In Kauai Springs struggling, The Garden Island (the Kauai daily newspaper) writes about
The Kauai Planning Commission (Planning Commission) asks this Court to validate a remarkable theory: that in the course of reviewing whether Kauai Springs, Inc. (Kauai Springs) was entitled to three simple zoning permits for its agriculturally-zoned land, the public trust doctrine required the Planning Commission to determine water rights and water usage – issues acknowledged as beyond the Planning Commission’s competence, and beyond its jurisdiction.
The Planning Commission’s consideration of the zoning permits required it to determine whether Kauai Springs’ use of its land was “compatible with the neighborhood” and whether it was “reasonable use of land situated within the Agricultural or Rural District.” Further, Haw. Rev. Stat. § 91-13.5 (1998) and Kauai’s “deemed approved” ordinances mandate that if the Planning Commission did not process the applications within certain times, they were automatically approved.
The Planning Commission, however, did not focus on these issues. Instead, after the “deemed approved” deadlines had expired, it denied the zoning permits because “the land use permit process should insure that all applicable requirements and regulatory processes relating to water rights, usage, and sale are satisfactorily complied with prior to taking action on the subject permits.” R:CV07-1-0042 at176. The only such “regulatory process” identified by the Planning Commission was that Kauai Springs had not “proactively sought a declaratory ruling” from either the State Commission on Water Resources Management (Water Commission or CWRM) or the State Public Utilities Commission (PUC), even though these agencies had already informed the Planning Commission they had no concerns with Kauai Springs. The Planning Commission even second-guessed the PUC’s conclusion that none of the water bottling companies in the state – including Kauai Springs – is a “public utility” when it denied the zoning permits because Kauai Springs had not sought a PUC declaratory ruling to that effect.
Consequently, the circuit court rejected the Planning Commission’s claim that the public trust doctrine requires an open-ended and standardless inquiry, and concluded that the Planning Commission fulfilled any duties it may have had under the public trust because it had done everything it said it needed to do. The court also concluded the zoning permits had been approved by operation of law, and that the Planning Commission’s denial – lacking any substantial justification – was arbitrary and capricious.
In this secondary appeal, the Planning Commission focuses on the circuit court’s “implicit holdings” rather than what the circuit court actually held. See, e.g., Op. Br. at 12 (the circuit court “erred in implicitly holding in its Conclusions of Law that the Planning Commission had no duty under the public trust to consider [Kauai Springs]’s water use.”) (emphasis added). The circuit court did not hold the Planning Commission had “no duty” under the public trust: it acknowledged the Planning Commission has public trust duties, but determined “[t]here is nothing in the Record of this case to show that the Planning Commission did not fulfill any duty it may have under the public trust.” R:CV07-1-0042 at189 (citing Kelly v. 1250 Oceanside Partners, 111 Haw. 205, 140 P.3d 985 (2006)). At no time during the series of hearings it conducted, or in the circuit court, did the Planning Commission point to any information it lacked. Even now, its Opening Brief fails to articulate what its public trust duties supposedly encompass beyond having Kauai Springs prove “that the use of water was legal” (and it does not explain what this is supposed to entail). Op. Br. at 1. Indeed, the Planning Commission’s written findings were internally contradictory, got undisputed facts wrong, and appear to have been hastily drafted in an attempt to avoid the “deemed approved” deadlines.
Consequently, the circuit court correctly concluded the Planning Commission’s decision to deny the three zoning permit applications was “in violation of statutory provisions, in excess of the statutory authority or jurisdiction of the Planning Commission, made upon unlawful procedure, affected by other error of law, clearly erroneous, and arbitrary, or capricious.” R:CV07-1-0042 at 190. The circuit court’s findings of fact are not clearly erroneous and it made no reversible errors of law. The judgment of the circuit court should be affirmed.
Better yet, read the briefs: