HomeMy WebLinkAbout2024-03-06 PL-SMA-2023-000046 Claudia Rohr Opposition Testimony (2) From: Claudia Rohr
To: Plannina Internet Mail
Subject: TESTIMONY OPPOSED SMA-2023-046,Windward Planning Commission Meeting March 7,2023
Date: Wednesday,March 6,2024 12:03:06 PM
Aloha Commissioners-
(I)The PlanningDepartment erred in segmenting the portion of the project outside the SMA
from that portion in the SMA. This was decided in Save Sunset Beach Coalition v. City
and County of Honolulu, 78 P. 3d 1 - Haw: Supreme Court 2003. Planning
Commission Rules of Practice and Procedure, Rule 9-10 requires consideration
of cumulative and secondary impacts in the analysis of the SMA use permit application.
(2) An SEIS is required to cover the changes in the surrounding community and environment
over time. This cannot be done through disclosures in the SMA use permit application itself
but requires publication in the Environmental Review and an opportunity for public review.
See, Unite Here! Local 5 v. City and Cty. of Honolulu, 231 P. 3d 423 - Haw: Supreme
Court 2010
Claudia Rohr
808-640-5976
1/28/24,3:08 PM Save Sunset Beach Coalition v.City and County of Honolulu,78 P.3d 1 -Haw:Supreme Court 2003-Google Scholar
78 P.3d 1(2003)
102 Hawai'i 465
SAVE SUNSET BEACH COALITION; Life of the Land; Larry McElheny;Benjamin Hopkins;and Peter Cole,Plaintiffs-Appellants,
V.
The CITY AND COUNTY OF HONOLULU;Obayashi Corporation;and Obayashi Hawa['i Corporation,Defendants-Appellees.
No.21332.
Supreme Court of Hawaii.
October 20,2003.
4 *4 William W.Saunders,Jr.and James J.Bickerton,Honolulu,(Bickerton Saunders Dang&Bouslog),on the briefs,for plaintiffs-appellants.
Jane Howell,Deputy Corporation Counsel,City&County of Honolulu,on the briefs,for defendant-appellee The City&County of Honolulu.
John T.Komeiji,Lyle Y.Harada,&Lloyd S.Yoshioka(Watanabe,Ing&Kawashima),on the briefs,for defendants-appellees Obayashi Corporation&Obayashi Hawai'i
Corporation.
MOON,C.J.,LEVINSON,NAKAYAMA,ACOBA,and DUFFY,JJ.
Opinion of the Court by ACOBA,J.
We hold that in connection with the complaint filed by Plaintiffs-Appellants Save Sunset Beach Coalition,Life of the Land,U]Larry McElheny,Benjamin Hopkins,and Peter
Cole(Plaintiffs),the first circuit court(the court)correctly applied the propositions stated below except for the last two;the effect of such error,however,was harmless.
First,the rezoning[21 by Defendant-Appellee City and County of Honolulu(the City)of 765 acres of land located on the North Shore of Oahu and designated for"agricultural
use M to a"country district"designationM was a legislative act and thus is accorded deference on judicial appeal.Accordingly,the opponents of such a rezoning must
demonstrate that the rezoning was"arbitrary,unreasonable or invalid[,]"Lum Yip Kee v City and County of Honolulu,70 Haw.179,187,767 P.2d 815,820(1989),in order to
have the rezoning vacated or reversed.Second,Article A,section 3 of the Hawaii State Constitution,which pertains to the preservation of agricultural lands and requires a
two-thirds vote to approve any reclassification or rezoning of such lands,is not self-executing.Third,the four guidelines in a City zoning ordinance,ROH§21-5.30(c),151 which
5 concern*5 the identification of so called"country district"lands,are directory and not mandatory.Fourth,the uses within a City designated"Country"zone may not be broader
than the permitted uses authorized by HRS§205-4.5(2001),but may be more restrictive.Fifth,the specific issue of whether the uses permitted in country zoning as applied in
this case is not ripe for review.Finally,whether an attorney-client privilege has been waived through an inadvertent disclosure of a protected item is judicially determined
through a consideration of the circumstances surrounding the disclosure.
Accordingly,for the reasons stated herein,we affirm the court's January 30,1998 final judgment.
I.
A.
Plaintiffs oppose a proposed residential development on state-designated agricultural district lands located on bluffs overlooking Sunset Beach.The land in question consists
of several large parcels owned by Defendants-Appellees Obayashi Corporation and Obayashi Hawai'i Corporation(Obayshi).The total size of this area is approximately
1143.6 acres.The land itself is generally depicted as two plateaus,divided by cliffs and ravines.Obayashi attests that several types of intensive commercial farming were
previously attempted on this property,but were abandoned due to"steep terrain,poor access,lack of appropriate irrigation,and the isolated pockets of good agricultural land."
In December of 1993,Obayashi proposed the development,designated as the"Lihi Lani Project,"wherein agricultural activity would be integrated with 315 large acre country
lots;fifty single family homes;eighty elderly rental units;fifty residences;a YMCAfacility;and a variety of trails,parks,and open space.Of interest on this appeal,each
proposed country lot contains land designated as an"agricultural easement,"to be used for field stock and fruit trees.In addition,a profit sharing agreement is planned for the
sale of agricultural products from the remaining acres,which are reserved solely for agricultural use.Plaintiffs contend that the proposed homes on these lots are expensive
ranch-style houses,contrary to the intent of an agriculture district designation.
On October 26,1994,the state Land Use Commission(LUC)approved a land use district boundary amendmen0l that reclassified 57.3 acres of the property from agricultural
to urban land use district.L1 This approval is uncontested in the instant case.
6 *6 Before development could begin,Obayashi attempted to obtain from the City and County of Honolulu(the City)an amendment to the North Shore Development Plan Use
Map,10 a Special Management Area Permit for 28 acres of land for the proposed elderly housing and the YMCAfacility,121 and a zoning reclassification of several hundred
acres of land from general agriculture(also known as"AG-2")t of to country designation.The State Department of Agriculture,pursuant to HRS§141-1(8)(1993),IL1 is
charged with reviewing and making recommendations with respect to agricultural planning and development.It submitted a letter to the City stating that Lihi Lani project was
"progressive"and more agriculturally defined then most approved agricultural subdivisions.After reviewing the proposed development,the City Planning Department and the
City Department of Land Utilization recommended approval.Thereafter,several public hearings were held before the City Council at Honolulu Hale,and at the Kapolei and
Haleiwa Elementary Schools.The City Council heard hours of testimony,including that of Plaintiffs.
On May 19,1995,five days before the City Council voted on the proposed change,Plaintiffs filed a complaint in the court.Copies of this complaint were circulated to the City
Council on the same day,as well as a letter from Plaintiffs'attorney suggesting that the City Council postpone its final vote on the Lihi Lani project so that the land use laws
could be more closely studied in the hopes of"avoid[ing]a protracted legal battle."
7 *7 On May 24,1995,the City Council passed,by a 5-to4 vote,bill number 89 granting a development plan amendment,resolution number 94-232 approving a SMA permit,
and bill number 88 to rezone 765 acres from AG-2 to country designation.
B.
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On June 8,1995,Plaintiffs filed an amended complaint challenging,in effect,the development plan amendment,the Special Management Area Permit,and the zoning
reclassification on both constitutional and statutory grounds and requesting injunctive and declaratory relief.[!-2I
On December 5,1995,a pretrial protective order was issued regarding a legal memorandum requested by the Plaintiffs from Obayashi,titled"State Agricultural District
Restrictions."LL3J This memorandum was listed as a reference in an environmental impact statement(EIS)114J prepared by University of Hawai'i Professor emeritus Dr.Frank
Scott on behalf of Obayashi.The court found that the memorandum was inadvertently disclosed to Dr.Scott,but held that the attorney-client privilege was not waived.
On October 10,1995,Obayashi filed a motion to dismiss or for summary judgment as to all counts.On January 5,1996,the City filed a joinder in Obayashi's motion to dismiss
or for summary judgment.On January 9,1996,Plaintiffs filed a counter-motion for summary judgment.
On March 27,1996,an order of dismissal was granted regarding counts II,III,IV,and V of the Plaintiffs'complaint on the ground that the issues raised were"premature."IL5]In
$ the order,the court expressly concluded that"no formal development plan or permit application has been submitted or final agency action taken."I 3 The court also denied'8
Plaintiffs'request for a temporary restraining order.
On September 9,1997,a jury waived trialLL7J based on stipulated evidence was held on the remaining claims in the amended complaint,namely counts I,VI,VII,Vill,IX and
X.On October 15,1997,the court issued findings and conclusions in favor of Defendants-Appellees City and Obayashi(collectively Defendants)as to all the remaining counts.
On January 30,1998,final judgment was entered in favor of the City and Obayashi and against Plaintiffs.On February 4,1998,Plaintiffs filed a notice of appeal.
11.
On appeal,Plaintiffs contest only the City's rezoning of 765 acres of land from AG-2 to country designation for the 315 country lots by City Council bill number 88,112J and the
granting of the discovery order preventing the production of the legal memorandum prepared for Obayashi.Plaintiffs do not challenge the dismissal of counts II,III,IV,and V.
Plaintiffs raise essentially the following arguments:(1)the City's act of rezoning the land from agricultural to country was a quasi-judicial act and,thus,directly reviewable by
this court on a de novo basis;(2)Article XI,section 3 of the Hawai'i State Constitution is self-executing and requires a two-thirds majority vote to approve the zoning change;
(3)because no standards and criteria have been designated by the legislature pursuant to Article XI,section 3,no"important"agricultural lands may be rezoned;(4)there was
no requirement that the legislature specifically designate agricultural lands as"important"under Article XI,section 3,as the drafters intended to adopt standards published just
prior to the 1978 constitutional convention;(5)the Country zoning change conflicts with ROH§21-5.30(c);(6)the City's approval of country zoning exceeded statutory
authority granted it under HRS chapter 205 and was inconsistent with the State's agricultural district designation of the land;and(7)the court erred in issuing the December 5,
1995 protective order.W'�
III.
A.
As to Plaintiffs'first argument on appeal,and in connection with the proper standard of review,we must decide whether rezoning of property by a county ordinance is a quasi-
judicial or legislative action.Plaintiffs argue that the rezoning affects only the property of Obayashi and accordingly the proposed changes should be subjected to a higher
standard of review.To support this contention,Plaintiffs cite an Oregon case which states that
9 's[An a]ction is legislative when it affects a large area consisting of many parcels of property in disparate ownership....Conversely,action is considered quasi-judicial when it
applies a general rule to a specific interest,such as a zoning change affecting a single piece of property,a variance,or a conditional use permit.
Allison v Washington Co.,24 Or.App.571,548 P.2d 188,190-91 (1976)(quoting Fasano v.Board of County Commis,264 Or.574,507 P.2d 23(Or.1973),).Contrary to the
Plaintiffs'position,this standard appears applicable only to"spot zoning."This court has defined spot zoning as
an arbitrary zoning action by which a small area within a large area is singled out and specially zoned for a use classification different from and inconsistent with
the classification of the surrounding area and not in accord with[a]comprehensive plan.
Life of the Land v.City Council,61 Haw.390,429,606 P.2d 866,190(1980).The usual presumption of validity may not be accorded spot zoning because of the absence of
widespread community consideration of the matter.
[A]determination of the use of a specific and relatively small parcel will affect only the parcel owner and the immediate neighbors.When that is the case,limited
community interest will mean little or no public debate.This limited interest,in turn,elevates concern over whether the rights of the individuals affected are
adequately safeguarded,and deference is inappropriate.
J.C.Juergensmeyer,T.E.Roberts,Land Use Planning and Control Law 191(1998)(emphasis added).Here,however,there is no indication of arbitrariness or concern over
whether rights have been properly safeguarded,see Life of the Land,61 Haw.at 429,606 P.2d at 890,,inasmuch as the property encompasses a large area and substantial
public comment and deliberation took place.Therefore,further spot zoning analysis is unnecessary.
B.
The City rezones by ordinance.See HRS§46-4(1993)("Zoning shall be one of the tools available to the county to put the general plan prepared or being prepared to guide
the overall future development of the county.");see generally Charter§6-1514("The council shall,after public hearings,enact zoning ordinances which shall contain the
necessary provisions to carry out the purposes of the general plan and development plans.").Although this court has stated,in dictum,that rezoning is a"legislative action of
the city council,"Kailua Comty.Council v.City&County of Honolulu,60 Haw.428,432,591 P.2d 602,605(1979),we have never expressly held that rezoning is a legislative
function.We do so now.
In Lam Yip Kee,this court considered whether an ordinance adopted by the City altering the designation of a small parcel of property from high to low density apartment use
was valid.70 Haw.at 184-85,767 P.2d at 819.A second ordinance,passed by an initiative vote,not only redesignated the property on the development map,but also"down-
zoned"the property.Id.This second initiative was found to be invalid at the trial court level,and the City appealed this ruling.Id.
On appeal,the landowner argued that(1)the ordinance was not in conformity with the general plan because the council was merely a"rubber stamp"to the voter initiative and
thus did not comply with the Hawai'i State Planning Act,HRS Chapter 226;and(2)the ordinance was illegal"spot zoning,"because the surrounding areas contained high
density apartments.In holding that the original city council ordinance was valid,this court stated that"[t]he enactment of and amendments to development plans constitute
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legislative acts of the city council,...and as such they are entitled to a presumption of validity."Id.at 190,767 P.2d at 822(citations omitted).Accordingly,the"challenger of the
ordinance bears the burden of showing that it is arbitrary,unreasonable or invalid."Id.(citations omitted).
In Lam Yip Kee this court did not reach the City's appeal of the second ordinance and did not address whether the zoning change was subject to the same standard accorded
10 to amendment of the development plan.Id.•10 Although an amendment to a development plan differs from a zoning ordinance,see id.at 191 n.13,767 P.2d at 823 n.13("We
note at the outset that the ordinance challenged by Lum Yip Kee is not a zoning'ordinance.Rather,the ordinance in question amended the development plan to change the
land use designation[.]"),both types of ordinances"predetermine[]what the law shall be for the regulation of future cases falling under its provisions[,]"Life of the Land,61
Haw.at 423,606 P.2d at 887,rather than merely"execute[]or administer[]a law already in existence[,]"id.at 424,606 P.2d at 887.Accordingly,we conclude that a zoning
ordinance is a legislative act and is subject to the deference given legislative acts.Accord J.Juergensmeyer&T.Roberts,Land Use Planning and Control Law 188(1998)
("Most states treat all zoning changes,whether general or site-specific,as legislative acts and accord them a presumption of validity.");D.Callies,Regulating Paradise:Land
Use Controls in Hawaii 34(1984)(explaining that"most courts regard the rezoning process as legislative").
IV.
Plaintiffs's second argument on appeal is that Article XI,section 3 of the Hawai'i State Constitution required an affirmative two-thirds vote of the City Council to pass Bill
Number 88,rather than the majority 5-to-4 vote taken.See Charter§3-107.1(stating that"except as otherwise provided,the affirmative vote of a majority of the entire
membership shall be necessary to take any action").Article XI,section 3 states that
[t]he State shall conserve and protect agricultural lands,promote diversified agriculture,increase agricultural self-sufficiency and assure the availability of
agriculturally suitable lands.The legislature shall provide standards and criteria to accomplish the foregoing.
Lands identified by the State as important agricultural lands needed to fulfill the purposes above shall not be reclassified by the State or rezoned by its political
subdivisions without meeting the standards and criteria established by the legislature and approved by a two-thirds vote of the body responsible for the
reclassification or rezoning action.
(Emphases added.)Emphasizing the words"approved by a two-thirds vote of the body responsible[,]"Plaintiffs argue that court erred in holding that bill number 88 was
approved.Z0 We review questions of constitutional law de novo,under a right/wrong standard.United Public Workers Local 646 v.Yogi,101 Hawaii 46,43,62 P.3d 189,192
.(2002)(citing Bank of Hawaii v.Kunimoto 91 Hawai'i 372,387,984 P.2d 1198,1213,reconsideration denied,91 Hawai'i 372,184 P.2d 1198(1999)).Also,
[i]n interpreting a constitutional provision,"the words of the constitution are presumed to be used in their natural sense...'unless the context furnishes some
ground to control,qualify or enlarge(them).`State ex rel.Amemiya v Anderson,56 Haw.566,577,545 P.2d 1175,1182(1976).(citation omitted).
"We have long recognized that the Hawai'i Constitution must be construed with due regard to the intent of the framers and the people adopting it,and the
fundamental principle in interpreting a constitutional principle is to give effect to that intent."Convention Center Auth.v Anzai 78 Hawai'i 157 167 890 P.2d 1197
1207(1995)."This intent is to be found in the instrument itself.When the text of a constitutional provision is not ambiguous,the court,in construing it,is not at
liberty to search for its meaning beyond the instrument."State v.Kahlbaun,64 Haw.197,201,638 P.2d 309,314,recon.denied,64 Haw.197,638 P.2d 309
.(1981)(citations omitted).
Id.at 192-93,62 P.3d at 192-93(emphases added).
A.
11 In upholding the City Council vote,the court held that the two-thirds vote mandate*11 was not operative because Article XI,section 3 was not self-executing and legislation
necessary to implement it had not been adopted.In State v.Rodrigues,63 Haw.412,414,629 P.2d 1111,1113(1981),this court established that a constitutional provision is
self-executing when it establishes"a sufficient rule by means of which the right given may be enjoyed and protected,or the duty imposed may be enforced[.]"(quoting Davis v.
Burke,179 U.S.399,403,21 S.Ct.210,45 L.Ed.249(1900)).Conversely,a provision is not self-executing when it"merely indicates principles,without laying down rules by
means of which those principles may be given the force of law."Id.
In Rodrigues,three defendants were indicted by grand juries.None of the juries were assigned an independent counsel to advise it.63 Haw.at 413-14,629 P.2d at 1112-13.
The defendants were convicted,and their appeals were consolidated.Defendants maintained that Article I,section 11 of the Hawai'i State Constitution,which provided that"
[w]henever a grand jury is impaneled,there shall be an independent counsel appointed as provided by law to advise the members of the grand jury regarding matters brought
before it"(emphasis added),was self-executing,and,thus,their indictments were obtained in violation of this provision,and should be dismissed,Rodrigues,63 Haw.at 414,
629 P.2d at 1113.
On appeal,this court determined that Article I,section 11 was not self-executing.Id.at 416,629 P.2d at 1115.It was held that the mere adoption of the constitutional
amendment creating the position of the independent counsel was not sufficient,but that further legislative action was necessary to implement it.Id.at 415,629 R2d at 1115.
Therefore,Rodrigues concluded that,until such legislation was enacted,the presence of the independent grand jury counsel in grand jury proceedings was not required.Id.at
416,629 P.2d at 1114-15.Consequently,this court concluded that Article I,Section 11 of the Hawai'i Constitution was not effective as to any defendant,and the trial court's
denial of the motion to dismiss was proper.Id.at 418,629 P.2d at 1115;see also State v Pendergrass,63 Haw.633,634,633 P.2d 1113,1114-15(1981),(discussing State v.
Rodrigues in connection with the principle that"the mere adoption of the constitutional amendment...was not enough to make the provision operative....[F]urther legislative
action was necessary to implement this constitutional provision").
B.
Read as a whole,Article III,Section 3 calls for future action to be taken by the legislature.The first sentence of section 3 sets out a mandate with respect to the preservation of
agricultural lands.The text then imposes a duty on the legislature to"provide standards and criteria to accomplish the foregoing[mandate]."The directive to"provide standards
and criteria"indicates a duty arising on the effective date of the provision.Indeed,Plaintiffs concede the duty to provide such standards relates to future action.Because the
provision calls for future action it negates the inference that any standards then in existence were incorporated by the amendment.
The last sentence of Section 3 confirms that the identification of important lands was to follow the adoption by the legislature of such standards.According to that sentence,
such identification was necessary"to fulfill the purposes[described]above[.]"The word"above"refers to the mandate contained in the first sentence that is imposed
prospectively.Hence,the sentence signals that identification was to be accomplished in the future.Also,the last sentence instructs that reclassification or rezoning of the
"lands identified""shall not"occur"without meeting the standards and criteria established by the legislature[.]"Plainly this means the"standard and criteria"in the second
sentence were to be adopted by the legislature after the amendment became effective.
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Pursuant to the directive to designate"important agricultural lands[,]"the legislature in 1983 passed Act 273 to establish a"land evaluation"commission to"identify,develop,
12 and recommend for legislative adoption important agricultural lands."I21]The purpose*12 of Act 273 was"to establish an independent agricultural land study commission to
advise the Legislature in the development of an agricultural land classification system for identifying important agricultural lands pursuant to Article XI,section 3 of the Hawai'i
Constitution."Hse.Stand.Comm.Rot.No.326,in 1983 Hse.Journal,at 980.It is undisputed that the commission made recommendations,but that the legislature failed to act
upon them.See infra part VII.The legislature has made no other significant efforts to satisfy its assigned duty since the adoption of Article XI,section 3.Thus,no"standards
and criteria"have been enacted after the effective date of section 3.
