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

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
16-JUN-2021
09:04 AM
Dkt. 35 OP

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---oOo---
________________________________________________________________

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

vs.

MAUI PLANNING COMMISSION, COUNTY OF MAUI, and
STANFORD CARR DEVELOPMENT, LLC,
a domestic limited liability company,
Petitioners/Defendants-Appellees/Appellees.
________________________________________________________________

SCWC-XX-XXXXXXX

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CIVIL NO. 14-1-0616(1))

JUNE 16, 2021

RECKTENWALD, C.J., NAKAYAMA, McKENNA, WILSON, AND EDDINS, JJ.

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

This case arises from Stanford Carr Development, LLC’s

(“Carr”) application for a Special Management Area (“SMA”) use
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permit to build affordable housing (“the Project”) within the

County of Maui’s SMA. The Protect and Preserve Kahoma Ahupua‘a

Association (“PPKAA”) filed a petition to intervene in the SMA

use permit application proceedings with the Maui Planning

Commission (“Commission”) seeking to address the Project’s

environmental and aesthetic impacts. The Commission denied

PPKAA’s petition on the grounds that it failed to demonstrate

its interests were different from those of the general public,

as required by the Rules of Practice and Procedure for the Maui

Planning Commission (“MPC”) § 12-201-41 (2010). The Commission

then approved Carr’s SMA use permit application.

PPKAA appealed the Commission’s denial of its petition to

intervene and approval of Carr’s SMA use permit application to

the Circuit Court of the Second Circuit (“circuit court”), which

affirmed the Commission’s decisions. On appeal, the

Intermediate Court of Appeals (“ICA”) determined PPKAA had

standing to intervene as a matter of right and that PPKAA was

denied procedural due process to protect its Hawai‘i Constitution

article XI, section 9 right to a clean and healthful

environment, as defined by the Coastal Zone Management Act

(“CZMA”). The ICA also held the Commission was required to make

findings on the Project’s consistency with the Maui County

general and community plans pursuant to Hawai‘i Revised Statutes

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(“HRS”) § 205A-26(2)(C) (2017). The ICA vacated the circuit

court’s decision and remanded to the Commission.

On review of Carr’s certiorari application, we agree with

the ICA that (1) PPKAA sufficiently demonstrated that it had

standing to intervene in the SMA use permit proceedings; (2) the

CZMA is a law relating to environmental quality for the purposes

of article XI, section 9 of the Hawai‘i Constitution and that

PPKAA was denied procedural due process to protect its right to

a clean and healthful environment; and (3) the Commission was

required to make findings on the Project’s consistency with the

general and community plans pursuant to HRS § 205A-26(2)(C).

We therefore affirm the ICA’s October 13, 2020 judgment

vacating the circuit court’s June 19, 2015 findings of fact,

conclusions of law, and order denying appeal and final judgment,

and we remand to the Commission for further proceedings

consistent with this opinion.

II. Background

A. Commission proceedings

Pursuant to HRS § 205A-28 (Supp. 1979), “[n]o development

shall be allowed in any county within the [SMA] without

obtaining a permit in accordance with this part.” The

Commission implements the CZMA, including SMA management under

HRS ch. 205A. See HRS § 205A-1 (defining “authority” as the

county planning commission); HRS § 205A-26; Maui County Charter

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§ 8-8.4 (2002) (stating that the Commission acts “as the

authority in all matters related to the Coastal Zone Management

law”). The Commission is part of the Maui County Department of

Planning (“Planning Department”). See Maui County Department of

Planning, Department Organization Chart FY20 (2019).1

On September 27, 2012, the Planning Department received

Carr’s SMA use permit application for the Project. The Project

proposed the construction of approximately 203 housing units and

three resident parks on 24.354 acres of undeveloped land south

of the Kahoma stream channel. The project site was located

within the County of Maui’s SMA and within “Project District 4”

of the West Maui Community Plan. The West Maui Community Plan

described Project District 4 as follows:

This project district involves approximately 24 acres
bounded by Kahoma Stream, Front Street, Kenui Street, and
Honoapiilani Highway. The project district is intended to
provide a mixture of commercial/business and multi-family
and senior citizen residential uses. There shall also be 6
acres of park land within the project district, including a
linear park or greenway adjacent to the south bank of
Kahoma Stream, from Honoapiilani Highway to Front Street,
at least 60 feet wide and approximately 1.5 acres in size.
The extension of Wainee Street from its present terminus at
Kenui Street to Front Street, as well as the realignment of
Kenui Street shall also be considered. Said roadway
improvements should be developed and funded in conjunction
with appropriate government agencies. The remaining acres
in the project district shall be evenly divided between the
commercial/business uses, and the multi-family and senior
citizen residential uses, to the greatest extent
practicable.

