Ho'oponopono O Mākena v. Maui Planning Commission

Opinion

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 06-AUG-2026 07:52 AM Dkt. 68 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

HO‘OPONOPONO O MĀKENA, a domestic non-profit corporation, and MAUI TOMORROW FOUNDATION, a non-profit corporation, Plaintiffs/Appellants-Appellants, v. MAUI PLANNING COMMISSION; COUNTY OF MAUI, DEPARTMENT OF PLANNING; and HONUA‘ULA PARTNERS, LLC, a Delaware limited liability company, Defendants/Appellees-Appellees

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CASE NO. 2CCV-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER (By: Wadsworth, Presiding Judge, Guidry and Gluck, JJ.)

Plaintiffs/Appellants-Appellants Hoʻoponopono O Mākena

and Maui Tomorrow Foundation, Inc. (collectively, Appellants)

appeal from the "Findings of Fact (FOFs), Conclusions of Law

(COLs), and Order on Constitutional Issues Raised by Appellant"

(Order), entered January 2, 2024, and "Final Judgment," entered NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

February 7, 2024, by the Circuit Court of the Second Circuit

(circuit court). 1

This is a secondary appeal. The circuit court's Order

and Final Judgment affirmed Defendant/Appellee-Appellee Maui

Planning Commission's (MPC) November 22, 2022 "[FOFs], [COLs]

and Decision and Order" (MPC Order), which gave Phase II

approval -- pursuant to Maui County Code (MCC) § 19.45.050(B) --

for the development of Defendant/Appellee-Appellee Honuaʻula

Partners, LLC's (HP) Honuaʻula master planned residential

community (the Project). 2

Appellants raise four points of error (POEs) on

appeal, contending that the circuit court erred in affirming the

MPC Order because: (1) "the [P]roject did not comply with"

Ordinance No. 3553; (2) "the [P]roject did not comply with"

Conditions 6, 12, 18, and 20 of Ordinance Nos. 3554 and 4849;

1 The Honorable Peter T. Cahill presided.

2 The Project is part of a "project district" that is governed pursuant to MCC chapter 19.45. Project district developments are subject to a three-phase "[p]rocessing procedure." MCC § 19.45.050. In Phase I, the developer initiates a project district development by submitting an application to the Director of the Maui Department of Planning (Planning Director). MCC § 19.45.040(A). The Planning Director then submits "one or more proposed project district ordinances" to the MPC. MCC § 19.45.050(A). The MPC then holds public hearings on the proposed ordinances before submitting a recommendation and the proposed ordinances to the Maui County Council for final approval. Id. Here, the Project received Phase I approval through the adoption of Maui County Ordinance (Ordinance) Nos. 3553 and 3554.

In Phase II, the developer submits a "preliminary site plan" for the MPC's review and approval, and in Phase III, the developer submits a "final site plan" for the Planning Director's review and approval. MCC § 19.45.050(B), (C).

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(3) the MPC operated "upon unlawful procedure and in exceedance

of its authority under article I, §5 of the Hawaiʻi Constitution

and [Hawaii Revised Statutes (HRS)] § 91-9(b) [(Supp. 2021)] by

delegating authority to HP to determine its 'substantial

compliance'" and "permitting HP to continually amend [the

Project] throughout the proceedings so as to deprive Appellants

of meaningful notice of the issues in the case[] and an

opportunity to protect their property rights"; and (4) the MPC

violated HRS chapter 343 by not requiring a supplemental

environmental impact statement (SEIS) prior to Phase II

approval.

We review secondary appeals de novo and apply the

standards set forth in HRS § 91-14(g) (Supp. 2016) 3 to determine

3 HRS § 91-14(g) provides, in relevant part:

Upon review of the record, the court may affirm the decision of the agency or remand the case with instructions for further proceedings; or it may reverse or modify the decision and order if the substantial rights of the petitioners may have been prejudiced because the administrative findings, conclusions, decisions, or orders are:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority or jurisdiction of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(continued . . .)

