added).
The circuit court concluded that the Decision and Order
“purport[ed] to shift a burden to Kauai Springs to disprove
future events,” and therefore the Decision and Order was
arbitrary or capricious. The circuit court further concluded
that “[t]he Decision and Order is in violation of statutory
provisions, in excess of the statutory authority or jurisdiction
of the Planning Commission, made upon unlawful procedure,
affected by other error of law, clearly erroneous, and arbitrary
or capricious.”
Based on the above, the circuit court reversed the
Decision and Order with regard to the Use Permit and the Zoning
Permit. The circuit court ruled that Kauai Springs’ application
for those permits was approved and “shall be issued by the
appropriate agency or department.” The circuit court vacated the
Decision and Order with regard to the Special Permit and remanded
the case to the Planning Commission “with an order to issue the
Special Permit to Kauai Springs immediately.”
The circuit court further ruled that the Decision and
Order “exceeds the Planning Commission’s authority or
jurisdiction, is clearly erroneous in view of the reliable,
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probative and substantial evidence on the whole record; and is
arbitrary, or capricious, or characterized by abuse of discretion
or clearly unwarranted exercise of discretion.” The circuit
court permanently enjoined the Planning Commission from enforcing
the Decision and Order.
The circuit court’s final judgment in favor of Kauai
Springs and against the Planning Commission was entered on
September 23, 2008. On October 22, 2008, the Planning Commission
timely appealed to the ICA.
III. ICA Appeal
A.
On appeal to the ICA, the Planning Commission raised
four points of error:
a. Whether the circuit court was correct that the Use Permit
and the Class IV Zoning Permit were automatically approved
pursuant to provisions in the KCC.
b. Whether the Planning Commission had public trust
obligations to review Kauai Springs’ use of water.
c. If the Planning Commission had public trust obligations
to review Kauai Springs’ use of water, whether the Planning
Commission applied the proper standards and criteria in
reviewing the application for the permits.
d. Whether the circuit court was correct that Kauai Springs
met its burden of proof to be entitled to the permits.
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Kauai Springs, Inc. v. Planning Comm’n of the Cnty. of Kauai, 130
Hawai#i 407, 410, 312 P.3d 283, 286 (App. 2013).
First, with respect to the automatic approval deadlines
for the Use and Class IV Zoning permits, the Planning Commission
argued that the circuit court erred in concluding that Kauai
Springs did not assent to extending the deadlines and that the
failure to adhere to the time requirements was due solely to the
actions of the Planning Commission. The Commission argued that
the CZO plainly permits applicants to “assent” to a delay in the
approval process for Use and Class IV Zoning permits. (Citing
KCC §§ 8-19.5(g) and 8-19.6). The Planning Commission noted that
the deadline for the Use and Class IV Zoning permits had expired
on October 18 and November 2, 2006, respectively. However,
during the five public meetings held between August 8, 2006 and
February 13, 2007, Kauai Springs and its counsel “were fully
engaged in deliberations and negotiations” and did not assert
that the deadlines were set to expire or had expired. The
Planning Commission thus contended that “[b]y its conduct, [Kauai
Springs] led the Planning Commission to reasonably believe that
[Kauai Springs] assented to a delay in the final decision” on the
Use and Class IV Zoning permits. The Planning Commission argued
that the ICA should reverse the circuit court’s order deeming the
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Use and Class IV Zoning permits to have been automatically
approved.10
Second, the Planning Commission argued that the circuit
court erred in implicitly holding that the Planning Commission
had no duty under the public trust doctrine to consider the
implications of the proposed water use on public trust
resources.11 The Planning Commission argued that based on
article 11, section 7 of the Hawai#i Constitution and applicable
law, the circuit court should have concluded that the Planning
Commission, as a political subdivision, had a duty to examine the
legality of Kauai Springs’ water use, regardless of whether the
Water Commission asserted jurisdiction over the matter.
The Planning Commission also challenged the circuit
court’s COL ¶ 63, concluding that the record was “devoid of any
10
Malama Kaua#i and Hawaii’s Thousand Friends (MKHTF) filed a brief
of amici curiae in the proceedings before the ICA. MKHTF agreed with the
Planning Commission that Kauai Springs assented to an extension of the time
period for consideration of the Use and Class IV Zoning permits.
Additionally, MKHTF argued that “deeming Kauai Springs’ applications
‘automatically approved,’ where [the Planning Commission] specifically and
diligently sought to fulfill its trust duties with Kauai Springs’ assent,
would wrongly penalize [the Planning Commission] and the public trust and
nullify [the Planning Commission’s] duties and Kauai Springs’ burden of proof
and, therefore, run afoul of the constitution.”
11
The Planning Commission specifically challenged the circuit
court’s COL ¶ 71 (“The Planning Commission did not identify any other
outstanding regulatory processes that it claimed must have been fulfilled in
order to satisfy any duty under the public trust that it may have had”) and
COL ¶ 72 (“There is nothing in the Record . . . to show that the Planning
Commission did not fulfill any duty it may have under the public trust”) based
on the use of the word “may” to describe the Planning Commission’s public
trust duties.
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evidence that Kauai Springs existing or proposed use might affect
water resources subject to the public trust.” The Planning
Commission argued that the public trust doctrine applies to all
water resources. Thus, although the Knudsen Trust owns the land
containing the water source and Grove Farm owns the water system,
the Planning Commission was obligated to examine Kauai Springs’
use of water, and Kauai Springs was required to show that its use
was “legal.” Given that Kauai Springs “sought after-the-fact
permits to greatly increase its industrial bottling and
commercialization of drinking water taken from a ground-water
source,” the Planning Commission argued that “the record
contained ample evidence demonstrating that [Kauai Springs’]
existing or proposed use might affect resources subject to the
public trust.”
Third, the Planning Commission argued that the circuit
court erred in concluding that the Planning Commission did not
consider the proper criteria when reviewing and processing Kauai
Springs’ application. The Planning Commission contended that
implicit in the circuit court’s conclusion was the assumption
that Kauai Springs was only bound by the specific permit
requirements and “was not required [under the public trust
doctrine] to prove the legality of its commercialization of
fresh-water resources[.]” The Planning Commission argued that
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Kauai Springs had the burden of justifying its proposed uses in
light of the public trust doctrine and the higher level of
scrutiny imposed for private commercial uses of public resources.
Thus, the Planning Commission did not act arbitrarily or
capriciously by scrutinizing Kauai Springs’ water use and denying
the three permits based on the issue of water rights.
Finally, the Planning Commission argued that the
circuit court erred in concluding that assuming Kauai Springs
bore the burden of proof in showing that its proposed use did
“not violate any applicable law” administered by the Water
Commission, the PUC or any other applicable regulatory agency,
Kauai Springs “plainly carried that burden of proof.” According
to the Planning Commission, Kauai Springs “was required to
present concrete evidence that it possessed a legal right to
bottle and sell water taken from the cave owned by Knudsen Trust,
and that the proposed use was not inimical to the purposes of the
public trust.” Kauai Springs failed to present such evidence,
offering “only conclusory assertions regarding the impact of
[its] proposed increase in water use on the interests of other
users, the general public, and the environment,” and offering
insufficient information as to its relationship with Grove Farm
and Knudsen Trust. The Planning Commission focused on the
“equivocal responses” from the Water Commission and the PUC and
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argued that it was erroneous for the circuit court to conclude
that “neither agency had any substantial concerns.”
Relatedly, the Planning Commission argued that the
circuit court erred in concluding that Kauai Springs met the
relevant permit criteria. Specifically, the Planning Commission
argued that the circuit court erred by concluding that Kauai
Springs’ existing or proposed uses “were not or will not be
integrated” into the community of uses, given that: 1) the
applicable law required Kauai Springs to present evidence that
its existing and proposed uses were integrated into the community
of uses; and 2) Kauai Springs’ “burden to demonstrate the
integration of its proposed land-use was not mutually exclusive
from its burden to demonstrate the legality of its proposed
water-use.” The Planning Commission contended that Kauai Springs
failed to present “substantive evidence concerning either water
rights or possible impacts that the proposed increase in water
usage would have on the ground-water source or neighboring users’
access to the water.” Thus, Kauai Springs did not satisfy the
applicable permit criteria.12
12
OHA filed an amicus curiae brief in which it argued that the
circuit court erred in concluding that the record was devoid of any evidence
that Kauai Springs’ proposed or existing uses might affect public trust
resources. OHA argued that the “bottling and sale of water is inconsistent
with protecting” the water resource “in its natural state,” and that “it was
necessary for the Planning Commission to evaluate these two competing uses of
water.” OHA also challenged the circuit court’s COL ¶ 72 as improperly
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B.
Kauai Springs first responded that the County
ordinances and rules permitting a permit applicant to assent to
an extension were invalid because they exceeded the scope of
their enabling statute, HRS § 91-13.5. HRS § 91-13.5 provides
that agencies shall adopt rules specifying maximum time periods
for acting on certain permits, and that any application not
decided within the established time frame is “deemed approved.”
Kauai Springs emphasized that HRS § 91-13.5(e) provides for only
three circumstances under which the designated time periods may
be extended, for national disasters, state emergencies, or union
strikes preventing the fulfillment of application or review
requirements. Kauai Springs argued that the statute does not
include the applicant’s “assent” as a reason for extending
deadline, which demonstrates that “assent” was intended to be
excluded from the statute’s scope. Thus, Kauai Springs argued
that the County ordinances and rules permitting an applicant to
stating that the Planning Commission had no duty to address the impact of
Kauai Springs’ operation on the public trust resource. OHA contended that
because the Water Commission and PUC stated that they did not have direct
jurisdiction over the operation, the duty to protect the public trust
resources fell to the Planning Commission, which properly denied the permits
“when it became clear that Applicant Kauai Springs had not met its burden of
addressing the public trust values incorporated into Hawaii’s Constitution and
in the State Water Code.”
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“assent” to an extension were in conflict with superior state law
and therefore invalid.
Even assuming that an applicant is permitted to assent
to an extension, Kauai Springs argued that the circuit court
correctly found that Kauai Springs did not assent to an extension
by appearing at the public hearings after the deadlines had
passed. Kauai Springs contended that merely appearing at the
hearings did not constitute waiver or affirmation, and that in
this case, it did not waive the deadlines by any affirmative
conduct such as asking for extra time or withdrawing its
application.
Second, Kauai Springs argued that the circuit court
recognized the Planning Commission’s public trust duties and held
that the Planning Commission satisfied those duties. Kauai
Springs further argued that it did not seek approval for a “use
of water” because the application did not seek the Planning
Commission’s permission to take or extract water, as Kauai
Springs does not control the source of the water or the
transmission system. Rather, Kauai Springs sought only to tap
into a “pipeline that crosses its property,” similar to “any
person or business statewide that purchases water from someone
else, or fills a bottle with a garden hose.” “Thus, the Planning
Commission’s public trust inquiry was limited to whether public
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resources would be impacted by Kauai Springs’ building on
agriculturally-zoned land.”
Kauai Springs argued that the Planning Commission’s
public trust duties did not entitle it to “turn the usual zoning
process into an open-ended and standardless inquiry . . . merely
because a connection can be made between a permit application and
water resources.” Kauai Springs claimed that in this case, the
Planning Commission took reasonable measures and made appropriate
assessments to assess the impact of Kauai Springs’ use on public
trust resources, and possessed affirmative evidence, based on
input from the other county agencies, that the use would have no
impact on such resources.
Kauai Springs argued that the Planning Commission
sought to have Kauai Springs pursue “outstanding regulatory
processes,” without identifying the required “processes.” Kauai
Springs notes that as the circuit court determined, “[t]he only
regulatory process asserted by the Planning Commission as being
outstanding was that Kauai Springs had not ‘proactively sought a
declaratory ruling’ from either the Water Commission or the PUC.”