1 Available at https://perma.cc/NJL5-6Q7H.

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Maui County Council, West Maui Community Plan 52 (1996).2

Carr’s application noted the Project was “partially in

compliance” with the West Maui Community Plan, but it proposed a

combined park area of 1.75 acres instead of the 6 acres of park

land required by the community plan. However, Carr requested

that the Project be exempted as an HRS § 201H-38 (2017)

affordable housing project from Maui County Code (“MCC”) ch.

2.80B,3 “General Plan and Community Plans,” in order for the

Project to be “deemed compliant” with the West Maui Community

Plan.

On February 7, 2014, the Maui County Council (“Council”)

adopted Resolution no. 14-14 (“Resolution 14-14”), citing HRS

§ 201H-38.4 The resolution approved the Project subject to

2 Available at https://perma.cc/C3Y8-DBX3.
3 Available at https://perma.cc/WXH8-LKMX.
4 HRS § 201H-38 provides, in relevant part:

(a) The corporation may develop on behalf of the State or
with an eligible developer, or may assist under a
government assistance program in the development
of, housing projects that shall be exempt from all
statutes, ordinances, charter provisions, and rules of any
government agency relating to planning, zoning,
construction standards for subdivisions, development and
improvement of land, and the construction of dwelling units
thereon; provided that:
(1) The corporation finds the housing project
is consistent with the purpose and intent of
this chapter, and meets minimum requirements of
health and safety;
(2) The development of the proposed housing
project does not contravene any safety
standards, tariffs, or rates and fees approved
by the public utilities commission for public
(continued . . .)

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specified modifications, and “provided that [Carr] shall comply

with all statutes, ordinances, charter provisions, and rules of

governmental agencies relating to planning, zoning and

construction standards for subdivisions, development and

improvement of land, and the construction of units thereon,

except for the exemptions specified in Exhibit ‘2’[.]” Exhibit

2 included an exemption from MCC ch. 2.80B “to permit the

project to proceed without obtaining a community plan

amendment.”

On June 5, 2014, PPKAA, pro se, filed a petition to

intervene in the SMA use permit proceedings. PPKAA described

itself as “an unincorporated organization dedicated to

preserving, protecting and restoring the natural and cultural

environment of the Kahoma ahupua‘a[.]” PPKAA maintained that its

members all owned homes within the Kahoma ahupua‘a.

PPKAA argued it had standing to intervene as a matter of

right under MPC § 12-201-41 (1993)5 because its members owned

utilities or of the various boards of water
supply authorized under chapter 54;
(3) The legislative body of the county in which
the housing project is to be situated shall
have approved the project with or without
modifications[.]

5 MPC § 12-201-41(b) provides:

All persons who have a property interest in land subject to
commission action, who lawfully reside on said land, or can
demonstrate they will be so directly and immediately
affected by the matter before the commission that their
(continued . . .)

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land adjacent to the Project, and the Project would diminish the

use, enjoyment, and rental value of their properties. PPKAA

also asserted the Project would have “adverse impacts on

protected resources within the Coastal Zone Management Area,”

and that the interests PPKAA sought to protect were the “same

interests” protected by the CZMA and the Hawai‘i Constitution.

The petition listed various ways in which the Project would

allegedly impact CZMA interests, including access to public

beaches, adequate public recreation areas, protecting coastal

ecosystems, investigating the presence of Hawaiian burial sites,

and protecting scenic resources. The petition also noted that

the Project did not conform to the community plan as required by

HRS § 205A-26(2)(C), and that it conflicted with the general

plan’s goal of protecting open spaces.6

On June 13, 2014, Carr filed a memorandum in opposition to

PPKAA’s petition to intervene, arguing PPKAA had not

interest in the proceeding is clearly distinguishable from
that of the general public shall be admitted as parties
upon timely application for intervention.
6 At the time the petition was filed, HRS § 205A-26(2)(C) provided: “No
development shall be approved unless the authority has first found . . .
[t]hat the development is consistent with the county general plan and zoning.
Such a finding of consistency does not preclude concurrent processing where a
general plan or zoning amendment may also be required.” (Emphasis added.)
Additionally, MCC § 2.80B.030(B) (2014) provides in pertinent part,
“The countywide policy plan, Maui island plan, and community plans authorized
in this chapter are and shall be the general plan of the County[.]”
(Emphasis added.) Therefore, in Maui County, community plans are part of the
general plan.

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distinguished its members’ concerns from those affecting the

general public, as required by MPC § 12-201-41(b).

