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

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
14-SEP-2020
09:06 AM

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

PROTECT AND PRESERVE KAHOMA AHUPUA#A ASSOCIATION,
an unincorporated association,
MICHELE LINCOLN, MARK ALLEN, LINDA ALLEN,
and CONSTANCE B. SUTHERLAND,
Plaintiffs-Appellants/Appellants,

PATRICK AND NAOMI GUTH, Plaintiffs-Appellants/Appellees,
v.
MAUI PLANNING COMMISSION, COUNTY OF MAUI, and
STANFORD CARR DEVELOPMENT, LLC,
a domestic limited liability company,
Defendants-Appellees/Appellees

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CIVIL NO. 14-1-0616(1))

MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Hiraoka and Wadsworth, JJ.)
I. Introduction

This case arises from Defendant-Appellee Maui Planning
Commission's (the Commission) oral approval of a Special
Management Area (SMA) use permit application submitted by
Defendant-Appellee Stanford Carr Development LLC (Carr
Development). In its SMA use permit application, Carr
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Development sought permission to construct its proposed Kahoma
Village 201-H Project on a vacant lot situated within the County
of Maui's SMA.
Plaintiffs-Appellants Protect and Preserve Kahoma
Ahupua#a Association, Michele Lincoln, Mark Allen, Linda Allen,
and Constance B. Sutherland (collectively the PPKAA), an
environmental organization whose members largely consist of
adjoining landowners, sought to intervene as a party in the
Commission's SMA permit application proceeding in order to
address potential environmental and aesthetic impacts of the
proposed project. The Commission denied PPKAA's petition to
intervene, and subsequently orally approved Carr Development's
SMA permit application. PPKAA eventually appealed the
Commission's decision to the Circuit Court of the Second Circuit
(circuit court).1
In this secondary appeal, PPKAA appeals from the
"Findings of Fact, Conclusions of Law, Decision and Order Denying
Appeal" (Order Denying Appeal) and Final Judgment (Judgment) both
entered on June 19, 2015, in favor of the Commission, Defendant-
Appellee Maui County, and Carr Development, by the circuit court.
In its Order Denying Appeal and Judgment, the circuit court
affirmed: (1) the Commission's oral denial of PPKAA's petition to
intervene in Carr Development's SMA use permit application; (2)
the Commission's subsequent oral approval of Carr Development's
SMA use permit; and (3) the Commission's "Findings of Fact,
Conclusions of Law, and Decision and Order Relating to Protect
and Preserve Kahoma Ahupua'a Association, Michele Lincoln, Mark
and Linda Allen, Patrick and Naomi Guth, and Constance B.
Sutherland's Petition to Intervene" (Order Denying Petition)
dated September 23, 2014.
On appeal, PPKAA contends that the circuit court erred
in its Order Denying Appeal because: (1) PPKAA had demonstrated
injury-in-fact standing as required to merit intervenor status;

1
The Honorable Rhonda I.L. Loo presided.

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(2) PPKAA was entitled to intervene as a matter of right; (3)
denying permissive intervention to PPKAA constituted an abuse of
discretion by the Commission; (4) the Commission engaged in
unlawful de facto rule making on intervention and its
intervention rules were invalid as written and applied; (5) the
Commission violated PPKAA members’ due process rights, and; (6)
the Commission failed to find the project would be consistent
with the General Plan and Community Plan before approving the SMA
use permit.
For the reasons set forth below, we vacate the Order
Denying Appeal and the Judgment entered by the circuit court. We
remand this case to the Maui Planning Commission for further
proceedings.
II. Background
On September 27, 2012, the Commission received Carr
Development's SMA use permit application for its proposed Kahoma
Village 201-H Project (the Project) to be located on
approximately 21.6 acres of a 24.354-acre lot in Lahaina, Maui.
The Project proposes to develop a mix of affordable and market
units and housing types on undeveloped and vacant land owned by
the Harry and Jeanette Weinberg Foundation, Inc. to address the
need for housing in the County of Maui. The Project would
include the development of approximately 203 housing units,
parking, landscaping, roadways, utility improvements, and 1.75
acres of residential parks. The Project site is located within
the State Land Use "Urban" district and is within the County of
Maui's SMA, the area along the shoreline protected to ensure the
preservation and restoration of the coastal zone of the State of
Hawai#i.
On November 6, 2012, Carr Development published for
circulation in Maui News, a "Notice of Application" and location
map notifying the general public of Carr Development's intent to
file its SMA use permit application with the County of Maui. On
February 7, 2014, the Maui County Council adopted County Council

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Resolution 14-14 and approved the Project pursuant to Hawaii
Revised Statutes (HRS) Chapter 201H-38 relating to affordable
housing projects. Resolution 14-14 exempted the Project from
certain provisions of the Maui County Code, including, inter
alia, an exemption that permitted the Project to proceed without
obtaining a community plan amendment.
On May 19, 2014, Carr Development sent a subsequent
notice to all owners and record lessees within 500 feet of the
project, including members of PPKAA,2 describing the Project and
notifying them of the scheduled hearing date, time, and place of
the public hearing on Carr Development's SMA use permit
application. On June 5, 2014, PPKAA filed their petition to
intervene in Carr Development's SMA permit application. The
petition states that PPKAA is an unincorporated organization
whose mission is to preserve, protect, and restore the natural
and cultural environment of the Kahoma ahupua#a, including the
Alamihi cultural area. Many of PPKAA's officers, members, and
supporters are homeowners or lessees within the Kahoma ahupua#a
and reside within 500 feet of the proposed project site.
In their petition, PPKAA asserts that the proposed
Project would adversely affect their group as adjacent landowners
because it would diminish their use and enjoyment of their
properties, decrease their properties' sale and rental value, and
would have adverse impacts on the protected resources within the
Coastal Zone Management Area. The petition further asserts that
the proposed Project would threaten a variety of environmental
and aesthetic interests protected under the Coastal Zone
Management Act (CZMA) if not properly addressed. On June 13,
2014, Carr Development filed its motion in opposition to the
petition, challenging the petition on the basis that it failed to

2
The notice of the scheduled public hearing on Carr Development's SMA
use permit application was sent to PPKAA members Mark and Linda Allen, Patrick
and Naomi Guth, and Constance Sutherland, all of whom are owners or lessees
that reside within 500 feet of the Project site.

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meet the intervenor standing requirements set forth in Maui
Planning Commission Rules of Practice and Procedure (MPC Rule)
12-201-41(b) and (d) (2010),3 pertaining to
intervention as a matter of right, and permissive intervention,
respectively.
On June 24, 2014, the Commission held a public hearing
on, inter alia, PPKAA's petition to intervene, and Carr
Development's SMA permit application. At the hearing, members of
the general public, including PPKAA members Mark Allen, Naomi
Guth, Constance Sutherland, and Michele Lincoln, presented public
testimony on their opinions of the Project. Later in the public
hearing, Michele Lincoln, acting on behalf of the PPKAA, and Carr
Development's counsel presented oral arguments on PPKAA's
petition to intervene. After consideration of the arguments
presented by both parties, the Commission denied the petition by
a vote of five to one, and proceeded to orally approve Carr
Development's SMA permit application for the Project.

3
MPC Rule 12-201-41 provides, in relevant part:

. . . .

(b) All persons who have a property interest in
land subject to commission action, who lawfully reside
on said land, or can demonstrate that they will be so
directly and immediately affected by the matter before
the commission that their interest in the proceeding
is clearly distinguishable from that of the general
public shall be admitted as parties upon timely
application for intervention.
. . . .
(d) Leave to intervene shall be freely granted,
provided that the commission or its hearing officer, if one
is appointed, may deny an application to intervene when in
the commission's or hearing officer's sound discretion it
appears that:
(1) The position or interest of the applicant for
intervention is substantially the same as a
party already admitted to the proceeding;
(2) The admission of additional parties will render
the proceedings inefficient and unmanageable; or
(3) The intervention will not aid in development of
a full record and will overly broaden issues.

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On July 7, 2014, PPKAA filed their "Objection to Denial
of Petition to Intervene", arguing that the Commission "has
adopted a practice of always denying complete Petitions to
Intervene claiming that all petitioners' interests are not
distinguishable from the general public." In their Objection,
PPKAA asserted that the Commission's consistent denial of
petitions to intervene on this basis amounted to the enforcement
of "a new rule regarding those who have standing to intervene in
SMA permit application proceedings" that was promulgated without
following the rule making procedures under HRS chapter 91. The
Commission considered PPKAA's Objection at its September 23, 2014
meeting, where it ultimately rested on the initial decision to
deny PPKAA's petition. The Commission then proceeded to adopt
the Order Denying Petition.
On October 23, 2014, PPKAA filed their Notice of Appeal
in the circuit court, challenging the Commission's oral denial of
PPKAA's petition, oral approval of Carr Development's SMA use
permit application, and the Order Denying Petition. On April 30,
2015, the circuit court heard oral arguments at which it
addressed PPKAA's points of error. On June 19, 2015, the circuit
court entered its Order Denying Appeal and Judgment, concluding
in relevant part that: the Commission had properly considered and
applied MPC Rule 12-201-41(b) in determining that PPKAA had
failed to establish their standing to intervene as a matter of
right; the Commission did not abuse its discretion in determining
that PPKAA's petition did not warrant permissive intervention as
allowed under MPC Rule 12-201-41(d); the Commission's decision to
deny the petition was not arbitrary, capricious or an abuse or
clearly unwarranted exercise of discretion; PPKAA's due process
rights were not violated because they were afforded notice and an
opportunity to be heard on the petition and were not subject to
the usual three-minute limitation imposed on oral testimony from
individuals; the Commission's determination that the Project was

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exempted from the General Plan was not clearly erroneous; and the
Commission did not improperly engage in de facto rule making or
fail to promulgate rules in compliance with HRS Chapter 91.
Accordingly, the circuit court affirmed the Commission's oral
denial of PPKAA's petition to intervene, the Commission's oral
approval of Carr Development's SMA permit application, and the
Order Denying Petition. This appeal follows.
III. Standards of Review
A. Administrative Agency Decisions-Secondary Appeals
In the instant appeal, we review the decision made by
the circuit court upon its review of the Commission's decision to
deny PPKAA's petition to intervene.
Review of a decision made by the circuit court upon its
review of an agency's decision is a secondary appeal. The
standard of review is one in which this court must determine
whether the circuit court was right or wrong in its
decision, applying the standards set forth in HRS § 91-14(g)
(1993) to the agency's decision.

Save Diamond Head Waters LLC v. Hans Hedemann Surf, Inc., 121
Hawai#i 16, 24, 211 P.3d 74, 82 (2009) (quoting Citizens Against
Reckless Dev. v. Zoning Bd. of Appeals, 114 Hawai#i 184, 193, 159
P.3d 143, 153 (2007)). 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;
(2) In excess of the statutory authority or
jurisdiction of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable,
probative, and substantial evidence on the
whole record; or
(6) Arbitrary, or capricious, or characterized
by abuse of discretion or clearly
unwarranted exercise of discretion.

