The Sierra Club, Hawai`i Chapter, is appealing the recent action of the Land Use Commission to reclassify lands in Central O`ahu for the Koa Ridge development proposed by Castle & Cooke.
The organization was an intervenor in the LUC’s formal contested case on the boundary amendment petition. Its proposed conditions of approval were by and large rejected by the commission, when the Koa Ridge petition was approved in September.
On November 10, Colin A. Yost, the attorney representing the Sierra Club, filed an appeal in 1st Circuit Court.
The basis for the appeal is the claim that the commission’s 6-1 vote approving the boundary amendment petition should be nullified because one of the commissioners voting in favor, Duane Kanuha, is not legitimately a member of the commission.
If Kanuha’s vote is disqualified, the commission would not have the six votes that are required for any boundary amendment petition to be approved.
Kanuha’s first term on the LUC expired June 30, 2009. Lingle did not submit his nomination for a second four-year term to the Senate until April of this year. His reappointment passed initial review by the Senate Committee on Water, Land, Agriculture and Hawaiian Affairs, which gave him a lukewarm vote of confidence. But the full Senate rejected him, with just nine senators voting in favor and 14 opposed.
In his appeal, Yost argues that the presence of Kanuha on the LUC violates the state Constitution, state law, and one provision of the LUC’s own rules.
Article V, Section 6 of the state Constitution, Yost notes, specifies what is required for gubernatorial appointments to boards and commissions. If an appointment is made while the Senate is not in session, it is valid only until the end of the next session of the Senate. If the Senate has not confirmed the appointment by that time, “the person so appointed shall not be eligible for another interim appointment to such office.”
Furthermore, if someone is nominated but fails to win the Senate’s consent, that person is ineligible to serve as an interim appointment. “Mr. Kanuha violated Article V, Section 6 … by continuing to act as a commissioner after the Senate’s rejection of his nomination on April 26, 2010,” Yost writes in his appeal.
Section 24.36, Hawai`i Revised Statutes, sets the conditions on holdover appointments. “Any member … whose term has expired and who is not disqualified for membership … may continue in office as a holdover member until a successor is nominated and appointed” until the end of the “second regular legislative session” following the expiration of the member’s term. (A separate section of this law precludes membership beyond eight consecutive years, however.) By having failed to win confirmation to a second term, Yost argues, Kanuha was effectively disqualified from membership under this section of the law.
By deeming the Koa Ridge petition approved, the LUC violated yet another section of Chapter 205 and the commission’s rule, HAR 15-15-13. Without Kanuha’s vote, just five votes favoring the petition would have been cast, causing the petition to be denied, Yost points out.
The Sierra Club is asking the court to stay the LUC order and prevent Castle & Cooke from taking action on it, reverse the commission’s order in the case, remand the case to the commission, and grant attorneys’ fees and court costs.
The Koa Ridge petition involved a total of 767 acres in central O`ahu, straddling the H-2 highway near Mililani. Castle & Cooke’s plans for the area are to build a total of 5,000 residential units, a medical center, commercial area, hotel, light industrial park, schools, parks, churches, and a recreation center on the land.
The LUC approved the redistricting into Urban of the 576-acre area west of H-2, known as Koa Ridge Makai, as Increment 1. The eastern 191 acres, known as Castle & Cooke Waiawa, Increment 2, was given conditional approval, with redistricting to occur when and if an adjoining project, Waiawa Ridge, commences development. (Waiawa Ridge, which was urbanized in 1988, has not yet been developed; according to the LUC’s decision and order, the current landowner “is assessing the status of the development and has not formulated definitive plans.”)