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NO. CAAP-15-0000478

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

PROTECT AND PRESERVE KAHOMA AHUPUA#A ASSOCIATION, 

an unincorporated association, 

MICHELE LINCOLN, MARK ALLEN, LINDA ALLEN,

and CONSTANCE B. SUTHERLAND, 

Plaintiffs-Appellants/Appellants,

PATRICK AND NAOMI GUTH, Plaintiffs-Appellants/Appellees,

v.

MAUI PLANNING COMMISSION, COUNTY OF MAUI, and 

STANFORD CARR DEVELOPMENT, LLC, 

a domestic limited liability company, 

Defendants-Appellees/Appellees

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT

(CIVIL NO. 14-1-0616(1))

MEMORANDUM OPINION

(By: Ginoza, Chief Judge, Hiraoka and Wadsworth, JJ.)

I. Introduction

This case arises from Defendant-Appellee Maui Planning

Commission's (the Commission) oral approval of a Special

Management Area (SMA) use permit application submitted by

Defendant-Appellee Stanford Carr Development LLC (Carr

Development). In its SMA use permit application, Carr 

Electronically Filed

Intermediate Court of Appeals

CAAP-15-0000478

14-SEP-2020

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Development sought permission to construct its proposed Kahoma

Village 201-H Project on a vacant lot situated within the County

of Maui's SMA.

Plaintiffs-Appellants Protect and Preserve Kahoma

Ahupua#a Association, Michele Lincoln, Mark Allen, Linda Allen,

and Constance B. Sutherland (collectively the PPKAA), an

environmental organization whose members largely consist of

adjoining landowners, sought to intervene as a party in the

Commission's SMA permit application proceeding in order to

address potential environmental and aesthetic impacts of the

proposed project. The Commission denied PPKAA's petition to

intervene, and subsequently orally approved Carr Development's

SMA permit application. PPKAA eventually appealed the

Commission's decision to the Circuit Court of the Second Circuit

(circuit court).

1

In this secondary appeal, PPKAA appeals from the

"Findings of Fact, Conclusions of Law, Decision and Order Denying

Appeal" (Order Denying Appeal) and Final Judgment (Judgment) both

entered on June 19, 2015, in favor of the Commission, DefendantAppellee Maui County, and Carr Development, by the circuit court.

In its Order Denying Appeal and Judgment, the circuit court

affirmed: (1) the Commission's oral denial of PPKAA's petition to

intervene in Carr Development's SMA use permit application; (2)

the Commission's subsequent oral approval of Carr Development's

SMA use permit; and (3) the Commission's "Findings of Fact,

Conclusions of Law, and Decision and Order Relating to Protect

and Preserve Kahoma Ahupua'a Association, Michele Lincoln, Mark

and Linda Allen, Patrick and Naomi Guth, and Constance B.

Sutherland's Petition to Intervene" (Order Denying Petition)

dated September 23, 2014. 

On appeal, PPKAA contends that the circuit court erred

in its Order Denying Appeal because: (1) PPKAA had demonstrated

injury-in-fact standing as required to merit intervenor status;

1 The Honorable Rhonda I.L. Loo presided.

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(2) PPKAA was entitled to intervene as a matter of right; (3)

denying permissive intervention to PPKAA constituted an abuse of

discretion by the Commission; (4) the Commission engaged in

unlawful de facto rule making on intervention and its

intervention rules were invalid as written and applied; (5) the

Commission violated PPKAA members’ due process rights, and; (6)

the Commission failed to find the project would be consistent

with the General Plan and Community Plan before approving the SMA

use permit. 

For the reasons set forth below, we vacate the Order

Denying Appeal and the Judgment entered by the circuit court. We

remand this case to the Maui Planning Commission for further

proceedings.

II. Background

On September 27, 2012, the Commission received Carr

Development's SMA use permit application for its proposed Kahoma

Village 201-H Project (the Project) to be located on

approximately 21.6 acres of a 24.354-acre lot in Lahaina, Maui. 

The Project proposes to develop a mix of affordable and market

units and housing types on undeveloped and vacant land owned by

the Harry and Jeanette Weinberg Foundation, Inc. to address the

need for housing in the County of Maui. The Project would

include the development of approximately 203 housing units,

parking, landscaping, roadways, utility improvements, and 1.75

acres of residential parks. The Project site is located within

the State Land Use "Urban" district and is within the County of

Maui's SMA, the area along the shoreline protected to ensure the

preservation and restoration of the coastal zone of the State of

Hawai#i. 

On November 6, 2012, Carr Development published for

circulation in Maui News, a "Notice of Application" and location

map notifying the general public of Carr Development's intent to

file its SMA use permit application with the County of Maui. On

February 7, 2014, the Maui County Council adopted County Council 

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Resolution 14-14 and approved the Project pursuant to Hawaii

Revised Statutes (HRS) Chapter 201H-38 relating to affordable

housing projects. Resolution 14-14 exempted the Project from

certain provisions of the Maui County Code, including, inter

alia, an exemption that permitted the Project to proceed without

obtaining a community plan amendment. 

On May 19, 2014, Carr Development sent a subsequent

notice to all owners and record lessees within 500 feet of the

project, including members of PPKAA,2 describing the Project and

notifying them of the scheduled hearing date, time, and place of

the public hearing on Carr Development's SMA use permit

application. On June 5, 2014, PPKAA filed their petition to

intervene in Carr Development's SMA permit application. The

petition states that PPKAA is an unincorporated organization

whose mission is to preserve, protect, and restore the natural

and cultural environment of the Kahoma ahupua#a, including the

Alamihi cultural area. Many of PPKAA's officers, members, and

supporters are homeowners or lessees within the Kahoma ahupua#a

and reside within 500 feet of the proposed project site. 

