DANIEL K. KANAHELE, WARREN S. BLUM, LISA BUCHANAN, JAMES L. CONNIFF, and CAMBRIA MOSS, Petitioners/Plaintiffs-Appellants,
MAUI COUNTY COUNCIL and COUNTY OF MAUI, Respondents/Defendants-Appellees, and HONUA'ULA PARTNERS, LLC, Respondent/Defendant-Intervenor-Appellee.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (ICA NO. 29649; CIV. NO. 08-1-0115(3))
Lance D. Collins for petitioner
Mary Blaine Johnston for respondent Maui County Council and County of Maui
Jonathan H. Steiner for respondent Honua'ula Partners, LLC
RECKTENWALD, C.J., NAKAYAMA, ACOBA, MCKENNA, AND POLLACK, JJ.
Petitioners/Plaintiffs-Appellants Daniel K. Kanahele, Warren S. Blum, Lisa Buchanan, James L. Conniff, and Cambria Moss (collectively "Petitioners") seek review of the October 19, 2012 Judgment on Appeal of the Intermediate Court of Appeals (ICA), filed pursuant to its June 29, 2012 Summary Disposition Order, affirming the January 22, 2009 judgment entered by the Circuit Court of the Second Circuit (circuit court) in favor of Respondents/Defendants-Appellees Maui County Council (MCC) and the County of Maui and Respondent/Defendant-Intervenor-Appellee Honua'ula Partners, LLC (Honua'ula), and against Petitioners.
Petitioners, who are residents of Maui, filed this appeal based on the MCC s passage of two bills related to the development of a residential community on 670 acres of land located in Wailea, Maui (Wailea 670 project). The Wailea 670 project consists of developing a golf course, single- and multi-family residences, recreation and open spaces, and village mixed-use sub-districts. Honua'ula is the owner and developer of the land in question. The MCC and its committee, the Land Use Committee (LUC), passed two bills (Wailea 670 bills) in connection with the Wailea 670 project. Petitioners filed suit in the circuit court challenging this passage, arguing that the MCC and LUC failed to satisfy the requirements of the State open meetings law, Hawai'i Revised Statutes (HRS) Chapter 92, Part I, commonly known as the "Sunshine Law."
The Wailea 670 project has been in the planning stages since 1986. The LUCs first public meeting on the project took place in February 2002, followed by meetings in January (site visit), March, June, July and October of 2006 and January, March, July, September, October and November of 2007. At issue in this case is the series of thirteen LUC meetings convened between October 18, 2007 and November 20, 2007, when the LUC passed the Wailea 670 bills for consideration by the MCC, as well as the four meetings held by the MCC in February and March 2008, prior to the MCCs final passage of the bills on March 18, 2008.
A. LUC and MCC meetings
1. October 18, 2007 meeting
On October 11, 2007, the LUC filed a "Meeting Agenda" with the Office of the County Clerk for a meeting to take place on October 18, 2007 at 9:00 a.m. The agenda identified the subject matter of the meeting as "LU-38 CHANGE IN ZONING AND PROJECT DISTRICT PHASE I APPROVAL FOR 'HONUA'ULA/WAILEA 670' RESIDENTIAL DEVELOPMENT." The agenda provided that the LUC was in receipt of two proposed bills that it would be considering; one bill would repeal Chapter 19.90 of the Maui County Code and establish a new Chapter 19.90A (Project District bill) and the second bill would repeal Ordinance No. 2171 (1992) and establish conditional zoning for the 670 acres of land involved in the project (Change in Zoning bill). The agenda also stated that oral or written testimony on any agenda item would be accepted.
The minutes for the October 18 meeting reflect that forty people attended the meeting, in addition to the LUC members, staff and certain named individuals. Approximately twenty-eight people testified at the meeting, including Petitioners Conniff and Kanahele. Each person was given approximately four minutes to speak.