Accordingly, pursuant to HRS § 91-14(g), an agency's "conclusions
of law are reviewable under subsections (1), (2), and (4);
questions regarding procedural defects under subsection (3);

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findings of fact under subsection (5); and an agency's exercise
of discretion under subsection (6)." Sierra Club v. Off. of
Plan., 109 Hawai#i 411, 414, 126 P.3d 1098, 1101 (2006) (citation
omitted).
We also note that an agency's interpretation of its own
rules is entitled to deference unless it is plainly erroneous or
inconsistent with the underlying legislative purpose. In re
Waiola O Molokai, Inc., 103 Hawai#i 401, 425, 83 P.3d 664, 688
(2004); Lee v. Elbaum, 77 Hawai#i 446, 457, 887 P.2d 656, 667
(App. 1993). However, restrictive interpretations of standing
requirements imposed by an agency are not entitled to deference
and may be reviewed de novo on appeal. See Pub. Access Shoreline
Hawaii v. Hawai#i Cty. Plan. Comm'n, 79 Hawai#i 425, 434, 903 P.2d
1246, 1255 (1995) (PASH).
B. Constitutional Law
"We review questions of constitutional law de novo,
under the right/wrong standard." Jou v. Dai-Tokyo Royal St. Ins.
Co., 116 Hawai#i 159, 164-65, 172 P.3d 471, 476-77 (2007)
(quoting Onaka v. Onaka, 112 Hawai#i 374, 378, 146 P.3d 89, 93
(2006)) (internal quotation marks omitted).
IV. Discussion
A. The Commission restrictively interpreted its standing
requirements in denying PPKAA's petition to intervene
as a matter of right.

PPKAA contends that the Commission restrictively and
improperly interpreted its standing requirements as set forth in
MPC Rule 12-201-41(b), and thus abused its discretion in denying
PPKAA's petition to intervene as a matter of right. We agree.
The MPC Rules provide for formal intervention to
Commission proceedings under MPC Rules §§ 12-201-39 to -46. In
particular, MPC Rule 12-201-41(b) provides:
All persons who have a property interest in land subject to
commission action, who lawfully reside on said land, or can
demonstrate they will be so directly and immediately affected
by the matter before the commission that their interest in the
proceeding is clearly distinguishable from that of the general
public shall be admitted as parties upon timely application
for intervention.

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In its Order Denying Petition, the Commission
concluded, and PPKAA does not contest, that PPKAA does not have a
property interest in the land that is subject to the Commission's
action and did not lawfully reside on said land. Accordingly,
under MPC Rule 12-201-41(b), PPKAA would qualify to have standing
to intervene as a matter of right only if they could demonstrate
that they would "be so directly and immediately affected by the
matter before the commission that their interest in the
proceeding is clearly distinguishable from that of the general
public."
"Standing is concerned with whether the parties have
the right to bring suit," or as in this case, whether PPKAA has
the right to intervene in Carr Development's SMA permit
application. See Sierra Club v. Dep't of Transp., 115 Hawai#i
299, 318, 167 P.3d 292, 311 (2007) (internal quotation marks
omitted) (quoting Pele Def. Fund v. Puna Geothermal Venture, 77
Hawai#i 64, 67, 881 P.2d 1210, 1213 (1994)). In order to
establish standing to intervene in an administrative proceeding,
plaintiffs must demonstrate an "injury-in-fact," which requires
them to "have suffered an actual or threatened injury; the injury
must be fairly traceable to the defendant's actions; and a
favorable decision would likely provide relief for the
plaintiff's injury." In re Application of Maui Elec. Co., 141
Hawai#i 249, 270, 408 P.3d 1, 22 (2017) (MECO) (citation
omitted). "Environmental plaintiffs must meet this three-part
standing test but need not assert an injury that is different in
kind from an injury to the public generally." Id. (citation
omitted). This less rigorous standing requirement that applies
in environmental cases draws support from the Hawai#i
Constitution, article XI, section 9. Dep't of Transp., 115
Hawai#i at 320, 167 P.3d at 313.
"The injury prong of the standing inquiry requires an
assertion of a judicially-cognizable injury, that is, a harm to

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some legally-protected interest." Id. at 321, 167 P.3d at 314
(citations omitted). Although the Supreme Court of Hawai#i has
acknowledged a variety of recreational and aesthetic interests
that, if injured, can form the basis for standing in
environmental cases, the ultimate inquiry depends on injury to
the plaintiffs themselves, not the environment. Id. at 321-322,
167 P.3d at 314-315. Accordingly, even under our less rigorous
standing requirements in environmental cases, although a
plaintiff's injury or threatened injury need not be different in
kind from an injury to the public generally, a plaintiff still
must demonstrate that he has suffered an injury-in-fact. See
id.; see also Akau v. Olohana Corp., 65 Haw. 383, 388-390, 652
P.2d 1130, 1134-1135 (1982) (holding "that a member of the public
has standing to sue to enforce the rights of the public even
though his injury is not different in kind from the public's
generally, if he can show that he has suffered an injury in
fact," or "some injury to a recognized interest such as economic
or aesthetic, and is himself among the injured and not merely
airing a political or intellectual grievance").
Here, in consideration of PPKAA's petition, the
Commission made conclusions of law pertaining to PPKAA's right to
intervene as a matter of right in Carr Development's SMA
application, including the following:
7. Based on the record before it, evidence
presented, and the findings set forth above, the
Commission concludes that the concerns [PPKAA] have
raised are all concerns of the general public, which
the Commission is obligated to consider pursuant to
the aforementioned rules and laws prior to making a
decision on the Application.