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whether the circuit court's determinations were right or wrong.

Flores v. Bd. of Land & Nat. Res., 143 Hawaiʻi 114, 120, 424 P.3d

469, 475 (2018). Upon careful review of the record, briefs, and

relevant legal authorities, and having given due consideration

to the arguments advanced and the issues raised by the parties,

we address Appellants' POEs as follows:

(1) POE 1 and POE 2 Regarding Conditions 12 and 18: We

first address HP's argument that Ordinance Nos. 5846 and 5847,

which were adopted in August 2025 and amend Ordinance Nos. 3553,

3554, and 4849, partially moot Appellants' appeal. See State v.

Hewitt, 153 Hawaiʻi 33, 41-42, 526 P.3d 558, 566-67 (2023)

(holding that "mootness, like standing, is a prudential concern"

that "is an issue of justiciability, not an issue of subject

matter jurisdiction" (cleaned up)).

Appellants contend in POE 1 that the Project did not

comply with Ordinance No. 3553, which they argue requires HP to

provide 450 workforce housing units and a golf course.

Appellants contend in POE 2 that, inter alia, the Project failed

to comply with Conditions 12 and 18 of Ordinance Nos. 3554 and

3(. . . continued) (5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(6) Arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

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4849, which set forth conditions pertaining to golf courses.

Ordinance No. 5846 amended Ordinance No. 3553, and clarifies

that the Project must provide a minimum of 288 workforce housing

units. Ordinance Nos. 5846 and 5847 amend Ordinance Nos. 3553,

3554, and 4849 to delete language and requirements relating to

golf courses.

Given the amendments, the matter of how many workforce

housing units are required and/or whether the Project must

include a golf course are no longer live controversies, such

that there is no "adverse interest" for this court to address or

"effective remedy" for this court to impose. See Lathrop v.

Sakatani, 111 Hawaiʻi 307, 313, 141 P.3d 480, 486 (2006)

(citations omitted). Moreover, we conclude that none of the

exceptions to mootness -- i.e., capable of repetition yet

evading review, collateral consequences, or public interest --

apply here.

We therefore decline to address POE 1, as well as the

contentions in POE 2 that relate to the golf course.

(2) POE 2 Regarding Condition 6: We next turn to the

merits of Appellants' remaining contention in POE 2, which is

that the MPC exceeded its authority by approving HP's Phase II

application because the application did not comply with

Condition 6 of Ordinance No. 3554, which states,

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That a Drainage Master Plan and Phasing Plan of improvements shall be submitted for review and approval during Project District Phase II processing. Said plan shall include the recommended drainage improvements as represented in the Preliminary Drainage Report. The County may require periodic updates of the Drainage Master Plan and Phasing Plan.

Appellants contend that the MPC therefore erred in entering its

FOF 221, which found HP "in compliance with Condition 6," and

COL 17, which concluded that "[i]n light of [HP's] actions, the

credible testimony of [Stacy] Otomo, and FOFs 191-221, [HP]

satisfied Condition 6."

We review the MPC's FOFs and mixed questions of fact

and law under the "clearly erroneous" standard. Irving v. Ocean

House Builders, 136 Hawaiʻi 483, 485, 363 P.3d 331, 333 (App.

2015) (citation omitted); Panado v. Bd. of Trs., Emps.' Ret.

Sys., 134 Hawaiʻi 1, 12-13, 332 P.3d 144, 155-56 (2014). "An

agency's findings are not clearly erroneous and will be upheld

if supported by reliable, probative and substantial evidence

unless the reviewing court is left with a firm and definite

conviction that a mistake has been made." Morimoto v. Bd. of

Land & Nat. Res., 107 Hawaiʻi 296, 302, 113 P.3d 172, 178 (2005)

(citation omitted).

