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                                                               Electronically Filed
                                                               Supreme Court
                                                               SCAP-13-0002266
                                                               22-DEC-2015
                                                               08:33 AM




            IN THE SUPREME COURT OF THE STATE OF HAWAII

                                 ---oOo---


              THE SIERRA CLUB and SENATOR CLAYTON HEE,
                 Petitioners/Appellants-Appellants,

                                     vs.

  D.R. HORTON-SCHULER HOMES, LLC, a Delaware limited liability
   company, d.b.a. D.R. HORTON-SCHULER DIVISION; THE LAND USE
COMMISSION OF THE STATE OF HAWAII; OFFICE OF PLANNING, STATE OF
         HAWAII; DEPARTMENT OF PLANNING AND PERMITTING,
                 Respondents/Appellees-Appellees.


                             SCAP-13-0002266

         APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
              (CAAP-13-0002266; CIV. NO. 12-1-2000-07)

                            DECEMBER 22, 2015

            RECKTENWALD, C.J., NAKAYAMA AND McKENNA, JJ.,
      AND CIRCUIT JUDGE CHANG, IN PLACE OF ACOBA, J., RECUSED;
                     WITH POLLACK, J., DISSENTING

                     OPINION OF THE COURT BY McKENNA, J.

I.    Introduction

      This appeal involves a long-standing issue in this state:

balancing agricultural and urban land uses.           Appellants Sierra
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Club and Clayton Hee challenge the Land Use Commission’s (“LUC”)

reclassification of approximately 1525.516 acres of Appellee

D.R. Horton-Schuler Homes’ (“D.R. Horton-Schuler”) land from the

agricultural state land use district to the urban state land use

district.    The land is slated for development of the Hoopili

project.    On transfer from the Intermediate Court of Appeals,

Appellants seek review of the Decision and Order of the Circuit

Court of the First Circuit1 (“circuit court”) affirming the LUC’s

Findings of Fact, Conclusions of Law, and Decision and Order

(“D&O”) and dismissing their appeal.

      Appellants argue that the reclassification violated Article

XI, Section 3 of the Hawaii State Constitution, which provides

the following:

            The State shall conserve and protect agricultural lands,
            promote diversified agriculture, increase agricultural
            self-sufficiency and assure the availability of
            agriculturally suitable lands. The legislature shall
            provide standards and criteria to accomplish the foregoing.

            Lands identified by the State as important agricultural
            lands needed to fulfill the purposes above shall not be
            reclassified by the State or rezoned by its political
            subdivisions without meeting the standards and criteria
            established by the legislature and approved by a two-thirds
            vote of the body responsible for the reclassification or
            rezoning action.

      Appellants also argue that the reclassification violated

Act 183, codified at Hawaii Revised Statutes (“HRS”) §§ 205-41

through -52 (Supp. 2005), and also known as Part III of HRS


1
      The Honorable Rhonda A. Nishimura presided.


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chapter 205 (“Part III”).      Part III implements Article XI,

Section 3’s mandate and governs land use on important

agricultural lands (“IALs”).      Appellants contend that the LUC

should not reclassify lands that the City and County of Honolulu

could potentially designate as IALs in the future, pursuant to

HRS § 205-47 (Supp. 2005).

      Lastly, Appellants argue that the reclassification violated

Hawaii Administrative Rules (“HAR”) § 15-15-77(a) (effective

2000-2013), which requires reclassifications to conform to the

Hawaii State Plan.    They also contend that the reclassification

violated HAR § 15-15-77(b)(6) (effective 2000-2013), which

requires the LUC to consider whether taking land in “intensive

agricultural use for two years prior to the date of a filing of

a petition [for a district boundary amendment] or lands with a

high capacity for intensive agricultural use” out of the

agricultural district “[w]ill not substantially impair actual or

potential agricultural production in the vicinity of the subject

property or in the county or State; or . . . [i]s reasonably

necessary for urban growth. . . .”

      Pursuant to Save Sunset Beach Coalition v. City & County of

Honolulu, 102 Hawaii 465, 476, 78 P.3d 1, 12 (2003), Article XI,

Section 3, standing alone, is not self-executing; rather, its

mandate is carried out through the provisions of Part III.


