The Sierra Club v. Castle and Cooke Homes Hawaii, Inc.

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Electronically Filed
Supreme Court
SCAP-13-0000765
06-APR-2016
07:45 AM
SCAP-13-0000765
IN THE SUPREME COURT OF THE STATE OF HAWAII
THE SIERRA CLUB and SENATOR CLAYTON HEE,
Petitioners/Appellants-Appellants,
vs.
CASTLE & COOKE HOMES HAWAII 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.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CAAP-13-0000765; CIV. NO. 12-1-1999)
MEMORANDUM OPINION
(By: Recktenwald, C.J., Nakayama, and McKenna, JJ., and Circuit
Judge Browning, in place of Acoba, J., recused;
and Pollack, J., dissenting)
I. Introduction
In this appeal, Appellants Sierra Club and Senator Clayton
Hee oppose the Land Use Commission’s (“LUC”) reclassification of
approximately 767.649 acres of Appellee Castle & Cooke Homes
Hawaii, Inc.’s (“Castle & Cooke”) land from the state
agricultural land use district to the state urban land use
district. The land is slated for development of Castle &
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Cooke’s Koa Ridge Makai and Waiawa projects. Appellants sought
review of the LUC’s decision by the Circuit Court of the First
Circuit (“circuit court”),1 which dismissed their appeal.
Appellants raise the following points of error:
1. The trial court erred by refusing to uphold the
requirements of Article XI, Section 3, of the Hawaii State
Constitution.
2. The decision of the State Court to uphold the
Findings of Fact, Conclusions of Law and Decision and Order
of the Land Use Commission is in violation of Act 183, HRS
§[§] 205[-]41-52.
3. The decision of the State Court to uphold the
Findings of Fact, Conclusions of Law and Decision and Order
of the Land Use [C]omission is in violation of HAR § 15-15-
77.
Although there are three points of error, Appellants essentially
make two points. First, they argue that the LUC should be
required to “stay” the reclassification of the potentially
important agricultural land at issue pending formal designation
of Important Agricultural Lands (“IALs”) in each county,2
pursuant to the intent behind Article XI, Section 3 of the
Hawaii Constitution, as implemented by Act 183 (points of error
one and two). Second, they argue that the circuit court should
have ruled that the LUC improperly weighed the evidence
supporting its findings that the reclassification (1) would not
substantially impair agricultural production, and (2) was
1
The Honorable Rhonda A. Nishimura presided.
2
Act 183 directed the counties to formally identify IALs, then submit
IAL land maps to the county councils for decision-making. The county
councils then transmit the maps to the LUC, which then finally designates
IALs. See Hawaii Revised Statutes (“HRS”) §§ 205-47(a), (e), -48, and -
49(a)(Supp. 2005). To date, formal IAL designation has not been completed.
See Sierra Club v. D.R. Horton-Schuler Homes, 2015 WL 9306955, *14 (2015);
see also http://mapoahuagland.com/about/faq (last visited Apr. 5, 2016).
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reasonably necessary for urban growth, pursuant to Hawaii
Administrative Rules (“HAR”) § 15-15-77(b)(6) (effective 2000-
2013) (point of error three). HAR § 15-15-77(b)(6) requires the
LUC to “specifically consider” the following when reclassifying
agricultural land:
Lands in intensive agricultural use for two years prior to
date of filing of a petition or lands with a high capacity
for intensive agricultural use shall not be taken out of
the agricultural district unless the commissions finds
either that the action:
(A) Will not substantially impair actual or potential
agricultural production in the vicinity of the subject
property or in the county or State; or
(B) Is reasonably necessary for urban growth.
