HomeMy WebLinkAboutMemorandum Opinion (COR-20-131278)NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-16-0000813
31-JAN-2020
08:56 AM
rte,
f'J
NOS. CAAP-17-0000050,
CAAP-16-0000813, AND CAAP-16-0000879 (CONSOLIDATED)
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAII
CRAP-17-0000050 r
CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL, c.
Applicant/Appellant/Appellant,
and t
COMMUNITY BASED EDUCATION SUPPORT SERVICES,
Applicant/Appellant/Appellee,
v.
WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII,
Appellee/Appellee
DEPARTMENT OF PLANNING, COUNTY OF HAWAII,
Respondent/Appellee/Appellee,
and
SANDRA SONG, JEFFREY GOMES, SIDNEY FUKE, TERENCE YOSHIOKA,
Intervenors/Appellees/Appellees
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
CIVIL NO. 14-1-223)
AND
GAAP-16-0000813
CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL,
Applicant/Appellant/Appellee,
and
COMMUNITY BASED EDUCATION SUPPORT SERVICES,
Applicant/Appellant/Appellant,
v.
WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII,
Appellee/Appellee
DEPARTMENT OF PLANNING, COUNTY OF HAWAII,
Respondent/Appellee/Appellee,
and
SANDRA SONG, JEFFREY GOMES, SIDNEY FUKE, TERENCE YOSHIOKA,
Intervenors/Appellees/Appellees
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
CIVIL NO. 14-1-223)
AND
131278
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS ANI)PACIFIC REPORTER
CAAP-16-0000879
CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL,
Applicant/Appellant/Appellant,
and
COMMUNITY BASED EDUCATION SUPPORT SERVICES,
Applicant/Appellant/Appellee,
v.
WINDWARD PLANNING COMMISSION, COUNTY OF HAWAII,
Appellee/Appellee
DEPARTMENT OF PLANNING, COUNTY OF HAWAII,
Respondent/Appellee/Appellee,
and
SANDRA SONG, JEFFREY GOMES, SIDNEY FUKE, TERENCE YOSHIOKA,
Intervenors/Appellees/Appellees
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
CIVIL NO. 14-1-223)
MEMORANDUM OPINION
By: Fujise, Presiding Judge, Leonard and Chan, JJ. )
In this consolidated appeal, Applicant-Appellant-
Appellant Community Based Education Support Services (CRESS) (in
CAAP-16-0000813) and Applicant-Appellant-Appellant Connections
New Century Public Charter School (Connections) (in CAAP-16-
0000879 and CAAP-17-0000050) (collectively, Appellants) appeal
from the July 14, 2015 Decision and Order Affirming Windward
Planning Commission [ (Planning Commission) ] , County of Hawaii ' s
Findings of Fact [ (FOFs) ] , Conclusions of Law [ (COLs) ] and
Decision and Order Denying Special Permit Application No. SPP 12-
138 (Order Affirming) , the October 2, 2016 First Amended
Judgment, and the January 13, 2017 Second Amended Final Judgment=
1
The parties initially appealed from a judgment entered on July 14,
2015. However, those appeals were dismissed by this court because that
judgment was not an appealable final judgment. See Community Based Educ.
Support Servs. v. Connections New Century Public Charter School, GAAP-15-
0000556, 2016 WL 2943201 (Haw. App. Apr. 19, 2016) (order) . The Circuit Court
subsequently entered a First Amended Judgment on October 26, 2016, and then
entered a Second Amended Judgment on January 13, 2017.
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Final Judgment) , all entered in the Circuit Court of the Third
Circuit (Circuit Court) .2
I. BACKGROUND
Connections is a public charter school that operates an
elementary and middle school in Hilo and a high school located
just outside of Hilo. CBESS is a domestic non-profit corporation
that supports and raises funds for Connections . Connections
wishes to consolidate its campuses and so it sought to develop a
new campus on 70 . 15 acres of land located within the State Land
Use Agricultural District, at Ponahawai, Kukuau 2nd, South Hilo,
Hawaii, commonly referred to as the "Kaumana" area of Hilo
Property) . Connections proposed to develop a charter school
campus with dorm facilities, a number of school buildings, and
other related improvements for students from kindergarten through
twelfth grade (the Development) .
In March of 2008, Connections obtained approval, in
principle, for a direct lease of the Property for school purposes
from the State Board of Land and Natural Resources (BLNR) . A
Direct Lease was issued by BLNR in January 2011 .
On or about July 25, 2012, Connections and CRESS, as
co-applicants, submitted their Special Permit Application No. SPP
12-138 (Special Permit Application) to the County of Hawai`i
Planning Department (Planning Department) . Public hearings on
the Special Permit Application were scheduled and notices were
provided to interested parties . The first public hearing was on
November 9, 2012, at which time representatives for Connections,
2 The Honorable Judge Melvin H. Fujino presided.
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its experts, and interested surrounding property owners provided
testimony and other evidence. At that time, no request was made
for a contested case hearing before the Planning Commission. It
appears that both the Planning Commission and Appellants believed
at this point that there was no option for a contested case
hearing because, as a result of the size of the Property, the
final decision to approve or deny the special permit would be
made by the State of Hawaii Land Use Commission (LUC) . The
Planning Commission and Connections agreed to delay the vote on
the Special Permit Application so that additional discussions
could be conducted regarding traffic and other concerns with the
proposal .
The second public hearing occurred on December 6, 2012.
The Planning Commission noted that several outstanding items had
been produced by Connections, including additional information
regarding its anticipated water use calculations. However,
Connections requested a continuance because the Attorney
General' s Office for the State of Hawai`i was taking over legal
representation for Connections . The decision on the Special
Permit Application was again delayed.
A third public hearing was conducted on January 10,
2013 . At that time, a motion was made to deny the Special Permit
Application, which was seconded. Because of various absences by
members of the Planning Commission, no final vote was held, and
the Planning Department and counsel for the Planning Commission
were instructed to prepare proposed findings of fact and legal
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conclusions denying the permit. Connections and CBESS would then
have a chance to respond to proposed findings and conclusions .
Thereafter, in a letter issued by the Planning
Department notifying the public that a fourth public hearing
would be conducted regarding the Special Permit Application, the
Planning Director informed the public that contrary to prior
understanding, interested parties could intervene and demand
contested case hearing procedures. As a result, the Planning
Commission suspended the preparation of proposed findings of fact
and conclusions of law.
At the fourth public hearing, held on March 7, 2013,
the motion to deny the Special Permit Application was withdrawn.
The Planning Commission received a petition to initiate a
contested case from Intervenor-Appellee-Appellee Jeffrey Gomes
Games) . Gomes was granted standing to intervene at the hearing,
and the Planning Commission voted to retain a hearing officer to
conduct the contested case hearing.
The Honorable Sandra Pechter Song (ret. ) was retained
to serve as the hearing officer (Hearing Officer) for the
contested case. Hearings were held over five days on October 21,
2013, October 22, 2013, November 12, 2013, January 8, 2014, and
January 22, 2014 . The Hearing Officer submitted a Hearing
Officer' s Report (Report) to the parties and the Planning
Commission on April 7, 2014 . The Report concluded that the
Special Permit Application should be denied. CBESS and
Connections submitted Joint Exceptions to Hearing Officers [sic]
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Report, Finding of Fact, Conclusions of Law and Recommendation.
The Planning Director also submitted exceptions to the Report .
The Planning Commission conducted its fifth public
hearing on May 1, 2014, and voted to uphold the Report and to
deny the Special Permit Application. On May 12, 2014 , the
Planning Commission issued its final FOFs, COLS and Decision and
Order (Decision and Order) .
Connections and CBESS appealed the Planning
Commission ' s Decision and Order to the Circuit Court. After
hearing arguments on the matter, the Circuit Court issued its
Order Affirming and, ultimately, the Final Judgment affirming the
Planning Commission' s denial of the Special Permit Application.
Connections and CBESS timely filed notices of appeal.