On June 24, 2014, the Commission held its regular meeting,

at which members of the public were allowed to testify for up to

three minutes each regarding the Project. Multiple PPKAA

members raised concerns regarding whether the current storm

drain system would be able to accommodate the Project and the

effects on Hawaiian cultural and gathering rights, beach access,

and traffic congestion.

The Commission then held a public hearing on Carr’s SMA use

permit application, during which Carr gave a presentation

discussing the Project’s impacts on water drainage, traffic, and

environmental resources.

The Commission then heard from PPKAA on its petition to

intervene, as mandated by MPC § 12-201-45 (1993).7 Michele

Lincoln (“Lincoln”) spoke on behalf of PPKAA. Lincoln contended

that PPKAA had standing to intervene and suffered injuries

distinguishable from the general public. She testified that

PPKAA members lived within 500 feet of the Project and would

experience the Project’s impacts to traffic, beach access,

tsunami evacuation congestion, the cultural and historic

7 MPC § 12-201-45 provides: “All petitions to intervene shall be heard
and ruled upon prior to the commission taking final action on an
application.”

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importance of the land, storm water drainage, scenic views, and

to the sale and rental values of their properties.

Carr countered that PPKAA’s petition did not show its

members suffered an actual or threatened injury in fact, and

that the concerns raised were not “uniquely confined to these

petitioners” and would be addressed in the regular SMA permit

approval process.

The Commission then denied PPKAA’s petition to intervene

and orally approved Carr’s SMA use permit application. The

Commission did not enter oral or written findings regarding

Carr’s SMA use permit application.

On September 23, 2014, the Commission issued its written

findings of fact (“FOFs”), conclusions of law (“COLs”), and

order denying PPKAA’s petition to intervene. The Commission

determined PPKAA was not entitled to intervention under MPC

§ 12-201-41(b) because it “failed to demonstrate that they will

be so directly and immediately affected by the matter before the

Commission that their interests are clearly distinguishable from

that of the general public.” The Commission also concluded that

PPKAA failed to show a threatened injury traceable to Carr’s

actions.

On October 23, 2014, PPKAA appealed the Commission’s

September 23, 2014 order and June 24, 2014 oral approval of

Carr’s SMA use permit to the circuit court.

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B. Circuit court proceedings

1. PPKAA’s arguments

PPKAA, now represented by counsel, argued the Commission

erred in denying its motion to intervene because Hawai‘i courts

apply less restrictive administrative standing requirements

where environmental interests are involved based on article XI,

section 9 of the Hawai‘i Constitution,8 and that it had shown an

“injury in fact” sufficient for standing. PPKAA also argued the

Commission denied it procedural due process, and that it had

been entitled to a “full hearing” under HRS ch. 91. PPKAA

asserted the Commission erred in failing to find that the

Project was consistent with the general and community plans, as

required by HRS § 205A-36(2)(C). Although the Council had

exempted Carr from obtaining plan amendments under the MCC,

PPKAA argued this did not excuse Carr from the SMA permit

procedures under HRS ch. 205A.

8 Article XI, section 9 of the Hawai‘i Constitution provides:

Each person has the right to a clean and healthful
environment, as defined by laws relating to environmental
quality, including control of pollution and conservation,
protection and enhancement of natural resources. Any
person may enforce this right against any party, public or
private, through appropriate legal proceedings, subject to
reasonable limitations and regulation as provided by law.

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2. Carr’s arguments9

Carr argued PPKAA was not entitled to intervention because

its members’ status as adjacent landowners did not confer an

interest sufficient for standing, PPKAA failed to show that its

interests were distinguishable from the general public, and its

petition did not specify the injuries to its members. Carr

maintained PPKAA was not denied procedural due process because

it was afforded a hearing on its petition to intervene and was

given unlimited time for oral argument to establish standing.

Carr argued Resolution 14-14 and HRS § 201H-38 exempted the

Project from the general and community plan requirements, and

the Commission was not required to find that the Project was

consistent with the community plan.

3. Circuit court’s FOFs, COLs, and order

On June 19, 2015, the circuit court issued its FOFs, COLs,

and order denying PPKAA’s appeal and affirming the Commission.10

The circuit court’s COLs included the following. PPKAA was not

entitled to intervention as a matter of right because it failed

to show its interests were clearly distinguishable from those of

the general public. PPKAA was afforded notice and an

opportunity to be heard on its petition to intervene and was

therefore not denied due process. The Project was a qualified

9 The Commission joined Carr as a defendant-appellee.
10 The Honorable Rhonda I.L. Loo presided.

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housing project under HRS ch. 201H, the Project had been granted

an exemption from the general plan via Resolution 14-14, and the

Commission’s determination that the Project was exempt from the

general plan was not clearly erroneous.

PPKAA appealed to the ICA.