We affirm the circuit court’s decision and order, which
affirmed the LUC’s decision and order, and which dismissed
Appellants’ appeal. This court has already recently held that,
pursuant to Save Sunset Beach Coalition v. City & County of
Honolulu, 102 Hawaii 465, 476, 78 P.3d 1, 12 (2003), Article XI,
Section 3, standing alone, is not self-executing, and its
constitutional history as well as the legislative history of Act
183 do not reveal an intent to require the LUC to delay
reclassifying agricultural land pending formal designation of
IALs. See Sierra Club, 2015 WL 9306955, *1. Therefore, this
opinion does not further address Appellants’ first and second
points of error; rather, this opinion focuses on Appellants’
third point of error, whether the reclassification violated HAR
§ 15-15-77(b)(6). As to that point of error, we conclude that
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substantial evidence supported the LUC’s findings that the
reclassification of the land at issue in this case satisfied HAR
§ 15-15-77(b)(6). The evidence in support of these findings was
adduced through Castle & Cooke’s witnesses, whose expertise and
credibility the Appellants did not challenge.
II. Background
A. Land Use Commission Proceedings
1. Castle & Cooke’s Petition
On October 3, 2011, Castle & Cooke filed a Petition for
Land Use District Boundary Amendment (“Petition”) before the
LUC. Castle & Cooke sought to reclassify approximately 767.649
acres of land at Waipio and Waiawa, on the island of Oahu, from
the agricultural district to urban district to develop the Koa
Ridge Makai and Waiawa Project (the “Project”).
Castle & Cooke described the Koa Ridge Makai portion of the
Project as follows:
Koa Ridge Makai is planned to consist of approximately
3,500 residential dwelling units comprised of a mix of
single-family and multi-family residential units, light
industrial, commercial and community uses. A mixed-use
“Village Center” is planned to include a health care
component, residential, commercial, and community center.
Parks and open space are also planned throughout Koa Ridge
Makai, together with churches, recreational centers, and
schools.
Castle & Cooke described the Waiawa portion of the project as
consisting of “approximately 1,500 residential units comprised
of a mix of single-family and multi-family residential units, a
community center with neighborhood retail, a neighborhood park,
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and an elementary school. Parks and open space are also planned
throughout Waiawa.” According to its Incremental Development
Plans, Castle & Cooke plans to develop Koa Ridge Makai first,
then Waiawa.3 The Project lands are located within the Urban
Community Boundary (“UCB”) of the Central Oahu Sustainable
Communities Plan (“CO SCP”). According to the Final
Environmental Impact Statement prepared for the Project, the CO
SCP focuses “future residential development on master planned
suburban communities within” the UCB. The UCB “was established
to provide long-range protection from urbanization for 10,500
acres of prime and unique agricultural lands and for
preservation of open space, while providing adequate land for
residential, commercial and industrial uses needed in Central
Oahu for the foreseeable future.”
2. Other Parties and Intervenors to the Petition
Proceedings
As the district boundary petition involved land areas
greater than 15 acres, pursuant to HRS § 205-4(e)(1) (Supp.
2005), “the office of planning[] and the county planning
department” were mandated to appear as parties to “make
recommendations relative to the proposed boundary change.” The
Office of Planning (“OP”) and the City and County of Honolulu
3
Under HAR § 15-15-78 (effective 2000-2013), the LUC can reclassify
lands incrementally if “full development of the subject property cannot
substantially be completed within ten years after the date of” the LUC’s
approval.
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Department of Planning and Permitting (“DPP”) generally
supported the Petition. The LUC granted the Sierra Club’s and
Senator Clayton Hee’s petitions to intervene. They opposed the
Petition and sought to protect the Project lands from
urbanization.
3. Evidence Presented at the LUC Hearings on the
Petition
The LUC held three evidentiary hearings on the Petition in
early 2012. Relevant to the issues on appeal, the several
individuals testified, and their testimony is summarized below.
a. Testimony of Ann Bouslog
Castle & Cooke called Ann Bouslog, an expert in the fields
of real estate, market assessment and economic impacts. She
testified that the Project was necessary for urban growth in the
region as follows: “Oahu has an acute shortage of housing
suitable for primary residents. . . . And this shortfall is
expected to increase in the coming decades. Even with complete
buildout of all identified planned and entitled units as of late
last year, Oahu could be short some 30,000 units of primary
housing by the year 2030.” Bouslog projected that there would
be a shortage of “at least 6500” homes “in Central Oahu based on
DPP’s own 2009 projections. . . .” She testified that Central
Oahu is a popular residential location and projected that all
5000 of the Project’s homes would be bought between 2023 and
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2026. When offered the chance to cross-examine Bouslog, the
Appellants’ attorney stated, “No questions for this witness.”
b. Testimony of Bruce Plasch
Castle & Cooke also called Bruce Plasch, an expert in
agriculture and economic assessment. He testified that the
contraction of plantation agriculture released 177,000 acres for
diversified agriculture by January 2010, with about 15,000 acres
still available on Oahu. 2,500 acres were in upper Kunia, 8,500
acres were on the North Shore, over 2,700 acres were near
Kahuku, and about 1,700 acres were scattered throughout Oahu.