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Therefore, the plain language of Article XI, Section 3 does not

require the LUC to stay reclassification of agricultural land

while the formal county-initiated IAL designation process runs

its course.    Pursuant to the policies underlying Part III, state

and county government should consider the “compelling state

interest in conserving the State’s agricultural land resource

base assuring the long term availability of agricultural lands

for agricultural use,” see HRS § 205-41 (Supp. 2005); however,

the plain language of Part III contains no provision requiring a

stay.   Further, the constitutional history of Article XI,

Section 3, as well as the legislative history of Part III, does

not reveal an intent to require the LUC to delay reclassifying

agricultural land pending formal designation of IALs.             Second,

reliable, probative, and substantial evidence supported the

LUC’s finding that the reclassification of the land at issue in

this case was consistent with the Hawaii State Plan, would not

substantially impair agricultural production, and was necessary

for urban growth.     We therefore affirm the circuit court’s

decision and order, which affirmed the LUC’s D&O.




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II.    Background

       A.   Land Use Commission Proceedings

            1.   D.R. Horton-Schuler’s Petition for Land Use
                 District Boundary Amendment

       On January 24, 2007, D.R. Horton-Schuler filed a Petition

for Land Use District Boundary Amendment (“Petition”) before the

LUC.    D.R. Horton-Schuler described the Hoopili project as

follows:

            Petitioner is currently proposing the development of a
            mixed-use, transit-ready community, including residential,
            business, and commercial areas, transit stops, schools,
            parks and open space. Petitioner is proposing to develop
            approximately ll,750 residential units (including
            affordable units) ranging from an estimated $200,000 to
            $700,000 based upon 2006 market prices, a minimum of five
            (5) school sites (subject to continued negotiations with
            the Department of Education), approximately two hundred ten
            (210) acres for parks and open space, and approximately one
            hundred forty-five (145) acres for business and commercial
            spaces that would sell for approximately $35 to $45 per sq.
            ft. in today’s market. Both the residential and commercial
            space selling prices are estimates and are subject to
            change according to fluctuating market conditions, as well
            as unanticipated costs incurred during construction. The
            Proposed Project is being designed as a mixed-use community
            ready to provide high-capacity transit stops to further
            encourage walking/bicycling and the use of public
            transportation to supplement that which already underpins
            Hoopili’s traditional neighborhood design. Infrastructure
            facilities to be expanded or improved include access and
            circulation roadways, drainage systems, water distribution
            and wastewater collection lines, and
            electrical/communication systems.

The Hoopili project is scheduled to be developed in two ten-year

phases, the first phase from 2013-2020, and the second phase

from 2020-2030.2


2
      Under HAR § 15-15-78 (effective 2000-2013), the LUC can reclassify
lands incrementally if “full development of the subject property cannot
                                                              (continued. . .)

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      The Petition stated that the land was “currently leased for

agricultural purposes,” including “diversified agriculture;

pasturage; grazing for livestock; cultivation of seed corn and

other agricultural crops; and agricultural research.”             The Final

Environmental Impact Statement (“FEIS”) prepared in conjunction

with the Petition represented that D.R. Horton-Schuler would be

relocating the agricultural tenants onto replacement lands.

      The FEIS also noted that the proposed project conformed to

the Hawaii State Plan.      The FEIS pointed out that the Petition

lands were “located within (and makai of) the Urban Growth

Boundary of the Ewa Development Plan Urban Land Use Map.”                The

FEIS represented that the project “is consistent with the

State’s goal to insure [sic] economic stability, diversity, and

growth for present and future generations,” because the project

“will provide various housing and employment opportunities for

the rapidly growing Ewa region, which will in turn, relieve

development pressures from other areas of Oahu, particularly the

Primary Urban Center, and rural areas such as Waianae, North

Shore, Koolau Loa and Koolau Poko.”        The FEIS noted, “The

agricultural policies [of the Hawaii State Plan] are

predominantly not applicable to the Hoopili project.”

(. . .continued)
substantially be completed within ten years after the date of” the LUC’s
approval.


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           2.   Intervenors and Other Parties to the Petition
                Proceedings and Their Positions

      When an “[a]mendment[] to district boundaries involving

land areas greater than fifteen acres” is filed with the LUC,

the State Office of Planning (“OP”) and the county planning

department, here the City and County of Honolulu’s Department of

Planning and Permitting (“DPP”), must appear as parties and

“make recommendations relative to the proposed boundary change.”

HRS § 205-4(e)(1) (2001). The DPP supported the Petition because

it found the project to be consistent with the City’s General

Plan, which “encourages development and growth and directs

economic activity within the secondary urban center and urban

fringe area in Ewa.”     The DPP noted that the project is located

within the Urban Growth Boundary of the Ewa Development Plan,

where urban development is “allowed and consistent with the

long-range vision, policies, principles and guidelines in the

Ewa Development Plan regarding land use and the plan’s vision of

building master planned residential communities that allow

residents to live and work in the Ewa region.”          The OP generally

supported the orderly development of Kapolei as Oahu’s second

city but did not initially take a position on the Petition,

citing insufficient information.         Four years into the Petition

proceedings, the Sierra Club and Clayton Hee, in his individual

capacity only, were permitted to intervene.          Both opposed the


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Petition, arguing it proposed inappropriate uses for productive

agricultural land.