C. ICA memorandum opinion

On September 14, 2020, the ICA issued its memorandum

opinion vacating the circuit court’s June 19, 2015 order and

final judgment and remanding to the Commission. Protect and

Preserve Kahoma Ahupua‘a Ass’n v. Maui Planning Comm’n (PPKAA),

CAAP-XX-XXXXXXX (Sept. 14, 2020) (mem.).

The ICA held that the Commission restrictively interpreted

MPC § 12-201-41(b)’s standing requirements because environmental

plaintiffs need not assert an injury different in kind from an

injury to the public to establish standing. PPKAA, mem. op. at

8-9 (citing In re Application of Maui Elec. Co. (MECO), 141

Hawai‘i 249, 270, 408 P.3d 1, 22 (2017) (“Environmental

plaintiffs must meet this three-part standing test but need not

assert an injury that is different in kind from an injury to the

public generally.”)). This less rigorous standing requirement

drew support from article XI, section 9 of the Hawai‘i

Constitution. PPKAA, mem. op. at 9 (citing Sierra Club v.

Dep’t. of Transp., 115 Hawai‘i 299, 320, 167 P.3d 292, 313

(2007)). The ICA stated that, in order to demonstrate standing

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to intervene, plaintiffs must demonstrate an injury in fact,

which requires them to show that they suffered an actual or

threatened injury fairly traceable to the defendant’s actions,

and that a favorable decision would likely provide relief.

PPKAA, mem. op. at 9-10 (citing MECO, 141 Hawai‘i at 270, 408

P.3d at 22).

Reviewing the Commission’s FOF/COLs de novo, ICA determined

PPKAA demonstrated a threatened injury in fact in its petition

and at the June 24, 2014 public hearing, noting that PPKAA

members had testified as to concerns regarding the Project’s

effect on storm water runoff, increased traffic, and adverse

impacts on the tsunami evacuation zone. PPKAA, mem. op. at 12-

15. Therefore, the ICA ruled PPKAA had been “so directly and

immediately affected” by the Project that it was entitled to

intervene as a matter of right in the SMA permit application

proceedings. PPKAA, mem. op. at 16-17.

The ICA also held that PPKAA was denied procedural due

process to protect its right to a clean and healthful

environment under article XI, section 9 of the Hawai‘i

Constitution. PPKAA, mem. op. at 17. The ICA applied a two-

step analysis in determining PPKAA had a due process right to a

hearing: (1) whether PPKAA sought to protect a “property

interest,” and (2) if so, what specific procedures were required

to protect it. PPKAA, mem. op. at 18.

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The ICA held that the CZMA is a law relating to

environmental quality that defines the right to a clean and

healthful environment under article XI, section 9. PPKAA, mem.

op. at 19. Therefore, because PPKAA’s petition sought to

protect environmental and aesthetic interests under the CZMA and

the Hawai‘i Constitution, it had asserted a protected property

interest. PPKAA, mem. op. at 18-19.

The ICA then determined that the risk to PPKAA’s right to a

clean and healthful environment was high absent a contested case

hearing because the Project could have adverse impacts to the

SMA, and PPKAA had no other meaningful opportunity to be heard

because the Commission had approved the permit application on

the same day it denied PPKAA’s motion to intervene. PPKAA, mem.

op. at 21. Furthermore, the burden of affording a contested

case hearing was slight because the Commission was “already

required to consider the concerns posited in PPKAA’s petition to

intervene.” Id. Therefore, PPKAA was entitled to a contested

case hearing, “which includes the right to submit evidence and

argument on the impact of the Project on the asserted property

interest.” PPKAA, mem. op. at 21-22.

Finally, the ICA held that the Commission was required

under the CZMA to make findings on the Project’s consistency

with the Maui County general and community plans. PPKAA, mem.

op. at 22. Although the Council exempted the Project from MCC

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ch. 2.80B through Resolution 14-14, the ICA determined it did

not relieve the Commission of making findings pursuant to HRS

§ 205A-26(2)(C), which conditioned the approval of SMA use

permits on findings that “[t]he development is consistent with

the county general plan and zoning.” PPKAA, mem. op. at 23-24.

Therefore, on remand, the Commission was required to make

specific findings on the Project’s consistency with the general

and community plans. PPKAA, mem. op. at 24.

On October 13, 2020, the ICA filed its judgment on appeal.

D. Certiorari application

Carr’s application for certiorari (“Application”) raises

five questions:

1. Whether the ICA gravely erred in holding that the
Commission restrictively interpreted its standing
requirements.
2. Whether the ICA gravely erred by finding that [PPKAA]
sufficiently asserted threatened injuries-in-fact to its
members.
3. Whether the ICA gravely erred by relying on the public
testimony portion of the Commission hearing to support the
Petition.
4. Whether the ICA gravely erred in holding that PPKAA was
denied procedural due process to protect their right to a
clean and healthful environment under article XI, section
9, as defined by the [CZMA].
[5.] Whether the ICA gravely erred in holding that the
Commission was required to make specific findings on the
Project’s consistency with the Maui County General and
Community Plans.

