*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Electronically Filed
Supreme Court
SCAP-10-0000157
04-MAY-2012
08:48 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
DEPARTMENT OF ENVIRONMENTAL SERVICES,
CITY AND COUNTY OF HONOLULU,
Petitioner/Appellant-Appellant,
vs.
LAND USE COMMISSION, STATE OF HAWAI#I; COLLEEN HANABUSA;
MAILE SHIMABUKURO; and KO OLINA COMMUNITY ASSOCIATION,
Respondents/Appellees-Appellees.
NO. SCAP-10-0000157
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 09-1-2719-11))
MAY 4, 2012
RECKTENWALD, C.J., NAKAYAMA, ACOBA, DUFFY, AND MCKENNA, JJ.
OPINION OF THE COURT BY DUFFY, J.
Petitioner-Appellant Department of Environmental
Services, City and County of Honolulu (“DES” or “City”), appeals
from the October 19, 2010 final judgment of the Circuit Court of
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
the First Circuit1 (circuit court) in support of its
September 21, 2010 order, which affirmed Respondent-Appellee Land
Use Commission’s (“LUC”) October 22, 2009 “Order Adopting the
City and County of Honolulu Planning Commission’s Findings of
Fact, Conclusions of Law and Decision and Order With
Modifications” (LUC Order). We accepted DES’ appeal on August 1,
2011 as a mandatory transfer pursuant to Hawai#i Revised Statutes
(HRS) section 602-58(a)(1) (Supp. 2010), as this matter presents
a question of imperative public importance. Oral argument was
held on February 22, 2012.
This case arises from the 2008 application of DES for a
special use permit (County Special Use Permit File No. 2008/SUP-2
(SUP-2)) to expand the existing Waimanalo Gulch Sanitary Landfill
(WGSL). The LUC approved SUP-2 subject to, inter alia, a
condition prohibiting WGSL from accepting municipal solid waste
(or any other waste besides ash and residue from H-POWER) after
July 31, 2012. The validity of this condition (Condition 14) is
the sole issue raised by DES on appeal.
While we acknowledge the authority of the LUC to impose
restrictive conditions on its approval of special use permits, we
hold that Condition 14 is inconsistent with the evidence shown in
1
The Honorable Rhonda A. Nishimura presided.
2
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
the record and not supported by substantial evidence.
Accordingly, because the LUC’s approval of SUP-2 was expressly
given “subject to” the LUC’s imposition of Condition 14, a
condition which appears to be material to the LUC’s approval, we
vacate the circuit court’s judgment affirming the LUC’s approval
of SUP-2, and remand this matter to the circuit court with
instructions that the circuit court remand this matter to the LUC
for further proceedings consistent with this opinion.
I. BACKGROUND
A. DES’ Application To Expand WGSL
WGSL is located at Waimanalo Gulch, O#ahu, Hawai#i, Tax
Map Key Nos. (1) 9-2-03: 72 and 73, and consists of a total of
approximately 200 acres. The WGSL property is owned by the City
and County of Honolulu and is classified within the state
agricultural district. Since 1989, a portion of the WGSL
property has been used as a landfill. WGSL is the only public
landfill on Oahu permitted to receive municipal solid waste
(MSW),2 and the only permitted repository for the ash and residue
produced by the City’s H-POWER waste-to-energy facility.3 The
need for additional landfill space to accommodate the volume of,
2
Municipal solid waste (MSW) refers to “garbage.”
3
In addition to being permitted to accept MSW and ash and residue
from H-POWER, WGSL is also permitted to accept non-hazardous industrial waste,
which is defined as “special waste.”
3
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
inter alia, MSW, ash, and residue deposited at WGSL was the basis
of DES’ 2008 application for SUP-2.
The procedure for obtaining a special use permit (SUP)
for an area of land within an agricultural district greater than
15 acres is set forth in Chapter 205 of the HRS. Pursuant to HRS
section 205-64, an application for an SUP in the City and County
4
HRS section 205-6 states, in pertinent part:
(a) Subject to this section, the county planning commission
may permit certain unusual and reasonable uses within
agricultural and rural districts other than those for which
the district is classified. Any person who desires to use
the person's land within an agricultural or rural district
other than for an agricultural or rural use, as the case may
be, may petition the planning commission of the county
within which the person's land is located for permission to
use the person's land in the manner desired. . . .
. . .
(d) Special permits for land the area of which is greater
than fifteen acres or for lands designated as important
agricultural lands shall be subject to approval by the land
use commission. The land use commission may impose
additional restrictions as may be necessary or appropriate
in granting the approval, including the adherence to
representations made by the applicant.
(e) A copy of the decision, together with the complete
record of the proceeding before the county planning
commission on all special permit requests involving a land
area greater than fifteen acres or for lands designated as
important agricultural lands, shall be transmitted to the
land use commission within sixty days after the decision is
rendered.
Within forty-five days after receipt of the complete record
from the county planning commission, the land use commission
shall act to approve, approve with modification, or deny the
petition. A denial either by the county planning commission
or by the land use commission, or a modification by the land
use commission, as the case may be, of the desired use shall
be appealable to the circuit court of the circuit in which
the land is situated and shall be made pursuant to the
continue...
4
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
of Honolulu must first be approved by the Planning Commission of
the City and County of Honolulu (“Planning Commission”). HRS §
205-6(a)-(d) (Supp. 2008). Thereafter, LUC approval is required,
and the LUC may approve, approve with modification, or deny the
Planning Commission’s decision. See HRS § 205-6(d), (e) (Supp.
2008). In accordance with HRS section 205-6, DES applied for
SUP-2, seeking to expand the existing 107.5 acres of WGSL by
approximately 92.5 acres. The proposed SUP would thus allow DES
to utilize the entire 200-acre parcel of land as a landfill.
1. DES’ Application with the City Department of Planning
and Permitting
The portion of the WGSL property that operated as the
City’s landfill from 1989 to 2009 was subject to SUP File No.
86/SUP-5 (SUP-5). On December 3, 2008, DES filed an application
for SUP-2 (to supercede then-existing SUP-5), which sought the
92.5-acre expansion of WGSL. The proposed expansion included
approximately thirty-seven acres of new landfill cells, with the
remaining area dedicated to landfill-associated support
infrastructure. The City Department of Planning and Permitting
...continue
Hawaii rules of civil procedure.