II . POINTS OF ERROR
CBESS frames its points of error as contending that the
Circuit Court and the Planning Commission clearly erred in
adopting the Planning Commission' s FOFs 9, 14 , 18, 21, 36, 46-55,
and 5.9, erred in adopting the Planning Commission ' s COLs 4 and 5,
and clearly erred in adopting the mixed factual findings and
legal conclusions stated in FOFs 62 and 63. These findings and
conclusions primarily pertain to traffic, water supply, the focus
on the immediate vicinity, as opposed to the larger community,
suitability for agricultural use, and compatibility with the
General Plan. CBESS also argues that the procedures followed by
the Planning Commission denied it due process.
Connections raises eight points of error, contending
that : (1) the Circuit Court erred when it based its decision on
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a presumption as to the validity of the Planning; Commission' s
decision and the Appellants ' "heavy burden" of demonstrating that
the decision was invalid because it was unjust and unreasonable
in its consequences; (2) the Planning Commission erred in its
application of Planning Commission Rule 6-3 (b) (5) (A) -- (G) to the
Special Permit Application and the Circuit Court erred in
affirming the Planning Commission' s application of the rule; (3)
the Circuit Court erred in affirming the Planning Commission' s
determination regarding building setbacks and roadway
improvements; (4 ) the Circuit Court erred in affirming the
Planning Commission' s determination regarding the burden on the
County' s water supply; (5) the Circuit Court erred in affirming
the Planning Commission' s determination regarding the needs of
the immediate community and the location of the school; (6) the
Circuit Court erred in affirming the Planning Commission' s
determination regarding suitability for agricultural use; (7) the
Circuit Court erred in affirming the Planning Commission ' s
determination regarding consistency with the General Plan; and
8 ) the Circuit Court erred in affirming the Planning
Commission' s determination that, inter alfa, Appellants had not
demonstrated "how the development of a regional charter school on
the Property that does not specifically service the needs of the
immediate community and that is overwhelmingly objected to by the
immediate community is a reasonable site for this facility. "
III . APPLICABLE STANDARD OF REVIEW
On this secondary appeal, this court applies the
following standards:
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The standard of review is one in which the appellate court
must determine whether the circuit court was right or wrong
in its decision, applying the standards set forth in (Hawaii
Revised Statutes (HRS) ) § 91-14 (g) (1993) to the agency's
decision.
HRS § 91-14, entitled "Judicial review of contested
cases, " provides in relevant part:
g) Upon review of the record the court may
affirm the decision of the agency or remand the case
with instructions for further proceedings; or it may
reverse or modify the decision and order if the
substantial rights of the petitioners may have been
prejudiced because the administrative findings,
conclusions, decisions, or orders are:
1) In violation of constitutional or
statutory provisions; or
2) In excess of the statutory authority or
jurisdiction of the agency; or
3) Made upon unlawful procedure; or
4) Affected by other error of law; or
5) Clearly erroneous in view of the reliable,
probative, and substantial evidence on the
whole record; or
6) Arbitrary, or capricious, or characterized
by abuse of discretion or clearly
unwarranted exercise of discretion.
Under HRS § 91-14 (g) , conclusions of law are
reviewable under subsections (1) , (2) , and (4) ; questions
regarding procedural defects under subsection (3) ; findings
of fact under subsection (5) ; and an agency's exercise of
discretion under subsection (6) .
Kolio v. Haw. Pub. Hous. Auth. , 135 Hawai`i 267, 270-71, 349 P. 3d
374 , 377-78 (2015) (citations and brackets omitted) .
When determining whether an agency abused its
discretion pursuant to HRS § 91-14 (g) (6) , the court must
first determine whether the agency determination under
review was the type of agency action within the boundaries
of the agency's delegated authority. If the determination
was within the agency's realm of discretion, then the court
must analyze whether the agency abused that discretion. If
the determination was not within the agency's discretion,
then it is not entitled to the deferential abuse of
discretion standard of review.
In regards to the abuse of discretion standard of
review, this court has held that agency determinations, even
if made within the agency's sphere of expertise, are not
presumptively valid; however, an agency's discretionary
determinations are entitled to deference, and an appellant
has a high burden to surmount that deference. This court
has further described an agency's proper exercise of
discretion as not arbitrarily or willfully, but with regard
to what is right and equitable under the circumstances and
the law, and directed by the reason and conscience of the .
judge to a just result. Therefore, a hearings officer
abuses his or her discretion when he or she clearly exceeds
bounds of reason or disregards rules or principles of law or
practice to the substantial detriment of a party.
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Id. at 271, 349 P. 3d at 378 (citations, quotation marks, and
brackets omitted) .
IV. DISCUSSION
A. Due Process
CBESS argues that its due process rights were violated
through the procedures utilized by the Planning Commission.
Following the submission of the Special Permit
Application, three public hearings were initially conducted by
the Planning Commission. During these hearings, the Planning
Commission heard the testimony of numerous witnesses, including
experts testifying on behalf of Appellants, in addition to
evidence from other interested parties. A motion to deny the
Special Permit Application was made and seconded at the third
hearing, but no vote occurred due to a lack of a quorum and so
that findings of fact and conclusions of law could be drawn up
for review by all members of the Planning Commission before a
final vote. After the third public hearing, the Planning
Commission apparently learned that a mistake had been made and
that Appellants, or other parties with standing, had the right to
demand a contested case hearing. A letter was issued to
interested parties relaying this information. At the fourth
public hearing, a request was made by Gomes to initiate a
contested case. The motion to deny the Special Permit
Application was withdrawn, and the matter continued to a
contested case with the appointment of the Hearing Officer, with
the testimony of numerous witnesses and the consideration of
additional evidence from all parties. After receiving the Report
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of the Hearing Officer and Appellants ' responses thereto, the
Planning Commission voted to deny the Special Permit Application.
CBESS argues that this procedure violated its due
process rights in that the Planning Commission' s decision "had
already been predetermined" and the Planning Commission' s
process was meaningless. " CBESS further argues that the
procedures that the Hawai'i Supreme Court found violated due
process in Mauna Kea Anaina Hou provide guidance in this case.
See Mauna Kea Anaina Hou v. Bd. of Land & Nat. Res . , 136 Hawai'i
376, 363 P. 3d 224 (2015) . In Mauna Kea Anaina Hou, BLNR voted at
the same public meeting to both approve an application and permit
and to hold a contested case hearing. Id. at 383-84, 363 P. 3d at
231-32 . On appeal, the supreme court held that BLNR' s decision
to approve a permit prior to a contested case hearing violated
appellants ' due process rights . Id. at 388-91, 363 P. 3d at 236-
39. The Supreme Court further held that the approval of both the
permit and contested case procedures at the same time denied the
appellants a meaningful opportunity to be heard in both reality
and appearance. Id. at 391, 363 P. 3d at 239.
In the present case, however, no vote to deny or
approve the Special Permit Application was conducted before the
contested case hearing. Instead, a motion to deny the Special
Permit Application was made and seconded, but the vote on the
permit was then delayed. A final vote on that motion was never
taken; rather the motion was withdrawn, and a contested case was
scheduled. The Planning Commission' s action on the Special
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Permit Application was after the completion of contested case
proceedings .
We note that in a subsequent case, Kilakila '0
Haleakala v. Bd. of Land & Nat. Res. , 138 Hawaii 383, 382 P. 3d
195 (2016) , at the first public hearing regarding the permitting
of a Maui telescope, Kilakila requested a contested case hearing.
Id. at 397, 382 P. 3d at 209. Without granting the request for a
contested case hearing, BLNR approved the first permit for
construction of the telescope, and Kilakila successfully appealed
that decision. Id. The first permit was subsequently made void
by stipulation. Id. at 397-98, 382 P. 3d at 209-10 . However,
while the appeal of the first permit was pending, BLNR granted
Kilakila ' s request for a contested case hearing and after that
proceeding concluded, BLNR issued an order approving a second
permit for the construction of the telescope. Id. at 398, 382
P. 3d at 210 . One of Kilakila ' s claims on appeal regarding the
issuance of the second permit was that BLNR had violated its due
process rights because BLNR had voted on the first permit for
construction prior to the contested case hearing; essentially, .
