Mala Wharf Remand: On July 28, the Intermediate Court of Appeals issued an order remanding to the 2nd Circuit Court a case involving the Board of Land and Natural Resources’ denial of a contested case hearing to groups and individuals that had sought to challenge the award of permits to commercial companies using Mala Wharf, on the west side of Maui. In October 2021, the BLNR denied their request for a contested case. Judge Peter Cahill of the 2nd Circuit Court upheld the BLNR’s actions.
The permit renewals expired on October 31, 2022, but the ICA still took up the case under exceptions to the mootness doctrine, determining that the matter at issue was “capable of repetition, yet evading review” and involved the public interest.
The appellants – Ka Malu o Kahālāwai, Nā Papaʻi Waiwae ʻUlaʻula, Kekai Keahi, and Kai Nishiki – had asked the ICA to void the companies’ permits and require the BLNR to hold a contested-case hearing on any reissuance of the permits.
But the ICA denied this, stating that first, the only matter before it was whether the Circuit Court erred in its decision. “Additionally,” the ICA wrote, “it appears that the permit renewals … expired on or about October 31, 2022. Although we have decided this appeal based on exceptions to the mootness doctrine, Appellants’ request that we remand to BLNR for a contested case hearing on the expired renewals still appears to be moot.”
In reviewing the lower court’s order, the ICA determined that Judge Cahill had erred in agreeing, with the BLNR, that the “attempt to secure a contested-case hearing is in fact an attempt to raise a policy-based challenge” to administrative rules and not subject to a contested case. But, the ICA noted, “Whether a contested case proceeding is the ‘appropriate procedural mechanism’ … is not the applicable test for determining whether a party has a constitutional due process right to a contested case hearing.”
With that, the ICA remanded the case to the Circuit Court “to determine what, if any, relief is available to Appellants in these circumstances.”
For background, see “Petitioners Allege Rights Infringement by Commercial Users at Mala Wharf,” Environment Hawaiʻi, April 2022.
Marconi Hearing: On August 29 at 9 a.m., U.S. District Judge Jill A. Otake will hold a hearing on a motion by the City & County of Honolulu and its Department of Planning and Permitting for summary judgment in a case brought two years ago by companies owned by the developer of the Marconi Point Condominiums on Oʻahu’s North Shore.
Early on, Judge Otake dismissed the companies’ claims surrounding building permits and a roadway subdivision that they argued should have been granted without having to secure or apply for a Special Management Area permit. The 96-acre project lies entirely within the SMA.
Then in May, Judge Otake supported a magistrate judge’s order denying the companies’ request to amend their complaint for a third time to re-allege their building permit claims. (In their second amended complaint, they re-alleged their roadway subdivision application claims.)
The companies argue that their February 14, 2020, agricultural subdivision application was automatically approved. The city, however, argues that they failed to meet tentative approval requirements before the application expired.
A trial date has been set for December 1, but the city argued in a July 21 filing that the companies’ “theory of the case” has proved to be baseless.
“They alleged a convoluted theory that DPP only required that plaintiffs apply for a Special Management Area permit due to influence exerted by plaintiffs’ former consultant William Wong. Their theory that Wong sabotaged plaintiffs’ subdivision applications disappeared in plaintiffs’ Opposition and Counter-Concise Statement of Facts.
“Plaintiffs are left with the reality that DPP simply exercised its discretion to require an SMA permit in light of potential cumulative impacts to the natural and cultural resources on plaintiffs’ unique property. Their opposition fails to create any genuine dispute that plaintiffs do not have a legal injury, do not have ripe claims, nor establish a prima facie case for their claims,” the city wrote.
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