According to Plasch, “most of these lands have soil ratings,
solar radiation, and access to irrigation water similar to Koa
Ridge Makai and Castle & Cooke Waiawa.” Plasch testified that
42,600 acres of land on Oahu is of high-quality outside the
City’s urban growth boundaries. Of that land, only 12,000 acres
was being farmed in 2010, leaving nearly 30,000 acres available
for diversified agriculture. To farm these lands, which were
once irrigated, Plasch testified, water infrastructure would
need to be improved. Plasch also testified that the current
agricultural tenants on the Project lands, Aloun Farms and
Flying R Livestock Company, both secured replacement lands.
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c. Aloun Farms’ Letter of Support for the
Petition
Aloun Farms’ Principals, Alec and Mike Sou, submitted a
letter in support of the Petition; it stated that their 335-acre
replacement lands4 have “productive soils, a reliable source of
water and existing irrigation systems which will support the
cultivation of [Aloun Farms’] variety of crops.”
d. Testimony of Hector Valenzuela
The Appellants submitted into evidence the written
testimony of Hector Valenzuela, a University of Hawaii professor
and vegetable crop extension specialist. He did not support the
Petition because it “would represent a permanent loss to Oahu
and to the state of a substantial portion of the previous
remaining prime agricultural land available for diversified
agricultural production.”
4. The LUC’s Findings of Fact, Conclusions of Law,
and Decision and Order
On June 21, 2012, the LUC approved the Petition by a vote
of 7-0. The LUC issued its Findings of Fact, Conclusions of
Law, and Decision and Order. With regard to whether the
reclassification would impair agricultural production and was
reasonably necessary for urban growth, the LUC made the
following findings:
4
In addition to the 335 acres Castle & Cooke provided to Aloun Farms,
Dole Pineapple Plantation also offered Aloun Farms a lease over 332
additional acres.
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NEED FOR THE PROPOSED DEVELOPMENT.
68. Oahu has an acute shortage of housing suitable for
primary residents, and this shortfall is projected to
continue to increase by 2030 based on growth projections.
Even with complete buildout of all identified planned and
entitled units as of July 2008, the shortfall will be
approximately 30,000 units by 2030. This is based on DPP’s
2009 population projections (which assume the State
Department of Business, Economic Development, and Tourism’s
2035 Series, published in 2008) and an updated inventory of
Commission-entitled and planned potential future
developments islandwide.
69. There is a need to entitle at least 6,500 more units
in Central Oahu.
70. Central Oahu has proven to be a popular residential
location due to its cool, upland climate, relative
proximity to the island’s main employment centers, high
quality master-planned communities, and affordability.
71. The Project is estimated to close an average of 200 to
425 residential units per year, and complete absorption of
the Projects 5,000 residential units is projected to occur
between 2023 and 2026.
. . . .
IMPACTS UPON RESOURCES OF THE AREA
Agricultural Resources
. . . .
87. In anticipation of the Project and to mitigate the
impacts of development on agricultural operations,
Petitioner arranged with Dole Foods to issue a lease to
Aloun Farms for approximately 335 acres of former pineapple
land located north of the Dole Plantation. The lease term
is for ten years, with a five-year renewal option. In
addition, approximately 332 acres of abutting lands have
been offered to Aloun Farms. The approximately 667 acres
of land being offered as replacement land is twice as much
land as Aloun Farms is farming currently at Koa Ridge. The
335 acres currently leased by Aloun Farms has sufficient
access to water from the Tanada Reservoir, which provides
fresh clean water to the replacement lands and is
distributed through an existing irrigation delivery system
throughout the site. Coordinated efforts to improve the
delivery of year round supply of water are being worked out
with Dole Foods, and a plan acceptable to Aloun Farms has
been clearly laid out in Aloun Farms’ water contract.