As was the case with another constitutional provision in Rodrigues,Article XI,Section 3 requires legislative action to become operative.The nature of the required legislative
action,at the least,was the adoption of standards and criteria.Because section 3 is not"complete in itself,"see Davis v.Burke,179 U.S.at 403,21 S.Ct.210("[w]here a
constitutional provision is complete in itself[,]it needs no further legislation to put it in force"),it requires implementing legislation.Hence,the framers appear to have required
that"standards and criteria"be adopted by the legislature before the second paragraph relating to a two-thirds vote becomes operative.22
V.
Plaintiffs third argument on appeal is that no lands could be reclassified without the legislatively defined"standards and criteria"referred to in Article XI,section 3.For the
reasons recounted in part IV.above,this argument is unavailing.Inasmuch as the provision is not self-executing,it has no effect and does not act as a barrier to
reclassification.
In adopting Act 274 in 1983,the legislature was aware that while the land evaluation commission conducted its study to make recommendations,"prime agricultural lands
maybe[sic]taken out of agricultural uses for other development before the legislature can intelligently adopt a studied plan for agricultural lands."Hse.Stand.Comm.No.454,
in 1983 House Journal,at 1041.In order to combat this potential problem,the legislature"appeal[ed]to the land use commission and the county planning and zoning bodies to
be cognizant of the importance placed upon prime and important agricultural lands"and urged such bodies"to comply fully with the intent of the State Constitution...and the
spirit in which this bill is recommended."Id.
The legislature reiterated that"faithful adherence to present state constitutional provisions for agricultural land classification or zoning,statutory protection and promotion of
agriculture,and regulatory identification of important agricultural land will substantially prevent such inappropriate and excessive conversion of agricultural land to other uses."
Conf.Comm.Rpt.No.43,in 1983 House Journal,at 800.
Although it is evident that Article XI,section 3 evinced the concern that agricultural lands were not being adequately protected,that concern did not abrogate the requirement
that the legislature establish standards and criteria for the preservation of agricultural lands.Until such standards are adopted,the section is legally inoperative.As a
13 consequence,the Lihi Lani lands could be rezoned without a two-thirds majority*13 vote of the City Council.Accordingly the court was correct in ruling in conclusion of law
number 6 that the passage of bill number 88 did not violate Article XI,Section 3 of the Hawai'i State Constitution.See supra note 16.
V1.
Plaintiffs'fourth argument is that the provisions of Article XI,section 3 were executed when the amendment was adapted in 1978,because the drafters intended to adopt soil
and land designation standards in existence at the time.In 1977,the United States Department of Agriculture Soil Conservation Service and the University of Hawai'i
Agriculture Experiment Station conducted and published a study designating and mapping various agricultural lands within the State as"Agricultural Lands of Importance to
the State of Hawaii"(ALISH).The intent of this program was to identify"agriculturally important lands"so as to"provide...decision makers with a valuable tool for use in
agricultural preservation,planning and development[.]"It is undisputed that land in the Lihi Land project was designated as"important"under the ALISH system.23
A.
The first proposed version of Article XI,section 3 included ALISH-like language.However,amendments deleted such language and added other text.The final version read as
followsl241(the bracketed section was to be deleted,while the underlined section was revised or added):
The State shall conserve and protect agricultural lands,promote diversified agriculture,increase agricultural self-sufficiency,and assure the availability of
agriculturally suitable lands.The legislature shall enact laws that will set forth standards and criteria applicable to accomplish the forgoing.
[Reclassification of lands identified by the State as prime', unique',or other important'agricultural lands in agricultural districts shall be subject to approval by
two thirds of each house of the legislature.These lands shall be protected and maintained for bona fide agricultural use.Necessary support facilities are
permissible.]Land identified by the State as important agricultural lands needed to fulfill the purposes above shall not be reclassified by the State or rezoned by
its political subdivisions without meeting the standards and criteria established by the legislature and approved by a two-thirds vote of the body responsible for the
reclassification or rezoning action.
(Emphases added.)Deletion of the words"prime,""unique,"or"other important"lands demonstrates the convention's decision to abandon the ALISH identification system as
the controlling classification scheme.L51
14 14 B.
In response,Plaintiffs contend that the change to section 3"merely removed the more specific,technical language(prime', unique',and other')and substituted the more
general but equally dispositive language'identified by the state as important."'Plaintiffs argue that this"is a common method of revision to make a proposed constitutional
amendment clearer and to avoid confusing voters with technical language."
We must disagree with this interpretation of the change in language in section 3.There is nothing in the final version of the amendment to indicate that the framers meant to
incorporate the ALISH classification system in the constitution.If the framers had intended ALISH to be applied,then they could have simply adopted the first draft of the
amendment that included ALISH language.Instead,the convention inserted different words which encompassed the more general designation of"important agricultural lands."
It further commanded that the legislature promulgate"standards and criteria,"presumably altering the emphasis on the ALISH standards contained in the original proposal.
Were the ALISH system to be incorporated to the exclusion of all others,it would not have been necessary to direct the legislature to adopt standards.
In a similar situation,this court considered the intent of the legislature in Maha'ulepu v Land Use Commission,71 Haw.332,790 P.2d 906(1990)and concluded that if the
delegates had intended to adopt ALISH at the 1978 Constitutional Convention,they would have expressly done so at that time.
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We believe that if the legislature had intended absolute protection from golf course uses for A and B rated agricultural lands,it would have done so unequivocally
by prohibiting the issuance of permits for golf courses under the special permit provisions...or by employing clearly prohibitory language...Because the
amendment...merely reiterated the provisions of§205-4.5,which provided authority for special permits for golf course uses on A and B rated lands,§205-2
cannot be construed as an outright prohibition on such permits.
Id.at 338-39,790 P.2d at 910.
In light of the foregoing,the word"important"can only be viewed in its common and usual sense.As noted earlier,"the words of the constitution are presumed to be used in
their natural sense...'unless the context furnishes some ground to control,qualify or enlarge them."'State ex rel.Amami ,56 Haw.at 577,545 P.2d at 1182(citation and
internal brackets omitted)(emphasis added).The common and ordinary meaning of the word"important,"rather than its technical,shorthand use in the ALISH system,would
be consistent with the meaning of the term in light of the foregoing.
Vil.
Plaintiffs'fifth argument on appeal is that a country district can not be established on state agricultural lands unless,pursuant to ROH§21-5.30,four guidelines used to identify
lands for country designation were met.As stated earlier,ROH§21-5.30(c)enumerates four guidelines for identifying potential country district lands.See supra note 5.
Plaintiffs argue that the guidelines are mandatory,and because not all four guidelines were met,the Lihi Lani lands could not be rezoned as a country district.
15 *15 We conclude that"use"or consideration of the four guidelines expressed in ROH§21-5.30(c)are mandatory,but that the ultimate designation decision arising out of that
mandatory consideration must,of necessity,involve the exercise of discretion.The use of the terms"shall"and"identify"appear to indicate that the guidelines must be utilized
in the consideration of specific lands for rezoning as a country district.Such consideration,however,involves the application of"guidelines."The plain and ordinary meaning of
the term"guideline"is"an indication or outline of future policy or conduct(as of a government)."Webster's Third New Int'I Dictionary 1009(1961).See also Grievance Adm'r v.
Underwood,462 Mich.188,194,612 N.W.2d 116(2000)("The plain meaning of guideline'is'an indication or outline of policy or conduct."'(Citations omitted.)); Tutein v
Dale,43 F.Supp.2d 113,121 n.14(D.Mass.1999)(defining"guideline'as'any guide or indication of future action"'(citation omitted)).Hence,"guidelines[,]"as defined in
ROH§21-5.30,denote individual factors that are not mandatory in themselves,but instead provide direction or guidance with respect to the ultimate decision to rezone.Any
rezoning to country,then must,pursuant to ROH§21-5.30,include consideration of the guidelines.But because guidelines presuppose the exercise of discretion,the failure to
satisfy all of them cannot be said to preclude identification of land as"country."
Therefore,the City Council must apply all the guidelines,but it is not restricted in approving a rezoning application that does not satisfy all four of them.In the instant case,the
Department of Land Utilization determined that the Lihi Lani project satisfied two of the four guidelines,namely that the land being zoned to"Country"was not predominantly
classified as prime,unique,or other lands of agricultural importance,and the existing public facility capacities would preclude intense development on the land.Accordingly,
the court did not err in making finding number 61 to the effect that all four guidelines need not be satisfied.26
Vlll.
Plaintiffs'sixth argument is that the City's country zoning designation conflicts with HRS chapter 205,because the uses allowed in a country district exceed those permitted
within the state agricultural district.In rebuttal,Obayashi contends that Plaintiffs are barred from arguing that the project fails to comply with HRS chapter 205 because they did
not object to the court's dismissal of counts II and III of Plaintiffs'complaint,which alleged,respectively,that(1)the proposed uses of the property do not qualify as a
permissible agricultural use under HRS chapter 205,and(2)that the property will not be used primarily for agricultural purposes.Obayashi argues,however,that country
zoning in this case is not inconsistent with HRS chapter 205,because chapter 205 permits"farm dwellings,"and the dwellings planned are"farm dwellings"within the definition
of HRS chapter 205.1271
The City agrees that Plaintiffs should be barred from arguing that County zoning conflicts with state agricultural zoning because Plaintiffs did not appeal the dismissal of the
counts related to this issue.In addition,the City maintains:(1)that it has"concurrent jurisdiction"with the State in agricultural districts;(2)it is empowered to enact any type of
16 zoning as long as the zoning complies with the"long-range,comprehensive,general plan"requirement of HRS§46-411281(3)it has the authority,pursuant*16 to HRS§205-6
(2001),12e1 to"permit certain unusual and reasonable uses within agricultural and rural districts other than those for which the district is classified[;]"(4)it is charged with the
"administration of county zoning laws"and"the restriction[s]on use and the condition[s]relating to agricultural districts under section 205-4.5[,]"HRS§205-12(2001),and
thus it will resolve permissible uses in an agricultural district at the time of permitting;and(5)as to any incompatibilities between uses authorized in country zoning and in
agricultural districts,only uses authorized by HRS chapter 205 can occur even if a country designation would ordinarily permit greater uses.
Count VI of the Plaintiffs's complaint raised the specific question of whether the City could zone land as country in a state-designated agricultural district.0 That count
requested a declaratory judgment that the City could not rezone agricultural district lands as country,injunctive relief preventing Obayashi from beginning construction or
development in a country zone,and injunctive relief enjoining the City from approving any use that is not permitted in an agricultural district.In addressing this count,the court
found in finding number 64 that"Plaintiffs have not demonstrated nor is the evidence sufficient to show that the zoning change from Agriculture to Country was inconsistent
with or violated the provisions of Chapter 205,HRS."Plaintiffs did assign error to this finding on appeal.Thus,Plaintiffs are not precluded from arguing this issue.
lX.
Initially we note that it is fundamental that authority to zone is conferred by the legislature on the counties.See Kaiser Hawaii Kai Dev.Co.V.City&County of Honolulu,70
Haw.480,483,777 P.2d 244,246(1989).("The counties of our state derive their zoning powers from HRS§46-4(a)(Supp.1988),referred to as the Zoning Enabling Act.").
17 However,counties are authorized to zone only according to the dictates of HRS§46-4 subject to limitations within HRS chapter 205.1U See HRS§205-5(a)*17("Except as
herein provided,the powers granted to counties under section 46-4 shall govern the zoning within the districts,32 other than in conservation districts.")Because the provisions
in HRS chapter 205 are"law[s]of statewide concern,"see Kaiser Hawaii Kai Dev.,70 Haw.at 489,777 P.2d at 249,,and HRS§46-4 does not relate to the City's"executive,
legislative[,]and administrative structure and organization[,]"id.at 489,777 P.2d at 250,the State's districting scheme prevails over the City's land use ordinance.Thus,any
conflict between the State provisions and the county zoning ordinances is resolved in favor of the State statutes,by virtue of the supremacy provisions in article VIII,section 6
of the Hawaii ConstitutionIM and HRS§50-15.1s41
Thus,if an ordinance truly conflicts with Hawai'i statutory law that is of statewide concern,then it is necessarily invalid because it violates article VIII,section 6 of
the Hawaii Constitution and HRS§§50-15—the state's supremacy provisions.A law of general application throughout the state[]is a law of statewide concern
within the meaning of article VIII,section 6[]of the Hawai'i...Constitution.Marsland[v.First Hawaiian Bank],70 Haw.[126,]133,764 P.2d[1228,]1232[(1988)].
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Richardson v.City&County of Honolulu,76 Hawai'i 46,66,868 P.2d 1193,1213.1994),(emphasis added;internal quotation marks omitted).Consequently,while the City's
contention that its zoning authority is"concurrent"is somewhat true,any zoning ordinance enacted by the City may not actually conflict with the provisions in HRS chapter 205.
Otherwise,the City is not authorized to so zone,and HRS§50-15 requires that we invalidate the ordinance.See Richardson,76 Hawai'i at 66,868 P.2d at 1213.
X.
The dual state and county land use designation approach is analogous to the requirement that property owners comply with both the county development plans and zoning
ordinances.In GATRI v Blane,88 Hawai'i 108,962 P.2d 367(1998),this court addressed the consistency required between development plans and county-enacted zoning
ordinances,both of which have the force and effect of law.Id.at 109,962 P.2d at 368.In GATRI,a general partnership(GATRI),desired to build a snack baron a parcel of
land which was zoned for B-R Resort Commercial(allowing for construction of the snack shop),although the development plan called for single family(SF)use(not allowing
for construction of the snack shop).Id.at 109,962 P.2d at 368.
When the developer submitted a SMA permit application to the Maui County Planning Commission,the permit was denied,because,although the county zoning designation
was proper,the snack shop was inconsistent with the county general plan.Id.at 109-10,962 R2d at 368-69.On appeal to the circuit court,GATRI argued that the decision of
the Director of the Commission was erroneous because a development which is consistent with the governing zoning ordinance is per se consistent with the development
plan,and thus,GATRI was entitled to the expanded list of uses permitted under the zoning ordinance,rather than the more restricted uses permitted under the development
plan.Id.at 110,962 P.2d at 369.
18 The circuit court issued a judgment in favor of GATRI,which the Director appealed.'18 Id.at 110,962 P.2d at 369.In reviewing the appeal,this court determined that,because
the development plan had the force and effect of law,"the development must be consistent with both the[development]plan and the zoning."Id.at 115,962 P.2d at 374.
Because GATRI was subject to both the development plan as well as the zoning ordinance,GATRI was entitled only to the more restricted uses allowed by the development
plan.See id.
In HawaiTs land use system the legislature's statutory districts constitute more of a general scheme,and,presumably,by delegating authority to zone to the counties,the
legislature intended that specific zoning be enacted at the county level.We believe that the"consistency doctrine"enunciated in Gatri is somewhat instructive in the instant
case.Because the uses allowed in country zoning,are prohibited from conflicting with the uses allowed in a State agriculture district,only a more restricted use as between the
two is authorized.By adopting a dual land use designation approach,the legislature envisioned that the counties would enact zoning ordinances that were somewhat different
from,but not inconsistent with,the statutes.
XI.
While the counties are empowered to enact zoning ordinances,HRS chapter 205 clearly limits the permissible uses allowed within an agricultural district.HRS§205-4.5(b)
states that"[u]ses not expressly permitted in subsection(a)shall be prohibited,except the uses permitted as provided in sections 205-6 and 205-8[.]"(Emphasis added.)Thus,
any use permitted by a country designation not expressly permitted in HRS§205-4.5(a)or by virtue of HRS§§205-6 or 205-8(2001)[15]conflicts with the statutory regime.
HRS§205-6 provides that:
The county planning commission may permit certain unusual and reasonable uses within agricultural and rural districts other than those for which the district is
classified.Any person who desires to use the person's land within an agricultural or rural district other than for an agricultural or rural use,as the case may be,
may petition the planning commission of the county within which the person's land is located for permission to use the person's land in the manner desired.
(Emphasis added.)However,we observe that the"reasonable and unusual"exception permitted by HRS§205-6 cannot be utilized to circumvent the essential purpose of the
agricultural district.In Curtis,90 Hawai'i at 397,978 P.2d at 835,this court held that the"essential purpose[of HRS§205-6]...is to provide landowners relief in exceptional
situations where the use desired would not change the essential characterof the district nor be inconsistent therewith."Id.(emphasis added)(citing Neighborhood Board No.
24(Waianae Coast)v.State Land Use Comm'n,64 Haw.265,639 P.2d 1097(1982)).Accordingly,while a landowner may request a permit for a use allowed by the country
designation but prohibited in an agricultural district,such a permit is appropriate only in an"exceptional situation"that does not contravene the general purpose of an
agricultural district.We have also concluded that an ordinance authorizing a zoning use more restrictive than that permitted under the statutory district,would not conflict with
such a regime and thus is permissible.See discussion supra.
XII.
Plaintiffs argue that a permitted use under the City's county district exceeds the state agricultural district because it allows the use of a"dwelling,detached,one-family[,]"and
requires no special permit for such use.HRS§205-4.5(a)(4)limits dwelling use to"[f]arm dwellings,employee housing,farm buildings,or activity or uses related to farming
and animal husbandry[.]"
19 But in the instant case it is not evident that the development would conflict with the most restrictive use as between country zoning and the agricultural district.As noted*19
above,Obayashi contends that its development will fit within the permitted uses of an agricultural district.01 Moreover,Obayashi does not indicate it seeks a special permit for
"reasonable and unusual"uses under HRS§205-6.As previously indicated,the City takes the position that issues as to the residential nature of the development"will be
presented only at the time actual uses are proposed"and"permits are sought."Also,the City generally maintains that at the time of permitting or enforcement only the most
restrictive uses would be authorized.
Under the ripeness doctrine,a court should"reserve judgment upon a law pending concrete executive action to carry its policies into effect[.]"Bremner v.City&County of
Honolulu,96 Hawai'i 134,144,28 P.3d 350,360(8pp.2001),,reconsideration denied,(July 5,2001),certiorari denied,(Aug.13,2001).On somewhat analogous grounds,this
court has explained the principles of the ripeness doctrine in relation to administrative decisions,as follows:
The need to avoid premature adjudication supports a definition of"dispute"that requires more than a"difference of opinion"as to policy.The rationale underlying
the ripeness doctrine and the traditional reluctance of courts to apply injunctive and declaratory remedies to administrative determinations is"to prevent courts,
through avoidance of premature adjudication,from entangling themselves in abstract disagreements over administrative policies,and also to protect the agencies
from judicial interference until an administrative decision has been formalized and its effect felt in a concrete way by the challenging parties."
Grace Bus.Dev Corp.v.Kamikawa,92 Hawai'i 608,612,994 P.2d 540,544(2000)(quoting Abbott Labs.v.Gardner,387 U.S.136,148,87 S.Ct.1507,18 L.Ed.2d 681
(1967));see also League of Women Voters of Hawaii v Doi,57 Haw.213,214,552 P.2d 1392,1393(1976).(explaining,in relation to a request for a declaratory judgment,that
this court was reluctant to"decide important questions regarding'the scope and constitutionality of legislation in advance of its immediate adverse effect in the context of a
concrete case[.]"'(Citation omitted.)).Thus,"[p]rudential rules of judicial self-governance founded in concern about the proper—and properly limited—role of courts in a
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democratic society,considerations flowing from our coequal and coexistent system of government,dictate that we accord those charged with drafting and administering our
laws a reasonable opportunity to craft and enforce them in a manner that produces a lawful result."Bremner,96 Hawai'i at 144,28 P.3d at 360(internal citations,brackets and
quotation marks omitted)(citing Life of the Land,63 Haw.166,172,623 P.2d 431,438(1981)).
In this case,Obayashi claims it will comply with HRS chapter 205.The City represents that it will enforce the appropriate statutes and ordinances and allow only the most
restrictive use of the land in the event of a conflict.Under these circumstances,we affirm the court's grant of summary judgment on Count VI but on the ground that Count VI is
not ripe for decision.1371 See Enos v Pacific Transfer&Warehouse,Inc.,79 Hawai'i 452,459,903 P.2d 1273,1280(1995),reconsideration denied(Oct.16,1995)(noting that
"it is well-settled that'[a]n appellate court may affirm a judgment of the lower court on any ground in the record which supports affirmance"')(Quoting Strouss v Simmons,66
Haw.32,40,657 P.2d 1004,1010(1982)(citations omitted)).This should not,however,bar Plaintiffs from raising this issue again as may be appropriate.See,e.g., The Skull
Valley Band of Goshute Indians v Leavitt,215 F.Sul2p.2d 1232,1252(D.Utah 2002).(noting that a determination of ripeness is final,"absent a change in factual circumstances
20 relating to the ripeness issue")(citing Solar v Merit Sys.Protection Bd.,*20 600 F.Supn.535,536(S.D.Fla.1984).);Johnston Ambulatory Surgical Assocs.,Ltd.v.Nola n,755
A.2d 7 ,813(R.I 2000)(noting that a"change in material circumstances"prevented application of res judicata to a previously made ripeness decision).
