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Oral Argument Before the Hawaii Supreme Court

No. SCAP-13-0002266, Thursday, June 25, 2015, 8:45 a.m.

THE SIERRA CLUB and SENATOR CLAYTON HEE, Petitioners/Appellants-Appellants, vs. D.R. HORTON-SCHULER HOMES, LLC, a Delaware limited liability company, d.b.a. D.R. HORTON-SCHULER DIVISION; THE LAND USE COMMISSION OF THE STATE OF HAWAI`I; OFFICE OF PLANNING, STATE OF HAWAI`I; DEPARTMENT OF PLANNING AND PERMITTING, Respondents/Appellees-Appellees.

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

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorneys for Petitioners Sierra Club and Hee:

Eric A. Seitz, Della A. Belatti, and Sarah R. Devine

Attorneys for Respondent Office of Planning:

Bryan C. Yee and Deborah Day Emerson, Deputy Attorneys General

Attorney for Respondent Dept. of Planning & Permitting:

Dawn Takeuchi Apuna, Deputy Corporation Counsel

Attorneys for Respondent D.R. Horton-Schuler Homes:

Gregory W. Kugle and Matthew T. Evans

Attorneys for Respondent Land Use Commission:

Russell A. Suzuki, First Deputy Attorney General; Patricia Ohara, and Diane Erickson, Deputy Attorneys General

NOTE: Certificate of Recusal, by Associate Justice Simeon R. Acoba, Jr., filed 02/28/14.

NOTE: Order assigning Circuit Court Judge Gary W.B. Chang, in place of Acoba, J., recused, filed 03/19/14.

NOTE: Order granting in part Application for Transfer, filed 04/02/14.

COURT: MER, CJ; PAN, SSM, and RWP, JJ., and Circuit Court Judge Gary W.B. Chang, in place of Acoba, J., recused.

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Brief Description:

In this case, Appellants Sierra Club and Clayton Hee appeal from the Decision and Order of the Circuit Court of the First Circuit, which dismissed their appeal from the Land Use Commission’s (“LUC”) Findings of Fact, Conclusions of Law, and Decision and Order, which approved Appellee D.R. Horton-Schuler Homes’ Petition for District Boundary Amendment (as amended). The LUC reclassified approximately 1525.516 acres of Appellee’s land from the state agricultural land use district to the state urban land use district. The land is slated for development of the Ho`opili project.

Appellants argue that the reclassification violated Article XI, Section 3 of the Hawai`i State Constitution, which provides the following:

The State shall conserve and protect agricultural lands, promote diversified agriculture, increase agricultural self-sufficiency and assure the availability of agriculturally suitable lands. The legislature shall provide standards and criteria to accomplish the foregoing.

Lands identified by the State as important agricultural lands needed to fulfill the purposes above shall not be reclassified by the State or rezoned by its political subdivisions without meeting the standards and criteria established by the legislature and approved by a two-thirds vote of the body responsible for the reclassification or rezoning action.

Appellants also argue that the reclassification violated Act 183, HRS § 205-41 through -52, which are the statutory provisions implementing Article XI, Section 3’s mandate, and which govern land use on important agricultural lands (“IALs”). They contend that the LUC should not reclassify lands that could potentially qualify as IALs until the City and County of Honolulu has completed the formal process of identifying Oahu’s IALs.

Lastly, Appellants argue that the reclassification violated Hawai`i Administrative Rules (“HAR”) § 15-15-77, which requires conformance to the Hawai`i State Plan. They also contend that the reclassification violated HAR § 15-15-77-(6), which requires the LUC to consider whether taking land in “intensive agricultural use for two years prior to the date of a filing of a petition [for a district boundary amendment] or lands with a high capacity for intensive agricultural use” out of the agricultural district “[w]ill not substantially impair actual or potential agricultural production in the vicinity of the subject property or in the county of State; or . . . [i]s reasonably necessary for urban growth. . . .”