High court upholds state land-use decision

The Hawaii Supreme Court has refused to reconsider its decision that found that the state Constitution permits private parties to seek a review by the state Land Use Commission of proposals on agricultural lands.

The high court ruled Tuesday that a homeowners association could seek the review on a proposal to build the Waiola Waters of Life Charter School on agricultural lands in Puna on the Big Island.

Chief Justice nominee Mark Recktenwald had written the 81-page opinion citing the constitutional provisions that says "each person has the right to a clean and healthful environment" and "any person may enforce this right against any party, public or private."

The ruling issued July 9 drew a strong reaction from Attorney General Mark Bennett, whose office argued that the decision "made new law" and would affect state and county governments, pending court cases and proceedings before land use and environmental regulatory agencies.

In a 4-1 vote, the high court said it considered the arguments, but denied the reconsideration request.

Bennett said Tuesday he thinks the high court's ruling "will significantly increase litigation." State and county governments will have to consider "this private right of action" in adopting legislation to move forward on various projects, he said.

But David Kimo Frankel, Native Hawaiian Legal Corp. attorney, said the high court did not make "new law" and said he doesn't believe there will be any increase in litigation.

"Citizens and community groups have been suing successfully to enforce state land use and environmental laws for decades," he said.

Frankel said the Intermediate Court of Appeals issued a ruling in 2008 that had temporarily closed the courthouse doors to those challenges. The high court's ruling reopened them, he said.

The decision "restores the status quo that allows citizens to enforce environmental laws and prevent developers from working behind closed doors with government officials in a way that jeopardizes or risks the public's natural resources," Frankel said.