Real Estate & Property Law

HAWSCT Curtails Definition of "Use of State or County Lands" in Environmental Law

By Robert Thomas (inversecondemnation.com)

In Nuuanu Valley Ass'n v. City & County of Honolulu, No. 28599 (Oct. 24, 2008), the Supreme Court of Hawaii clarified when a project that is not being built on state or county land meets the definition of "use" of such lands triggering review under the Hawaii Environmental Policy Act, Haw. Rev. Stat. ch. 343. The developer of private residential land in urban Honolulu sought to subdivide the property, which required hooking up new drainage system to existing lines.

Section 343-5(a)(1) requires that "an environmental assessment shall be required for actions that . . . [p]ropose the use of state or county lands," and in earlier cases, the Court held that installation of a new drainage line beneath a public road qualified as "use" of state land, Kahana Sunset Owners Ass'n v. County of Maui, 86 Haw. 66, 947 P.2d 378 (1997); as did construction of an underpass beneath a public highway, Citizens for the Protection of the North Kohala Coastline v. County of Hawaii, 91 Haw. 94, 979 P.2d 1120 (1999); as did the construction of a sewage pipe, a portion of which would cross beneath a state road. Sierra Club v. Office of Planning, State of Hawaii, 109 Haw. 411, 126 P.3d 1098 (2006).

The Court in Nuuanu Valley restricted these cases, holding a connection of new drainage lines to an existing system did not meet the definition of "use" of state or county land, even though the existing system is public.

NVA [Nuuanu Valley Association] asserts that an EA must be completed because Laumaka's proposed subdivision will require use of and connection to the county's drainage and sewer systems. NVA also asserts that an EA must be completed "[s]o long as there is a 'use' of city or state lands," without regard to "the size of the 'use' and comparisons to the scope and size of the overall project." We disagree.

Slip op. at 20.  The Court rejected the literal, dictionary definition of "use," which the Court acknowledged would encompass the proposed action:

NVA is essentially asserting that any "use of state or county lands[,]" no matter what the nature of that "use" may be, is sufficient to satisfy HRS § 343-5(a)(1)'s requirement that an "action[ ]" "[p]ropose the use of state or county lands . . . ." The word "use" is undefined within HRS Chapter 343. The "ordinary meaning" of the word "use" is "to employ for some purpose; put into service; make use of[.]" The Random House College Dictionary 1448; see Leslie, 109 Hawai?i at 393, 126 P.3d at 1080. In light of this meaning, the word "use" could be construed to apply to any "use" of state or county land, no matter what or how benign that "use" may be.

However, this interpretation flies in the face of the fact that this court dismissed the plaintiff's argument in Citizens that the "potential use of" a public highway leading to the development project constitutes a "use" of state land. 91 Hawai?i at 103 n.8, 979 P.2d at 1129 n.8. Clearly, this court has recognized that the boundaries of the meaning of the word "use," as contemplated by HRS § 343-5(a)(1), is not unlimited in possibilities. See id. Therefore, we decline to apply the ordinary meaning of the word "use" in interpretation of HRS § 343-5(a)(1).

Slip op. at 25-26. The Court's statement that "this court has recognized that the boundaries of the meaning of the word 'use,' as contemplated by HRS § 343-5(a)(1), is not unlimited in possibilities" is a recognition that the literal definition is unworkable as a practical matter.  Otherwise, an EA would be required every time a homeowner connected a driveway to a public roadway, or even when a car is driven on state or county roads. 

Indeed, construing the word "use" in a manner suggested by NVA could result in countless possibilities of "uses" that would fall within the scope of the Hawai?i Environmental Policy Act, which we believe was not intended by the legislature. See HRS § 343-1; see also Citizens, 91 Hawai?i at 103 n.8, 979 P.2d at 1129 n.8. Moreover, were we to construe HEPA's requirement of "use of state or county lands" in a manner suggested by NVA, we would be misconstruing the weight of our prior case law, which consisted of facts that illustrated a "use" that was more than merely a connection to state or county "lands." For example, the "use" in Kahana Sunset Owners Ass'n was the fact that the proposed development would install a new, thirty-six-inch drainage line beneath, and not merely in connection to, a public street. 86 Hawai?i at 71, 947 P.2d at 383. Similarly, the "use" in Citizens was the fact that the two underpasses would require construction beneath a state highway, rather than merely a connection to the land beneath the highway. 91 Hawai?i at 103, 979 P.2d at 1129. Also similar is the "use" in Sierra Club, where construction of the "Project's" sewage and water transmission lines required tunneling beneath, rather than merely a connection with, multiple state highways. 109 Hawai?i at 415-16, 126 P.3d at 1102-03.

Slip op. at 27-29. Mere connection is not enough.

The Court did not disturb its existing rule that once environmental review is triggered, it must take into account the whole project, not just the use of state or county lands that resulted in review.  See Kahana Sunset, 86 Haw. at 74, 947 P.2d at 383. 

The Court also held that development documents and reports submitted by the owner to the City's Department of Planning and Permitting, but not yet formally "accepted" by the agency, are public records subject to public disclosure under the Uniform Information Practices Act, Haw. Rev. Stat. ch. 92F. The Court held that submitted-but-not-accepted documents were not "maintained" by the agency, and thus were not subject to disclosure.  Slip op. at 10-14. The Court, however, held that these documents should have been made public under DPP's internal procedures, which were "rules" under the Administrative Procedures Act, and required the DPP to disclose them. Slip op. at 14-18.

A recording of the oral arguments is posted here.

Full post as published by inversecondemnation on October 29, 2008 (boomark / email).