Kilakila argued that BLNR had prejudged the granting of the
second permit before the contested case proceedings. Id. The
supreme court rejected that argument and concluded that, since
the first permit was voided, "appellants ' due process rights were
adequately protected by the contested case hearing and subsequent
vote by BLNR. " Id.
In this case, even though the case proceeded initially
without a contested case hearing being held, no vote was taken by
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the Planning Commission on the Special Permit Application before
the contested case proceedings were completed and the Planning
Commission was provided the report therefrom. The motion to deny
cannot be considered a vote on the Special Permit Application.
Moreover, the subsequent withdrawal of that motion was followed
by full contested case procedures and then a vote. As in
Kilakila '0 Haleakala, we conclude that CBESS' s due process
rights were adequately protected by the contested case hearing
and the subsequent vote by the Planning Commission.
Thus, we reject CBESS' s claim that the procedures
utilized by the Planning Commission violated its due process
rights .
B. The Circuit Court ' s Standard of Review
Connections argues that the Circuit Court used the
wrong standard of review in affirming the Planning Commission' s
Decision and Order and that this constitutes reversible error
requiring a remand to the Circuit Court . In affirming the
Planning Commission' s Decision and Order, the Circuit Court
stated:
The Court's review of the Commission's Decision and D&O is
qualified by the principle that an agency's decision carries
a presumption of validity and applicants have the heavy
burden of making a convincing showing that the decision is
invalid because it is unjust and unreasonable in its
consequences.
Connections is correct that the standard set forth
above is not applicable here. The supreme court has instructed
that : (1) the "unjust and unreasonable" language quoted above
only applies to review of decisions in the Public Utilities
Commission ratemaking context; and (2) an agency' s decision does
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not have a presumption of validity; rather, the agency' s
discretionary determinations are entitled only to deference. See
Paul ' s Elec. Serv. , Inc. v. Befitel, 104 Hawaii 412, 418-19, 91
P. 3d 494, 500-01 (2004) . Agency decisions are generally
considered under the abuse of discretion standard applicable to
all discretionary decisions of lower tribunals : " [G] enerally, to
constitute an abuse it must appear that the [agency] clearly
exceeded the bounds of reason or disregarded rules or principles
of law or practice to the substantial detriment of a party
litigant. " Id. at 419, 91 P. 3d at 501 (internal quotation marks
and citation omitted) .
However, the Circuit Court correctly articulated the
standards of review with respect to the Planning Commission' s
factual findings, the clearly erroneous standard, and its
conclusions of law, de novo review. See Diamond v. Dobbin, 132
Hawai`i 9, 24, 319 P. 3d 1017, 1032 (2014) . Notwithstanding the
Circuit Court ' s error in its standard of review, based upon our
own standard of review, this court can proceed to "review the
court ' s findings of fact under the ' clearly erroneous ' standard
and its conclusions of law under the de novo standard, without
any particularized presumption of validity or need to consider
whether the agency' s decision was 'unjust and unreasonable. '"
Id. Therefore, the Circuit Court ' s error is harmless .
C. The Special Permit Requirement
Appellants were required to obtain a special permit for
the Development because the Property is located in a state
agricultural district and a school is not a permitted use under
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HRS § 205-4 . 5 (2013 Supp. ) , which lists permissible uses within
state agricultural districts. HRS § 205-6 (2017) delegates
authority to the county planning commissions to adopt procedures
governing the issuance of special permits and states, in relevant
part:
a) Subject to this section, 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.
c) The county planning commission may, under such
protective restrictions as may be deemed necessary, permit
the desired use, but only when the use would promote the
effectiveness and objectives of this chapter.
d) Special permits for land the area of which is
greater than fifteen acres or for lands designated as
important agricultural lands shall be subject to approval bythelandusecommission. The land use commission may impose
additional restrictions as may be necessary or appropriate
in granting the approval, including the adherence to
representations made by the applicant.
Emphasis added. )
Therefore, in considering whether to approve a special
permit, the Planning Commission must find that (1) the special
permit is for an "unusual and reasonable use" within the
agricultural district and (2) the permit would "promote the
effectiveness and objectives of [HRS Chapter 205] . " Id. As this
court has previously recognized, " [t]he Hawai`i Supreme Court has
ruled that the 'overarching purpose' of HRS Chapter 205 is to
protect and conserve natural resources and foster intelligent,
effective, and orderly land allocation and development. '" Kauai
Springs, Inc. v. Planning Comm'n of Cty. of Kauai, 130 Hawaii
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407, 426, 312 P. 3d 283, 302 (App. 2013) (Kauai Springs I)
quoting Curtis v. Bd. of Appeals, Cty. of Hawaii, 90 Hawaii
384, 396, 978 P. 2d 822, 834 (1999) ) .
The Hawai`i Supreme Court has explained the rationale
for the special permit as follows:
The special use or exception evolved as a land use
control device from a recognition of the hardship frequently
visited upon landowners due to the inherent rigidity of theEuclideanzoningsystem, and of the inapplicability of
variance or boundary amendment procedures to all land use
problems. [3 A. Rathkopf, The Law of Zoning and Planning, §41.03 at 41-8 to 41-10 (4th ed. 1981 & Supp. 1981) ]; 3 R.
Anderson, American Law of Zoning § 19.01 at 358-59 (2d ed.
1977) . Unlike a district boundary amendment, which is
analogous to a rezoning in its effect of reclassifying land,
and unlike a variance, which permits a landowner to use his
property in a manner forbidden by ordinance or statute, a
special permit allows the owner to put his land to a use
expressly permitted by ordinance or statute on proof that
certain facts and conditions exist, without altering the
underlying zoning classification. Its essential purpose, as
explained by the state Attorney General, is to provide
landowners relief in exceptional situations where the use
desired would not change the essential character of the
district nor be inconsistent therewith. 1963 Op. Att'y Gen.63-37. "By the use of the special use permits, the broad
division of uses in terms of residential, commercial, and
industrial, and subdivisions of each, can be supplemented by
requiring a use which falls conveniently within a class
assigned to a particular district, but which has singular
characteristics which may be incompatible with some uses of
such class, to submit the [use to] administrative scrutiny,to meet certain standards, and to comply with conditions."
3 R. Anderson, supra § 19.01 at 359.
Neighborhood Bd. No. 24 (Waianae Coast) v. State Land Use Comm' n,
64 Haw. 265, 270-71, 639 P. 2d 1097, 1101-02 (1982) .3'
Guidelines have been adopted, pursuant to HRS chapter
205, that require the Planning Commission to consider the
following criteria in determining whether a proposed use within
an agricultural district is an "unusual and reasonable use":
3 Although HRS § 205-6 has been amended since the Waianae Coast casewaspublished, it does not appear that the changes affect the rationale for
the special permitting process, as stated by the supreme court in that case.See, e.q., Curtis, 90 Hawai`i at 397, 978 P.2d at 835 (discussing 1998 versionofHRS § 205-6) ; Conf. Comm. Rep. No. 131, in 1998 Senate Journal, at 801
same) ; Conf. Comm. Rep. No. 175, in 2005 Senate Journal, at 1080 (discussing2005amendments) .
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1) The use shall not be contrary to the objectives
sought to be accomplished by chapters 205 and
205A, HRS, and the rules of the commission;2) The desired use would not adversely affect
surrounding property;
3) The use would not unreasonably burden public
agencies to provide roads and streets, sewers,
water drainage and school improvements, and
police and fire protection;
4) Unusual conditions, trends, and needs have
arisen since the district boundaries and rules
were established; and
5) The land upon which the proposed use is sought
is unsuited for the uses permitted within the
district.