XIII.
Plaintiffs'remaining issue on appeal concerns the court's protective order of a memorandum prepared by Obayashi's attorneys,and transmitted to an expert witness who listed
it as a reference in a publicly issued EIS.t381 We review a trial court's ruling on a motion to compel discovery under an abuse of discretion standard.See,e.g.,Hac v.University
of Hawaii,102 Hawaii 92,100-01,73 R3d 46,54-55(2003)(citations omitted)."An abuse of discretion occurs when the trial court has clearly exceeded the bounds of reason
or disregarded rules or principles of law or practice to the substantial detriment of a party litigant."Id.(citations omitted).
A.
As a preliminary matter,it is necessary to distinguish between the attorney-client and the work-product privileges.The attorney-client privilege is codified in the Hawai'i Rules
of Evidence(HRE)Rule 503,which provides that a client"has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications
made for the purpose of facilitating the rendition of professional legal services to the client[.]"HIRE Rule 503(b);see also DiCenzo v Izawa 68 Haw.528 535 723 P.2d 171
175 1986)(noting that prior to codification,the"common-law attorney-client privilege[has been]long recognized by the courts of Hawaii").The underlying principle of this
privilege is to"encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and
administration of justice[.]"State v Wong,97 Hawai'i 512,518,40 P.3d 914,920(2002).(quoting United States v Zolin 491 U.S.554,562,109 S.Ct.2619,105 L.Ed.2d 469
.(1989));see also DiCenzo 68 Haw.at 535,723 P.2d at 175(explaining that"lawyers can act effectively only if they are fully advised of the facts by the parties they represent
and disclosure will be promoted if the client knows that what he tells his lawyer cannot be extorted from the lawyer"(internal quotation marks,brackets,and ellipses omitted)).
On the other hand,the work-product privilege has its foundation in HRCP Rule 26,01 which states that parties"may obtain discovery regarding any matter,not privileged,"
(emphasis added),and indicates that"discovery of documents and tangible things...prepared in anticipation of litigation or for trial"shall be disclosed only upon a showing of
"substantial need of the materials"and"undue hardship"in obtaining the materials in another fashion.HRCP Rule 26(b)(3).Further,"[i]n ordering discovery of such materials
when the required showing has been made,the court shall protect against disclosure of the mental impressions,conclusions,opinions,or legal theories of an attorney or other
representative of a party concerning the litigation."HRCP Rule 26(b)(3).
Although Obayashi repeatedly states that the memorandum contains"legal analysis,legal impressions and legal conclusions"there is no indication that it was prepared in
anticipation of litigation.We must conclude then that the work-product privilege is inapplicable.I401
B.
To come within the attorney-client privilege,the communication must be a"confidential communication made for the purpose of facilitating the rendition of professional legal
21 services"between appropriate*21 parties as stated in HIRE Rule 503(b).Accordingly,a communication occurring in the following manner is privileged:
(1)where legal advice of any kind is sought(2)from a professional legal adviser in his[or her]capacity as such,(3)the communication relating to that purpose,
(4)made in confidence(5)by the client,(6)are at his[or her]instance permanently protected(7)from disclosure by himself or by the legal adviser,(8)except the
protection be waived.
Sapp v Wong 62 Haw.34 38 609 P.2d 137 140(1980)(quoting 8 Wigmore,Evidence,§2292(McNaughton rev.1961)).However,as in Sapp,a reviewing court may
determine that under the circumstances of the case that there was an invocation of the privilege.See Sapp 62 Haw.at 39 609 P.2d at 141 ("We,however,go farther than
deciding that the proper determinations were not made.Under the circumstances of this case,...[the comments]fall within the ambit of the privilege[.]").Here,it was apparent
that the memorandum was prepared on behalf of a representative of Obayashi in an effort to ensure that the proposed development met all applicable laws and Obayashi's
needs.As such,the allegations sufficiently met the requirement that the memorandum was a confidential communication made for the purpose of facilitating the rendition of a
legal service for Obayashi between Obayashi's representative and a lawyer.HIRE Rule 503(b).As such,we conclude that it was not an abuse of discretion to determine that
the memorandum was privileged.
XIV.
Plaintiffs assert that the disclosure of the memorandum to an expert witness and the subsequent citation to the memorandum in a public document waived any privilege.HIRE
Rule 511 governs the waiver of privilege through a"voluntary"disclosure,and states:
A person upon whom these rules confer a privilege against disclosure waives the privilege if,while holder of the privilege,the person or the person's predecessor
voluntarily discloses or consents to disclosure of any significant part of the privileged matter.This rule does not apply if the disclosure itself is a privileged
communication.
HIRE Rule 511(emphasis added).The commentary to this rule explains that"[a]ny intentional disclosure by the holder of the privilege defeats[the purpose of the privilege]and
eliminates the necessity for the privilege in that instance."Thus,a waiver analysis would focus on whether the disclosure was voluntary.Cf.Territo v.Cabrinha,24 Haw.621,
. ................................................................
626(1919)(expressing that"[i]n all cases where a personal privilege exists for a witness to testify or not,if such witness does testify without objection he will be deemed to
have done so voluntarily"(citation omitted));Takamori v Kanai,11 Haw.1,2(1897),(holding that the act of"voluntarily"putting defendant's counsel on the witness stand
waived the claim of privileged communication).
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XV.
The effect of an inadvertent disclosure of information upon the attorney-client privilege has not been decided in this jurisdiction.It appears that there is no consensus among
other jurisdictions as to whether an inadvertent disclosure constitutes a voluntary or intentional disclosure.See,generally,J.Hundley,Waiver of Evidentiary Privilege by
22 Inadvertent Disclosure-State Law,51 A.L.R.5th 603,634,1998 WL 2606(1997)*22(noting three principal approaches to this problem:(1)strict responsibility for the
disclosure;(2)no disclosure as there is no intentional relinquishment of the privilege;and(3)consideration of a multitude of factors to determine voluntariness of the
disclosure);see,e.g.,Alldread v.City of Grenada,988 F.2d 1425,1434(5th Cir.1993)(following a"majority of courts"in looking to"the facts surrounding a particular
disclosure");Manufacturers and Traders Trust Co.v Servotronics,Inc.,132 A.D.2d 392,_M,522 N.Y.S.2d 999(N.Y.Apn.Div.1987)(holding that"[i]ntent must be the primary
component of any waiver test"); gett v.Commonwealth,252 Va.79,472 S.E.2d 263,2�(1996)(explaining that when a"communication takes place under circumstances
such that persons outside the privilege can overhear what is said"waives the attorney-client privilege);cf State v Soto,84 Hawai'i 229,239-41,933 Pi 66,76-78(1997)
(holding that communications between a criminal defendant and her counsel knowingly conducted in a public hallway of the circuit courthouse in the presence of a confidential
informant who was not a member of the defense team were not protected by the attorney-client privilege because they were not"confidential").
"Traditionally,courts have held that inadvertent disclosure waives the privilege because the client and attorney possess sufficient means to preserve the secrecy of a
communication and because disclosure makes achievement of the benefits of the privilege impossible."Manufacturers and Traders,132 A.D.2d at 398,522 N.Y.S.2d 999;see
also Apex Municipal Fund v.N-Group Securities,841 F.Supp.1423,1432(S.D.Tex.1993)("Under the traditional approach an inadvertent disclosure automatically waived the
privilege.");8 Wigmore,Evidence§2325 at 633(McNaughton rev.1961)("All involuntary disclosures,in particular,through the loss or theft of documents from the attorney's
possession,are not protected by the privilege,on the principle that,since the law has granted secrecy so far as its own process goes,it leaves to the client and attorney to
take the measures of caution sufficient to prevent being overheard by third persons.The risk of insufficient precautions is on the client.").
It would appear the traditional test has been rejected in Hawaii.HIRE Rule 511 provides that a disclosure must be"voluntary[,]"thus indicating that a disclosure that is
involuntary would not result in a loss of privilege.Moreover,it has been observed that the traditional approach appears to be unduly harsh inasmuch information could be
prevented from being introduced into court"at least prior to the time that remedying an accidental production would cause the adversary any prejudice[.]"Manufacturers and
Traders,132 A.D.2d at 398,522 N.Y.S.2d 999(citations omitted).
Other courts have stated that only the client can waive the privilege,and thus inadvertent disclosures by an attorney or a representative cannot amount to a voluntary waiver.
U KL Grp n v.Case,Kay&Lys,829 F.2d 909(9th Cir.1987)is illustrative,insofar as the Ninth Circuit applied HIRE Rule 511 in a diversity case involving a Hawai'i party.In
KL Group,a letter between a law firm and its client was inadvertently produced among 2,000 other documents during the course of discovery.Id.at 917.The ninth circuit noted
that only the client held the right of the privilege.Thus that court held that"under either Hawai'i or California law,[the client]did not waive its attorney-client privilege by[the law
firm's]production of the letter."Id.at 919.
We believe that this approach,however,ignores the fact that an attorney acts as an agent and may possess the authority to bind the client.Instead,the modern approach,
which we choose to adopt,is that"consideration is given to all of the circumstances surrounding the disclosure[.]"Alldread 988 F.2d at 1433.Under such an approach,a court
may consider the following factors:"(1)the reasonableness of precautions taken to prevent disclosure;(2)the amount of time taken to remedy the error;(3)the scope of
discovery;(4)the extent of the disclosure;and(5)the overriding issue of fairness."Id.In Alldread,the court explained the rationale behind this approach,stating:
23 [t]his analysis serves the purpose of the attorney client privilege,the protection of communications which the client fully intended*23 would remain confidential,yet
at the same time will not relieve those claiming the privilege of the consequences of their carelessness if the circumstances surrounding the disclosure do not
clearly demonstrate that continued protection is warranted.
Id.Accordingly,a trial court must look to the facts of each case to determine whether a waiver has occurred.We will review a ruling on waiver under a clearly erroneous
standard.See id.(noting that the court's findings"are essentially factual in nature and therefore are reviewed under a clearly erroneous standard").
XV1.
Applying the foregoing factors,we believe the court erred in issuing a protective order.From the depositions,it is apparent that little effort was made to keep the memorandum
confidential.Obayashi admits that it has no idea how the expert witness obtained the memorandum,nor does it appear from the testimony that steps were made to ensure the
security of the document once it was given out.Minimal efforts could have been made,such as noting on the top of the page that the document was confidential.
Also,the time it took for Obayashi to assert privilege was not reasonable.Presumably the EIS was read by either Obayashi or a representative of Obayashi before it was made
public,and the revelation of confidential memorandum as a citation should have alerted someone as to the mistake.However,no effort was made to rectify this error until
Plaintiffs sought the memorandum.In addition,despite requests for the memorandum in August,1995,Obayashi did not begin claiming that the memorandum was privileged
until October,1995.
Finally,in the interest of fairness,Plaintiffs should have had an opportunity to review the memorandum.As Plaintiffs argue,Obayashi received the presumed benefit of citing to
the memorandum in the EIS.Because Plaintiffs are,in effect,attacking the validity of Obayashi's compliance with state and city laws,it would be unfair to allow Obayashi to
cite a source of information to gain approval,but to withhold the same information when such approval was challenged.
However,despite the court's error,we believe that the issuance of a protective order was harmless.In their memorandum in opposition to the protective order,Plaintiffs stated
that they sought to demonstrate"that the agricultural'plan is essentially a sham designed to camouflage and justify an upscale housing development and does not satisfy the
requirements of State or County land use law."Thus,the purpose of the discovery was to attack the proposal itself.But,as noted above,such a review is premature,and
accordingly it does not appear that the memorandum would have assisted Plaintiffs in their argument.As such,Plaintiffs were not prejudiced by the court's protective order.
XVII.
We therefore affirm the January 30,1998 final judgment.
[1]Plaintiffs Save Sunset Beach Coalition and Life of the Land are non-profit corporations organized and existing under laws of the State of Hawai'i with their principal places of business in Honolulu,Hawaii.Other plaintiffs
are residents of the North Shore of Oahu.
[2]"Rezoning"is the act of changing the designated zoning applicable to an area of land.See Webster's Third New Int'I Dictionary 1945(1986)(defining the term"rezone'as"to zone anew");see also Daniel R.Mandelker,
Land Use Law§6.25(5th ed.2003).
[3]Under HRS§205-2(a)(1993),"[t]here shall be four major land use districts in which all land in the State shall be placed:urban,rural,agricultural,and conservation."The land in question in the instant case is designated
"agricultural"
[4]Pursuant to Hawaii Revised Statutes(HRS)§205-5(2001),"the powers granted to the counties under section 46-4 shall govern the zoning within the districts,other than in conservation districts."(Emphasis added.)
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[5]ROH§21-5.30 describes the purpose of country districts and enumerates four guidelines for identifying potential country district lands.It states:
(a)The purpose of the country district is to recognize and provide for areas with limited potential for agricultural activities but for which the open space or rural quality of agricultural lands is desired.The district is intended to
provide for some agricultural uses,low density residential development and some supporting services and uses.
(b)It is the intent that basic public services and facilities be available to support the district but that the full range of urban services at urban standards need not be provided.Typically,the country district would be applied to
areas outside the primary and secondary urban centers,which are identified by city adopted land use policies.
(c)The following guidelines shall be used to identify lands which may be considered for this district:
it)Lands which are within the State-designated Urban District and designated either agricultural or residential by adopted city land use policies.
(2)Lands which are not predominantly classified as Prime,Unique,or Other under the ATISH]system.
(3)Lands where a substantial number of existing parcels are less than two acres in size.
(4)Lands where existing public facility capabilities preclude more intense development.
(Emphasis added.).
[�J HRS§205-3(2001)slates that"[I]and use boundaries existing as of June 2,1975,shall continue in full force and effect subject to amendment as provided in this chapter[.]"HRS§205-3.1(2001)relates that"[d]istrict
boundary amendments involving land areas greater than fifteen acres shall be processed by the land use commission pursuant to section 205-4."In turn,HRS§205-4(2001)provides procedures and requirements for the
land use commission to follow in amending district boundaries.
[7]As noted before,HRS§205-2(a)states that there are four major land use districts,"urban,rural,agricultural,and conservation."HRS§205-2(b)states that"[u]rban districts shall include activities or uses as provided by
ordinances or regulations of the county within which the urban district is situated."
[8]In Lam Yip Lae. td.,70 Haw.at 182 767 P.2d at 817„this court explained that the 1973 Revised Charter of the City and County of Honolulu(Charter)was amended"for creation of eight'development plans'for the City
and County of Honolulu."Adevelopment plan is a"relatively detailed scheme[]for implementing and accomplishing the development objectives and policies of the general plan within the several parts of the city."Id.(citing
Charter§5-409).In addition,
[e]ach development plan consists of a textual component and a map component.The textual component contains statements of standards and principles with respect to land uses within the area,design principles and
controls,the desirable sequence of development,and other factors important to the orderly implementation of the General Plan.The development plan"Land Use Map"indicates the location of various uses such as
residential,recreation and parks,agricultural,commercial,military,and preservation.The"Public Facilities Map"shows the existing and future location of roads and streets,sewer lines and other proposed facilities.
Id.at 182,767 P.2d at 817-18(Citations omitted).Honolulu's general plan has been described as a long range plan setting forth various policies for new development.
Designed to cover a wide range of objectives,the Honolulu general plan is supposed to"set forth the city's broad policies for the long range development of the city,"addressing the general social,economic,environmental,
and design needs of the city.It includes within its purview policy and development objectives relating"to the distribution of social benefits,the most desirable uses of land within the city,the overall circulation pattern and the
most desirable population densities"within the city.The development plans are supposed to implement the general plan's goals.
D.Callies,Regulating Paradise:Land Use Controls in Hawaii 26(1984)(footnote omitted).
M Pursuant to HRS§205A-22(2001),a'"[s]pecial management area use permit'means an action by the authority authorizing development the valuation of which exceeds$125,000 or which may have a substantial
adverse environmental or ecological effect,taking into account potential cumulative effects."See also Curtis v.Board ofAgnaals.County of Hawai'i,90 Hawaii 384,389 n.5,978 P.2d 822,827 n 1999),.
H0]According to ROH§21-2.10(1990),there are two agricultural zones,"restricted"and"general"with the map designation of"AG-1"and"AG-2"respectively.
[11j HRS§141-1(8)states:
Planning and development.Administer a program of agricultural planning and development,including the formulation and implementation of general and special plans,including but not limited to the functional plan for
agriculture;administer the planning,development,and management of agricultural park projects;review,interpret,and make recommendations with respect to public policies and actions relating to agricullural land use;
assist in research,evaluation,development,enhancement,and expansion of local agricultural industries;and serve as liaison with other public agencies and private organizations for the above purposes.In the foregoing,
the department of agriculture shall act to conserve and protect agricultural lands,promote diversified agriculture,increase agricultural self-sufficiency,and ensure the availability of agriculturally suitable lands.
(Emphases added.).
[12]In Count I,Plaintiffs asserted that the City did not comply with the requirements of Article IX,section 3 of the Hawai'i State Constitution in its purported rezoning of Defendants'property and consequently they are entitled
to both declaratory and injunctive relief that would enjoin the rezoning.Count II of Plaintiffs complaint alleged that Obayashi's residential developmentwas inconsistent with the State's"agricultural"designation and the
Country Land Use Ordinance,and Plaintiffs were entitled to declaratory and injunctive relief enjoining the development under this"agricultural"land use classification.In Count III,Plaintiffs alleged that the City's actions
violated the State and County land use laws and ordinances.Counts IV and V purport that Defendants submitted an"agricultural duster"development which did not qualify as a"farm dwelling"within the meaning of HRS
Chapter 205 and violates Land Use Ordinance maximum density restrictions.Count VI asserts that the proposed"country"zoning is also inconsistent with State"agricultural"designation and violates the Land Use
Ordinance.Count VII maintained that the development plan amendment procedures violated the Land Use Ordinance and City Charter because it is unlawful to amend the plan"on an ad hoc basis prior to completion of the
Planning Director's pending biennial Development Plan review."To this end,count VIII also argued that the amendment and zoning procedures violated HRS§46-4(1993),because it was not"accomplished within the
framework of a long range,comprehensive general plan prepared or being prepared to guide the overall future development of the county."Count IX alleged that the permit application was insufficiently detailed to
adequately assess conditional uses of the project.And,finally,Count X asserted that there is a substantial likelihood that Plaintiffs would prevail on the merits,and thus Plaintiffs were entitled to interim injunctive relief in the
form of a temporary restraining order,preliminary injunction,or other appropriate interim relief.
[13]The Honorable Judge Daniel G.Heely presided over this matter.
[L4J An EIS is defined as"an informational document prepared in compliance with the rules adopted under section 343-6 and which discloses the environmental effects of a proposed action,effects of a proposed action an
the economic and social welfare of the community and Slate,effects of the economic activities arising out of the proposed action,measures proposed to minimize adverse effects,and alternatives to the action and their
environmental effects."HRS§343-2(1993).
[15]The Honorable Judge Colleen K.Hirai presided over the motions to dismiss and the motions for summary judgment.
[16]In its motion to dismiss or for summary judgment,Obayashi stated that it had yet to comply with the requirements of ROH§21-8.30-6("Before the submission of a cluster housing,agricultural or country cluster
application,the applicant may undergo a 21 day conceptual review of the project by submitting a preliminary site plan drawn to scale showing the approximate location and dimensions of all proposed structures,roadways,
common open areas and recreational facilities.").See also ROH§21-5.50-3("All cluster housing applications shall be processed in accordance with Section 21-8.30-6.");ROH§21-5.30-3(b)("Country clusters shall be
processed in accordance with Section 21-8.30-6.").Presumably,the court made its conclusion based upon this submission.
In its answering brief on appeal,Obayashi additionally maintains that individual lots must be established by approving a subdivision of the property,see ROH§22-3.3("No person shall subdivide or consolidate any land
unless the plans therefor conform to the provisions of this article...and have been duly approved by the director."),grading and building permits must be approved,and approvals obtained for the specific items like a
wastewater treatment plant and campgrounds.
[17]The Honorable Karen K.Blondin presided over this trial.
[18]As noted by Obayashi,Plaintiffs do not challenge either the development plan amendment or the Special Management Area permit.
