Wailuku attorney Lance D. Collins can now get a decent night’s sleep.
On April 23 Judge Joseph Cardoza granted Collins a preliminary injunction in a case that challenges the Maui County Council Land Use Committees’ compliance with state Sunshine Laws in their discussion of zoning changes for the proposed Wailea 670 (“Honua‘ula”) development. The move freezes any county action involving the proposed development until the court rules on the overall case.
Five Kihei residents brought the case against the county. Their complaint questioned the legality of the county’s holding of several “recessed” meetings—which carry no public testimony requirement since they’re technically continuations of a prior meeting—to discuss crucial changes to the county plan, the county’s failure to issue a proper agenda for these meetings, and the inappropriate passing of memos among committee members concerning the issue.
“They should honor the process at the very least,” Danny Kanahele, one of the five, said. During his argument Collins cited more than 30 court cases and about a dozen attorney general opinions from across the country in his April 14 argument for the action. He even cited Thomas Jefferson.
Scoffing at such extensive referencing of out-of-state cases, county Corporation Counsel Mary Blaine Johnston said the county gave proper notice, that there was no violation of state Sunshine Laws, that Kanahele, et al (who have the burden of proof and must show harm on the part of the county) did not furnish enough evidence to the contrary and that the plaintiffs requested injunctive relief 16 days after the 90-day deadline for filing a complaint.
“We’ve gone through and shown that the public was allowed to testify,” Johnston told Judge Cardoza, though a number of Kihei residents say they were denied the right to testify at the recessed meetings. As for the memos, Johnston said that there “is nothing in the Sunshine Law that precludes this kind of behavior.”
Given the County Council’s passing of two Wailea 670-related bills, she added, the plaintiff’s request for injunctive relief was rendered moot, then “mooter” once Mayor Charmaine Tavares approved the project.
Cardoza, who had presided over the Hawai‘i Superferry case and is known for going by the book, was not convinced.
“While the Court does not make light of the work of members of the Maui County Council, the Court concludes that there are stronger things at play here,” he said in his opinion.
For his part, Collins said he hopes the court will eventually void actions taken by the county Land Use Committee as a result of “marathon recessed meetings” and that the county will have to start the process over.
In the meantime, last Wednesday’s outcome bars the county from any further Wailea 670-related actions. Though Charlie Jencks, who represents Wailea 670 Associates, said the injunction will not impact the company’s current plans.
“We have a lot of technical studies and preparation underway for the phase II submittal,” he said. “We’re continuing on with that effort.”
Jencks and crew also filed a motion to intervene in the case. The hearing for this will take place June 4. This, he said, will give the developer the right to participate in the discussion of what is to follow and “guide it to some logical conclusion” that satisfies everyone.
Judge Cardoza will hear Collins’ motion for summary judgment on the case May 30. The motion, if accepted, will prevent the case from going to trial if the material facts of the case are deemed indisputable.
Land Use Committee chairman Mike Molina would not comment for this story, saying he hasn’t yet received Cardoza’s written order. But Committee Member Mike Victorino said he saw no Sunshine Law violation, but respects Judge Cardoza’s ruling.
“Maui County has been very liberal in regard to public testimony,” he said, comparing the county’s three-minute public testimony policy to Oahu’s one-minute limit.
In fact, Victorino said, some of the changes made during the recessed hearings were in response to public testimony—namely, concerns over archaeological sites at Wailea 670 as well as infrastructure questions.
“There were no backroom deals,” Victorino said. “It was right there, in front of the people.”
As for Kanahele, he said that he and the other four plaintiffs (Warren Blum, Lisa Buchanan, James Conniff and Cambria Moss) are happy with the outcome.
“I think the evidence is on our side,” Kanahele said.
Kanahele said that he and the others are grateful for the injunction, and even compared it to Cardoza’s Superferry decision: “[It] puts Wailea 670 into dry dock.”
“I think Judge Cardoza’s decision was pono,” Kanahele added. MTW