The LUC closed the public testimony portion of the meeting after everyone who had submitted requests to testify had done so. The LUC began deliberating at 2:40 p.m. At 4:55 p.m., LUC Chair Michael J. Molina announced, "This meeting for October 18th, 2007, related to LU-38 is in recess until Monday morning, October 22nd, 9:00 a.m., here in the Council chambers."
No new agenda was posted for the October 22 reconvened meeting. There is nothing in the record indicating that the date and time of the continued hearing was posted at the Council's chambers or at any other location.
The October 22, 2007 reconvened meeting began at 9:07 a.m. The record does not reflect any discussion among the LUC members regarding whether the public had been given any notice of the meeting aside from the oral announcement at the conclusion of the prior meeting. At the beginning of the meeting, Chair Molina announced that the board would take a break at 1:00 p.m. and "come back a little later in the afternoon, " at around 3:30 p.m. because "we have some Members that have to leave for some prior commitments." Chair Molina continued, "For the public's information, this is an off-week and Members do make prior commitments to address other matters in our community. . . . And, so, that is why today ... we have some what [sic] of an unusual schedule and how we will proceed."
The meeting was recessed t 12:51 p.m. and then reconvened again at 3:50 p.m. Chair Molina explained that although the plan had been to meet until 5 p.m. that day, the LUC only had a "bare quorum" present and therefore it was his opinion that it would be better to reconvene at another date and time.He announced, "So, with that being said, this meeting is in recess until tomorrow, Tuesday, October 23rd, 9:00 a.m., right here in the Council Chambers." The meeting was recessed at 3:53 p.m.
The meeting, which had been initially noticed for October 18, 2007, was reconvened and then continued successively in the same manner on October 23, 25, 29, November 1, 5, 7, 8, 13, 16, 19, and 20. Thus the October 18 meeting was continued and reconvened twelve times until the final meeting on November 20. The circuit court entered a finding that each meeting was reconvened "due to time constraints or the loss of quorum."
During this time that the LUC reconvened twelve meetings, the LUC met twice, on October 31, 2007 and November 14, 2007, in order to consider unrelated permit applications. The LUC posted agendas for both meetings.
For the Wailea 670 bills, no new agendas were posted for the twelve reconvened meetings. At the end of each meeting, the LUC would announce the new date, time and place for the reconvened meeting. There is no indication in the record that the LUC gave any other form of public notice for the meetings.
The LUC employed two criteria in determining when to schedule the next continued meeting; the availability of the committee members, and the LUCs belief, expressed on at least three separate occasions, that the continuance was required to be held within five days. The result was that the continued meetings were scheduled in an unpredictable manner. Meetings were scheduled in the mornings, afternoons, and evenings and varied significantly in length. In addition, many meetings were scheduled back-to-back, or only one or two days hence.
The transcripts of the meetings do not reflect any discussion or consideration of whether the continued date and time would be convenient or reasonable for the public to attend.
The circuit court found that during the twelve reconvened meetings, "the LUC considered reports and other documents and information related to the Wailea 670 Bills." The circuit court found that "[t]he deliberation process from October 22 through November 20, 2007 encompassed over 45 hours of deliberation by the LUC as part of the decision making process." (Emphasis added).
After October 18, 2007, no further oral testimony from the public was received by the LUC. With the exception of two meetings (November 13 and 16), the LUC members sought and received extensive input from Mr. Jencks, Honua'ula's representative. Mr. Jencks was present at every reconvened meeting.
At the conclusion of the final reconvened meeting on November 20, 2007, the LUC approved the Wailea 670 bills and forwarded them to the MCC for formal consideration. The LUC prepared a report to the MCC and recommended that the MCC pass the Wailea 670 bills on first reading.
2. February 8, 2008 meeting
The agenda for the MCC meeting of February 8, 2008, listing the first reading of the Wailea 670 bills as an agenda item, was filed with the County Clerk's office on February 1, 2008.