However, those agencies “had already expressly informed the
Planning Commission they had no interest in Kauai Springs,” and
the “Planning Commission has never revealed what . . .
declaratory rulings . . . would accomplish.” Kauai Springs
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concluded that “[t]he public trust doctrine does not empower an
agency to deny an application for zoning permits simply because
the agency asserts it lacks information.”
C.
The ICA vacated the circuit court’s judgment and
remanded the case to the Planning Commission for further
proceedings to consider whether Kauai Springs satisfied the
specific criteria for the requested permits, in light of the
public trust doctrine.
On the first issue of the “deemed approved” deadlines,
the ICA found it uncontested that the deadlines for the Planning
Commission to act on the Use and Class IV Zoning permits were
October 18 and November 2, 2006, respectively, and that the
Decision and Order was not issued until January 23, 2007. Kauai
Springs, 130 Hawai#i at 418, 312 P.3d at 294. However, the ICA
recognized that the applicable ordinances provide that permits
shall be deemed approved if the Planning Commission fails to take
action within the prescribed time limits, “unless the applicant
assents to a delay.” Id. (emphasis in original) (quoting KCC §§
8-19.5(g), 18-9.6(e)).
The ICA rejected Kauai Springs’ argument that the
County ordinances are in conflict with HRS § 91-13.5(e) because
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“assent” is not one of the three enumerated circumstances for
extending agency deadlines. Id. Examining the legislative
history of HRS § 91-13.5, the ICA found that the legislature
“contemplated flexibility in rule-making and a balance between
streamlining on one hand and constitutional demands, public
input, and environmental concerns on the other hand[.]” Id. The
ICA thus held that the “challenged assent provisions do not
conflict with HRS § 91-13.5.” Id. (citations omitted).
The ICA then held that Kauai Springs assented to an
extension of the deadlines for the Use and Class IV Zoning
permits based on the following conduct by Kauai Springs and its
counsel: 1) on November 14, 2006, amending the original
application to seek approval for only its current needs; 2) on
November 28, 2006, retracting its earlier amendment and asking
the Planning Commission to consider its original application for
approval of future needs, and continuing to negotiate for the
granting of a conditional Use Permit; 3) on January 23, 2007,
contending that the Planning Commission should grant all three
permits; and 4) on February 13, 2007, requesting reconsideration
of the Decision and Order, offering to accept conditional
permits, and requesting a continuance to obtain more evidence
pertaining to the issue of water rights. Id. at 419-20, 312 P.3d
at 295-96. The ICA reasoned that “[a]t no point in time did
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Kauai Springs assert that its permit application had been
automatically approved.” Id. at 421, 312 P.3d at 297.
Accordingly, the ICA held that the circuit court erred
in concluding that Kauai Springs did not assent to an extension
of the deadlines for the Use and Class IV Zoning permits. Id.
Second, in regard to the Planning Commission’s public
trust obligations to review Kauai Springs’ use of water, the ICA
found the circuit court’s conclusions “somewhat conflicting” as
to the scope of the Planning Commission’s public trust duties,
given that COL ¶ 63 provided that the record “is devoid of any
evidence that Kauai Springs existing or proposed uses might
affect water resources subject to the public trust,” and COLs ¶¶
71 and 72 suggested that the Planning Commission “may” have
public trust duties. Id. at 422-23, 312 P.3d at 298-99. The ICA
therefore held that COLs ¶¶ 63, 71 and 72 were “incorrect in that
they do not recognize the Planning Commission’s public trust duty
to consider and review Kauai Springs’ water usage in its water
bottling operation.” Id. (emphasis added).
The public trust duty to protect ocean waters is based
on a “combined analysis of article XI, section I and the ‘general
laws’ that delegated duties and responsibilities to the county.”
Id. at 423, 312 P.3d at 299 (citing Kelly v. 1250 Oceanside
Partners, 111 Hawai#i 205, 224-25, 140 P.3d 985, 1004-05 (2006)).
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The ICA concluded that the County’s public trust duty and the
general laws conferring zoning power to the County established
that the Planning Commission “had a duty to conserve and protect
water in considering whether to issue the Use Permit and the
Class IV Zoning Permit[.]” Id. at 425-426, 312 P.3d at 301-02.
The ICA then found that Kauai Springs’ current and
proposed use of the Property “directly affects a public trust
resource.” Id. at 427, 312 P.3d at 303. Thus, the ICA vacated
the circuit court’s COLs ¶¶ 63, 71 and 72 and rejected Kauai
Springs’ claim that the Planning Commission’s public trust
inquiry was limited to whether public resources would be affected
by Kauai Springs’ building on the land. Id.
Third, the ICA considered whether the Planning
Commission applied “the correct standards and criteria in
carrying out its public trust obligations.” Id. The ICA held
that the Planning Commission was required to make “appropriate
assessments and require reasonable measures to protect the water
resources,” to employ a “higher level of scrutiny,” and to place
the burden on Kauai Springs to justify its proposed use of water
in light of the public trust purposes:
Based on our reading of Kelly, Wai~hole I, and in In re Kukui
(Molokai), Inc., we thus hold that the Planning Commission's
decision be initially grounded in the framework of the statutes
and regulatory provisions that authorize the Planning Commission
to act in this instance; in addition thereto, that the Planning
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Commission make appropriate assessments and require reasonable
measures to protect the water resources at issue in this case;
Id. at 429, 312 P.3d at 305 (emphasis in original).
The ICA found that although the Planning Commission’s
Decision and Order cited the applicable criteria for issuing the
permits (citing KCC § 8-20.5 and Planning Commission Rules § 13-
6), the Planning Commission’s denial of the permits was not based
on such criteria. Id. at 429-30, 312 P.3d at 305-06. Rather,
the “Planning Commission essentially required Kauai Springs to
prove that its water usage – and the sale of the water by the
Knudsen Trust and Grove Farm’s operation of the water system –
were legal and met all potentially applicable regulatory
requirements.” Id.
The ICA held that such a requirement was not a
“reasonable measure,” as it “create[d] an obscure and indefinite
burden of proof” and was “completely open-ended as to the
‘applicable law’.” Id. at 431-32, 312 P.3d at 307-08. Thus, the
Decision and Order was arbitrary and capricious. Id.
The ICA further explained that “it was not a reasonable
measure for the Planning Commission to require Kauai Springs to
undertake regulatory action to establish and confirm that other
parties, Knudsen Trust and Grove Farm, were in compliance with
all applicable requirements and regulatory processes,”
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particularly “given the limited and specific concerns raised by
the Water Commission and the PUC.” Id. at 432, 312 P.3d at 308.
The ICA found that although the Water Commission raised some
concerns about issues that could affect the water resource, these
issues were “factual questions that could have been addressed
directly by the Planning Commission.” Id., (emphasis added).
Accordingly, the ICA held that the circuit court’s COL
¶ 41 was correct to the extent that it concluded the Planning
Commission did not consider the proper criteria. Id. at 433, 312
P.3d at 309. The ICA vacated the remaining portion of COL ¶ 41
to the extent it suggested standards inconsistent with the ICA’s
opinion. Id.
The ICA held that the circuit court was correct in
concluding that the Planning Commission’s: COL ¶ 3 (“land use
permit process should insure that all applicable requirements and
regulatory processes related to water rights” are complied with),
and COL ¶ 4 (there was no substantive evidence that Kauai Springs
“has any legal standing and authority to extract and sell the
water on a commercial basis”) were wrong as a basis for denying
the permits.13 Id.
13
The ICA then vacated the circuit court’s FOF ¶ 54, which misstated
the Decision and Order and the information provided by the Water Commission,
and vacated the circuit court’s COLs ¶¶ 73 and 74, which determined that the
Water Commission and PUC had not raised substantial concerns about the permit
application. Id.
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In regard to the Planning Commission’s claim that the
circuit court erred in concluding that Kauai Springs met the
specific criteria set forth for the permits in the CZO and the
Planning Commission Rules (COLs ¶¶ 43, 45, 59), the ICA explained
that the circuit court’s conclusions “appear to hold that Kauai
Springs met the regulatory criteria . . . for issuing the
permits.” Id. at 434, 312 P.3d at 310. However, the ICA again
stated that the Decision and Order did not “address in any
substantive way” the regulatory criteria. Id. Therefore, the
ICA concluded that “it would be more appropriate to allow the
Planning Commission to consider and decide whether Kauai Springs
can carry its burden in meeting the requirements[.]” Id. The
ICA thus vacated the challenged COLs and remanded to the Planning
Commission to consider Kauai Springs’ application for the three
permits based on the specific criteria established in the CZO and
the Planning Commission Rules. Id.
IV. Application
A.
In its Application to this court, Kauai Springs raised
two issues for consideration: 1) whether the ICA gravely erred in
concluding that Kauai Springs impliedly assented to extend the
designated time periods for consideration of the Use and Class IV
Zoning permits; and 2) whether the ICA gravely erred in remanding
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the case to the Planning Commission, where the Planning
Commission already had the opportunity to make the relevant
inquiries and denied the three permits based on reasons that the
circuit court and ICA concluded were “unreasonable, arbitrary and
capricious.”
Regarding the first issue, Kauai Springs maintained
that HRS § 91-13.5(e) does not permit extending the relevant
deadlines based on an applicant’s assent. Kauai Springs argued
that the legislature’s concern for flexibility in rulemaking,
which the ICA cited, was satisfied by the option for counties to
opt out of setting maximum time periods for consideration of
permits.
Even assuming that an applicant could assent to an
extension, Kauai Springs argued that the ICA erred in construing
“post-approval cooperation” to “imply assent” to an extension of
the deemed approved deadlines for the Use and Class IV Zoning
permits. Kauai Springs contended that by the time it had
purportedly assented to the extensions by conduct, the Use and
Class IV Zoning permits had already “vested” and been deemed
approved.
Finally, Kauai Springs noted that the ICA did not
identify any limitation to the extension of deadlines for the Use
and Class IV Zoning permits on remand. Kauai Springs argued that
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remanding for consideration of the Special Permit is futile,
given that only eight days remain before the deadline for that
permit expires.
In regard to the second issue, Kauai Springs asserted
that the ICA’s decision to remand the case “rests on its
incorrect conclusion [that] the circuit court did not recognize”
the Planning Commission’s public trust duties. Kauai Springs
argued that the circuit court clearly recognized its public trust
duty, and it was appropriate for the circuit court to state that
the Planning Commission “may” have had public trust duties
“because it was not its duty to define the exact extent of [its]
Kelly duties.” Rather, it was the circuit court’s duty to
determine whether the Planning Commission made “appropriate
assessments” and “reasonable measures,” and whether the Planning
Commission’s denial of the permits was “unreasonable, arbitrary,
or capricious.”
Kauai Springs maintained that the Planning Commission
possessed all of the necessary information to act on the permits
and should not have been permitted to base its denial on a lack
of information. Kauai Springs concluded that “the ICA’s opinion
serves as a blueprint for agency abuse under the guise of the
public trust in every case,” by allowing an agency to “issue an
unreasonable and arbitrary denial” and then “argue[] that its own
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Order was lacking” because the applicant failed to seek the
“right information.”
B.
On the first issue, the Planning Commission responded
that Kauai Springs’ conduct was reasonably interpreted as
manifesting its assent to delaying final action on the Use and
Class IV Zoning permits. The Planning Commission also argued
that it would have been inconsistent and illogical for the
Legislature to permit counties to opt out of establishing
deadlines entirely, while precluding counties from permitting
extensions of any deadlines based on the circumstances of the
application and the applicant’s assent.
In regard to the ICA ordering a remand without setting
a time limit for the Planning Commission’s consideration on
remand, the Planning Commission noted that the ICA “remanded the
case for the Planning Commission’s review under specific
standards and criteria, and that review necessarily will take
time.”