In their petition, PPKAA asserts that the proposed

Project would adversely affect their group as adjacent landowners

because it would diminish their use and enjoyment of their

properties, decrease their properties' sale and rental value, and

would have adverse impacts on the protected resources within the

Coastal Zone Management Area. The petition further asserts that

the proposed Project would threaten a variety of environmental

and aesthetic interests protected under the Coastal Zone

Management Act (CZMA) if not properly addressed. On June 13,

2014, Carr Development filed its motion in opposition to the

petition, challenging the petition on the basis that it failed to 

2 The notice of the scheduled public hearing on Carr Development's SMA

use permit application was sent to PPKAA members Mark and Linda Allen, Patrick

and Naomi Guth, and Constance Sutherland, all of whom are owners or lessees

that reside within 500 feet of the Project site.

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meet the intervenor standing requirements set forth in Maui

Planning Commission Rules of Practice and Procedure (MPC Rule) 

12-201-41(b) and (d) (2010),3 pertaining to

intervention as a matter of right, and permissive intervention,

respectively. 

On June 24, 2014, the Commission held a public hearing

on, inter alia, PPKAA's petition to intervene, and Carr

Development's SMA permit application. At the hearing, members of

the general public, including PPKAA members Mark Allen, Naomi

Guth, Constance Sutherland, and Michele Lincoln, presented public

testimony on their opinions of the Project. Later in the public

hearing, Michele Lincoln, acting on behalf of the PPKAA, and Carr

Development's counsel presented oral arguments on PPKAA's

petition to intervene. After consideration of the arguments

presented by both parties, the Commission denied the petition by

a vote of five to one, and proceeded to orally approve Carr

Development's SMA permit application for the Project. 

3 MPC Rule 12-201-41 provides, in relevant part:

. . . . 

(b) All persons who have a property interest in

land subject to commission action, who lawfully reside

on said land, or can demonstrate that they will be so

directly and immediately affected by the matter before

the commission that their interest in the proceeding

is clearly distinguishable from that of the general

public shall be admitted as parties upon timely

application for intervention.

. . . . 

(d) Leave to intervene shall be freely granted,

provided that the commission or its hearing officer, if one

is appointed, may deny an application to intervene when in

the commission's or hearing officer's sound discretion it

appears that:

(1) The position or interest of the applicant for

intervention is substantially the same as a

party already admitted to the proceeding;

(2) The admission of additional parties will render

the proceedings inefficient and unmanageable; or

(3) The intervention will not aid in development of

a full record and will overly broaden issues.

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On July 7, 2014, PPKAA filed their "Objection to Denial

of Petition to Intervene", arguing that the Commission "has

adopted a practice of always denying complete Petitions to

Intervene claiming that all petitioners' interests are not

distinguishable from the general public." In their Objection,

PPKAA asserted that the Commission's consistent denial of

petitions to intervene on this basis amounted to the enforcement

of "a new rule regarding those who have standing to intervene in

SMA permit application proceedings" that was promulgated without

following the rule making procedures under HRS chapter 91. The

Commission considered PPKAA's Objection at its September 23, 2014

meeting, where it ultimately rested on the initial decision to

deny PPKAA's petition. The Commission then proceeded to adopt

the Order Denying Petition. 

On October 23, 2014, PPKAA filed their Notice of Appeal

in the circuit court, challenging the Commission's oral denial of

PPKAA's petition, oral approval of Carr Development's SMA use

permit application, and the Order Denying Petition. On April 30,

2015, the circuit court heard oral arguments at which it

addressed PPKAA's points of error. On June 19, 2015, the circuit

court entered its Order Denying Appeal and Judgment, concluding

in relevant part that: the Commission had properly considered and

applied MPC Rule 12-201-41(b) in determining that PPKAA had

failed to establish their standing to intervene as a matter of

right; the Commission did not abuse its discretion in determining

that PPKAA's petition did not warrant permissive intervention as

allowed under MPC Rule 12-201-41(d); the Commission's decision to

deny the petition was not arbitrary, capricious or an abuse or

clearly unwarranted exercise of discretion; PPKAA's due process

rights were not violated because they were afforded notice and an

opportunity to be heard on the petition and were not subject to

the usual three-minute limitation imposed on oral testimony from

individuals; the Commission's determination that the Project was 

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exempted from the General Plan was not clearly erroneous; and the

Commission did not improperly engage in de facto rule making or

fail to promulgate rules in compliance with HRS Chapter 91. 

Accordingly, the circuit court affirmed the Commission's oral

denial of PPKAA's petition to intervene, the Commission's oral 

approval of Carr Development's SMA permit application, and the

Order Denying Petition. This appeal follows.

III. Standards of Review

A. Administrative Agency Decisions-Secondary Appeals

In the instant appeal, we review the decision made by

the circuit court upon its review of the Commission's decision to

deny PPKAA's petition to intervene. 

Review of a decision made by the circuit court upon its

review of an agency's decision is a secondary appeal. The

standard of review is one in which this court must determine

whether the circuit court was right or wrong in its

decision, applying the standards set forth in HRS § 91-14(g)

(1993) to the agency's decision.

 

Save Diamond Head Waters LLC v. Hans Hedemann Surf, Inc., 121

Hawai#i 16, 24, 211 P.3d 74, 82 (2009) (quoting Citizens Against

Reckless Dev. v. Zoning Bd. of Appeals, 114 Hawai#i 184, 193, 159

P.3d 143, 153 (2007)). HRS § 91-14(g) (2012) provides:

(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;

(2) In excess of the statutory authority or

jurisdiction of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(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.

