Real Estate Law Journal

Supreme Court Reverses Land Use Commission For Setting Arbitrary Deadline

By Bruce D. Voss

The Hawaii Supreme Court sharply rebuked the State Land Use Commission for setting an arbitrary deadline on a permit condition, without any evidence to support the deadline.

The case arose from the City & County of Honolulu’s 2008 application for a special use permit to expand the existing Waimanalo Gulch Sanitary Landfill. The Land Use Commission approved the permit subject to a condition prohibiting the City from accepting any solid waste after July 31, 2012.

The July 31, 2012 date was established by one land use commissioner’s verbal motion, and was not based on any evidence in the permit proceeding. Indeed, the evidentiary record was clear that it would take at least seven years to identify and develop a landfill to replace the Waimanalo Gulch Landfill.

The Hawaii Supreme Court acknowledged the Land Use Commission’s authority to impose conditions on permit approvals, but emphasized that authority was not unlimited: “A decision to impose such a restriction must be supported by substantial evidence in the record.”

The Court reviewed the record at the County Planning Commission, which had approved the landfill extension before the matter went to the Land Use Commission. The Court held that “the Planning Commission’s Findings of Fact clearly demonstrate the continuing need to dispose of municipal solid waste at (the landfill) beyond July 31, 2012”-facts the Land Use Commission simply ignored in setting its own mid-2012 deadline. The Supreme Court vacated the arbitrary deadline and sent the case back to the Land Use Commission.

While the facts of the landfill case are somewhat unique, the Supreme Court decision has broader implications for developers and others seeking approvals at the Land Use Commission. The decision reiterates that Land Use Commission conditions must be based on the substantial factual evidence in the record, and not on the whims or personal opinions of any one land use commissioner.

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