[19]Plaintiffs contest several findings and conclusions,insofar as they are supportive of the aforementioned arguments on appeal.Each of these challenged findings and conclusions is addressed with the related issue
discussed herein:(1)finding number 50,relating to the number of acres classified under the ALISH system,see infra note 22;(2)finding number 61,indicating that the guidelines in ROH§21-5.30(c)were utilized by the City
in approving the zoning change,see infa part VIII.;(3)finding number 64 stating that there was insufficient evidence to demonstrate that the zoning change from agriculture to country was inconsistent or violated HRS
chapter 205,see infra part IX.;(4)conclusion number 5 maintaining that Bill 88 did not violate Article XI,Section 3 of the Hawai'i State Constitution,see infra part III.;and(5)conclusion number 6 ruling that Plaintiffs did not
demonstrate that the rezoning violated ROH§21-5.30 or HRS chapter 205,see infra parts VIII.-XIII.
`201 Conclusion number 5,see supra note 19,ruled that bill number 88 did not violate Article XI,Section 3 of the Hawai'i State Constitution.
[21]Act 273 stated,in pertinent part:
SECTION 2 State of Hawai'i land evaluation and site assessment commission....
(b)Purpose and operation.The commission shall identify,develop,and recommend for legislative adoption important agricultural lands pursuant to the land classification system specified in subsection(d)....
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(d)State of Hawaii land evaluation and site assessment.The commission shall formulate the State of Hawai'i land evaluation and site assessment system in identifying agricultural lands of importance to the State of Hawaii.
In the formulation of the system,the commission shall take into consideration existing data provided by previous studies done under the Land Study Bureau and appropriate attributes of the Land Study Bureau's Detailed
Land Classification system and the Agricultural Lands of Importance to the State of Hawaii system....
`221 Although we observe that Article XVI,section 16 states that:"The provisions of this constitution shall be self-executing to the fullest extent that their respective natures permit r,]"(emphasis added),we believe that the
clear reference to further legislative action dictates that section 3 is not self-executing.
`231 There is some dispute over the exact amount of land designated on Obayashi's property as"important"under the ALISH system.This fact is immaterial to the resolution of the issue,however,inasmuch as we conclude
that the ALISH system was not incorporated into Article XI,section 3.See infra.Accordingly,we do not need to reach the question of whether finding number 50,relating to the amount of land designated as"important"
under the ALISH system,is in error.See supra note 19.
[24]Amendment No.9 amended section 6 of Cam.R No.17,RD.1,to read as stated above.
r251 The City contends that drafters intentionally omitted the use of ALISH terminology as the basis for determining"important agricultural lands."The City refers to testimony of several members of the constitutional
convention as evidence that the ALISH-like original language was intentionally omitted.For example,during debates on the proposed amendment Delegate Harris stated that:
As one whose strong platform is the preservation of agricultural land,I can honestly tell you that I would perhaps prefer something much stronger but I beliefthis is a reasonable compromise.This I think addresses the
problem,while at the same time not being overly restrictive.I urge this delegation to unanimously support this very important proposal.
Proceedings of the Constitutional Convention of Hawaii of 1978,Volume 1,Journal and Documents,at 441(1980)(hereinafter Proceedings)(emphasis added).Similarly,Delegate Hornick submitted written testimony to the
fallowing:
Cam.P.No.17 attempted to deal with these problems by identifying the best agricultural lands and imposing a heavy requirement for their reclassification-two-thirds vote of the legislature.However,several concerns have
since been raised-to the effect that this requirement is too burdensome and a compromise is needed,that will reemphasize the need for preserving our agricultural lands and increase LUC accountability while still allowing
for the weighing of other social needs.
This amendment fits those criteria.It combines the original strong policy statement with a mechanism by which the community can require more LUC compliance with the intent of the land use law,by requiring two-thirds
vote of the LUC for reclassification and the city or county council for rezoning.
I personally prefer stronger protection for the best agricultural lands,but I do feel that this amendment is a workable compromise and a positive step in the right direction.I urge its adoption.
Proceedings,supra,at 443(emphasis added).Thus the City argues that"the only material pertinent to the deletion of ALISH as the touchstone[to the amendment]appears to be that its use as such would be too
burdensome,and that the'identification'needed to achieve the Convention's purpose should be preceded by the adoption of standards and criteria adopted by the Legislature."(Emphasis in original.)
`261 Finding number 61 stated:
Although the guidelines were factors the City was required to consider in determining whether to rezone the 765 acres to County,ROH§21-5.30 did not require that all four of the guidelines must be met,or preclude
Country zoning for lands that satisfy less than four of the guidelines.
See supra note 16.
[27]HRS§205-4.5(a)(4)(2001)defines"farm dwelling"as"a single-family dwelling located on and used in connection with a farm,including clusters of single-family farm dwellings permitted within agricultural parks
developed by the State,or where agricultural activity provides income to the family occupying the dwelling[.]"
[ZW HRS§46-4 provides that:
Zoning in all counties shall be accomplished within the framework of a long range,comprehensive general plan prepared or being prepared to guide the overall future development of the county.Zoning shall be one of the
tools available to the county to put the general plan into effect in an orderly manner....In establishing or regulating the districts,full consideration shall be given to all available data as to soil classification and physical use
capabilities of the land so as to allow and encourage the most beneficial use of the land consonant with goad zoning practices.The zoning power granted herein shall be exercised by ordinance which may relate to:
(1)The areas within which agriculture,forestry,industry,trade,and business may be conducted.
(2)The areas in which residential uses may be regulated or prohibited.
(4)The areas in which particular uses may be subjected to special restrictions.
(5)The location of buildings and structures designed for specific uses and designation of uses for which buildings and structures may not be used or altered.
(12)Other such regulations as may be deemed by the boards or city council as necessary and proper to permit and encourage orderly development of land resources within theirjurisdictions.
The powers granted herein shall be liberally construed in favor of the county exercising them,and in such a manner as to promote the orderly development of each county ai city and county in accord with a long range,
comprehensive,general plan,and to insure the greatest benefit for the State as a whole.
(Emphases added.).
[29]HRS§205-6 provides that:
The county planning commission may permit certain unusual and reasonable uses within agricultural and rural districts other than those far which the district is classified.Any person who desires to use the person's land
within an agricultural or rural district other than for an agricultural or rural use,as the case may be,may petition the planning commission of the county within which the person's land is located for permission to use the
person's land in the manner desired.
[30]Among other things,Plaintiffs alleged in Count VI that"[t]he stated purpose of'Country'zoning to provide for low density residential uses is inconsistent with the permissible uses and purposes of the State-designated
'Agricultural'district."
[31]HRS§46-1.5 states,in pertinent part:
Subject to general law,each county shall have the following powers and shall be subject to the following liabilities and limitations:
(13)Each county shall have the power to enact ordinances deemed necessary to protect health,life,and property,and to preserve the order and security of the county and its inhabitants on any subject or matter not
inconsistent with,amending to defeat,the intent ofanystate statute,provided also that the statute does not disclose an express or implied intent that the statute shall be exclusive or uniform throughout the State.
(Emphasis added.).
[32]The term"districts"is defined in supra note 1.
`331 Article Vill,section 6 states"This article shall not limit the power of the legislature to enact laws of statewide concern."
[34]HRS§50-15 states:
Notwithstanding the provisions of this chapter,there is expressly reserved to the state legislature the power to enact all laws of general application throughout the State on matters of concern and interest and laws relating to
the fiscal powers of the counties,and neither a charter nor ordinances adopted under a charter shall be in conflict therewith.
(Emphasis added.).
[35]HRS§205-8,which permits any"lawful use of land or buildings existing on the date of establishment of any interim agricultural district and rural district in final form[,]"is not relevant here.
[36]Obayashi argues that the specific plans of the Lihi Lani project fall under the definition of a"farm dwelling."However,the court held that this issue was premature as Obayashi has yet to submit a formal development
plan or request a final agency action on the proposed development.Plaintiffs have not appealed this determination and thus we do not reach Obayashi's contentions.
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[37]In conclusion number 6,see supra note 19,the court held that"Plaintiffs have not demonstrated nor does the evidence show that these measures or procedures were inconsistent with and/or violated...HRS Chapter
205[.]"
[38]The City takes"no position"on the issue of the protective order.
`391 The work product doctrine was largely articulated by the United States Supreme Court in Hickman v.Tavlor,329 U.S.495,67 S.Ct.385,91 L.Ed.451(1947).That Court held that without a showing of necessity,most
"written statements,private memoranda and personal recollections prepared or formed by an adverse party's counsel in the course of his legal duties"were not otherwise discoverable.Id.at 510,67 S.Ct.385.
[40]We acknowledge the controversy over whether materials given to a testifying expert witness are discoverable,even if these materials may otherwise fall under the work-product privilege.The genesis of this controversy
rests upon the language of the Federal Rules of Civil Procedure(FRCP)Rule 23(b)(3),upon which the HRCP are based upon.FRCP rule 23(b)(3)implies that in the interest of broad discovery of information regarding a
testifying expert witness,all materials provided to such a witness including items protected by the work-product rule,are discoverable.See D.Oishi,A Piece of Mind for Peace of Mind:Federal Discoverability of Opinion
Work Product Provided to Expert Witnesses and its implications in Hawaii,24 U.Haw.L.Rev.859,884-85(2002)(observing the current split among the circuits and recommending that Hawaii"adapt the bright-line rule"of
requiring discovery);see also B�gosian v.Gulf Oil GorR,738 F.2d 587,594(3rd Cir.1984)(analyzing identical language to HRCP Rule 26 and concluding that the work product privilege rule is not subscribed by FRCP Rule
26(b)(4));Intermedics Inc.vInc.v.Ventritex lncInc.,139 F.R.D.384 3, 990(N.D.Cal.1991),(rejecting Bagcsian and concluding that the drafters of the rules desired to allow a"fair opportunity to expose whatever weaknesses,
unreliabilities,or biases[that]might infect the opinions of testifying experts called by adverse parties").As the present memorandum does not appear to fall under the work product rule,see supra,we need not address these
issues.
[41]We note that it is unknown whether Obayashi made the disclosure,or some other party.
Save trees-read court opinions online on Google Scholar.
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231 P.3d 423(2010)
123 Hawaii 150
UNITE HERE!LOCAL 5; Eric W.Gill;Todd A.K.Martin,Respondents/Plaintiffs-Appellees,
V.
CITY AND COUNTY OF HONOLULU,a municipal corporation; Ku!lima Resort Company,a Hawaii corporation,Respondents/Defendants-
Appel lees.
Kuilima Resort Company,a Hawaii general partnership,Respondent/Counterclaim Plaintiff-Appellee,
V.
Unite Here! Local 5 11 a Hawaii labor organization; Eric W.Gill,an individual,Respondents/Counterclaim Defendants-Appellees.
Kuilima Resort Company,a Hawaii general partnership,Respondent/Counterclaim Plaintiff-Appellee,
V.
Unite Here!,a New York labor organization,Respondent/Additional Counterclaim Defendant-Appellee.
Keep the North Shore Country,a Hawaii non-profit corporation;and Sierra Club,Hawaii Chapter,a foreign non-profit corporation,
Petitioners/Plaintiffs-Appellants,
V.
City and County of Honolulu; Henry Eng,Director of Department of Planning and Permitting,in his official capacity; Kuilima Resort
Company,a Hawaii general partnership,Respondents/Defendants-Appellees.
Nos.06-1-0265,06-1-0867,28602.
Supreme Court of Hawai i.
April 8,2010.
426 *426 Rory R.Wicks(Marco A.Gonzales,with him on the application,of Coast Law Group,Encinitas,CA),appearing pro hac vice;(William S.Hunt and Laura P.Couch,with
him on the application,of Alston Hunt Floyd&Ing,Honolulu),for petitioners/plaintiffs-appellants.
Don S.Kitaoka,Deputy Corporation Counsel,for respondent/defendant-appellee City&County of Honolulu and Henry Eng.
Sharon V.Lovejoy(Terence J.O'Toole,Lane Hornfeck McKay,and Shyla P.Cockett,with her on the response,of Starn O'Toole Marcus&Fisher,Honolulu),for
respondent/defendant-appellee Kuilima Resort.
427 *427 Isaac H.Moriwake(of Earth Justice),for Conservation Council for Hawaii,Surfrider Foundation,Hawaii's Thousand Friends,Life of the Land,Maui Tomorrow Foundation,
and Kahea.
Gregory W.Kugle(of Damon Key Leong Kupchak and Hastert,Honolulu),for Defend Oahu Coalition.
Vernon Y.T.Woo,Honolulu,for North Shore Career Training Corporation,Laie Community Association,and Kahuku Community Association.
David A.Arakawa and David L.Callies,Honolulu,for Land Use Research Foundation of Hawaii,Hawaii Developer's Council,and Hawaii Leeward Planning Conference.
Melvyn M.Miyagi,Jonathan W.Lai,and Ross T.Shinyama(of Watanabe Ing,Honolulu),for First Hawaiian Bank.
Dr.Nui Loa Price,appearing pro se.
MOON,C.J.,NAKAYAMA,and DUFFY,JJ.,and Circuit Judge CHAN,in place of RECKTENWALD,J.,recused;ACOBA,J.,concurring separately.
Opinion of the Court by MOON,C.J.
On October 13,2009,this court accepted a timely application for a writ of certiorari,filed by petitioners/plaintiffs-appellants Keep the North Shore Country(KNSC)and Sierra
Club,Hawaii Chapter(Sierra Club)[hereinafter,collectively,plaintiffs]on September 8,2009,requesting that this court review the Intermediate Court of Appeals'(ICA)June
12,2009 judgment on appeal,entered pursuant to its May 22,2009 published opinion.Unite Here!v.Ci X&Countk of Honolulu 120 Hawaii 457 209 P.3d 1271(Apn 2009).
Therein,the ICA affirmed the Circuit Court of the First Circuit'slil June 4,2007 amended final judgment in favor of respondents/defendants-appellees Kuilima Resort(Kuilima),
as well as the City and County of Honolulu and Henry Eng,the director of the Department of Planning and Permitting(DPP)[hereinafter,collectively,the County and,along
with Kuilima,collectively,defendants].Oral argument was held on December 17,2009.
Briefly stated,this case arises from the proposed expansion of the Kuilima Resort at Turtle Bay on the North Shore of Oahu for which an environmental impact statement
(EIS)was completed,pursuant to the Hawaii Environmental Policy Act(HEPA)(codified as Hawaii Revised Statutes(Hi chapter 343),discussed infra,and accepted in
1985 by the Department of Land Utilization(DLU)[hereinafter,the 1985 EIS].The dispute centers around whether Kuilima's subdivision application,filed in 2005,triggered the
need for a supplemental EIS(Si pursuant to the administrative rules underlying HEPA,specifically,Hawaii Administrative Regulations(HAR)§§11-200-26 and 11-200-27
(governing SEISs),quoted infra at n.12&13.The circuit court,in granting summary judgment in favor of the defendants,ruled that a SEIS was not required,and the plaintiffs
appealed.
On appeal,a majority of the ICA agreed with the circuit court,holding,interalia,that,pursuant to the plain language of HAR§§11-200-26 and 11-200-27,a SEIS was required
only where there was a substantial change in the"action,"see HAR§11-200-26,quoted infra,and that,inasmuch as the defendants were not substantially changing the
proposed expansion itself,no SEIS was required.Unite Here!,120 Hawaii at 465-67,209 P.3d at 1279-81.Then-Associate Judge Nakamura dissented,asserting that,in his
view,the relevant rules required the completion of a SEIS"when significant changes to the anticipated environmental impacts of a proposed action become apparent such that
'an essentially different action'is being proposed."Id.at 468,209 P.3d at 1282(Nakamura,J.,dissenting).
On application,the plaintiffs urge this court to adopt Judge Nakamura's view that HEPA mandates the completion of a SEIS where there has been a change in circumstances
or increased environmental impacts and that,therefore,the DPP(the accepting agency for Kuilima's subdivision application)should have required Kuilima to do so.
428 Based on the discussion below,we hold that the ICA's majority erred in its interpretation of the relevant HARs and,consequently,*428 incorrectly affirmed the circuit court's
grant of summary judgment in favor of the defendants.Accordingly,we vacate the ICA's June 12,2009 judgment on appeal,the circuit court's June 4,2007 amended final
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judgment in favor of the defendants,and remand this case to the circuit court with instructions to enter judgment in favor of the plaintiffs.
(. BACKGROUND
A. Background Information
As aptly summarized by the ICA:
In the 1980[]s,Kuilima's predecessor in interest,Kuilima Development Company(KDC),owned a resort on the North Shore of the[i]sland of Oahu.The resort
consisted of a 487-room hotel and an 18-hole golf course.KDC proposed the Kuilima Resort Expansion([p]roject),which would involve expansion of the existing
hotel and new construction of three hotels for total of 1,450+new units;renovation of the existing 18-hole golf course;and new construction of 2,060+
condominium units,a 70,000+sq.ft.commercial complex,an 18-hole golf course and clubhouse,a tennis center,and an equestrian center.The[p]roject also
called for infrastructure and public improvements,including a new wastewater treatment plant,a production water well,a standby well,a new reservoir,new water
distribution Tines,improvements to the portion of Kamehameha Highway fronting the resort,two private and two public beach parks,a wildlife preserve that
included virtually all of Punahoolapa Marsh,and public rights-of-way to the shoreline.
Unite Herel,120 Hawaii at 459,209 P.3d at 1273.
1. 1985 EIS
On August 5,1985 and in accordance with HEPA,a Draft EIS was prepared and filed with the Office of Environmental Quality Control(OEQC)and,thereafter,published in the
OEQC bulletin on August 8,1985.Public comment contributed to the preparation of a revised EIS,which was submitted to the DLU on October 7,1985.The revised EIS was
accepted on October 30,1985[hereinafter,the EIS or 1985 EIS].
According to the EIS,the proposed project was to be developed in three phases:(1)phase I starting in 1986;(2)phase II in 1988-89;and(3)phase III between 1993 and
1996.The 1985 EIS also indicated that,"[a]t full development,the expanded facilities of the resort would introduce a new visitor population averaging about 4,783 persons on
any given day."With regard to evaluation of the environmental setting of the project area and the probable impact of the proposed project on the environment,the 1985 EIS
looked to topography and drainage,soils,water resources and usage,tsunami/flood hazards,coastal water quality,vegetation,sand dunes,threatened or endangered
endemic species of birds,Punahoolapa marsh,historical and archaelogical resources,agriculture,and air quality,as well as traffic and road conditions.
In its analysis of the coastal waters,specifically Kawela Bay,which borders the project,the 1985 EIS referenced the potential impact of"desilting"on green sea turtles,a
"threatened"species under the federal Endangered Species Act(ESA).More specifically,it noted that"the desilting operation would be located across the area where the
abundant growths of algae that are known to be important diet items of[green sea turtles]are found."There was no reference to any anticipated impact upon the Hawaiian
monk seal,an"endangered"species under the ESA.
The EIS also analyzed the"adverse and unavoidable impacts"of the project's development.These identified impacts included drainage,traffic,dust generation,water
consumption,marsh drainage input,loss of agricultural uses,construction noise,air quality,and solid waste disposal.
In addressing the adverse and unavoidable traffic impacts of the project,the 1985 EIS relied upon a traffic study that examined the traffic conditions caused by an increase in
visitors to the North Shore region on O'ahu(between Haleiwa and Punalou),with projections through the year 2000.Specifically,the 1985 EIS recognized that:
429 [a]ccess to the project site is via Kamehameha Highway.Kamehameha Highway*429 is the only arterial highway serving the North Shore and Windward O'ahu.It
is a two-lane,two-way,undivided State highway generally following the coastline,except for the Kahuku area where it turns inland.The roadway width of
Kamehameha Highway varies between 20 and 24 feet,with generally unpaved shoulders.The highway varies from flat straightaways with few driveway
connections to a curvilinear alignment with many driveway connections.Between Kahuku and Haleiwa,there are no provisions for left-turn lanes or bus turnouts
(except at Waimea Bay).
In most of the communities between Haleiwa and Punalou,the great majority of residents live within a few blocks of Kamehameha Highway.The highway is each
community's link with the rest of O'ahu and a sense of increasing congestion is a major source of concern of area residents.Field investigations of traffic
conditions on weekends and holidays show that traffic congestion occurs because of"bottleneck"locations rather than a breakdown of the overall highway facility.
This indicates that the highway's capacity restraint is not the number of lanes on the roadway but rather highway geometries and increased roadside activity.
Haleiwa and Waimea Bay are the primary capacity restraints along the North Shore.The narrow Anahulu Bridge located near Haleiwa Beach Park requires
apposing stream of vehicles to slow dawn.Through Haleiwa,left-turn traffic and motorists pulling off to park on the roadside queue traffic in bath directions.
Similarly,at Waimea Bay,motorists parking on the roadside and turning left into Waimea Beach Park or into Waimea Valley Road queue traffic in both directions.