Accordingly, pursuant to HRS § 91-14(g), an agency's "conclusions

of law are reviewable under subsections (1), (2), and (4);

questions regarding procedural defects under subsection (3); 

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findings of fact under subsection (5); and an agency's exercise

of discretion under subsection (6)." Sierra Club v. Off. of

Plan., 109 Hawai#i 411, 414, 126 P.3d 1098, 1101 (2006) (citation

omitted).

We also note that an agency's interpretation of its own

rules is entitled to deference unless it is plainly erroneous or

inconsistent with the underlying legislative purpose. In re

Waiola O Molokai, Inc., 103 Hawai#i 401, 425, 83 P.3d 664, 688

(2004); Lee v. Elbaum, 77 Hawai#i 446, 457, 887 P.2d 656, 667

(App. 1993). However, restrictive interpretations of standing

requirements imposed by an agency are not entitled to deference

and may be reviewed de novo on appeal. See Pub. Access Shoreline

Hawaii v. Hawai#i Cty. Plan. Comm'n, 79 Hawai#i 425, 434, 903 P.2d

1246, 1255 (1995) (PASH).

B. Constitutional Law

"We review questions of constitutional law de novo,

under the right/wrong standard." Jou v. Dai-Tokyo Royal St. Ins.

Co., 116 Hawai#i 159, 164-65, 172 P.3d 471, 476-77 (2007)

(quoting Onaka v. Onaka, 112 Hawai#i 374, 378, 146 P.3d 89, 93

(2006)) (internal quotation marks omitted). 

IV. Discussion

A. The Commission restrictively interpreted its standing

requirements in denying PPKAA's petition to intervene

as a matter of right. 

PPKAA contends that the Commission restrictively and

improperly interpreted its standing requirements as set forth in

MPC Rule 12-201-41(b), and thus abused its discretion in denying

PPKAA's petition to intervene as a matter of right. We agree.

The MPC Rules provide for formal intervention to

Commission proceedings under MPC Rules §§ 12-201-39 to -46. In

particular, MPC Rule 12-201-41(b) provides: 

All persons who have a property interest in land subject to

commission action, who lawfully reside on said land, or can

demonstrate they will be so directly and immediately affected

by the matter before the commission that their interest in the

proceeding is clearly distinguishable from that of the general

public shall be admitted as parties upon timely application

for intervention.

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In its Order Denying Petition, the Commission

concluded, and PPKAA does not contest, that PPKAA does not have a

property interest in the land that is subject to the Commission's

action and did not lawfully reside on said land. Accordingly,

under MPC Rule 12-201-41(b), PPKAA would qualify to have standing

to intervene as a matter of right only if they could demonstrate

that they would "be so directly and immediately affected by the

matter before the commission that their interest in the

proceeding is clearly distinguishable from that of the general

public." 

"Standing is concerned with whether the parties have

the right to bring suit," or as in this case, whether PPKAA has

the right to intervene in Carr Development's SMA permit

application. See Sierra Club v. Dep't of Transp., 115 Hawai#i

299, 318, 167 P.3d 292, 311 (2007) (internal quotation marks

omitted) (quoting Pele Def. Fund v. Puna Geothermal Venture, 77

Hawai#i 64, 67, 881 P.2d 1210, 1213 (1994)). In order to

establish standing to intervene in an administrative proceeding,

plaintiffs must demonstrate an "injury-in-fact," which requires

them to "have suffered an actual or threatened injury; the injury

must be fairly traceable to the defendant's actions; and a

favorable decision would likely provide relief for the

plaintiff's injury." In re Application of Maui Elec. Co., 141

Hawai#i 249, 270, 408 P.3d 1, 22 (2017) (MECO) (citation

omitted). "Environmental plaintiffs must meet this three-part

standing test but need not assert an injury that is different in

kind from an injury to the public generally." Id. (citation

omitted). This less rigorous standing requirement that applies

in environmental cases draws support from the Hawai#i

Constitution, article XI, section 9. Dep't of Transp., 115

Hawai#i at 320, 167 P.3d at 313.

"The injury prong of the standing inquiry requires an

assertion of a judicially-cognizable injury, that is, a harm to 

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some legally-protected interest." Id. at 321, 167 P.3d at 314 

(citations omitted). Although the Supreme Court of Hawai#i has

acknowledged a variety of recreational and aesthetic interests

that, if injured, can form the basis for standing in

environmental cases, the ultimate inquiry depends on injury to

the plaintiffs themselves, not the environment. Id. at 321-322,

167 P.3d at 314-315. Accordingly, even under our less rigorous

standing requirements in environmental cases, although a

plaintiff's injury or threatened injury need not be different in

kind from an injury to the public generally, a plaintiff still

must demonstrate that he has suffered an injury-in-fact. See

id.; see also Akau v. Olohana Corp., 65 Haw. 383, 388-390, 652

P.2d 1130, 1134-1135 (1982) (holding "that a member of the public

has standing to sue to enforce the rights of the public even

though his injury is not different in kind from the public's

generally, if he can show that he has suffered an injury in

fact," or "some injury to a recognized interest such as economic

or aesthetic, and is himself among the injured and not merely

airing a political or intellectual grievance").