8. Based on the record before it, evidence
presented, and the findings set forth above, the
Commission concludes that the [PPKAA] have failed to
demonstrate that they will be so directly and
immediately affected by the matter before the
Commission that their interests are clearly
distinguishable from that of the general public.
9. Based on the record before it, evidence
presented, and the findings set forth above, the
Commission concludes that [PPKAA] have not met the
burden of showing an actual or threatened injury
traceable to [Carr Development’s] actions or showing

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how a favorable decision would provide relief for such
injury. []

(Emphases added). In its Order Denying Appeal, the circuit court
agreed with the Commission, and concluded that the Commission
properly considered and applied MPC Rule 12-201-41(b) in its
determination that PPKAA failed to meet their burden of proof
with regard to standing, and that "the evidence before the
Commission lacked sufficient specificity to establish [PPKAA's]
interests are clearly distinguishable from that of the general
public."
However, the Commission's findings and conclusions
reflect that the Commission interpreted MPC Rule 12-201-41(b) in
a restrictive manner in denying PPKAA's petition, which may be
reviewed de novo. PASH, 79 Hawai#i at 434, 903 P.2d at 1255. In
its findings, the Commission notes that PPKAA seeks to protect
the same interests protected by the CZMA and the Hawai#i State
Constitution, including, inter alia, environmental interests such
as public access to beaches and various cultural and
environmental resources. The Commission notes that PPKAA "do not
specify which of the enumerated concerns will affect them 'in a
manner different from the general public[,]'" and that the
petition instead only states that their members are plainly among
the injured. The Commission further noted in its findings that
the concerns that PPKAA members articulated at the hearing are
concerns the Commission is required to consider under the CZMA.
Such findings and conclusions emphasize the fact that the PPKAA
did not allege an injury that is different in kind from an injury
to the public generally or involve matters that the Commission is
already required to consider under the CZMA objectives and
policies.
However, as previously noted, the fact that PPKAA's
concerns are similar to those of the general public is not
determinative of the inquiry on standing, as environmental
plaintiffs need not assert an injury that is different in kind

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from the public so long as they can demonstrate an injury-in-fact
to themselves. See MECO, 141 Hawai#i at 270, 408 P.3d at 22.
Similarly, the Commission's obligation to comply with CZMA
statutory purposes, objectives, and policies cannot be used as a
basis to deny PPKAA's petition to intervene, as it is immaterial
in determining whether PPKAA is entitled to intervention as a
matter of right pursuant to MPC Rule 12-201-41(b). So long as
PPKAA could demonstrate in the petition an injury-in-fact such
that they would be "so directly and immediately affected by the
matter before the commission that their interest in the
proceeding is clearly distinguishable from that of the general
public," PPKAA would be entitled to intervene in Carr
Development's SMA application as a matter of right.4 See Maui P.
Comm. R. § 12-201-41(b).
Here, PPKAA sufficiently demonstrated a threatened
injury-in-fact, in that they established a threatened
environmental injury to PPKAA traceable to Carr Development's SMA
permit application, and that a favorable decision by the
Commission would provide relief to PPKAA members. "A threatened
injury under the traditional injury-in-fact test may be shown
based on direct personal interests in the site of a project
coupled with concerns of actual injury should the project

4
As part of their fourth point of error, PPKAA contends that MPC Rule
12-201-41(b) is invalid as written insofar as it requires petitioners to
demonstrate interests "clearly distinguishable" from that of the general
public and thus conflicts with our settled injury-in-fact case law, which, as
discussed above, does not require environmental plaintiffs to assert an injury
that is different in kind from an injury to the public generally. See MECO,
141 Hawai#i at 270, 408 P.3d at 22.
We note, however, that the Hawai#i Supreme Court has addressed a similar
standing rule in PASH, and while not explicitly ruling on its validity, has
treated the rule as raising an issue of restrictive application of standing
requirements. See PASH, 79 Hawai#i at 434, 903 P.2d at 1255. Here, the MPC
restrictively interpreted its standing requirements in denying PPKAA's
petition to intervene, and thus is owed no deference to its determination.
See id. (noting that the Hawai#i Planning Commission's decision to deny
petitioner standing to participate in a contested case hearing because
"asserted interests were 'substantially similar' to those of the general
public[,]" was a restrictive interpretation of the commission's standing
requirements that is not entitled to deference).

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go forward without adequate environmental review." Dep't of
Transp., 115 Hawai#i at 329, 167 P.3d at 322. Applied here, the
record reflects that those involved with PPKAA have demonstrated
both a direct personal interest in the Project, and have
identified potential environmental injury to themselves.
In regard to whether PPKAA members have a direct
personal interest in the Project site, the Supreme Court of
Hawai#i has recognized environmental and aesthetic interests,
such as those articulated by PPKAA, to be "personal" and
"special" to adjacent landowners of a project site. See Mahuiki
v. Planning Commission, 65 Haw. 506, 515, 654 P.2d 874, 880
(1982) (holding that environmental and aesthetic interests were
"special" and "personal" to adjacent landowners, as a "decision
to permit the construction of multi-family housing units on
undeveloped land in the [SMA] could only have an adverse effect
on their environment" (emphasis added)).
Here, PPKAA set forth in the petition a number of
interests that they contend the Project would injure if allowed
to proceed as planned, including: (1) the use of the north side
of Kenui Street for parking access to Pu#unoa and Mala beaches;
(2) access to a full six-acre community park and open space as
provided in the county community plan; (3) trees in the coastal
zone that provide critical habitat for listed endangered species
and shade; (4) protection from adverse effects of wastewater,
drainage and runoff impacts upon coastal waters off of Pu#unoa
and Mala beaches; (5) the Project's potential impact on the use
of fresh water resources; (6) enjoyment of natural and manmade
historic and prehistoric cultural resources located within the
Project area; (7) proper investigation into the presence of
Hawaiian burials in the Project area; (8) proper planning and
consideration of adverse traffic impacts; (9) protection of
scenic and open space resources; and (10) potential adverse
impacts related to the Tsunami Inundation Zone because further
development would contribute to emergency evacuation issues that