The curvilinear highway alignment along Waimea Bay causes a further slowdown.Finally,the vehicles parked on the roadside impose additional restraints on
capacity and operating speeds.Similar frictional effects occur at other beach parks such as at Pupukea,Sunset,Haoula and Swanzy Beach Parks when large
gatherings occur(a surf meet or a community picnic).Furthermore,periodic slowdowns occur behind[city]buses stopping in the highway to pick up or drop off
passengers.
On the Windward side,between Kuilima to Laie,there are no restraints on capacity other than the highway itself.
The 1985 EIS reported that,"[o]n the regional/eve/,previous studies have recognized the highway alignment problems at Waimea Bay and the need for upgrade of the
existing Kamehameha Highway."(Emphasis added.)Relying on a 1985 traffic study analyzing the existing regional traffic impacts in the Kahuku,Kawailoa,and Haoula areas,
the 1985 EIS projected—to the year 2000—the traffic impacts to the aforementioned areas(1)without the resort expansion and(2)with the resort expansion.In comparing
the"with"and"without"resort expansion impacts,the 1985 EIS indicates that the construction of the resort expansion would increase traffic impacts by an average of 37.4%in
Kahuku,14.3%in Kawailoa,and 6.4%in Hau'ula.
The EIS observed that,in order to mitigate the impact of entry into the project from—and exiting the project onto—Kamehameha Highway,at full development,the traffic
study recommended:(1)the construction of a left-turn lane on Kamehameha Highway at the existing Kuilima Drive(the main access road to the resort);(2)the construction of
fully channelized intersections on Kamehameha Highway with turning lanes at the proposed West Kuilima Drive(also known as the project's"Alpha Road")and at the existing
Kahuku Airport Road;(3)the installation of traffic signals on Kamehameha Highway where it intersects with Kuilima Drive,Kahuku Airport Road,and the proposed West
Kuilima Drive;and(4)minimization of visitors'use of automobiles by instituting,for example,an airport shuttle service.Despite the suggested improvements,the EIS—
quoting the traffic study—also observed that,"[w]hile the increased traffic generated by the proposed resort expansion is significant when compared to the projected
background conditions,it is not beyond the carrying capacity of an upgraded,high quality two-lane arterial."
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430 '43o 2. Initial Approvals and Delays in the Project's Development
As observed by the ICA:
The[1985]EIS listed additional governmental approvals KDC needed to obtain in order to complete development of the[p]roject,including rezoning approval
from the DLU,grading and building permits,a shoreline certification,a Special Management Area Use Permit[(SMP)],and subdivision approval.
On March 27,1986,the Land Use Commission approved the reclassification of 236 acres of the property from[a]griculture...to[u]rban[d]istrict for resort and golf
course uses.
On May 23,1986,the DLU accepted KDC's application for a[SMP]and[s]horeline[s]etback[v]ariance.KDC sought to expand its resort by developing a master-
planned resort community that would include hotels,dwellings,commercial areas,golf courses,parks,roadways;to replace two drainage culverts with open
channels;and to conduct a desilting operation at Kawela Bay.
On June 25,1986,a bill for an ordinance to rezone certain portions of the property to be developed under the[p]roject was introduced before the[City Council].
The bill incorporated the Unilateral Agreement and Declaration for Conditional Zoning([u]nilateral[a]greement),in which KDC agreed that the zoning change
would be subject to conditions requiring,among other things,construction of a wastewater treatment plant,construction of low-to-moderate-income housing,
improvements and modifications to roadways,the implementation of a shuttle service,and the establishment of a child care center,parks,public easements to
and along the shoreline,and public parking.Like the[1985]EIS,the[u]nilateral[a]greement anticipated development to proceed in three phases,the last phase
to be completed before 2000.The[u]nilateral[a]greement noted that development may deviate from the phased development schedule"due to the occurrence of
changed economic conditions,lawsuits,strikes or other unforeseen circumstances."
The City Council passed the rezoning bill on August 14,1986 and approved KDC's application for the[SMP]and[s]horeline[s]etback[v]ariance by resolution
adopted on October 1,1986(the March 27,1986;August 14,1986;and October 1,1986 approvals are collectively referred to as the[p]roject[e]ntitlements).
Over the next twenty years,only certain aspects of the[p]roject were completed.KDC constructed a wastewater treatment plant and water main between January
1989 and March 1990,the Opana Wells between February 1989 and March 1991,and the Palmer Golf Course between March 1989 and March 1991.
Construction of improvements to Punahoolapa Marsh began in approximately March 1990.From 1990 through 1991,KDC obtained subdivision approvals for
various parcels to be used for parks,roads,hotels,a golf course,and a golf clubhouse.
In March 1999,Kuilima purchased the property underlying the[p]roject from KDC[,]and KDC assigned its interest in the[p]roject to Kuilima.
In May 1999,the DPP drafted the Ko olau Loa Sustainable Communities Plan"to help guide public policy,investment,and decision-making through the 2020
planning horizon"in order to maintain and enhance"the region's ability to sustain its unique character,current population,growing[sic],families,lifestyle,and
economic livelihood."The plan recognized and supported the[p]roject.The City Council adopted the plan on December 16,1999.
Kuilima renovated the existing Fazio Golf Course between 2000 and 2002.In 2003,Kuilima obtained approval to renovate and expand existing portions of the
Turtle Bay Resort.Between 2003 and 2005,Kuilima invested about$100 million in completing these renovations,which included the addition of nine resort
condominium units.
As of November 2005,construction on the major components of the[p]roject,including the hotel rooms and the[remaining]condominium units,had not begun.
431 '431 120 Hawaii at 460-61,209 P.3d at 1274-75(emphasis added).
3. Other Relevant Post-1985 EIS Traffic Studies
After 1985,Kuilima solicited two additional traffic impact analysis reports-in 1991 and 2005.I21 Because the 1985 EIS considered projected traffic impacts through the year
2000,the 2005 updated traffic impact analysis[hereinafter,the 2005 report]and three addendums thereto,prepared in 2006,are particularly relevant.
The 2005 traffic report focused on local traffic impacts,that is,impacts on the roadway fronting the property,including the internal roadways of the resort itself.Generally,the
2005 traffic report indicated that,even with the construction of certain traffic improvements(many of which overlap with the yet incomplete improvements suggested by the
1985 EIS),the expansion project,when completed,would result in increased local traffic impacts.
As previously stated,the 2005 report was updated three times in 2006,focusing again on only local traffic impacts.Addendum No.1,dated February 15,2006,evaluated the
initial design of the intersection of Kamehameha Highway and the project's Alpha Road(also known as the proposed West Kuilima Drive),including turning lanes and the
recommended improvements to facilitate the traffic needs of that immediate area,projected out through 2008.The addendum concluded that,
[a]s Turtle Bay Resort continues to expand beyond the Year 2008,the peak hour traffic operations at the intersection of Kamehameha Highway and Alpha Road
are expected to deteriorate below satisfactory levels of service[(LOS)].Additional improvements at the study intersection,such as traffic signalization and lane
modifications,may be required to mitigate the traffic impacts resulting from further development of the Turtle Bay Resort.
(Emphasis added.)
Addendum No.2,dated February 23,2006,evaluated the design of two-lane Alpha Road to determine when it should be widened to a four-lane roadway.It concluded that
Alpha Road will be constructed as a private roadway and is expected to remain so in the foreseeable future.Traffic operations of the two-lane section of Alpha
Road at peak hour volumes over 800[vehicles per hour]would result in a[below satisfactory LOS].In general,intersection operations are more critical than the
operation of a continuous two-lane roadway.The proposed 108-foot right of way will provide adequate width as to construct turning lanes on the initial two-lane
divided roadway at internal resort intersections,as needed.Widening sections of Alpha Road...would maintain[satisfactory]conditions or better as major[I]ots in
the Turtle Bay Resort are developed.The remaining two-lane section of Alpha Road...is expected to operate at a satisfactory[LOS]at full build out and
occupancy of the Turtle Bay Resort Master Plan.
Addendum No.3,dated August 25,2006,analyzed the second phase of improvements on Kamehameha Highway,including traffic signalization at the Kamehameha
Highway/Alpha Road intersection,improvements at the intersection of Kamehameha Highway and Kuilima Drive,and traffic signalization of the Kamehameha Highway/Kuilima
Drive intersection,projected through 2011.The addendum concluded that
[t]he Kamehameha Highway intersections at Alpha Road and Kuilima Drive are expected to require traffic signalization to accommodate the anticipated expansion
of Turtle Bay Resort up to the Year 2011,when a total of 1,970 hotel rooms will be constructed.Lane modification at the study intersections,the extension of
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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.
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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
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
summary judgment,the plaintiffs filed a cross-motion for summary judgment.0
In their motion forjudgment on the pleadings,the defendants argued,interalia,that HAR§11-200-26,et.seq.
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
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
satisfy the requirements of this chapter and no other statement for that proposed action shall be required[.]"
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
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
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
judgment that they were entitled to summary judgment as a matter of law because,based on the undisputed facts before the circuit court:
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;
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
by HAR§§11-200-26 and 11-200-27;
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
[p]roject were not originally disclosed or previously dealt with,as required by HAR§§11-200-26 and 11-200-27;and
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
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.
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
circumstances and evidence(emphases added);(2)the substantive change in the timing of the project caused,and new circumstances and evidence brought to light,
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;
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
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
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
summary judgment.
1. Defendants' Evidence in Support of Third Motion
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.
With respect to the 1985 EIS,the defendants painted to the following specific language contained therein,which stated:
D.PHASING AND TIMING OF THE ACTION
Figure 9 shows the approximate phasing of development for the resort(phasing is dependent on receiving the necessary governmental approvals).Note that
Phase I designation generally indicates a 1986 start of construction date,Phase II,commencement between 1988 to 1989,and Phase III,[c]ommencement
between 1993 to 1996.
With respect to the unilateral agreement,the defendants pointed to a provision therein,which stated in relevant part:
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
deviate from this schedule due to the occurrence of changed economic conditions,lawsuits,strikes or other unforseen[sic]circumstances.
2. Plaintiffs' Evidence in Support of Cross-Motion
The following relevant evidence was submitted by the plaintiffs in support of their cross-motion for summary judgment,pursuant to HRCP 56(e):
a. the 1985 EIS
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
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
twenty years ago.
b. DPP's SEIS procedures
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
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,
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
[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
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
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
[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
response letter on behalf of Eng to Shafer,one of the concerned citizens requesting a SEIS:
[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.
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
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.
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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
reports and things like that.
With regard to the DPP's process to determine whether to require supplemental review,Challacombe testified:
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
something before you grant the subdivision application?
A.[By Challacombe]I would look at the cumulative impact of the project on the community,not the other way around.
Q.Okay,but in doing that,you'd have to know what the community is at the time,right,you're looking at?
A.That's correct.
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
or application]was granted...?
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.
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
years[.]
I'm just trying to find out if there's any limits on this—...I understand this is your opinion,that time is irrelevant.
A.Timing is one of the components in...the review.It is important.It is not the sole criterion.
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
we ought to come investigate?
A.If the project hasn't changed,then the project hasn't changed so there are no new impacts.
Q.Unless the surrounding community has changed,right?There might be if the surrounding community has changed,no?
A.If the surrounding community's changed,we would consider that,but we...would need the evidence.
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?
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
require an updated traffic study at the time of building permit application for the Kuilima development.
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.
(Emphases added.)
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
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
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.
Addressing the changes that have occurred over the twenty years since the 1985 EIS,Siu-Li testified:
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
a significant impact on the environment or surrounding community?
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
alone would not necessarily trigger a[SEIS].
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
period?
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
that has not been shown to us.
(Emphases added.)Peirson also testified with respect to the timing of the project as follows:
Q.[By the plaintiffs'counsel]Wasn't there a projected phasing[indicated in the 1985 EIS]to be finished with the project by 1996?
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.
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
disposes in terms of an authority.
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
its approval;and therefore,the passage of time itself could not constitute a substantive change to the project.
Q.Could not,you said?
A.Not under the authority granted by that particular permit.
Q.And you don't believe that it could ever require another review under Chapter 3437
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A.Are you asking simply because of the passage in time?
Q.Let's start there.Yes.
A.No.
(Emphases added.)
c. evidence of"significant changes"
i. traffic studies
The plaintiffs enlisted the services of Tom Brohard,a professional engineer,and submitted his declaration,as well as his October 2006 review of traffic studies for the Turtle
Bay resort expansion project on the North Shore of Oahu.In his review,Brohard asserted that"[a]n appropriate traffic impact analysis of the[project]has not been conducted
as of this date."Acknowledging the existence of various documented traffic studies for the project area—including those prepared in 1985,1991,and 2005,discussed supra,
—Brohard opined that such reports"do not match the EIS project description"and"contain fundamental errors in methodology."He stated that"[t]he 1985 Report is
outdated[,]and there are numerous errors,conflicts,and omissions throughout the 1991 Report and the 2005 Report[.]"
Brohard explained:
The traffic analyses for the[project]have used a lessening annual background growth rate from 4%in 1985 to 3.5%in 1991 to 2.7%in 2005.Reducing the
background growth rate is contrary to a number of factors including the significant increase in the number of vehicle registrations on Oahu and increased visitor
trips to the North Shore created by factors such as the increasing popularity of observing basking sea turtles and the proliferation of surfing schools catering to
tourists.Each of these has contributed to the increase in traffic at Turtle Bay,with half of the overnight Waikiki visitors in 2005 traveling to the North Shore during
their Oahu stay.
None of the traffic analyses have quantified vehicle trips generated by"pipeline development"in the study area.Certainly,a number of projects have been
approved but not yet constructed or fully occupied.There are also others that are"reasonably foreseeable"in the next 15 to 25 years.Trips to and from"pipeline
development"must be included in the base traffic volumes before trips for the[project]are added and analyzed.
438 The flawed approach used in each traffic study significantly underestimates future base volumes.The revised evaluation must include vehicle trips from"pipeline
*438 development"that come on line as the major phases of the[project]are occupied.All planned and funded road improvements assumed to be in place at each
project phase must also be identified.
Failing to identify the proper baseline traffic volumes could certainly result in the failure to disclose significant traffic impacts when project traffic is added to the
[project].The future baseline traffic forecasts must be corrected and each of the resulting significant project traffic impacts must be identified,analyzed[,]and
mitigated.
ii. monk seals and other species
The plaintiffs submitted a July 5,2006 report prepared by marine biologist Jason Baker on behalf of the Pacific Islands Fisheries Science Center pursuant to the plaintiffs'June
2006 Freedom of Information Act request.Baker's report"summarize[d]all documented sightings of Hawaiian monk seals in the area of Turtle Bay resort,between Kawela Bay
and Kahuku Point,"as well as all monk seal births at or near the project site.Since the early 1980s,monk seal sightings at and around the project area were sporadic.
Sightings were reported in 1984 and 1991.The record indicates no sightings between 1985 and 1989 nor between 1997 and 1999.In 2001,monk seal sightings at or around
the project area began to increase,with three sightings in 2001 and 2002,six in 2003,nine in 2004,twenty-one in 2005 and fifty four in 2006.According to Baker's report,"
[sixty-nine]of[the]101[documented]seal sightings[since 1984]are attributable to[eleven]known individual[seals],""[give of[which]are adult females who are documented
to have given birth and nursed their pups on remote beaches on Kaua i,Moloka'i,Hawaii,Niihau,Rabbit Island,and Oahu."As of this report:
[a]single birth has been recorded in[the project]area.A pup was barn on Kaihalulu Beach,on the Kahuku side of the resort,on June 1,2006,and the mother
and nursing pup are currently in the area as of July 3,2006,along the beach or in nearshore waters.The nursing period generally lasts[five to seven]weeks.
Although not in the immediate area of interest,a second birth was documented at nearby Waiale'e Beach Park on March 15,1991.
The plaintiffs also referenced three water quality reports administered by Kuilima in 1989 that summarized observations of green sea turtles over periods of five days during
daylight hours only.These reports indicated that,in July 1989,no more than three turtles were observed simultaneously in one time interval.The October 1989 report
estimated a maximum of nine turtles in the bay during morning hours.In December 1989,there was an average of about ten turtles in the bay during early morning hours and
three or four turtles in the bay during the mid-day and afternoon hours.
3. Defendants' Evidence in Opposition to Plaintiffs' Cross-Motion
In opposition to the plaintiffs'cross-motion for summary judgment,the defendants pointed to,inter alia,other portions of Challacombe's deposition testimony regarding the
DPP's SEIS procedures,both in general and specifically as to Kuilima's project:
Q.[By the plaintiffs'counsel]When[,]...based on your understanding,would a[SEIS]be required for a project that involves a[]SMP[I11]or a unilateral agreement?
A.[By Challacombe]When the scope of the project has changed,the size has changed,density.Whenever there's a significant—as per the[HEPA]rules,
whenever there's a significant change in the development.
Q.How about the timing of the development?
A.That's a component,but it's not necessarily the only thing.[I]t's everything.Again,size,scope,you know,it could be the timing,but it's not necessarily.
Nowhere—
439 *439 Q.It could be any one of those,though,right?
A.It could be,yes.
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Q.That would trigger a[SEIS]?
A.It could be.Again,the key wording is significant impact.[A]significant impact would result from the change in the scope,timing,so forth.
Q.So is that your understanding of the DPP's view of this,is that a[SEIS]is not necessary for a project that has a[]SM[P]or a unilateral agreement unless there
will be a significant impact...in some area?
A.Yes.
Q.And it's not may,it's will?
A.May.No,it's may.
Q.It's may?
A.Yes.It specifically says that in the rules.
Q.So it's not necessarily somebody coming in saying that this will have an impact,it's somebody looking at it to say may this have an impact or not,correct?
A.That's correct.
(Emphases added.)
4. Plaintiffs' Reply Evidence in Support of Cross-Motion
In further support of their cross-motion for summary judgment,the plaintiffs submitted evidence in their November 8,2006 reply memorandum,regarding new information
about monk seals in the project area that was not previously available.Specifically,the plaintiffs deposed Charles Littnan,Ph.D.(Dr.Littnan),a marine mammal ecologist who
has studied the habitat requirements,diet,and feeding behavior of the Hawaiian monk seal for over ten years.According to Dr.Littnan,both the beach and near shore areas of
the project are now known to be a foraging habitat to the monk seal population,the beach has been identified as an important"hauling out habitat,"M and the first recorded
pupping of Hawaiian monk seals in the project area occurred on June 1,2006.Dr.Littnan stated that"the numerous recently reported sightings of monk seals in the area
suggest that the beaches and near shore areas of the[p]roject are critical to the regeneration of the monk seal population"because
there are numerous beaches on[Oahu]which have had no reported sightings of monk seals on them,indicating that some beaches are not attractive to monk
seals.Several seal species have been shown to have preference for particular beach characteristics(e.g.[,]slope,exposure to swells,substrate[sand or rock],
proximity to feeding areas),so it is reasonable to believe monk seals have similar criteria in their choice of beach.Further,the fact that multiple seals have used
this area indicates that there is something that is causing them to select it specifically.
As a result,Dr.Littnan stated that he"expect[s]that the number of pups born in the main Hawaiian[i]slands will continue to increase each year for the foreseeable future,
and[,]assuming there are no changes in the conditions of the[r]esort[a]rea,it is very likely that the monk seals will continue to use the...[a]rea as a habitat for pupping."Dr.
Littnan further testified that,although the project area is not currently designated as a critical habitat,"the last critical habitat assessment for Hawaiian monk seals was
performed prior to the increased presence of monk seals in the[m]ain Hawaiian[i]slands,[and]it cannot be assumed that the[p]roject area will not be so designated in the
future."
5. Circuit Court's Decision
On November 13,2006,a hearing on the parties'respective motions for summary judgment was held.After considering the arguments made and the evidence submitted by
the parties,the circuit court entered an order on December 5,2006,granting Kuilima's third motion for summary judgment and the County's joinder and denying the plaintiffs'
440 cross-motion for summary judgment.The circuit court essentially agreed with the defendants'interpretation of HAR§§11-200-26 and 11-200-27 that a SEIS is'440 required
only when there is a substantive project change and determined that,as a matter of law,the timing of the project had not substantively changed.As previously noted,the
circuit court,based upon its grant of summary judgment in favor of the defendants,ruled that the defendants'motion for judgment on the pleadings and the other two motions
for summary judgment were moot.Also,on December 5,2006,the circuit court entered the following relevant findings of fact(FOFs)and conclusions of law(COLS):
[FOFs]
1.[HRS]§343-5(g)[(Supp.2005)]provides that an[EIS]that is accepted with respect to a particular action shall satisfy the requirements of the chapter and no
other statement for that proposed action shall be required.
2.[HEPA]allows the Environmental Council to draft rules and regulations to implement HEPA[.]
3.An EIS is supposed to be prepared,and environmental consequences of an action are supposed to be reviewed,at the earliest possible time.See HRS§343-
5(b).The[c]ourt finds that this was done with respect to the[project]in 1985.The EIS for the[p]roject was accepted in October 1985,and is a matter of public
record.
