1. RECENT DEVELOPMENTS
IN PLANNING AND LAND
USE LAW
HAWAII CONGRESS OF PLANNING OFFICIALS
THURSDAY, OCTOBER 22, 2020 │ 11:30 A.M. – 1:05 P.M.

2. Case Law Update 2020
SCOTUS
◦ County of Maui v. Hawaii Wildlife Fund
Hawaii Supreme Court
◦ Haynes v. Haas
◦ Lāna‘ians for Sensible Growth v. Land Use
Commission
Intermediate Court of Appeals
◦ Protect and Preserve Kahoma Ahupua'a
Association (PPKAA) v. Maui Planning
Commission
◦ Connections New Century Public Charter School
(CNCPCS) v. Windward Planning Commission

3. County of Maui v. Hawaii Wildlife Fund
Functional Equivalent of a Direct Discharge
County
Wastewater
Reclamation
Partially
Treats about
4 million
gallons/day
injected into
4 wells
Travels ½
mile through
groundwater
Out into the
Pacific
Ocean
The Clean Water Act forbids “any addition” of any
pollutant from “any point source” to “navigable
waters” without an EPA permit.
Case by Case Analysis
Relevant Factors
◦ Time and Distance
◦ Nature of the material through which the pollutant travels
◦ Extent to which the pollutant is diluted or chemically
changed as it travels
◦ Amount of pollutant entering the navigable waters relative
to the amount of the pollutant that leaves the point source
◦ Manner by or area in which the pollutant enters the
navigable waters
◦ Degree to which the pollution (at that point) has
maintained its specific identity

4. Haynes v. Haas
Duty Not to Maintain a Nuisance
Plaintiff was assaulted in Rockstarz parking lot
.3 miles away from Allied Self Storage Center
Was defendant maintaining a public
nuisance—alleged facts:
◦ Use of the storage units for residences
◦ Area was zoned as “General Industrial”
◦ Commercial nature of alleged transaction

5. Lāna‘ians for Sensible Growth v. Land Use Commission
Grammar Matters
1991 LUC Condition No. 10. [The Resort] shall
not utilize the potable water from the high-
level groundwater aquifer for golf course
irrigation use, and shall instead develop and
utilize only alternative non-potable sources of
water (e.g., brackish water, reclaimed sewage
effluent) for golf course irrigation
requirements.

6. PPKAA v. Maui Planning
Denial of Intervention Applying MECO
Three-Part Standing Test
◦ Potential Actual Injury
◦ Direct personal environmental and aesthetic interests
◦ Adjacent landowners, coupled with their articulated concerns
◦ Fairly Traceable
◦ Threatened injury is fairly traceable to proposed development
and issuance of SMA
◦ Favorable Decision
◦ Commission would have provided relief from such injury
Due Process based on right to a clean and
healthful environment under article XI, section 9
◦ CZMA is a law relating to environmental quality
(MECO & HELCO)
Project must be consistent with general and
community plans under SMA statute
◦ 201H resolution did not exempt this requirement.

7. CNCPCS v. Windward Planning Commission
Expert Witness vs. Community Concerns
Affect on Surrounding Properties
◦ unresolved traffic issues
Burden on Public Utilities
◦ not enough water (maybe)
Unusual Conditions, Trends, and Needs
◦ location not a criteria
Suitability of Land for Agricultural Uses
◦ not a reason to deny
The General Plan and other Plans
◦ OK, but why?
◦ Community concerns cannot be a veto

8. Legislative Update 2020
Act 73, Relating to Waste Management
Act 16, Relating to Coastal Management
Act 23, Relating to the Environment
Act 60, Relating to Agricultural Buildings
Act 72, Relating to a School Facilities Agency

9. Act 73, Relating to Waste Management
Amends Conservation District & Solid Waste Management HRS
Conservation District
◦ No waste or disposal facility shall be located in a
conservation district—except for emergencies
lasting no more than 3 years
Municipal Solid Waste Landfill Criteria
◦ ½ mile Buffer zone required around MSW or
C&D landfills
◦ Applies to new and expansion of existing

10. Act 16, Relating to Coastal Management
Integrating sea level rise considerations into Hawaii’s CZMA
Allows Counties to delegate CZMA responsibilities
Defines “coastal hazards” (includes SLR) and “beach”
Protecting beaches and coastal dunes are added to
objectives
Extends CZM explicitly to reefs
Prohibits construction of private shoreline hardening
structures to protect sand beaches
Development excludes
◦ Single family residence that is <7,500 sq. ft., “is not situated on
a shoreline parcel or a parcel that is impacted by waves, storm
surges, high tide, or shoreline erosion,” and not part of a larger
development.
◦ Removed final subdivision approval exemption
◦ Nonstructural improvements to existing noncommercial
structures
Public notice county only

11. Act 23, Relating to the Environment
Eliminates the Use of Coal in Hawaii for Electricity Production
After June 30, 2020, the public utilities
commission shall not approve:
◦ PPAs that proposes burning or consuming coal to
generate electricity
◦ Extensions to the term of coal PPAs or increases
to the amount of coal power generation in
existing PPAs
All coal burning shall cease on December 31,
2022

12. Act 60, Relating to Agricultural Buildings
County Building Inspectors May Inspect Exempt Ag Structures
Current Law Provides
◦ Agricultural buildings,
◦ Not used as dwellings or lodging units, and
◦ No more than one thousand square feet in floor
area
◦ Exempt from building permit and building code
requirements
County fire department and county building
permitting agency
◦ Right to enter the property to inspect
◦ Reasonable notice
◦ May seek district court warrant if denied access

13. Act 72, Relating to a School Facilities Agency
New Development Arm of DOE
Attached Agency to DOE
ED/Board Model
Responsible for all
◦ Public school development, planning, and CIP
construction
◦ Projects assigned by the legislature, governor, or
board of education
Procurement Applies
Contract preference for contractors and subs
domiciled in state
Power to acquire real property and enter into
partnerships
Establishes school facilities board