III. Standards of Review

A. Constitutional law

This court reviews questions of constitutional law by

exercising our own independent constitutional judgment based on

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the facts of the case. State v. Phua, 135 Hawai‘i 504, 511-12,

353 P.3d 1046, 1053-54 (2015). Therefore, questions of

constitutional law are reviewed under the right/wrong standard.

Phua, 135 Hawai‘i at 512, 353 P.3d at 1054.

B. Administrative agency appeals

Review of a decision made by the circuit court upon its
review of an agency’s decision is a secondary appeal. The
standard of review is one in which this court must
determine whether the circuit court was right or wrong in
its decision, applying the standards set forth in HRS § 91–
14(g) (1993) to the agency’s decision.

Sierra Club v. Office of Planning, 109 Hawai‘i 411, 414, 126 P.3d

1098, 1101 (2006) (citations and alterations omitted).

HRS § 91-14(g) (Supp. 2016) provides:

(g) Upon review of the record, the court may affirm the
decision of the agency or remand the case with instructions
for further proceedings; or it may reverse or modify the
decision and order if the substantial rights of the
petitioners may have been prejudiced because the
administrative findings, conclusions, decisions, or orders
are:
(1) In violation of constitutional or statutory
provisions;
(2) In excess of the statutory authority or
jurisdiction of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable,
probative, and substantial evidence on the
whole record; or
(6) Arbitrary, or capricious, or characterized
by abuse of discretion or clearly unwarranted
exercise of discretion.

IV. Discussion

A. PPKAA had standing to intervene in the SMA permit
application proceedings

Carr argues the ICA erred in holding the Commission

restrictively interpreted its standing requirements and

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misapplied the standard for standing because PPKAA failed to

show that it suffered an injury in fact.11

The ICA determined that the Commission had restrictively

interpreted its standing requirements, noting environmental

plaintiffs need not assert an injury different in kind from the

general public, and that this “less rigorous standing

requirement” draws support from article XI, section 9 of the

Hawai‘i Constitution. PPKAA, mem. op. at 9, 11-12 (citing Sierra

Club, 115 Hawai‘i at 320, 167 P.3d at 313). The ICA then held

that PPKAA had established a threatened injury in fact and

demonstrated it was “so directly and immediately affected” that

it was entitled to intervention as a matter of right. PPKAA,

mem. op. at 12-17.

Our decision in MECO has clarified that petitioners have a

right to intervene where they have established their right to a

clean and healthful environment pursuant to article XI, section

9 of the Hawai‘i Constitution. 141 Hawai‘i at 266-67, 408 P.3d

at 18-19. As discussed in the next section, PPKAA had a

protectable property interest in the right to a clean and

11 Carr also argues the ICA erred by relying on the public testimony
portion of the Commission’s hearing in determining that PPKAA demonstrated an
injury in fact because the public testimony was not presented as part of
PPKAA’s petition. However, the ICA’s discussion of the public testimony was
in the context of the Commission’s unchallenged FOFs in its order denying
PPKAA’s petition to intervene, which summarized the PPKAA members’ public
testimony and which Carr prepared. PPKAA, mem. op. at 14. Carr also
responded to the public testimony concerns during the hearing on its SMA use
permit application.

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healthful environment, as defined by the CZMA.12 PPKAA “must

also show that it is entitled to request a review of the agency

determination,” which requires PPKAA to establish “an actual or

threatened injury [that is] fairly traceable to the defendant’s

actions; and a favorable decision would likely provide relief

for the plaintiff’s injury.” Id. at 270, 408 P.3d at 22

(quotation marks and citations omitted). The ICA correctly

concluded that PPKAA “assert[ed] harm to legally protected

interests in a clean and healthful environment.” Id. As the

ICA identified, PPKAA alleged “direct personal environmental and

aesthetic interests, including those of adjacent landowners” and

“potential actual injury from the Project” which was “fairly

traceable to Carr Development’s SMA permit application” and from

which the Commission’s decision could provide relief. PPKAA,

mem. op. at 16. Therefore, PPKAA had standing to intervene in

the SMA permit application proceedings.

