|
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 /> And when we get that kind of feedback,then we have an opportunity to...take action,for instance,such as requiring a[SEIS]or requiring additional studies or
<br /> reports and things like that.
<br /> With regard to the DPP's process to determine whether to require supplemental review,Challacombe testified:
<br /> Q.[By the plaintiffs'counsel][W]ould[]you look at the cumulative to see what's...been built around the subdivision to determine the cumulative impacts of
<br /> something before you grant the subdivision application?
<br /> A.[By Challacombe]I would look at the cumulative impact of the project on the community,not the other way around.
<br /> Q.Okay,but in doing that,you'd have to know what the community is at the time,right,you're looking at?
<br /> A.That's correct.
<br /> Q.And...the DPP wouldn't have done that unless somebody came to them with evidence that the community has changed in some way since the original[permit
<br /> or application]was granted...?
<br /> A.I wouldn't do it....If the project doesn't change,if the project is the same that was what was approved,then there is no evidence of cumulative impact.
<br /> Q.In your experience,have there been other projects where the SMP and unilateral agreement had been approved,but the project wasn't initiated for another 20
<br /> years[.]
<br /> I'm just trying to find out if there's any limits on this—...I understand this is your opinion,that time is irrelevant.
<br /> A.Timing is one of the components in...the review.It is important.It is not the sole criterion.
<br /> Q.And is it your understanding,though,that then 20 years just by itself is not sufficient to trigger some thought,gee,maybe things have changed a little bit and
<br /> we ought to come investigate?
<br /> A.If the project hasn't changed,then the project hasn't changed so there are no new impacts.
<br /> Q.Unless the surrounding community has changed,right?There might be if the surrounding community has changed,no?
<br /> A.If the surrounding community's changed,we would consider that,but we...would need the evidence.
<br /> Q.And you would wait for somebody to present evidence to you,rather than go out and look and see if the surrounding community has changed?
<br /> A.In terms of the building permit,again,we would compare.We would take that into account.Again,I go back to the traffic study.We,I am sure,are going to
<br /> require an updated traffic study at the time of building permit application for the Kuilima development.
<br /> A twenty year old traffic study is not sufficient,because as you pointed out,there may be factors in the community that have changed,i.e.,traffic.
<br /> (Emphases added.)
<br /> With respect to the review process in the instant case,Siu-Li indicated that,in drafting his response to Gill,the other concerned citizen and an officer of Unite Here!,requesting
<br /> a SEIS,his initial assumption was that no SEIS would be necessary,and,as a result,he relied on the past determination of a SMP and his colleague's(Peirson's)response
<br /> letter to Shafer.He further indicated that he did not go back and review the 1985 EIS and,thus,was not fully apprised of its contents nor did he review the original SMP.
<br /> Addressing the changes that have occurred over the twenty years since the 1985 EIS,Siu-Li testified:
<br /> Q.[By the plaintiffs'counsel]Did you have a question in your mind...before you drafted that letter[to Gill],whether or not the delay of almost 20 years might have
<br /> a significant impact on the environment or surrounding community?
<br /> 437 A.[By Siu-Li]No,I didn't.But like I said,we had some discussions before drafting the letter,and the consensus was that*437 the passing of the time by itself
<br /> alone would not necessarily trigger a[SEIS].
<br /> Q.[B]efore your letter of January,are you aware of any consideration given by DPP as to whether or not the surrounding community had changed in the 20-year
<br /> period?
<br /> A.Well,you know,everything has changed in 20 years.I mean,that's without even saying.You know,whether the project itself has changed,that's something
<br /> that has not been shown to us.
<br /> (Emphases added.)Peirson also testified with respect to the timing of the project as follows:
<br /> Q.[By the plaintiffs'counsel]Wasn't there a projected phasing[indicated in the 1985 EIS]to be finished with the project by 1996?
<br /> A.[By Peirson]There was,I think,one sentence in the EIS that had a proposed phasing,followed by a footnote or a second sentence that qualified that phasing.
<br /> But what I would explain to you,as a matter of reading what the entitlement is,there's a difference between what an applicant proposes and what the council
<br /> disposes in terms of an authority.
<br /> If they don't adopt the phasing as a condition of the approval,it doesn't matter what might have been proposed.There was no phasing required as a condition of
<br /> its approval;and therefore,the passage of time itself could not constitute a substantive change to the project.
<br /> Q.Could not,you said?
<br /> A.Not under the authority granted by that particular permit.
<br /> Q.And you don't believe that it could ever require another review under Chapter 3437
<br /> https://scholar.google.com/scholar_case?case=4308700817237546533&q=unite+here+local+5&hl=en&as_sdt=2006 6/17
<br />
|