HRS § 205-6(a), (d)-(e) (Supp. 2008) (emphasis added).
5
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
processed the application and recommended its approval to the
Planning Commission, subject to a number of conditions.
2. Proceedings before the Planning Commission
On April 16, 2009, Colleen Hanabusa, Maile Shimabukuro,
and Ko Olina Community Association (Intervenors-Appellees) filed
a petition to intervene before the Planning Commission. The
Planning Commission granted intervention on May 20, 2009.
The Planning Commission conducted a contested case
hearing on June 22, 2009, June 24, 2009, July 1, 2009, July 2,
2009, and July 8, 2009. On July 31, 2009, the Planning
Commission recommended approval of SUP-2 subject to ten
conditions. The Planning Commission further recommended approval
of the withdrawal of SUP-5 and the conditions therein, upon SUP-2
taking effect.
On August 4, 2009, the Planning Commission issued its
Findings of Fact, Conclusions of Law, and Decision and Order
(Planning Commission’s Decision and Order) (Exhibit “A”). The
findings of fact that are relevant to this appeal include the
following:
33. [Chief of the City Department of Environmental
Services, Refuse Division] Mr. Doyle testified that [DES]
will begin in 2010 efforts to identify and develop a new
landfill site to supplement WGSL.
34. Mr. Doyle also testified that it would take more than
seven years to identify and develop a new landfill site.
6
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
. . .
89. According to Joseph Whelan, as of March 16, 2009,
there was approximately 12 month [sic] of landfill airspace
capacity remaining in the municipal solid waste (“MSW”)
portion of the current SUP area, and approximately 24 months
of landfill airspace capacity remaining in the ash portion
of the current SUP area. See Tr. 6/24/09, 81:22-82:6, 83:1-
14.
90. On December 1, 2004, the City Council adopted
Resolution No. 04-349, CD1, FD1, which selected the Property
as the site for the City’s landfill. See Exhibit “A20.”
91. The proposed expansion of the landfill within the
Property is needed because WGSL is a critical part of the
City’s overall integrated solid waste management efforts.
92. Continued availability of WGSL is required as a permit
condition to operate H-POWER and to engage in interim
shipping of waste, for cleanup in the event of a natural
disaster, and because there is material that cannot be
combusted, recycled, reused, or shipped.
93. Therefore, a landfill is currently necessary for
proper solid waste management, the lack of which would
potentially create serious health and safety issues for the
residents of Oahu.
94. WGSL is the only permitted public [municipal solid
waste] facility on the island of Oahu and the only permitted
repository for the ash produced by H-POWER.
95. WGSL is a critical portion of the City’s overall
Integrated Solid Waste Management Plan (“ISWMP”), which
looks at all of the factors that make up solid waste
management, including reuse and recycling, the H-POWER
facility, and landfilling for material that cannot be
recycled or burned for energy. The ISWMP is required by
State law and approved by [the Department of Health] after
public comments. One theme of the ISWMP is to minimize
landfill disposal.
96. Currently, approximately 1.8 million tons of waste is
produced on Oahu per year. This does not include material
deposited at the PVT Landfill. Approximately, 340,000 tons
of MSW in 2006, and approximately 280,000 tons of MSW in
2008, were landfilled at WGSL. These amounts fluctuate
based on such things as recycling and the economy.
Approximately 170,000 to 180,000 tons of ash from the H-
POWER facility is deposited at WGSL each year.
97. Other items that cannot be recycled or burned at H-
POWER are deposited at WGSL, such as screenings and sludge
from sewage treatment plants, animal carcasses, tank bottom
7
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
sludge, contaminated food waste that cannot be recycled, and
contaminated soil that is below certain toxicity levels.
. . .
101. By 2012, when H-POWER’s third boiler is expected to be
operational, the City, through its various solid waste
management programs, expects to divert eighty (80) percent
of the waste stream, with the remaining twenty (20) percent
being landfilled at WGSL.
. . .
107. The project is consistent with the City’s general
plan. WGSL is an important public facility that will
provide a necessary facility to meet future population needs
and accommodate growth in the region; WGSL’s eventual
closure will allow the Property to be reclaimed for other
public uses; and WGSL is needed in the event of a natural
disaster. See Tr. 5/22/09, 71:8-25; 72:1-25; Exhibit “A1”
at pp. 8-25 through 8-28.
(Emphases added.) The Planning Commission’s relevant conclusions
of law include:
4. Based on the findings set forth above . . . [DES’]
request for a new State Special Use Permit (a) is not
contrary to the objectives sought to be accomplished by the
state land use law and regulations; (b) would not adversely
affect surrounding property as long as operated in
accordance with governmental approvals and requirements, and
mitigation measures are implemented in accordance with
[DES’] representations as documented in the 2008 FEIS; and
(c) would not unreasonably burden public agencies to provide
roads and streets, sewers, water, drainage and school
improvements, or police and fire protection. The Planning
Commission further concludes that the same unusual
conditions, trends, and needs that existed at the time the
original Special Use Permit was granted continue to exist
and that the land on which WGSL is located continues to be
unsuited for agricultural purposes.
5. The Planning Commission concludes that the Applicant
has met its burden of proof with respect to the provisions
set forth in Section 2-45 of the RPC.
The Planning Commission’s Decision and Order approved
SUP-2 for the proposed expansion of WGSL, and permitted DES’ use
8
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
of the landfill “until capacity as allowed by the State
Department of Health is reached[:]”
Pursuant to the foregoing Findings of Fact and Conclusions
of Law, it is the Decision and Order of the Planning
Commission to DENY Intervenors’ Motion to Dismiss
Application. It is the further Decision and Order of the
Planning Commission to APPROVE Applicant’s Special Use
Permit Application File No. 2008/SUP-2 (“2008/SUP-2”), for a
new SUP for the existing and proposed expansion of WGSL,
located at Tax Map Key Nos. 9-2-3: Parcels 72 and 73,
totaling approximately 200.622 acres, until capacity as
allowed by the State Department of Health is reached,
subject to the following conditions . . . .
(Emphasis added.) The conditions required DES, inter alia, to:
(1) identify and develop with reasonable diligence -- on or
before November 1, 2010 -- one or more new landfill sites to
either replace or supplement WGSL and, upon selection, provide
written notice to the Planning Commission for determination of
whether SUP-2 should be modified or revoked; and (2) continue to
use alternative waste disposal technologies in its effort to
reduce the City’s dependence on WGSL.