Prior to the February 8 meeting, MCC Chair Riki Hokama distributed three memoranda, all dated February 7, 2008, to the other MCC members. The first memorandum detailed floor amendments relating to the wastewater component of the Change in Zoning bill that Hokama intended to propose at the February 8 meeting. Hokama explained the substance of the proposed amendments and detailed the language that he proposed to add to, or delete from, the bill.
Chair Hokama's second memorandum detailed two proposed amendments, also related to the water component of the Change in Zoning bill, which would require Honua'ula to offer the County the right to purchase the water system it develops at the cost of development, and also require that the water rates for the residential workforce housing units be no higher than the water rates set by the County.
His third memorandum detailed a proposed amendment to clarify that the maximum number of dwelling units referenced in the Project District bill includes any off site residential workforce housing units. All three memoranda concluded, "I would appreciate your favorable consideration of these proposed floor amendments. Should you have any questions, please contact me or the Committee staff[.]" The names and extension numbers of two staff members were also included.
Member Michelle Anderson also sent a memorandum dated February 8, 2008, to Chair Hokama and the other MCC members, detailing three amendments to the Change in Zoning bill that she intended to propose at the upcoming meeting. The amendments would require Honua'ula to provide a bond and annual compliance reports to the MCC, and require that all residential units in the project be constructed to meet applicable Energy Star requirements. Each proposed amendment was followed by a section titled "Justification, " which detailed Anderson's rationale for the proposals. The memorandum ended, "I would appreciate your favorable consideration of these proposed floor amendments. Should you have any questions, please contact me."
Chair Hokama's three memoranda and Anderson's memorandum contained notations indicating that in addition to being sent to the other MCC members, copies were sent to the County Clerk, Director of Council Services, Planning Director, and Corporation Counsel.
Public oral testimony was taken at the February 8, 2008 meeting, including oral testimony by Petitioners Kanahele, Buchanan, and Conniff. All individuals who submitted requests to testify were given the opportunity to do so before Chair Hokama closed the oral testimony portion of the meeting. The MCC did not consider any of the proposed amendments detailed in Chair Hokama and Member Anderson's memoranda during the February 8 meeting. At 5:02 p.m., Chair Hokama announced, "The Council shall stand in recess, till 9:00 a.m. Monday morning [February 11], when we shall reconvene in these chambers."
No new agenda was posted for the February 11, 2008 meeting.
Prior to the February 11 meeting, Member Anderson prepared two memoranda, both dated February 11. The first memorandum set forth five amendments to the Project District bill that Anderson intended to propose at the February 11 meeting. The first three amendments sought to clarify the percentage of dwelling units that would be constructed, phase the development of dwelling units to minimize the impact on traffic during construction, and incorporate by reference the conceptual land use map for the project. The fourth and fifth amendments concerned the "grading of the project site and native Hawaiian access trails."
Anderson's second memorandum detailed two amendments to the Change in Zoning bill that she intended to propose at the February 11 meeting. One amendment concerned a timeframe for the widening of a highway prior to the commencement of construction. The second amendment sought to "re-describe the conservation easement" on the project site and to "allow for title to the conservation easement to be conveyed to a land trust."
Both of Anderson's memoranda concluded in a manner identical to Chair Hokama's February 7 memoranda, by stating, "I would appreciate your favorable consideration of these proposed floor amendments. Should you have any questions, please contact me or the Committee staff[.]" The names and extension numbers of two staff members were also included. The memoranda contained notations indicating that copies were sent to the County Clerk, Director of Council Services, Planning Director, and Corporation Counsel.
At the February 11 reconvened meeting, the MCC considered the proposed amendments. During the MCCs consideration of the amendments, the members were asked to reference the memoranda that had been distributed.
The MCC voted to adopt all of the proposed amendments. Among the amendments passed unanimously was Anderson's amendment to the Change in Zoning bill, to add a condition requiring Honua'ula to provide a bond or cash deposit to the MCC in an amount that would assure compliance with the zoning conditions.