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will cause harm to the existing community. As articulated in the
petition, and summarized above, we recognize that not all of the
concerns asserted by PPKAA identify an actual or threatened
injury to PPKAA members.
However, PPKAA did sufficiently assert threatened
injuries-in-fact to PPKAA members in various ways. In the
introductory section of the petition, PPKAA specifically
asserted:
[A]s adjoining and nearby property owners, [we] will be
directly and immediately affected by the Commission's decision
and therefore have a right to intervene. The proposed
development, as currently planned, will adversely affect the
[PPKAA] because it will diminish [our] use and enjoyment of
[our] properties. It will also decrease the sale and rental
value of [our] properties. [The project] will have adverse
impacts on protected resources within the Coastal Zone
Management Area as will be described in more detail below.

(Emphases added). The petitioners' asserted threatened injuries
were also more particularly specified in the petition and at the
June 24, 2014 public hearing where members of the PPKAA submitted
public testimony about their concerns over the Project. As the
commission observed in its findings, which are unchallenged, Mark
Allen testified that he was concerned that the Project would
increase storm water runoff entering the ditch that borders the
southern end of his property. Naomi Guth testified that the
proposed Project would be situated in the last open space in all
of Front Street, and thus suggested that a park should be located
on the Project site and that the area be kept as an open space.
The Commission's findings and Constance Sutherland's testimony
set forth her concerns about increased traffic that the Project
may cause within her cul-de-sac neighborhood and the lack of
parking for any additional cars. Likewise, in the Petition, the
PPKAA asserts that "[l]ocal residents currently use the unpaved
portion of the north side of Kenui Street to access Puunoa (Baby)
Beach and Mala Beach," and that "[t]he Project will impact access
for beach parking and will directly impact the ability of public
access to the shoreline." PPKAA also articulated concerns about

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adverse impacts in the tsunami evacuation zone that "the
additional units [proposed in the Project] will contribute to
emergency evacuation issues that will cause eminent [sic] harm to
the existing community and the residents of the development."
The Petition also further asserted that the CZMA "protects more
than simply 'public views' which are of areas 'to and along the
shoreline.' The CZMA more broadly protects 'the quality of
coastal scenic and open space resources' and 'visual' resources
within the coastal zone."
Taken together, such concerns are not unlike those that
have been previously recognized as sufficient to establish a
judicially-cognizable injury. See e.g., MECO, 141 Hawai#i at
270, 408 P.3d at 22 (holding that appellant group members
articulated a threatened injury sufficient to establish standing
with their concerns of potential health effects from power plant
operations); Citizens for Prot. of North Kohala Coastline, 91
Hawaii 94, 101, 979 P.2d 1120, 1127 (1999) (holding that citizen
group established "an injury in fact sufficient to constitute
standing to participate in a declaratory judgment action" where
members resided "in close proximity" to proposed project site and
were "long time and frequent users" of the subject coastline, and
injury to members' quality of life is threatened); Pele Def.
Fund, 77 Hawai#i at 70, 881 P.2d at 1216 (holding that appellant
group had demonstrated an injury-in-fact based on its assertion
of "potential harm including diminished property values,
deterioration of air quality, odor nuisance, and possible
physical injury resulting from the permitted operations"
(internal quotation marks omitted)); Akau, 65 Haw. at 390, 652
P.2d at 1135 (recognizing that appellant group's allegation that
they were prevented from using a public right-of-way resulting in
difficulty in getting to the beach thus hampering their use and
enjoyment of it and possibly preventing or discouraging use in
some instances established an injury-in-fact).

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Accordingly, the Commission should have recognized that
PPKAA members' direct personal environmental and aesthetic
interests, including those of adjacent landowners, coupled with
their articulated concerns of potential actual injury from the
Project, sufficiently established a threatened injury that is
fairly traceable to Carr Development's SMA permit application,
and that a favorable decision by the Commission would have
provided PPKAA relief from such injury, such that PPKAA had
standing. See Dep't of Transp., 115 Hawai#i at 329, 167 P.3d at
322. Instead, the Commission interpreted its rules in an overly
restrictive manner by denying PPKAA's petition on the basis "that
the concerns [PPKAA] have raised are all concerns of the general
public, which the Commission is obligated to consider." Such
restrictive interpretation of its own standing requirements is
not entitled to deference. See PASH, 79 Hawai#i at 434, 903 P.2d
at 1255 (holding that Hawai#i Planning Commission's denial of
standing to appellant group on the basis that its asserted
interests were "substantially similar" to those of the public was
a restrictive interpretation of the commission's standing
requirements not entitled to deference).
The Hawai#i Supreme Court has expressed that "the
appellate courts of this state have generally recognized public
interest concerns that warrant the lowering of standing barriers
in cases pertaining to environmental concerns." Dep't of
Transp., 115 Hawai#i at 320, 167 P.3d at 313 (ellipses and
citations omitted). As such, "where the interests at stake are
in the realm of environmental concerns, we have not been inclined
to foreclose challenges to administrative determinations through
restrictive applications of standing requirements." MECO, 141
Hawai#i at 270, 408 P.3d at 22 (citations, internal quotation
marks, and brackets omitted).
We thus conclude that PPKAA, having sufficiently
established an injury-in-fact, demonstrated that they have been
so directly and immediately affected by the matter before the
Commission that they are entitled to intervene as a matter of