Aloun Farms has begun site [sic] and the soil amendment
process of the 335-acre replacement site and anticipates
its first crops in the summer of 2012. The replacement
lands will allow Aloun Farms to grow a variety of crops and
maintain similar production, revenues, operating costs,
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delivery costs, employment, and payroll as would occur at
Koa Ridge Makai.
88. Because of the replacement lands with a source of
water and existing irrigation that have been made available
and because Petitioner stopped charging Aloun Farms rent at
Koa Ridge which saves Aloun Farms $129,000 annually, the
Project is not anticipated to have a significant impact on
the operation of Aloun Farms. However, some adjustments in
varieties and cultivation practices might be required due
to different agronomic conditions (e.g., soils,
temperature, solar radiation, elevation and rainfall).
Also, Aloun Farms will incur the cost of preparing the
former pineapple field for farming vegetable crops.
. . . .
94. The contraction and closure of sugarcane and pineapple
plantations have released farmland that can now be used for
other crops. As of January 2010, over 177,000 acres
remained available statewide for farming.
95. On Oahu, over 15,000 acres of former plantation land
remain available including approximately 2,500 acres in
upper Kunia, approximately 8,500 acres on the North Shore,
over 2,700 acres near Kahuku, and approximately 1,700 acres
scattered throughout other parts of the island. The word
“available” refers to land not being farmed.
96. The Island of Oahu has approximately 42,600 acres of
high quality farmland outside of the City’s Urban Growth
Boundaries, excluding lands under military control and
lands in Kahuku that are scheduled to become a wildlife
refuge. In 2010, an estimated 12,000 acres were farmed on
Oahu, some of which was land within the Urban Growth
Boundaries. Assuming that the farms in the Urban Growth
Boundaries eventually relocate to land outside of the Urban
Growth Boundaries, over 30,000 acres of good farmland on
Oahu will remain available for growing additional crops
(42,000 acres - 12,000 acres).
. . . .
113. Reclassification and development of the Petition Area
will not have an adverse impact on agricultural resources
nor on actual or potential agricultural production in the
vicinity of the Petition Area or in the City or State.
There is sufficient land available on Oahu and in the State
to accommodate the loss of land for the Project and to
accommodate diversified agriculture.
The LUC made the following Conclusions of Law relevant to
this appeal:
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1. Pursuant to HRS chapter 205 and the Commission rules
under HAR chapter 15-15, and upon consideration of the
Commission decision-making criteria under HRS section 205-
17, the Commission finds upon the clear preponderance of
the evidence that the reclassification of Koa Ridge Makai,
Increment 1, consisting of approximately 576.435 acres of
land, situated at Waipio, Island of Oahu, State of Hawaii,
TMKs: 9-4-06: portion of 1, portion of 2, portion of 3,
portion of 5, 38, and portion of 39 and 9-5-03: portion of
1 and portion of 4, shown approximately on Exhibit “A”
attached hereto and incorporated by reference herein, from
the State Land Use Agricultural District to the State Land
Use Urban District, and subject to the conditions stated in
the Order below, conforms to the standards for establishing
the boundaries of the State Land Use Urban District, is
reasonable, not violative of HRS section 205-2 and is
consistent with the policies and criteria established
pursuant to HRS sections 205-16, 205-17, and 205A-2.
2. The Commission also finds upon the clear preponderance
of the evidence that the reclassification of Castle & Cooke
Waiawa, Increment 2, pursuant to the incremental
districting under section HAR 15-15-78, consisting of
approximately 191.214 acres of land, situated at Waiawa,
Island of Oahu, State of Hawaii, TMKs: 9-4-06: portion of
29 and portion of 31 and 9-6-04: 21, shown approximately on
Exhibit “A” attached hereto and incorporated by reference
herein, from the State Land Use Agricultural District to
the State Land Use Urban District, and subject to the
conditions stated in the Order below, conforms to the
standards for establishing the boundaries of the State Land
Use Urban District, is reasonable, is not violative of HRS
section 205-2, and is consistent with the policies and
criteria established pursuant to HRS sections 205-16, 205-
17, and 205A-2.
