Real Estate Law Journal

Supreme Court Clarifies Requirements of Sunshine Law

By Bruce Voss

The Hawaii Supreme Court has finally shed some light on the requirements of the Sunshine Law, in a ruling long anticipated by real estate project developers and opponents.

The case arose from the Wailea 670 project, which has been in the works since 1986.  The project’s most recent approvals stretched over 13 meetings of the State Land Use Commission, and four meetings of the Maui County Council.  Project opponents contended that the many continuances, along with private communications among Maui County Council members, violated the state’s open meetings law (also known as the Sunshine Law).

The Supreme Court first considered whether a board or commission is limited to a single continuance of a hearing under the Sunshine Law.  The Court found “the legislative history of the Sunshine Law reflects a concern for balancing public access to board meetings with the board’s continued ability to effectively conduct its business.”

The Court found that a board considering whether to approve a development project may continue a hearing more than once to hear additional testimony, provided that the hearing is “continued in a manner that complies with the spirit and purpose of the law.”  The Court noted boards may permit “periodic oral testimony by members of the public, as issues develop during the deliberation process.”  As to form of the notice of continued hearing, the Court stated:  “While a continued meeting does not require a board to post a new agenda, nevertheless the means chosen to notify the public of the continued meeting must be sufficient to ensure that meetings are conducted as openly as possible and in a manner that protects the people’s right to know.”

The Court next considered whether the “Sunshine Law permits board members to circulate written memoranda among all other members, in which board members present proposed actions, include justifications for the proposals.”  Such private communications frequently occur between board members as they try to persuade other members how to vote on a pending project proposal.

The Court found that the memoranda circulated among Maui County Council members, privately soliciting the votes of other Council members for conditions on the project, violated the Sunshine Law.  Such conduct by board members “circumvents the spirit of the Sunshine Law,” and “directly violates the policy of opening up the governmental processes to public scrutiny and participation,” the Court held.

Despite the Sunshine Law violations, the Hawaii Supreme Court upheld the Maui County Council’s zoning approvals for the project because the opponents failed to file their appeal on time.

Developers and land use attorneys should carefully read the Wailea 670 opinion, to ensure that government boards follow the clarified requirements of the Sunshine Law and that project approvals are not subject to being voided for Sunshine Law violations.

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