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right in Carr Development's SMA permit application. Accordingly,
Carr Development's SMA use permit was granted pursuant to flawed
procedures, that effectively curtailed PPKAA from developing a
complete record, and is void. See PASH, 79 Hawai#i at 429, 903
P.2d at 1250. As such, the circuit court erred in concluding
that the Commission properly applied MPC Rule 12-201-41(b), and
in affirming the Commission's: (1) oral denial of PPKAA's
petition to intervene; (2) subsequent oral approval of Carr
Development's SMA permit, and; (3) the Order Denying Petition.
Because we conclude that PPKAA demonstrated that they
had standing to intervene in Carr Development's SMA use permit
application as a matter of right, we need not reach PPKAA's third
and fourth points of error pertaining to the Commission's denial
of permissive intervention to PPKAA, and the Commission's alleged
de facto rule making.
B. PPKAA was denied procedural due process to protect
their right to a clean and healthful environment under
article XI, section 9, as defined under the CZMA.

We next consider PPKAA's contention that they were
denied procedural due process. On appeal, PPKAA asserts they
were "unconstitutionally deprived of a meaningful time and place
to protect their interest in the Commission proceedings," which
they attribute, in part, to the Commission's procedures
pertaining to petitions to intervene that they contend impaired
PPKAA's ability to establish a record on critical issues. While
we have already concluded that PPKAA has established their
standing to intervene in the SMA permit application proceedings
as a matter of right, we further conclude that in light of the
Hawai#i Supreme Court's holdings in MECO and In re Hawai#i Elec.
Light Co., 145 Hawai#i 1, 445 P.3d 673 (2019) (HELCO), procedural
due process additionally required that PPKAA be afforded a
contested case hearing.

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It has been long recognized that "'constitutional due
process protections mandate a hearing whenever the claimant seeks
to protect a "property interest," in other words, a benefit to
which the claimant is legitimately entitled.'" MECO, 141 Hawai#i
at 260, 408 P.3d at 12 (brackets omitted) (quoting Pele Def.
Fund, 77 Hawai#i at 68, 881 P.2d at 1214). In determining claims
of a due process right to a hearing, we apply a two step
analysis: "(1) is the particular interest which claimant seeks to
protect by a hearing 'property' within the meaning of the due
process clauses of the federal and state constitutions, and (2)
if the interest is 'property,' what specific procedures are
required to protect it." Id. (citaton omitted).
i. PPKAA has asserted a constitutionally protected
property interest to a clean and healthful
environment as defined by the CZMA

As explained by the Hawai#i Supreme Court, "[t]he right
to a clean and healthful environment is a substantive right
guaranteed to each person by article XI, section 9 of the Hawai#i
Constitution." Id., at 260-61, 408 P.3d at 12-13 (internal
quotation marks and citations omitted). The Supreme Court
further noted that "[a]lthough a person's right to a clean and
healthful environment is vested pursuant to article XI, section
9, the right is defined by existing law relating to environmental
quality." Id. at 261, 408 P.3d at 13. "Accordingly, the
parameters of the property interest asserted by [petitioners]
under article XI, section 9 is defined in reference to laws
related to environmental quality." Id. (citation omitted).
In their petition to intervene, in which they requested
a contested case hearing, PPKAA sought to protect a number of
environmental and aesthetic interests that are protected under
the CZMA, HRS Chapter 205A, explaining that: "[PPKAA] is an
unincorporated organization dedicated to preserving, protecting
and restoring the natural and cultural environment of the Kahoma
ahupua#a including the Alamihi cultural area[,]" and that "[t]he
interests in [sic] which [PPKAA] seek to protect are the same

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interests protected by the [CZMA]. . . . and the Hawaii State
Constitution." In this sense, PPKAA asserted a right to a clean
and healthful environment in this case as defined by the CZMA,
HRS Chapter 205A, which includes the duties and operation of the
Commission in regulating the SMA use permit procedure and
requirements.
We next consider whether the CZMA is a law relating to
environmental quality within the meaning of article XI, section 9
of the Hawai#i Constitution. The CZMA was enacted by the
Legislature in order to provide for effective management,
beneficial use, protection, and development of Hawaii's coastal
zones. 1977 Haw. Sess. Laws Act 188, § 1 at 396. As explicitly
stated in HRS § 205A-21 (2007),
The legislature finds that, special controls on developments
within an area along the shoreline are necessary to avoid
permanent losses of valuable resources and the foreclosure
of management options, and to ensure that adequate access,
by dedication or other means, to public owned or used
beaches, recreation areas, and natural reserves is provided.
The legislature finds and declares that it is the state
policy to preserve, protect, and where possible, to restore
the natural resources of the coastal zone of Hawaii .