           3.    Evidentiary Hearings

      The LUC held evidentiary hearings on the Petition on March

19, 2009; March 20, 2009; May 15, 2009; June 25, 2009; June 26,

2009; October 20, 2011; October 21, 2011; November 17, 2011;

November 18, 2011; January 5, 2012; January 19, 2012; March 1,

2012; March 2, 2012; March 15, 2012; and March 16, 2012.

                 a. Evidence and Testimony on Agricultural Impacts

      D.R. Horton-Schuler called Bruce Plasch, who was admitted

as an “expert in the field of agricultural economics.”            D.R.

Horton-Schuler also submitted Plasch’s written direct testimony

and supplemental written direct testimony.          First, Plasch

described the agronomic conditions of the Petition area as

follows, starting with soil conditions:

           About 1,340 ± 65 acres of the Petition Area are comprised
           of higher-quality soils (I and II for the NRCS ratings,
           Prime for ALISH, and A and B for the LSB). This is about
           2.4% of the 55,563 acres of Prime agricultural lands that
           Oahu had in 1977, and about 2.5% of the 53,039 acres of A
           and B lands that Oahu had in 1972.

In his supplemental written testimony he described agricultural

productivity at Hoopili as follows:

           In 2010, the primary crops grown at Hoopili were bananas,
           basil, snap beans, broccoli, cabbage, seed corn, sweet
           corn, cucumbers, eggplant, lettuces, melons, dry onions,
           bell peppers, squash, pumpkin, and tomatoes. This includes
           crops grown for the local market as well as for export.
           For vegetables, melons and fruits, about 1,027 acres were
           harvested with an estimated yield of 15.3 million pounds.


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            This represented about 6% of Hawaii’s production of these
            crops.

      Second, Plasch testified that the contraction of plantation

agriculture has released hundreds of thousands of acres of

farmland:

            During the past four decades, a vast amount of farmland has
            become available for diversified crop farming due to the
            contraction of plantation agriculture. In 1980, we had 17
            large plantations in Hawaii that produced sugar and
            pineapple for export: 14 sugar plantations and 3 pineapple
            plantations. Now we have just one, the HC&S sugar
            plantation on Maui (Dole’s pineapple operation remains on
            Oahu, but it is no longer a large plantation growing
            pineapple for export, but a farm that grows pineapple
            primarily for the Hawaii market.)

            In actual acreages, the contraction of plantation
            agriculture released about 263,000 acres of farmland from
            1968 to 2009. However, despite the availability of such
            farmland, the demand for land for diversified crops over
            the same period increased only by about 26,800 acres (about
            10% of the land released from plantation agriculture).

            Oahu experienced a similar trend. Since 1960, plantation
            agriculture released about 73,500 acres on Oahu, while
            acreage in diversified crops increased only by about 2,300
            acres (about 3% of the land released from plantation
            agriculture).

      Third, Plasch estimated that about 177,000 ± 5,000 acres of

farmland remains available statewide for diversified

agriculture, with 30,000 acres available on Oahu.

      Fourth, Plasch explained that the Wahiawa wastewater

treatment plant was in the process of being upgraded to provide

North Shore agricultural land with a water source:

            [A] $30 million upgrade to the Plant is under construction,
            and is slated for completion in October 2012. The decision
            to upgrade the Plant is the result of a 1998 Consent Decree
            with the U.S. Environmental Protection Agency (“EPA”).

            The purpose of the recommendation is to allow farmers to
            use R-l water from the Wahiawa Reservoir to irrigate any
            type of crop using any type of irrigation system. The

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            upgrade to the R-l water-quality standard will open up the
            mid-level and high-level fields on the North Shore for
            growing vegetable crops. Under the current R-2 water-
            quality rating, water from the Reservoir can be used to
            irrigate orchards and some other crops, but not vegetable
            and melon crops. As a result, most vegetables and melon
            crops on the North Shore must be grown at lower elevations
            where they can be irrigated using groundwater which has no
            restrictions on use.

            In the meantime, landowners and some farmers on the North
            Shore have reactivated and improved groundwater wells so
            that more fields can be irrigated with groundwater only.
            This has allowed some farmers to move some of their
            operations to the North Shore.