Hawai`i Administrative Rules (HAR) § 15-15-95 (b) (eff. 2000) .4
These guidelines have been incorporated into the County
of Hawaii Planning Commission Rules of Practice and Procedure
Rule (Planning Commission Rule) 6-3 (b) (5) (A) - (E) (2016) ,5 which
HAR § 15-15-95 has since been amended. At the time the SpecialPermitApplicationwasfiled, HAR § 15-15-95 stated, in relevant part:
15-15-95 Petition before county planning commission.
a) Any person who desires to use land within an
agricultural or rural district for other than a permissible
agricultural or rural use may petition the county planning
commission within which the land is located for a special
permit to use the land in the manner desired. Special
permits for areas greater than fifteen acres require
approval of both the county planning commission and the
commission. . . .
b) Certain "unusual and reasonable" uses within
agricultural and rural districts other than those for whichthedistrictisclassifiedmaybepermitted. The followingguidelinesareestablishedindeterminingan "unusual and
reasonable use":
1) The use shall not be contrary to the objectives
sought to be accomplished by chapters 205 and
205A, HRS, and the rules of the commission;
2) The desired use would not adversely affect
surrounding property;
3) The use would not unreasonably burden public
agencies to provide roads and streets, sewers,
water drainage and school improvements, and
police and fire protection;
4) Unusual conditions, trends, and needs have
arisen since the district boundaries and rules
were established; and
5) The land upon which the proposed use is sought
is unsuited for the uses permitted within the
district.
Planning Commission Rule 6-3 states, in relevant part:
continued. . . )
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set forth the criteria that must be considered by the Planning
Commission when an application for a special permit is sought :
A) Such use shall not be contrary to the objectives
sought to be accomplished by the Land Use Law and
Regulations;
B) The desired use shall not adversely affect surrounding
properties;
C) Such use shall not unreasonably burden public agencies
to provide roads and streets, sewers, water, drainage,
school improvements, and police and fire protection;
D) Unusual conditions, trends, and needs have arisen
since the district boundaries and regulations were
established;
E) The land upon which the proposed use is sought is
unsuited for the uses permitted within the district[.]
5(. . .
continued)
6-3 Petition and Content
A petition for a Special Permit shall be filed with
the Commission's office and shall include the
following:
b) Original and twenty copies of:
5) A statement of the reasons for the
granting of the Special Permit citing how
the proposed use would promote the
effectiveness and objectives of chapter
205, HRS, and why the proposal is an
unusual and reasonable use of the land.
The following criteria shall also be
addressed:
A) Such use shall not be contrary to
the objectives sought to be
accomplished by the Land Use Law and
Regulations;
B) The desired use shall not adversely
affect surrounding properties;
C) Such use shall not unreasonably
burden public agencies to provide
roads and streets, sewers, water,
drainage, school improvements, and
police and fire protection;
D) Unusual conditions, trends, and
needs have arisen since the district
boundaries and regulations were
established;
E) The land upon which the proposed use
is sought is unsuited for the uses
permitted within the district;
F) The proposed use will not
substantially alter or change the
essential character of the land and
the present use; and
G) The request will not be contrary to
the General Plan, and official
Community Development Plan and other
documents such as Design Plans.
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Planning Commission Rule 6-3 (b) (5) (A) - (E) ; see also Planning
Commission Rule 6-7 (grounds for special permit) . Two additional
criteria have been adopted in the Planning Commission's rules
regarding the Planning Commission' s consideration of a special
permit. They are as follows:
F) The proposed use will not substantially alter or
change the essential character of the land and the
present use; and
G) The request will not be contrary to the General Plan
and official Community Development Plan and other
documents such as Design Plans.
Planning Commission Rule 6-3 (b) (5) (F) - (G) ; see also Planning
Commission Rule 6-7 (grounds for special permit) .
We consider Appellants ' many challenges to the Planning
Commission' s FOFs and COLs in the context of the Planning
Commission' s rules .
1 . Affect on Surrounding Properties
Planning Commission Rule 6-3 (b) (5) (B) provides that the
desired use shall not adversely affect surrounding properties. "
CBESS challenges FOF 18, which states:
18. Notwithstanding the findings of the [Traffic
Impact Analysis Report (TZAR) ] and the recommendations of
the Police Department and Department of Public Works, the
area residents uniformly expressed concerns about the
adverse traffic impact of the Development along Edita Street
and Kaumane. Drive. Also, residents objected that the TIAR '
was four years old and the traffic counts contained in the
TIAR were taken when certain schools were not in session.
CBESS and Connections both challenge FOFs 46 and 47,
which state:
46. Based upon the testimony from surrounding and
neighboring property owners, the Development will have an
adverse effect on surrounding properties by creating noise,
traffic, and impacting the quality of life of the adjoining
residents.
47. Measures proposed by Connections, regarding the
establishment of building setbacks and roadway improvements
to Edita Street do not appear to be sufficient to mitigate
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the overwhelming concerns raised by surrounding property
owners.
Appellants do not contest FOF 17, which states:
17. A [TIAR] dated June 28, 2010, was prepared in
conjunction with the Connections application for the purpose
of evaluating the Development's impact at the Development's
entrance at Edita Street and at the Edita and Kaumana Drive
intersection. Based upon traffic counts taken on May 28,
2009, the TIAR found that the current level of service or
LOS [ (LOS)] operates as LOS "A" or "B", meaning that the
traffic service is uncongested. The TIAR also concluded
that upon full build-out of the Development, the LOS will
continue to operate at levels "A" or "B". Although the TIAR
concludes that traffic will not be adversely affected by
reason of the Development, the County Department of Public
Works recommended that a separate left turn lane onto the
Development from Edita Street should be constructed to
alleviate congestion, and that Connections should prepare a
comprehensive traffic management plan for the Development.
On appeal, Appellants argue that the Planning
Commission clearly erred in determining that there would be an
adverse effect on the surrounding properties. The Planning
Commission submits that there is substantial evidence that the
Development would create and exacerbate "traffic concerns -
quantity, quality, and safety. " Gomes points to the Planning
Commission's arguments.
Appellants presented expert testimony from, and the
TIAR prepared by, Phillip J. Rowell (Rowell) , a Civil Engineer
with decades of experience in transportation and traffic
engineering across the State of Hawai`i, as well as earlier
traffic and transportation engineering experience in numerous
mainland states, Malaysia, and Hong Kong. 6
Rowell testified regarding the industry standards that
must be used in preparing a TIAR, including that the TIAR
6 Appellants also presented, inter ails, expert testimony from Ron
Thiel, the Chief of the Traffic Division for the County of Hawai'i, also a
Civil Engineer, who has been practicing traffic engineering with decades of
traffic engineering experience.
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prepared by him in this case complied with those standards and
that the testimony and informational reports submitted by
community members and Development opponents did not follow any of
the standard procedures and criteria guidelines. Rowell
testified that, based on his study, as reflected in the TIAR, all
traffic control movements at the intersection of Edita Street and
KaQmana. D.rive would operate well above the minimum acceptable
standard for an urban area, which he considered to be "pretty
good operating conditions" upon completion of the project .
Rowell nevertheless made a number of recommendations, including
new surveys and traffic counts at the completion of the final
phase of the project to confirm assumptions and to determine if
additional mitigation would be required. He also recommended a
left-turn pocket" into the Property to minimize any impact to
the community, even though the LOS was already at A, the highest
level, or B.
Rowell acknowledged that, by the time of the contested
case hearing, the TIAR was four years old and, if the Development
moved forward to LUC, in his experience, the LUC would require an
updated study. He agreed with the statement that the TIAR should
be updated at some point and said he recommended that . On cross-
examination, Rowell stated that the timing of the traffic counts
was scheduled to get the counts before the public schools took
summer break. He acknowledged that the Kamehameha Schools
Hawai`i campus term ended a week earlier, but opined that that
campus would impact traffic on Kaumana Drive very slightly. He
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also acknowledged that any new development projects in the area
proposed after 2010, or 2009 when he did his data collection,
would not be reflected in the TIAR. Rowell did not talk to area
residents about traffic and road conditions. Rowell testified
that none of the projects or potential projects identified on
cross-examination would cause him to change the conclusion of the
study, even though it might change the data.
