HAWSCT: Anyone Claiming That An Affordable Housing Project Might Impact Their Property Interests In A "Clean And Healthful Environment" Has Standing To Object
by Robert Thomas, InverseCondemnation, June 18, 2021
In Protect and Preserve Kahoma Ahupuaa Ass'n v. Maui Planning Comm'n, No. SCWC-15-0000478 (June 16, 2021), the Hawaii Supreme Court reaffirmed the idea that all members of the public have a right under the Hawaii Constitution to a "clean and healthful environment," and that this is a "property" right entitled to due process protection under the state constitution. We say "reaffirmed" because this is merely the latest case so holding (see here for the first).
Like a lot of important Hawaii cases, this one came up in the context of standing to participate in the administrative review process. A Maui developer sought a permit under the Hawaii Coastal Zone Management Act from the Maui Planning Commission for an affordable housing project near Lahaina. Members of the Association, all of whom asserted they owned property adjacent to the project, asked the Planning Commission to intervene in the admin proceeding to object to the issuance of a CZMA permit. The Association itself also sought intervention, asserting it had a stake in the outcome because the project might impact its environmental interests (things like local traffic, beach access, tsunami evacuation congestion, the cultural and historic importance of the land, storm water drainage, scenic views), and the sale and rental values of its members' properties. Slip op. at 8-9. The Commission declined, concluding the proposed intervenors did not have standing.
The Association appealed to the circuit (trial) court under the Administrative Procedures Act, which affirmed. On secondary appeal, the Court of Appeals agreed with the Association that its members had standing because their environmental interests were threatened by the project. The developer sought discretionary review by the Supreme Court.
The court affirmed. The Association's members have standing to assert their constitutional due process property right to a clean and healthful environment. As we noted above, the court's conclusion that the Association's members had standing and that the Commission therefore wrongly denied its request to intervene -- as radical as that may be -- is not really a new one. In In re Maui Electric Co., 141 Haw. 249, 408 P.3d 1 (2017), the court already held the same. The only extension here is that the court put it in context of a shoreline development permit.
The court was careful to (supposedly) curb the extent of its ruling by noting that the property right in a clean and healthful environment is "defined by" the CZMA. See slip op. at 18. But this isn't really any kind of real limitation, since all it requires a potential intervenor do is connect the environmental right alleged to some statute, rule, or ordinance that might conceivably involve that right. As the opinion itself demonstrates, that task is an awfully simple one. The court easily made the connection by noting that the CZMA is a "law relating to environmental quality" (a very broad category under Hawaii law). And in administrative proceedings implementing these statutes, rules, or ordinances, the connection is even more facile, because by definition, the proceeding meets the "defined by" test.
The decision seems like an unnecessary reach. Long ago, in Town v. Land Use Comm'n, 55 Haw. 538, 524 P.2d 84 (1974), the Supreme Court concluded that neighboring property owners have a property interest (a real and distinct property interest) in administrative proceedings that might impact those rights. Here, the Association members alleged Town standing. Seems like that should have resolved the standing issue without going further.
Environmental standing is so broad, it has effectively swallowed up all "lesser" bases for standing, such as Town. The connection between a potential intervenor's environmental property rights, and some statute, rule, or ordinance is beyond easy to make, so why would any intervenor allege anything else but environmental standing?
Is there a limiting principle on the scope of environmental standing? If there is, we can't see any.
On the other hand, Hawaii's standing bar is already so notoriously low, it has little substantive consequence. Standing, as you know, is designed to keep courts away from cases that are more policy than legal disputes. Not being subject to Article III case and controversy requirements as are federal courts, the Hawaii courts have crafted their own standing doctrines, primarily to avoid advisory opinions. But that bar is already very low in original jurisdiction actions, and even lower in administrative proceedings that the doctrine fails to serve its purported function. Standing is simply a pleading game that no competent lawyer should fail: come on in, the water's fine!
One word of caution: the court's holding that environmental interests are "property" places the rationale squarely within the "legitimate claim of entitlement" type of government-created property for purposes only of procedural due process (the type of interest that gets your some kind of pre-deprivation notice and some opportunity to be heard), and to that extent, the ruling is limited. This case and its progeny do not signal that the Hawaii Supreme Court is expanding property rights (and by those we mean actual property rights) in any way. That may come in other cases, but not this one.
Will this be the last case which concludes that generalized environmental interests are property under Hawaii law? We doubt it, so stay tuned.
PDF: Protect and Preserve Kahoma Ahupuaa Ass'n v. Maui Planning Comm'n, No. SCWC-15-0000478 (Haw. June 16, 2021)
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