      Fifth, Plasch testified that existing agricultural lands

could be farmed more intensively:

            The large diversified farmers on Oahu generally harvest
            one, and sometimes two, crops per year from a given field.
            As a result, land is in crop for about a third of the year,
            and fallow for about two-thirds of the year.

            There are many ways to increase yields, including:
            • Farming two or more crops per year.
            • For certain crops, going vertical using trellises, cages
            or sticks to support plants.
            • Growing plants using hydroponic farming in greenhouses.

            For certain vegetable crops, a number of farmers are
            already implementing more intensive farming that greatly
            increases yields, and as a result, greatly reduces land
            requirements. In particular, many of the tomatoes,
            cucumbers, peppers, and lettuces sold in our supermarkets
            are grown hydroponically in greenhouses by Hawaii and
            mainland farmers.

Plasch also noted that although the capital costs are higher,

there are many benefits to hydroponics, including year-round

production, higher yields, higher quality produce, fewer pest

problems, less energy and water use, and lower transportation

costs.    Plasch opined that intensive farming practices could

increase agricultural production without requiring more land.




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      Sixth, Plasch testified that 100% self-sufficiency was

possible but unlikely in Hawaii:

          Hawaii has ample farmland to achieve 100% self-sufficiency,
          with or without Hoopili and other projects that are
          consistent with City plans. But as I mentioned above, 100%
          self-sufficiency in fresh vegetables, melons and fruits is
          not achievable given competition from low-cost imports, and
          would not provide food security.

          Currently, approximately 15,000 acres of land is farmed
          statewide to produce approximately 33% of our fresh
          vegetables, melons and fruits. Therefore, achieving 100%
          self-sufficiency in these crops would require about 45,000
          acres of farmland. That would be 30,000 additional acres
          statewide. It should be noted that this figure is high,
          considering the fact that more intensive farming than is
          currently the case would greatly reduce the amount of land
          required. The additional land required is small compared to
          the estimated 177,000 acres ± 5,000 acres of good farmland
          that is available statewide. In addition, another 70,000+
          acres could become available if shipping is interrupted to
          such an extent that exporting crops becomes unfeasible.

          A similar situation would apply to Oahu. About 23,000
          additional acres would be required for 100% self-
          sufficiency in fresh produce (45,000 acres for statewide
          self-sufficiency x 67% for Oahu’s share of the population -
          the existing 7,300 acres used to grow food crops on Oahu).
          Again this estimate is high given inter-island shipping and
          reduced land requirements from intensive farming. As
          aforementioned, even if all of the farms within the Growth
          Boundaries relocate to land outside the Growth Boundaries,
          there would still be 30,000 acres of good farmland
          available on Oahu outside the Growth Boundaries, plus about
          4,700 acres used for export and non-food crops that could
          come available if needed.

      Seventh, as to Hoopili’s impact on the current agricultural

tenants at the Petition area, Plasch testified that the farms

currently operating in the Petition area had all found

sufficient lands outside of the urban growth boundary to

continue their operations.      In Plasch’s professional opinion,

          the Project will have little or no adverse impact on
          Hawaii’s agricultural production because farmland is
          available in upper Kunia and the North Shore to accommodate
          the relocation of existing farms in Ewa. Also the


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           development of the Petition Area and the resulting loss of
           agricultural land will not limit the growth of diversified
           crops since ample agricultural land is available on Oahu
           and the other islands.

      Plasch’s supplemental written direct testimony also opined

           Hoopili will have little to no adverse impact on Hawaii’s
           agricultural production because ample farmland is available
           on Oahu and the other islands to accommodate the relocation
           of the existing Ewa farms as well as to accommodate the
           future growth of diversified crop farming. Land is
           available because of the closure or severe contraction of
           all plantations in Hawaii with the single exception of one
           sugar plantation, HC&S on Maui.

      Agricultural tenants Aloun Farms and Sugarland Farms also

submitted letters in support of the Hoopili project.           Alec Sou

of Aloun Farms stated that he had already secured “rights to 400

acres of farm land outside of the urban growth boundary with the

opportunity to acquire as much as 1,000 acres.”           Thus, Sou

stated, “We do not view the plans by D.R. Horton as the end of

all farming in Honolulu, much less Hawaii. . . .           We believe

there is more than sufficient land on Oahu to support our

farming operations. . . .”      Larry Jefts of Sugarland Farms

stated he was “look[ing] forward to continu[ing] to farm as long

as [D.R. Horton-Schuler] would allow [him] to [at Hoopili] . . .

and [was] willing to move and cooperate with the development

plan to the advantage of Horton, to [the farm] and to the entire

community, who will benefit from the development, new schools,

the rail lines, etc.”     Jefts stated that the development “will

not hurt [his] business model,” as he had “planned for it since



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1994,” when he initially entered into a lease with the prior

owner, the James Campbell Company.