(Emphasis added). "The implementation of this policy has been
delegated in large part to the counties, and they are responsible
for the administration of the [SMA] use permit procedure and
requirements." Mahuiki, 65 Haw. at 517, 654 P.2d at 881. HRS
§ 205A-2 also sets forth the objectives and policies of the CZMA,
many of which include consideration of the interests that PPKAA
seeks to address in their petition. These provisions of the CZMA
expressly require the designated authorities to consider issues
relating to the preservation and conservation of natural
resources in the SMA in their decision making.
Thus, the CZMA is a law relating to environmental
quality that defines the right to a clean and healthful
environment under article XI, section 9, because it requires that
express consideration be given to the environmental interests
covered in the policies and objectives of the CZMA in the
decision-making of the designated authorities. See HELCO, 145

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Hawai#i at 16-17, 445 P.3d at 688-89; MECO, 141 Hawai#i at 261-
265, 408 P.3d at 13-17 (holding that HRS Chapter 269 "is a law
relating to environmental quality that defines the right to a
clean and healthful environment under article XI, section 9 by
providing that express consideration be given to reduction of
greenhouse gas emissions in the decision-making of the [Public
Utilities Commission]"); Cty. of Hawaii v. Ala Loop Homeowners,
123 Hawai#i 391, 409, 235 P.3d 1103, 1121 (2010) (holding that
HRS Chapter 205 is a law relating to environmental quality within
the meaning of article XI, section 9 because it is a law relating
to the conservation, protection, and enhancement of natural
resources and it requires consideration of issues relating to the
preservation or conservation of natural resources), abrogated on
other grounds by Tax Found. v. State, 144 Hawai#i 175, 439 P.3d
127 (2019).
ii. A contested case was required.
Having determined that PPKAA demonstrated a protected
property interest in a clean and healthful environment as defined
by the CZMA, "we next consider what procedures due process
requires in this case[.]" MECO, 141 Hawai#i at 265, 408 P.3d at
17.
When determining the procedures required to comply with
constitutional due process, we consider the following three
factors: "(1) the private interest which will be affected;
(2) the risk of an erroneous deprivation of such interest
through the procedures actually used, and the probable
value, if any, of additional or alternative procedural
safeguards; and (3) the governmental interest, including the
burden that additional procedural safeguards would entail."

HELCO, 145 Hawai#i at 17, 445 P.3d at 689 (quoting Sandy Beach
Def. Fund v. City Council Cty. of Honolulu, 70 Haw. 361, 378, 773
P.2d 250, 261 (1989).
As to the first factor, the private interest affected
here is PPKAA's right to a clean and healthful environment, which
includes the right that explicit consideration be given to many
of the objectives and polices of the CZMA that PPKAA asserted in
their petition to intervene, and as provided for in HRS § 205A-2.

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As previously discussed, Carr Development's SMA permit
application involves the construction of a significant housing
development within the SMA. Because the Commission's
determination on Carr Development's SMA permit application
requires consideration of the Project's potential effect on the
natural resources protected under the CZMA, PPKAA's right to a
clean and healthful environment, as defined by the CZMA, was
directly affected by the Commission's oral approval of Carr
Development's SMA permit application. See id.
As to the second factor, we conclude that the risk of
erroneous deprivation of PPKAA's right to a clean and healthful
environment is high absent the protections provided by a
contested case hearing. As asserted by the PPKAA in their
petition to intervene, the Project could have adverse
environmental and aesthetic impacts to the SMA, which PPKAA was
not allowed to address because the Commission had denied their
petition to intervene. Additionally, there were no other
proceedings where PPKAA was given a meaningful opportunity to be
heard concerning Carr Development's SMA permit application, as it
was orally approved after the Commission had denied PPKAA's
petition to intervene at the June 24, 2014 public hearing. See
HELCO, 145 Hawai#i at 17, 445 P.3d at 689; MECO, 141 Hawai#i at
266, 408 P.3d at 18.
Finally, as to the third factor regarding the
governmental interest, we conclude that the burden of affording
PPKAA a contested case hearing is slight because the Commission
was already required to consider the concerns posited in PPKAA's
petition to intervene. See HELCO, 145 Hawai#i at 17-18, 445 P.3d
at 689-90; MECO, 141 Hawai#i at 266, 408 P.3d at 18. As such, it
would not unduly burden the Commission to afford PPKAA a
contested case hearing under the circumstances of this case.
Accordingly, under the circumstances of this case,
PPKAA was entitled to a contested case hearing by the Commission
to comply with procedural due process, which includes the right
to submit evidence and argument on the impact of the Project on

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the asserted property interest. See HELCO, 145 Hawai#i at 25,
445 P.3d at 697; MECO, 141 Hawai#i at 269, 408 P.3d at 21;
However, the Commission "has the authority to set limitations in
conducting the proceedings so long as the procedures sufficiently
afford an opportunity to be heard at a meaningful time and in a
meaningful manner on the issue of the [Project]'s impact on the
asserted property interest." HELCO, 145 Hawai#i at 25, 445 P.3d
at 697; MECO, 141 Hawai#i at 270, 408 P.3d at 22.

C. The Commission is required to make specific
findings on the Project's consistency with the
Maui County General and Community Plans.