B. PPKAA was denied procedural due process to protect its
right to a clean and healthful environment under article
XI, section 9 of the Hawai‘i Constitution, as defined by the
CZMA

Carr argues PPKAA was not denied procedural due process

because unilateral expectations of aesthetic and environmental

12 Furthermore, it appears that PPKAA’s property interest in the right to
a clean and healthful would entitle it standing under MPC § 12-201-41(b).
MPC § 12-201-41(b) provides that “[a]ll persons who have a property interest
in land subject to commission action . . . shall be admitted as parties upon
timely application for intervention.” MPC ch. 201 does not define “property”
or “property interest.”

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values do not constitute a protectable property interest, citing

Sandy Beach Defense Fund v. City Council of Honolulu (Sandy

Beach), 70 Haw. 361, 773 P.2d 250 (1989).

This court has stated that “[c]onstitutional due process

protections mandate a hearing whenever the claimant seeks to

protect a ‘property interest,’ in other words, a benefit to

which the claimant is legitimately entitled.” Pele Defense Fund

v. Puna Geothermal Venture, 77 Hawai‘i 64, 68, 881 P.2d 1210,

1214 (1994). This court conducts a two-step analysis to

determine whether there was a due process right to a contested

case hearing, considering: “(1) [whether] the particular

interest which [the] claimant seeks to protect by a hearing [is]

‘property’ within the meaning of the due process clauses of the

federal and state constitutions, and (2) if the interest is

‘property,’ what specific procedures are required to protect

it.” Sandy Beach, 70 Haw. at 376, 773 P.2d at 260.

Sandy Beach involved a challenge to an SMA use permit

application by community members, some of whom lived near the

proposed development. 70 Haw. at 366, 773 P.2d at 254. The

community group claimed their personal, economic, and aesthetic

interests, such as their view of the ocean and value of their

properties, would be injured by the development. 70 Haw. at

367, 773 P.2d at 255. We stated that “[t]o have a property

interest in a benefit, a person clearly must have more than an

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abstract need or desire for it. [They] must have more than a

unilateral expectation to it. [They] must, instead, have a

legitimate claim of entitlement to it.” 70 Haw. at 377, 773

P.2d at 260 (citations omitted). We then held that the

community group’s interests were “of an aesthetic and

environmental nature” and did not rise to the level of a

property interest within the meaning of the due process clause

of the Hawai‘i Constitution. 70 Haw. at 377, 773 P.2d at 261.

However, this court distinguished Sandy Beach in MECO,

which involved the Sierra Club’s assertion of its members’

constitutional right to a clean and healthful environment under

article XI, section 9 of the Hawai‘i Constitution. MECO, 141

Hawai‘i at 264-65, 408 P.3d at 16-17. This court noted that the

petitioners in Sandy Beach “did not identify any source granting

them a substantive legal right to enforcement of environmental

laws.” 141 Hawai‘i at 265, 408 P.3d at 17. In contrast, the

Sierra Club’s asserted right to a clean and healthful

environment was “not a freestanding interest in general

aesthetic and environmental values” or a “unilateral

expectation,” but a “right guaranteed by the Constitution and

statutes of this state.” 141 Hawai‘i at 264-65, 408 P.3d at 16-

17.

As in MECO, PPKAA did not merely assert unilateral

expectations of aesthetic and environmental values, but a

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protectable property interest in its constitutional right to a

clean and healthful environment under article XI, section 9 of

the Hawai‘i Constitution. Article XI, section 9 states that

“[e]ach person has the right to a clean and healthful

environment, as defined by laws relating to environmental

quality, including control of pollution and conservation,

protection and enhancement of natural resources.” This court

has held that article XI, section 9 is self-executing and that

the right to a clean and healthful environment is “defined by

existing law relating to environmental quality.” MECO, 141

Hawai‘i at 261, 408 P.3d at 13; see Cty. of Hawai‘i v. Ala Loop

Homeowners (Ala Loop), 123 Hawai‘i 391, 417, 235 P.3d 1103, 1129

(2010), abrogated on other grounds by Tax Found. v. State, 144

Hawai‘i 175, 439 P.3d 127 (2019).

HRS ch. 205A is a law “relating to environmental quality”

for the purposes of article XI, section 9. The stated purpose

of HRS ch. 205A is to “preserve, protect, and where possible, to

restore the natural resources of the coastal zone of Hawai[‘]i.”

HRS § 205A-21 (Supp. 1977). The provisions of HRS ch. 205A also

“expressly require consideration of issues relating to the

preservation or conservation of natural resources.” Ala Loop,

123 Hawai‘i at 410, 235 P.3d at 1122; see HRS § 205A-4 (Supp.

1989) (providing that agencies “shall give full consideration to

ecological, cultural, historic, esthetic, recreational, scenic,
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and open space values” in implementing the CZMA program); HRS

§ 205A-26 (Supp. 1994) (setting guidelines for the review of

developments proposed in special management areas); HRS § 205A-

28 (Supp. 1979) (prohibiting development in special management

areas without a permit).

