Due Process Right to a "Clean and Healthful Environment"
Session 4a: Recent
Developments in Land Use
and Planning Law
What do recent Hawaii Supreme Court decisions on the right to a “clean
and healthful environment” mean for your planning practice?
THURSDAY, SEPTEMBER 12, 2019
2019 HAWAII CONGRESS OF PLANNING OFFICIALS – MAUI
JESSE K. SOUKI, ESQ. – HILANDUSELAW.COM
Where does the contested case fit in the
◦ Zoning, subdivision, plans, land use policies
◦ Geotech, hydrology, topography
◦ Historic preservation
◦ Environmental review
◦ Protected views
◦ Flora & Fauna
◦ Cultural Impacts
◦ Conditional permits
◦ SMA/certified shoreline
◦ Site plan review
◦ Permit review
◦ Environmental review
Property & Community Characteristics
Land Use & Regulations
Project Team and Schedule
Who will sign documents?
Who will testify at the hearing?
Where does the buck stop?
What’s the budget and financial constraints?
What’s the timeline?
Communications and public relations
◦ Old government roads
Land court/regular system
Tax Maps/Plat maps
Property & Community Characteristics
Existing and past uses
◦ Sea level rise
◦ Shoreline setback
◦ Access rights
Police, Fire, Ambulance
School Impact Fees
Community Engagement and Land Use &
Community issues and concerns
◦ Federal, state, county, neighborhood
◦ Native Hawaiian organizations
◦ Informal groups
LAND USE PLANS & REGULATIONS
Community development plans
Developer master plans
State Land Use Districts
Special management area
Rail – Transit Oriented
Proposed Use and Team Coordination
Zoning and rules requirements
Consultant contract management
Contested case procedures
Related planning and permitting documents
Long before a contested case, many
decisions are made and actions
Every step is an opportunity to
build consensus, community
support, and buy-in.
These decisions shape the
contested case proceedings and its
When are contested
HAWAII REVISED STATUTES CHAPTER 91
HAWAII ADMINISTRATIVE PROCEDURE ACT
Article I, section 5
No person shall be deprived of life, liberty or property
without due process of law, nor be denied the equal
protection of the laws, nor be denied the enjoyment of the
person's civil rights or be discriminated against in the exercise
thereof because of race, religion, sex or ancestry.
- 1978 Constitutional Convention
Definitions, HRS §91-1
"Contested case" means a
proceeding in which the legal
rights, duties, or privileges of
specific parties are required by
law to be determined after an
opportunity for agency
"Agency hearing" refers only to
such hearing held by an agency
immediately prior to a judicial
review of a contested case as
provided in section 91-14.
"Party" means each person
named or admitted as a party,
or properly seeking and
entitled as of right to be
admitted as a party, in any
court or agency proceeding.
May be required by
◦ Agency rule
◦ Constitutional due process
Constitutional Due Process
◦ Is it ”property” under the due process clause?
◦ Claimant seeks to protect a “property interest”—a benefit to
which the claimant is legitimately entitled.
◦ If it is, what specific procedures are required to
In re Application of
Maui Elec. Co., Ltd.
◦ protections of the due process
◦ apply to the right to a clean and
◦ as defined by laws related to
MECo Case Facts
Maui Electric (purchaser)
HC&S produced power at a bagasse-fired power plant that also burned a number of
other fuels, including coal and petroleum
Upon PUC approval, Maui Electric would be able to recover costs from customers
Sierra Club requested intervention -- concerned that the Puʻunene Plant relied too
heavily on coal
Is a Hearing Required?
Does claimant seek to protect a ‘property interest’?
◦ A benefit to which the claimant is legitimately entitled
◦ Tangible: real estate, chattels, or money
◦ Intangible: driving privileges, continued practice of medicine, Native
Hawaiian water rights
If so, what specific procedures are required to
Each person has the right to a clean and healthful
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.
- 1978 Constitutional Convention
A clean and healthful environment is a “right guaranteed by the
Constitution and statutes of this state.”
Is it a law relating to environmental quality
within the meaning of article XI, section 9?
HRS Chapter 269 is a law relating to
environmental quality because it considers
the hidden and long-term costs of reliance on fossil fuels
increased air pollution
potentially harmful climate change due to the release of
harmful greenhouse gases
utilization of electricity generated from nonfossil fuels
Matter of Hawai'i Elec. Light Co., Inc.
PUC required to give explicit consideration to the reduction of GHG emissions in
determining whether to approve the Amended PPA.
Flores v. Bd. of Land & Nat. Res.
Plaintiff entitled to consent case in BLNR lease consent based on property right
to exercise traditional and customary practices protected by article XII, section 7.
In re Iao, Native Hawaiian water rights
Due process hearing was required to protect the asserted property right to
exercise traditional and customary practices protected by article XII, section 7.
Clarabal v. Dep't of Educ.
Requirement that the State provide a constitutionally adequate Hawaiian
education program to be defined by supreme court interpretation, under article
X, section 4.
What does a hearing look like and who participates?
Opportunity to be heard at a meaningful time and in a
Right to submit evidence and argument
Right to present evidence, cross-examine opposing
evidence, and submit rebuttal evidence
Board may consider relevancy, materiality, and repetition
and limit a presentation of evidence in a contested case
Rules of Evidence
◦ Exclude irrelevant, immaterial, or unduly
◦ Receive documentary evidence in the form of
copies or excerpts
◦ Take notice of judicially recognizable facts
Parities must be allowed
◦ Submission of rebuttal evidence
Party initiating the proceeding has the burden
of proof by a preponderance of the evidence
Sunshine Law (HRS Chapter 92)
Every meeting of all boards shall be open to the
public and all persons shall be permitted to
attend any meeting.