4.Although there has been some delay in the[p]roject from the community's perspective,there have been ongoing activities and actions with respect to the
[p]roject throughout the past[twenty]years.In addition,the[p]roject was adopted as part of the Ko'olauloa Sustainable Communities Plan in May of 1999;the
public had an opportunity to participate with respect to the adoption of that[p]lan.
5.The[DPP],as the accepting authority,is responsible for determining whether a[SEIS]is required for the[p]roject.See HAIR§[]XX-XXX-XX.
6.At the end of 2005 and beginning of 2006,certain North Shore neighborhood boards...and other individuals asked the DPP whether the timing of the[p]roject
would require a[SEIS].The[p]laintiffs did not write any of those letters.The DPP responded,indicating that it had determined that a[SEIS]was not required for
the[p]roject.Although it does not appear that specific reasons were given,the DPP determined that the timing of the action has not changed so as to require a
[SEIS].
7.The...1985 EIS contained only general statements in terms of phasing of the[p]roject,but those statements did not impose a time limit on the[p]roject based
on that proposed phasing time frame.The...1985 EIS does not obligate Kuilima to follow that phasing time frame.
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8.The law provides that when you have a project that is to be constructed in phases,the original EIS covers everything,and the project is the action under
consideration.In this case,the[p]roject is the"action."There has been no change to the action that would essentially make it a new action underconsideration.
[COLS]
1.The law provides that courts are supposed to give deference to the expertise of agencies that deal with administrative issues.The[circuit court is not to
substitute its judgment for the judgment of an agency.If the decision of the agency meets the"rule of reason"and the decision is not"arbitrary or capricious,"the
[circuit c]ourt shall not substitute its judgment for that of the agency.
2.The DPP's decision that a[SEIS]is not required for the[p]roject meets the rule of reason standard[]and was not arbitrary or capricious. The timing of the
[p]roject has not substantively,or essentially,changed.In the alternative,even if the timing had substantively changed,which the[circuit c]ourt finds that it has
not,such change is not likely to have a significant effect.
3.[The p]laintiffs'concerns that form the basis of their claims in this litigation were basically expressed for the first time in the filings before this[c]ourt.However,
441 even if the[circuit c]ourt were to review those concerns,the[circuit c]ourt would not find that there is a substantive change likely to result in a significant effect not
*441 originally considered or previously dealt with that would require ap SEIS.
(Emphases added.)
On June 4,2007,the circuit court entered its amended final judgmentl9l in favor of the defendants and against the plaintiffs on all of the plaintiffs'claims set forth in their first
amended complaint.The plaintiffs filed a timely notice of appeal on June 19,2007.
C. Appeal Before the ICA
On direct appeal,the plaintiffs contended that the circuit court erred in(1)granting the defendants'third motion for summary judgment and(2)denying the plaintiffs'cross-
motion for summary judgment.The plaintiffs argued,as they did before the circuit court,that a SEIS is required in this case because the timing of the project has substantially
changed.Specifically,they argued that"the 1985 EIS and 1985[t]raffic[r]eport[we]re outdated'and'[could not]be relied upon to properly disclose,analyze,and mitigate the
significant local and regional...impacts of the[project]."More specifically,the plaintiffs argued,inter alia,that they were entitled to judgment as a matter of law because"HEPA
applie[d]to[Kuilima]'s application for a preliminary subdivision,"and,thus,DPP had"an obligation,implied in HEPA and express in[HAR§§11-200-26 and 11-200-27]"to
make an"independent determination'whether new circumstances and evidence require[d]a SEIS."The plaintiffs additionally contended that,inasmuch as the DPP did not
take a"hard look"at whether"new circumstances or evidence have brought to light different or likely increased environmental impacts[from the project]not previously dealt
with,"its decision was not in accordance with the"rule of reason,"i.e.,it was arbitrary and capricious.11o]
In response,the defendants argued that a SEIS was not required for the project because"[the]plaintiffs misinterpret[ed]and misappl[ied]the SEIS rules[]and have not met
their burden"of showing a substantive change in the"project itself."Additionally,Kuilima argued that,in any event:(1)"[the]plaintiffs'claims[were]time-barred under HRS§
343-7,"quoted infra;(2)the Environmental Council exceeded its statutory authority in promulgating HAIR§§11-200-26 and 11-200-27 and,"accordingly[,]no cause of action
exist[ed]to require Kuilima to prepare a[]SEIS";(3)Kuilima's subdivision application was not an"action'under HEPA"and,thus,did not"trigger[DPP's]obligation to
determine if a[]SEIS should be required."t111 Finally,the defendants contended that DPP did,in fact,take a"hard look"at the project and,thus,its decision was not arbitrary
and capricious.
1. The ICA Majority
The ICA issued its published opinion on May 22,2009,and,as discussed more fully infra,a majority of the court concluded that,pursuant to HAIR§11-200-26,1121"the DPP is
required to conduct a two-step inquiry to determine whether a[]SEIS is required,"Unite Here!,120 Hawaii at 465,209 P.3d at 1279,specifically:
442 *442(1)Whether the action(the[p]roject)has changed substantively in size,scope,intensity,use,location or timing?And if so,
(2)Will the change in any of these characteristics likely have a significant effect and result in individual or cumulative impacts not originally disclosed in the EIS?
Id.(emphases in original).With respect to the two-part inquiry,the ICA reasoned that:
If the DPP answers the first question in the negative,no further inquiry is necessary as"no other statement[for the[p]roject]will be required."If the DPP answers
the first question in the affirmative(i.e.,finding there is a substantive change in one of the aforementioned characteristics),then the DPP is required to determine
whether the change will likely have a"significant effect"and result in"individual or cumulative impacts not originally disclosed"in the original EIS.
Id.(citations omitted)(some brackets in original).In other words,the ICA majority determined that"there must be a substantive change in the action(the[p]roject)before a[]
SEIS is to be considered."Id.(emphasis in original).The ICA concluded that:(1)"[t]he[1985 EIS]detailed only an approximate phasing of the development for the resort[,]
id.at 466,209 Rid at 1280;(2)"[n]either the[1985]EIS nor the governmental entities imposed a timing condition[,]"id.;and(3)"there was no substantial change in the
[p]roject."Id.The ICA also concluded that a SEIS was not required because the subdivision application did not constitute an"action"under HEPA and that,therefore,the 1985
EIS"covered the entire[p]roject,including the[s]ubdivision[a]pplication."Id.at 467,209 R3d at 1281.Consequently,the ICA affirmed the circuit court's amended final
judgment in favor of the defendants.Id.The ICA did not specifically address Kuilima's contentions that the plaintiffs'claims were time-barred under HRS§343-7 or that
subdivision application was exempt from HEPA;nor did it review the defendants'contention that the Environmental Council exceeded its statutory authority in promulgating
HAIR§§11-200-26 and 11-200-27.
2. The ICA Dissent
The dissent agreed with the plaintiffs'interpretation of HEPA and HAIR§§11-200-26 and 11-200-27,1?3]concluding that a SEIS is required
when significant changes to the anticipated environmental impacts of a proposed action become apparent such that"an essentially different action"is being
proposed.Significant changes to the anticipated environmental impacts of a development project can arise from changes to the design of the project itself,
changes to conditions surrounding the project,or the discovery of new information.In my view,[HEPA and its rules]do not restrict the responsible agency by only
permitting it to consider changes to a project's anticipated environmental impacts when the design of a project itself has changed.Rather,in determining whether
a[]SEIS is warranted,...the agency is authorized to consider not only the potential effects of design changes to the project,but whether changes to the conditions
surrounding the project and newly discovered information may significantly affect the project's anticipated environmental impacts.
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443 Id.at 468,209 P.3d at 1282(Nakamura,J.,dissenting).The dissent considered the overriding purpose of HEPA—i.e.,"to ensure*443 that an agency is provided with relevant
information about the environmental impacts of a proposed project so that the agency can make informed decisions about the project,"id.at 471,209 P.3d at 1285(citing HRS
§343-1(1993))—and concluded that"[a]proposed project can become'an essentially different action'in terms of its environmental impacts due to changed circumstances
surrounding the project or the discovery of new information,even if the project's design has not changed."Id.The dissent additionally reasoned,as discussed infra,that
"absurd results"would stem from the majority's interpretation of HEPA and HAR§§11-200-26 and 11-200-27.Id.at 472,209 P.3d at 1286.Thus,the dissent concluded that,"
[b]ecause of its erroneous view of the law,the DPP failed to consider appropriate factors and follow correct procedures in deciding not to require a[]SEIS."Id.at 474,209 P.3d
at 1288.
The ICA filed its judgment on appeal on June 12,2009.The plaintiffs filed a timely application for a writ of certiorari on September 8,2009.114]Thereafter,this court accepted
the plaintiffs'application on October 13,2009 and heard oral argument on December 17,2009.0
II. STANDARDS OF REVIEW
A. Summary Judgment
An appellate court"review[s]an award of summary judgment under the same standard applied by the circuit court."Yoneda v.Tom.110 Hawaii 367,371,133 P.3d 796,800
(2006)(citation omitted).Thus,this court reviews the circuit court's grant or denial of summary judgment de nova.Sierra Club v.Dept of Transp.,115 Hawaii 299,312,167
P.3d 292 305(2007).Moreover,
[s]ummary judgment is appropriate if the pleadings,depositions,answers to interrogatories,and admissions on file,together with the affidavits,if any,show that
there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.A fact is material if proof of that fact would
have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties.The evidence must be viewed in
the light most favorable to the non-moving party.In other words,we must view all of the evidence and the inferences drawn therefrom in the light most favorable
to the party opposing the motion.
Id.at 313,167 P.3d at 306(citations omitted).
B. Statutory Interpretation
This court has established the following principles for interpreting a statute:
First,the fundamental starting point for statutory interpretation is the language of the statute itself.Second,where the statutory language is plain and
unambiguous,our sole duty is to give effect to its plain and obvious meaning.Third,implicit in the task of statutory construction is our foremost obligation to
ascertain and give effect to the intention of the legislature,which is to be obtained primarily from the language contained in the statute itself.Fourth,when there is
doubt,doubleness of meaning,or indistinctiveness or uncertainty of an expression used in a statute,an ambiguity exists.And fifth,in construing an ambiguous
444 statute,the meaning of the ambiguous words may be sought by examining*444 the context,with which the ambiguous words,phrases,and sentences may be
compared,in order to ascertain their true meaning.
Awakuni v Awana,115 Hawaii 126,133,165 P.3d 1027,1034(2007)(citation omitted).This court has also instructed that statutory language must be read"in the context of
the entire statute and construe[d]in a manner consistent with its purpose."Hous..Fin..&.Dev.Corp..v..Castle,79 Hawai'i 64,77,898 P.2d 576,589(1.995)(citation omitted).
......... ......... ......... —
The same general principles that apply to statutory interpretation also apply to interpretation of administrative rules.Allstate Ins.Co.v Ponce,105 Hawaii 445,454,99 P.3d
96,105(2004),(citation omitted).
C. Conclusions of Law
"A COL is not binding on an appellate court and is freely reviewable for correctness.Thus,the court reviews COL de novo,under the right/wrong standard."Kapuwai v City&
County of Honolulu 121 Hawaii 33,39,211 P.3d 750,756(2009).(citation omitted).Statutory interpretation is"a question of law reviewable de novo."Awakuni,115 Hawaii at
132,165 P.3d at 1033.
D. Agency Decisions
The issue of what standard to apply when reviewing an agency's decision whether a SEIS is required presents a question of first impression in this jurisdiction.This court,
however,has reviewed an agency's determination whether an EIS satisfies the applicable statutory requirements under the"rule of reason"standard.See Price v Obayashi
Hawaii Corp.,81 Hawai'i 171,182,914 P.2d 1364,1375(1996).As applied to consideration of the adequacy of an EIS,this court has stated:
In making such a determination[,a]court is guided by the"rule of reason,"under which an EIS need not be exhaustive to the point of discussing all possible
details bearing on the proposed action but will be upheld as adequate if it has been compiled in good faith and sets forth sufficient information to enable the
decision-maker to consider fully the environmental factors involved and to make a reasoned decision after balancing the risks of harm to the environment against
the benefits to be derived from the proposed action,as well as to make a reasoned choice between alternatives.
Id.(quoting Life of the Land v.Ariyoshi,59 Haw.156,164-65,577 P.2d 111 6,1121(1978)(citation omitted))(footnote omitted).
Moreover,this court has recognized that"[a]court is not to substitute its judgment for that of the agency as to the environmental consequences of its action.Rather,the court
must ensure that the agency has taken a hard look'at environmental factors,"and,"[i]f the agency has followed the proper procedures,its action will only be set aside if the
court finds the action to be arbitrary and capricious,'given the known environmental consequences."Id.at 182 n.12,914 P.2d at 1375 n.12(relying on federal case law).
III. DISCUSSION
The plaintiffs primarily contend before this court that the ICA majority erred in interpreting HEPA and HAR§§11-200-26 and 11-200-27"to mean that an agency may order a
supplemental review only when there has been a substantive change in the design of a project"and essentially argue that a SEIS is warranted when the project has changed
"substantively in size,scope,intensity,use,location,or timing."HAR§11-200-26.In response,Kuilima raises two threshold issues that must be addressed prior to reaching
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the plaintiffs'contentions,to wit:(1)whether the plaintiffs'claims are time-barred by the applicable statute of limitations and(2)whether the Environmental Council exceeded
its statutory authority in promulgating the administrative rules regarding SEISs.
A. Statute of Limitations
As previously indicated,the circuit court ruled that Kuilima's first motion for summary judgment based on statute of limitations grounds,which was joined in by the County,was
445 moot in light of its grant of summary judgment in favor of the defendants.Although the statute of limitations ground was reasserted on appeal before the*445 ICA,neither the
ICA majority nor the dissent addressed this threshold issue.In response to the plaintiffs'application,Kuilima again argues that the plaintiffs'claims are untimely because the
plaintiffs'complaint was filed more than 120 days after"the[p]roject started or allegedly restarted'and when[the plaintiffs]knew or reasonably should have known of the
alleged change in the timing of the[p]roject or the'new circumstances or evidence."'Alternatively,Kuilima argues that the plaintiffs'claims are time-barred because:(1)the
plaintiffs filed the complaint more than thirty days"after[the plaintiffs]had actual knowledge of the DPP's determination that a[]SEIS was not required";and(2)the plaintiffs
filed the complaint"mare than sixty days after[the plaintiffs]had actual knowledge of the DPP's determination that a[]SEIS was not required."
HEPA does not provide limitation periods for actions specifically related to supplemental assessments.However,it appears undisputed,based on the arguments of the parties,
that the limitation periods applicable to EISs are the same for SEISs.Such treatment is seemingly supported by the administrative rules promulgated to further the purpose of
HEPA that generally subject EISs and SEISs to some of the same procedural requirements.See HAIR§11-200-28(indicating that the contents of a SEIS"shall be the same as
required by this chapter for the EIS");HAIR§11-200-29(listing certain procedural requirements,including filing public notices,distribution,and acceptance procedures,and
indicating that such procedures"shall be the same for the supplemental statement as is prescribed by this chapter for an EIS").Thus,pursuant to HRS§343-7,the statute of
limitations for actions related to an EIS—and,consequently,a SEIS—is as follows:
(a)Any judicial proceeding,the subject of which is the lack of[an environmental]assessment required under section 343-5,[Supp.2005I16I]shall be initiated
within one hundred twenty days of the agency's decision to carry out or approve the action,or,if a proposed action is undertaken without a formal determination
by the agency that a statement is or is not required,a judicial proceeding shall be instituted within one hundred twenty days after the proposed action is started....
(b)Any judicial proceeding,the subject of which is the determination that a statement is required for a proposed action,shall be initiated within sixty days after the
public has been informed of such determination pursuant to[HRS]section 343-3[(Supp.2005)(pertaining to public records and notice)].Any judicial proceeding,
the subject of which is the determination that a statement is not required for a proposed action,shall be initiated within thirty days after the public has been
informed of such determination pursuant to section 343-3....
(c)Any judicial proceeding,the subject of which is the acceptance of an[EIS]required under section 343-5,shall be initiated within sixty days after the public has
been informed pursuant to section 343-3 of the acceptance of such statement.
(Emphases added.)Inasmuch as the issue here is the DPP's determination that an environmental assessment was not required,subsection(c)above,relating to judicial
proceedings involving"the acceptance of an EIS,"clearly does not apply.
On the other hand,subsection(b)'s limitation period applies to those judicial proceedings related to whether a statement is or is not required and is,thus,seemingly applicable.
For circumstances where the determination involves a statement that is not required,as here,judicial proceedings"shall be initiated within thirty days after the public has been
informed of such determination pursuant to[HRS]section 343-3."HRS§343-7(b).HRS§343-3 provides in relevant part:
446 (a)All statements,environmental assessments,and other documents prepared under this chapter shall be made available*446 for inspection by the public during
established office hours.
(b)The[OEQC]shall inform the public of notices filed by agencies[(e.g.,the DPP)]of the availability of environmental assessments for review and comments,of
determinations that statements are required or not required,of the availability of statements for review and comments,and of the acceptance or nonacceptance of
statements.
(Emphases added.)With respect to"notices filed by agencies"referred to above,HAIR§§11-200-11.1(relating to"Notice of Determination for Draft Environmental
Assessments")and 11-200-11.2(relating to"Notice of Determination for Final Environmental Assessments"),which are nearly identical,provide in relevant part that,
if the...approving agency[(here,the DPP)]anticipates that the proposed action is not likely to have a significant effect,it shall issue a notice of determination
which shall be an anticipated negative declaration[I17!]subject to the public review provisions of section 11-200-9.1[(setting forth procedures for public review and
comment in negative declaration determination situations)].The...approving agency shall also file such notice with the[OEQC]as early as possible after the
determination is made/.]
HAIR§11-200-11.1 (emphases added)J18]A review of the record reveals no evidence demonstrating that the DPP filed a notice of its determination that a SEIS was not
required with the OEQC,and Kuilima fails to identify any such evidence.Inasmuch as the requisite notice was not provided,there is no date from which to measure the thirty
day limitation prescribed by HRS§343-3(b).Consequently,we conclude subsection(b)is inapplicable under these circumstances.
Kuilima,however,in attempting to convince this court that subsection(b)applies,essentially contends that the plaintiffs'actual knowledge may substitute for the public notice
and argues(in a footnote)that,"[i]n cases where formal publication does not occur,the statute of limitations runs from the date of actual knowledge."'(Citing HRS§91-2
(1993),I191)Specifically,Kuilima points to various instances when"[m]embers of KNSC[allegedly]admitted to having actual knowledge,"'including,interalia,(1)Shafer's
receipt of DPP's January 19,2006 response letter,indicating that a SEIS was not required,(2)KNSC director Gilbert Riviere's attendance at the February 9,2006 Koolau Loa
Neighborhood Board Meeting when the DPP's February 8,2006 letter was allegedly read aloud,and(3)"at the very latest,"KNSC members'attendance at a March 15,2006
Sunset Neighborhood Board meeting when Gill allegedly reported DPP's response.
Kuilima's citation to the general provision set forth in HRS§91-2,quoted supra at note 19,and its conclusory statement that,absent formal publication,the statute of
447 limitations runs from actual notice is unpersuasive.As discussed above,the statute of limitations set forth in HRS§343-7(b)specifically provides that judicial proceedings*447
"shall be initiated within thirty days after the public has been informed of such determination pursuant to section 343-3."In turn,section 343-3 mandates the OEQC to inform
the public of the DPP's negative declaration upon receipt of such notification from the DPP.See Chock v.Gov't Employees Ins.Co.,103 Hawaii 263,269,81 P.3d 1178,1184
.(2003)(recognizing that"where there is a plainly irreconcilable'conflict between a general and a specific statute concerning the same subject matter,the specific will be
favored").Thus,given the plain and unambiguous statutory language,coupled with the related administrative rules discussed above,actual knowledge cannot be"substitute[d]
for public notice."Consequently,Kuilima's argument lacks merit.
Finally,with respect to HRS§343-7(a),the period of limitation begins to run upon"the agency's decision to carry out or approve the action,"or,"if a proposed action is
undertaken without a formal determination by the agency that a statement is or is not required,"then the judicial proceeding must be brought 120 days"after the proposed
action is started."In the instant case,although the subdivision application was part of the larger action(i.e.,the project),the specific"action"for statute of limitation purposes
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must be deemed to be the date that the subdivision application was approved as opposed to when the project itself was originally approved.Indeed,any other interpretation
would be absurd,especially where—as here—the original project was approved over twenty years ago and is not even near completion.See County of Hawaii v,C&J
Coupe Family Ltd.P'ship,119 Hawaii 352,362,198 P.3d 615,625(2008).(recognizing that"[t]he canons of statutory construction also require this court'to construe statutes
....
so as to avoid absurd results"')(citation omitted).