Additionally, HRS § 607-25 (Supp. 1997), which authorizes

the recovery of attorney’s fees against private parties who

undertake development without the approvals required under

various laws, including chapter 205A, also “reflects the

legislature’s determination that chapter 205[A] is an

environmental quality law.”13 Ala Loop, 123 Hawai‘i at 410, 235

P.3d at 1122. As we recognized in Ala Loop, the legislative

purpose of HRS § 607-25 was to allow the award of attorney’s

fees in cases involving illegal development by private parties

“to improve the implementation of laws to protect health,

environmental quality, and natural resources[.]” Id. (quoting

1986 Haw. Sess. Laws Act 80, § 1 at 104-05) (emphasis added).

In enacting HRS § 607-25, the legislature recognized that HRS

ch. 205A “implements the guarantee of a clean and healthful

environment established by article XI, section 9.” Id.

13 HRS § 607-25(c) provides: “For purposes of this section, the permits or
approvals required by law shall include compliance with the requirements for
permits or approvals established by chapters . . . 205A[.]” (Emphasis
added.)

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Therefore, HRS ch. 205A is a “law relating to environmental

quality” for the purposes of article XI, section 9.

Having determined that PPKAA asserted a protected property

interest to a clean and healthful environment, we turn to

whether PPKAA’s right to procedural due process was violated.

Procedural due process “requires that parties be given a

meaningful opportunity to be heard. This implies the right to

submit evidence and argument on the issues.” Application of

Hawai‘i Elect. Light Co., 67 Haw. 425, 430, 690 P.2d 274, 278

(1984). However, “[d]ue process is not a fixed concept

requiring a specific procedural course in every situation,” and

“calls for such procedural protections as the particular

situation demands.” Sandy Beach, 70 Haw. at 378, 773 P.2d at

261 (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972))

(emphasis added). In determining the procedures required to

comply with constitutional due process, courts consider the

following factors: “(1) the private interest which will be

affected; (2) the risk of an erroneous deprivation of such

interest through the procedures actually used, and the probable

value, if any, of additional or alternative procedural

safeguards; and (3) the governmental interest, including the

burden that additional procedural safeguards would entail.” Id.

Here, the private interest was PPKAA’s constitutional right

to a clean and healthful environment. The risk of an erroneous

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deprivation of PPKAA’s interest was high absent PPKAA’s

participation in the contested case hearing because the Project

could have adverse and long-term environmental impacts to the

SMA. See MECO, 141 Hawai‘i at 266, 408 P.3d at 18. As the ICA

recognized, PPKAA raised concerns regarding the Project’s

potential impacts to the SMA, including loss of scenic and open

space resources, drainage and runoff impacts, and impacts on the

tsunami evacuation zone. PPKAA, mem. op. at 14-15. While PPKAA

members testified about the Project at the public hearing and

the hearing on its petition to intervene, they were not able to

submit evidence or cross-examine opposing witnesses, which the

Commission’s rules would have allowed them the opportunity to do

had their petition been granted.14 See MECO, 141 Hawai‘i at 269,

408 P.3d at 21. As adjacent landowners to the Project, PPKAA’s

members would likely bear the brunt of adverse impacts to the

SMA, and their knowledge of the area could have supplemented the

findings of the environmental assessment. Finally, as the

Commission was already required to consider the CZMA in making

its decision on Carr’s SMA use permit, it would not unduly

burdensome to allow PPKAA to participate in the contested case

hearing. 141 Hawai‘i at 266, 408 P.3d at 18.

14 The Commission’s rules provide for procedures where intervention is
granted and requires pre-hearing mediation, the appointment of a hearing
officer, and the opportunity for cross-examination, discovery, and the
submission of evidence. MPC §§ 12-201-53 (1993); 12-201-54 (1993); 12-201-60
(1993); 12-201-67 (1993); 12-201-69 (1993).

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Therefore, the ICA did not err in holding that PPKAA was

denied procedural due process under the circumstances and was

entitled to participate in a contested case hearing on Carr’s

SMA use permit application.

C. The Commission was required to find the Project was
consistent with the community plan pursuant to HRS § 205-
26(2)(C)

Carr argues the ICA erred in holding the Commission was

required to make findings on the Project’s consistency with the

community plan because Resolution 14-14 exempted the Project

from MCC ch. 2.80B to “permit the project to proceed without

obtaining a community plan amendment.” Carr further contends

that, under HRS § 201H-38, qualified housing projects “shall be

exempt” from all statutes relating to the development and

improvement of land, which would include HRS § 205A-26(2)(C).