The Sunshine Law does not apply to quasi-
judicial, contested cases.
Except for the land use commission, which is
required to openly deliberate (HRS §92-6).
State Land Use
◦ Nine member volunteer board
◦ HAR Chapter 15-15
◦ Contested Cases
◦ District Boundaries
◦ Special Permits
◦ Important Agricultural Lands
◦ Kakaako, Heeia, Kalaeloa
◦ Nine volunteer members each
Three sets of plans and zoning rules
Contested cases require two hearings
Report Outcome to House and Senate
Four requirements for judicial review over an
◦ A contested case hearing
◦ Compliance with agency rule
◦ Suffered an actual or threatened injury
◦ The injury must be fairly traceable to the
◦ Favorable decision would likely provide relief for
the plaintiff's injury
(Kilakila 'O Haleakala)
Constructive participation despite failure to
testify at hearing based upon assurances that
petitioner's written comments opposing the
proposed action would be applied to all dockets
under review (Life of the Land).
City failed to intervene in hearing despite PUC
rules providing for either formal intervention or
informal participation—no standing (City &
County of Honolulu).
Despite absence of rules for formal intervention,
association’s appeal of a variance granted
standing because ZBA rules requires notice and a
public hearing on any variance application (East
Diamond Head Ass'n).
Breaking the Cycle
Integrate environment, economy, and culture in
Think big: Your audience is current and future
Listen and learn from the interested public.
Have the courage to remain logical and rational in
the face of emotionally charged decision-making.
Look up, walk around, talk to people.
People often disagree on how to accomplish
something, but we all care about Hawaii, its
people, and its resources.
Hawaii Land Use Law & Policy, www.hilanduselaw.com
HRS §46-4, County zoning
HRS Chapter 6E, Historic Preservation
◦ Administrative Rules Pertaining to Historic Preservation in
HRS Chapter 91, Administrative Procedure
HRS Chapter 92, Sunshine Law
HRS Chapter 92F, Uniform Information Practices Act
HRS Chapter 226, Hawaii State Planning Act
HRS Chapter 343, Environmental Impact Statements
◦ EIS Rules
HRS Chapter 183, Conservation District
◦ OCCL Administrative Rules
◦ CDUA & Shoreline Certification
HRS Chapter 195D, Conservation of Aquatic Life,
Wildlife, and Land Plants,
◦ DOFAW Rules
HRS Chapter 205, Land Use Commission
◦ LUC Rules
HRS Chapter 205A, Coastal Zone Management Act
◦ SMA and Shoreline in HCDA
HRS Chapter 206E, Hawaii Community Development
◦ Plans and Rules
◦ Kakaako, Kalaeloa, Heeia
Matter of Hawai'i Elec. Light Co., Inc., 145 Hawai`i 1, 5, 445 P.3d 673, 677 (2019)
Flores v. Bd. of Land & Nat. Res., 143 Hawai`i 114, 424 P.3d 469 (2018) (right to contested case on BLNR sublease
In re Maui Elec. Co., 141 Haw. 249, 408 P.3d 1 (2017) (due process hearing was required to protect the asserted
property right to a clean and healthful environment guaranteed by article XI, section 9 and defined by HRS
Mauna Kea Anaina Hou v. Bd. of Land & Nat. Res., 136 Hawai‘i 376, 363 P.3d 224 (2015) (BLNR acted improperly
when it issued a permit prior to holding a contested case hearing).
Kilakila 'O Haleakala v. Bd. of Land & Nat. Res., 131 Hawai'i 193, 317 P.3d 27 (2013) (contested case hearing
should have been held, as required by law and properly requested prior to BLNR's vote on the application).
In re 'Īao Ground Water Mgmt., 128 Hawai'i 228, 287 P.3d 129 (2012) (remanded to CWRM, finding a property
interest in amended instream flow standards where farmers "own or reside on land" in the affected area and
"rely upon that water to exercise traditional and customary rights" supported by statutory authority).
GATRI v. Blane, 88 Hawai'i 108, 962 P.2d 367 (1998) (holding that county community plan, specifically
implementing the general plan, has the force and effect of law).
Pele Def. Fund v. Puna Geothermal Venture, 77 Hawai'i 64, 881 P.2d 1210 (1994) (when the
requirements of standing were met and the agency's rules are followed, an agency hearing is required
when the challenged State action "adversely affects the constitutionally protected rights" of others).
Sandy Beach Def. Fund v. City Council of Honolulu, 70 Haw. 361, 773 P.2d 250 (1989) (claims of an
aesthetic and environmental nature do not rise to the level of “property“ protected by due process
Life of the Land v. Land Use Comm'n, 61 Haw. 3, 594 P.2d 1079 (1979).
City & County of Honolulu v. Public Utilities Comm'n, 53 Haw. 431, 495 P.2d 1180 (1972).
In re Application of Hawaiian Electric Co., 56 Haw. 260, 535 P.2d 1102 (1975).
East Diamond Head Ass'n v. Zoning Board, 52 Haw. 518, 479 P.2d 796 (1971).