Commissioner Duane Kanuha was appointed to the Hawaii Land Use Commission for a four year term. When that term expired, Kanuha failed to obtain the necessary Senate confirmation to be appointed to the Commission for a second term. However, in accordance with Hawaii Revised Statutes § 26 34 (b), Kanuha continued to serve as a holdover member of the Commission pending his replacement by the Governor.
During this holdover period, Kanuha voted in favor of a petition to change the zoning designation of 767.649 acres of land in the Agricultural Land Use District to Urban Land Use District, as well as a subsequent Decision and Order approving that change. Sierra Club had filed a motion to disqualify Kanuha from voting on the matter with the Land Use Commission, but it was denied prior to the vote. After Kanuha voted in favor of the petition and the order, Sierra Club filed an appeal in the circuit court on the grounds that Kanuha should have been disqualified from voting because he had failed to obtain Senate confirmation for a second term. The circuit court held in favor of Sierra Club, holding that Kanuha had been disqualified from voting and thus that the petition had failed to receive the six votes needed for Commission approval.
On appeal, the Hawaii Intermediate Court of Appeals reversed, holding that the circuit court had erred in holding Kanuha was disqualified and finding instead that Kanuha’s situation fit clearly into the statutory definition of a holdover member permitted to remain on the Commission until replaced by the Governor. As a holdover, Kanuha was not disqualified from voting and the approval was valid.
Sierra Club v. Castle & Cooke Homes Hawaii, Inc., 2012 WL 3644905 (Hawaii Int. Ct. of Appls. Aug. 24, 2012)
The opinion can be accessed at: http://www.inversecondemnation.com/files/caap-11-0000625.pdf