On the second issue, the Planning Commission argued
that the ICA properly remanded the case upon finding the circuit
court’s conclusions to be erroneous. The Planning Commission
argued that the circuit court did not recognize the Planning
Commission’s public trust duties under Kelly, as demonstrated by
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COL ¶ 63, providing that “the Record . . . is devoid of any
evidence that Kauai Springs[’] existing or proposed use might
affect water resources subject to the public trust.” COL ¶ 63
was erroneous because the record clearly contained evidence that
Kauai Springs’ existing and proposed use of the Property directly
affected a public trust resource.
The Planning Commission further argued that despite
Kauai Springs’ claim that the Commission argued “its own process
was inadequate,” the Commission consistently considered its
public trust duties, and Kauai Springs failed to carry its burden
of establishing that its use of water was inconsistent with the
public trust.
V. Standard of Review
A. Statutory Interpretation
“The interpretation of a statute is a question of law
reviewable de novo.” Franks v. City & Cnty. of Honolulu, 74 Haw.
328, 334, 843 P.2d 668, 671 (1993). This court's construction of
statutes is guided by the following rules:
When construing a statute, our foremost obligation is to
ascertain and give effect to the intention of the
legislature which is to be obtained primarily from the
language contained in the statute itself. We must read
statutory language in the context of the entire statute and
construe it in a manner consistent with its purpose. When
there is doubt, doubleness of meaning, or indistinctiveness
or uncertainty of an expression used in a statute an
ambiguity exists. If the statutory language is ambiguous or
doubt exists as to its meaning, courts may take legislative
history into consideration in construing a statute.
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Id., at 334-35, 843 P.2d at 671-72 (quotation marks and citations
omitted). “It is fundamental in statutory construction that each
part or section of a statute should be construed in connection
with every other part or section so as to produce a harmonious
whole.” State v. Davis, 63 Haw. 191, 196, 624 P.2d 376, 380
(1981).
B. Agency appeals
Review of a decision made by a court upon its review of an
administrative decision is a secondary appeal. The standard
of review is one in which this court must determine whether
the court under review was right or wrong in its decision.
To determine if the decision under review is right or wrong,
we apply the standards set forth in HRS § 91–14(g) to the
agency's decision.
Leslie v. Bd. of Appeals of the Cnty. of Haw., 109 Hawai#i 384,
391, 126 P.3d 1071, 1078 (2006) (quotation marks and citations
omitted). HRS § 91-14(g) (2012) 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; or
(2) In excess of the statutory authority or jurisdiction
of the agency; or
(3) Made upon unlawful procedure; or
(4) Affected by other error of law; or
(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.
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Additionally,
[i]t is well settled that in an appeal from a circuit
court's review of an administrative decision the appellate
court will utilize identical standards applied by the
circuit court. The clearly erroneous standard governs an
agency's findings of fact. An agency's findings are not
clearly erroneous and will be upheld if supported by
reliable, probative and substantial evidence unless the
reviewing court is left with a firm and definite conviction
that a mistake has been made.
The courts may freely review an agency’s conclusions of law.
Leslie, 109 Hawai#i at 391, 126 P.3d at 1078 (quotation marks,
brackets and citations omitted). See Save Diamond Head Waters LLC
v. Hans Hedemann Surf, Inc., 121 Hawai#i 16, 24, 211 P.3d 74, 82
(2009).
Conclusions of law are reviewed de novo, pursuant to
subsections (1), (2) and (4); questions regarding procedural
defects are reviewable under subsection (3); findings of fact
(FOF) are reviewable under the clearly erroneous standard,
pursuant to subsection (5), and an agency’s exercise of
discretion is reviewed under the arbitrary and capricious
standard, pursuant to subsection (6). Save Diamond Head Waters
LLC, 121 Hawai#i at 24, 211 P.3d at 82. Mixed questions of law
and fact are “‘reviewed under the clearly erroneous standard
because the conclusion is dependent upon the facts and
circumstances of the particular case.’” Id. at 25, 211 P.3d at
83 (quoting Del Monte Fresh Produce (Haw), Inc. v. Int’l
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Longshore & Warehouse Union, 112 Hawai#i 489, 499, 146 P.3d 1066,
1076 (2006)).
A court reviewing the decision of an agency should
ensure that the “agency . . . make its findings reasonably clear.
The parties and the court should not be left to guess . . . the
precise finding of the agency.” In re Water Use Permit
Applications, 94 Hawai#i 97, 157, 9 P.3d 409, 469 (2000)
(“Wai~hole I”) (quoting In re Kauai Elec. Div. of Citizens
Utilities Co., 60 Haw. 166, 183, 590 P.2d 524, 537 (1978)). An
agency's findings should be “sufficient to allow the reviewing
court to track the steps by which the agency reached its
decision.” Kilauea Neighborhood Ass’n v. Land Use Comm’n, 7 Haw.
App. 227, 230, 751 P.2d 1031, 1034 (1988). See also In re
Wai#ola O Mokoka#i, Inc., 103 Hawai#i 401, 432, 83 P.3d 664, 695
(2004) (explaining that any presumption of validity, given to an
agency's decision, “presupposes that the agency has grounded its
decision in reasonably clear” findings of fact and conclusions of
law).
C. Public trust
Review of an agency decision under the public trust
doctrine requires additional rigor. “Clarity in the agency’s
decision is all the more essential ‘in a case such as this where
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the agency performs as a public trustee and is duty bound to
demonstrate that it has properly exercised the discretion vested
in it by the constitution and the statute.’” Wai~hole I, 94
Hawai#i at 158, 9 P.3d at 470 (quoting Save Ourselves, Inc. v.
La. Envtl. Control Comm’n, 452 So. 2d 1152, 1159 (La. 1984)).
[T]he special public interests in trust resources demand
that this court observe certain qualifications of its
standard of review. As in other cases, agency decisions
affecting public trust resources carry a presumption of
validity. The presumption is particularly significant where
the appellant challenges a substantive decision within the
agency’s expertise as “clearly erroneous,” “arbitrary,”
“capricious,” or an “abuse of discretion.”
The public trust, however, is a state constitutional
doctrine. As with other state constitutional guarantees,
the ultimate authority to interpret and defend the public
trust in Hawai#i rests with the courts of this state.
Wai~hole I, 94 Hawai#i at 143, 9 P.3d at 455 (citations omitted)
(emphasis added).
In light of the duty imposed on the state under the
public trust doctrine, we have stated we must take a “close
look” at agency decisions that involve the public trust. In re
Water Use Permit Applications, 105 Haw. 1, 16, 93 P.3d 643, 658
(2004) (“Wai~hole II”), cited by In re Contested Case Hearing on
Water Use Permit Application Filed by Kukui (Molokai), Inc.,
116 Hawai#i 481, 490-91, 174 P.3d 320, 329-30 (2007) (“Kukui
(Molokai), Inc.”).
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Questions of constitutional law require the court to
“exercis[e] its own independent judgment based on the facts of
the case” under the right or wrong standard. Kelly, 111 Hawai#i
at 221, 140 P.3d at 1001 (quotation marks and brackets omitted).
“Under the right or wrong standard, this court examines the facts
and answers the question without being required to give any
weight to the trial court’s answer to it.” Id. (quotation marks
and brackets omitted).
VI. Discussion
A.
The first issue raised is whether the ICA gravely erred
in holding that Kauai Springs assented, through verbal and
nonverbal conduct, to extend the automatic approval deadlines for
the Use and Class IV Zoning permits.
1.
HRS § 91-13.5(a) requires state and county agencies to
adopt rules specifying a maximum time period for granting or
denying a business or development-related permit. The statute
provides that permits are “deemed approved” if the issuing agency
fails to take action within the specified time period.
HRS § 91-13.5(c). In conjunction thereto, KCC §§ 8-19.5(g) and
8-19.6(e) provide that an application that is not acted upon
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within the prescribed time limits (120 days for a special permit,
90 days for a use permit) is “deemed approved” unless the
applicant assents to a delay. (Emphasis added).
Kauai Springs maintains that these ordinances
permitting assent to a delay are in conflict with HRS § 91-13.5
and are therefore invalid. In support of this argument, Kauai
Springs relies on HRS § 91-13.5(e), which provides that the
established time period “shall be extended in the event of a
national disaster, state emergency, or union strike, which would
prevent the applicant, the agency, or the department from
fulfilling application or review requirements.” Thus, Kauai
Springs maintains that the legislature authorized no other
exception to the automatic approval deadline other than those
circumstances specified in the statute.
“Courts may take legislative history into consideration
in construing a statute.” Life of the Land, Inc. v. City Council
of City & Cnty. of Honolulu, 61 Haw. 390, 447, 606 P.2d 866, 899
(1980), see also Franks, 74 Haw. at 335, 843 P.2d 671-72. The
legislative history of HRS § 91-13.5 demonstrates that the
legislature was concerned that the automatic approval process
should not affect the agency’s ability to make an accurate
determination on the application, and therefore contemplated that
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any established deadline could be extended with the assent of the
parties.
When HRS § 91-13.5 was adopted in 1998, its purpose was
“to take constructive steps to improve Hawaii’s business climate”
and to address concerns about the “lengthy and indeterminate time
required for business and development-related regulatory
approvals[.]” 1998 Haw. Sess. Laws Act 164, § 2 at 613. Thus
the statute was intended “to require the establishment of maximum
time periods for the review and approval of all business and
development-related permit approvals,” in order “to provide all
parties with a greater level of certainty of the time required
for review and final determination by an agency[.]”14 Id.
The committee reports on the bill indicate that the
legislature was concerned with balancing the need to streamline
the permit application process with the need for agencies to
properly and thoroughly consider each application. The
conference committee recognized “the continued concerns of some
that automatic permit approval will be misused to short-circuit
public input processes.” Conf. Comm. Rep. No. 127, in 1998
Senate Journal, at 799. The committee noted that such concerns
14
The ICA noted that the County had adopted maximum time periods for
the Planning Commission to act on the permits involved in this case prior to
the adoption of HRS § 91-13.5. Kauai Springs, 130 Hawai#i at 418, 312 P.3d at
294.
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should be addressed by the agencies themselves: “Your Committee
is confident that agencies will account for the preservation of
such processes in their rulemaking.” Id. Similarly, the Senate
standing committee noted that “[i]n streamlining the approval
process,” the committee was “also mindful of environmental
concerns.” S. Stand. Comm. Rep. No. 2760, in 1998 Senate
Journal, at 1121. The committee clarified that the bill was “not
intended to jeopardize the environment” and was “intended to
allow for the continued safeguard of legitimate review and public
comment on those issues.” Id. Therefore, the legislature was
concerned that the automatic approval process should not affect
the agency’s ability to make an accurate determination on the
application.
Additionally, in 2005, HRS § 91-13.5(c) was amended to
provide that a delay in acting on the application caused by the
lack of quorum at a regular meeting shall not result in an
automatic approval of the application. 2005 Haw. Sess. Laws Act
68, § 1 at 150. The amendment also provided that “any subsequent
lack of quorum at a regular meeting of the issuing agency that
delays the same matter shall not give cause for further
extension, unless an extension is agreed to by all parties.” Id.
(emphasis added). Thus, the statute contemplates in the context
of automatic approvals that an extension may be granted by
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agreement of the parties, which is analogous to granting an
extension by assent of the applicant. See Black’s Law Dictionary
132 (9th ed. 2009) (defining “assent” as “[a]greement, approval,
or permission”).
Finally, in 2006 the statute was amended to provide
that it does not apply to “[a]ny county or county agency that is
exempted by county ordinance from this section.” HRS § 91-
13.5(e)(2); 2006 Haw. Sess. Laws Act 280, § 2, at 1156. The
purpose of the act was “to allow a county to opt out of the
automatic approval law by adopting an ordinance to exempt the
county as a whole or any county agency from the automatic permit
approval law.” 2006 Haw. Sess. Laws. Act 280, § 1, at 1156. In
adopting this amendment, the legislature explained that it found
automatic approval to be “poor public policy” that “can lead to
negative consequences for the community.” Id. at 1155. Due to
the automatic approval law, applications for development
approvals and other permits “can be granted by default.” Id.
