No. SCAP-13-0000765 Thursday, May 21, 2015, 8:45 a.m.

THE SIERRA CLUB and SENATOR CLAYTON HEE, Petitioners/Appellants-Appellants, vs. CASTLE & COOKE HOMES HAWAII INC.; 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 was 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:

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

Attorneys for Respondent Castle & Cooke:

Benjamin M. Matsubara, Curtis T. Tabata, and Wyeth M. Matsubara

Attorneys for Respondent Land Use Commission:

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

Attorney for Respondent Dept. of Planning and Permitting:

Dawn Takeuchi Apuna, Deputy Corporation Counsel

NOTE: Certificate of Recusal, by Associate Justice Simeon R. Acoba, Jr., filed 01/14/14.

NOTE: Order assigning Circuit Court Judge R. Mark Browning, in place of Acoba, Jr., recused, filed 01/24/14.

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

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

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

In this case, Appellants Sierra Club and Senator Clayton Hee appeal from the Decision and Order of the Circuit Court of the First Circuit, which denied and dismissed their appeal from the Land Use Commission’s Findings of Fact, Conclusions of Law, and Decision and Order, which approved Appellee Castle & Cooke’s Petition for District Boundary Amendment. The Land Use Commission reclassified approximately 769 acres of Castle & Cooke’s land from the state agricultural land use district to the state urban land use district. The land is slated for development of Castle & Cooke’s Koa Ridge Makai and Waiawa projects.

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. They contend that, until the City and County of Honolulu’s Department of Planning and Permitting has submitted its designation of important agricultural lands on Oahu to the Land Use Commission, the Land Use Commission should not reclassify land that could potentially qualify as important agricultural lands.

Lastly, Appellants argue that the reclassification violated Hawai`i Administrative Rules § 15-15-77, focusing specifically upon subsection (6), which requires the Land Use Commission 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. . . .”