Thursday, Nov. 30, 2023 |
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The Hawaii Supreme Court heard arguments Thursday over who has zoning jurisdiction on Maunakea.
In 2019, two Hilo residents, Ku‘ulei and Ahiena Kanahele, filed a petition with the Hawaii Land Use Commission arguing that the current use of the land on Maunakea’s summit is inconsistent with how the land is zoned.
They stated that because of the development on the summit by astronomical facilities, the area is now more consistent with land zoned for urban use rather than its current conservation zoning.
The petition requested that any further development on Maunakea must first obtain a district boundary amendment that would rezone the land as urban.
But the Land Use Commission concluded in 2019 that it has no jurisdiction over the matter, and only the Department of Land and Natural Resources can rule on the use of conservation land.
Following that verdict, the Kanaheles appealed the case to the Supreme Court, which heard oral arguments Thursday.
The Kanaheles’ lawyer, Lance Collins, said in his opening arguments that the commission’s reasoning for concluding it has no jurisdiction would have significant impacts on land management if extrapolated further.
“To accept the commission’s reasoning, no land in the agricultural, rural or urban districts could ever be redistricted if the counties had in any way granted any kind of approval for any parcel of land based upon the county’s zoning ordinances,” Collins said. “Such a reading results in an absurdity in the same way that the commission’s decision here frustrates the objectives and effectiveness of Hawaii’s land use scheme.”
Collins said that the Board of Land and Natural Resources has authority to govern land use within a conservation district, but the Land Use Commission is able to determine what use of land is appropriate for a given district.
But Deputy Attorney General Miranda Steed, representing the commission,argued that even if the BLNR approved the construction of a high-rise apartment complex within the conservation district, the commission would not have jurisdiction, because the matter should be properly opposed through a contested case hearing, which did not happen in the Kanaheles’ case.
Steed went on to say that the commission can do precisely what the Kanaheles requested, but only in response to a petition for a district boundary amendment, which also did not happen in the Kanaheles’ case.
Court justices were skeptical of Steed’s argument.
Justice Sabrina McKenna was incredulous that Steed’s interpretation of the law would leave average Hawaii citizens with no legal recourse against abusing land use regulations — she gave an example of the BLNR granting conservation district use permits to build wastewater treatment plants in the conservation district — other than mounting an expensive legal appeal.
Steed said that allowing the Land Use Commission to decide whether a BLNR decision is improper for the conservation district would equate to an “attack on the board,” to which Justice Michael Wilson took exception.
“Well, good!” Wilson said. “If it turns out that something’s being done that’s in violation of the law, it might be good to make that declaration!”
Collins also rebutted Steed’s argument, saying that the Kanaheles would have filed for a district boundary amendment if they actually wanted the Maunakea summit to be placed in the urban district. Instead, he said, a declaratory judgment by the commission is possibly the only full remedy the Kanaheles could seek.
Should the Supreme Court rule in favor of the Kanaheles, Collins said the matter would be remanded to the Land Use Commission, which would hold further proceedings on whether to grant the Kanaheles’ initial petition.
Email Michael Brestovansky at email@example.com.
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