Moreover,HAR§11-200-2 defines"supplemental statement"as"an additional environmental impact statement prepared for an action for which a statement was previously
accepted,but which has since changed substantively in size,scope,intensity,use,location,or timing,among other things."Thus,the administrative rules promulgated to
further the purpose and intent of HEPA clearly contemplate the possibility of changes to the original project that may dictate the need for a further environmental impact
assessment,i.e.,a SEIS.Consequently,it would be absurd to decide statute of limitation issues related to a determination whether a SEIS is required or not required based
upon the date of the original project or action because common sense dictates that,in all likelihood,the issue of a supplemental assessment would not arise within 120 days of
acceptance of the original EIS or the start of the original project.If such determinations were based on the original project,a great majority of,if not all,judicial proceedings
challenging the SEIS process would be dismissed as untimely.As indicated above,such a result would be absurd.
Here,DPP tentatively approved Kuilima's November 8,2005 subdivision application on September 29,2006.Thus,at minimum,plaintiffs'complaint was required to be filed
within 120 days thereof,or by February 5,2007.The plaintiffs'initial complaint was filed on May 19,2006 and their first amended complaint was filed on June 7,2006,well
before the limitations period even began to run.Furthermore,even if DPP's January 19,2006 letter to Shafer,indicating that Kuilima was"entitled to proceed with the project
as approved"constitutes"approval"under this section,the plaintiffs'initial complaint(filed May 19,2006)was still timely,i.e.,120 days from January 19,2006 is May 19,2006.
Thus,Kuilima's argument that the plaintiffs'claims are barred by the statute of limitations is without merit.
B. Environmental Council's Authority to Promulgate HEPA Rules
As previously indicated,the ICA majority did not address Kuilima's argument that the Environmental Council exceeded its statutory authority in promulgating HAR§§11-200-
26 and 11-200-27 and"accordingly[,]no cause of action exist[ed]to require Kuilima to prepare a[]SEIS."However,Kuilima reasserts such argument before this court.
448 *44s Article XI,section 1 of the Hawaii State Constitution mandates environmental protection,stating:
For the benefit of present and future generations,the State and its political subdivisions shall conserve and protect Hawaii's natural beauty and all natural
resources,including land,water,air,minerals and energy sources,and shall promote the development and utilization of these resources in a manner consistent
with their conservation and in furtherance of the self-sufficiency of the State.
All public natural resources are held in trust by the State for the benefit of the people.
To facilitate this constitutional mandate,HEPAwas enacted in 1974"to establish a system of environmental review which[would]ensure that environmental concerns are
given appropriate consideration in decision making along with economic and technical considerations."HRS§343-1.In keeping with this system of environmental review,
HEPA requires that an EIS be prepared"if[an]agency finds that the proposed action may have a significant effect on the environment."HRS§343-5(b)(Supp.2005).
The Environmental CouncilU is charged,pursuant to HRS§343-6(1993),quoted infra,with the task of promulgating rules to further the purpose of HEPA.In fulfilling its
statutory responsibility,the Environmental Council promulgated HAR title 11,chapter 200 that sets forth the"system of environmental review at the state and county levels"
which"provide[s]agencies and persons with procedures,specifications of contents of environmental assessments and environmental impact statements,and criteria and
definitions of statewide application."HAR§11-200-1.
Kuilima argues that the Environmental Council exceeded its statutory authority in promulgating HAR§§11-200-26 and 11-200-27.More specifically,Kuilima argues that
adopting the plaintiffs'interpretation of HEPAwould"exceed the enabling legislation of HEPA"by"caus[ing]HAR§§11-200-2[(the definition section)],11-200-26,and 11-200-
27 to contravene HRS§343-5(g),which states that"[a]statement that is accepted with respect to a particular action shall satisfy the requirements of this chapter and no other
statement for that proposed action shall be required."We cannot agree with Kuilima.
First,we recognize that HRS§343-2(Supp.2005)equates the term"statement"with an EIS.!Zt!We also recognize that section 343-5(g)limits the number of original EISs
under HEPA,but does not specifically proscribe SEISs.
Further,HRS§343-6 states that:
(a)After consultation with the affected agencies,the[Environmental C]ouncil shall adopt,amend,or repeal necessary rules for the purposes of this chapter in
accordance with chapter 91 [(entitled,"Administrative Procedure")]including,but not limited to,rules which shall:
(1)Prescribe the contents of an[EIS];
(2)Prescribe the procedures whereby a group of proposed actions may be treated by a single statement;
(3)Prescribe procedures for the preparation and contents of an environmental assessment;
449 *449(4)Prescribe procedures for the submission,distribution,review,acceptance or nonacceptance,and withdrawal of a statement;
(5)Prescribe procedures to appeal the nonacceptance of a statement to the environmental council;
(6)Establish criteria to determine whether a statement is acceptable or not;
(7)Establish procedures whereby specific types of actions,because they will probably have minimal or no significant effects on the environment,are declared
exempt from the preparation of an assessment;
(8)Prescribe procedures for informing the public of determinations that a statement is either required or not required,for informing the public of the availability of
draft statements for review and comments,and for informing the public of the acceptance or nonacceptance of the final statement;and
(9)Prescribe the contents of an environmental assessment.
(Emphases added).
The plain language of HRS§343-6 clearly authorizes the Environmental Council to promulgate rules that,at minimum,address the nine categories enumerated therein.This
court has stated that
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[a]public administrative agency possesses only such rule-making authority as is delegated to it by the state legislature and may only exercise this power within
the framework of the statute under which it is conferred.Administrative rules and regulations which exceed the scope of the statutory enactment they were
devised to implement are invalid and must be struck down.
Haole v.State,111 Hawaii 144,152,140 P.3d 377,385(2006).(citations omitted)(brackets in original).In other words,
an administrative agency can only wield powers expressly or implicitly granted to it by statute.However,it is well established that an administrative agency's
authority includes those implied powers that are reasonably necessary to carry out the powers expressly granted.The reason for implied powers is that,as a
practical matter,the legislature cannot foresee all the problems incidental to carrying out the duties and responsibilities of the agency.
Id.(emphasis in original)(citation omitted).Here,the rule-making authority expressly grants to the Environmental Council the power to promulgate rules regarding EISs.
However,to further the purpose and intent of HEPA,the Council,as discussed supra,clearly contemplated the possibility of changes to the original project that may dictate the
need for a further environmental impact assessment,i.e.,a SEIS.Thus,the rules promulgated to address SEISs,including HAIR§§11-200-26 and 11-200-27,are clearly
within the"implied powers that are reasonably necessary to carry out the powers expressly granted."
Moreover,the SEIS process established by the Environmental Council is consistent with HEPA and its objectives—i.e.,"environmental consciousness is enhanced,
cooperation and coordination are encouraged,and public participation during the review process benefits all parties involved and society as a whole,"HRS§343-1—and
furthers environmental review.Consequently,we hold that the Environmental Council did not exceed its authority in promulgating rules to guide the SEIS process,including
HAIR§§11-200-26 and 11-200-27.
C. Requirement that Kuilima Complete a SEIS
With respect to the plaintiffs'arguments regarding the timing of the project,the ICA stated that:
Plaintiffs'only allegation in the circuit court of a"change"in the[p]roject was an alleged change in"timing."Plaintiffs argue that increased traffic,other planned
developments near the[p]roject,and the existence of endangered or threatened species constitute"new circumstances or evidence."However,these are not
substantive changes in the[p]roject.
450 When asked what information they had about changes in the[p]roject,each of[p]laintiffs'deposition witnesses admitted'450 they had no personal knowledge or
evidence of changes in the[p]roject,with the exception of their claim regarding timing.
Unite Here_,120 Hawaii at 466,209 P.3d at 1280(emphasis added).The ICA went on to determine that"[t]he[1985]EIS detailed only an approximate phasing of the
development for the resort[,]"'and that"[n]either the[1985]EIS nor the governmental entities imposed a timing condition"and ultimately concluded that"[t]he record in this
case demonstrates there was no substantial change in the[p]roject,"including a change with respect to timing.Id.
The plaintiffs argue before this court that,because:(1)"[t]he EIS's impact analysis relied on basic assumptions about the project's timing by incorporating construction
projections in three phases"and(2)twenty-four years have passed since the 1985 EIS was approved,there has been a change in the project's timing such that there is"an
essentially different action...under consideration."HAR§11-200-26.In its response,Kuilima contends that a different action is not under consideration because"the[p]roject
...was not qualified by timing"inasmuch as"[t]he phasing plan for the[p]roject contemplated only a general and approximate plan for development"and"the[u]nilateral
[a]greement...contemplated a reasonable and flexible schedule."Further,Kuilima argues that,"[e]ven if this[c]ourt concludes that[plaintiffs]have shown a change in the
timing of the[p]roject,'the[plaintiffs]have failed to connect any new or different significant effect resulting from'that alleged change that was not originally disclosed or
previously dealt with"in the 1985 EIS.
HAIR§11-200-26 states that:
A statement that is accepted with respect to a particular action is usually qualified by the size,scope,location,intensity,use,and timing of the action,among other
things.A statement that is accepted with respect to a particular action shall satisfy the requirements of this chapter and no other statement for that proposed
action shall be required,to the extent that the action has not changed substantively in size,scope,intensity,use,location,or timing,among other things.If there is
any change in any of these characteristics which may have a significant effect,the original statement that was changed shall no longer be valid because an
essentially different action would be under consideration and a supplemental statement shall be prepared and reviewed as provided by this chapter.As long as
there is not change in a proposed action resulting in individual or cumulative impacts not originally disclosed,the statement associated with that action shall be
deemed to comply with this chapter.
(Emphases added).This court has stated that'[t]he fundamental starting point for statutory interpretation is the language of the statute itself....[W]here the statutory language
is plain and unambiguous,[the courts]sole duty is to give effect to its plain and obvious meaning."Awakuni,115 Hawaii at 133,165 P.3d at 1034.The same general
principles that apply to statutory interpretation also apply to interpretation of administrative rules.Allstate Ins.Co.,105 Hawaii at 454,99 P.3d at 105.
Based on the plain language of subsection 26,every EIS is inherently"qualified,"or limited,by,inter alia,"the timing of the action,"i.e.,some sort of time frame.As the
plaintiffs recognized,failing to consider the timing of a project,among other things,
guts environmental review because certainly no one would argue that...we don't know how big this project is going to be,we don't know how much density
there's going to be on this project,we don't know exactly where on the property this project is going to be located.All of those things need to be set out[i]n an
EIS.
We agree.For an EIS to meet its intended purpose,it must assess a particular project at a given location based on an explicit or implicit time frame.
Here,the 1985 EIS explicitly described the scope of the project and centered its analysis on the size,location,intensity,and use of Kuilima's expansion.The 1985 EIS also
451 specifically referenced the"phasing and timing of the action,"stating that the"Phase I designation generally indicates a 1986 start*451 of construction date,Phase II,
commencement between 1988 to 1989,and Phase III,[c]ommencement between 1993 to 1996."Although the phasing projections were"flexible,"such projections indicate
that the 1985 EIS was subject to an implied timing condition or time frame,especially in light of the plain language of HAIR§11-200-26 identifying timing as a consideration.
The record in the instant case indicates that the EIS was based on and limited to data available in 1985 and projected through 2000.As a result,the 1985 EIS addressed only
the environmental impacts of the project within that time frame.For example,the evidence in the record indicates that:(1)traffic studies analyzed traffic impact projections
through 2000;(2)visitor units,hotel demand,and population growth were also projected and analyzed only through 2000;and(3)monk seal populations were nearly non-
existent in the project area at the time and,thus,were not even considered in the 1985 EIS.
Inasmuch as:(1)over twenty years have passed since the approval of the 1985 EIS;(2)the evidence demonstrates that environmental impacts were examined only through
2000;and(3)the project is not yet completed,we conclude that the project,although unchanged in terms of size,scope,location,intensity,and use,is—due to the change in
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timing—an"essentially different action,"HAIR§11-200-26,thereby rendering"the original statement...no longer...valid."Id.Consequently,contrary to the ICA-majority's
opinion,a SEIS may be required and,thus,next examine whether a change in timing"may have a significant effect."See HAR§11-200-26.
This court has recently stated that the phrase"may have a significant effect"as used in HEPA means"whether the proposed action will'likely'have a significant effect on the
environment."Kepo'o v.Kane,106 Hawaii 270,289,103 P.3d 939,958(2005)(construing HRS§343-5(c)),[22!Further,the United States Court of Appeals far the Ninth
Circuit has held that,under the aforementioned standard,plaintiffs"need not show that significant effects will in fact occur"but instead need only"raise[]substantial questions
whether a project may have a significant effect0."Klamath Siskiyou Wildlands Ctr.v Boody.468 F.3d 549,162(9th Cir.2006)(underscored emphasis in original)(bold
emphasis added).
The record in this case—particularly the post-1985 EIS traffic reports—clearly"raises substantial questions,"id.,regarding changes in the project area and its impact on the
surrounding communities.As previously indicated,Challacombe,the County's"most knowledgeable"expert with respect to its obligations to enforce HEPA,testified that
timing,although not the sole criterion,is an"important"component in the County's permit review and concurrent determination of whether a SEIS is required.According to
Challacombe,"[i]f the surrounding community's changed,we would consider that[.]"He also testified that he was"sure"the County would"require an updated traffic study at
the time of building permit application for the Kuilima development"and that"[a]twenty year old traffic study is not sufficient,because...there may be factors in the community
that have changed,i.e.,traffic."
The record suggests that traffic impacts have,indeed,changed since 1985.New evidence documenting changes in traffic patterns in the area have been presented in the form
of seven post-1985-EIS traffic studies and reports,including,interalia:(1)the 1991 traffic report;(2)DOT's traffic counts taken on Kamehameha Highway fronting the resort in
August 2000;(3)the 2005 Laniakea traffic report;(4)Kuilima's 2005 traffic report;and(5)Kuilima's 2006 Addendum Nos.1,2,and 3 to the 2005 traffic report.Based on the
description of these reports discussed in section I.A.3.,supra,it appears that the Kuilima expansion project will result in traffic impacts that were not contemplated by the 1985
452 EIS,which predicted impacts only through the year 2000.In other words,all of*452 the post-1985 EIS traffic studies and report suggest that changes have occurred since
1985.The 1985 EIS indicated,for example,that,"[w]hile the increased traffic generated by the proposed resort expansion is significant when compared to the projected
background conditions,it is not beyond the carrying capacity of an upgraded,high quality two-lane arterial"however,Addendum No.1 predicted in 2006 that,at the project's
full development,peak hour traffic operations at the intersection of Kamehameha Highway and Alpha Road"are expected to deteriorate below satisfactory LOS."
Moreover,as previously indicated,the 1985 EIS provided an assessment of the traffic impact to the region,i.e.,between Haleiwa and Punalu'u and specific traffic data for
certain regional areas.However,none of the updated traffic studies involved any regional areas,only impacts upon the areas fronting the resort and within the resort itself.
Nevertheless,inasmuch as the entire North Shore area is served by the one two-lane roadway(namely,Kamehameha Highway),it is reasonable to infer that studies showing
increased impacts in the local region would likely impact the regional areas.
The record also indicates that beaches and near shore waters within the project area are now used by endangered and threatened species,specifically the monk seal and
green sea turtle.The facts indicate that:(1)the project will likely result in increased impacts on the monk seal population because monk seals are vulnerable to harassment by
humans and face increased threats in areas where they are exposed to greater human contact;(2)the numerous recently reported sightings of monk seals in the area suggest
that the beaches and near shore areas of the project are significant to the regeneration of the monk seal population;and(3)because the project is expected to draw hundreds
more people—many of them tourists who are unfamiliar with monk seal protection requirements—the likelihood of increased impacts on monk seals and their regeneration
is likely.Moreover,studies conducted after the 1985 EIS was approved have also demonstrated an increase in the green sea turtle population in the project area.
As previously indicated,the defendants argue that there is no"new"evidence that was"not originally disclosed or previously dealt with in the 1985 EIS."However,based on
the foregoing discussion regarding the post-1985 EIS reports and studies regarding traffic conditions,monk seals,and green sea turtles,such information clearly qualifies as
"new"information or circumstances that were"not originally disclosed,"not previously considered,and could have a substantial effect on the environment.
Based on the foregoing,we believe the plaintiffs have clearly presented"new"evidence that was not considered at the time the 1985 EIS was prepared and could likely have a
significant impact on the environment.Kepo'o,106 Hawaii at 289 n.31,103 P.2d at 958 n.31.Consequently,we hold that the project constitutes an"essentially different
action...under consideration"and,based on the plain language of HAIR§11-200-26,"a supplemental statement[should have been]prepared and reviewed."
Any other result would be both absurd and contrary to public policy in Hawaii.With respect to the possible absurd result,the ICA dissent aptly observed that:
[U]nder Kuilima's[,]...the[County's,and the majority's]interpretation of the applicable rules and circumstances,because no specific deadline was established for
the project's completion,the 1985 EIS would remain valid in perpetuity and no SEIS could ever be required,so long as no substantive changes to the design of
the project were made.
Unite Here!,120 Hawaii at 472,209 P.3d at 1286(Nakamura,J.,dissenting)(emphasis added).Indeed,ignoring the implicit time condition dictated by the anticipated life of
the project upon which an original EIS has been based would allow unlimited delays and,in turn,permit possible resulting negative impacts on the environment to go
unchecked.In other words,allowing an outdated EIS to"remain valid in perpetuity'directly undermines HEPA's purpose.
HRS§343-1 (setting forth the findings and purpose for HEPA)states that
453 *453[t]he legislature finds that the quality of humanity's environment is critical to humanity's well being,that humanity's activities have broad and profound effects
upon the interrelations of all components of the environment,and that an environmental review process will integrate the review of environmental concerns with
existing planning processes of the State and counties and alert decision makers to significant environmental effects which may result from the implementation of
certain actions....
It is the purpose of this chapter to establish a system of environmental review which will ensure that environmental concerns are given appropriate consideration
in decision making/.]
(Emphases added).Indeed,this court has repeatedly recognized the public purpose served by HEPA to"ensure that environmental concerns are given appropriate
consideration in decision making"such that"environmental consciousness is enhanced,cooperation and coordination are encouraged,and public participation during the
review process benefits all parties involved and society as a whole."See,e.g.,Kahana Sunset Owners Assn v.County of Maui,86 Hawai'i 66,70,947 R2d 378,382(1997)
(citing HRS§343-1)2-3;Citizens for the Protection of the N.Kohala Coastline v.Count of Hawaii,91 Hawai'i 94,104 n.11,979 P.2d 1120,1130 n.11 1999.(also citing
.............................................................................................................................................................................................Y..................................................................................................................................................................................................�:...............).
HRS§343-1);Sierra Club v.Dep't of Transp. 115 Hawaii 299,.327&342,167 P.3d 292,320&335(2007)(referring to HRS§343-1).
Kuilima argues that the ICA majority's interpretation of HAIR§§11-200-26 and 11-200-27"provides a reliable,consistent process that recognizes and balances the developer's
interest and the predictability of a project's entitlements with environmental considerations."More specifically,Kuilima adopts the reasoning of the United States Supreme
Court that"an agency need not supplement an EIS every time new information comes to light after the EIS is finalized"and that"[t]o require otherwise would render agency
decision-making intractable."(Quoting Marsh v Oregon Natural Res.Council 490 U.S.360 373 109 S.Ct.1851 104 L.Ed.2d 377 1989)(applying federal law)).The County
agrees,arguing that,"[i]f every change in circumstances could lead to a[]SEIS challenge,even if only to determine whether such change rendered the project'an essentially
different action[]'[]the land use approval would be mired in an untenable gridlock."However,the foregoing analysis does not suggest that supplemental environmental review
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is required"every time new information comes to light after[an]EIS is finalized."Marsh,490 U.S.at 373,109 S.Ct.1851.To the contrary,the conclusion that a SEIS is
warranted is based on the particular circumstances in this case and on the evidence discussed supra.Thus,the defendants'arguments are without merit.
Based on the foregoing,we hold that the circuit court erred in concluding that,as a matter of law,"[t]he timing of the[p]roject has not substantively,or essentially,changed"
and that,"[i]n the alternative,even if the timing had substantively changed,which the[circuit c]ourt finds that it has not,such change is not likely to have a significant effect."
Consequently,the ICA majority erred in reaching the same conclusion.
D. DPP's Review of Kuilima's Subdivision Application
As previously stated,the ICA,in its majority opinion,did not address the plaintiffs'argument that the DPP did not take a"hard look"at the allegations and evidence presented
to it with respect to Kuilima's subdivision application.The plaintiffs make the same contention before this court,and essentially argue that the DPP did not follow the requisite
454 procedure in determining that a*454 SEIS was not required.In response,Kuilima argues that the DPP did,in fact,take a"hard look"at"the alleged intensity of impacts'and
'new circumstances and evidence"'and,as a result,the DPP followed the requisite procedure and did not act arbitrarily or capriciously in deciding not to require a SEIS.
