HI Supreme Court Concluded the Association Had Standing to Intervene in the Special Management Area Use Permit Hearing Over Affordable Housing Application

This post was authored by Olena Botshteyn, Esq.

In September 2012, Stanford Carr Development, LLC’s (“Carr”) applied for a Special Management Area (“SMA”) use permit to build affordable housing within the County of Maui’s SMA. The district where the project was proposed was intended to provide a mixture of commercial/business and residential uses. The project was partially compliant with the local community plan, and proposed a combined park area of 1.75 acres instead of the 6 acres. While the Planning Commission was considering the application, in June 2014, the Protect and Preserve Kahoma Ahupua‘a Association (“PPKAA”) petitioned to intervene in the process. PPKAA argued it was authorized to intervene as a matter of right, as its members owned adjacent properties and they would experience impacts to traffic, beach access, tsunami evacuation congestion etc. as a result of the project. The Commission denied the petition, having determined that PPKAA failed to establish how its interests are different from interests of the general public. The Commission then approved the permit, and PPKAA commenced this action. The circuit court affirmed the Commission, and the Intermediate Court of Appeals (“ICA”) reversed, having concluded PPKAA had standing to intervene as a matter of right and that it was denied procedural due process right to a clean and healthful environment, contained in the Hawai‘i Constitution. Carr appealed to the Hawai‘i Supreme Court.

On appeal, the court considered several issues. First, it concluded that PPKAA had standing to intervene in the SMA permit proceedings. Petitioners have a right to intervene, where they establish a protectable property interest, and since PPKAA argued violation of a right to a clean and healthful environment and its members could suffer actual injury as a result of the project, it had a protectable property interest. In addition, environmental plaintiffs need not assert an injury different in kind from the general public to have standing.

The court further concluded that PPKAA was deprived of procedural due process, which requires that parties be given “a meaningful opportunity to be heard.” While PPKAA members testified at the public hearing, they were not given an opportunity to submit evidence or cross-examine witnesses, and their knowledge of the area could have supplemented the environmental assessment of the project.

Further, on the issue of compliance with the community plan, the court determined that the Commission was required to find that the project was consistent with the community plan. The Resolution issued by the Commission, in which it approved the permit application, stated that the project “shall comply with all statutes, ordinances … relating to planning, zoning,” except for specified exemptions, and the community plan was not within the list of exemptions. The court thus affirmed the ICA’s judgment.

Protect and Preserve Kahoma AHUPUA’A Assoc. v Maui Planning Commission, 2021 WL 2451978 (HI 6/16/2021)