Here, in consideration of PPKAA's petition, the

Commission made conclusions of law pertaining to PPKAA's right to

intervene as a matter of right in Carr Development's SMA

application, including the following:

7. Based on the record before it, evidence

presented, and the findings set forth above, the

Commission concludes that the concerns [PPKAA] have

raised are all concerns of the general public, which

the Commission is obligated to consider pursuant to

the aforementioned rules and laws prior to making a

decision on the Application.

8. Based on the record before it, evidence

presented, and the findings set forth above, the

Commission concludes that the [PPKAA] have failed to

demonstrate that they will be so directly and

immediately affected by the matter before the

Commission that their interests are clearly

distinguishable from that of the general public.

9. Based on the record before it, evidence

presented, and the findings set forth above, the

Commission concludes that [PPKAA] have not met the

burden of showing an actual or threatened injury

traceable to [Carr Development’s] actions or showing

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how a favorable decision would provide relief for such

injury. []

(Emphases added). In its Order Denying Appeal, the circuit court

agreed with the Commission, and concluded that the Commission

properly considered and applied MPC Rule 12-201-41(b) in its

determination that PPKAA failed to meet their burden of proof

with regard to standing, and that "the evidence before the

Commission lacked sufficient specificity to establish [PPKAA's]

interests are clearly distinguishable from that of the general

public."

However, the Commission's findings and conclusions

reflect that the Commission interpreted MPC Rule 12-201-41(b) in

a restrictive manner in denying PPKAA's petition, which may be

reviewed de novo. PASH, 79 Hawai#i at 434, 903 P.2d at 1255. In

its findings, the Commission notes that PPKAA seeks to protect

the same interests protected by the CZMA and the Hawai#i State

Constitution, including, inter alia, environmental interests such

as public access to beaches and various cultural and

environmental resources. The Commission notes that PPKAA "do not

specify which of the enumerated concerns will affect them 'in a

manner different from the general public[,]'" and that the

petition instead only states that their members are plainly among

the injured. The Commission further noted in its findings that

the concerns that PPKAA members articulated at the hearing are

concerns the Commission is required to consider under the CZMA. 

Such findings and conclusions emphasize the fact that the PPKAA

did not allege an injury that is different in kind from an injury

to the public generally or involve matters that the Commission is

already required to consider under the CZMA objectives and

policies.

However, as previously noted, the fact that PPKAA's

concerns are similar to those of the general public is not

determinative of the inquiry on standing, as environmental

plaintiffs need not assert an injury that is different in kind 

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from the public so long as they can demonstrate an injury-in-fact

to themselves. See MECO, 141 Hawai#i at 270, 408 P.3d at 22. 

Similarly, the Commission's obligation to comply with CZMA

statutory purposes, objectives, and policies cannot be used as a

basis to deny PPKAA's petition to intervene, as it is immaterial

in determining whether PPKAA is entitled to intervention as a

matter of right pursuant to MPC Rule 12-201-41(b). So long as

PPKAA could demonstrate in the petition an injury-in-fact such

that they would be "so directly and immediately affected by the

matter before the commission that their interest in the

proceeding is clearly distinguishable from that of the general

public," PPKAA would be entitled to intervene in Carr

Development's SMA application as a matter of right.4 See Maui P.

Comm. R. § 12-201-41(b).

Here, PPKAA sufficiently demonstrated a threatened

injury-in-fact, in that they established a threatened

environmental injury to PPKAA traceable to Carr Development's SMA

permit application, and that a favorable decision by the

Commission would provide relief to PPKAA members. "A threatened

injury under the traditional injury-in-fact test may be shown

based on direct personal interests in the site of a project

coupled with concerns of actual injury should the project 

4 As part of their fourth point of error, PPKAA contends that MPC Rule

12-201-41(b) is invalid as written insofar as it requires petitioners to

demonstrate interests "clearly distinguishable" from that of the general

public and thus conflicts with our settled injury-in-fact case law, which, as

discussed above, does not require environmental plaintiffs to assert an injury

that is different in kind from an injury to the public generally. See MECO,

141 Hawai#i at 270, 408 P.3d at 22.

We note, however, that the Hawai#i Supreme Court has addressed a similar

standing rule in PASH, and while not explicitly ruling on its validity, has

treated the rule as raising an issue of restrictive application of standing

requirements. See PASH, 79 Hawai#i at 434, 903 P.2d at 1255. Here, the MPC

restrictively interpreted its standing requirements in denying PPKAA's

petition to intervene, and thus is owed no deference to its determination. 

See id. (noting that the Hawai#i Planning Commission's decision to deny

petitioner standing to participate in a contested case hearing because

"asserted interests were 'substantially similar' to those of the general

public[,]" was a restrictive interpretation of the commission's standing

requirements that is not entitled to deference).

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go forward without adequate environmental review." Dep't of

Transp., 115 Hawai#i at 329, 167 P.3d at 322. Applied here, the

record reflects that those involved with PPKAA have demonstrated

both a direct personal interest in the Project, and have

identified potential environmental injury to themselves.

In regard to whether PPKAA members have a direct

personal interest in the Project site, the Supreme Court of

Hawai#i has recognized environmental and aesthetic interests,

such as those articulated by PPKAA, to be "personal" and

"special" to adjacent landowners of a project site. See Mahuiki

v. Planning Commission, 65 Haw. 506, 515, 654 P.2d 874, 880

(1982) (holding that environmental and aesthetic interests were

 "special" and "personal" to adjacent landowners, as a "decision

to permit the construction of multi-family housing units on

undeveloped land in the [SMA] could only have an adverse effect

on their environment" (emphasis added)).