. . . .
6. Article XI, Section 3, of the Hawaii State Constitution
states the following in full: “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.”
7. HRS section 205-41 declares that there is a compelling
State interest in conserving the State’s agricultural land
resource base and assuring the long-term availability of
agricultural lands for agricultural use to achieve the
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purposes of Article XI, Section 3, of the Hawaii State
Constitution.
The LUC’s Decision and Order reclassified the Petition
lands from the state agricultural land use district to the state
urban land use district, subject to preconditions that are not
relevant on appeal.
B. Circuit Court Appeal
Appellants filed an agency appeal with the circuit court.
Relevant to this appeal, the Appellants argued that the LUC’s
decision and order violated HAR § 15-15-77(b)(6),5 which requires
the LUC to “specifically consider” the following when
reclassifying agricultural land:
Lands in intensive agricultural use for two years prior to
date of filing of a petition or lands with a high capacity
for intensive agricultural use shall not be taken out of
the agricultural district unless the commission finds
either that the action:
(A) Will not substantially impair actual or potential
agricultural production in the vicinity of the subject
property or in the county or State; or
(B) Is reasonably necessary for urban growth.
The Appellants focused on subsection (A), arguing, “Despite
overwhelming and dispositive evidence to the contrary, the
Findings conclude that there are sufficient alternative
agricultural lands and that agriculture on Oahu will not be
5
The Appellants also argued that the LUC’s decision and order violated
HAR § 15-15-77(a), which requires district boundary amendments to conform to
the Hawaii State Plan. The Appellants abandoned this issue upon transfer to
this court, as this issue was not raised as a point of error in their Opening
Brief, and was referenced for the first time in their Reply Brief. This
argument has therefore been waived. See Matter of Hawaiian Flour Mills,
Inc., 76 Hawaii 1,14 n.5, 868 P.2d 419, 432 n.5 (1994) (citing Hawaii Rules
of Appellate Procedure Rule 28(b)(4)).
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harmed by the reclassification.” They argued that the LUC’s
decision was “based on the unsubstantiated assertion that there
is a large amount of available farm land on Oahu and thus taking
this proven and productive land out of production will not be
harmful to agriculture on Oahu or in Hawaii in general.”
Specifically, the Appellants contended that the replacement
lands lack State funding for water infrastructure, and lack a
track record of producing crops like those grown on the Petition
lands. As to subsection (B), whether the reclassification was
necessary for urban growth, the Appellants claimed in a footnote
that “there was very unconvincing testimony of the need for an
additional 5000 housing units in this location. . . .”
In its Answering Brief, Castle & Cooke counter-argued that
the reclassification complied with HAR § 15-15-77(b)(6). Castle
& Cooke argued that the LUC was provided with substantial
evidence that the reclassification “will not substantially
impair actual or potential agricultural production” and “is
reasonably necessary for urban growth.” As to the “agricultural
production” prong, Castle & Cooke pointed to Plasch’s testimony
about the thousands of acres that had become available for
diversified agriculture upon the contraction of plantation
agriculture. Castle & Cooke also noted it had designated 679
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acres as IAL in other parts of Oahu6 and provided its current
tenant, Aloun Farms, with replacement land for its farming
operations. To refute the Appellants’ suggestion that the
replacement land lacks necessary water infrastructure, Castle &
Cooke cited to Aloun Farms’ letter of support, that noted their
replacement land “has productive soils, a reliable source of
water and existing irrigation systems which will support the
cultivation of [their] variety of crops. . . .” Thus, Castle &
Cooke maintained, reclassification of the petition lands “would
not substantially impair actual or potential agricultural
production.”