As part of its Phase II application, HP submitted a

May 2017 "Preliminary Engineering Report," which included

preliminary drainage plans for the Project. HP submitted

updated drainage plans on March 14, 2022 and August 12, 2022.

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Appellants contend that these updated drainage plans do not

"include the recommended drainage improvements as represented in

the Preliminary Drainage Report," and otherwise "lack analysis

and essential details and were not subject to agency review and

comment procedures."

On this record, we conclude that there was substantial

evidence to support the MPC's finding that the Phase II

application complied with Condition 6. HP retained Stacy Otomo

(Otomo), a licensed civil engineer, to testify as an engineering

expert at the contested case hearing on the Phase II

application. Otomo testified that the drainage system planned

for the Phase II application would provide adequate surface

water management and substantially more drainage than what the

county required. Otomo further testified that the updates to

the drainage plan were made in response to MPC feedback. And

Otomo testified moreover that, at the Phase II application

stage, it is only necessary for HP to show a conceptual map;

construction level mapping occurs during Phase III of the

application process.

We therefore affirm the MPC's determination that HP's

Phase II application satisfied Condition 6.

(3) POE 3: Appellants contend that the MPC committed

various procedural violations during the approval process, and

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that the circuit court erred in finding no error. "Questions

regarding procedural defects are reviewable to determine whether

the decision was made upon unlawful procedure[.]" Irving, 136

Hawaiʻi at 485, 363 P.3d at 333 (citations omitted). "Review of

a decision made by a court upon its review of an administrative

decision is a secondary appeal. The standard of review is one

in which this court must determine whether the court under

review was right or wrong in its decision." Tauese v. Dep't. of

Lab. & Indus. Rels., 113 Hawaiʻi 1, 25, 147 P.3d 785, 809 (2006)

(citation omitted).

We address Appellants' contentions as follows:

First, Appellants contend that HP's Phase II

application violated MCC §§ 19.45.050 and 19.510.010 because it

was not "complete" when submitted. 4

4 MCC § 19.510.010(C)(1) states, in relevant part, "[w]ithin fifteen business days after receiving an application [for permit or approval], the [Planning Director] shall review the application and determine if the application is complete or incomplete," and that, "[i]f the application is incomplete, the [Planning Director] shall provide the applicant with a written statement that identifies the portions of the application that are incomplete."

MCC § 19.45.050(B)(1) provides that for Phase II applications, "the applicant shall submit . . . a preliminary site plan," which includes:

a. Proposals for drainage, streets, parking, utilities, grading, landscaping, architectural design concepts and guidelines, building elevations, building sections, construction phasing, open spaces, land uses, and signage; b. Proposals for recreational and community facilities; c. Proposals for floor area ratios, lot coverages, net buildable areas, open space ratios, impervious ratios, and density factors; and (continued . . .)

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Appellants contend that HP's submission of updated

drainage plans in March and August 2022 demonstrates that the

original Phase II application was incomplete at the time it was

submitted. As discussed, supra, the updated drainage plans were

submitted to address and respond to comments from the public and

the MPC. As such, they were submitted in response to feedback

on the original drainage plan. Appellants' contention lacks

merit. 5

Second, Appellants contend that the MPC erred in

"unlawfully delegating" authority to HP. Appellants challenge

Condition 7 in the MPC Order, which conditioned Phase II

approval on the following:

7. That [HP] shall develop the property in substantial compliance with the conceptual site plan, phasing plan and roadway site layout plans dated January 13, 2022 and the Drainage Ma[s]ter Plan Depicting Preserved Sites, Features and Cultural Use Sites North of the NPPA dated August 12, 2022 (HP's Exhibit 53), and representations made to the [MPC] in obtaining the Project District Phase II Approval and shall submit to the Department a report addressing its compliance with the conditions established with the subject Project District Phase II Approval prior to issuance of Phase III approvals for each phase of the development. Failure to so develop the property may result in the revocation of the permit.

(Emphasis added.)

