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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
<br /> On October 11,2006,Kuilima filed a motion for judgment on the pleadings and three motions for summary judgment.The County joined in Kuilima's motions,except for
<br /> 434 Kuilima's second motion for summary judgment.141 See Unite Here!,120 Hawaii at 462,*434 209 P.3d at 1276.Additionally,in response to the defendants'third motion for
<br /> summary judgment,the plaintiffs filed a cross-motion for summary judgment.0
<br /> In their motion forjudgment on the pleadings,the defendants argued,interalia,that HAR§11-200-26,et.seq.
<br /> exceed[s]the statutory authority of HEPA and/or that requiring Kuilima to prepare a[]SEIS for the Turtle Bay expansion project would violate the plain and express
<br /> language of HRS§343-5(g)[(Supp.2005)],which mandates in unequivocal terms that"[a]statement that is accepted with respect to a particular action shall
<br /> satisfy the requirements of this chapter and no other statement for that proposed action shall be required[.]"
<br /> In their first motion for summary judgment,the defendants argued that the lawsuit was barred by the statute of limitation set forth in HRS§343-7(1993),quoted infra.In the
<br /> second motion,Kuilima argued that it was entitled to summary judgment on the entirety of the plaintiffs'complaint because the subdivision application was"(1)exempt from
<br /> the environmental review process[]and(2)non-discretionary in nature and[,thus,could]not trigger a SEIS"Finally,the defendants argued in their third motion for summary
<br /> judgment that they were entitled to summary judgment as a matter of law because,based on the undisputed facts before the circuit court:
<br /> 1.[The p]laintiffs have no evidence to show a"substantive change"in the[p]roject as required by HAR§§11-200-26 and 11-200-27;
<br /> 2.[The p]laintiffs have no evidence to show"significant effects"on the environment likely"resulting from"their alleged change in the[p]roject(timing)as required
<br /> by HAR§§11-200-26 and 11-200-27;
<br /> 3.[The p]laintiffs have no evidence to show that any of the alleged environmental impacts of the[p]roject that they allege resulted from a change in timing of the
<br /> [p]roject were not originally disclosed or previously dealt with,as required by HAR§§11-200-26 and 11-200-27;and
<br /> 4.Applying the"rule of reason"to DPP's decision,and considering the agency's extensive record regarding the planning and permitting process for the region in
<br /> general,and for this[p]roject in particular,the DPP's decision not to require a[]SEIS for the[p]roject cannot be deemed either arbitrary or capricious.
<br /> The plaintiffs argued in their cross-motion for summary judgment that:(1)enforceable HEPA rules required a SEIS either when there are substantive project changes or new
<br /> circumstances and evidence(emphases added);(2)the substantive change in the timing of the project caused,and new circumstances and evidence brought to light,
<br /> increased environmental impacts to traffic and species not previously dealt with in the 1985 EIS;(3)Kuilima's subdivision application triggered HEPA's supplemental review;
<br /> and(4)DPP did not take a hard look at the new circumstances and evidence and,thus,violated HEPA when it decided that Kuilima was not required to prepare a SEIS.With
<br /> respect to timing,the plaintiffs specifically argued that"the passage of time,especially when it is more than twenty years,is relevant and must be considered in light of the very
<br /> low threshold for requiring a[]SEIS under Hawaii law."On November 3,2006,the defendants each filed a memorandum in opposition to the plaintiffs'cross-motion for
<br /> summary judgment.
<br /> 1. Defendants' Evidence in Support of Third Motion
<br /> 435 In support of the third motion for summary judgment,the defendants,pursuant to HRCP 56(e)(2006),10 attached parts of the'435 1985 EIS and the KDC unilateral agreement.
<br /> With respect to the 1985 EIS,the defendants painted to the following specific language contained therein,which stated:
<br /> D.PHASING AND TIMING OF THE ACTION
<br /> Figure 9 shows the approximate phasing of development for the resort(phasing is dependent on receiving the necessary governmental approvals).Note that
<br /> Phase I designation generally indicates a 1986 start of construction date,Phase II,commencement between 1988 to 1989,and Phase III,[c]ommencement
<br /> between 1993 to 1996.
<br /> With respect to the unilateral agreement,the defendants pointed to a provision therein,which stated in relevant part:
<br /> 3.Development of the project shall generally be based on the submitted schedule[(which is the same as the one referenced in the 1985 EIS).]Development may
<br /> deviate from this schedule due to the occurrence of changed economic conditions,lawsuits,strikes or other unforseen[sic]circumstances.
<br /> 2. Plaintiffs' Evidence in Support of Cross-Motion
<br /> The following relevant evidence was submitted by the plaintiffs in support of their cross-motion for summary judgment,pursuant to HRCP 56(e):
<br /> a. the 1985 EIS
<br /> Relying on the same provision from the 1985 EIS cited by the defendants,i.e.,"D.PHASING AND TIMING OF THE ACTION,"quoted above,the plaintiffs argued that the
<br /> timing condition was inherent within the 1985 EIS itself.Additionally,the plaintiffs maintained that the entirety of the 1985 EIS was based on evidence available in 1985—over
<br /> twenty years ago.
<br /> b. DPP's SEIS procedures
<br /> Regarding DPP's SEIS procedures,the plaintiffs submitted the depositions of(1)Arthur Challacombe,"the person designated by the[County]as the most knowledgeable on
<br /> the obligations of the County['s]DPP to enforce the State of[Hawaii's]environmental rules and regulations,"(2)Mario Siu-Li,DPP's senior planner,and(3)James Peirson,
<br /> another DPP planner.With respect to how DPP obtains its evidence to aid in determining whether to require a SEIS,Challacombe stated that,"if there's evidence submitted to
<br /> [DPP,]we will review the evidence.If...we have no evidence,then we have nothing to...base a determination on."Challacombe noted that there must be some sort of
<br /> development trigger,i.e.,"if...the condition of the SMP called for X...units and the building permit application doubles that,...that would cause concern and give us evidence
<br /> that we need to look at further."He further emphasized that,"if everything's the same,if nothing's changed,then we have no evidence and no need to require or ask for a
<br /> [SEIS]."Siu-Li similarly testified that"normally the inquiry[DPP]make[s]"is whether"the project conforms to the approved permit."According to Peirson,who drafted the
<br /> response letter on behalf of Eng to Shafer,one of the concerned citizens requesting a SEIS:
<br /> [E]very time a permit comes in,it isn't a standard question that needs to be asked,hmm,does a[SEIS]have to be done.
<br /> We will examine the impacts associated with the request,determine what agencies that have expertise in-certain matters need to review it to let us know whether
<br /> 436 there's issues that we need to be concerned about that might have changed or things that*436 might be necessary or impacts that need to be mitigated.
<br /> https://scholar.google.com/scholar_case?case=4308700817237546533&q=unite+here+local+5&hl=en&as_sdt=2006 5/17
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