As to the “urban growth” prong, Castle & Cooke argued that
the LUC was provided with substantial evidence that the
reclassification was necessary for urban growth from, inter
alia, Bouslog, who testified about Central Oahu’s acute housing
shortage for primary residents. Castle & Cooke pointed out that
the Appellants did not dispute Bouslog’s testimony or cross-
examine her during the LUC hearings. They also failed to
“provide any witness or documents to the LUC that would
contradict the evidence presented during the hearings that the
6
During the pendency of the Petition proceedings, Castle & Cooke
successfully obtained LUC designation of this land as IAL through the farmer/
landowner-initiated IAL designation procedure set forth in HRS § 205-44
(Supp. 2005). This procedure is separate from the formal county-initiated
IAL designation procedure set forth in HRS § 205-47.
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reclassification of the Petition lands is reasonably necessary
for urban growth.”
The LUC argued in its Answering Brief that the
reclassification did not violate HRS § 15-15-77(b)(6), because
(1) the Project area is designated for urban development in the
CO SCP; (2) there is an acute shortage of housing for primary
residents on Oahu; (3) and adequate replacement lands exist for
agricultural tenants displaced by the project. The LUC asserted
that it did not “simply ignore” testimony that the lands had
been in active cultivation, but “considered the specific
replacement lands . . . as well as other evidence concerning
agriculture in Hawaii in general. . . .”
The circuit court held oral argument. The circuit court
asked the Appellants which particular findings of fact and
conclusions of law they believed were in error, as their Opening
Brief did not include that information; the Appellants viewed
“the entire thing” as in error. Further into the oral argument,
the Appellants’ attorney conceded, “We’re not challenging the
expertise [of individuals who testified before the LUC] because
[the LUC is] entitled to make credibility determinations.”
After hearing argument from all of the parties, the circuit
court dismissed the appeal and affirmed the LUC’s decision.
The circuit court issued its Decision and Order Denying and
Dismissing Appellants the Sierra Club and Senator Clayton Hee’s
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Appeal Filed on July 20, 2012, on April 11, 2013. The circuit
court made the following findings relevant to this appeal:
7. The Court, in its review of all the Findings of
Fact, finds that there is evidence as to the unmet housing
needs and the availability of other suitable agricultural
land and the criteria required under HRS § 205-17 and HAR §
15-15-77. The Court finds that the LUC D&O was not
arbitrary and/or an abuse of discretion in that there was
substantial, reliable, probative evidence to support its
Findings of Fact.
8. The Court finds that there was no challenge by
Appellants as to the credibility or the expertise of the
various witnesses that testified before the LUC.
9. The Court therefore finds that the LUC did not
violate HAR § 15-15-77.
The circuit court therefore affirmed the LUC’s Findings of Fact
and Conclusions of Law and Decision and Order and dismissed the
appeal. The Appellants timely appealed, ultimately obtaining a
transfer of the appeal from the ICA to this court.
III. Standard of Review
Review of a decision made by the circuit court upon its
review of an agency’s decision is a secondary appeal. The
standard of review is one in which this court must
determine whether the circuit court was right or wrong in
its decision, applying the standards set forth in HRS § 91-
14(g) . . . to the agency’s decision.
Dep’t of Env. Servs. v. Land Use Comm’n, 127 Hawaii 5, 12, 275
P.3d 809, 816 (2012) (citation omitted). An agency’s
conclusions of law are reviewed de novo, while an agency’s
factual findings are reviewed for clear error. Camara v.
Agsalud, 67 Haw. 212, 216, 685 P.2d 794, 797 (1984).
In order to preserve the function of administrative
agencies in discharging their delegated duties and the
function of this court in reviewing agency determinations,
a presumption of validity is accorded to decisions of
administrative bodies acting within their sphere of
expertise and one seeking to upset the order bears “the
heavy burden of making a convincing showing that it is
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invalid because it is unjust and unreasonable in its
consequences.”
In re Hawaii Elec. Light Co., 60 Haw. 625, 630, 594 P.2d 612,
617 (1979) (citations omitted).
IV. Substantial Evidence Supported the LUC’s Findings That
the Reclassification Complied with HAR § 15-15-77(b)(6).
