Kanahele v. Maui Cnty. Council & Cnty. of Maui

• Decision Date: 08 August 2013
• Docket Number: No. SCWC–29649.,SCWC–29649.
• Citation: 130 Hawai'i 228,307 P.3d 1174
• Parties: Daniel K. KANAHELE, Warren S. Blum, Lisa Buchanan, James L. Conniff, and Cambria Moss, Petitioners/Plaintiffs–Appellants, v. MAUI COUNTY COUNCIL and County Of Maui, Respondents/Defendants–Appellees, and Honua‘ula Partners, LLC, Respondent/Defendant–Intervenor–Appellee.
• Court: Hawaii Supreme Court

130 Hawai'i 228

307 P.3d 1174

Daniel K. KANAHELE, Warren S. Blum, Lisa Buchanan, James L. Conniff, and Cambria Moss, Petitioners/Plaintiffs–Appellants,

v. MAUI COUNTY COUNCIL and County Of Maui, Respondents/Defendants–Appellees,andHonua‘ula Partners, LLC, Respondent/Defendant–Intervenor–Appellee.

No. SCWC–29649.

Supreme Court of Hawai‘i.

Aug. 8, 2013.

As Corrected Aug. 30, 2013.

Lance D. Collins for petitioner.

Mary Blaine Johnston for respondents Maui County Council and County of Maui.

Jonathan H. Steiner, Honolulu, for respondent Honua'ula Partners, LLC.

RECKTENWALD, C.J., NAKAYAMA, ACOBA, McKENNA, and POLLACK, JJ.

Opinion of the Court by POLLACK, J.

Petitioners/Plaintiffs–Appellants Daniel K. Kanahele, Warren S. Blum, Lisa Buchanan, James L. Conniff, and Cambria Moss (collectively " Petitioners") seek review of the October 19, 2012 Judgment on Appeal of the Intermediate Court of Appeals (ICA),¹ filed pursuant to its June 29, 2012 Summary Disposition Order, affirming the January 22, 2009 judgment entered by the Circuit Court of the Second Circuit (circuit court)² in favor of Respondents/Defendants–Appellees Maui County Council (MCC) and the County of Maui and Respondent/Defendant–Intervenor–Appellee Honua‘ula Partners, LLC (Honua‘ula), and against Petitioners.

Petitioners, who are residents of Maui, filed this appeal based on the MCC's passage of two bills related to the development of a residential community on 670 acres of land located in Wailea, Maui (Wailea 670 project). The Wailea 670 project consists of developing a golf course, single- and multifamily residences, recreation and open spaces, and village mixed-use sub-districts. Honua‘ula is the owner and developer of the land in question. The MCC and its committee, the Land Use Committee (LUC), passed two bills (Wailea 670 bills) in connection with the Wailea 670 project. Petitioners filed suit in the circuit court challenging this passage, arguing that the MCC and LUC failed to satisfy the requirements of the State open meetings law, Hawai‘i Revised Statutes (HRS) Chapter 92, Part I, commonly known as the "Sunshine Law."

I. BACKGROUND

The Wailea 670 project has been in the planning stages since 1986. The LUC's first public meeting on the project took place in February 2002, followed by meetings in January (site visit), March, June, July and October of 2006 and January, March, July, September, October and November of 2007. At issue in this case is the series of thirteen LUC meetings convened between October 18, 2007 and November 20, 2007, when the LUC passed the Wailea 670 bills for consideration by the MCC, as well as the four meetings held by the MCC in February and March 2008, prior to the MCC's final passage of the bills on March 18, 2008.

A. LUC and MCC meetings

1. October 18, 2007 meeting

On October 11, 2007, the LUC filed a "Meeting Agenda" with the Office of the County Clerk for a meeting to take place on October 18, 2007 at 9:00 a.m. The agenda identified the subject matter of the meeting as "LU–38 CHANGE IN ZONING AND PROJECT DISTRICT PHASE I APPROVAL FOR ‘HONUA'ULA/WAILEA 670’ RESIDENTIAL DEVELOPMENT." The agenda provided that the LUC was in receipt of two proposed bills that it would be considering; one bill would repeal Chapter 19.90 of the Maui County Code and establish a new Chapter 19.90A (Project District bill) and the second bill would repeal Ordinance No. 2171 (1992) and establish conditional zoning for the 670 acres of land involved in the project (Change in Zoning bill). The agenda also stated that oral or written testimony on any agenda item would be accepted.

The minutes for the October 18 meeting reflect that forty people attended the meeting, in addition to the LUC members, staff and certain named individuals.³ Approximately twenty-eight people testified at the meeting, including Petitioners Conniff and Kanahele. Each person was given approximately four minutes to speak.