Finally, we address PPKAA's contention that the
Commission was required to find the Project consistent with the
Maui County General and Community Plans prior to orally approving
Carr Development's SMA permit application despite the County's
designation of the Project as an HRS § 201H-38 housing
development. For reasons set forth below, we conclude that on
remand, the Commission is required under the CZMA to make
specific findings on the Project's consistency with the Maui
County General and Community Plans prior to approval of Carr
Development's SMA permit application.
In the instant case, the Maui County Council (Council)
approved the Project under HRS Chapter 201H-38 via County Council
Resolution 14-14. Under HRS § 201H-38 2017), certain housing
projects are exempted "from all statutes, ordinances, charter
provisions, and rules of any government agency relating to
planning, zoning, construction standards for subdivisions,
development and improvement of land, and the construction of
dwelling units thereon," provided that the project meets the
requirements of the statute.
While it is undisputed that the Council, via Resolution
14-14, exempted the Project from having to obtain a community
plan amendment, nothing in Resolution 14-14 exempted the
Commission from its responsibilities under the CZMA. Resolution

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14-14 states in pertinent part:
1. That, based upon the transmittals and the
representations of the Department of Housing and Human
Concerns and [Carr Development], the Council approves the
Project's preliminary plans and specifications, as submitted
to the Council on December 30, 2013, pursuant to Section
201H-38, HRS . . . provided that [Carr Development] shall
comply with all statutes, ordinances, charter provisions,
and rules of governmental agencies relating to planning,
zoning and construction standards for subdivisions,
development and improvement of land, and the construction of
units thereon, except for the exemptions specified in
Exhibit "2", attached hereto and made a part hereof[.]

(Emphasis added). In Exhibit 2, the Council granted certain
exemptions from the Maui County Code, including that "[a]n
exemption from Chapter 2.80B, MCC, General Plan and Community
Plans, shall be granted to permit the project to proceed without
obtaining a community plan amendment."
In Resolution 14-14, the Council only granted the
Project exemptions explicitly listed and made a part of
Resolution 14-14. None of the exemptions included in Resolution
14-14 relieve the Commission from having to make specific
findings on the Project's consistency with the Maui County
General and Community Plans prior to approving the SMA permit
application pursuant to HRS § 205A-26(2)(C).
HRS § 205A-26 sets forth mandatory guidelines governing
the implementation of the SMA use permit procedure by the
designated authority. HRS § 205A-26(2)(C) (2017)5 conditions the

5
HRS § 205A-26(2)(c):
§205A-26 Special management area guidelines. In
implementing this part, the authority shall adopt the
following guidelines for the review of developments proposed
in the special management area:
. . . .
(2) No development shall be approved unless the
authority has first found:
. . . .

(C) That the development is consistent with the
county general plan and zoning. Such a
finding of consistency does not preclude
concurrent processing where a general plan
or zoning amendment may also be required.

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approval of an SMA use permit on the designated authority's
finding that "[t]he development is consistent with the county
general plan and zoning." Accordingly, the county general plan,
and in this case the community plan,6 has "the force and effect
of law insofar as [HRS § 205A-26] requires that a development
within the SMA must be consistent with the general plan." GATRI
v. Blane, 88 Hawai#i 108, 114, 962 P.2d 367, 373 (1998).
Here, the Commission orally granted Carr Development's
SMA permit application at the June 24, 2014 public hearing.
While the Project's exemption from obtaining a community plan
amendment was addressed at the hearing, the Commission did not
appear to make any specific findings as to the Project's
consistency with the West Maui Community Plan. On remand, we
note that the Commission is required under HRS § 205A-26(2)(C) to
make a specific finding on the Project's consistency with the
Maui County General and Community Plans before it may approve
Carr Development's SMA permit application.
V. Conclusion
For the reasons discussed above, the circuit court
erred in affirming: (1) the Commissions oral denial of PPKAA's
petition to intervene; (2) the Commission's oral approval of Carr
Development's SMA Use Permit; and (3) the Commission's "Findings
of Fact, Conclusions of Law, and Decision and Order Relating to
Protect and Preserve Kahoma Ahupua'a Association, Michele
Lincoln, Mark and Linda Allen, Patrick and Naomi Guth, and
Constance B. Sutherland's Petition to Intervene." Therefore, the
Circuit Court of the Second Circuit's "Findings of Fact,
Conclusions of Law, and Order Denying Appeal" and "Final

6
At the time of the June 24, 2014 public hearing on PPKAA's petition
to intervene and Carr Development's SMA permit application, Maui County Code
§ 2.80B.030 provided in relevant part that the "community plans authorized in
this chapter are and shall be the general plan of the County, as provided by
section 8-8.5 of the charter." Maui County Code § 2.80B.030 (2013).
Accordingly, in the County of Maui, the community plans are part of the
general plan, and similarly have the force and effect of law. See GATRI, 88
Hawai#i at 113 n.5, 962 P.2d at 372 n.5 (addressing a prior version of the
Maui County Code).

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Judgment," both entered on June 19, 2015, are vacated. The case
is remanded to the Maui Planning Commission for further
proceedings consistent with this Memorandum Opinion.
DATED: Honolulu, Hawai#i, September 14, 2020.

On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Lance D. Collins,
for Protect and Preserve /s/ Keith K. Hiraoka
Kahoma Ahupua#a Association, an Associate Judge
unincorporated association,
Michele Lincoln, Mark Allen, /s/ Clyde J. Wadsworth
Linda Allen, and Constance B. Associate Judge
Sutherland.
Craig G. Nakamura,
Arsima A. Muller,
for Stanford Carr Development
LLC, a domestic limited
liability company.

Joinder on the answering
brief:

Thomas Kolbe,
Caleb Rowe,
Deputies Corporation Counsel
Department of the Corporation
Counsel,
for Maui Planning Commission,
County of Maui.

Bianca K. Isaki,
on the amicus curiae brief
for Waipio Bay Benevolent
Association, LLC, and Malama
Kakanilua.

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