Significantly, the Planning Commission’s Decision and
Order did not designate a date on which SUP-2 would expire, nor a
deadline for WGSL’s acceptance of MSW. In fact, the author of
the Planning Commission’s Decision and Order, Commissioner Kerry
Komatsubara (Commissioner Komatsubara), explained why a time
limit on SUP-2 was not effective or desirable:
In my opinion, simply putting on a new closure date to [SUP-
2] will not lead to the closure of [WGSL]. I believe that
the focus should not be on picking a date. The focus should
9
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
be on how do we get the City to select a new site because
you’re not going to close this landfill until you find
another site. I don’t think it’s in the interest of our
community not to have a landfill.
. . .
So what this proposal does is, it says look, [DES] can keep
[WGSL] open until [it’s] full, until you’ve reached the
capacity, but you have an obligation starting from next year
[2010] to start looking for a new site. Now whether you
take it seriously or not, that’s up to you because we have
the power to call you in, and you have the obligation now to
report every year on what you’re doing to find a new
landfill site whether it be a replacement site or
supplemental site or both. We have the right to hold a
hearing at any time we feel that you are not . . . in good
faith moving forward with reasonable diligence to find a new
site.
. . .
I think going down the old path of just putting a [closure] date
in there has not worked. We put it down three or four times
before and every time we came to that date, it was extended
further and further...I’d rather not say it’s a certain date only
to know that when we reach that date we’re going to extend it
further until we find the new site. I’d rather focus on an effort
to find a new site and have [DES] come in every year and explain
to us where you are in your effort to find a new site. That’s
what this proposal does.
Commissioner Komatsubara reiterated that “[t]he term or the
length of [SUP-2] shall be until the Waimanalo Gulch landfill
reaches its capacity as compared to a definite time period of “X”
number of years.” (Emphasis added.)
3. LUC proceedings
In accordance with HRS section 205-6(e), the complete
record of proceedings before the Planning Commission was
transmitted to the LUC on August 20, 2009. After reviewing DES’
application and the Planning Commission Record, and receiving
10
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
additional oral and written testimony on September 24, 2009,
Commissioner Reuben Wong (Commissioner Wong) made the following
motion:
I’d like to move that the special use permit application
before us be granted with . . . a number of conditions such
as that all of the conditions that were set forth in [SUP-5]
be incorporated.
That is to say, for example, conditions dealing with
blasting, hours of operations, building a berm -- and I
believe there are 19 of them, that we ultimately ended up
with 19; subject also to the condition that solid waste be
allowed at [WGSL] but only up to July 31, 2012.
Let me comment momentarily. I think the record indicates
that the third [H-POWER] burner would be built by around the
end of 2011 but fully operational by July 31, 2012.
Another condition would be that after July 31, 2012 only ash
and residue from the [H-POWER facility] be allowed to be
placed on [WGSL]. To make that clear, what we’re saying is
that no more municipal waste, no rubbish, trash, that sort
of thing, save and except the ash and residue that may come
from the [H-POWER] plant.
Another condition is that the City Administration is a party
in this case and the city council through the City
Administration be required to report to the public every
three months what the city council is doing with respect to
the continued use of [WGSL].
Those reports shall also include what funding arrangements
are being considered by the city council and the City
Administration to fulfill whatever position they plan to
report on.
. . .
Another condition is that in reporting to the public that
the city council and the Administration every three months
would have a public hearing to report to the public the
status of the attempt to either reduce or continue use of
[WGSL] so that it’s not only publication through the media
but there will be public hearings so that people can attend
and the officials can face the public and tell them face-to-
face, ‘This is what we are going to do.’
So that, Mr. Chairman, is my motion. I know it’s lengthy
but hopefully with the second I can have further discussion.
11
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
(Emphases added.) The LUC commissioners adopted the above motion
by a five to three vote.
On October 22, 2009, the LUC issued its written Order
adopting the Planning Commission’s “Findings of Fact, Conclusions
of Law, and Decision and Order” as its own findings, conclusions,
decision and order (LUC Order) (Exhibit “B”). Significantly, the
LUC Order approved DES’ Application subject to certain express
conditions, including Condition 14:5
The LUC, upon consideration of the Planning Commission’s
Findings of Fact, Conclusions of Law, And Decision And
Order, the oral arguments of the parties and the record and
files herein, and good cause existing and upon motion duly
passed by the LUC,
HEREBY ORDERS that the LUC shall adopt the
Planning Commission’s Findings of Fact,
Conclusions of Law, And Decision And Order
subject to the following conditions . . . .
. . .
14. Municipal solid waste shall be allowed at the WGSL up
to July 31, 2012, provided that only ash and residue from H-
POWER shall be allowed at the WGSL after July 31, 2012.
(Emphases added.)
On October 29, 2009, DES filed a motion for
reconsideration requesting, inter alia, a modification of
Condition 14. DES filed its notice of appeal with the circuit
5
The LUC’s approval of DES’ Application was also made subject to:
(1) the withdrawal of SUP-5, provided that the existing conditions shall be
incorporated in SUP-2 to the extent that they are consistent with the LUC
Order and not duplicative of any of its conditions; and (2) the conditions as
recommended by the Planning Commission.
12
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
court on November 19, 2009, and the LUC denied the motion for
reconsideration on December 1, 2009.
B. Circuit Court Proceedings
DES timely appealed the LUC Order pursuant to HRS
section 205-6(e), and HRS section 91-14.6 On March 1, 2010, DES
filed its opening brief with the circuit court and argued that
Condition 14 was “Arbitrary and Capricious, Characterized by
Abuse of Discretion, and a Clearly Unwarranted Exercise of
Discretion”7 because the record before the Planning Commission,
on which the LUC relied, established that there will always be
waste material that cannot be combusted, recycled, reused or
shipped. Therefore, DES argued, an option to dispose of MSW at
WGSL will continue to be necessary beyond the July 31, 2012
deadline as imposed in Condition 14.
6
HRS section 91-14 states, in pertinent part:
(a) Any person aggrieved by a final decision and order in a
contested case . . . is entitled to judicial review thereof
under this chapter[.]
(b) [P]roceedings for review shall be instituted in the
circuit court . . . within thirty days after service of a
certified copy of the final decision and order of the
agency[.]
HRS § 91-14(a)-(b) (1993).
