2012-10-18 Leeward Exh B - DPW Laaloa

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it. And so the Planning Commission granted the SMA permit. There was an appeal. And as chance would have it, I argued the case in the Hawai‘i Supreme Court on my daughter’s sixth birthday, and that’s when the court finally reversed the Planning Commission and found that the State of Hawai‘i has very liberal standards for standing, particularly in SMA matters where the point is to get public participation in the process. And so I personally learned from that. And when I’m representing developers or applicants, I do not fight standing because it’s a loosing proposition. You can win now but five, six years later the court is going to come back and tell you no, we look, we consider it liberally. And there is a series of cases that they didn’t cite for either holds specifically that. So just to be clear, the standards for standing under your rules are, one, is the interest, is “His or her interest is clearly distinguishable from that of the general public.” And one of the things you look to in that is, is there something that localizes this person’s interest and makes it different. And owning property and residing at the exact location where the road that’s going to be developed under this SMA permit connects to Ali‘i Drive and connects to the coastline is different; that interest is different in quality from the interest of the general public. The Clapps are residents of the coastline; they care deeply about the quality of the coastal environment. It is part of their daily lives when they are living there. And they are concerned that the additional impacts of creating a new highway, which delivers people to the coastline right there and right at their property may have adverse impacts on them, and that, that their interest is different from the general public interest because this road conveys people right to their property. Another criteria, the one that Mr. Kanaka‘ole said it was untrue, is do you have some property interest in the land involved in the subject request. And that’s a difficult issue because if you look at the designs for the intersection, they appear to be considerably wider – this is the Ali‘i Drive- La‘aloa intersection, the proposed changes – they appear to be considerably wider than the current Ali‘i Drive, suggesting that they will have to condemn portions of his property in order to widen that intersection because they are proposing storage lanes and turning lanes on either side. So even if that’s not immediately part of this application, it is something that is enabled by this application and remains unclear. There were condemnations of land or acquisitions of land for the upper part, we anticipate there may be for the lower part. That’s an issue we’ve talked about, or tried to talk about with the Department. Nobody has mentioned (b)4, and that’s not even on the form, and it says, “even though they do not have an interest different than the public generally, that the proposed action will cause them actual or threatened injury in fact.” And in this situation where the project delivers people right to their property on the coastline, that may be injury in fact; in other words, even if the roadway ends further, it’s a new road. As everybody said, it’s going to convey people from mauka to the beach into the special management area and right exactly at their property. And so there is clearly a threatened injury in fact to their use and enjoyment of the property and to their use and enjoyment of the coastal zone. And so it’s, you know, it’s also, you know, the next section talks about appeal from denials of standing. And as I hoped I conveyed to the Planning Department yesterday, we are very, I mean, excuse me, the Department of Public Works yesterday, we are very willing to agree to a condition, which said that they would consider these issues if and when they move to develop the other part. But if they won’t do that, then my client is committed to go litigation, and I’m not trying to, I’m just trying to relay to you what I said to them. 20 EXHIBIT B