The LUC closed the public testimony portion of the meeting after everyone who had submitted requests to testify had done so. The LUC began deliberating at 2:40 p.m. At 4:55 p.m., LUC Chair Michael J. Molina announced "This meeting for October 18th, 2007, related to LU–38 is in recess until Monday morning, October 22nd, 9:00 a.m., here in the Council chambers."

No new agenda was posted for the October 22 reconvened meeting. There is nothing in the record indicating that the date and time of the continued hearing was posted at the Council's chambers or at any other location.

The October 22, 2007 reconvened meeting began at 9:07 a.m. The record does not reflect any discussion among the LUC members regarding whether the public had been given any notice of the meeting aside from the oral announcement at the conclusion of the prior meeting. At the beginning of the meeting, Chair Molina announced that the board would take a break at 1:00 p.m. and "come back a little later in the afternoon," at around 3:30 p.m. because "we have some Members that have to leave for some prior commitments." Chair Molina continued, "For the public's information, this is an off-week and Members do make prior commitments to address other matters in our community.... And, so, that is why today ... we have some what [sic] of an unusual schedule and how we will proceed."

The meeting was recessed at 12:51 p.m. and then reconvened again at 3:50 p.m. Chair Molina explained that although the plan had been to meet until 5 p.m. that day, the LUC only had a "bare quorum" present and therefore it was his opinion that it would be better to reconvene at another date and time.⁴ He announced, "So, with that being said, this meeting is in recess until tomorrow, Tuesday, October 23rd, 9:00 a.m., right here in the Council Chambers." The meeting was recessed at 3:53 p.m.

The meeting, which had been initially noticed for October 18, 2007, was reconvened and then continued successively in the same manner on October 23, 25, 29, November 1, 5, 7, 8, 13, 16, 19, and 20. Thus the October 18 meeting was continued and reconvened twelve times until the final meeting on November 20. The circuit court entered a finding that each meeting was reconvened "due to time constraints or the loss of quorum."

During this time that the LUC reconvened twelve meetings, the LUC met twice, on October 31, 2007 and November 14, 2007, in order to consider unrelated permit applications. The LUC posted agendas for both meetings.

For the Wailea 670 bills, no new agendas were posted for the twelve reconvened meetings. At the end of each meeting, the LUC would announce the new date, time and place for the reconvened meeting. There is no indication in the record that the LUC gave any other form of public notice for the meetings.

The LUC employed two criteria in determining when to schedule the next continued meeting; the availability of the committee members, and the LUC's belief, expressed on at least three separate occasions, that the continuance was required to be held within five days.⁵ The result was that the continued meetings were scheduled in an unpredictable manner.⁶ Meetings were scheduled in the mornings, afternoons, and evenings and varied significantly in length. in addition, many meetings were scheduled back-to-back, or only one or two days hence.

The transcripts of the meetings do not reflect any discussion or consideration of whether the continued date and time would be convenient or reasonable for the public to attend.

The circuit court found that during the twelve reconvened meetings, "the LUC considered reports and other documents and information related to the Wailea 670 Bills." The circuit court found that "[t]he deliberation process from October 22 through November 20, 2007 encompassed over 45 hours of deliberation by the LUC as part of the decision making process." (Emphasis added).

After October 18, 2007, no further oral testimony from the public was received by the LUC. With the exception of two meetings (November 13 and 16), the LUC members sought and received extensive input from Mr. Jencks, Honua‘ula's representative. Mr. Jencks was present at every reconvened meeting.

At the conclusion of the final reconvened meeting on November 20, 2007, the LUC approved the Wailea 670 bills and forwarded them to the MCC for formal consideration. The LUC prepared a report to the MCC and recommended that the MCC pass the Wailea 670 bills on first reading.

2. February 8, 2008 meeting

The agenda for the MCC meeting of February 8, 2008, listing the first reading of the Wailea 670 bills as an agenda item, was filed with the County Clerk's office on February 1, 2008.

Prior to the February 8 meeting, MCC Chair Riki Hokama distributed three memoranda, all dated February 7, 2008, to the other MCC members. The first memorandum detailed floor amendments relating to the wastewater component of the Change in Zoning bill that Hokama intended to propose at the February 8 meeting. Hokama explained the substance of the proposed amendments and detailed the language that he proposed to add to, or delete from, the bill.

Chair Hokama's second memorandum detailed two proposed amendments, also related to the water component of the Change in Zoning bill, which would require Honua‘ula to offer the County the right to purchase the water system it develops at the cost of development, and also require that the water rates for the residential workforce housing units be no higher than the water rates set by the County.

His third memorandum detailed a proposed amendment to clarify that the maximum number of dwelling units referenced in the Project District bill includes any offsite residential workforce housing units. All three memoranda concluded, "I would appreciate your favorable consideration of these proposed floor amendments. Should you have any questions, please contact me or the Committee staff[.]" The names and extension numbers of two staff members were also included.

Member Michelle Anderson also sent a memorandum dated February 8, 2008, to Chair Hokama and the other MCC...