Hawaii Supreme Court Remands Landfill Decision to State Land Use Commission based on Unsubstantiated Closure Date Requirement

Today, the Hawaii Supreme Court handed down its decision in Department of Environmental Services (DES) v. Land Use Commission (LUC).

This case arises from the 2008 application of DES for a special use permit (SUP) to expand the existing Waimanalo Gulch Sanitary Landfill (WGSL). The LUC approved the SUP subject to, inter alia, a condition prohibiting WGSL from accepting municipal solid waste or any other waste besides ash and residue from H-POWER after July 31, 2012.

Figure 5-1
State Land Use District Map, EISPN 2006.

The Court acknowledged the authority of the LUC to impose restrictive conditions on its approval of special use permits; however, it held that Condition 14 was inconsistent with the evidence shown in the record and not supported by substantial evidence.  Because the LUC’s approval of the SUP was expressly given “subject to” the LUC’s imposition of Condition 14 (the condition was "material to the LUC’s approval"), the Court vacated the circuit court’s judgment affirming the LUC’s approval of the SUP, and remanded the matter to the circuit court with instructions that the circuit court remand this matter to the LUC for further proceedings consistent with the opinion.

Under HRS § 205-6, the process for reviewing an SUP for activities on state designated agricultural lands greater than 15 acres is a two step process.  First, the county planning commission (PC) where the property is located takes in evidence regarding the permit, then issues a findings of fact, conclusions of law, and decision and order (D&O) granting the SUP with conditions or denying the SUP.  In this case, a D&O was issued granting the SUP with conditions.  Second, the record from the county PC is sent up to the LUC for their approval.  At the LUC, the whole process basically starts again but is primarily based on the PC's record and D&O.

In this case, the LUC expressly adopted the PC's D&O.  In the Court's opinion, however, the PC's D&O did not support the restriction in Condition 14 imposing a termination date of July 31, 2012 for the deposit of municipal solid waste at WGSL.  To the contrary, the court opined, "the Planning Commission’s Findings of Fact clearly demonstrate the continuing need to dispose of municipal solid waste at WGSL beyond July 31, 2012."

An interesting procedural question of first impression for the Court was the appropriate standard of review relating to the following issue: "whether a restrictive condition (Condition 14) imposed by decision or order of the agency (LUC) is supported by substantial evidence."  Turning to the Administrative Procedure Act, the Court cited 5 U.S.C. § 706(2)(E), which provides, in pertinent part: "The reviewing court shall . . . (2) hold unlawful and set aside agency action, findings, and conclusions found to be . . . (E) unsupported by substantial evidence[.]"  Applying this rule, the court concluded: "the relevant question is whether the LUC would have reached the same conclusion (approving SUP-2) without its imposition of Condition 14. Based on the record, we cannot so conclude. Thus, we remand to the LUC for further hearings as the LUC may deem appropriate."