4(. . . continued) d. Potential environmental, socioeconomic, and aesthetic impacts.

5 Appellants' contention that HP's Phase II application was not "complete" because it did not include adequate workforce housing units and plans for a golf course are moot, as discussed in section (1), supra.

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Appellants appear to interpret the above condition as

requiring HP to "determin[e] substantial compliance of the

application and site plan." Contrary to Appellants' contention,

however, the MPC was not "delegating" its authority but, rather,

placing the onus on HP to comply with the MPC's conditions, and

to demonstrate its compliance through the submission of a report

"prior to issuance of Phase III approvals for each phase of the

development." Read in context, Condition 7 called for HP's

"substantial compliance" with the plans submitted and

representations made to the MPC during the contested case

hearing. Appellants' contention lacks merit.

Third, Appellants contend that they were denied due

process because the MPC allowed HP to submit updated drainage

plans in March and August 2022. The thrust of their contention

appears to be that, by permitting HP to submit updated drainage

plans, MPC created "a high risk of depriving Appellants' ability

to protect their constitutional rights due to the material

limitations of time and resources to review and respond to [the]

changes."

Appellants fail to demonstrate how HP's submission of

its March and August 2022 updated drainage plans created "the

risk of an erroneous deprivation" of Appellants' significant

property interest. See Sandy Beach Def. Fund v. City Council of

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the City & Cnty. of Honolulu, 70 Haw. 361, 378, 773 P.2d 250,

261 (1989) (citations omitted). The final updated drainage plan

was dated August 12, 2022, which was over a week prior to the

final contested case hearing on August 23, 2022, and over a

month before the MPC voted to approve the Phase II application

after hearing further arguments from the parties. Moreover, at

the contested case hearing, Appellants were permitted to conduct

direct and cross examination of witnesses, make oral motions,

and present their arguments. Appellants' contention lacks

merit.

We conclude that the MPC did not commit the procedural

errors alleged.

(4) POE 4: Appellants contend that the MPC exceeded

its statutory authority by failing to require HP to prepare a

SEIS because the Project "substantially changed" between the

time the final environmental impact statement (FEIS) was

submitted and approved in 2012 and the time HP submitted its

operative Phase II application in 2018. Given these changes,

Appellants argue the MPC exceeded its authority by approving the

Phase II application without first requiring a SEIS to address

these changes to the Project.

Hawaiʻi Administrative Rules § 11-200.1-30(a) (eff.

2018) states, in pertinent part, "no [SEIS] for [a] proposed

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action shall be required, to the extent that the action has not

changed substantively in size, scope, intensity, use, location,

or timing, among other things." Appellants argued to the MPC

that HP's substantive changes to the scope of the Project

necessitated a SEIS. The MPC did not address or consider the

Project's Phase II changes in determining that a SEIS was

unnecessary; rather, the MPC determined that a SEIS was not

warranted because the MCC does not expressly require a SEIS to

be submitted as a condition for Phase II approval.

We conclude that the MPC erred in this regard, and we

therefore vacate in part, with instructions that the MPC

consider and determine on remand whether the Project's

substantive changes "in size, scope, intensity, use, location,

or timing" since the FEIS was approved in 2012, warrants the

submission of a SEIS.

For the foregoing reasons, we affirm in part and

vacate in part the circuit court's Order and Final Judgment, and

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we remand to the MPC for further proceedings consistent with

section (4), supra.

DATED: Honolulu, Hawaiʻi, August 6, 2026.

On the briefs: /s/ Clyde J. Wadsworth Presiding Judge Bianca Isaki, Ryan D. Hurley, and Lance D. Collins, /s/ Kimberly T. Guidry for Plaintiffs/Appellants- Associate Judge Appellants. /s/ Daniel M. Gluck Mallory T. Martin, Associate Judge for Defendant/Appellee- Appellee.

Brian A. Bilberry, for Defendants/Appellees- Appellees.