Hale O Kawaipuna

The Hawaii Community Development Authority is hosting a third community workshop at the Hawaii Convention Center, Kauai Room 311, on October 28, 2010, from 5:30 - 7:30 p.m. to gather community input and comments on the HCDA's Kakaako Makai - Master Plan. For more information, visit http://hcda-public-consultation.org/portal.


HCDA plans and rules based on those plans will shape public and private development within the Kakaako Makai district.  For more on HCDA's planning initiatives, visit http://hilanduse.blogspot.com/search?q=hcda.

According to an E-mail received from the Hawaii Community Development Authority (HCDA), HCDA will be hosting an Open House at its office at 461 Cooke Street to gather community input and comments on the HCDA's Kakaako Makai - District Master Plan.

The Open House will be held on September 27 to October 2, 2010, as follows:

• Monday (9/27), Tuesday (9/28), Thursday (9/30) and Friday (10/1), 8:00 a.m. to 5:00 p.m.
• Wednesday (9/29), 8:00 a.m. to 8:00 p.m.
• Saturday (10/2), 9:00 a.m. to 12:00 p.m.

For more information, visit http://hcda-public-consultation.org/portal, and click on "Planning the Future of Kakaako Makai."

US News and World Report, known to many potential law students for its annual law school rankings, recently partnered with Best Lawyers to start a similar ranking for law firms. According to its Web site:

U.S. News and Best Lawyers, the leading survey of lawyers worldwide, have joined to rank nearly 9,000 firms in 81 practice areas in 171 metropolitan areas and 7 states.

The ranking system divides firms into tiers. The following Hawaii law firms are considered Tier 1 in the category of Land Use and Zoning Law:

• Ashford and Wriston, LLP
• Belles Graham Proudfoot Wilson and Chun, LLP
• Cades Schutte LLP
• Carlsmith Ball LLP
• Imanaka Kudo and Fujimoto LLLC

What these rankings mean for attorneys and their potential clients is currently being debated in legal circles.  But, if attorneys and clients come to rely on these rankings as a litmus test, it could be a game changer.  In particular, it may aversely impact solo-practitioners and smaller firms that have provided excellent service to clients in the area of land use law.

Whatever the outcome, if US New's annual law school ranking is any indicator, this will sell more magazines.

According to today's KHON2 News,

Governor Linda Lingle today announced state Department of Transportation (DOT) Director Brennon Morioka has accepted a job as executive vice president of Shioi Construction, Inc., in Pearl City. His last day at the DOT will be Thursday, Sept. 23.

Until another appointment is made by the governor,

Mike Formby, deputy director of the DOT Harbors Division, will serve as DOT’s acting director. Formby is a lawyer by training and prior to DOT, was the president and treasurer of Frame Formby and O’Kane, Attorneys at Law, where he was a senior litigation attorney.

Formby has taught admiralty law as an adjunct professor at the University of Hawai‘i William S. Richardson School of Law, co-chaired the State of Hawai‘i Land Use Commission, served on the Hawai‘i Community Development Authority and is the current chair of the State of Hawai‘i Employer-Union Health Benefits Trust Fund (EUTF). Prior to his private civil law practice in Hawai‘i commencing in 1990, Formby was a contracting officer in the U.S. Air Force, negotiating aircraft and software procurements under the Federal Acquisition Regulation.

UPDATE, 09/17/2010: Governor's press release, State Transportation Director Announces His Departure.

Aug. 25, 2010, 10:00 a.m., senate to consider whether to confirm the governor's appointment of Mark E. Recktenwald to serve as Chief Justice of the Supreme Court of the State of Hawaii.

On July 19, 2010, President Obama signed an Executive Order entitled, National Policy for the Stewardship of the Ocean, Coasts, and Great Lakes ("National Policy"). The Order sets forth the first of its kind National Policy and creates a National Ocean Council ("NOC") to strengthen ocean governance and coordination.

The Order is based on final recommendations of the Ocean Policy Task Force ("Final Recommendations"). The Final Recommendations prioritize actions for the NOC to pursue, and it calls for a flexible framework for coastal and marine spatial planning to address conservation, economic activity, user conflict, and sustainable use of the ocean, coasts, and the Great Lakes.