Notwithstanding Rowell ' s testimony and the TIAR Report,
as well as the other testimony and evidence presented by
Appellants concerning traffic impact and management, numerous
community members submitted written and oral testimony that
support the challenged findings regarding adverse traffic
impacts. This testimony did not simply state generalized
concerns about traffic and was based on years, and in some cases
decades, of experiences of living on Edita Street, Kaumana Drive,
and other streets in close proximity to the Property. Testimony
included descriptions of current traffic and road conditions as
already being problematic in various ways, including sharp turns,
frequent speeding, a high accident rate, and a steep approach on
Kaumana Drive above Edita Street. Kaumana Drive was described as
a winding, narrow road with short sight distances and no
shoulders in most areas . Testimony was given that Kaumana Drive
was already a very dangerous, narrow, two-lane road, by a witness
who reported having seen numerous accidents in the area . The
road and traffic conditions were said to already get worse when
it rains . Another witness testified that, going back down into
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Hilo town from that area, there was already backup and delays at
the nearby Ainakoa and Kaumana intersection. It was reported
that the area already has high traffic in the morning. Testimony
was given that there was a long history of traffic accidents at
Kaumana Drive and Edita, Street and on the road just mauka of this
intersection, which "cannot handle" additional traffic. This
area of Kaumana Drive was described as already being a "traffic
hazard. " It was pointed out that it rains a lot in Hilo. Some
area residents expressed concerns based on recent residential
developments and related increases in traffic that have occurred
since the TIAR was completed. Notwithstanding the proposed
traffic mitigation including, but not limited to, encouraging
carpooling, construction of a turn pocket, and campus design to
facilitate traffic flow at drop off and pick up times for cars
and busses, there was evidence that the Development would
eventually accommodate hundreds of students, plus dozens of
faculty members, and support staff.
We reject Appellants ' contention that expert testimony
in opposition to the Development was required for the Planning
Commission to find that Connections failed to meet its burden to
show that increased traffic from the Development would not have
an adverse impact on the surrounding properties. As noted above,
it was Connections ' s burden to show no adverse effect; the
Planning Commission was not persuaded by the TIAR and the related
testimony submitted by Connections. See 2 Am. Law. Zoning §
14 : 14 , Traffic and congestion criteria (5th ed. ) , Westlaw
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database updated November 2019) ("Special use permits can also
be denied if the applicant fails to submit information required
for the board to accurately assess traffic impacts . " ) . In
addition to testimony from community members, the record includes
a report from the County police department to the Planning
Commission, which concluded that the impact of the Development
would likely include increased noise and traffic in the area and
that without the addition of sidewalks, the Development would
make Edita Street unsafe for pedestrian traffic.
On the record in this case, we cannot conclude that the
Planning Commission clearly erred in adopting FOFs 18, 46, and
47, and concluding that, even with the proposed traffic
mitigation efforts, traffic stemming from the Development would
have an adverse effect on surrounding properties .
2 . Burden on Public Utilities
Planning Commission Rule 6-3 (b) (5) (C) provides that the
proposed use "shall not unreasonably burden public agencies to
provide roads and streets, sewers, water, drainage, school
improvements, and police and fire protection. " CBESS challenges
the following FOFs with regard to the Development' s proposed
water usage:
21. The available water from the County of Hawaii
municipal water system is insufficient to support the
first phase of the Development.
48. There is insufficient water available from the County
system to service the Development. Therefore, to
allow the Development would unreasonably burden the
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Department of Water Supply to provide water for its
facilities.
49. There is no evidence that Connections has the ability
to develop a potable water source as a mitigating
measure, previously proposed by the Director.
50. A mitigating measure previously proposed by the
Director of limiting the number of students to the
amount of potable water available to the project is
not reasonable because Connections is proposing to
construct a high school for 107 students [in] its
first phase, when the potable water available would
only allow for 70 students.
Both Connections and CBESS challenge FOF 51, which
states:
51. As such, the proposed use may unreasonably burden the
County Department of Water Supply to provide water to
the Development.
Appellants acknowledge that the maximum potable water
allocation by the Department of Water Supply (DWS) for the
Development was 4,200 gallons per day (gpd) , which is
significantly less than the estimated water needs of the
Development, upon completion of all phases of the Development, as
proposed in the Special Permit Application. Connections ' s
expert, who created a report for the Development ' s estimated
water usage, calculated that the water requirements for the
Development ' s final phase of construction would require between
6, 858 and 10, 828 gpd. Additional estimates were created for the
Development at different phases of its construction, and the
expert concluded that the 4, 200 gpd limit of potable water would
be exceeded in Phase 7 (of 9) when the elementary school and
cafeteria would be constructed and an additional source of
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potable water would be needed.' based on the development plan,
this would not occur until between ten and sixteen years into
construction.
Connections suggested that an additional condition of
approval be added to the Planning Department Director' s (Planning
Director' s) favorable recommendation on the Special Permit
Application that would essentially limit the number of persons at
the Development to the potable water that could be obtained
through a combination of the water available from DWS combined
with whatever other sources could be developed by Connections .
The Planning Director testified that final water use figures are
not usually required at the special permit application stage and
would normally be addressed through conditions attached to the
special permit approval.
It is unclear how the Planning Commission reached its
conclusion that the 4, 200 gpd water usage allowance from DWS
could only support 70 students . The Planning Commission states
it is using a 60 gpd per student standard, but the Planning
Commission and the parties have failed to identify where that
figure came from. There was no finding that the report submitted
by Connections' s expert showing significantly less water usage
The Special Permit Application stated that, at the time of the
application, a "definitive solution" was not evident, but that potential
additional sources of potable water might be a rain catchment system, a
potable water well, or possibly a future joint-developer agreement wherebyConnectionsmightbeabletogainadditional "water credits. " Connections
submitted that, since there was a one to two decade period before the DWS
allotment would be reached, there was ample time to identify and assessfeasibilityofothersourcesandsecurethenecessarypermits. Otherwise,
campus development would not proceed beyond what could be sustained by the4,200 gpd allotment.
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was not credible. There is simply nothing in the Planning
Commission' s Decision and Order or the briefing before this court
that explains or supports that calculation. It is contrary to
the only evidence provided in the contested case hearing. The
failure by the Planning Commission to explain its reasoning
prevents this court from providing meaningful review. See Kauai
Springs, Inc. v. Planning Comm'n of Ctv. of Kauai, 133 Hawaii
141, 164 , 324 P. 3d 951, 974 (2014) (Kauai Springs II) (an
agency' s findings should allow the reviewing court to track the
steps by which the agency reached its decision) .
The evidence in the record showed (1) the Development
was to be constructed in phases and the first six phases could be
supported by the potable water made available by DWS, (2) there
were proposals made by Connections to secure additional potable
water without burdening DWS, and (3) Connections agreed to limit
the number of persons at the Development to the potable water
limit made available by DWS in addition to whatever other sources
it could itself secure. There is nothing in the record to
suggest that Connections would not or could not be held to its
commitments. FOFs 21, 48, and 50 are clearly erroneous and not
supported by the evidence. FOF 49 is not clearly erroneous, as
there was no definitive evidence in the record that Connections
would be able to develop potable water sources. However, the
Planning Commission may reconsider any weight it assigned to this
finding in light of the Planning Director' s testimony regarding
the burden placed on applicants for special permits at this stage
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and Connection' s agreement to limit the number of persons on the
campus to the amount of water it can obtain.
e COL 51 is also
vacated in light of the above.
3. Unusual Conditions, Trends, and Needs
Planning Commission Rule 6-3 (b) (5) (D) provides that the
Planning Commission should consider whether " [u]nusual
conditions, trends, and needs have arisen since the district
boundaries and regulations were established. " CBESS challenges
FOF 14, which states:
14. The Development does not propose to establish a
charter school on the Property to serve the needs of
the immediate vicinity in the Kaumana area of Hilo,
although some students from the area may attend this
school.