Chair Hokama then asked Mr. Jencks to come forward to "provide comment" on the amendments. Mr. Jencks went through each amendment that had been passed that day and made suggestions or indicated Honua'ula's position on the amendment. Mr. Jencks was specifically asked to comment on the February 8 and February 11 memoranda distributed by Member Anderson and the amendments proposed therein, which he did by referencing specific sentences from the memoranda. He asked the MCC to "reconsider" certain amendments that had been passed. For example, Mr. Jencks stated that the bond requirement would be "impossible" to comply with, due to the difficulty in estimating the value of future work and his inability to obtain a bond until the construction drawings were completed, which he estimated would take five years.
Towards the end of the meeting, Chair Hokama suggested that the MCC either pass the bills on first reading or recess the meeting. Chair Hokama stated, "And the Chair expects any proposed revision shall be completely written up in advance of the meeting reconvening for the courtesy of the other Members to review so that we can take votes and make a determination on this application." Chair Hokama announced a recess of the meeting until February 14, 2008.
No new agenda was posted for the February 14 meeting.
Prior to the February 14 meeting, four MCC Members prepared and distributed a total of eight memoranda to the other Members. The memoranda contained notations indicating that copies were sent to the County Clerk, Director of Council Services, Planning Director, and Corporation Counsel.
Member Michael J. Molina prepared three memoranda, dated February 13, 2008. The first memorandum stated that he intended to propose reconsideration of the Council's vote to adopt the bond requirement for the Change in Zoning bill, citing Mr. Jencks' comments at the February 11 meeting. Molina stated that if his motion for reconsideration was carried, then the bill would return to the point when Anderson's motion to amend the bill to include the bond requirement was pending. Molina's second memorandum stated that he intended to propose reconsideration of the MCC s vote to add a new condition relating to energy systems, again citing Mr. Jencks' comments. The third memorandum proposed another reconsideration of the MCC s vote on grading, in order to incorporate revisions requested by Mr. Jencks.
Member Anderson also prepared and distributed three memoranda, dated February 13, 2008. The memoranda detailed Anderson's proposed motion to reconsider the MCCs vote approving the bond requirement, citing Mr. Jencks' concerns at the prior meeting. Contrary to Molina's motion to reconsider and rescind the amendment entirely, Anderson proposed reconsidering the vote and amending the primary motion to permit the bond to be provided in four five-year phases. Anderson also moved to reconsider the MCC s vote on the grading condition and to replace one of the maps that had been attached to the Change in Zoning bill, in light of Mr. Jencks' comments. The memoranda on grading and the map were accompanied by a separate "Justification Sheet, " detailing Anderson's rationale for her motions.
Member Bill Medeiros distributed a memorandum, dated February 13, 2008, setting forth his intent to move for reconsideration of the MCC s votes related to the wastewater treatment and sewage disposal conditions of the Change in Zoning bill, also citing Mr. Jencks' concerns.
Member Gladys Baisa distributed a memorandum, dated February 13, 2008, regarding her proposed motion to reconsider the amendment to the Project District bill, which limited the number of dwellings permitted to be constructed in the project district per year, again citing Mr. Jencks' comments.
All eight memoranda distributed concluded with the same phrase: "I would appreciate your favorable consideration of my proposal(s). Should you have any questions, please contact me or the Committee staff[.]" According to Chair Hokama's deposition testimony, all of the memoranda distributed were "prepared as a matter of courtesy."
On February 14, 2008, the meeting was reconvened at 9:05 a.m. At one point during the Members' discussion of Member Medeiros' motion to reconsider the MCC's vote requiring Honua'ula to construct a wastewater transmission system and a reclaimed water system, Member Anderson expressed her confusion over the motion. When Anderson asked to clarify the motion to reconsider proposed by Medeiros, Chair Hokama responded, "Yeah, so, . . . you have his proposal, and you must . . . just take what he has presented, Ms. Anderson, as part of his communication to the Members."