Section 1 of the Order lays out its purpose as follows:

• establish a national policy to ensure the protection, maintenance, and restoration of the health of ocean, coastal, and Great Lakes ecosystems and resources,
• enhance the sustainability of ocean and coastal economies,
• preserve our maritime heritage,
• support sustainable uses and access,
• provide for adaptive management to enhance our understanding of and capacity to respond to climate change and ocean acidification,
• coordinate with our national security and foreign policy interests, and
• provide for the development of coastal and marine spatial plans that build upon and improve existing Federal, State, tribal, local, and regional decisionmaking and planning processes.

Under Section 2 of the Order, ten policy objectives are identified as follows:

1. protect, maintain, and restore the health and biological diversity of ocean, coastal, and Great Lakes ecosystems and resources;
2. improve the resiliency of ocean, coastal, and Great Lakes ecosystems, communities, and economies;
3. bolster the conservation and sustainable uses of land in ways that will improve the health of ocean, coastal, and Great Lakes ecosystems;
4. use the best available science and knowledge to inform decisions affecting the ocean, our coasts, and the Great Lakes, and enhance humanity's capacity to understand, respond, and adapt to a changing global environment;
5. support sustainable, safe, secure, and productive access to, and uses of the ocean, our coasts, and the Great Lakes;
6. respect and preserve our Nation's maritime heritage, including our social, cultural, recreational, and historical values;
7. exercise rights and jurisdiction and perform duties in accordance with applicable international law, including respect for and preservation of navigational rights and freedoms, which are essential for the global economy and international peace and security;
8. increase scientific understanding of ocean, coastal, and Great Lakes ecosystems as part of the global interconnected systems of air, land, ice, and water, including their relationships to humans and their activities;
9. improve our understanding and awareness of changing environmental conditions, trends, and their causes, and of human activities taking place in ocean, coastal, and Great Lakes waters; and
10. foster a public understanding of the value of the ocean, our coasts, and the Great Lakes to build a foundation for improved stewardship.

The Order directs all executive departments, agencies, and offices that are members of the NOC to implement the policies set forth in section 2 of the Order, to participate in the process for coastal and marine spatial planning, and to comply with NOC certified coastal and marine spatial plans.

The NOC plans to hold its first meeting later this summer to begin implementing the National Policy.

According to a July 16, 2010 news release, the governor has appointed Charles Jencks to serve as an interim commissioner on the state Land Use Commission (LUC).   Jencks will replace former LUC commissioner Ransom Piltz, who recently stepped down to run for mayor of the County of Maui.

Jencks formerly served as the Director of Public Works and Waste Management under then mayor Linda Lingle.  Jencks is currently a representative for Honua‘ula Partners, LLC, which is the developer of the contentious Wailea 670 project on Maui.

Jencks may serve out Piltz's term, which ends in 2014.

The Hawaii Supreme Court's ("HSCT") recent decision in County of Hawaii v. Ala Loop Homeowners, July 9, 2010, holds that complainant had a private right of action under article XI, section 9 of the Hawai'i Constitution to enforce its HRS chapter 205 (Hawaii's land use law) claims against a landowner.

The decision abrogates the ICA’s decision in Pono v. Molokai Ranch, Ltd., 119 Hawai'i 164 (2008), cert. rejected, 2008 WL 5392320 (Haw. Dec. 29, 2008).  In Pono, the ICA held that “private citizens do not have a private right of action to enforce the provisions of HRS chapter 205 and, therefore, lack standing to invoke a circuit court’s jurisdiction to determine their claims to enforce Chapter 205.” (Emphasis added.)

The HSCT opined that the Pono court failed to look at whether any of Hawaii's constitutional provisions provided a private right of action to enforce HRS chapter 205. In particular, article XI, section 9 of the Hawai'i Constitution provides as follows:

Each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources. Any person may enforce this right against any party, public or private, through appropriate legal proceedings, subject to reasonable limitations and regulation as provided by law.

The HSCT determined that this constitutional provision provides both substantive and procedural rights.  It then concluded that (1) article XI, section 9 applies to HRS chapter 205 because it is a "law[] relating to environmental quality"; (2) article XI, section 9 is self executing; and (3) the legislature did not limit or restrict the ability of private persons to enforce the provisions of HRS chapter 205.

The impact of this decision is far reaching. The broad interpretation of article XI, section 9 potentially expands the causes of action under various, as yet identified, "environmental quality" statutes. This will have an exponential effect on the number of plaintiffs' law suits. However, while creating more causes of action, the opinion does not change the requirements for establishing standing.  Standing must be established regardless of the existence of new and additional causes of action cognizable in Hawaii's courts.

A copy of the opinion is posted at http://www.courts.state.hi.us/opinions_and_orders/opinions/2010.