Agenda - Planning Commission - 10/04/2012

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August 10, 2012 I Volume 6 ( Issue 15 Zoning Bulletin The circuit court affirmed Condition 14. DES appealed, and the Supreme Court of Hawai'i granted an application of transfer to itself. On appeal, DES reiterated its position that the imposition of Condition 14 was arbitrary in light of the record and findings adopted by the LUC, which it said: "clearly demonstrated the continuing need to dispose of, [among other things], [municipal solid waste] at WGSL beyond July 31, 2011." Moreover, DES argued that no other landfill site would be available by July 31, 2012, as the record and the findings adopted by the LUC established that it would take more than seven years to identify and develop a new landfill site to either replace or supplement WGSL. DES asked the court to strike the July 31, 2012, deadline to accept municipal solid waste at WGSL, contained in Condition 14 of the LUC Order, and to permit the disposal of municipal solid waste at WGSL until that site reached capacity. DECISION: Vacated, and matter remanded with instructions. The Supreme Court of Hawai'i held that, as a matter of first impression (i.e., the first time the issue was addressed by the court), the LUC's action in imposing Condition 14 was not supported by substantial evidence. The court explained that although the LUC had the authority to impose re- strictive conditions in its approval of SUPs (HRS § 205-6(d)), its decision to impose such a restriction had to be supported by substantial evidence. Never having previously looked at the issue of whether a restrictive condi- tion imposed by decision or order of the agency (LUC) was supported by substantial evidence, the court looked to the federal Administrative Procedure Act. Under that Act, the court found the authority that: a "reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . unsupported by substantial evidence." (5 U.S.C.A. § 706(2)(E).) Ultimately, the court found that the LUC's action in imposing Condition 14 was inconsistent with the evidence shown in the record and not supported by substantial evidence. The court found that the facts adopted by the LUC did not support the restriction in Condition 14 imposing a termination date of July 31, 2012, for the deposit of municipal solid waste at WGSL. To the contrary, as DES had argued, the court found the facts clearly demonstrated: the continu- ing need to dispose of municipal solid waste at WGSL beyond July 31, 2012; that the WGSL was the only permitted public municipal solid waste facility on the island of Oahu; and that a related City and County Planning Commission's Decision and Order had expressly provided that municipal solid waste could be deposited at WGSL's expanded site "until capacity as allowed by the State Department of Health is reached." Thus, concluded the court: "the evidence in the record as a whole d[id] not support, much less constitute `substantial evidence' for the imposition of Condition 14." Accordingly, the court held that Condition 14 could not stand. Having held that Condition 14 could not stand because it was inconsistent with the evidence shown in the record and not supported by substantial evi- dence, the court concluded that the LUC's approval of the SUP also could not stand because Condition 14 was a material condition to the LUC's approval. 6 © 2012 Thomson Reuters