7
HRS section 91-14(g)(6) authorizes the circuit court to modify an
agency decision if it is “arbitrary, or capricious, or characterized by abuse
of discretion or clearly unwarranted exercise of discretion.” HRS § 91-
14(g)(6) (1993).
13
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Intervenors-Appellees filed their answering brief on
April 8, 2010, and argued that the imposition of Condition 14 was
within the LUC’s discretion. Thereafter, the LUC filed its
answering brief on April 12, 2010, and argued that (1) DES did
not have standing to appeal because it was not an “aggrieved”
party, and (2) DES was not precluded from requesting an extension
of the July 31, 2012 closure deadline at a later time. Moreover,
the LUC argued, Condition 14 was reasonable and supported by the
record.
DES filed its reply on April 22, 2010, and argued that
pursuant to HRS section 205-6(e), it had standing to appeal the
LUC’s decision: “[A] modification by the land use commission as
the case may be, of the desired use shall be appealable to the
circuit court of the circuit in which the land is situated . . .
.”8 See HRS § 205-6(e) (Supp. 2008) (emphases added). In
addition, DES argued that both the LUC and Intervenors-Appellees
failed to rebut the assertion that Condition 14 is arbitrary and
a clearly unwarranted exercise of discretion.
8
See also Hawai#i Administrative Rules (HAR) section 15-15-96(c),
which reads: “A denial or modification of the special permit, as the case may
be, of the desired use shall be appealable to the circuit court of the circuit
in which the land is situated and shall be made pursuant to the Hawaii rules
of civil procedure.” HAR § 15-15-96(C).
14
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
DES’ appeal was heard on July 14, 2010, and by an order
dated September 21, 2010, the circuit court: (1) determined that
DES was “aggrieved” within the meaning of HRS section 91-14(a);
and (2) affirmed Condition 14. Final judgment was entered on
October 19, 2010, and the Notice of Entry of Judgment was filed
on October 21, 2010.
C. The Instant Appeal
DES filed its notice of appeal with the ICA on November
12, 2010. Intervenors-Appellees did not appeal the circuit
court’s ruling. This appeal was fully briefed before the ICA
when DES filed its timely application for transfer with this
court on July 14, 2011. We granted this application for transfer
on August 1, 2011.
In its Opening Brief, DES argues that the circuit court
erred in affirming the LUC’s July 31, 2012 deadline for the
acceptance of MSW at WGSL. As stated earlier herein, the
validity of Condition 14 is the sole issue raised on appeal.9
DES reiterates its position that the imposition of Condition 14
is arbitrary in light of the record and findings adopted by the
9
DES also contends that Condition 14 could not be interpreted as a
mere “permissive advisory condition” as it believed the LUC to have argued.
It appears, however, that DES misinterpreted the LUC’s argument because in its
answering brief, the LUC clarified that it was referring to Conditions 15 and
16 as permissive advisory conditions, not Condition 14. Conditions 15 and 16
are not at issue in the present appeal.
15
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
LUC, which clearly demonstrated the continuing need to dispose
of, inter alia, MSW at WGSL beyond July 31, 2011. Moreover, DES
argues, no other landfill site will be available by July 31, 2012
as both the record before the Planning Commission and the
findings adopted by the LUC established that it will take more
than seven years to identify and develop a new landfill site to
either replace or supplement WGSL. DES requests that this court
strike “the July 31, 2012[] deadline to accept MSW at WGSL,
contained in Condition 14 of the [LUC Order], and permit the
disposal of MSW at WGSL until that site reaches capacity as set
forth by the [Planning Commission’s Order].”
In its Answering Brief the LUC argues that (1) DES
lacks standing to appeal as an injured and “aggrieved party”
because Condition 14 will not take effect until July 31, 2012,10
(2) DES is not precluded from requesting relief from Condition 14
in the future, and (3) DES has not been burdened with a threat of
sanction for failure to comply with Condition 14. The LUC
additionally argues that Condition 14 is supported by substantial
evidence in the record as a whole.
10
As stated earlier herein, the circuit court determined that DES
had standing to appeal the LUC Order as an “aggrieved” party within the
meaning of HRS section 91-14(a). Neither the LUC nor the Intervenors-
Appellees appealed the circuit court’s judgment.
16
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
In their answering brief, Intervenors-Appellees
primarily argue that HRS section 205-6(d) authorizes the LUC to
impose conditions on SUPs, and that the LUC’s imposition of
Condition 14 was not an abuse of discretion. support of their
argument that the closure date of WGSL for MSW is reasonable, and
that DES was previously given notice that a closure date would
eventually be imposed, Intervenors-Appellees emphasize prior
commitments made by previous City administration officials in
2003 that WGSL would close by 2008. They further argue that DES
should be judicially estopped from taking contrary positions
under oath regarding the closure of WGSL.
In its reply brief to the LUC’s answering brief, DES
maintains that it is entitled to appeal Condition 14 of the LUC
Order because the July 31, 2012 deadline prohibiting WGSL from
accepting MSW caused it to suffer threatened, if not actual,
injury. In response to Intervenors-Appellees’ answering brief,
DES argues that judicial estoppel does not apply to this case
because the City’s 2003 position that WGSL would close by May 1,
2008 was overridden by the Honolulu City Council’s December 1,
2004 designation of WGSL as Oahu’s municipal landfill after May
1, 2008. DES argues that both the LUC and Intervenors-Appellees
failed to rebut the assertion that Condition 14 is arbitrary and
17
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
capricious. In each reply brief, DES emphasizes that Condition
14 is unsupported in the record.
III. STANDARDS OF REVIEW
A. Secondary Appeal
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)
. . . 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) (citations omitted).
B. Substantial Evidence
This court has defined substantial evidence as
“credible evidence which is of sufficient quality and probative
value to enable a person of reasonable caution to support a
conclusion.” In Re Water Use Permit Applications, 94 Hawai#i 97,
119, 9 P.3d 409, 431 (2000).
C. Judicial Review of Contested Cases
HRS section 91-14(g) (1993) provides that “[u]pon
review of the record the court may affirm the decision of the
agency or remand the case with instructions for further
proceedings . . . .” Id. (emphases added).
18
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
IV. DISCUSSION
A. Although The LUC Has Authority To Impose Restrictive
Conditions In Its Approval of SUPs, The Conditions Must Be
Supported By Substantial Evidence.
HRS section 205-6 governs the LUC’s authority to impose
restrictive conditions in its approval of SUPs and provides that:
Special permits for land the area of which is greater than
fifteen acres or for lands designated as important
agricultural lands shall be subject to approval by the land
use commission. The land use commission may impose
additional restrictions as may be necessary or appropriate
in granting the approval, including the adherence to
representations made by the applicant.
HRS § 205-6(d) (Supp. 2008) (emphasis added). The statute
unambiguously authorizes the LUC to impose additional
restrictions in its approval of SUPs.11 Id. (emphasis added);
see also State v. Kahawai, 103 Hawai#i 462, 465, 83 P.3d 725, 728
(2004) (“The term ‘may’ is generally construed to render
11
The legislative history of HRS section 205-6 provides further
support that the Hawai‘i Legislature intended the LUC to have such authority:
the 1970 Legislature declared that the purpose of HRS section 205-6, which
governs special permits, was, inter alia, “to authorize the land use
commission to impose additional restrictions on special permits which allow
unusual and reasonable uses on land within the agricultural and rural
districts.” H. Conf. Comm. Rep. No. 15, in 1970 House Journal, at 1231
(emphasis added); see also S. Stand. Comm. Rep. No. 90-70, in 1970 Senate
Journal, at 1052 (“The purpose of this bill is to give the Land Use Commission
explicit statutory authority to impose restrictions as may be necessary or
appropriate on special permits applied for pursuant to Section 205-6, Hawaii
Revised Statutes.) (emphasis added); see also S. Stand. Comm. Rep. No. 242-70,
in 1970 Senate Journal, at 1123 (“The purpose of this bill is to provide the
Land Use Commission the authority to impose protective restrictions on special
permits which allow unusual and reasonable uses of land within the
Agricultural and Rural Districts.) (emphasis added); see also H. Stand. Comm.
Rep. No. 708-70, in 1970 House Journal, at 1142 (“The purpose of this bill is
to authorize the Land Use Commission to impose additional restrictions, as may
be necessary or appropriate, in granting approval on special permits[.]”)
(emphasis added).
19
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
optional, permissive, or discretionary the provision in which it
is embodied; that is so at least when there is nothing in the
wording, sense, or policy of the provision demanding an unusual
interpretation.”) (Quoting State ex rel. City of Niles v.
Bernard, 53 Ohio St.2d 31, 372 N.E.2d 339, 341 (1978)).
While the LUC is authorized to impose restrictive
conditions in its approval of SUPs, its decision to impose such a
restriction must be supported by substantial evidence in the
record. See Kinkaid v. Bd. of Review of City & County of
Honolulu, 106 Hawai#i 318, 325, 104 P.3d 905, 912 (2004)
(recognizing that courts are authorized to set aside
administrative action that is without evidentiary support). If
the LUC’s decision to impose Condition 14 was unsupported by
substantial evidence in the record in this case, we may “remand
the case with instructions for further proceedings[.]” Save
Diamond Head Waters, 121 Hawai#i at 24, 211 P.3d at 82; see also
HRS § 91-14(g) (1993).
Although we have not infrequently discussed HRS section
91-14(g) in the context of determining the standard of review
applicable to a decision or order of an administrative agency,
the specific issue raised in this case is one of first
impression: whether a restrictive condition (Condition 14)
20
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
imposed by decision or order of the agency (LUC) is supported by
substantial evidence.
In the absence of such authority, this court may turn
to the Administrative Procedure Act, 5 U.S.C. section 706, (the
federal analog to HRS Chapter 91) for guidance. See e.g., Doe
Parents No. 1 v. State Dep’t of Educ., 100 Hawai#i 34, 59-60, 58
P.3d 545, 570-71 (2002). 5 U.S.C. section 706 states, in
relevant part:
The reviewing court shall--
. . .
(2) hold unlawful and set aside agency action, findings, and
conclusions found to be--
(E) unsupported by substantial evidence[.]
5 U.S.C. § 706(2)(E) (emphases added). While not definitive,
federal caselaw discussing 5 U.S.C. section 706(2)(E) is helpful.
In Bustamante v. Massanari, 262 F.3d 949 (9th Cir.
2001), the Ninth Circuit Court of Appeals reversed and remanded
an agency’s decision that was not supported by substantial
evidence. Bustamante involved the denial of a claimant’s
application for disability benefits and supplemental security
income. Id. at 951. There, the claimant was entitled to receive
benefits as long as his impairment was categorized as “severe,”
meaning that it “limited his ability to do basic work.” Id. at
955. The evidence in the record revealed that the claimant
21
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
suffered from a personality disorder and a substance abuse
addiction disorder, which resulted in moderate difficulties with
activities of daily living, marked difficulties in maintaining
social function, and deficiencies in concentration. Id. at 951.
Nevertheless, the Administrative Law Judge (ALJ) determined that
the claimant’s mental impairments were not “severe,” and thus,
did not form the basis for disability eligibility. Id. at 952.
The United States District Court for the Northern District of
California affirmed the Social Security Administration’s
affirmation of the ALJ’s decision, and in a one-line order stated
that, “[the ALJ’s] decision is supported by substantial
evidence.” Id.
The Ninth Circuit set aside the denial of disability
benefits because the ALJ’s decision was not supported by the
evidence in the record as a whole. Id. at 956. The Court
defined substantial evidence as “more than a mere scintilla but
less than a preponderance.” Id. at 953; see also Mayes v.
Massanari, 276 F.3d 453, 459 (9th Cir. 2001) (“When the evidence
can rationally be interpreted in more than one way, the court
must uphold the [agency’s] decision.”) (citations omitted). The
Ninth Circuit concluded that the evidence in the record
overwhelmingly supported that the claimant suffered from a severe
mental impairment: (1) every psychiatrist or psychologist (four
22
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
total) who examined the claimant found significant mental
problems; and (2) the claimant suffered from personality and
substance abuse addiction disorders that resulted in “moderate
difficulties with activities of daily living, marked difficulties
in maintaining social function, and . . . deficiencies in
concentration, persistence or pace.” Bustamante, 262 F.3d at
956. In light of such evidence, the ALJ’s conclusion that the
claimant was capable of performing basic work activities and
thus, did not suffer from a severe mental illness, was not
supported by substantial evidence. Id.
Sousa v. Callahan, 143 F.3d 1240 (9th Cir. 1998), which
involved the denial of a claim for disability insurance, is
similarly instructive. There, the United States District Court
for the Eastern District of California affirmed the Appeals
Council’s determination that the claimant was not disabled during
the relevant time period. Id. at 1242.
The Ninth Circuit Court of Appeals reversed and
remanded the case because substantial evidence did not support
the Appeals Council’s decision that the claimant was not
disabled. Id. at 1243. Specifically, the Ninth Circuit
concluded that the Appeals Council’s determination was based on
the “improper rejection of lay testimony[,]” which otherwise
revealed that the claimant was “unable to cope with everyday
23
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
living[,]” and that she struggled to take care of personal needs.
Id. at 1243. Based largely upon such testimony, Dr. Richard
Lundeen (Dr. Lundeen) ultimately concluded that “there [was]
sufficient medical and lay evidence to establish with reasonable
medical certainty that [the claimant] was, [at the relevant time
period], suffering from [an] identifiable mental health disorder
. . . [resulting in] a marked impairment of [the claimant’s]
psychological, social, and occupational functioning.” Id. at
1244. Nevertheless, the Appeals Council rejected Dr. Lundeen’s
opinion because his assessment was dependent on the lay testimony
it had rejected. Id.
The Ninth Circuit noted that but for the improper
rejection of such lay testimony, the validity of Dr. Lundeen’s
opinion would not have been questioned. Without considering such
relevant testimony, the Court held that the Appeals Council’s
determination was not supported by substantial evidence. Id. at
1244-45.
B. Our Analysis Of This Case
Having reviewed the applicable law on the LUC’s
authority to impose restrictive conditions in its approval of
SUPs, we now turn to review the facts of this case in order to
resolve the sole issue before us: whether the imposition of
24
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Condition 14 by the LUC was supported by substantial evidence in
the record as a whole. Bustamante, 262 F.3d at 953.
1. Planning Commission’s Findings of Fact, Conclusions of
Law, and Decision and Order
The proceedings before the Planning Commission are
discussed earlier in the Background section of this opinion.
Following a contested case hearing over a period of days, the
Planning Commission issued its Findings of Fact, Conclusions of
Law, and Decision and Order on August 4, 2009. The findings of
fact that are relevant to this appeal include the following:
33. [Chief of the City Department of Environmental
Services, Refuse Division] Mr. Doyle testified that [DES]
will begin in 2010 efforts to identify and develop a new
landfill site to supplement WGSL.
34. Mr. Doyle also testified that it would take more than
seven years to identify and develop a new landfill site. [12]
. . .
89. According to Joseph Whelan, as of March 16, 2009,
there was approximately 12 month [sic] of landfill airspace
capacity remaining in the municipal solid waste (“MSW”)
portion of the current SUP area, and approximately 24 months
of landfill airspace capacity remaining in the ash portion
of the current SUP area. See Tr. 6/24/09, 81:22-82:6, 83:1-
14.
90. On December 1, 2004, the City Council adopted
Resolution No. 04-349, CD1, FD1, which selected the Property
as the site for the City’s landfill. See Exhibit “A20.”
12
We note that this is not an actual finding of fact, but a
recitation of the testimony of a witness. “Recitation of testimony is not [a]
finding of [fact].” In re Doe, 96 Hawai#i 255, 259, 30 P.3d 269, 273 (App.
2001). In context of the findings of fact and conclusions of law, however, it
is clear that this was intended to be a finding. We encourage courts and
factfinding tribunals to properly state their findings, however, and not
merely recite testimony.
25
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
91. The proposed expansion of the landfill within the
Property is needed because WGSL is a critical part of the
City’s overall integrated solid waste management efforts.
92. Continued availability of WGSL is required as a permit
condition to operate H-POWER and to engage in interim
shipping of waste, for cleanup in the event of a natural
disaster, and because there is material that cannot be
combusted, recycled, reused, or shipped.
93. Therefore, a landfill is currently necessary for
proper solid waste management, the lack of which would
potentially create serious health and safety issues for the
residents of Oahu.
94. WGSL is the only permitted public [municipal solid
waste] facility on the island of Oahu and the only permitted
repository for the ash produced by H-POWER.
95. WGSL is a critical portion of the City’s overall
Integrated Solid Waste Management Plan (“ISWMP”), which
looks at all of the factors that make up solid waste
management, including reuse and recycling, the H-POWER
facility, and landfilling for material that cannot be
recycled or burned for energy. The ISWMP is required by
State law and approved by [the Department of Health] after
public comments. One theme of the ISWMP is to minimize
landfill disposal.
96. Currently, approximately 1.8 million tons of waste is
produced on Oahu per year. This does not include material
deposited at the PVT Landfill. Approximately, 340,000 tons
of MSW in 2006, and approximately 280,000 tons of MSW in
2008, were landfilled at WGSL. These amounts fluctuate
based on such things as recycling and the economy.
Approximately 170,000 to 180,000 tons of ash from the H-
POWER facility is deposited at WGSL each year.
97. Other items that cannot be recycled or burned at H-
POWER are deposited at WGSL, such as screenings and sludge
from sewage treatment plants, animal carcasses, tank bottom
sludge, contaminated food waste that cannot be recycled, and
contaminated soil that is below certain toxicity levels.
. . .
101. By 2012, when H-POWER’s third boiler is expected to be
operational, the City, through its various solid waste
management programs, expects to divert eighty (80) percent
of the waste stream, with the remaining twenty (20) percent
being landfilled at WGSL.
. . .
26
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
107. The project is consistent with the City’s general
plan. WGSL is an important public facility that will
provide a necessary facility to meet future population needs
and accommodate growth in the region; WGSL’s eventual
closure will allow the Property to be reclaimed for other
public uses; and WGSL is needed in the event of a natural
disaster. See Tr. 5/22/09, 71:8-25; 72:1-25; Exhibit “A1”
at pp. 8-25 through 8-28.
(Emphases added.) The Planning Commission’s conclusions of law
included the following:
4. Based on the findings set forth above . . . [DES’]
request for a new State Special Use Permit (a) is not
contrary to the objectives sought to be accomplished by the
state land use law and regulations; (b) would not adversely
affect surrounding property as long as operated in
accordance with governmental approvals and requirements, and
mitigation measures are implemented in accordance with
[DES’] representations as documented in the 2008 FEIS; and
(c) would not unreasonably burden public agencies to provide
roads and streets, sewers, water, drainage and school
improvements, or police and fire protection.