Here, PPKAA set forth in the petition a number of

interests that they contend the Project would injure if allowed

to proceed as planned, including: (1) the use of the north side

of Kenui Street for parking access to Pu#unoa and Mala beaches;

(2) access to a full six-acre community park and open space as

provided in the county community plan; (3) trees in the coastal

zone that provide critical habitat for listed endangered species

and shade; (4) protection from adverse effects of wastewater,

drainage and runoff impacts upon coastal waters off of Pu#unoa

and Mala beaches; (5) the Project's potential impact on the use

of fresh water resources; (6) enjoyment of natural and manmade

historic and prehistoric cultural resources located within the

Project area; (7) proper investigation into the presence of

Hawaiian burials in the Project area; (8) proper planning and

consideration of adverse traffic impacts; (9) protection of

scenic and open space resources; and (10) potential adverse

impacts related to the Tsunami Inundation Zone because further

development would contribute to emergency evacuation issues that 

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will cause harm to the existing community. As articulated in the

petition, and summarized above, we recognize that not all of the

concerns asserted by PPKAA identify an actual or threatened

injury to PPKAA members.

However, PPKAA did sufficiently assert threatened

injuries-in-fact to PPKAA members in various ways. In the

introductory section of the petition, PPKAA specifically

asserted:

[A]s adjoining and nearby property owners, [we] will be

directly and immediately affected by the Commission's decision

and therefore have a right to intervene. The proposed

development, as currently planned, will adversely affect the

[PPKAA] because it will diminish [our] use and enjoyment of

[our] properties. It will also decrease the sale and rental

value of [our] properties. [The project] will have adverse

impacts on protected resources within the Coastal Zone

Management Area as will be described in more detail below.

(Emphases added). The petitioners' asserted threatened injuries

were also more particularly specified in the petition and at the

June 24, 2014 public hearing where members of the PPKAA submitted

public testimony about their concerns over the Project. As the

commission observed in its findings, which are unchallenged, Mark

Allen testified that he was concerned that the Project would

increase storm water runoff entering the ditch that borders the

southern end of his property. Naomi Guth testified that the

proposed Project would be situated in the last open space in all

of Front Street, and thus suggested that a park should be located

on the Project site and that the area be kept as an open space. 

The Commission's findings and Constance Sutherland's testimony

set forth her concerns about increased traffic that the Project

may cause within her cul-de-sac neighborhood and the lack of

parking for any additional cars. Likewise, in the Petition, the

PPKAA asserts that "[l]ocal residents currently use the unpaved

portion of the north side of Kenui Street to access Puunoa (Baby)

Beach and Mala Beach," and that "[t]he Project will impact access

for beach parking and will directly impact the ability of public

access to the shoreline." PPKAA also articulated concerns about 

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adverse impacts in the tsunami evacuation zone that "the

additional units [proposed in the Project] will contribute to

emergency evacuation issues that will cause eminent [sic] harm to

the existing community and the residents of the development." 

The Petition also further asserted that the CZMA "protects more

than simply 'public views' which are of areas 'to and along the

shoreline.' The CZMA more broadly protects 'the quality of

coastal scenic and open space resources' and 'visual' resources

within the coastal zone." 

Taken together, such concerns are not unlike those that

have been previously recognized as sufficient to establish a

judicially-cognizable injury. See e.g., MECO, 141 Hawai#i at

270, 408 P.3d at 22 (holding that appellant group members

articulated a threatened injury sufficient to establish standing

with their concerns of potential health effects from power plant

operations); Citizens for Prot. of North Kohala Coastline, 91

Hawaii 94, 101, 979 P.2d 1120, 1127 (1999) (holding that citizen

group established "an injury in fact sufficient to constitute

standing to participate in a declaratory judgment action" where

members resided "in close proximity" to proposed project site and

were "long time and frequent users" of the subject coastline, and

injury to members' quality of life is threatened); Pele Def.

Fund, 77 Hawai#i at 70, 881 P.2d at 1216 (holding that appellant

group had demonstrated an injury-in-fact based on its assertion

of "potential harm including diminished property values,

deterioration of air quality, odor nuisance, and possible

physical injury resulting from the permitted operations"

(internal quotation marks omitted)); Akau, 65 Haw. at 390, 652

P.2d at 1135 (recognizing that appellant group's allegation that

they were prevented from using a public right-of-way resulting in

difficulty in getting to the beach thus hampering their use and

enjoyment of it and possibly preventing or discouraging use in

some instances established an injury-in-fact).

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Accordingly, the Commission should have recognized that

PPKAA members' direct personal environmental and aesthetic

interests, including those of adjacent landowners, coupled with

their articulated concerns of potential actual injury from the

Project, sufficiently established a threatened injury that is

fairly traceable to Carr Development's SMA permit application,

and that a favorable decision by the Commission would have

provided PPKAA relief from such injury, such that PPKAA had

standing. See Dep't of Transp., 115 Hawai#i at 329, 167 P.3d at

322. Instead, the Commission interpreted its rules in an overly

restrictive manner by denying PPKAA's petition on the basis "that

the concerns [PPKAA] have raised are all concerns of the general

public, which the Commission is obligated to consider." Such

restrictive interpretation of its own standing requirements is

not entitled to deference. See PASH, 79 Hawai#i at 434, 903 P.2d

at 1255 (holding that Hawai#i Planning Commission's denial of

standing to appellant group on the basis that its asserted

interests were "substantially similar" to those of the public was

a restrictive interpretation of the commission's standing

requirements not entitled to deference).