HRS § 201H-38(a) states that, subject to certain

provisions:

The corporation may develop on behalf of the State or with
an eligible developer, or may assist under a government
assistance program in the development of, housing projects
that shall be exempt from all statutes, ordinances, charter
provisions, and rules of any government agency relating to
planning, zoning, construction standards for subdivisions,
development and improvement of land, and the construction
of dwelling units thereon[.]

(Emphasis added.)

The ICA held that, while Resolution 14-14 exempted the

Project from MCC ch. 2.80B, it did not relieve the Commission

from its duties under HRS § 205A-26(2)(C) to make findings on

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the Project’s consistency with the community plan. PPKAA, mem.

op. at 22. Under HRS § 205A-26(2)(C):

(2) No development shall be approved unless the authority
has first found:

. . .

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

(Emphasis added.)

We agree with the ICA that Resolution 14-14 did not exempt

the Project from HRS § 205A-26(2)(C) and that the Commission was

required to find that the Project was consistent with the West

Maui Community Plan. While HRS § 201H-38(a) states that

qualified housing projects “shall be exempt” from statutes and

ordinances related to the development and improvement of land,

these exemptions are contingent on the legislative body of the

county, in this case, the Council, approving the proposed

project “with or without modifications[.]” In this case,

Resolution 14-14 provided that the Project “shall comply with

all statutes, ordinances, charter provisions, and rules of

governmental agencies relating to planning, zoning and

construction standards for subdivisions, development and

improvement of land, and the construction of dwelling units

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thereon,” except for the attached specified exemptions.15

(Emphasis added.) Resolution 14-14 exempted the Project from

MCC ch. 2.80B, but it did not exempt the Project from HRS

§ 205A-26(2)(C).

However, even if Resolution 14-14 had included HRS § 205A-26(2)

among its listed exemptions, the Council would not have been

able to exempt the Project from HRS § 205A-26(2)’s requirements.

Although Carr argues that HRS § 205A-26(2)(C) is a law “relating

to the development and improvement of land” that may be exempted

under HRS § 201H-38, HRS ch. 201H does not define “relating to”

or provide guidance as to how broadly or narrowly to read that

phrase. The United States Supreme Court has recognized that the

words “relating to” are “broad and indeterminate,” and “extended

to the furthest stretch of their indeterminacy, stop nowhere.”

Mellouli v. Lynch, 575 U.S. 798, 811-12 (2015) (cleaned up).

“Context, therefore, may tug in favor of a narrower reading.”

Mellouli, 575 U.S. at 812. (cleaned up).

HRS ch. 205A is, viewed as a whole, an environmental law.

See HRS § 205A-21 (declaring that it is the state’s policy to

“preserve, protect, and where possible, to restore the natural

15 Carr acknowledges that HRS § 201H-38(a)’s use of the word “shall” is
qualified by subsections (1) through (4). HRS § 201H-38(a)(3) requires the
legislative body of the county in which the housing project is proposed to
approve the project “with or without modifications.” Carr also acknowledges
that Resolution 14-14 provided that the Project “shall comply” with all
statutes not specifically exempted.

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resources of the coastal zone of Hawai[‘]i.”); Morgan v. Planning

Dept., Cty. of Kauai, 104 Hawai‘i 173, 181, 86 P.3d 982, 990

(2004) (“The CZMA is a comprehensive State regulatory scheme to

protect the environment and resources of our shoreline areas.”)

(emphasis added). While “managing development” is also one of

the CZMA’s objectives, HRS § 205A-2 describes this objective as

“[i]mprov[ing] the development review process, communication,

and public participation in the management of coastal resources

and hazards.” To the extent the CZMA affects development, it is

“in order to preserve, protect, and, where possible, restore the

natural resources of Hawai‘i’s coastal zone,” not to “improve”

the land. Morgan, 104 Hawai‘i at 182, 86 P.3d at 991. We

therefore do not construe HRS ch. 205A as a law “relating to”

the development and improvement of land for the purposes of

exemptions under 201H-38.

Therefore, the Commission was required under HRS § 205A-

26(2)(C) to make findings on the Project’s consistency with the

West Maui Community Plan.

V. Conclusion

We therefore affirm the ICA’s October 13, 2020 judgment

vacating the circuit court’s June 19, 2015 findings of fact,

conclusions of law, and order denying appeal and final judgment,

and we remand to the Commission for further proceedings

consistent with this opinion.

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Lance D. Collins, /s/ Mark E. Recktenwald
for PPKAA
/s/ Paula A. Nakayama

Arisma A. Muller and /s/ Sabrina S. McKenna
Craig G. Nakamura,
for the Commission /s/ Michael D. Wilson

/s/ Todd W. Eddins
Moana M. Lutey,
Thomas W. Kolbe, and
Caleb P. Rowe,
for Carr

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