Tuesday, May 1, 2012

State Land Use Commission Does Not Have Authority to Review County Land Use Decisions

In Kuleana Ku‘ikahi, LLC v. State, Land Use Commission, plaintiffs challenged the County of Maui's approval of a certain subdivision and subdivision uses. Plaintiffs filed a declaratory order with the State Land Use Commission (LUC), which challenged the County's compliance with state land use laws under HRS Chapter 205.

Kauaula Land Company, LLC (KLC) projects include
Pu’unoa Subdivision, Phases I & II with a total of 28 agricultural lots
ranging in size from 5 to 37 acres in west Maui.
The LUC declined to use such expansive authority and the circuit court agreed. The Intermediate Court of Appeals affirmed the circuit court's decision. In pertinent part, the court reasoned as follows:
[U]nder HRS § 205-12 (2001 Repl.) the counties, not LUC, are charged with enforcing use classification districts. HRS § 205-12 provides that "[t]he appropriate officer or agency charged with the administration of county zoning laws shall enforce within each county the use classification districts adopted by the land use commission and the restriction on use and the condition relating to agricultural districts under section 205-4.5[.]"
The counties were clearly granted the power to enforce and regulate zoning. Kuleana cites to no authority that would give LUC the power to oversee county zoning and regulations. . . . LUC simply does not have the authority to approve or condemn county actions[.]
The court further noted that for the LUC to have jurisdiction over land use issues, the matter must be before them for consideration pursuant to a permit or approval under their jurisdiction, which the court discussed as follows:
While it is true that HRS § 205-17 requires LUC to take into account the preservation or maintenance of cultural historical or natural resources, HRS § 205-17 governs LUC's review of a petition for reclassification of district boundaries. A district boundary amendment from LUC was never sought and . . . an amendment was not needed because the proposed use of the Subdivisions' lots was for agricultural purposes.
Finally, the court also addressed the LUC's authority to review County actions--In short, the LUC does not have that authority. In particular, the plaintiffs wanted the court to require the LUC to review the County's subdivision decision in light of its constitutional duty to protect native Hawaiian rights and natural resources. To this question, the court reasoned as follows:
County of Maui gave final approval for phases I and II of the Subdivisions, respectively. Any question as to the Subdivisions' effect on Native Hawaiian rights or natural resources under the constitution was impliedly answered when County of Maui approved the Subdivisions. Thus, by seeking a declaratory ruling from LUC under HRS § 91-8 as to the constitutional implications of the Subdivisions, Kuleana is essentially seeking review of County of Maui's approval of the Subdivisions.
The court explicitly held that "[w]ithout the need for a district boundary amendment, the jurisdiction to enforce use classification districts and their restrictions resides with the counties under HRS § 205-12."

The court leaves open the question of the LUC's authority to enforce conditions of a district boundary amendment approval imposed by the LUC through the order to show cause provisions under HRS § 205-4(g).  This issue may be clarified on appeal of the Bridge Aina Lea case.  Procedural standing in that state/federal case is summarized in this pleading posted at inversecondemnation.com.

For more on Hawaii's land use law, HRS ch. 205, visit our archives.

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