The Hawai#i Supreme Court has expressed that "the

appellate courts of this state have generally recognized public

interest concerns that warrant the lowering of standing barriers

in cases pertaining to environmental concerns." Dep't of

Transp., 115 Hawai#i at 320, 167 P.3d at 313 (ellipses and

citations omitted). As such, "where the interests at stake are

in the realm of environmental concerns, we have not been inclined

to foreclose challenges to administrative determinations through

restrictive applications of standing requirements." MECO, 141

Hawai#i at 270, 408 P.3d at 22 (citations, internal quotation

marks, and brackets omitted).

We thus conclude that PPKAA, having sufficiently

established an injury-in-fact, demonstrated that they have been

so directly and immediately affected by the matter before the

Commission that they are entitled to intervene as a matter of

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right in Carr Development's SMA permit application. Accordingly,

Carr Development's SMA use permit was granted pursuant to flawed

procedures, that effectively curtailed PPKAA from developing a

complete record, and is void. See PASH, 79 Hawai#i at 429, 903

P.2d at 1250. As such, the circuit court erred in concluding

that the Commission properly applied MPC Rule 12-201-41(b), and

in affirming the Commission's: (1) oral denial of PPKAA's

petition to intervene; (2) subsequent oral approval of Carr

Development's SMA permit, and; (3) the Order Denying Petition.

Because we conclude that PPKAA demonstrated that they

had standing to intervene in Carr Development's SMA use permit

application as a matter of right, we need not reach PPKAA's third

and fourth points of error pertaining to the Commission's denial

of permissive intervention to PPKAA, and the Commission's alleged

de facto rule making.

B. PPKAA was denied procedural due process to protect

their right to a clean and healthful environment under

article XI, section 9, as defined under the CZMA.

We next consider PPKAA's contention that they were

denied procedural due process. On appeal, PPKAA asserts they

were "unconstitutionally deprived of a meaningful time and place

to protect their interest in the Commission proceedings," which

they attribute, in part, to the Commission's procedures

pertaining to petitions to intervene that they contend impaired

PPKAA's ability to establish a record on critical issues. While

we have already concluded that PPKAA has established their

standing to intervene in the SMA permit application proceedings

as a matter of right, we further conclude that in light of the

Hawai#i Supreme Court's holdings in MECO and In re Hawai#i Elec.

Light Co., 145 Hawai#i 1, 445 P.3d 673 (2019) (HELCO), procedural

due process additionally required that PPKAA be afforded a

contested case hearing.

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It has been long recognized that "'constitutional due

process protections mandate a hearing whenever the claimant seeks

to protect a "property interest," in other words, a benefit to

which the claimant is legitimately entitled.'" MECO, 141 Hawai#i

at 260, 408 P.3d at 12 (brackets omitted) (quoting Pele Def.

Fund, 77 Hawai#i at 68, 881 P.2d at 1214). In determining claims

of a due process right to a hearing, we apply a two step

analysis: "(1) is the particular interest which claimant seeks to

protect by a hearing 'property' within the meaning of the due

process clauses of the federal and state constitutions, and (2)

if the interest is 'property,' what specific procedures are

required to protect it." Id. (citaton omitted).

i. PPKAA has asserted a constitutionally protected

property interest to a clean and healthful

environment as defined by the CZMA

As explained by the Hawai#i Supreme Court, "[t]he right

to a clean and healthful environment is a substantive right

guaranteed to each person by article XI, section 9 of the Hawai#i

Constitution." Id., at 260-61, 408 P.3d at 12-13 (internal

quotation marks and citations omitted). The Supreme Court

further noted that "[a]lthough a person's right to a clean and

healthful environment is vested pursuant to article XI, section

9, the right is defined by existing law relating to environmental

quality." Id. at 261, 408 P.3d at 13. "Accordingly, the

parameters of the property interest asserted by [petitioners]

under article XI, section 9 is defined in reference to laws

related to environmental quality." Id. (citation omitted). 

In their petition to intervene, in which they requested

a contested case hearing, PPKAA sought to protect a number of

environmental and aesthetic interests that are protected under

the CZMA, HRS Chapter 205A, explaining that: "[PPKAA] is an

unincorporated organization dedicated to preserving, protecting

and restoring the natural and cultural environment of the Kahoma

ahupua#a including the Alamihi cultural area[,]" and that "[t]he

interests in [sic] which [PPKAA] seek to protect are the same

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interests protected by the [CZMA]. . . . and the Hawaii State

Constitution." In this sense, PPKAA asserted a right to a clean

and healthful environment in this case as defined by the CZMA,

HRS Chapter 205A, which includes the duties and operation of the

Commission in regulating the SMA use permit procedure and

requirements. 

We next consider whether the CZMA is a law relating to

environmental quality within the meaning of article XI, section 9

of the Hawai#i Constitution. The CZMA was enacted by the

Legislature in order to provide for effective management,

beneficial use, protection, and development of Hawaii's coastal

zones. 1977 Haw. Sess. Laws Act 188, § 1 at 396. As explicitly

stated in HRS § 205A-21 (2007), 

The legislature finds that, special controls on developments

within an area along the shoreline are necessary to avoid

permanent losses of valuable resources and the foreclosure

of management options, and to ensure that adequate access,

by dedication or other means, to public owned or used

beaches, recreation areas, and natural reserves is provided.

The legislature finds and declares that it is the state

policy to preserve, protect, and where possible, to restore

the natural resources of the coastal zone of Hawaii.