The legislature emphasized that automatic approval was especially
harmful in situations involving complex applications, which
require significant time to consider public input and “various
needs”:
Automatic approval eliminates the opportunity for local
decision making. Applications are often complex and must be
carefully reviewed, which can take significant time. In
many situations, this is difficult because departments are
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understaffed and people serving on boards are volunteers.
Any good decision requires open public input, thorough
discussion, and careful consideration of various needs from
the county government, environmental interests, and
community groups.
Id. (emphases added). The legislature further explained that
even when “a government body unjustifiably fails to take timely
action on an application, . . . the public should not have to
suffer the consequences of having an ill-advised or harmful
project go forward.” Id. In support of its determination that
automatic approval was “poor public policy,” the legislature gave
examples of counties granting applications “because it could not
satisfactorily review the application within the time limits.”
Id. at 1155-56.
Based on the above, the legislative history of HRS §
91-13.5 does not indicate that it prohibits agencies from
considering an applicant’s assent as a reason for extending the
maximum time period for acting on a permit application. See
Waikiki Resort Hotel, Inc. v. City & Cnty. of Honolulu, 63 Haw.
222, 241, 624 P.2d 1353, 1366 (1981) (“A test to determine
whether an ordinance conflicts with a statute is whether it . . .
permits what the statute prohibits.”). On the contrary, the
history of the statute demonstrates that it would be considered
poor public policy for an issuing agency to make a decision on a
complex permit application solely for the purpose of meeting the
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established deadline, where the applicant has assented to an
extension of the deadline and the issuing agency is justified in
taking more time to thoroughly and accurately consider the merits
of the application.15
Accordingly, the ICA correctly determined that the
assent provisions in KCC §§ 8-19.5(g) and 8-19.6(e) do not
conflict with HRS § 91-13.5. Kauai Springs, 130 Hawai#i at 419,
317 P.3d at 295. The Planning Commission was permitted to extend
the time frame for considering Kauai Springs’ application for the
Use and Class IV Zoning permits based on Kauai Springs’ assent to
such an extension.
2.
Having determined that the applicant’s assent is a
valid reason for extending the time frame for acting on permits,
the next issue is whether the ICA correctly determined that Kauai
Springs assented to extending the automatic approval deadlines
for the Use and Class IV Zoning permits in this case. Kauai
Springs, 130 Hawai#i at 419-20, 317 P.3d at 295-296.
15
Given the legislative history of the statute, the canon of
construction that “the express mention of a particular provision may imply the
exclusion of that which is not included” does not support the inference that
the legislature intended to prohibit counties from considering an applicant’s
assent as a reason for delaying a decision on an application. See Int’l Sav.
& Loan Ass’n, Ltd. v. Wiig, 82 Hawai#i 197, 201, 921 P.2d 117, 121 (1996)
(maxim “exists only as an aid to statutory interpretation and its application
should be limited to ascertaining legislative intent which is not otherwise
apparent”).
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The circuit court concluded that Kauai Springs did not
“waive” the automatic approval deadlines or “consent to” or
“affirm” an extension of the deadlines by participating in the
permit application process after the deadlines had passed. The
circuit court concluded that time deadlines can be “waived by
affirmative conduct such as an applicant requesting extra time,”
or by an applicant withdrawing its application. The circuit
court concluded that Kauai Springs did not ask for extra time or
withdraw its application.
As noted by the ICA, the word “assent” is defined to
mean “[a]greement, approval, or permission; esp., verbal or
nonverbal conduct reasonably interpreted as willingness.” Black’s
Law Dictionary 132 (9th ed. 2009). There are different types of
assent, including actual, apparent, constructive, or implied
assent:
actual assent. Assent given by words or conduct intended to
express willingness.
apparent assent. Assent given by language or conduct that,
while not necessarily intended to express willingness, would
be understood by a reasonable person to be so intended and
is actually so understood.
constructive assent. Assent imputed to someone based on
conduct.
express assent. Assent clearly and unmistakably
communicated.
implied assent. Assent inferred from one's conduct rather
than from direct expression.
Id. Although the circuit court referred interchangeably to
“waiver” and “assent,” the concept of waiver is distinct in that
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it is generally defined as an “intentional relinquishment of a
known right.” Coon v. City & Cnty. of Honolulu, 98 Hawai#i 233,
261, 47 P.3d 348, 376 (2002) (quotation marks omitted) (emphasis
added). Although waiver may be “implied . . . by acts and
conduct from which an intention to waive may be reasonably
inferred,” id. (quotation marks and brackets omitted), this is
distinct from “assent,” which is “conduct reasonably interpreted
as willingness” rather than conduct reasonably interpreted as an
intentional relinquishment of a known right.
The ICA held that Kauai Springs assented to a delay in
the final decision on the Use and Class IV Zoning permits by
participating in public hearings, amending its application, and
continuing to negotiate for a conditional Use Permit after the
relevant deadlines had passed, without asserting at any point
that the permits had been automatically approved. Kauai Springs,
130 Hawai#i at 420, 317 P.3d at 296. The ICA determined that
based on the above conduct, which occurred after the deadlines
had passed, the Planning Commission reasonably interpreted Kauai
Springs’ conduct as willingness to extend the applicable
automatic approval deadlines. Id.
However, the ICA’s reliance on post-approval conduct to
find assent is inconsistent with the plain language of the
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relevant ordinances, which provide that Use and Class IV Zoning
permits are “deemed approved” if the application is not acted
upon during the established time frame, unless the applicant
assents to a delay. See KCC §§ 8-19.5(g) and 8-19.6(e). The
applicant’s assent to a delay must occur prior to the deadline.
Permitting an applicant to “assent” to a delay after the fact
would be contrary to the purpose of establishing maximum time
frames, which are intended to benefit permit applicants and “to
provide all parties with a greater level of certainty of the time
required for review and final determination” of an application.
1998 Haw. Sess. Laws Act 164, § 2 at 613.
Under the ICA’s analysis, the time frame for acting on
a permit application could be extended indefinitely based on
conduct occurring after the relevant deadline had already passed;
the ICA provided no limits as to when conduct could not be
interpreted as retroactive assent to an extension of a deadline.
It would also defeat the purpose of providing that “application
approval would be automatic” if the established time frame was
not met, 1998 Haw. Sess. Laws Act 164, § 2 at 613 (emphasis
added), if post-approval conduct could be construed as assenting
to a delay. See Webster’s Third New Int’l Dictionary 148 (1993)
(defining “automatic” as “having a self-acting or self-regulating
mechanism that performs a required act at a predetermined point
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in an operation” or “aris[ing] as . . . apparently necessary
reaction to or consequence of a given set of circumstances”).
If the Use and Class IV Zoning permits in this case
were automatically approved as of October 18, 2006 and November
2, 2006, respectively, then any conduct occurring thereafter
cannot be retroactively applied to establish “assent” to an
extension of the relevant deadlines. Thus, the ICA erred by
relying on post-approval conduct to find that Kauai Springs
assented to an extension of the deadlines.
However, the record in this case demonstrates that
Kauai Springs assented to an extension of the time frame for
considering the Use and Class IV Zoning permits, prior to the
deadlines for those individual permits, as both Kauai Springs and
the Planning Commission treated the application for the three
permits as comprising a consolidated application request. In
accordance with this understanding, the parties agreed, as
repeatedly evidenced by their conduct, that the Planning
Commission would be required to render a decision on the
consolidated application by January 31, 2007, which was the
latest deadline possible for the Special Permit. Under the
circumstances, this was clearly the most reasonable manner to
proceed.
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Kauai Springs submitted a single application for the
three permits. From the outset, it was understood that Kauai
Springs was required to obtain all three permits in order to
continue operating its water bottling facility. The Planning
Department’s cease and desist letter of May 15, 2006 stated that
the department found various violations of the CZO, including the
“activity of processing and packaging without the proper permits”
and the use of the Property “for Industrial processing and
packaging purposes,” which is “not generally permitted within the
Agriculture District.” The landowner, Makana Properties, was
instructed to immediately cease and desist the above use of the
Property.
Soon after, the Planning Department accepted Kauai
Springs’ completed application for the three permits. The Use
Permit and Special Permit were the substantive permits required
in order to permit Kauai Springs’ proposed use, which was not
otherwise permitted in the agricultural district. See KCC § 8-
20.1 (providing that a Use Permit is required to assure proper
integration into the community of uses in a district)16; HRS §
16
KCC § 8-20.1 (1976) provides: “The purpose of the ‘use permit’
procedure is to assure the proper integration into the community of uses which
may be suitable only in specific locations in a district, or only under
certain conditions, or only if the uses are designed, arranged or conducted in
a particular manner, and to prohibit such uses if the proper integration
cannot be assured.”
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205-6 (providing that a Special Permit is required to permit
“certain unusual and reasonable uses” within the agricultural
district).17 The Class IV Zoning Permit was simply a procedural
requirement of a Use Permit in the agricultural district.
See KCC § 8-19.1 (prohibiting any activity or use regulated by
the CZO without first obtaining the required zoning permit).18
Thus, in order for Kauai Springs to validly operate its
water bottling facility in the agricultural district, Kauai
Springs was required to obtain all three permits. Kauai Springs
would not have been able to operate legally with just the Use
Permit after October 18, 2006, or with just the Use Permit and
Class IV Zoning Permit after November 2, 2006. Rather, Kauai
Springs was required to also obtain the Special Permit, which had
the latest review deadline of January 31, 2007.
From the Planning Commission’s position, it would have
been illogical and impractical to decide separately upon the Use
Permit and Special Permit, given the similarity of the permits’
17
HRS § 205-6 (Supp. 2006), entitled “Special Permit,” provides that
“the county planning commission may permit certain unusual and reasonable uses
within agricultural and rural districts other than those for which the
district is classified,” provided that “the use would promote the
effectiveness and objectives” of Chapter 205.
18
KCC § 8-19.1 (1976) provides: “No person shall undertake any
construction or development or carry on any activity or use, for which a
zoning permit is required by this Chapter, or obtain a building permit for
construction, development, activity or use regulated by this Chapter, without
first obtaining the required zoning permit.”
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requirements. A use permit may be granted only if the Planning
Commission finds that the activity or use “is a compatible use”
and is not detrimental or injurious to the general welfare of the
community, neighborhood, land or waters. KCC § 8-20.5.
Consideration of use permits are guided by the Kauai General
Plan, which guides all zoning decisions pursuant to HRS § 46-4
and requires the County to “practice careful stewardship of the
island’s land and waters.”19 Kauai General Plan at Chapter 2,
available at http://www.kauai.gov/Portals/0/planning/Ch2.PDF.
Similarly, a special permit may be granted only if the
Planning Commission finds that the proposed use is “an unusual
and reasonable use of land,” after considering factors such as
whether the proposed use is suitable for the uses permitted
within the district or would adversely affect the surrounding
property. Planning Commission Rules § 13-6. As with use
permits, special permits are guided by more general objectives;
special permits may only be granted for uses that “promote the
effectiveness and objectives” of HRS Chapter 205, which provides
that its “overarching purpose” is to “protect and conserve
19
Pursuant to KCC § 7-1.2 (2000), the General Plan “states the
County’s vision for Kaua#i and establishes strategies for achieving that
vision.” “All actions and decisions undertaken by the County Council and the
County Administration, including all County departments, agencies, boards and
commissions, shall be guided by the vision statement, policies, and the
implementing actions of the General Plan.” KCC § 7-1.4 (2000).
