2026-5-15 Appellant's draft Memorandum in Opposition to Motions to Dismiss_v1.pdf

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MEMORANDUM IN OPPOSITION TO PLANNING DIRECTOR'S MOTION TO DISMISS Case Nos. PL-BOA-2025-000119 and 121 This memorandum is based on Rule 3-2(d) of the Board of Appeals Rules of Practice and Procedure, and the law on Standing in environmental law in Hawaii. This case is an appeal of the Planning Director's decision to issue a SMA exemption for a building project that proposes to impermissibly expand a nonconforming use — a unhosted Short-term vacation Rental —in a low -density residential zoned neighborhood in violation of the Zoning Code, Section 25-4-61 Continuance of nonconforming uses of land and buildings and HRS section 205A-26(2)(C). The CZMA, coded as Chapter 205A, Hawaii Revised Statutes, is an environmental law. See, HRS §205A-21 Findings and purposes. The Hawaii County Zoning Code, Chapter 25, is an environmental law. See, Section 25-1-2 Scope, purposes and applicability. 1. Injury -in -Fact Test (Individual Standing) The Supreme Court of Hawai'i relies on a three-part test to determine injury -in -fact standing, heavily informed by Sierra Club v. Department of Transportation, 167 P.3d 292, (2007). To establish individual standing, a plaintiff must demonstrate three strict elements: • Actual or Threatened Injury: The plaintiff must suffer a distinct, palpable, and concrete injury. Abstract, hypothetical, or generalized grievances do not qualify. • Traceability: The injury must be fairly traceable to the defendant's challenged actions or statutory non-compliance. • Redressability: The injury must be likely to be remedied, cured, or undone by the favorable court ruling requested. In Sierra Club, the court integrated specific expansions for environmental and public - interest litigation: • Geographic Nexus: Plaintiffs establish a concrete injury if they use and enjoy an area (e.g., a harbor or coastline) and show a reasonable threat of environmental harm from the project. • Procedural Injury: A plaintiff suffers an independent injury -in - fact when an agency denies them a legally mandated procedural 1