(Emphasis added). "The implementation of this policy has been

delegated in large part to the counties, and they are responsible

for the administration of the [SMA] use permit procedure and

requirements." Mahuiki, 65 Haw. at 517, 654 P.2d at 881. HRS

§ 205A-2 also sets forth the objectives and policies of the CZMA,

many of which include consideration of the interests that PPKAA

seeks to address in their petition. These provisions of the CZMA

expressly require the designated authorities to consider issues

relating to the preservation and conservation of natural

resources in the SMA in their decision making.

Thus, the CZMA is a law relating to environmental

quality that defines the right to a clean and healthful

environment under article XI, section 9, because it requires that

express consideration be given to the environmental interests

covered in the policies and objectives of the CZMA in the

decision-making of the designated authorities. See HELCO, 145

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Hawai#i at 16-17, 445 P.3d at 688-89; MECO, 141 Hawai#i at 261-

265, 408 P.3d at 13-17 (holding that HRS Chapter 269 "is a law

relating to environmental quality that defines the right to a

clean and healthful environment under article XI, section 9 by

providing that express consideration be given to reduction of

greenhouse gas emissions in the decision-making of the [Public

Utilities Commission]"); Cty. of Hawaii v. Ala Loop Homeowners,

123 Hawai#i 391, 409, 235 P.3d 1103, 1121 (2010) (holding that

HRS Chapter 205 is a law relating to environmental quality within

the meaning of article XI, section 9 because it is a law relating

to the conservation, protection, and enhancement of natural

resources and it requires consideration of issues relating to the

preservation or conservation of natural resources), abrogated on

other grounds by Tax Found. v. State, 144 Hawai#i 175, 439 P.3d

127 (2019).

ii. A contested case was required. 

Having determined that PPKAA demonstrated a protected

property interest in a clean and healthful environment as defined

by the CZMA, "we next consider what procedures due process

requires in this case[.]" MECO, 141 Hawai#i at 265, 408 P.3d at

17. 

When determining the procedures required to comply with

constitutional due process, we consider the following three

factors: "(1) the private interest which will be affected;

(2) the risk of an erroneous deprivation of such interest

through the procedures actually used, and the probable

value, if any, of additional or alternative procedural

safeguards; and (3) the governmental interest, including the

burden that additional procedural safeguards would entail."

HELCO, 145 Hawai#i at 17, 445 P.3d at 689 (quoting Sandy Beach

Def. Fund v. City Council Cty. of Honolulu, 70 Haw. 361, 378, 773

P.2d 250, 261 (1989). 

As to the first factor, the private interest affected

here is PPKAA's right to a clean and healthful environment, which

includes the right that explicit consideration be given to many

of the objectives and polices of the CZMA that PPKAA asserted in

their petition to intervene, and as provided for in HRS § 205A-2. 

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As previously discussed, Carr Development's SMA permit

application involves the construction of a significant housing

development within the SMA. Because the Commission's

determination on Carr Development's SMA permit application

requires consideration of the Project's potential effect on the

natural resources protected under the CZMA, PPKAA's right to a

clean and healthful environment, as defined by the CZMA, was

directly affected by the Commission's oral approval of Carr

Development's SMA permit application. See id.

As to the second factor, we conclude that the risk of

erroneous deprivation of PPKAA's right to a clean and healthful

environment is high absent the protections provided by a

contested case hearing. As asserted by the PPKAA in their

petition to intervene, the Project could have adverse

environmental and aesthetic impacts to the SMA, which PPKAA was

not allowed to address because the Commission had denied their

petition to intervene. Additionally, there were no other

proceedings where PPKAA was given a meaningful opportunity to be

heard concerning Carr Development's SMA permit application, as it

was orally approved after the Commission had denied PPKAA's

petition to intervene at the June 24, 2014 public hearing. See 

HELCO, 145 Hawai#i at 17, 445 P.3d at 689; MECO, 141 Hawai#i at

266, 408 P.3d at 18. 

Finally, as to the third factor regarding the

governmental interest, we conclude that the burden of affording

PPKAA a contested case hearing is slight because the Commission

was already required to consider the concerns posited in PPKAA's

petition to intervene. See HELCO, 145 Hawai#i at 17-18, 445 P.3d

at 689-90; MECO, 141 Hawai#i at 266, 408 P.3d at 18. As such, it

would not unduly burden the Commission to afford PPKAA a

contested case hearing under the circumstances of this case. 

Accordingly, under the circumstances of this case,

PPKAA was entitled to a contested case hearing by the Commission

to comply with procedural due process, which includes the right

to submit evidence and argument on the impact of the Project on 

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the asserted property interest. See HELCO, 145 Hawai#i at 25,

445 P.3d at 697; MECO, 141 Hawai#i at 269, 408 P.3d at 21;

However, the Commission "has the authority to set limitations in

conducting the proceedings so long as the procedures sufficiently

afford an opportunity to be heard at a meaningful time and in a

meaningful manner on the issue of the [Project]'s impact on the

asserted property interest." HELCO, 145 Hawai#i at 25, 445 P.3d

at 697; MECO, 141 Hawai#i at 270, 408 P.3d at 22.

C. The Commission is required to make specific

findings on the Project's consistency with the

Maui County General and Community Plans.

Finally, we address PPKAA's contention that the

Commission was required to find the Project consistent with the

Maui County General and Community Plans prior to orally approving

Carr Development's SMA permit application despite the County's

designation of the Project as an HRS § 201H-38 housing

development. For reasons set forth below, we conclude that on

remand, the Commission is required under the CZMA to make

specific findings on the Project's consistency with the Maui

County General and Community Plans prior to approval of Carr

Development's SMA permit application.