Both CBESS and Connections challenge FOF 52, which
states :
52. Unusual conditions and needs have arisen since the
establishment of this land use district in the 1970s,
because the area in which the Property is located has
essentially become residential in character. Also,
the County General Plan LUPAG map recognizes this
trend by designating the area for low density urban
use. However, there was no evidence presented to
demonstrate that location of a school that is not
intended to specifically service the needs of the
immediate community is such an unusual condition,
trend or need that justifies location of the
Development at this location.
It does not appear that the underlying factual issues
are in dispute here. As reflected in part in FOF 14,
8 The Planning Commission's Answering Brief appears to treat the
traffic issues referred to previously when addressing adverse effects on the
surrounding community as an additional basis for finding that issuing the
Special Permit would be a burden on a public agency. No such finding was made
by the Hearing Officer or the Planning Commission. The only basis stated in
the Planning Commission's Decision and Order for finding a burden on a public
agency was with respect to the Development's proposed water usage. No party
argues that the Planning Commission erred in failing to find that the
Development's traffic impact would burden a public agency.
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Connections ' s student body was comprised of students primarily
from various areas of Hilo and Puna, not specifically the Kaumana
area of Hilo. Connections anticipated roughly a fifty percent
split of students from these more distal areas in the future,
with an evolving mix of students over time, in light of the
additional facilities locations and student population trends.
Nor do the facts underlying the first two sentences of FOF 52
appear to be in dispute. "Unusual conditions and needs" have
arisen since the land use district was established as an
agricultural use district in the 1970s, because the area is now
essentially residential in character. The residential nature of
the area is apparent from the testimony of the opponents of the
Development, as well as the trend in the County General Plan
LUPAG (Land Use Planning and Allocation Guide) map designating
the area for low density urban use, which is reflected in FOF 52 .
Appellants argue, however, that the Planning Commission
erred in relying on Planning Commission Rule 6-3 (b) (5) (D) as
grounds to deny a special permit because the Planning Commission
erroneously interpreted it to require proof that the unusual
conditions, trends, and/or needs addressed pertain specifically
to the immediate vicinity of the subject property. There is
nothing in Planning Commission Rule 6-3 (b) (5) (D) or the record to
support such a restrictive consideration of conditions, trends,
and/or needs . In addition, the last sentence of FOF 52 is
unclear to this court. It appears to state that this guideline
requires a school (or presumably any use) to establish it will
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service the needs of its immediate neighbors, in particular, to
justify" its specific location. This latter part of FOE 52 is
not grounded in Planning Commission Rule 6-3 (b) (5) (D) and
therefore denial of the special permit for this reason is
arbitrary, exceeds the bounds of reason, and constitutes an abuse
of discretion.
4 . Suitability of Land for Agricultural Uses
Planning Commission Rule 6-3 (b) (5) (E) provides that the
Planning Commission must consider whether " [t] he land upon which
the proposed use is sought is unsuited for the uses permitted
within the district . "
The Planning Commission found as follows:
53. The Land Study Bureau soil classification rating for
the Property is "D" or "Poor, " which suggests that the
land may be unsuited for agricultural uses.
54. Connections is proposing to maintain the upper portion
or nearly one-half of the Property for forestry use.
In addition, Connections is proposing to construct
greenhouses on the Property and conduct an
agricultural program in conjunction with its
curriculum.
55. Based upon the representations of Connections, it
cannot be found that the Property is unsuited for
agricultural uses.
CBESS and Connections challenge FOE' 55.
The foundational facts here are not in dispute.
Although located in an agricultural district, the soil
classification for the Property is rated "D" or "Poor. " As found
by the Planning Commission, this suggests that the Property may
be unsuited for agricultural uses . The Planning Director also
testified that the Property and its surrounding areas are not in
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fact used for agriculture, but have become residential in
character. Without further explanation, " [biased on the
representation of Connections, " the Planning Commission found and
concluded that the Property is suitable for agricultural uses.
However, the nature of the "representations" alluded to
by the Planning Commission is apparent from the record, indeed,
from the Special Permit Application itself. The application
states that the applicants ' request is to " [dievelop a K to 12
Charter School Campus with dorm facilities [, ] intergenerational
programs, a sustainable agriculture program and a
forestry/conservation program. " The petition attached to and
supporting the Special Permit Application includes as part of the
applicants ' objectives "implementation of a forestry/conservation •
program and a sustainable agricultural program. " The proposed
use includes "facilities for a forestry/conservation program
and] a sustainable agricultural program" with "green/shade
houses [and] a 6-horse barn" on the lower parcel of the Property
and roughly twenty acres of the upper parcel used for
reforestation projects and no major school facilities. The
agricultural and forestry/conservation programs were projected to
include about fourteen acres of the lower parcel for agricultural
and forestry uses, including for cultivated crops of fruits and
vegetables, native trees and plants, and ornamental plants,
including greenhouses, hydroponics, aquaponics, and some
livestock (chickens, sheep, goats, and horses) . Testimony from
Appellants' witnesses articulated this vision for the proposed
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charter school . In sum, Appellants planned to incorporate a
robust agricultural component into its use of the Property, while
recognizing that a charter school campus is not considered a
permitted use with a State Land Use Agricultural District .
The Planning Commission properly considered whether the
Property was unsuited for agricultural use because, pursuant to
both State regulations and County rules, that is one of the
issues that must be addressed by an applicant seeking a special
use permit. As the Planning Commission recognized, in
significant ways, the Property was in fact unsuited for
agricultural use and was not currently used for any of the uses
permitted in agricultural districts. No one opposing the permit
argued, or offered evidence, that the Property was suited for and
should be used for agricultural purposes in what is now a low-
density residential area. In a twist of irony, Appellants '
vision of a charter school that incorporated and promoted an
agriculturally-oriented learning experience for students - hence
tending to promote and preserve agriculture in this district and
the State, even on unsuited or poorly-suited land - was
apparently viewed by the Planning Commission as one of the
reasons to deny the Special Permit Application. We note,
however, that the Decision and Order is silent as to how the
Planning Commission weighed this conundrum. We conclude that it
would be an absurd result to read the "unsuited for agricultural
use" consideration so strictly and narrowly, particularly under
circumstances such as those presented here, to deny a special
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permit due to an applicant ' s attempt to incorporate an
agricultural component into its proposed use. See, e.o. , Morgan
v. Planning Dept, Cty. of Kauai, 104 Hawaii. 173, 181, 86 P. 3d
982, 990 (2004) (planning commission is required to give effect
to the policies and objectives of land use statutes and not to
interpret them in a manner that would lead to an absurd result) .
Accordingly, in view of the reliable, probative, and
substantial evidence on the whole record, and in light of the
aforementioned considerations, we conclude that FOF 55 must be
vacated in order for the Planning Commission to assess, the
evidence in this light.
5. The General Plan and other Plans
Planning Commission Rule 6-3 (b) (5) (G) provides that the
Planning Commission must consider whether " [t] he request will not
be contrary to the General Plan and official Community
Development Plan and other documents such as Design Plans. " Both
CBESS and Connections challenge FOFs 59 and 62, which state:
59. The Development, which proposes a charter school that
is not specifically intended to service the immediate
community surrounding the school, is not consistent
with the uses permitted in areas of low density urban
use.
62. Although the County General Plan Public Facilities-
Education course of action for South Hilo encourages
the establishment of additional schools as the need
arises, the proposed Development, at the subject
location, is contrary to the General Plan.
CBESS first argues that the Planning Commission does
not have the authority to "interpret" the General Plan and in
doing so exercised powers beyond its authority. Whether the
Planning Commission exceeded its statutory authority under HRS
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Chapter 205 is an issue of statutory interpretation reviewed de
novo by this court. See Malama Maha'ulepu v. Land Use Comm'n, 71
Haw. 332, 335-36, 790 P. 2d 906, 908 (1990) .
