2024-03-06 PL-SMA-2023-000046 Claudia Rohr Opposition Testimony (2)

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3/6/24, 12:06 PM Unite Here!Local 5 v.City and Cty.of Honolulu,231 P.3d 423-Haw: Supreme Court 2010-Google Scholar 432 Alpha Road from Kuilima Drive to Marconi Road,and the improvement of Marconi*432 Road and its intersection with Kamehameha Highway will be required to mitigate the traffic impacts resulting from the full-build out and occupancy of Turtle Bay Resort Master Plan[.] 4. The 2005 Subdivision Application As the ICA further summarized: On November 8,2005,Kuilima submitted a Site Development Division Master Application Form([s]ubdivision[a]pplication)to the DPP,seeking subdivision approval for approximately 744 acres of its 808-acre property. In response to the[s]ubdivision[a]pplication,the DPP received two letters in January 2006,asking that the DPP require the preparation of a[SEIS]before approving the[s]ubdivision[a]pplication.In a January 5,2006 letter,Eric Gill,the treasurer of UNITE HERE!Local 5,asserted that a[]SEIS was required because twenty years had passed since the[1985]EIS and changes had occurred in the"traffic,water availability,hotel and housing needs,endangered species habitat needs,and the like."North Shore resident Ben Shafer submitted a January 6,2006 letter,stating that"[m]uch had changed since the approval of the[1985]EIS some twenty years ago"and a[]SEIS needed to be prepared to allow for some community input and to address new concerns regarding"[transportation, sewage,housing,water,cultural[issues],[and]the Master Plan for the Ko olauloa region." The DPP responded to the Shafer and Gill letters that[,]because no specific time limit had been imposed on the[p]roject at the time of the[p]roject's initial approval,the DPP felt it could not require a[]SEIS to address changes in the conditions surrounding the[p]roject caused by the passage of time.Although DPP planner James Peirson(Peirson)drafted the January 19,2006 reply letter to Shafer,the letter was signed by Eng.The DPP's letter to Shafer stated: No time frame for development was either implied or imposed by the City Council as part of its approval.Accordingly,the developer is entitled to proceed with the project as approved.By not imposing any time limits at the time,the City Council indicated that the project could be developed at its own pace.Further,as a matter of law,the[County]cannot retroactively impose time limits or unilaterally rescind an entitlement like an approved discretionary permit. The DPP's reply letter to Gill,dated January 31,2006,was prepared by DPP planner Mario Siu-Li(Siu-Li)and signed by Eng.The letter explained that a[]SEIS was not required because[,]as long as Kuilima was following the appropriate subdivision rules and regulations,the[County]was obligated to continue to process the[s]ubdivision[a]pplication.The DPP provided Gill a copy of its letter to Shafer. [DPP Planner]Peirson explained...that[,]when determining whether to require a[]SEIS,DPP looked to see if there had been any substantive changes to a project.[Planner]Siu-Li similarly stated that the reason why the DPP did not require a[]SEIS for the[p]roject was because"the[s]ubdivision[a]pplication was not changing the existing condition of the properties." On March 8,2006,the[Environmental Council]heard testimony from members of the North Shore community regarding the SEIS issue.On March 22,2006,the Environmental Council wrote to the DPP requesting clarification as to why the[p]roject did not require a[]SEIS considering"the changes in timing since 1985, especially with respect to cumulative impacts and mitigative measures articulated in the original accepted[1985 EIS]."In an April 4,2006 letter,the Department of Corporation Counsel for[the County]responded that the DPP would not comment on the Environmental Council's concerns because the issue of requiring a[] SEIS had become the subject of litigation. The Environmental Council sent a follow-up letter to the DPP dated June 14,2006,expressing the[C]ouncil's concern that the DPP was placing the burden on 433 others to prove a[]SEIS was required'433 instead of making its own independent determination: The Council is concerned that DPP has not made an independent determination of whether a[]SEIS is required.Rather,it appears as though DPP believes that it should not require a[]SEIS unless some third party proves to DPP that it is required.This does not appear to be correct. The Environmental Council also stated that[,]based on the information available to it regarding changing environmental conditions in the[p]roject over the last twenty years and changes in the[p]roject's timing and scope,it believed the DPP should require Kuilima to prepare a[]SEIS for the[p]roject. As part of its subdivision review process,the DPP circulated Kuilima's[s]ubdivision[a]pplication to various interested departments and agencies of[the County] and the State of Hawaii for review,comment,and approval.The State of Hawaii Department of Transportation(DOT)was among the departments and agencies that reviewed the[s]ubdivision[a]pplication.The DOT accepted Kuilima's[r]oadway[i]mprovements[i]mplementation and[p]hasing[p]lan after Kuilima agreed to revise its[t]raffic[i]mpact[a]nalysis report to address the DOT's concerns.On September 29,2006,without requiring a[]SEIS,the DPP tentatively approved the [s]ubdivision[a]pplication. Unite Herel,120 Hawaii at 461-62,209 P.3d at 1275-76(underscored emphasis in original)(original ellipses omitted)(some brackets in original). B. Circuit Court Proceedings Two civil lawsuits were originally filed in connection with DPP's decision not to require a SEIS for the project:(1)Civ.No.06-1-0265,filed on February 15,2006,by Unite Here!,a labor organization representing 350 Kuilima employees,against Kuilima and the County,seeking to require Kuilima to prepare a SEIS and to enjoin DPP from processing approvals and permits for the project;and(2)Civ.No.06-1-0867,filed on May 19,2006 and amended on June 7,2006,by KNSC,a Hawaii non-profit corporation comprised of North Shore residents and/or property owners,and the Hawaii branch of Sierra Club,a California non-profit organization,seeking declaratory and injunctive relief.Eventually,both actions were consolidated on July 17,2006. On August 10,2006,the parties stipulated to dismiss with prejudice all claims and all parties in Civ.No.06-1-0265(the original suit brought by Unite Here!),pursuant to Hawaii Rules of Civil Procedure(HRCP)Rule 41(a)(1)(B)(2006).Thus,the only remaining claims and parties are those brought under Civ.No.06-1-0867,KNSC,et al.v City &County of Honolulu,et al.[hereinafter,the KNSC/Sierra Club action or the instant action]. In the KNSC/Sierra Club action,the plaintiffs sought(1)an injunction requiring Kuilima to prepare a SEIS pursuant to HAR§§11-200-26 and 11-200-27 and(2)to enjoin construction relating to the project until the SEIS was completed.Relying on the description in the 1985 EIS with respect to the timing of the project,I31 the plaintiffs essentially argued that"the[p]roject has changed substantively in timing,among other things,"'and that this"change in timing has had a significant effect"such that a SEIS is warranted. On June 16,and June 19,2006,Kuilima and the County,respectively,filed an answer to the plaintiffs'complaint,generally denying the plaintiffs'allegations. https://scholar.google.com/scholar_case?case=4308700817237546533&q=unite+here+local+5&hl=en&as_sdt=2006 4/17