2005-05-06 Answering Brief Re Ainaola Development

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Put another way, to illustrate the illogic of ADC's position, ADC really does not even have standing to appeal Condition No. 7, as ADC cannot be an"aggrieved party" under HRS Section 91-14(a) ("Any person aggrieved by a final decision and order in a contested case . . . is entitled to judicial review thereof under this chapter . . ." ). "A plaintiff without standing is not entitled to invoke a court's jurisdiction." Sierra Club v. Hawaii Tourism Authority, 100 Hawaii 242, 250, 59 P.3d 877, 885 (2002). The first test of standing is: Has the plaintiff (or appellant) suffered an actual or threatened injury as a result of the defendants' conduct?" Sierra Club, 100 Hawaii at 250, 59 P.3d at 885. See also,Ka Pa'akai O Ka'aina v. Land Use Commission, 94 Hawaii 31, 42, 7 P.3d 1068, 1079 (2000). HRS Chapter 91 aggrieved parties must show"injury in fact" including (1) an actual or threatened injury, which(2)is traceable to the challenged action, and (3)is likely to be remedied by favorable judicial action.) Here, ADC has asked for a betterment of their position under Condition No. 7, a reduction in their monetary burden. The Commission's denial of that betterment request has not harmed any legal interest of ADC. ADC is simply left in the status quo ante for Condition No. 7, and suffers no adverse action. Thus, ADC is not an aggrieved party, and would lack standing to reopen the imposition of Condition No. 7. The lack of adverse action is further illuminated by the context of the request, which is to seek extensions of time for performance of existing conditions, and thus the life of the permit. At this juncture, the granting of the permit and imposition of conditions 12.5 years ago is not at issue. ADC came, hat in hand, to seek the Planning Commission's grace in extending the life of the permit. Under these circumstances, ADC is in no position to demand betterments. (Actually, the implied power to modify conditions under Morgan v. Planning Department, County of Kauai, 104 Hawaii, 173, 184-5, 86 P.3d 982, 993-994 (2004), is just that, implied. Hence, there is no statutory requirement that the Planning Commission even hold a contested case hearing on 14