The Charter of the County of Hawai`i (CCH) provides
that the county council must adopt a general plan, which is to
set forth the council ' s long range policy for the comprehensive
physical, economic, environmental, and socio-cultural well being
of the county and "shall be designed to assure the coordinated
development of the county and to promote the general welfare and
prosperity of its people. " CCH § 3-15 (2012) .9 The charter
9 All references are to the 2012 CCH. CCH § 3-15 states:
Section 3-15. General Plan.
The county council shall adopt by ordinance a general
plan which shall set forth the council's policy for long-
range comprehensive physical development of the county. It
shall contain a statement of development objectives,
standards and principles with respect to the most desirable
use of land within the county for residential, recreational,
agricultural, commercial, industrial and other purposes
which shall be consistent with proper conservation of
natural resources and the preservation of our natural beauty
and historical sites; the most desirable density of
population in the several parts of the county; a system of
principal thoroughfares, highways, streets, and public
access to the shorelines, and other open spaces; the general
locations, relocations and improvement of public buildings,
the general location and extent of public utilities and
terminals, whether publicly or privately owned, for water,
sewers, light, power, transit, and other purposes; the
extent and location of public housing projects, adequate
drainage facilities and control; air pollution; and such
other matter as may, in the council's judgment, be
beneficial to the social, economic, and governmental
conditions and trends and shall be designed to assure the
coordinated development of the county and to promote the
general welfare and prosperity of its people.
a) The council shall enact zoning, subdivision, and
such other ordinances which shall contain the
necessary provisions to carry out the purpose of
the general plan.
b) No public improvement or project, or
subdivision or zoning ordinance, shall be
initiated or adopted unless the same
continued. . .)
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further provides that:
a) The council shall enact zoning, subdivision, and such
other ordinances which shall contain the necessary
provisions to carry out the purpose of the general
plan.
b) No public improvement or project, or subdivision or
zoning ordinance, shall be initiated or adopted unless
the same conforms to and implements the general plan.
c) Amendments to the general plan may be initiated
by the council or the planning director.
Id.
The Hawai`i County Charter also provides for the
creation of the "Planning Department, " which consists of the
Planning Director and the two planning commissions along with
necessary staff. See CCH § 6-7 . 1.1° The Planning Director is
appointed by the mayor and is the "chief planning officer" of the
county and the administrative head of the Planning Department.
See id. § 6-7 .2 (a) - (b) .11 The Planning Director' s duties are
9(. . .continued)
conforms to and implements the general
plan.
c) Amendments to the general plan may be initiated
by the council or the planning director.
10 CCH § 6-7.1 states:
Section 6-7.1. Organization.
There shall be a planning department consisting of a
planning director, a windward planning commission, a leeward
planning commission and the necessary staff.
11 CCH § 6-7.2 states, in 'relevant part:
Section 6-7.2. planning Director.
a) The planning director shall be appointed by the mayor,
confirmed by the council and may be removed by the
mayor[.]
b) The director shall be the chief planning officer of
the county and the administrative head of the
department and shall:
1) Advise the mayor, the windward planning
commission, the leeward planning
continued. . . )
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enumerated in the charter and provide, in. relevant part, that the
Planning Director shall:
1) Advise the mayor, the windward planning
commission, the leeward planning commission and
the council on all planning and land use
matters.
2) Prepare a general plan, implementation plans and
any amendments thereto in accordance with
Section 3-15.
7) Make recommendations on rezoning applications,
special exceptions and other similar requests.
11(. . .
continued)
commission and the council on all planning
and land use matters.
2) Prepare a general plan, implementation
plans and any amendments thereto in
accordance with Section 3-15.
3) Prepare proposed zoning and
subdivision ordinances, zoning maps
and regulations and any amendments
thereto.
4) Review the lists of proposed capital
improvements contemplated by agencies of
the county and recommend the order of
their priority.
5) Administer the subdivision and zoning
ordinances and regulations adopted
thereunder.
6) Render decisions on proposed subdivision
plans pursuant to law.
7) Make recommendations on rezoning
applications, special exceptions and
other similar requests.
8) Render decisions on proposed
variances pursuant to law, except
that, if any written objections are
made to the planning director's
actions under this section, said
actions shall be subject to review
by the board of appeals in
accordance with Section 6-9.2,
unless otherwise provided by law or
this.chapter.
9) Perform such other related duties
and functions as may be necessary or
required pursuant to law and this
charter.
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9) Perform such other related duties and functions
as may be necessary or required pursuant to law
and this charter.
Id. § 6-7 . 2 (b) .
As stated above, the Hawai`i County Charter also
creates two planning commissions with jurisdiction over their
respective areas of Hawaii County. See id. § 6-7 . 3 (Windward
Planning Commission) and 6-7. 4 (Leeward Planning Commission) .
The charter provides, in relevant part, that the commissions
shall:
1) Advise the mayor, council and the planning
director on planning and land use matters
pursuant to law and this charter.
2) Review the general plan, its amendments and
other plans and modifications thereof and
transmit such plans with recommendations thereon
through the mayor to the council for
consideration and action.
3) Review proposed subdivision and zoning
ordinances and amendments thereto and transmit
such ordinances with recommendations thereon
through the mayor to the council for
consideration and action.
4) Conduct public hearings in every case prior to
action on any matter upon which the commission
is required by law or this charter to act.
Notice of the time and place of the hearing
shall be published at least ten days prior to
such hearing in at least two daily newspapers of
general circulation in the county and shall also
be distributed via an electronic medium, such as
the Internet.
5) Perform such other related duties and functions
as may be necessary or required pursuant to law
and this charter.
Id. § 6-7 . 5 (a) (l) - (5) .
In addition, the Hawaii County Charter states that
e]ach planning commission shall review and take action upon
applications for land use changes and community development plans
involving only property within their respective jurisdictions,
other than those involving the general plan[ . ] " Id. § 6-7.5 (c)
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emphasis added) . CBESS argues that this provision, CCH § 6-
7 . 5 (c) , prohibits the commissions from considering whether a
special permit is consistent with the general plan in making
their decision to approve or deny a special permit.
The interpretation of a charter is similar to that of a
statute and our review is de novo. Ford v. Leithead-Todd, 139
Hawai'i 129, 133, 384 P. 3d 905, 909 (App. 2016) . First, it
appears that the language used in CCH § 6-7 . 5 is ambiguous . It
states that " [e] ach planning commission shall review and take
action upon applications for land use changes and community
development plans involving only property within their respective
jurisdictions, other than those involving the general plan [ . ] "
CCH § 6-7 . 5 (c) (emphasis added) . However, the general plan is
created by the council for the entirety of Hawai'i County and no
public improvement may be made unless it conforms to and
implements the general plan. See id. § 3-15 (b) . Therefore,
every application for a special permit "involves" the general
plan insofar as every improvement must conform to and implement
the general plan. Therefore, a more reasonable interpretation is
that the Planning Commission does not have jurisdiction over
requests to change the general plan. This would be the
prerogative of the county council, with the advice of the
Planning Director. See id. §§ 3-15, 6-7 . 2 .
This interpretation is also supported by the special
permit process as a whole. At least for decisions on special
permits for land less than fifteen acres, the only decision maker
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on the special permit is the applicable commission. See Planning
Commission Rule 6-8 . The Planning Director' s role in special
permit applications is to ensure that the application is not
processed if it is "incomplete" as to "form and content" and to
provide his or her own recommendation. Id. at Rule 6-4; see also
CCH § 6-7 . 2 (b) . We reject CBESS' s argument that the Planning
Director has the responsibility under Planning Commission Rule 6-
4 to reject an application if he or she believes the special
permit application is contrary to the general plan. The rule
does not provide that authority because whether the permit should
be granted on the merits is not a decision on whether the
application is "incomplete" as to "form and content. " The
Planning Director is charged with making a recommendation on
special exceptions and other similar requests, " but he or she
has no 'role in deciding on the merits of the particular
application. See CCH at 6-7 .2 (b) .
