Due Process Right to a "Clean and Healthful Environment"

1. 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

2. Where does the contested case fit in the project cycle? Feasibility/ Market Analysis Site Selection/ Acquisition Planning/ Engineering Gov’t Approvals Financing Construction O&M Feasibility/Market Analysis ◦ Zoning, subdivision, plans, land use policies ◦ Timeline Site Selection ◦ Geotech, hydrology, topography ◦ Historic preservation ◦ Environmental review ◦ Protected views ◦ Flora & Fauna ◦ Cultural Impacts Planning/Gov’t Approvals ◦ Rezoning ◦ Conditional permits ◦ Variances ◦ SMA/certified shoreline ◦ Site plan review ◦ Permit review ◦ Environmental review

3. Basic Information Landowner Builder Developer Property information Property & Community Characteristics Community Engagement Land Use & Regulations Public Infrastructure Proposed Use Team Coordination The Record

4. 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? Lawyers Planners Architects Engineers Environmental Consultants Permit expediter Biologists Cultural expert Communications and public relations

5. Property Information Deeds Title Reports ◦ Exceptions/exclusions ◦ Kuleana ◦ Old government roads Surveys Legal description Ownership interests Land court/regular system Tax Maps/Plat maps

6. Property & Community Characteristics Acreage Existing and past uses Topography Floodplains Coastal Issues ◦ Sea level rise ◦ Shoreline setback ◦ Access rights Roads Utilities Police, Fire, Ambulance Flora/Fauna Soil Classification Special Districts View Corridors School Impact Fees Affordable Housing Noise (FHWA/FTA)

7. Community Engagement and Land Use & Regs COMMUNITY ENGAGEMENT Current uses Past uses Community issues and concerns Community leaders ◦ Electeds ◦ Federal, state, county, neighborhood ◦ Native Hawaiian organizations ◦ Hui ◦ Informal groups LAND USE PLANS & REGULATIONS General plans Community development plans Developer master plans HCDA Plans State Land Use Districts Zoning Special management area Variances

8. Public Infrastructure Roads Water Sewer Fire Parks Utilities Rail – Transit Oriented Development

9. Proposed Use and Team Coordination PROPOSED USE Project description Authorizing agencies Zoning and rules requirements Market study Jobs created Taxes generated Community benefits TEAM COORDINATION Project manager Consultant contract management Reports Community relations Media relations Government relations Coordinating permits Contested case procedures

10. The Record Pleadings Briefs Testimony Transcripts Related planning and permitting documents Decisional documents

11. Summing it Up Long before a contested case, many decisions are made and actions taken. Every step is an opportunity to build consensus, community support, and buy-in. These decisions shape the contested case proceedings and its outcomes.

12. When are contested cases required? HAWAII REVISED STATUTES CHAPTER 91 HAWAII ADMINISTRATIVE PROCEDURE ACT

13. Hawaii State Constitution 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

14. 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 hearing. "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.

15. Contested Case May be required by ◦ Agency rule ◦ Statute ◦ Constitutional due process

16. 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 protect it?

17. In re Application of Maui Elec. Co., Ltd. Whether the ◦ protections of the due process clause ◦ apply to the right to a clean and healthful environment ◦ as defined by laws related to environmental quality

18. MECo Case Facts PPA between Maui Electric (purchaser) HC&S (producer) 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

19. 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 protect it?

20. Hawaii State Constitution Article XI, section 9 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. - 1978 Constitutional Convention A clean and healthful environment is a “right guaranteed by the Constitution and statutes of this state.”

21. 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

22. “[T]he courts, not the legislature, are the ultimate interpreters of the Constitution.” 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.

23. What does a hearing look like and who participates?

24. Due Process Requirements Opportunity to be heard at a meaningful time and in a meaningful manner 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 proceeding

25. Rules of Evidence Agencies may ◦ Exclude irrelevant, immaterial, or unduly repetitious evidence ◦ Receive documentary evidence in the form of copies or excerpts ◦ Take notice of judicially recognizable facts Parities must be allowed ◦ Cross-examination ◦ Submission of rebuttal evidence Party initiating the proceeding has the burden of proof by a preponderance of the evidence

26. Meetings vs. Contested Cases 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).

27. State Land Use Commission ◦ Nine member volunteer board ◦ HAR Chapter 15-15 ◦ Contested Cases ◦ District Boundaries ◦ Special Permits ◦ Important Agricultural Lands

28. Hawaii Community Development Authority Three Districts ◦ Kakaako, Heeia, Kalaeloa Three Boards ◦ Nine volunteer members each Three sets of plans and zoning rules Contested cases require two hearings ◦ Presentation ◦ Decision-making Report Outcome to House and Senate

29. PUC

30. Judicial Appeals

31. Judicial Appeal Four requirements for judicial review over an agency appeal: ◦ A contested case hearing ◦ Finality ◦ Compliance with agency rule ◦ Standing Standing: ◦ Suffered an actual or threatened injury ◦ The injury must be fairly traceable to the defendant's actions ◦ 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).

32. Planning & Permitting Contested Case Appeal Remand Breaking the Cycle Integrate environment, economy, and culture in project planning. Think big: Your audience is current and future generations. 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.

33. Sources 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 Hawaii 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 Authority ◦ Plans and Rules ◦ Kakaako, Kalaeloa, Heeia

34. Cases 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 consent). 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 Chapter 269). 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).

35. Cases 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 clause). 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).

Due Process Right to a "Clean and Healthful Environment"

Due Process Right to a "Clean and Healthful Environment"

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Due Process Right to a "Clean and Healthful Environment"