No. SCAP-10-0000157, Wednesday, Feb. 22, 2012,  9 a.m.

DEPARTMENT OF ENVIRONMENTAL SERVICES, CITY AND COUNTY OF HONOLULU, Petitioner/Appellant-Appellant, vs. LAND USE COMMISSION, STATE OF HAWAI`I; COLLEEN HANABUSA; MAILE SHIMABUKURO; AND KO OLINA COMMUNITY ASSOCIATION, Respondents/Appellees-Appellees.

(Agency Appeal)

Attorneys for Petitioner/Appellant-Appellant: Robert Carson Godbey, Acting Corporation Counsel; Gary Y. Takeuchi, Sharon Lam Blanchard, and Dana Viola, Deputies Corporation Counsel

Attorneys for Respondent/Appellee-Appellee Land Use Commission: Russell Suzuki and Diane Erickson, Deputy Attorneys General

Attorney for Respondents/Appellees-Appellees Hanabusa, etc.: Richard Naiwieha Wurdeman

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale
417 South King Street
Honolulu, HI 96813

NOTE: Order accepting Application for Transfer, filed 08/01/11.

COURT: MER, CJ; PAN, SRA, JED, & SSM, JJ.

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Brief Description:

The Supreme Court accepted the application for transfer of Petitioner-Appellant Department of Environmental Services (DES), City and County of Honolulu, seeking review of the October 19, 2010 final judgment of the circuit court of the first circuit (circuit court) in support of its September 21, 2010 order, which affirmed the October 22, 2009 decision by Respondent-Appellee Land Use Commission (LUC).

DES applied for a special use permit (SUP) for a 92-acre expansion of the existing Waimanalo Gulch Sanitary Landfill (WGSL). The LUC, as the final agency with authority to approve, approve with modifications, or deny the proposed special use, approved the SUP subject to numerous conditions. The condition at issue, Condition No. 14, prohibits WGSL from accepting municipal solid waste (or any other waste besides ash and residue from H-POWER) after July 31, 2012. The LUC imposed Condition No. 14 despite its adoption of the findings of the Planning Commission of the City and County of Honolulu (Planning Commission), which clearly established the continuing need for WGSL as a depository for municipal solid waste and other special wastes beyond July 31, 2012.

Before the circuit court, DES argued that the imposition of Condition No. 14 was arbitrary, capricious, and unwarranted in light of the record that established, inter alia: (1)that WGSL is the only permitted landfill in the State; (2) that the period of identification and development of a new landfill site to either supplement or replace WGSL would take seven years; and (3) there will always be waste that cannot be combusted, recycled, reused or shipped. The circuit court summarily affirmed Condition No. 14.

The sole issue on appeal is whether the LUC abused its discretion when it imposed Condition No. 14. DES maintains the same arguments that it brought before the circuit court, and urges this court to set aside Condition No. 14 as “arbitrary, or capricious, or characterized by abuse of discretion or [a] clearly unwarranted exercise of discretion” pursuant to HRS § 91-14(g)(6).