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natural resources and foster intelligent, effective, and orderly
land allocation and development.” See HRS § 205-6(c); Curtis v.
Bd. of Appeals, Cnty. of Haw., 90 Hawai#i 384, 396, 978 P.2d 822,
834 (1999).
Given the similarities in standards for use and special
permits, it was reasonable for all parties to expect that the
Planning Commission would rely on common information to render
consistent decisions on both permits. It would have been
incongruous for the Planning Commission to have rendered a
decision on the Use Permit by October 18, 2006, but to continue
deliberating on the Special Permit until January 31, 2007, when
both permits required consideration of similar standards. None
of the parties treated the application as if the Planning
Commission’s decision-making would be divisible in this way.
Consistent with the expectation that the three permits
would be considered together rather than separately, the Planning
Commission accepted public oral testimony on the application in
its entirety at the public hearings on August 8, 2006, September
26, 2006, November 14, 2006, and January 23, 2007. The minutes
indicate that the public was permitted to testify generally on
the application as a whole and was not restricted to testifying
on any particular permit. Additionally, members of the public
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were permitted to continue commenting on the Use Permit after the
purported deadline for the permit had passed.
Kauai Springs’ conduct also confirms its expectation
that the Planning Commission would treat the three permits as
part of a single application. Although Kauai Springs’ conduct
subsequent to the established time frame for the Use and Class IV
Zoning permits cannot be used to establish its post-deadline
assent to an extension of the automatic deadlines, Kauai Springs’
subsequent conduct was clearly consistent with and evidence of an
earlier mutual agreement between the Planning Commission and
Kauai Springs, from the onset of the application process, to
treat the application for the three permits as a consolidated
application and to allow the Planning Commission to render a
decision on the application based on the time frame for the
Special Permit.
At the November 14, 2006 hearing, after the Use Permit
and Class IV Zoning Permit deadlines would have passed absent the
applicant’s assent, counsel for Kauai Springs amended the
application request, from requesting permission to bottle 5,000
gallons a day to 1,000 gallons a day. Subsequently at the
November 28, 2006 public hearing, counsel for Kauai Springs
continued to negotiate for the Planning Commission to grant the
Use Permit, informing the Planning Commission that Kauai Springs
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would be willing to accept certain conditions with the permit.
There was no indication that Kauai Springs was proceeding upon a
premise that the Use Permit had already been granted. At the
same hearing, the Planning Commission stated, and there was no
disagreement from Kauai Springs, that the Planning Commission was
required to act on the application by January 31, 2007.
In a letter dated November 28, 2006, counsel for Kauai
Springs wrote to the Planning Commission, confirming that Kauai
Springs was retracting its earlier amendment to the application
and was again asking for permission to bottle a maximum of 5,000
gallons per day. Counsel wrote that he was “looking forward to
coming to agreeable terms that are acceptable to all parties
involved.” In a letter dated December 1, 2006, counsel continued
to negotiate the granting of the Use Permit, suggesting specific
language for the proposed “non-transferability” condition.
At the January 23, 2007 meeting, the Planning
Commission considered the Planning Department’s recommendation to
deny all three permits. Counsel for Kauai Springs reacted to the
recommendation by stating that he was “really surprised.”
Counsel also stated that he believed the Planning Department
planner had not had sufficient time to consider the application.
Counsel did not argue that the Use and Class IV Zoning permits
had already been approved by operation of the automatic approval
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ordinances. On the contrary, counsel indicated the Planning
Commission could take more time to “work[] with conditions[.]”
At the same meeting, the Planning Department informed
the Planning Commission that the “absolute deadline” for acting
on the Special Permit was January 31, 2007. There was no
disagreement or discussion regarding whether the other two
permits had already been deemed approved. Consistent with the
actions of all parties throughout the permit proceedings, the
Planning Commission’s Decision and Order found that “[t]he
absolute deadline for action on the application based on
procedures for action on Special Permits” was January 31, 2007.20
20
Following the entry of the Decision and Order, the Planning
Commission considered Kauai Springs’ request for reconsideration. At the
reconsideration meeting on February 13, 2007, counsel for Kauai Springs did
not take issue with the Planning Commission’s finding that the absolute
deadline for acting “on the application” was January 31. Rather, counsel
continued to argue that the Planning Commission should grant all three
permits, and specifically argued that the Commission should continue the
matter for consideration of the issues raised by OHA in its letter to the
Planning Commission.
When the Planning Commission responded that voting for
reconsideration would put the Planning Commission in violation of the January
31 deadline, counsel stated that Kauai Springs “would certainly be willing to
waive something to avoid a hasty decision[.]” Counsel also demonstrated that
he was aware of the automatic approval rules, by stating that Kauai Springs
was not attempting to have the Planning Commission open the matter for
reconsideration in order to argue that the Planning Commission was in
violation of the automatic approval rule and that the application was
therefore deemed approved: “We are not trying to have you open it today and
then argue that that’s an automatic approval[.] [W]e want to get this right.
We believe there are important issues to be resolved. We are not trying to
sneak anything by here.” Counsel and the Planning Commission both agreed
that Kauai Springs could agree to an extension of the January 31 deadline if
the request for reconsideration was granted.
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Thus, Kauai Springs’ conduct evidences an assent
agreement to consolidate the Planning Commission’s consideration
of the three permits into a single application that the Planning
Commission would render a decision upon by January 31, 2007.
Kauai Springs therefore assented to an extension of the time
frame for decision on the Use and Class IV Permits, and the
Planning Commission timely rendered its decision on all three
permits.21
B.
1.
The second issue raised by Kauai Springs’ Application
is whether the ICA gravely erred in remanding the case to the
Planning Commission for additional findings. Kauai Springs
questions whether a permit can be denied “for reasons every court
concluded were unreasonable, arbitrary and capricious” “[w]hen an
agency has the opportunity to make every inquiry of an applicant
that it desires,” and whether that agency “can claim that its own
process was lacking[]” when that denial is challenged. The
application also challenged the ICA’s determination that the
21
Amici contend that “deeming Kauai Springs’ applications
‘automatically approved,’. . . would wrongly penalize . . . the public trust
and . . . therefore, run afoul of the constitution . . . .” In light of our
determination that Kauai Springs assented to an extension of the time frame
for decision on the consolidated permits and the Planning Commission timely
rendered its decision, we do not address this argument.
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circuit court failed to recognize the Planning Commission’s
duties under the water resources public trust. Essentially, the
Application contends that, given that the ICA agreed with the
circuit court that the Decision and Order was arbitrary and
capricious, remand is unwarranted.
To address Kauai Springs’ contentions, we first address
general principles and factors that an agency must consider when
reviewing a permit for the use of a public resource, and then
examine whether a decision to deny permits can be predicated upon
the lack of information. Second, we consider whether the permits
were denied upon grounds that were “unreasonable, arbitrary and
capricious.” Third, we determine whether the case should be
remanded to the Planning Commission for clarification of its
findings of fact and conclusions of law in accordance with the
public trust doctrine.
2.
a.
The Hawai#i Constitution “adopt[s] the public trust
doctrine as a fundamental principle of constitutional law[.]”
Wai~hole I, 94 Hawai#i at 132, 9 P.3d at 444. Article XI,
section 1 declares that “all public resources are held in trust
by the state for the benefit of its people” and mandates that the
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“State and its subdivisions shall conserve and protect” the
State’s water resources.22 (Emphasis added). Article XI,
section 7 reiterates that “[t]he State has an obligation to
protect, control and regulate the use of Hawaii’s water resources
for the benefit of its people.”
“In Hawaii, this court has recognized . . . a distinct
public trust encompassing all the water resources of the
State.”23 Wai~hole I, 94 Hawai#i at 133, 9 P.3d at 445. “[T]he
public trust doctrine applies to all water resources without
exception or distinction.” Id. at 133, 9 P.3d at 445 (emphasis
added). “The state water resources trust thus embodies a dual
mandate of 1) protection and 2) maximum reasonable and beneficial
use.” Id., 94 Hawai#i at 139, 9 P.3d at 451. The public trust
22
Article XI, section 1 of the Hawai#i Constitution provides:
For the benefit of present and future generations, the State
and its political subdivisions shall conserve and protect
Hawaii’s natural beauty and all natural resources, including
land, water, air, minerals and energy sources, and shall
promote the development and utilization of these resources
in a manner consistent with their conservation and in
furtherance of the self-sufficiency of the State.
All public natural resources are held in trust by the State
for the benefit of the people.
23
“The public trust in the water resources of this state . . . has
its genesis in the common law.” Wai~hole I, 94 Hawai#i at 130, 9 P.3d at 442.
See King v. Oahu Ry. & Land Co., 11 Haw. 717, 725 (Hawai#i Rep. 1899) (holding
that “[t]he people of Hawaii hold the absolute rights to all its navigable
waters and the soils under them for their own common use,” and “[t]he lands
under the navigable waters in and around the territory of the Hawaii
Government are held in trust for the public uses of navigation”) (citations
omitted).
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is, therefore, the duty and authority to maintain the purity and
flow of our waters for future generations and to assure that the
waters of our land are put to reasonable and beneficial uses.
Wai~hole I, 94 Hawai#i at 138, 9 P.3d at 450.
b.
Certain “fundamental principles” provide a framework
for the state’s “authority and duty to preserve the rights of
present and future generations in the waters of the state.” Id.
at 141, 9 P.3d at 453. Id. As a first principle, the authority
of the State and its political subdivisions “precludes any grant
or assertion of vested rights to use water to the detriment of
public trust purposes[]” and “empowers the state to reexamine any
prior use.” Id. Under this first principle, no person or entity
has automatic vested rights to water.
Second, the public trust creates an “affirmative duty”
of the State and its political subdivisions “to take the public
trust into account in the planning and allocation of water
resources, and to protect public trust uses whenever feasible.”
Id. (emphasis in original) (footnote omitted) (quoting Nat’l
Audubon Society v. Superior Court of Alpine Cnty., 658 P.2d 709,
728 (1983) cert. denied, 464 U.S. 977 (1983)).
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Lastly, there are no “absolute priorities” between uses
under the public trust, so the state and its subdivisions must
“weigh competing public and private water uses on a case-by-case
basis,” according to any standards applicable by law. Wai~hole
I, 94 Hawai#i at 142, 9 P.3d at 454.
As the public trust arises out of a constitutional
mandate, the duty and authority of the state and its subdivisions
to weigh competing public and private uses on a case-by-case
basis is independent of statutory duties and authorities created
by the legislature. “[T]he public trust doctrine at all times
forms the outer boundaries of permissible government action[.]”
Id. at 132, 9 P.3d at 444, (quoting Kootenai Envtl. Alliance v.
Panhandle Yacht Club, Inc., 105 Idaho 622, 671 P.2d 1085, 1095
(1983)). Therefore “mere compliance by agencies with their
legislative authority” may not be sufficient to determine if
competing uses are properly balanced in the context of uses
protected by the public trust and its foundational principals.
Wai~hole I, 94 Hawai#i at 132, 9 P.3d at 444.
c.
The purpose of the state water resource public trust is
to protect certain uses. Our jurisprudence has referred to these
protected uses as the “purposes” of the water resource public
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trust; in this context “protected use” and “purpose” are
synonymous. See Wai~hole I, 94 Hawai#i at 136, 9 P.3d at 448
(equating purpose and use). We have recognized four such
protected uses. First, “the maintenance of waters in their
natural state constitutes a distinct ‘use’” that the public trust
protects.24 Id. at 136, 9 P.3d at 448. Second, the public trust
protects domestic water use, in particular, protecting an
adequate supply of drinking water. Id. at 136-37, 9 P.3d at 449-
50. Third, the public trust protects the use of water in “the
exercise of Native Hawaiian and traditional and customary
rights[.]” Id. at 137, 9 P.3d at 450. Lastly, the reservation
of water enumerated by the State Water Code constitutes a
protected use under the public trust. Wai#ola O Moloka#i, 103
Hawai#i at 431, 83 P.3d at 694.