In the instant case, the Maui County Council (Council)

approved the Project under HRS Chapter 201H-38 via County Council

Resolution 14-14. Under HRS § 201H-38 2017), certain housing

projects are exempted "from all statutes, ordinances, charter

provisions, and rules of any government agency relating to

planning, zoning, construction standards for subdivisions,

development and improvement of land, and the construction of

dwelling units thereon," provided that the project meets the

requirements of the statute. 

While it is undisputed that the Council, via Resolution

14-14, exempted the Project from having to obtain a community

plan amendment, nothing in Resolution 14-14 exempted the

Commission from its responsibilities under the CZMA. Resolution

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14-14 states in pertinent part:

1. That, based upon the transmittals and the

representations of the Department of Housing and Human

Concerns and [Carr Development], the Council approves the

Project's preliminary plans and specifications, as submitted

to the Council on December 30, 2013, pursuant to Section

201H-38, HRS . . . provided that [Carr Development] shall

comply with all statutes, ordinances, charter provisions,

and rules of governmental agencies relating to planning,

zoning and construction standards for subdivisions,

development and improvement of land, and the construction of

units thereon, except for the exemptions specified in

Exhibit "2", attached hereto and made a part hereof[.]

(Emphasis added). In Exhibit 2, the Council granted certain

exemptions from the Maui County Code, including that "[a]n

exemption from Chapter 2.80B, MCC, General Plan and Community

Plans, shall be granted to permit the project to proceed without

obtaining a community plan amendment."

In Resolution 14-14, the Council only granted the

Project exemptions explicitly listed and made a part of

Resolution 14-14. None of the exemptions included in Resolution

14-14 relieve the Commission from having to make specific

findings on the Project's consistency with the Maui County

General and Community Plans prior to approving the SMA permit

application pursuant to HRS § 205A-26(2)(C).

HRS § 205A-26 sets forth mandatory guidelines governing

the implementation of the SMA use permit procedure by the

designated authority. HRS § 205A-26(2)(C) (2017)5 conditions the

5 HRS § 205A-26(2)(c):

§205A-26 Special management area guidelines. In

implementing this part, the authority shall adopt the

following guidelines for the review of developments proposed

in the special management area:

. . . . 

(2) No development shall be approved unless the

authority has first found:

. . . . 

(C) That the development is consistent with the

county general plan and zoning. Such a

finding of consistency does not preclude

concurrent processing where a general plan

or zoning amendment may also be required.

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approval of an SMA use permit on the designated authority's

finding that "[t]he development is consistent with the county

general plan and zoning." Accordingly, the county general plan,

and in this case the community plan,6 has "the force and effect

of law insofar as [HRS § 205A-26] requires that a development

within the SMA must be consistent with the general plan." GATRI

v. Blane, 88 Hawai#i 108, 114, 962 P.2d 367, 373 (1998).

Here, the Commission orally granted Carr Development's

SMA permit application at the June 24, 2014 public hearing. 

While the Project's exemption from obtaining a community plan

amendment was addressed at the hearing, the Commission did not

appear to make any specific findings as to the Project's

consistency with the West Maui Community Plan. On remand, we

note that the Commission is required under HRS § 205A-26(2)(C) to

make a specific finding on the Project's consistency with the

Maui County General and Community Plans before it may approve

Carr Development's SMA permit application. 

V. Conclusion

For the reasons discussed above, the circuit court

erred in affirming: (1) the Commissions oral denial of PPKAA's

petition to intervene; (2) the Commission's oral approval of Carr

Development's SMA Use Permit; and (3) the Commission's "Findings

of Fact, Conclusions of Law, and Decision and Order Relating to

Protect and Preserve Kahoma Ahupua'a Association, Michele

Lincoln, Mark and Linda Allen, Patrick and Naomi Guth, and

Constance B. Sutherland's Petition to Intervene." Therefore, the

Circuit Court of the Second Circuit's "Findings of Fact,

Conclusions of Law, and Order Denying Appeal" and "Final

6 At the time of the June 24, 2014 public hearing on PPKAA's petition

to intervene and Carr Development's SMA permit application, Maui County Code

§ 2.80B.030 provided in relevant part that the "community plans authorized in

this chapter are and shall be the general plan of the County, as provided by

section 8-8.5 of the charter." Maui County Code § 2.80B.030 (2013). 

Accordingly, in the County of Maui, the community plans are part of the

general plan, and similarly have the force and effect of law. See GATRI, 88

Hawai#i at 113 n.5, 962 P.2d at 372 n.5 (addressing a prior version of the

Maui County Code). 

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Judgment," both entered on June 19, 2015, are vacated. The case 

is remanded to the Maui Planning Commission for further

proceedings consistent with this Memorandum Opinion.

DATED: Honolulu, Hawai#i, September 14, 2020. 

On the briefs:

Lance D. Collins, 

for Protect and Preserve

Kahoma Ahupua#a Association, an

unincorporated association,

Michele Lincoln, Mark Allen,

Linda Allen, and Constance B.

Sutherland. 

Craig G. Nakamura,

Arsima A. Muller,

for Stanford Carr Development

LLC, a domestic limited

liability company.

Joinder on the answering

brief: 

Thomas Kolbe,

Caleb Rowe,

Deputies Corporation Counsel

Department of the Corporation

Counsel, 

for Maui Planning Commission,

County of Maui. 

Bianca K. Isaki, 

on the amicus curiae brief 

for Waipio Bay Benevolent

Association, LLC, and Malama

Kakanilua. 

/s/ Lisa M. Ginoza

Chief Judge

/s/ Keith K. Hiraoka

Associate Judge

/s/ Clyde J. Wadsworth

Associate Judge

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