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Dancil v. Arakawa

Intermediate Court of Appeals of Hawai'i

November 16, 2012

RICHARD DANCIL, an individual, Plaintiff-Appellant,
v.
ALAN ARAKAWA, AS MAYOR OF COUNTY OF MAUI; OFFICE OF ECONOMIC DEVELOPMENT, COUNTY OF MAUI; DEPARTMENT OF PLANNING, COUNTY OF MAUI; LAHAINA TOWN ACTION COMMITTEE; JOHN DOES 1-50; JANE DOES 1-50; DOE CORPORATIONS, PARTNERSHIPS, GOVERNMENTAL ENTITIES 1-50, Defendants-Appellees, and NA MAKUA O'MAUI, Plaintiff-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT. CIVIL NO. 11-1-0788.

On the briefs: Richard Dancil, Plaintiff-Appellant, Pro se.

Jane E. Lovell, Moana M. Lutey, Deputies Corporation Counsel, County of Maui, for Defendants-Appellees, Alan Arakawa, as Mayor of County of Maui; Office of Economic Development, County of Maui; Department of Planning, County of Maui.

E. John Bain, Steven Guttman, Miriah Holden (Kessner Umebayashi Bain & Matsunaga), for Defendant-Appellee, Lahaina Town Action Committee.

Craig H. Nakamura, C.J., Daniel R. Foley AND Lisa M. Ginoza, JJ.

OPINION

Page 117

[132 Hawai'i 473] FOLEY, J.

Plaintiff-Appellant Richard Dancil (Dancil), proceeding pro se, appeals from the December 9, 2011 Final Judgment entered in the Circuit Court of the Second Circuit [1] (circuit court). The circuit court entered judgment in favor of Defendants-Appellees Alan Arakawa, as Mayor of County of Maui; Office of Economic Development, County of Maui (OED); Department of Planning, County of Maui (DOP); and Lahaina Town Action Committee (LTAC) (collectively, Defendants).

I. BACKGROUND

On August 23, 2011, LTAC and OED submitted a Special Management Area Assessment Application to the DOP, seeking approval for a Halloween event (Event) in Lahaina. Because some of the event's activities and temporary structures would be within the Lahaina National Historic District, which is a designated Special Management Area (SMA), the DOP was required to conduct an assessment pursuant to Hawaii Revised Statutes (HRS) Chapter 205A (2001 Repl.), also known as the Coastal Zone Management Act (CZMA).

The CZMA imposes stringent permit requirements for " developments" within SMAs. HRS § § 205A-28, 205A-26 (2001 Repl.). With respect to historic resources, the objectives of the coastal zone management program are to " [p]rotect, preserve, and, where desirable, restore those natural and manmade historic and prehistoric resources in the coastal zone management area that are significant in Hawaiian and American history and culture." HRS § 205A-2(b)(2)(A) (2001 Repl.). In implementing these objectives, agencies are required to give " full consideration to ecological, cultural, historic, esthetic, recreational, scenic, and open space values, and coastal hazards, as well as to needs for economic development." HRS § 205A-4(a) (2001 Repl.). The CZMA empowers the county authorities to adopt rules implementing procedures for issuing SMA permits for developments within SMAs. HRS § 205A-29(a) (2001 Repl.).

Page 118

In accordance with statutory mandates, the Maui Planning Commission's Special Management Area Rules (SMA Rule) set out the assessment and determination procedures for issuing SMA permits. SMA Rule § 12-202-12 requires evaluation of the value of the activity, a determination of whether the activity is a " development," and an assessment of any potential adverse environmental and ecological effects. SMA Rule § 12-202-12(d)(1). Upon reviewing the assessment application from LTAC and OED, the County of Maui's Director of Planning [132 Hawai'i 474] (Planning Director) concluded that the Event required an SMA minor permit. [2]

On August 30, 2011, the Planning Director issued an SMA permit for the Event. As required by HRS § 205A-30 (2001 Repl.), notice of the permit was transmitted to the State of Hawai'i Office of Environmental Quality Control (OEQC) and was published on September 23, 2011 in " The Environmental Notice," the OEQC's periodic bulletin. The Planning Director notified the Maui Planning Commission (MPC), as required by SMA Rule § 12-202-14, and the County Clerk posted an MPC agenda listing the permit issuance as an action item.

The Planning Director assessed the event under HRS Chapter 343 (2010 Repl. and Supp. 2011) because it involved the following " triggers" : (1) use of county land or funds (HRS § 343-5(a)(1) (2010 Repl.)); (2) use of land within the shoreline area (HRS § 343-5(a)(3) and HRS § 205A-41 (2001 Repl.)); and (3) use of land within any historic site (including the Lahaina National Historic Landmark District). If an action triggers HRS Chapter 343, an environmental assessment (EA) must be conducted unless the proposed activity is declared exempt pursuant to HRS § 343-6 (2010 Repl.). HRS § 343-5(c). HRS § 343-6(a)(2) defines exempt actions as those that " will probably have minimal or no significant effects on the environment," and Hawaii Administrative Rule (HAR) § 11-200-8 provides a list of exempt classes of action. The exemption list for the County of Maui, which has been submitted to and concurred with by the State of Hawai'i Environmental Council, tracks the ...


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