Judge grants summary judgment in special management area rules case

Second Circuit Judge Kirstin Hamman has granted a Maui Tomorrow Foundation motion for summary judgment in a civil case challenging Maui County’s new rules for special management area assessments and permitting procedures.

According to an announcement of the decision by Maui Tomorrow, the judge invalidated the Maui Planning Commission’s recently updated special management area administrative rules.

So-called SMA rules govern activities near the shoreline in Hawaiʻi. The SMA is derived from the 1972 Coastal Zone Management Act, a federal law aimed at preserving, protecting, developing and restoring the nation’s coastal resources. The act encourages coastal states to develop and implement coastal zone management plans to balance land and water uses.

Maui County released a statement on the decision Friday afternoon. It said: “Maui County does not agree and is not aware of evidence showing that the amended rules have or would allow landowners and land users to evade assessment of impactful development projects in the Special Management Area. The Department of the Corporation Counsel is reviewing the circuit court order and considering whether appellate court review of the proposed rule amendments is appropriate.”

According to the Maui Tomorrow Foundation, it participated in last year’s rule-making process and warned county planners that the then proposed rules exceeded the authority of the planning commission.

After the proposed rules passed and were signed into law, Maui Tomorrow filed suit challenging the rules for “unlawfully delegating the county’s power to oversee development directly to developers.”

“The invalidated rules included wholesale exemptions that allowed developers to decide without county assessment that their projects were not subject to SMA regulation,” the foundation said.

“The Court agrees with Plaintiff that the new SMA rules impermissibly delegate Commission obligations to SMA users,” Hamman wrote. “The rules entrust the SMA user to determine whether its proposed SMA use fully falls within an exempt category, including as to whether it may have significant or cumulative impacts.”

“The Court’s order is a relief,” said Maui Tomorrow Executive Director Albert Perez. “Already we have seen the Planning Department directing developers to utilize ‘categorical exemptions’ instead of applying for assessments – even for projects with pretty obvious environmental impacts like the recent tree clearing operation in the Waipuilani wetlands in Kīhei.”

Attorney Lance Collins, who represented Maui Tomorrow with attorney Bianca Isaki, said: “These rules are part of an unrelenting attack on our community’s values to conserve and manage our public shoreline resources. This latest iteration where the county adopts a rule allowing a developer to decide for himself without any oversight when the law applies to his activities is the same as having no rule at all.”

Judge Hamman granted the plaintiff’s request for an injunction prohibiting implementation of the adopted SMA rules until the planning commission adopts new rules that do not exceed its authority.

The county may reinstate the old rules and maintain the status quo, she said.