Getting a permit to build a condominium tower in Kakaako was never a cakewalk, but the process is now shifting to a more rigorous, quasi-judicial and potentially adversarial format.
The state agency regulating development in Kakaako recently adjusted its public hearing process and now is inviting anyone with an interest in future proposed development projects to seek a more active role in the decision-making that includes using expert witnesses and cross-examining developer representatives.
The new process is being welcomed by public advocacy groups as a positive and needed change for the agency, the Hawaii Community Development Authority.
"That HCDA is trying to create a contested-case process is a good step for public involvement and better decision-making," said Robert Harris, executive director of the Sierra Club Hawai’i Chapter.
Over roughly the past roughly two years, HCDA has approved eight mostly high-rise condominium projects in Kakaako. Relatively heavy public opposition to a few of those projects led the Legislature to introduce several bills in January aimed at reforming or restricting the agency, though most of the bills have died.
While lawmakers debated whether to rein in HCDA, the agency changed its hearings process with little fanfare during the discussion on a proposed tower project called Keauhou Lane held March 19.
Anthony Ching, HCDA executive director, said the agency modified its public-hearing procedure to be more clear about what has been a long-standing right
of the public under state law governing contested-case hearings.
The agency’s public notice for the hearing, which ran in the legal ad section of the Honolulu Star-Advertiser Feb. 8 and was distributed to roughly 2,000 people or groups on HCDA’s mailing list, noted that interested parties could "intervene" in the hearing by filing a motion.
Previously, no mention about the opportunity to intervene was stated in HCDA public notices for development project hearings, though the right existed under state law.
"We’re making it abundantly clear," Ching said.
"Intervenor" status allows someone to be represented by an attorney at a hearing, to have expert witnesses testify, to question expert witnesses of other parties and to make closing arguments, among other things.
Participating in a contested case as an intervenor is provided for under state law governing state agencies, though the procedure varies by agency.
For instance, the state Land Use Commission uses the quasi-judicial hearing format to decide land-use changes regardless of whether anyone intervenes. The Board of Land and Natural Resources may hold what is known as a "contested case" if someone disagrees with a decision and wants to appeal.
Historically, HCDA didn’t use either of these formats. Instead, it reserved the quasi-judicial format for situations in which someone sought to intervene within 14 days of publishing a public notice for a development permit hearing.
Some HCDA critics, including groups that recently sought to appeal HCDA development permit decisions, contend that the agency’s past practice regarding contested-case procedures was unclear and should instead mirror that of the Board of Land and Natural Resources.
Linda Paul, an attorney representing condo owners in One Waterfront Towers who sought a contested-case hearing after HCDA approved a development permit for a tower project called The Collection just makai of One Waterfront, contends that HCDA isn’t complying with state law governing contested cases or the agency’s rules for such cases.
HCDA ruled earlier this month that the way it held public hearings in the past constituted contested cases, so no appeal of the Collection decision was permitted.
Opponents of two other developments approved by HCDA — a second tower at 801 South St. and a midrise building at 803 Waimanu St. — have petitioned the agency for an appeal and could be in the same predicament as opponents of The Collection.
While allowing "intervenors" to participate in the approval process is being viewed as a positive development by project opponents, it is not easy to become an "intervenor."
The University of Hawaii’s William S. Richardson School of Law, though its environmental law program, published a citizen’s guide to contested-case hearings in 2002 that encourages the public to be involved in the process.
The guide notes that contested cases can be time-consuming and that they adhere to certain legal standards with regard to document preparation, witness questioning and other things.
Another hurdle is qualifying to intervene. Such status can be denied depending on what interest a person or a group has and whether the interest is protected by other means or represented by other parties. The extent to which a prospective intervenor’s participation would broaden issues or delay a hearing is also a consideration.
At the Land Use Commission, intervenors in a couple of big recent cases included the Sierra Club, a neighborhood board leader, a state senator and a community organization.
For HCDA, development permit hearings prior to the format change typically involved a presentation by a staff member describing the development project proposed along with a staff recommendation. The project developer also often made a presentation. Public testimony was generally limited to three minutes per person, and testifiers were not allowed to ask questions of the developer or the agency. After two hearings, the HCDA’s board then rendered a decision.
The Sierra Club’s Harris said that allowing a group or a concerned citizen to question what a developer proclaims is a key part of why the state set up the contested-case process.
Under HCDA’s revamped hearing format for development permits, it will be routine for the developer, or lawyers representing the developer, to describe the project and present expert witness testimony regardless of whether anyone intervenes. Public testimony will still be accepted from anyone regardless of whether she or he has intervenor status.
In the case of Keauhou Lane, no one opposing the project requested to be an intervenor. Yet two attorneys for the project developers introduced about 6 inches of paperwork filled with 36 exhibits that included a local construction industry analysis, excerpts from an HCDA environmental impact statement and a housing market study. The attorneys also had seven expert witnesses testify, including a principal developer and consultants in architecture, engineering, traffic and archaeology.