5. The Planning Commission concludes that the Applicant
has met its burden of proof with respect to the provisions
set forth in Section 2-45 of the RPC.
The Planning Commission’s Decision and Order approved
SUP-2 for the proposed expansion of WGSL, and permitted DES’ use
of the landfill “until capacity as allowed by the State
Department of Health is reached.” Significantly, the Planning
Commission’s Decision and Order did not designate a date on which
SUP-2 would expire, nor a deadline for WGSL’s acceptance of MSW.
To the contrary, the Planning Commission’s Decision and Order
specifically found, inter alia, that it would take more than
seven years to identify and develop a new landfill site. Indeed,
it would be difficult to reconcile the foregoing findings and
27
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
conclusions with a closure date of WGSL to accept MSW prior to
the identification and development of a landfill to either
replace or supplement WGSL.13
13
The testimony of Frank Doyle, DES’ then Chief of Refuse, was
illustrative of the time-frame it will take for identifying and developing a
new landfill site:
Q. I guess my question is, how long does it take for the
whole process, identification of a new site, blue ribbon
commission hearing, [Environmental Impact Statements], site
selection, hiring the contractors, going through the
procurement process, going through the protest process,
building, construction and opening the doors, how long does
it take?
. . .
And the reason why I ask it that way, I want to make sure no
one has the impression that, in two years, we’re going to
have a new landfill --
[Mr. Doyle]. No, no, absolutely not. We are looking at
seven-plus [years].
Q. How long did it take the last time, for the first time
on [WGSL]?
. . .
I think it was in 1982 that the city determined the need for
a new leeward area sanitary landfill. So, from 1982 -- and
I thought you testified earlier that the Waimanalo Gulch
opened its doors in 1989.
[Mr. Doyle]. Correct.
Q. So if it took seven years back in the 1980’s, how long
is it going to take today?
[Mr. Doyle]. Well, I said seven [years] twice.
Q. Okay, so your best guess is, what? Ten? Or will you
stick to seven-plus?
[Mr. Doyle]. I will have to stick to seven-plus
[years], because we always try to do it as quickly as we
can.
continue...
28
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
2. Land Use Commission Order Adopting the City and County
of Honolulu Planning Commission’s Findings of Fact,
Conclusions of Law, and Decision and Order With
Modifications
The proceedings before the LUC are discussed earlier in
the Background section of this opinion. Following receipt of the
Planning Commission’s Findings of Fact, Conclusions of Law, and
Decision and Order, and the record of the proceedings before the
Planning Commission, the LUC held a meeting in which it received
additional oral and written testimony. Testimony was presented
both in favor of and in opposition to the Application of DES; as
in the Planning Commission, the testimony in opposition focused
on the broken promises of past City administrations to identify
and develop an alternative landfill site, the cultural
significance of the WGSL site, and the deleterious effect of
operating a landfill on the site.
At the meeting, Commissioner Wong made a motion to
accept DES’ Application, subject to the conditions imposed by the
Planning Commission, but adding an additional restrictive
condition: after July 31, 2012, only ash and residue from the H-
POWER facility would be allowed to be deposited in WGSL.
...continue
(Emphases added.) Notably, the minimum time frame of “seven-plus” years for
identifying and developing a new landfill site was incorporated into the
Planning Commission’s findings, which the LUC adopted, as will be discussed
later herein.
29
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Commissioner Wong reiterated, “[t]o make that clear, what we’re
saying is that no more municipal rubbish, trash, that sort of
thing, save and except the ash and residue that may come from the
[H-POWER] plant.” The Commissioners approved Wong’s motion by a
five to three vote.
On October 22, 2009, the LUC issued an Order Adopting
the City and County of Honolulu Planning Commission’s Findings of
Fact, Conclusions of Law, and Decision and Order With
Modifications. Significantly, and as discussed earlier herein,
the LUC’s approval of SUP-2 was expressly given “subject to” the
LUC’s imposition of several conditions:
The LUC, upon consideration of the Planning Commission’s
Findings of Fact, Conclusions of Law, And Decision And
Order, the oral arguments of the parties and the record and
files herein, and good cause existing and upon motion duly
passed by the LUC,
HEREBY ORDERS that the LUC shall adopt the
Planning Commission’s Findings of Fact,
Conclusions of Law, And Decision And Order,
subject to the following conditions . . . .
(Emphasis added.)
The validity of Condition 14 is the sole issue in this
case. Condition 14 imposed the following restriction:
14. Municipal solid waste shall be allowed at the WGSL up
to July 31, 2012, provided that only ash and residue from H-
POWER shall be allowed at the WGSL after July 31, 2012.
(Emphases added.)
30
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
3. The LUC’s action in imposing Condition 14 is
inconsistent with the evidence shown in the record and
not supported by substantial evidence
LUC Condition 14 is not supported by substantial
evidence in the record, including the Planning Commission’s
Findings of Fact, Conclusions of Law, and Decision and Order,
which were adopted by the LUC in its Order Adopting the City and
County of Honolulu Planning Commission’s Findings of Fact,
Conclusions of Law, and Decision and Order With Modifications
filed October 22, 2009.
Stated simply, the above-quoted Findings of Fact,
Conclusions of Law, and Decision and Order by the Planning
Commission, all expressly adopted by the LUC, do not support the
restriction in Condition 14 imposing a termination date of July
31, 2012 for the deposit of MSW at WGSL. To the contrary, the
Planning Commission’s Findings of Fact clearly demonstrate the
continuing need to dispose of municipal solid waste at WGSL
beyond July 31, 2012. For example, the Planning Commission
acknowledged Mr. Doyle’s testimony that “it would take more than
seven years to identify and develop a new landfill site.” The
Planning Commission also found that “a landfill is currently
necessary for proper solid waste management,” and that “WGSL is
the only permitted public MSW facility on the island of Oahu[.]”
Moreover, the Planning Commission’s Decision and Order expressly
31
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
provides that MSW may be deposited at WGSL’s expanded site “until
capacity as allowed by the State Department of Health is
reached.”
Here, as in Bustamante and Sousa, the evidence in the
record as a whole does not support, much less constitute
“substantial evidence” for the imposition of Condition 14. Thus,
Condition 14 cannot stand. See Bustamante, 262 F.3d at 956; see
also Sousa 143 F.3d at 1244-45; see also In re Water Use Permit
Applications, 94 Hawai#i at 119, 9 P.3d at 431.