On the issue of whether the reclassification violated HAR
§ 15-15-77(b)(6), the parties largely repeat, before this court,
the arguments made to the circuit court, and those arguments
will not be repeated. Before reaching the merits of the issue,
we must address the lack of specificity in Appellants’ challenge
to the LUC’s decision and order. Before the circuit court and
this court, the Appellants did not designate any particular
findings of fact as clearly erroneous. It was the Appellants’
burden, however, to point out specifically which findings of
fact and conclusions of law were erroneous. MPM Hawaiian, Inc.
v. Amigos, Inc., 63 Haw. 485, 486, 630 P.2d 1075, 1077 (1981)
(per curiam) (Findings of fact “are presumed to be correct, and
appellant bears the burden of pointing out specifically where
they are erroneous.”) It should not be this court’s
responsibility to search the record in this case for evidence
supporting the LUC’s factual findings. See Campbell v. DePonte,
57 Haw. 510, 513, 559 P.2d 739, 741 (1977) (“An appellant’s mere
challenge of a finding does not cas[t] the onus of justifying it
on this court. The party seeking to overthrow findings has the
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burden of pointing out specifically wherein the findings are
clearly erroneous.”) (citation omitted).
It was clear in this case that the entire decision and
order was not at issue in this appeal. The Appellants focused
on the agriculture and urban growth findings, not the
introductory findings describing procedural matters, the
petition area, the proposal for reclassification, Castle &
Cooke’s financial capability to undertake the project, or State
and City plans; or the hundreds of other findings regarding
impacts upon the economy, society, flora, fauna, archaeological,
historical, cultural, groundwater and surface water, parks and
recreation, and scenic resources; or noise, air quality, highway
and roadway facilities, water service, wastewater disposal,
drainage, solid waste disposal, schools, police and fire
protection, emergency/medical services, civil defense,
electricity and telephone service, energy conservation,
commitment of state funds and resources, and conformance with
State and City land use management plans.
We remind counsel that Hawaii Rules of Appellate Procedure
(“HRAP”) Rule 28(b)(4)(C) (2010) requires that an appellant’s
opening brief concisely state points of error, and, “when the
point involves a finding or conclusion of the . . . agency,
either a quotation of the finding or conclusion urged as error
or reference to appended findings and conclusions. . . .” This
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court has looked past violations of HRAP Rule 28(b)(4) to reach
the merits of a case where issues of great importance are at
stake. See, e.g., Morgan v. Planning Dep’t, 104 Hawaii 173,
181, 86 P.3d 982, 990 (2004) (“[B]ecause the issues raised in
the instant case are of great importance [i.e., the Hawaii
constitution’s recognition of the significance of conserving and
protecting Hawaii’s natural beauty and natural resources], we
address the merits of the issues raised . . . notwithstanding
the [Appellants’] technical violation of HRAP Rule 28(b)(4).”)
In this case, due to the public interest in the proposed Koa
Ridge development, we choose to construe Appellants’ appeal as
challenging the findings of fact reproduced in Section II.A.4 of
this opinion. Even given this latitude, however, the Appellants
fail to carry their burden of showing why the LUC’s decision and
order should not be affirmed.
The Appellants allege that the LUC improperly weighed the
evidence before it in determining that the reclassification of
the Petition lands would not substantially impair agricultural
production and was reasonably necessary for urban growth. A
court reviewing an agency’s findings of fact, however must
“decline to consider the weight of the evidence to ascertain
whether it weighs in favor of the administrative findings, or
. . . review the agency’s findings of fact by passing upon the
credibility of witnesses or conflicts in testimony, especially
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the findings of an expert agency dealing with a specialized
field.” Application of Hawaiian Elec. Co., 81 Hawaii 459, 465,
918 P.2d 561, 567 (1996). Appellants’ attorney acknowledged as
much before the circuit court, when he admitted, “We’re not
challenging the expertise [of individuals who testified before
the LUC] because [the LUC is] entitled to make credibility
determinations.”
As such, the resolution of this issue on appeal depends on
whether the witnesses the LUC credited provided substantial
evidence to support the LUC’s findings of fact. Substantial
evidence is “credible evidence which is of sufficient quality
and probative value to enable a person of reasonable caution to
support a conclusion.” In Re Water Use Permit Applications, 94
Hawaii 97, 119, 9 P.3d 409, 431 (2000). In this case, the
witness testimony the LUC credited (summarized in Sections
II.A.3.a, b, and c of this opinion) provided substantial
evidence to support its findings. Therefore, the
reclassification satisfied the requirements of HAR § 15-15-
77(b)(6).
