Alaloa v. Planning Commission of the County of Maui

Nos. 10078; 10079 (705 P.2d 1042) (Haw. August 23, 1985)

The court holds that Hawaii's coastal zone program, adopted pursuant to the Coastal Zone Management Act requires a county planning commission to determine whether a development project is consistent with the state Act's objectives before it issues a special management area permit. The court first reviews the commission's statutory mandate, which requires that a proposed development not have any substantial adverse environmental effects, that it be consistent with special management area guidelines, and that it comply with the county general plan. The court notes that the state coastal program allows a permit to be issued only if the commission finds no substantial adverse effects on recreational, historic, or scenic resources, or on coastal ecosystems, and that the objectives of the state Act are to protect, preserve, and restore natural and manmade historic resources in the coastal zone management area. The court then rules that the state program requires the commission to make specific findings that the proposed development will not adversely affect these resources. The court also rules that the commission's issuance of a conditional permit to the developer is an unlawful delegation of its duty to ensure that the coastal program's objectives are met, since any findings by the developer would be nonreviewable. Conditional permits may be appropriate when the condition involves approval by another government agency because such agencies would not be interested parties in the permit application. Finally, the court rules that the evidence in the record does not support the planning commission's conclusion that the proposed development will not have a significant impact on any historical or archaeological sites.

Counsel for Appellant
Isaac Hall
Legal Aid Society of Hawaii
2287 Main St., P.O. Box 368, Wailuku HI 96793
(808) 244-3731

Counsel for Appellee Planning Commission
Fred W. Rohlfing, Deputy Corp. Counsel
Planning Commission of County of Maui
208 S. High St., Wailuku HI 96793
(808) 244-7735

Counsel for Appellee Cam Molokai Associates
Jerry Michael Hiatt
Carlsmith, Wichman, Case, Mukai & Ichiki
Suite 2200, Pacific Tower, 1001 Bishop St., P.O. Box 656, Honolulu HI 96809
(808) 523-5000

Before LUM, C.J., and NAKAMURA, PADGETT, HAYASHI and WAKATSUKI, JJ.

[16 ELR 20393]

WAKATSUKI, Justice.

CAM Molokai Associates (CAM) applied for a special management area use permit (SMA permit) under the Coastal Zone Management Act (CZMA) to construct a 150-unit condominium project and related improvements near Kawakiunui Bay on Molokai. In conjunction with this development project, Kaluakoi Corporation (Kaluakoi) sought a SMA permit to develop a nearby beach park facility and access road. After contested case hearings and public hearings, the Maui Planning Commission granted both permits subject to a number of terms and conditions. The Second Circuit Court, in an appellate capacity, upheld the planning commission's decisions and orders.

Appellant Hui Alaloa contends that in both cases the planning commission committed numerous errors in contravention of the Coastal Zone Management Act, Hawaii Revised Statutes (HRS) Chapter 205A, and the Administrative Procedures Act (APA), HRS Chapter 91. Upon careful review of the entire record, we conclude that although the planning commission substantially complied with the CZMA and APA, it did err in one respect which requires reversal and vacation of the orders granting the SMA permits.

In 1977, the Legislature enacted the CZMA to provide for the effective planning, management, beneficial use, protection, and development of the coastal zones of our State. 1977 Hawaii Sess.Laws 396. In order to achieve these objectives, the legislature enacted a permit process to control the development of coastal areas designated as special management areas. HRS §§ 205A-21, 205A-22, 205A-23. No development is allowed within a special management area without a permit issued by the county's planning commission. HRS § 205A-28. The planning commission, in turn, cannot approve any development in an SMA unless it first finds:

(A) That the development will not have any substantial adverse environmental or ecological effect, except as such adverse effect is minimized to the extent practicable and clearly outweighed by public health, safety, or compelling public interests. Such adverse effects shall include, but not be limited to, the potential cumulative impact of individual developments, each one of which taken in itself might not have a substantial adverse effect, and the elimination of planning options; and

(B) That the development is consistent with the objecives, policies, and special managementarea guidelines of this chapter and any guidelines enacted by the legislature.

(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.

HRS § 205A-26(2).

HRS § 205A-2 sets forth the objectives and policies of the coastal zone management program which relate to recreational resources, historic resources, scenic and open space resources, coastal ecosystems, economic uses, coastal hazards and managing development.

As to historic resources, the objective of the CZMA is to "[p]rotect, preserve, and where desirable, restore those natural and man-made historic and pre-historic resources in the coastal zone management area that are significant in Hawaiian and American history and culture." HRS § 205A-2(b)(2)(A). Policies of the CZMA are to identify and analyze significant archaeological resources; maximize information retention through preservation of remains and artifacts or salvage operations; and support State goals for protection, restoration, interpretation, and display of historic resources. HRS § 205A-2(c)(2)(A)-(C).

The planning commission, in order to comply with the CZMA mandate, is required to make findings that the proposed development projects are consistent with these policies and objectives. Surface archaeological surveys prepared for CAM and Kaluakoi were presented to the planning commission. Additionally, testimony was given on behalf of all the parties. (Decision and Order 80/SMA-24 (hereinafter [16 ELR 20394] D & O, CAM) PP50-55; Decision and Order 80/SMA-23 (hereinafter D & O, Kaluakoi) PP53-56). The planning commission granted permits to CAM and Kaluakoi conditioned upon retention of a qualified archaeologist to conduct a further survey and excavation of the area, and to "prepare a written report to maximize information retention through preservation or salvage of significant archaeological sites and to provide a plan for protecting, restoring, interpreting, and displaying historical resources either preserved on or salvaged from the subject areas." (D & O, CAM PP56(a)(iii) and (iv); D & O, Kaluakoi) PP56(a)(i) and (ii).) Under D & O, CAM P56(a)(iii), CAM's archaeologist is to determine the significance of various archaeological sites. In addition, CAM and Kaluakoi are required to "eliminate all grading or construction impact on any significant archaeological sites prior to salvage and preservation." (D & O, CAM P56(d); D & O, Kaluakoi P56(d)).

In view of the conditioned permits granted by the planning commission relative to the historical and archaeological resources of the areas, we fail to see how the planning commission concluded that the developments are consistent with the objectives of protecting and preserving historic and pre-historic resources. We emphasize that the CZMA mandates that this finding must first be made before a SMA permit can be issued. See Mahuiki v. Planning Commission, 65 Haw. 506, 654 P.2d 874 (1982).

We hold that imposing these self-serving conditions without requiring a hearing to review the additional study and survey by the commission is in error. The determination whether the development compolies with the policies and objectives of the CZMA regarding historical and archaeological significance was, in essence, left to the applicants contrary to the statutory command governing the issuance of SMA permits. The statute clearly mandates the planning commission to make such determinations prior to the issuance of a SMA permit.

II.

This unlawful delegation of duty is different from other conditions requiring the applicants to obtain approval from other government agencies such as the state department of health and county department of public works. Those agencies are not interested parties to the permit application. They have the expertise and objective criteria for granting or denying approval of the plans and construction of the development. Furthermore, state and county agencies are required to help enforce and implement CZMA by assuring that proposed development projects requiring permits or approvals are consistent with the objectives and policies of CZMA. HRS § 205A-5. On the other hand, the applicants are not bound by such requirements.

The planning commission can, and apparently did find that approval by these agencies would ensure compliance with the CZMA.

III.

We conclude that the evidence in the record is insufficient to support the planning commission's conclusion that the development will have no significant impact on any historical or archaeological sites.

We hold that all other contentions raised by Appellant in the appeals are without merit.

The granting of the permits is vacated and both cases are remanded for proceedings not inconsistent with this opinion.