Private commercial use is not protected by the public
trust. “[T]he public trust has never been understood to
safeguard rights of exclusive use for private commercial gain.”
Wai~hole I, 94 Hawai#i at 138, 9 P.3d at 450. The very meaning
of the public trust is to recognize separate and enduring public
24
“This disposes of any portrayal of retention of waters in their
natural state as ‘waste.’” Wai~hole I, 94 Hawai#i at 136-37, 9 P.3d at 448-
49. See also Reppun v. Bd. of Water Supply, 65 Haw. 531, 560 n. 20, 656 P.2d
57, 76 n. 20 (1982) (citing article XI, section 1 of the Hawai#i Constitution
as an acknowledgment of the public interest in “a free-flowing stream for its
own sake”).
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rights in trust resources superior to any private interest. Id.
In accordance with the fundamental principles of the public trust
and the fact that private commercial use is not one of the uses
the public trust protects, a “higher level of scrutiny” is
therefore employed when considering proposals for private
commercial use. Id. at 142, 9 P.3d at 454.
d.
When an agency is confronted with its duty to perform
as a public trustee under the public trust doctrine, it must
preserve the rights of present and future generations in the
waters of the state. Wai~hole I, 97 Hawai#i at 141, 9 P.3d at
453. An agency must take the initiative in considering,
protecting, and advancing public rights in the resource at every
stage of the planning and decision-making process. Id. at 143, 9
P.3d at 455. The agency measures the proposed use under a
“reasonable and beneficial use” standard, which requires
examination of the proposed use in relation to other public and
private uses. Id. at 161, 9 P.3d at 473. The agency must apply
a presumption in favor of public use, access, enjoyment, and
resource protection. Id. at 142, 154 n.59, 9 P.3d at 454, 466
n.59.
The agency is duty-bound to place the burden on the
applicant to justify the proposed water use in light of the trust
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purposes. Kukui (Molokai), Inc., 116 Hawai#i at 490, 174 P.3d at
329. Permit applicants must demonstrate their actual needs, and,
within the constraints of available knowledge, the propriety of
draining water from public streams to satisfy those needs.
Wai~hole I, 94 Hawai#i at 162, 9 P.3d at 474. If there is a
reasonable allegation of harm to one of the uses protected by the
public trust, then the applicant must demonstrate that there is
no harm in fact or that any potential harm does not preclude a
finding that the requested use is nevertheless reasonable and
beneficial. Kukui (Molokai), Inc., 116 Hawai#i at 499, 174 P.3d
at 338.
The applicant is “obligated to demonstrate
affirmatively that the proposed [use] [will] not affect [a
protected use], in other words, the absence of evidence that the
proposed use would affect [a protected use] [is] insufficient[.]”
Wai#ola O Moloka#i, 103 Hawai#i at 442, 83 P.3d at 705 (emphases
in original). See also Kukui (Molokai), Inc., 116 Hawai#i at
509, 174 P.3d at 348 (“[T]he [Water Commission's] conclusion that
‘no evidence was presented’ . . . that the [protected use] would
be adversely affected erroneously shifted the burden of
proof[.]”)
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Additionally, the applicant must demonstrate the
absence of a practicable alternative water source. Wai~hole I,
94 Hawai#i at 161, 9 P.3d at 473. The applicant’s proposed use
must be denied if the applicant does not show that there is no
practicable alternative water source. Id. at 161 n.65, 9 P.3d at
473 n.65. “Such a requirement is intrinsic to the public trust.”
Id.; see also Kukui (Molokai), Inc., 116 Hawai#i at 496, 174 P.3d
at 335 (“The [agency] cannot fairly balance competing interests
in a scarce public trust resource if it renders its decision
prior to evaluating the availability of alternative sources of
water.”).
Lastly, if the impact is found to be reasonable and
beneficial, then in light of the cumulative impact of existing
and proposed diversions on trust purposes, the applicant must
implement reasonable measures to mitigate this impact.
Wai~hole I, 94 Hawai#i at 143, 161, 9 P.3d at 455, 473.
When an agency or other deciding body considers an
application for permits under circumstances that requires the
deciding body to perform as a public trustee to protect a public
trust resource, the agency or other deciding body must make
findings sufficient to enable an appellate court to track the
steps that the agency took in reaching its decision. Kilauea
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Neighborhood Ass’n, 7 Haw. App. at 230, 751 P.2d at 1034. An
agency is encouraged to be clear; “clarity in the agency’s
decision is all the more essential . . . where the agency
performs as a public trustee and is duty bound to demonstrate
that it has properly exercised the discretion vested in it by the
constitution and the statute.” Wai~hole I, 94 Hawai#i at 158, 9
P.3d at 470 (quotation marks omitted).
e.
Under the foregoing principles and purposes of the
public trust, it is manifest that a government body is precluded
from allowing an applicant’s proposed use to impact the public
trust in the absence of an affirmative showing that the use does
not conflict with those principles and purposes. Therefore, the
applicant is “obligated to demonstrate affirmatively that the
proposed [use] [will] not affect [a protected use],” Wai#ola O
Moloka#i, 103 Hawai#i at 442, 83 P.3d at 705 (emphases omitted).
In other words, “the absence of evidence that the proposed use
would affect [a protected use] [is] insufficient[.]” Id.
(emphasis added). Kauai Springs has asserted “the public trust
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doctrine imposes a duty to assess, but does not empower an agency
to deny an application simply because it claims it lacks
information within its power to obtain, thus shifting the burden
to the applicant.” However, contrary to Kauai Springs’
assertion, a lack of information from the applicant is exactly
the reason an agency is empowered to deny a proposed use of a
public trust resource.
f.
To assist agencies in the application of the public
trust doctrine, we distill from our prior cases the following
principles:25
a. The agency’s duty and authority is to maintain
the purity and flow of our waters for future
generations and to assure that the waters of our
land are put to reasonable and beneficial use.26
b. The agency must determine whether the proposed
use is consistent with the trust purposes:
25
We provide this framework for assistance and do not indicate that
it is mandatory or that it precludes other analytical approaches that are
consistent with the public trust doctrine.
26
Wai~hole I, 94 Hawai#i at 138, 9 P.3d at 450.
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i. the maintenance of waters in their
natural state;
ii. the protection of domestic water use;
iii. the protection of water in the
exercise of Native Hawaiian and
traditional and customary rights; and
iv. the reservation of water enumerated by
the State Water Code.
c. The agency is to apply a presumption in favor
of public use, access, enjoyment, and resource
protection.27
d. The agency should evaluate each proposal for
use on a case-by-case basis, recognizing that
there can be no vested rights in the use of public
water.28
e. If the requested use is private or commercial,
the agency should apply a high level of
scrutiny.29
f. The agency should evaluate the proposed use
under a “reasonable and beneficial use” standard,
which requires examination of the proposed use in
relation to other public and private uses.30
Applicants have the burden to justify the proposed
water use in light of the trust purposes.31
27
Id. at 142, 154 n.59, 9 P.3d at 454, 466 n.59.
28
Id. at 141, 9 P.3d at 453; Kukui (Molokai), Inc., 116 Hawai#i at
490, 174 P.3d at 329.
29
Wai~hole I, 94 Hawai#i at 142, 9 P.3d at 454.
30
Id. at 161, 9 P.3d at 473.
31
Kukui (Molokai), Inc., 116 Hawai#i at 490, 174 P.3d at 329.
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a. Permit applicants must demonstrate their actual
needs and the propriety of draining water from
public streams to satisfy those needs.32
b. The applicant must demonstrate the absence of a
practicable alternative water source.33
c. If there is a reasonable allegation of harm to
public trust purposes, then the applicant must
demonstrate that there is no harm in fact or that
the requested use is nevertheless reasonable and
beneficial.34
d. If the impact is found to be reasonable and
beneficial, the applicant must implement
reasonable measures to mitigate the cumulative
impact of existing and proposed diversions on
trust purposes, if the proposed use is to be
approved.35
3.
In this case, the parties do not dispute that the
Planning Commission had public trust duties.36 Therefore, the
32
Wai~hole I, 94 Hawai#i at 162, 9 P.3d at 474.
33
Id. at 161, 9 P.3d at 473.
34
Kukui (Molokai), Inc., 116 Hawai#i at 499, 174 P.3d at 338.
35
Wai~hole I, at 143, 161, 9 P.3d at 455, 473.
36
The ICA held that the circuit court’s COLs ¶ 63 (record was
“devoid of any evidence that Kauai Springs[’] existing or proposed uses might
affect water resources subject to the public trust”), ¶ 71 and ¶ 72
(suggesting that Planning Commission “may” have public trust duties in this
case) were “incorrect in that they do not recognize the Planning Commission’s
public trust duty to consider and review Kauai Springs’ water usage in its
water bottling operation.” Kauai Springs, 130 Hawai#i at 423, 312 P.3d at 299.
In its Application, Kauai Springs does not challenge the ICA’s
conclusion that the Planning Commission had a duty to consider Kauai Springs’
water usage in reviewing its permit application. Rather, Kauai Springs argues
(continued...)
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Planning Commission was “duty-bound to place the burden on the
applicant to justify the proposed water use in light of the trust
purposes and weigh competing public and private water uses on a
case-by-case basis, requiring a higher level of scrutiny for
private commercial water usage.” Wai~hole II, 105 Hawai#i at 16,
93 P.3d at 658 (quotation marks and brackets omitted).
The ICA recognized, and we concur, that “[t]o its
credit, the Planning Commission took seriously its public trust
duty . . . by, inter alia, investigating the water source and the
transmission of the water, seeking comment from a number of
county and state agencies, and holding several hearings and
seeking input from the community related to Kauai Springs’
application for the permits.” Kauai Springs, 130 Hawai#i at 431,
312 P.3d at 307. It is also apparent that the Planning
Commission applied a high level of scrutiny when it examined
Kauai Springs’ proposed private commercial use.37
We now address the question as to whether the findings
and conclusions of the Planning Commission, viewed in the light
36
(...continued)
that the ICA erred in vacating the circuit court’s COLs because the circuit
court recognized the Planning Commission’s public trust duties and correctly
found that the Planning Commission fulfilled these duties.
37
It is undisputed that Kauai Springs’ use of the public trust
resource was commercial.
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of the duties and authority mandated by the public trust, were
arbitrary or capricious.
a.
In COL ¶ 4, the Planning Commission concluded that the
record was devoid of evidence that Kauai Springs or its
commercial water supplier(s) had legal standing to extract or
sell the water on a commercial basis.
4. There is no substantive evidence that the Applicant has
any legal standing and authority to extract and sell the
water on a commercial basis.
(Emphasis added). In accordance with the public trust doctrine,
it was clearly within the exercise of the Planning Commission’s
authority to require Kauai Springs to affirmatively demonstrate
its right to extract water, which depended on Kauai Springs’
commercial supplier(s) having legal authority to sell the water
to Kauai Springs.
A fundamental principle of the public trust doctrine
precludes assertion of prior uses or vested rights to use water
to the detriment of public trust purposes. Wai~hole I, 94
Hawai#i at 141, 9 P.3d at 453. The Planning Commission’s
requirement that Kauai Springs demonstrate its “legal standing
and authority” is therefore consistent with the Planning
Commission’s duty and authority to reexamine any prior use and
“revisit prior diversions” in order to “preserve the rights of
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present and future generations in the waters of this state.” Id.