Several of the proposed motions for reconsideration were passed with no discussion (other than stating the proposed motion) prior to voting on the motion. For example, Member Molina's motion to reconsider the MCC s vote regarding the bond requirement was passed unanimously with no discussion on the merits of reconsidering the vote.
At the conclusion of the February 14 meeting, the MCC voted to pass the Wailea 670 bills on first reading.
3. Circuit court proceedings initiated
On March 5, 2008, Petitioners filed a complaint in the circuit court against the MCC and County of Maui, alleging violations of the Sunshine Law. Petitioners stated that the circuit court had subject matter jurisdiction over the claims for relief pursuant to HRS §§ 603-21.5,  92-12 and 92-13.
Petitioners alleged that the LUC "did not accept public testimony and did not file and post a notice of the meeting" for the LUC meetings held between October 22, 2007 and November 20, 2007. Additionally, Petitioners stated that during those meetings, the LUC "reviewed, discussed and deliberated information that was not available at the October 18, 2007 meeting[.]" Petitioners called the LUCs November 20, 2007 decision to pass the proposal out of committee for first reading before the MCC the "First Disputed Action."
Petitioners also alleged that the MCC "did not accept public testimony and did not file and post a notice" for the meetings held on February 11 and 14, 2008.
Petitioners asserted that "[o]n or before February 8, 2008, several members of [the MCC] transmitted and circulated to each other proposed amendments to the February 8 Agenda Proposed Action, " and that these written communications were done "before and outside the noticed February 8 meeting." Petitioners called these written communications the "Second Disputed Action."
Petitioners further alleged that MCC members transmitted and circulated proposed amendments to the February 8 proposed action prior to the meeting on February 14, 2008, and that these written communications were done outside of a noticed meeting. These communications were called the "Third Disputed Action."
The complaint concluded with the following request for a judgment against the MCC:
Wherefore Plaintiffs pray and demand judgment against defendants voiding actions taken at the November 20, 2007 meeting and the February 14, 2008 meeting, including the First, Second and Third Disputed Action, inconsistent with Haw. Rev. Stat. 92-3, Haw. Rev. Stat. 92-7 and therefore void and an award of reasonable attorney's fees and costs.
On March 11, 2008, Petitioners filed a Motion for Preliminary Injunction. Petitioners moved for an injunction staying any actions by the MCC related to the November 20, 2007 and February 14, 2008 decisions. The hearing on the motion was scheduled for April 8, 2008.
3. March 18, 2008 MCC meeting
On March 11, 2008, the MCC posted an agenda for a meeting scheduled for March 18, 2008. The agenda provided that the MCC would conduct a second and final reading of the Wailea 670 bills.
On March 18, 2008, public oral testimony was taken from the start of the meeting at 9:03 a.m. until 4:07 p.m., when all members of the public who came to testify had completed their testimony. Petitioners Conniff, Kanahele, and Buchanan testified during this meeting. In total, approximately forty-eight members of the public testified in regard to the Wailea 670 bills. Each person was given approximately three minutes to speak.
After the close of public testimony and the consideration of several unrelated bills, the MCC considered the Change in Zoning bill. The MCC considered several motions for amendments to the bill, all of which were defeated.
Two of the motions considered were brought pursuant to recommendations by the U.S. Fish and Wildlife Service. The first motion by Chair Hokama moved to amend the conditions of zoning to require Honua'ula to prepare an assessment of the development's impact on certain native species. During the discussion, Chair Hokama referred to a letter from the U.S. Department of the Interior and stated that the U.S. Fish and Wildlife Service specifically requested this condition. Member Anderson added that the request was made on February 21, "and it's only because they were informed by people about what was going on in this area, not by the applicant." Member Jo Anne Johnson also commented, "I think that it's unfortunate ...