Neither the case law in this jurisdiction nor HEPA itself offers guidance as to which standard of review should apply to an agency decision regarding a SEIS.However,this
court has reviewed an agency's decision whether an EIS satisfies the statutory requirements under the"rule of reason"standard.See Price,81 Hawai'i at 182,914 P.2d at
1375.As applied to considerations of the adequacy of an EIS,this court has stated that:
In making such a determination the court is guided by the"rule of reason,"under which an EIS need not be exhaustive to the point of discussing all possible
details bearing on the proposed action but will be upheld as adequate if it has been compiled in good faith and sets forth sufficient information to enable the
decision-maker to consider fully the environmental factors involved and to make a reasoned decision after balancing the risks of harm to the environment against
the benefits to be derived from the proposed action,as well as to make a reasoned choice between alternatives.
Price,81 Hawaii at 182,914 P.2d at 1375(quoting Life of the Land,59 Haw.at 164-65,577 P.2d at 1121 (citation omitted))(footnote omitted).Moreover,we have recognized
that
a court is not to substitute its judgment for that of the agency as to the environmental consequences of its action.Rather,the court must ensure that the agency
has taken a"hard look"at environmental factors.
If the agency has followed the proper procedures,its action will only be set aside if the court finds the action to be"arbitrary and capricious,"given the known
environmental consequences.
Id.at 182 n.12,914 P.2d at 1375 n.12(citing Stop H-3 Assn v.Lewis,538 F.Supp.149,159(D.Haw.1982))(emphases added).Inasmuch as this court has applied the"rule of
reason"and"arbitrary and capricious"standards of review with respect to EISs and agency decisions relating to environmental consequences,we extend such standard of
review to cases involving an agency's decision with regard to SEISs.
As previously mentioned,in assessing Kuilima's subdivision application to determine whether to require a SEIS,the DPP's rationale was that the phasing or timing of the
project was irrelevant,and,thus,it looked for changes only within the project itself.However,evidence in the record indicated that there was,indeed,a substantive change in
the timing of the project such that an"essentially different action"was under consideration,HAIR§11-200-26,thereby rendering the"original statement...no longer...valid,"
id.,and,thus,dictating the need for a SEIS.The DPP ignored the most obvious fact that the 1985 EIS was based on detailed information current as of 1985,i.e.,that the
conditions upon which the 1985 EIS was based were over twenty years old.For the DPP to assume that conditions would not have changed over twenty years is
unreasonable,especially given the"new"evidence with respect to traffic,monk seals,and green sea turtles,discussed supra.Thus,it cannot be said that"the agency has
taken a hard look'at[the]environmental factors."Given the unreasonable and seemingly cursory consideration of whether a SEIS was warranted,we hold that the DPP's
decision that one was not required was"arbitrary and capricious."
IV. CONCLUSION
Based on the foregoing,we vacate the ICA's June 12,2009 judgment on appeal,the circuit court's June 4,2007 amended final judgment in favor of the defendants,and
remand this case to the circuit court with instructions to enter judgment in favor of the plaintiffs.
Concurring Opinion byACOBA,J.
I concur in the result.
455 It would seem irrefutable that an environmental impact statement(EIS)cannot exist*455 in perpetuity.See Unite Heref Local 5 v City&County of Honolulu,120 Hawaii 457„
472,209 P.3d 1271,1286(Apn 2009)-(Nakamura J.,dissenting),(stating that"under...[the]interpretation of the applicable rules and circumstances[by
Respondents/Defendants-Appellees City and County of Honolulu(City)and Kuilima Resort Company(Kuilima)],because no specific deadline was established for the project's
completion,the 1985 EIS would remain valid in perpetuity").But a construction of the provisions of Hawaii Revised Statutes(HRS)chapter 343 that would lead to a result
other than the one reached here would affirm or produce the converse of that proposition.Consequently,the reasonable resolution of this writ is to order that summary
judgment be entered in favor of Petitioners/Plaintiffs-Appellants Keep the North Shore Country and Sierra Club,Hawaii Chapter[collectively,Plaintiffs],and against
Respondents/Defendants-Appellees City,Henry Eng,Director of the Department of Planning and Permitting(DPP),and Kuilima[collectively,Defendants],granting the
requested declaration that a supplemental environmental impact statement(SEIS)be required.
A contrary result would also violate the legislature's underlying purpose in enacting HRS chapter 343.HRS§343-1 (Supp.2006)states,"It is the purpose of this chapter to
establish a system of environmental review which will ensure that environmental concerns are given appropriate consideration in decision making along with economic and
technical considerations."(Emphasis added.)Manifestly,the purpose of requiring an EIS is to ensure that agencies like the DPP are able to make informed decisions
regarding projects that will impact the surrounding environment.
This court has stated that an EIS will be upheld if,among other things,it contains"sufficient information to enable the decision-maker to consider fully the environmental
factors involved and to make a reasoned decision after balancing the risks of harm to the environment against the benefits to be derived from the proposed action,as well as
to make a reasoned choice between alternatives."Price v.Obayashi Hawaii Corp.,81 HawaiCi 171,182,914 P.2d 1364,1375(1996).(quoting Life of the Land v.Myoshi,59
Haw.156,164-65,577 P.2d 111 6,1121 (1978))(footnote and citation omitted).However,it cannot be said reasonably that"environmental concerns are given appropriate
consideration in decision making,"HRS§343-1,when the information is incomplete or outdated.Nor can it be said that in cases where information is outdated,agencies are
able to"balanc[e]the risks of harm to the environment against the benefits to be derived from the proposed action[.]"Obayashi,81 Hawaii at 182,914 P.2d at 1375.It would
be inconsistent with the express purpose of HRS chapter 343 to conclude that agencies may rely on an EIS in making decisions when the information contained therein is
456 insufficient.t11 Thus,an EIS cannot*456 be relied on reasonably for an indefinite period of time.L]
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Supportive of this view,Hawai-i Administrative Rules(HAR)§11-200-13(c)limits an agency's ability to utilize previous material in making a determination to approve or deny
an action.
(c)Agencies shall not,without considerable pre-examination and comparison,use past determinations and previous statements to apply to the action at hand.
The action for which a determination is sought shall be thoroughly reviewed prior to the use of previous determinations and previously accepted statements.
Further,when previous determinations and previous statements are considered or incorporated by reference,they shall be substantially similar to and relevant to
the action then being considered.
HAR§11-200-13(c)(emphases added).Accordingly,the DPP had a duty to make an independent determination as to whether the EIS contained sufficient information to
enable it to make an informed decision regarding the subdivision application.It is not sufficient that the information had been"previously accepted."Id.The information in the
EIS must be"relevant to the action then being considered."Id.In the instant case,Plaintiffs alleged numerous changes to the area surrounding the project,calling into
question the relevance of the information contained in the 1985 EIS to the action proposed,namely,approval of the subdivision application.131
The changes that Plaintiffs alleged related directly to the sufficiency of the information contained in the EIS.M As the majority indicates,the standard to be applied to agency
determinations regarding the adequacy of an EIS is the"rule of reason."Majority opinion at 181,231 Pi at 454.Under the rule of reason,
an EIS need not be exhaustive to the point of discussing all possible details bearing on the proposed action but will be upheld as adequate if it has been compiled
in good faith and sets forth sufficient information to enable the decision-maker to consider fully the environmental factors involved and to make a reasoned
457 decision after*457 balancing the risks of harm to the environment against the benefits to be derived from the proposed action,as well as to make a reasoned
choice between alternatives.
Obayashi 81 Hawai'i at 182 914 Pi at 1375(quoting Life of the Land 59 Haw.at 164-65 577 Pi at 1121)(footnote and citation omitted).This standard regarding the
adequacy of an EIS relates to court review of whether the agency is sufficiently apprised as to the surrounding circumstances in order to determine whether a project should
proceed.Such a standard is no less applicable in the instant case,where there are questions as to whether the information in the EIS is adequate to inform the DPP's decision
as to whether to grant the subdivision request.
An agency's initial determination that a project's impact can be sufficiently mitigated to warrant the project's approval relies heavily on projections regarding matters such as
traffic and environmental impacts.Such projections are of questionable value as the project's estimated completion is moved far into the future.See,e.g.,Obayashi,81
Hawaii at 183,914 Pi at 1376(stating that an EIS must"enable the decision-maker to consider fully the environmental factors involved and to make a reasoned decision
after balancing the risks of harm to the environment against the benefits to be derived from the proposed action")(quoting Life of the Land 59 Haw.at 164-65,577 Pi at
1121),I51 Thus,an agency's determination of whether an EIS and the measures the EIS contains to minimize the negative impacts on the surrounding area are relevant,should
be reviewed under the rule of reason.In making its assessment of the agency's decision,the reviewing court must examine 1)the anticipated completion date of the project or
implied completion date,2)the extent to which the EIS addressed future changes in the circumstances surrounding the project,and 3)the extent of changed circumstances
surrounding the project.Such a standard should be regarded as analogous to a review for abuse of discretion inasmuch as the rule of reason gives agencies broad discretion,
but does not permit them to"exceed[]the bounds of reason or disregard0 rules or principles of law[.]"Williams v.Aona,121 Hawaii 1,7,210 Pi 501,507(2009).(citation
omitted).
[1]The Honorable Sabrina S.McKenna presided unless otherwise indicated.
[2]The record also contains references to a Department of Transportation,Highway Planning Branch's traffic counts taken on Kamehameha Highway in front of the resort,dated August 2000(2000 DOT traffic count),and a
Laniakea Beach Park Traffic Impact Analysis Report,dated 2005(2005 Laniakea traffic report).
t3]As observed by the ICA,"the[p]roject was to be developed in three phases,with phase I starting in 1986,phase II starting between 1988 and 1989,and phase III starting between 1993 and 1996[,]"Unite 11 120
Hawaii at 460 209 P.3d at 1274„and that"the last phase[was]to be completed before 2000."Id.
[4]Each joinder noted that the County"[did]not join in...the facts contained in said...[m]otion[s]...[to the extent that such facts]constitute legal conclusion(s),argument or otherwise attempt to characterize the actions
taken by the[County]with regard to the issuance of land use approvals/permits."
j5]The circuit court focused only upon the third motion and cross-motion for summary judgment and,as reported infra,ruled that the remaining motions were rendered moot by its grant of summaryjudgment in favor of the
defendants.
[6]HRCP 56(e)states,in relevant part,that:
Supporting and opposing affidavits shall be made on personal knowledge,shall set forth such facts as would be admissible in evidence,and shall show affirmatively that the affiant is competent to testify to the matters stated
therein.Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.The court may permit affidavits to be supplemented or opposed by depositions,answers
to interrogatories,or further affidavits.When a motion for summaryjudgment is made and supported as provided in this rule,an adverse party may not rest upon the mere allegations or denials of the adverse party's
pleading,but the adverse party's response,by affidavits or as otherwise provided in this rule,must set forth specific facts showing that there is a genuine issue for trial.If the adverse party does not so respond,summary
judgment,if appropriate,shall be entered against the adverse party.
[7]Challacombe indicated that the review of a subdivision application is the same as the review for a SNIP or building permit,etc.
[8]According to Dr.Littnan,"[m]onk seals haul out on beaches for three reasons:to rest,molt,and pup.Although resting seals may haul out for short periods,molting seals may haul out far a week or more and mother-pup
pairs may occupy a beach for a month or longer."
[9]The amended final judgment is identical to the original except that the amended version added the language,"[a]ny remaining parties and/or claims are dismissed."
[10]On March 17,2008,amicus curiae Conservation Council for Hawaii[hereinafter,Conservation Council]filed an amicus brief in support of the plaintiffs'position.
[11]The County appears to have abandoned these arguments on appeal.
[12]HAR§11-200-26 states:
A statement that is accepted with respect to a particular action is usually qualified by the size,scope,location,intensity,use,and timing of the action,among other things.A statement that is accepted with respect to a
particular action shall satisfy the requirements of this chapter and no other statement for that proposed action shall be required,to the extent that the action has not changed substantively in size,scope,intensity,use,
location or timing,among other things.If there is any change in any of these characteristics which may have a significant effect,the original statement that was changed shall no longer be valid because an essentially
different action would be under consideration and a supplemental statement shall be prepared and reviewed as provided by this chapter.As long is there is no change in a proposed action resulting in individual or cumulative
impacts not originally disclosed,the statement associated with that action shall be deemed to comply with this chapter.
(Emphases added.)
[13]HAR§11-200-27 states:
The accepting authority or approving agency in coordination with the original accepting authority shall be responsible for determining whether a supplemental statement is required.This determination will be submitted to the
office for publication in the periodic bulletin.Proposing agencies or applicants shall prepare for public review supplemental statements whenever the proposed action for which a statement was accepted has been modified
to the extent that new or different environmental impacts are anticipated.A supplemental statement shall be warranted when the scope of an action has been substantially increased,when the intensity of environmental
impacts will be increased,when the mitigating measures originally planned are not to be implemented,of where new circumstances or evidence have brought to light different or likely increased environmental impacts not
previously dealt with.
(Emphasis added.)
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[14]On September 11,2009,Earthjustice,a nonprofit environmental law firm,filed an amicus curiae brief in support of the plaintiffs'application on behalf of a number of citizen groups.Citizen groups represented by
Earthjustice include the Conservation Council,Surfrider Foundation,Hawaii's Thousand Friends,Life of the Land,Maui Tomorrow Foundation,and KAHEA.
[15]Five additional amicus briefs were filed after this court accepted the plaintiffs'application.One,in support of the plaintiffs'position,was fled by Defend Oahu Coalition.Three were fled in support of the defendants'
positions,to wit:(1)North Shore Career Training Corporation,Laie Community Association,and Kahuku Community Association[hereinafter,collectively,North Shore Associations];(2)First Hawaiian Bank;and(3)the Land
Use Research Foundation of Hawaii(LURF),Hawaii Developer's Council(HDC),and Hawaii Leeward Planning Conference(HLPC)[hereinafter,collectively,LURF amici].The fifth amicus brief was filed by Dr.Nui Loa
Price,wherein he essentially argues that this court should consider Hawaiian history and federal Indian law in making its land use decisions.
[16]HRS§343-5,entitled"Applicability and requirements,"describes the circumstances under which an environmental assessment is required and related requirements for the environmental review process.
[171 A"negative declaration"or"finding of no significant impact"is defined as"a determination by an agency based on an environmental assessment that a given action...does not have a significant effect on the
environment and therefore does not require the preparation ofen EIS,"or,as here,the preparation of a SEIS.HAR§11-200-2."A negative declaration is required prior to implementing or approving the action."Id.
[1]Pursuant to HAR§11-200-3,
A.The[OEQC]shall inform the public through the publication of a periodic bulletin of the fallowing:
2.Notices filed by agencies of determinations that statements are required or not required,
C.The bulletin shall be issued on the eighth and twenty-third days of each month.All agencies...submitting...negative declarations...shall submit such documents or notices to the[OEQQ]before the close of business
eight working days prior to the issue date....
(Emphases added.)
[19]HRS§91-2 provides in relevant part:"(h)No agency rule,order,or opinion shall be valid or effective against any person or party,nor may it be invoked by the agency for any purpose,until it has been published or made
available for public inspection as herein required,except where a person has actual knowledge thereof."(Emphasis added.)
`201 The Environmental Council was created in 1970,1970 Haw.Sass.Laws.Act 132,§1 at 248-50,and is composed of fifteen members from various disciplines,all of whom are appointed by the governor.HRS§341-3(c)
(1993).
[21]HRS§343-2 provides in relevant part:
"Environmental impact statement"or"statement"means an informational document prepared in compliance with the rules adopted under section 343-6[(quoted infra)]and which discloses the environmental effects of a
proposed action,effects of a proposed action on the economic welfare,social welfare,and cultural practices of the community and State,effects of the economic activities arising out of the proposed action,measures
proposed to minimize adverse effects,and alternatives to the action and their environmental effects.
The initial statement fled for public review shall be referred to as the draft statement and shall be distinguished from the final statement which is the document that has incorporated the public's comments and the responses
to those comments.The final statement is the document that shall be evaluated for acceptability by the respective accepting authority.
22 This court has stated that"[I]ikely is a ward of general usage and common understanding,broadly defined as of such nature or so circumstantial as to make something probable and having betterchance ofemting or
occurring than not."KKgaQZg.106 Hawaii at 289 n.31,103 R2d at 958 n.31.
[23]As we explained in Kahana Sunset,HEPA review is more than a mere formality;instead it should function
to provide the agency and any concerned member of the public with the information necessary to evaluate the potential environmental effects of a proposed action...so that the public may be allowed an opportunity to
comment and the agency will have the necessary information to understand the potential environmental ramifications of their decisions.
Kahane Sunset 86 Hai at 72,947 R2d at 384.
[1]In their first amended complaint,Plaintiffs requested declaratory relief,stating that,"Plaintiffs respectfully request that this[c]our:enterjudgment and provide the following relief...[a]declaratory judgment that a[SEIS]
must be prepared for the[p]roject and submitted in accordance with[HRS chapter 343]."Plaintiffs argued that the DPP,as the reviewing authority,was required to attach further conditions on approval of the subdivision
application in order to ensure that changes not addressed by the 1985 EIS were examined.Plaintiffs'letters to the DPP specifically pointed to changes in traffic,population density,and the habitats of endangered species as
examples of the changed circumstances and noted that more information should be obtained before proceeding with the project.
The DPP responded 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 an SEIS to address changes in the conditions
surrounding the[p]roject caused by the passage of time."Unite Here!,120 Hawaii at 461,209 P.3d at 1275.According to the DPP,"[b]y 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[City]cannot retroactively impose time limits or unilaterally rescind an entitlement like an approved discretionary permit."Id.The DPP's response to
Plaintiffs'letters plainly constituted a denial of Plaintiffs'request to attach new conditions to the grant of the subdivision application despite claimed changes in circumstances and the passage of time.Thus,the issue before
the court was whether the DPP abused its discretion in reaching that conclusion.
[2]The EIS specifies that the project will be developed in three phases.As Plaintiffs explained in their first amended complaint,
37.The[p]roject proposed three phases:"Phase I generally indicates a 1986 start of construction date,Phase 11,commencement between 1988 to 1989,and Phase III,commencement between 1993 to 1995."Kuilima EIS
at 31.
38.Over 20 years elapsed since completion of the 1985 EIS,over 20 years have passed since the anticipated start date of the[p]roject,and approximately 10 years passed since the last phase of the fp]ro]ect was
anticipated to be initiated.
(Emphases added.)Furthermore,the initial EIS contained traffic projections until the year 2000.Despite there being no exact date by which the project was to be completed,and allowances being made for delays due to
changed economic conditions and other factors,a reasonable time limitation on the relevancy of the EIS may be inferred based on both the contents of the EIS itself as well as changes in the circumstances surrounding the
project.
[3]Plaintiffs alleged numerous changed circumstances around the project.The first amended complaint stated:
22.Since 1985,much has undeniably changed in the North Share....Substantial additional residential development has also occurred or is planned,including projects in Malaekahana(120 housing lots)and Laie(550
housing units).The current portions of the[p]roject which[Kuilima]is now proposing to undertake,20 years after the 1985 EIS,will result in significant environmental impacts or increased intensity of impacts not previously
evaluated,considered,predicted,or planned.These impacts,include,but are not limited to,environmental impacts and cumulative effects relating to increased visitor trips;increased peak and non-peak traffic,increased
demand on limited water resources,wastewater capacity,electrical peak capacity,and infrastructure;increased impacts on sensitive wetland and endangered water bird habitat,and increased impacts an public access to
the shoreline,visual view planes and aesthetics values.
(Emphases added.)
[41 Allegations in the first amended complaint relating to wildlife,traffic,and natural resources all relate to the viability of the original EIS.Such evidence goes directly to establishing that the DPP violated the rule of reason in
making its determination that no further conditions would be imposed on the subdivision application.As previously stated,the DPP had an independent obligation,pursuant to HAR§11-200-13(c)to determine whether the
information in the EIS was still adequate to support an informed decision regarding the subdivision application.
[5]In essence,the DPP's condusion was that the EIS was valid as long as there were no changes to the size or scope of the project.The assumption underlying this determination is that the information contained in the EIS
was sufficient to enable the agency to render an informed decision.Plaintiffs brought their action to the court challenging the declaration of the DPP that"as long as Kuilima was following the appropriate subdivision rules
and regulations,the[City]was obligated to continue to process the[s]ubdivision[a]pplication."Unite Here.r 120 Hawaii at 461,209 Pi at 1275.However,in its order granting summary judgment in favor of Kuilima,the
court concluded that it was not required to review whether there were significant changes to the area surrounding the project.
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