The burden imposed by the Planning Commission on Kauai Springs to
demonstrate its legal authority to the proposed use was a
properly imposed affirmative obligation. See, e.g., Wai#ola O
Moloka#i, 103 Hawai#i at 442, 83 P.3d at 705 (holding that an
applicant is “obligated to demonstrate affirmatively that the
proposed [use] [will] not affect [a protected use]”). Further,
the Planning Commission’s requirement that Kauai Springs
demonstrate its legal authority to extract the water was in
keeping with the presumption in favor of the purposes of the
public trust, public use, access, and enjoyment. Wai~hole I, 94
Hawai#i at 142, 9 P.3d at 454.
The Planning Commission’s request for clarification
from the Water Commission hypothesized the condition that “[t]he
existing source has been registered and is basically
grandfathered[.]” Those conditions were not, in fact, verified,
as noted by the ICA. Kauai Springs, 130 Hawai#i at 433, n.22,
312 P.3d at 309. Nor is there any indication in the record as to
what was meant by “registered” or “grandfathered.”38
38
The record indicates that the Water Commission “assigned” Well No.
5729-01 to the water source on November 20, 2006, based on a November 6, 2006
letter from the Planning Commission. The well number assignment does not
appear to have been requested prior to November 6, 2006, nor by Knudsen Trust,
Grove Farm, or Kauai Springs. It is not clear what rights, if any, are
(continued...)
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Additionally, “existing uses are not automatically
‘grandfathered’ under the constitution . . . especially in
relation to public trust uses.” Wai~hole I, 94 Hawai#i at 149, 9
P.3d at 461 (emphasis added). “The public trust doctrine takes
precedent even over vested water rights.” Id. at 141, 9 P.3d 453
(quoting Kootenai, 671 P.2d at 1094).
Kauai Springs failed to provide any evidence that it
had legal authority to the commercial use of the public trust
water resource. There is also no indication in the record of the
substance of any water purchase agreement, nor of the water
supplier’s right to make the public trust resource commercially
available. Under the higher scrutiny given to private commercial
use, it was within the Planning Commission’s authority to review
any purchase arrangements it found relevant, and it was Kauai
Springs’ burden to produce documentation of any agreements or
contracts to determine what legal rights Kauai Springs had to
extract the water.39
38
(...continued)
conveyed to any party by assignment of a well number.
39
An instructive demonstration of the burden on the applicant is
provided by Wai#ola O Moloka#i. In that case, notwithstanding our ultimate
remand, this court found that the Water Commission had met its public trust
duty to balance an existing use against the proposed use only after the Water
Commission found that the applicant had provided two hydrologic studies that
showed that the impact of the proposed use would have no or relatively small
impact on the existing use. Wai#ola O Moloka#i, 103 Hawai#i at 432-33, 83 P.3d
at 695-96 (remanded to the Water Commission on other grounds).
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Consequently COL ¶ 4 is correct in that “[t]here was no
substantive evidence that [Kauai Springs] ha[d] any legal
standing and authority to extract and sell the water on a
commercial basis.” Furthermore, in light of the responsibility
of the Planning Commission to protect the public trust resource,
it was appropriate for the Planning Commission to inquire into
Kauai Springs’ legal standing and authority to extract water for
the proposed use.
b.
The Planning Commission’s COL ¶ 3 places a burden on
Kauai Springs to demonstrate its satisfaction of regulatory
requirements by other agencies. That conclusion states:
In view of the comments from [the Water Commission] and PUC
the land use permit process should insure that all
applicable requirements and regulatory processes relating to
water rights, usage, and sale are satisfactorily complied
with prior to taking action on the subject permits. The
Applicant, as a party to this proceeding should also carry
the burden of proof that the proposed use and sale of the
water does not violate any applicable law administered by
[the Water Commission], the PUC or any other applicable
regulatory agency.
(Emphasis added). COL ¶ 3 is first a statement that a permit
should not be issued if applicable requirements and regulatory
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processes are unsatisfied, and second, an application of that
statement to Kauai Springs. We initially consider “applicable
requirements and regulatory processes” that must be satisfied in
order for a permit to be issued.
In regards to both the Use Permit and Special Permit,
pursuant to HRS § 46-4(a) (Supp. 2006), zoning in the County is
required to be accomplished within the framework of Kauai’s
General Plan. Kauai’s General Plan provides that Kauai’s county
governments will “practice careful stewardship of the island’s
land and waters” and manage the “high mountains, forested
watershed areas, the ocean and coral reefs, [and] beaches . . .
as part of the public lands trust.” Kauai General Plan at 2-3.
Therefore, neither the Use Permit nor the Special Permit could be
issued if issuance would not be in keeping with careful
stewardship of the island’s waters.
The purpose of the Use Permit, according to the CZO,
“is to assure the proper integration into the community of uses
which may be suitable only in specific locations in a district
. . . and to prohibit such uses if proper integration cannot be
assured.” KCC § 8-20.1. Additionally, the CZO provides that a
Use Permit and Class IV Zoning Permit may only be granted if the
Planning Commission finds that the proposed use or activity “will
not cause any substantial harmful environmental consequences on
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the land of the applicant or on other lands or waters, and will
not be inconsistent with the intent [of the CZO] and the General
Plan.” KCC § 8-20.5. Therefore, the Planning Commission could
not issue the Use Permit unless it found that issuance would not
cause substantial harmful environmental consequences to the
water.
Relevant to the Special Permit, HRS § 205-6 provides
that the Planning Commission may only grant the special permit
for “certain unusual and reasonable uses” within the agricultural
district “when the use would promote the effectiveness and
objectives” of HRS Chapter 205. The express purpose of HRS
Chapter 205 is to conserve “water resources and land.” Curtis v.
Bd. of Appeals, Cnty. of Haw., 90 Hawai#i 384, 396, 978 P.2d 822,
834 (1999) (citing Hse. Stand. Comm. Rep. No. 395, in 1961 House
Journal, at 855-56). Therefore, the Planning Commission was
required to deny the Special Permit if issuance was contrary to
the protection of natural resources.
As previously discussed, the Planning Commission also
had duties under the public trust independent of the permit
requirements, including the duty to place the burden on the
applicant to demonstrate “the propriety of draining water from
public streams[.]” Wai~hole I, 94 Hawai#i at 132, 162, 9 P.3d at
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444, 474 (emphasis added); Kukui (Molokai), Inc., 116 Hawai#i at
490, 174 P.3d at 329.
In light of the Planning Commission’s constitutionally-
mandated duties under the public trust doctrine to require the
applicant to demonstrate the propriety of the proposed use, and
the requirements of the Use Permit and Special Permit to protect
the environment, water, and natural resources, the first
statement in COL ¶ 3 correctly states that the permitting process
“should insure that all applicable requirements and regulatory
processes relating to water rights, usage, and sale are
satisfactorily complied with prior to taking action on the
subject permits.”
The second statement in COL ¶ 3, that Kauai Springs
“should carry the burden of proof that the proposed use and sale
of the water does not violate any applicable law administered by
[the Water Commission], the PUC or any other applicable
regulatory agency” should not be read in a vacuum. The ICA found
that “any other applicable regulatory agency” created “an obscure
and indefinite burden of proof” that is “open-ended as to the
‘applicable law[.]’” Kauai Springs, 130 Hawai#i at 431, 312 P.3d
at 307. Here, the Planning Commission in its FOF found specific
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applicable requirements and regulatory processes relating to
water rights that were, in fact, unsatisfied.
In November 2006, the Planning Commission sought input
from other agencies in order to determine Kauai Springs’
“authority and right to obtain and extract the water for
commercial purposes.” As a result of this effort, the Planning
Commission found that “there may be outstanding regulatory
processes . . . that [Kauai Springs] must satisfy.” In
particular, the Planning Commission found that there may be
unsatisfied regulatory requirements from the Water Commission and
the PUC. Id.
The Planning Commission was informed by the Water
Commission of three potentially applicable permits implicated by
Kauai Springs’ proposed use of the public trust resource. First
“[g]round-water withdrawals from [Kauai Springs’ proposed use]
may affect streamflows, which may require an instream flow
standard amendment.”40 Second, a pump installation permit would
be required if a pump is installed at the water source to induce
40
“Instream flow standard” means a quantity or flow of water or
depth of water which is required to be present at a specific location in a
stream system at certain specified times of the year to protect fishery,
wildlife, recreational, aesthetic, scenic, and other beneficial instream uses.
HRS § 174C-3. Instream flows are regulated by the Water Commission.
HRS 174C-71. The Water Commission set instream flow standards for Kauai in
1988. Haw. Admin. Rules § 13-169-45. Instream flows cannot be diminished
(i.e., additional water cannot be extracted) without petitioning the Water
Commission. HRS § 174C-71.
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additional water flow.41 Third, a well modification permit from
the Water Commission may be required “if the [water] source needs
to be modified in any way[.]”42 (Emphasis added).
Subsequently, the Planning Commission visited the site
where the tunnel water system originates. The visit found “a
concrete stem wall was constructed at the bottom of the tunnel
entrance . . . and a steel panel was mounted over the tunnel
entrance.” Therefore, the Planning Commission confirmed that the
source of the water and the tunnel may have been modified, and
thus may have required additional permitting.
The Planning Commission found similar concerns as to
the propriety of Kauai Springs’ proposed use due to potential
regulatory jurisdiction by the PUC. A representative of Grove
Farm testified to the Planning Commission that there had never
been communications with the PUC regarding its water system. The
Planning Commission was informed by the PUC that although Kauai
Springs’ bottling operations were not subject to PUC regulation,
it was possible that Grove Farm was operating as a public
utility. Specifically, the Planning Commission was informed that
whether Grove Farm was operating as a public utility would
41
The Water Commission regulates wells and pumps under HRS §§ 174C-
81 though 174C-87.
42
Id.
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depend, in part, on “the amount of control, if any, its customers
may be able to exert over Grove Farm’s water systems and its
operations.” (Emphasis added). Based on this information, the
Planning Commission concluded that Kauai Springs’ planned use of
the water through its purchase from Grove Farm could subject the
operation to PUC jurisdiction, notwithstanding that as an
independently operating entity, Kauai Springs would not normally
be subject to such regulation.43 The Planning Commission stated
that
the PUC also draws interest to the extent that as [a]
purchaser of water from Grove Farm, the operation may be
subject to PUC regulation. The PUC in this regard
encourages that a declaratory ruling be sought to allow more
diligent review of the relevant facts and information
associated with the proposed water bottling facility.
(Emphases added). While “encouraging” review, the Planning
Commission did not require Kauai Springs, or any other party, to
initiate such a proceeding.44
43
The Dissent suggests that because Grove Farm is not a party to
Kauai Springs’ permit applications, review of the operation by the PUC would
not further the purposes of the public trust and that it would be unfair to
Kauai Springs if Grove Farm declined to pursue such review. Dissent at 4.
However, Grove Farm is involved both through its individual involvement in the
sale or licensing of the trust resource to Kauai Springs and its combined
involvement of providing water to an entity commercially bottling and selling
public water. Under the analysis of the Dissent, Grove Farm or Knudsen trust
could sell or license the public trust resource to third-party bottlers
without any review whatsoever. The purposes of the public trust proscribe
exactly such a result. Further, it is noted that a consultant representative
of Grove Farm testified in support of Kauai Springs’ permit applications at
the November 14, 2006 Planning Commission hearing.
44
Kauai Springs may satisfy its burden regarding its use of a public
trust resource in a manner satisfactory to the Planning Commission.
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Accordingly, based on responses from the Water
Commission, the PUC, and its own site visit, the Planning
Commission identified specific statutory requirements of the
Water Commission and PUC that it reasonably believed were
applicable and unsatisfied. Kauai Springs presented no evidence
regarding the inapplicability or satisfaction of the conditions
outlined by the Water Commission. Kauai Springs also offered no
information on the issue of whether its operation would affect
Grove Farm’s status as a public utility. Therefore, the Planning
Commission’s statement in FOF ¶ 19 that “there may be outstanding
regulatory processes. . . that [Kauai Springs] must satisfy[]” is
correct.45
45
The ICA improperly shifted the burden to the Planning Commission
to disprove harm to the public trust resource. The ICA stated that “a denial
of the permits . . . would be appropriate under the public trust doctrine if
modification of the water source or installation of a pump would jeopardize
the water.” Kauai Springs, 130 Hawai#i at 432, 312 P.3d 308 (emphasis added).