V. The LUC’s Decision and Order Omits a Conclusion that the
Preponderance of the Evidence Shows that the
Reclassification Does Not Violate Part III of Chapter 205,
but the Omission is Harmless.
HRS § 205-4(h) (Supp. 2005) requires the LUC to approve a
proposed boundary amendment only after concluding, by a
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preponderance of the evidence, that it is “reasonable, not
violative of section 205-2 [governing districting and
classification of lands] and part III of this chapter [governing
Important Agricultural Lands], and consistent with the policies
and criteria established pursuant to sections 205-16 [compliance
with the Hawaii State Plan] and 205-17 [listing other LUC
decision-making criteria].” (Emphasis added). HAR § 15-15-77
further requires that any approved boundary amendment be
consistent with HRS § 205A-2 (Hawaii’s Coastal Zone Management
Program). In this case, in Conclusions of Law 1 and 2, the LUC
concluded, by a preponderance of the evidence, that the
reclassification of the Koa Ridge and Waiawa lands were
“reasonable, not violative of HRS section 205-2 and . . .
consistent with the policies and criteria established pursuant
to HRS sections 205-16, 205-17, and 205A-2.” Conclusions of Law
1 and 2 are erroneous because they omit any conclusion regarding
part III of HRS Chapter 205. Although the Appellants did not
challenge these conclusions of law, this court may freely review
them. Ka Paakai O KaAina v. Land Use Comm’n, 94 Hawaii 31, 41,
7 P.3d 1068, 1078 (2000).
Under the circumstances of this case, however, this error
is harmless because the LUC made separate conclusions to show
that it recognized the significance of important agricultural
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lands under the Hawaii State Constitution and Part III of
Chapter 205:
6. Article XI, Section 3, of the Hawaii State Constitution
states the following in full: “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.”
7. HRS section 205-41 [located in Part III of Chapter 205]
declares that there is a compelling State interest in
conserving the State’s agricultural land resource base and
assuring the long-term availability of agricultural lands
for agricultural use to achieve the purposes of Article XI,
Section 3, of the Hawaii State Constitution.
Again, we note that the formal county-initiated IAL designation
process has not concluded. See
http://mapoahuagland.com/about/faq/ (last visited Apr. 5, 2016).
Further, the City & County of Honolulu has no intention of
identifying the Project lands as IAL because they are included
in county plans calling for urban development. See id. Under
HRS § 205-47(a), “lands that have been designated, through the
state land use, zoning, or county planning process, for urban
use by the State or county” are not subject to county
identification as IALs. Thus, under the facts of this case,
reclassification would not be “violative of part III” because
this particular parcel was not, and would not be, identified as
IAL. We believe these conclusions of law show that the LUC
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complied with Part III of Chapter 205 to the extent that it
could, given the unfinished state of the formal county IAL
designation process.
VI. Conclusion
The LUC in this case properly reclassified Castle & Cooke’s
property from the agricultural land use district to the urban
land use district. Substantial evidence supported the LUC’s
findings that the reclassification satisfied HAR § 15-15-
77(b)(6). The LUC’s error in omitting a conclusion of law that
the reclassification was not violative of Part III of Chapter
205, by a preponderance of the evidence, was harmless. We
therefore affirm the circuit court’s decision and order, which
affirmed the LUC’s decision and order and dismissed the
Appellants’ appeal.
DATED: Honolulu, Hawaii, April 6, 2016.
Eric A. Seitz and /s/ Mark E. Recktenwald
Sarah R. Devine
for petitioners /s/ Paula A. Nakayama
Benjamin M. Matsubara /s/ Sabrina S. McKenna
and Curtis T. Tabata
for respondent /s/ R. Mark Browning
Castle & Cooke
Homes Hawaii, Inc.
Bryan Yee and
Diane Erickson
for respondent
Office of Planning
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