In addition, HRS § 205-6 (c) provides that the Planning
Commission has the discretion to grant a special permit "only
when the use would promote the effectiveness and objectives of
HRS Chapter 2051 . " The general plan is one of the means used to
further the objectives of HRS Chapter 205. See CCH § 3-15
general plan sets forth the council' s long-range policy for the
comprehensive physical, economic, environmental, and
socio-cultural wellbeing of the county and "shall be designed to
assure the coordinated development of the county and to promote
the general welfare and prosperity of its people") . The general
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plan is repeatedly referenced and used in Chapter 205 as part of
the planning and development process . See HRS § 205-17 (county
general plan one of the criteria to be considered by the LUC
regarding district boundaries) ; HRS § 205-2 (same) ; HRS § 205-18
county general plan reviewed every five years to review
classification and districting of lands in the State) . HRS
205-6 (c) authorizes the Planning Commission to consider the
general plan in making a permitting decision, as the general plan
is one of the tools used to set out the objectives of HRS Chapter
205, and the Planning Commission is required to find that
granting a special permit promotes the effectiveness and
objectives of that chapter. Accordingly, CBESS' s contention that
the Commission exceeded its authority in interpreting the general
plan is without merit.
Connections also argues that the Planning Commission' s
finding that the Development would be contrary to the general
plan is arbitrary, clearly erroneous, and against the weight of
the evidence. The Planning Commission found that the general
plan designates the Property for "low density urban use, " which
includes "residential, with ancillary community and public uses,
and neighborhood and convenience-type commercial uses. " The
Planning Commission concluded that the Development is not
specifically intended to serve the immediate community
surrounding the school" and, therefore, "is not consistent with
the uses permitted in areas of low density urban use. " No
additional explanation is provided.
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The general plan describes three types of "Urban
Designations" based on density as follows:
Hiah Density; General commercial, multiple family
residential and related services. . .
Medium Density: Village and neighborhood commercial
and single family and multiple family residential and
related functions. . . .
Low Density: Residential, with ancillary community
and public uses, and neighborhood and convenience-type
commercial uses. . . .
County of Hawai`i General Plan (General Plan) at p. 14-7 (2005) .
Four additional types of urban designations are listed
that are not relevant here for resorts, industrial areas, etc.
Id. None of the urban density designations expressly mention
elementary or higher education schools as permitted in those
areas. However, the Planning Director testified that Hawaii
County does have schools in both urban and agricultural areas.
It is unclear why a public charter school, which would eventually
include children from the neighboring communities, estimated at
fifty percent from the Hilo area, is not an ancillary "public
use" and, therefore, consistent with the low-density urban use
designation.
The Planning Commission then stated that the general
plan instructs that the Planning Commission must consider
community concerns in making its decision, citing three general
goals" set forth in the General Plan:
Economic Element - Goal
Provide an economic environment that allows new,
expanded, or improved economic opportunities that are
compatible with the County's cultural, natural and
social environment."
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Public Facilities Element - Goal
Encourage the Provision of public facilities that
effective service the community and visitor needs and
seek ways of improving public service through better
and more functional facilities in keeping with the
environmental and aesthetic concerns of the
community. "
Land Use Element - Policy
Encourage the development and maintenance of
communities meeting the needs of its residents in
balance with the physical and social environment. "
General Plan at 2-13, 10-1, and 14-14 . The Planning Commission
found that, even though the General Plan encourages the
establishment of schools in South Hilo as the need arises (see
General Plan at 10-7) , due to the significant community concerns
expressed regarding the Development, the granting of the Special
Permit would be "contrary to the General Plan. " Id.
However, a plain reading of the General Plan does not
forbid or even discourage the building of school facilities in
low density urban areas . There is no satisfactory explanation
provided as to why building a school in a low density urban area
is contrary to the General Plan. The general goals of the
General Plan stated above do not support the proposition that
community concern generally can serve as a veto over a special
use permit. How much "community concern, " however calculated, is
required before a special permit is found to be contrary to the
general plan is unclear and is ripe for arbitrary and capricious
abuse. Given the sparsity of factual findings or explanation in
the Planning Commission' s decision, this Court has no way to
meaningfully evaluate the Planning Commission' s conclusion
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regarding the permit being contrary to the general plan. See
Kauai Springs II, 133 Hawai`i at 164, 324 P.3d at 974 (an
agency' s findings should allow the reviewing court to track the
steps by which the agency reached its decision) . Without
additional findings by the Planning Commission, the Planning
Commission' s FOFs 59 and 62, finding that the Development would
be contrary to the General Plan, are arbitrary and capricious.
COL 5, stating that the Development is not consistent with the
County General Plan, must also be vacated.
D. Further Challenges
Both CBESS and Connections challenge FOF 63, which
states :
63. The construction of a school on the Property is an
unusual use of the land because a school is not a
permitted use in the State Land Use Agricultural
District. However, the evidence presented does not
demonstrate that the Development is a reasonable use
of the Property. Specifically, Connections has not
demonstrated how this school can be built without
sufficient potable water resources. Nor [ ] has
Connections demonstrated how the development of a
regional charter school on the Property that does not
specifically service the needs of the immediate
community and that is overwhelmingly objected to by
the immediate community is a reasonable site for this
facility. In addition, Connections has not
demonstrated that the Development meets most of the
criteria to be considered by the Commission in the
subject application.
CRESS also challenges COL 4, which states:
4. The Development does not adequately meet the
requirements or guidelines for a special permit as
required by Section 205-6, HRS and Rule 6 of the
Commission Rules.
The Planning Commission-has wide discretion in deciding
whether to approve a special permit and must consider each of the
factors set out in its rules to determine whether the granting of
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the special permit is warranted. As explained by the Planning
Commission in its Answering Brief, the Planning Commission did
not base its decision on any single criterion; rather, it was
based on the totality of the evidence when applied to all seven
criteria. In this light, and given our conclusions above
regarding various errors and insufficiencies in the Decision and
Order, FOF 63 and COL 4 must be vacated, and it is necessary to
remand the case to the Planning Commission for further
proceedings. See HRS § 91-14 (g) (appellate court may remand the
case with instructions for further proceedings; see also Lanai
Co. , Inc. v. Land Use Comm'n, 105 Hawai`i 296, 316-17, 97 P. 3d
372, 392-93 (2004 ) (remanding to LUC for additional findings and
conclusions and further hearings if necessary) .
12
V. CONCLUSION
For the foregoing reasons, the. Circuit Court ' s July 14,
2015 Order Affirming and January 13, 2017 Final Judgment and the
Planning Commission ' s May 12, 2014 Decision and Order are
12 Although not raised as a point of error on appeal, Gomes argues
that the Planning Commission failed to consider its public trust obligations
with respect to the Property. See generally Mauna Kea Anaina Hou, 136 Hawai'i
at 403-09, 363 P.3d at 251-57 (discussing the public trust doctrine under
Article XI, Section I of the Hawai'i Constitution) . As a special permit was
not approved, notwithstanding any other arguments concerning the PlanningCommission's public trust duties, it appears that the Planning Commission can
address the requisites of the public trust doctrine on remand. See id. at
408-09, 363 P.3d at 256-57.
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vacated, and this case is remanded to the Planning Commission for
further proceedings consistent with this Memorandum Opinion.
DATED: Honolulu, Hawai`i, January 31, 2020.
On the briefs: doJ 4
Ted H. S. Hong, Presiding Judg-
for Applicant-Appellant
or"COMMUNITY BASED EDUCATION f/SUPPORT SERVICES.
I i. t= udge
Holly T. Shikada,
Gregg M. Ushiroda,
Carter K. Siu,
Deputy Attorneys General, Associate Judge
State of Hawaii,
for Applicant-Appellant
CONNECTIONS NEW CENTURY
PUBLIC CHARTER SCHOOL.
D. Kaena Horowitz,
Angelic M.H. Hall,
Deputies Corporation Counsel,
County of Hawaii,
for Appellee-Appellee
WINDWARD PLANNING COMMISSION,
COUNTY OF HAWAI`I .
Michael J. Matsukawa,
for Intervenor-Appellee-Appellee.
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