C. Remand To The LUC For Further Proceedings Is Necessary.
The LUC’s approval of SUP-2 was given “subject to” the
LUC’s imposition of several conditions, including Condition 14.
Based upon all of the evidence in the record, it would appear
that Condition 14 was a material condition to the LUC’s approval.
Having held that Condition 14 cannot stand because it is
inconsistent with the evidence shown in the record and not
supported by substantial evidence, the LUC’s approval of SUP-2
also cannot stand because Condition 14 was a material condition
to the LUC’s approval. Consequently, this matter must be
remanded to the LUC for further hearings as the LUC deems
appropriate.
32
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
While we have not found a case directly on point in our
jurisdiction,14 caselaw from other jurisdictions support remand
to an agency in circumstances where agency action is not
supported by substantial evidence. In United Jewish Ctr. v. Town
of Brookfield, 827 A.2d 11 (Conn. App. Ct. 2003), a property
owner’s application to build on and around his property was
denied by the town’s wetlands commission (Commission). Id. at
13-14. The property owner sought judicial review of the
Commission’s denial of his application, and the trial court found
that there was no evidence to support the Commission’s decision.
Id. at 14. In turn, the trial court remanded the case to the
Commission with instructions to issue a permit to allow the
property owner to build on and around his property. Id. at 14-
15.
On appeal, the Commission argued, inter alia, that the
trial court improperly directed it to issue the requested permit.
14
While Lanai Co., Inc. v. Land Use Comm’n, 105 Hawai#i 296, 97 P.3d
372 (2004), similarly involved: (1) the judicial review of a decision by the
LUC; and (2) pursuant to HRS section 91-14(g), a remand to the circuit court
“with instructions to remand the case to the LUC for clarification of its
findings, or for further hearings if necessary,” id. at 316, 97 P.3d at 392,
it is distinguishable from the present matter. There, the issue was whether
substantial evidence supported the LUC’s conclusion that an otherwise valid
condition was violated. Id. at 314, 97 P.3d at 390. Here, the issue is
whether substantial evidence in the record supports the LUC’s imposition of
Condition 14, which is unrelated to the question of whether Condition 14 was
violated.
33
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Id. at 20. When agency action is overturned because of
insufficient findings, the Commission argued, the proper
resolution is a remand for further consideration. Id. The
appellate court agreed.
The Connecticut appellate court held that the case
should have been remanded for further proceedings, namely, to
decide whether there was evidentiary support for the issuance of
the requested permit. Id. The court emphasized that further
proceedings were necessary upon remand unless the only conclusion
that the Commission could reasonably reach was that permit should
have been issued. Id.; see also Florida Power & Light Co. v.
Lorion, 470 U.S. 729 (1985) (“If the record before the agency
does not support the agency action . . . the proper course,
except in rare circumstances, is to remand to the agency for
additional investigation or explanation.”). The court reversed
the trial court’s judgment “as to the order directing the
commission to issue the permit and . . . remanded [the case] . .
. to the commission for further proceedings consistent with [its]
opinion.” United Jewish Ctr., 827 A.2d at 20.
Liberty v. Police & Firemen’s Retirement Bd., 410 A.2d
191 (D.C. 1979), is similarly instructive. There, the Police and
Firemen’s Retirement and Relief Board (the Board) ordered the
retirement of a patrolman from the Police Department by reason of
34
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
disability not caused or aggravated by police duties. Id. at
192. Although the Board found that family history was but one
risk factor causing the patrolman’s coronary artery disease, it
concluded that it was the most significant factor. Id.
On appeal, the District of Columbia appellate court
found that the Board’s decision was not supported by substantial
evidence because there was no basis in the record for an
“unequivocal finding” that the patrolman’s performance of police
duties did not contribute to his disease. Id. at 193-94. The
court stated that “[r]emand is necessary . . . if the court is in
substantial doubt whether the administrative agency would have
made the same ultimate finding with the erroneous findings or
inferences removed from the picture.” Id. at 194 (internal
quotation marks omitted).
In the present case, the relevant question is whether
the LUC would have reached the same conclusion (approving SUP-2)
without its imposition of Condition 14. Based on the record, we
cannot so conclude. Thus, we remand to the LUC for further
hearings as the LUC may deem appropriate.
35
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
V. CONCLUSION
Pursuant to HRS section 91-14(g)(5)15 (1993), we vacate
the circuit court’s judgment affirming the LUC’s approval of SUP-
2, and remand this matter to the circuit court with instructions
that the circuit court remand this matter to the LUC for further
proceedings consistent with this opinion.16
Dana Viola, Deputy /s/ Mark E. Recktenwald
Corporation Counsel,
(Gary Y. Takeuchi and /s/ Paula A. Nakayama
Sharon Lam Blanchard,
Deputies Corporation /s/ Simeon R. Acoba, Jr.
Counsel, with her on
the briefs), and /s/ James E. Duffy, Jr.
Robert Brian Black,
Deputy Corporation /s/ Sabrina S. McKenna
Counsel, for Petitioner/
Appellant-Appellant
15
HRS section 91-14(g)(5) states, in relevant part:
(g) Upon review of the record the court may . . . remand
the case with instructions for further proceedings . . . if
the substantial rights of the petitioners may have been
prejudiced because the administrative findings, conclusions,
decisions, or orders are:
. . .
(5) Clearly erroneous in view of the reliable,
probative, and substantial evidence on the whole
record[.]
HRS § 91-14(g)(5) (1993).
16
We have been informed in pleadings filed by the LUC that on June
28, 2011, DES filed a “[r]equest for modification of condition 14 of SUP file
No. 2008/SUP-2” with the Planning Commission, and that a contested case
hearing is ongoing in that proceeding. On remand, we encourage the LUC to
consider any new testimony developed before the Planning Commission in that
case.
36
*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***
Sarah R. Hirakami,
Russell Suzuki, and
Robyn B. Chun, Deputy
Attorneys General,
(Diane Erickson, Deputy
Attorney General, on the
brief) for Respondent/
Appellee-Appellee Land
Use Commission, State of
Hawai#i
Richard Naiwieha Wurdeman,
for Respondents/Appellees-
Appellees Colleen Hanabusa,
Maile Shimabukuro, and
Ko Olina Community Association
37