It is incorrect to suggest that a denial of the permit is only permissible if
the water is “jeopardized.” Under the public trust doctrine, the Planning
Commission is empowered to deny use of the trust resource if Kauai Springs
failed to show that the water will not be jeopardized. Wai~hole I, 94 Hawai#i
at 142-43, 9 P.3d at 454-55; Kukui (Molokai), Inc., 116 Hawai#i at 490, 509,
174 P.3d at 329, 348 (“[T]he [Water Commission's] conclusion that ‘no evidence
was presented’ . . . that the [protected use] would be adversely affected
erroneously shifted the burden of proof[.]”).
Similarly, the ICA found that “[w]ith regard to the concern raised
. . . that Grove Farm may possibly be . . . subject to PUC regulation, there
is nothing . . . that suggests the water resources are in jeopardy or affected
without PUC regulation of Grove Farm as a public utility.” Kauai Springs, 130
Hawai#i at 432, 312 P.3d 308. The ICA’s analysis misstates the burden of
proof in application for use of public trust resources; it was Kauai Springs’
responsibility to demonstrate that the propriety of its water usage by showing
the water was to be obtained from a validly operating entity. Wai~hole I, 94
Hawai#i at 142-43, 9 P.3d at 454-55; Kukui (Molokai), Inc., 116 Hawai#i at 490,
174 P.3d at 329. The Dissent adopts this same improper burden shifting
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Read in the context of FOF ¶ 19, it is clear that COL
¶ 3’s statement that Kauai Springs should “carry the burden of
proof that the proposed use and sale of the water does not
violate any applicable law administered by [the Water
Commission], the PUC or any other applicable regulatory agency
was not intended to create an “obscure and indefinite burden of
proof.” Kauai Springs, 130 Hawai#i at 431, 312 P.3d at 307. On
the contrary, the Planning Commission correctly imposed on Kauai
Springs the burden to demonstrate the propriety of its proposed
use of the public trust resource, which, under the circumstances
of this case, required Kauai Springs to demonstrate that any
necessary permits and applicable regulations from the Water
Commission and PUC were complied with.46 In light of the duties
45
(...continued)
regarding jeopardy to the water resource. Dissent at 10.
The Dissent similarly shifts the burden to disprove harm to the
public trust resource from the applicant to the Planning Commission in
contending that there was nothing in the record to suggest that a well-
modification permit, a pump installation permit, or a petition for an interim
flow stream standard was required. Dissent at 10-11. In addition to
improperly shifting the burden, the record does suggest that a well
modification permit may have been required. As noted above, the Planning
Commission had conducted a site visit and confirmed that a concrete stem wall
and steel panel had been mounted over the face of the tunnel, indicating that
a well modification permit may have been warranted. The Dissent also suggests
that the stem wall and steel panel may originate from the 1890s. The record
does not date the wall and panel installation. Photographs of the wall and
panel in the record do not indicate construction of an 1890s vintage.
46
The Dissent posits a parade of oblique scenarios by suggesting
that the Kauai building division or elevator inspectors would have to
undertake a review of the public trust doctrine before issuing the relevant
permits. Dissent at 8-9. The obvious distinction is that a permit for an
elevator would not state that the applicant is “requesting a permit for water
(continued...)
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of the Planning Commission to preserve the rights of present and
future generations in the waters of the state, this burden is not
unreasonable. Therefore, COL ¶ 3 is correct.
c.
The Planning Commission’s COL ¶ 4 is correct because
its authority under the public trust permitted it to inquire into
Kauai Springs’ legal rights to extract the water for commercial
use. COL ¶ 3 was correct because the Planning Commission’s
duties under the public trust required it to ensure that Kauai
Springs’ proposed use was in compliance with Water Commission and
PUC requirements. Therefore, the Decision and Order to deny the
permits was not arbitrary or capricious.47
4.
46
(...continued)
harvesting . . . ” as it did in this case. Further, it is not clear that any
statute or regulation requires the building division or elevator inspectors to
consider the impact of a permit on the environment or in conformance with the
General Plan, as the applicable statutes and regulations did require of the
Planning Commission here. The public trust does not “impose[] a burden to
disprove all potentialities unrelated to the protection or conservation of
water resources.” Dissent at 10, n.4.
47
The Dissent characterizes the review of the Decision and
Order as “crafting an outcome that neither party sought.” Dissent at 5.
Kauai Springs specifically raised the issue of whether the Decision and Order
was arbitrary and capricious, and this issue was an essential component of the
circuit court and ICA decisions. Therefore, this court could not review
whether the Decision and Order of the Planning Commission was arbitrary and
capricious without considering whether it was premised upon sound findings and
conclusions.
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The Dissent contends that the ICA recognized the proper
test for the Planning Commission to employ when applying the
public trust doctrine. Dissent at 9. The ICA stated that the
Planning Commission’s decision should
be initially grounded in the framework of the statutes and
regulatory provisions that authorize the Planning Commission
to act in this instance; in addition thereto, that the
Planning Commission [should] make appropriate assessments
and require reasonable measures to protect the water
resources at issue in this case; and becuase Kauai Springs
seeks to use the water for economic gain, this case requires
that the Planning Commission give the permit application a
higher level of scrutiny and, although Kauai Springs’ use of
the water is not illegal or improper per se, that Kauai
Springs carries the burden to justify the use of the water
in light of the purposes protected by the public trust.
Kauai Springs, 130 Hawai#i at 429, 312 P.2d at 305 (emphases
added). This test is not in conformance with our prior
holdings.
Our cases have used the term “reasonable measures” to
indicate that if the impact is found to be reasonable and
beneficial in light of the cumulative impact of existing and
proposed diversions on trust purposes, then the applicant must
implement reasonable measures to mitigate this impact. Wai~hole
I, 94 Hawai#i at 143, 161, 9 P.3d at 455, 473. Therefore,
reasonable measure are indicated only after the use has been
determined to be beneficial.
Similarly, the phrase “appropriate assessments” is used
in Kelly v. 1250 Oceanside Partners to refer to efforts by the
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defendant County of Hawai#i to assess whether a landowner had
reasonable erosion control measures in place; that is, to
ascertain whether “reasonable measures” were being adequately
complied with. 111 Hawai#i 205, 228, 140 P.3d 985, 1008 (2006).
In Kelly, we held that duties under the public trust “require[]
[an agency] . . . to ensure that the prescribed measures are
actually being implemented after a thorough assessment of the
possible adverse impacts the development would have on the
State’s natural resources.” Kelly, 111 Hawai#i at 231, 140 P.3d
at 1011. “Appropriate assessments” therefore refers to efforts
by the state or an agency to ensure “reasonable measures” are
implemented after permits are granted.
At a minimum, the test crafted by the ICA is incorrect
because it inverts the public trust doctrine by mandating
appropriate assessments and reasonable measures be evaluated
before assessing the propriety of the proposed use in light of
the public trust purposes. Additionally, the standard does not
require the agency to consider all of the factors protecting the
public trust resource. See generally Wai~hole I, 94 Hawai#i 97,
9 P.3d 409 (2000) and Kukui (Molokai), Inc. 116 Hawai#i 148, 174
P.3d 320 (2007). For instance, the ICA’s proposed test does not
require a demonstration of the absence of practicable alternative
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water sources. Wai~hole I, 94 Hawai#i at 161, 9 P.3d at 473.
(“Such a requirement is intrinsic to the public trust[.]”).
Therefore, the ICA’s proposed test is deficient because it does
not provide the degree of protection of the public trust required
by the law that our prior holdings recognize.
5.
For the foregoing reasons, we conclude that the ICA
erred in its determination that the Planning Commission’s COL ¶¶
3 and 4 were wrong. The ICA also erred in affirming the circuit
court’s conclusion that the Planning Commission did not use
proper criteria in reviewing Kauai Springs’ permit application.
The ICA’s vacation of the circuit court’s conclusion regarding
proper criteria was correct to the extent that the circuit court
suggested applicable standards inconsistent with this court’s
decision.
The Application specifically challenged the ICA’s
determination that the circuit court’s conclusions were incorrect
in COL ¶ 63, 71, 72. In those conclusions the circuit court
determined that: there was no evidence that Kauai Springs’
proposed use would affect water resources protected by the public
trust, (COL 63); the Planning Commission did not identify any
outstanding regulatory processes that must be fulfilled in order
to satisfy any duty under the public trust, (COL 71); and the
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Planning Commission fulfilled any duty it had under the public
trust, (COL 72). Based on the discussion presented above, we
affirm the ICA’s vacation of the circuit court’s COL ¶¶ 63, 71
and 72.48
Ultimately, while the Planning Commission’s findings of
fact were not erroneous and its conclusions of law correct, and
therefore its decision to deny the permits was not arbitrary and
capricious, nevertheless clarity and completeness in the Planning
Commission’s FOF and COL are essential when it performs as a
public trustee.49 Wai~hole I, 94 Hawai#i at 158, 9 P.3d at 470
(“clarity in the agency's decision is all the more essential . .
. where the agency performs as a public trustee and is duty bound
to demonstrate that it has properly exercised the discretion
vested in it by the constitution and the statute”).
48
Although not challenged in the Application, the ICA was correct in
its vacation of the circuit court’s COL ¶¶ 43, 45, and 59 (the circuit court
was clearly erroneous in concluding that Kauai Springs satisfied the relevant
permit requirements); and 73 and 74 (the circuit court was clearly erroneous
in concluding that the Water Commission and PUC did not raise substantial
concerns).
49
For example, the public trust doctrine requires an applicant to
demonstrate the feasibility of alternative sources of water. The findings do
not indicate whether Applicant complied with this requirement. “[P]ermit
applicants must . . . demonstrate the absence . . . of alternative water
sources. Such a requirement is intrinsic to the public trust[.]” Wai~hole I,
94 Hawai#i at 161, 9 P.3d at 473; see also Kukui (Molokai), Inc., 116 Hawai#i
at 496, 174 P.3d at 335 (“The [agency] cannot fairly balance competing
interests in a scarce public trust resource if it renders its decision prior
to evaluating the availability of alternative sources of water.”).
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Accordingly, we remand this matter to the Planning
Commission to clarify its findings and conclusions consistent
with this opinion. Wai~hole I, 94 Hawai#i at 158, 9 P.3d at 470
(citing Application of Kauai Elec. Div. of Citizens Utilities
Co., 60 Haw. 166, 185-86, 590 P.2d 524, 537-38 (recognizing
remand as an appropriate remedy “where the agency has made
invalid, inadequate, or incomplete findings”); cf. In re Kukui
(Molokai), Inc., 116 Hawai#i at 495, 174 P.3d at 334 (finding
that the Water Commission failed to explain the rationale behind
its decision and remanding for additional findings and
conclusions).
VII. Conclusion
For the foregoing reasons, the ICA Judgment on Appeal
filed May 30, 2013 is affirmed to the extent that it vacated the
Final Judgment filed by the Circuit Court of the Fifth Circuit on
September 23, 2008, and we remand this case to the Planning
Commission for further proceedings consistent with the opinion of
this court.
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Robert H. Thomas and /s/ Paula A. Nakayama
Mark M. Murakami
for petitioner /s/ Simeon R. Acoba, Jr.
Alfred B. Castillo, Jr., /s/ Sabrina S. McKenna
Mauna Kea Trask,
David J. Minkin, and /s/ Richard W. Pollack
Dayna H. Kamimura-Ching
for respondent
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