      The OP called Russell Kokubun, the Chair of the Board of

Agriculture.    He testified, “I understand that there will be a

loss of some very, very good agricultural lands. But the

Department is prepared to make available as much good

agricultural land as possible. And that’s part of our strategy

to expand our agricultural industry in the state.”           On cross-

examination, Kokubun elaborated on the Department’s strategy as

follows:

           A:    Well, there are a number of agricultural lands that
           are going to be made available, I think very good
           agricultural lands.

           Q:    Such as?

           A:    One of the issues that the Department is working on
           is there are –- there’s a proposed ag park on Kunia Road of
           150 acres. There’s a parcel again off of Kunia Road, that
           the DLNR will, is in the process of providing to the
           Department of Agriculture for agricultural purposes of 400
           acres. And we are on the threshold of completing the
           purchase of the Galbraith Estate or Galbraith Trust Lands.

           Q:    Now, with respect to all of those, to your knowledge
           do they have adequate existing supplies of water to grow
           the kinds of crops that Aloun Farms is currently growing?

           A:    The 150-acre ag park does -- it needs the
           infrastructure to get the water to the site. But that’s
           something that the Department will do. The 400 acres also
           has access to Waiahole ditch water. That would also have to
           be a transmission line provided for that that we would be
           prepared to do. And the Galbraith Trust Lands have one
           well, but that’s not adequate to irrigate the entire 1700-
           acre parcel. So we are working on getting some planning and
           design money to take a look at this.

On cross-examination, Kokubun admitted that the Department did

not currently have funds to make water improvements on these


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other lands, but that his Department was “working on getting

some planning and design money to take a look at” the

infrastructure.

      Leon Stollenberger, who was admitted as an “expert on the

characteristics of agricultural lands in the Central and North

Shore areas of [Oahu],” testified that the Hoopili lands were

“one of the most suited to vegetable production literally in the

world.”

      The Sierra Club called Hector Valenzuela, who was admitted

without objection as an expert in agriculture, in particular,

vegetable crops.    He did not support the Petition because of the

loss of prime agricultural lands.        He testified that the

Petition lands were “among the most productive and valuable

lands in the state because of their proximity to market and

ideal growing conditions,” which included higher solar radiation

and temperature, lower humidity, and ideal soil conditions

resulting in little erosion.      These conditions contributed to

faster, earlier harvests and higher crop yields.           Valenzuela

also testified that the state needs “isolated sections of land

. . . [to] grow crops competitively,” with these isolated

sections contributing to the “overall self-sufficiency and

sustainability of the state.”       At Hoopili, Aloun Farms had been

successful in growing certain crops, providing 40 to 70 percent

of the entire production of those crops in the state.

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Valenzuela believed that “some of the crops that are grown in

Hoopili . . . may be very difficult to grow . . . competitively

in other parts of the state.”       He disagreed that hydroponics

could replace the need for prime agricultural land on Oahu.

According to Valenzuela, hydroponics is capital-intensive; he

criticized D.R. Horton-Schuler’s lack of documentation

supporting the idea that greenhouses or other hi-tech farming

methods were “feasible and/or profitable in the proposed Hoopili

development area.”

      The Sierra Club also called farmer Gary Maunakea-Forth, who

testified that finding available farmland for long-term lease

was difficult, and it was costly to prepare land for farming.

      The Sierra Club also submitted into evidence an undated

scholarly article entitled “Agriculture” by C.N. Lee and H.C.

“Skip” Bittenbender that opined that “near self-sufficiency [in

Hawaii] would require an estimated 260,800 acres . . . to meet

projected resident needs in 2007. . . .”

      Hee called former Governor John Waihee, who testified that

he was concerned that the replacement agricultural lands did not

have the same water supply that Hoopili enjoyed.          Hee himself

testified that there may be available agricultural land, but it

is not prime agricultural land, and would require water to grow

crops productively and profitably.        He also testified that the


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state was “beyond the tipping point of food security.”            Both

Waihee and Hee believed that the Hoopili development was not

reasonably necessary for urban growth, as tens of thousands of

homes were already approved and permitted for the region, and

because the Petition lands were among the most agriculturally

productive in the state.

                b.    Evidence and Testimony on the Need for the
                      Project

      D.R. Horton-Schuler called Ann Bouslog, who was admitted as

an “expert in the field of market analysis and economics.”               D.R.

Horton also submitted her written direct testimony and

supplemental written direct testimony.         Bouslog testified to the

need for urban growth at the Petition area.          Bouslog’s

supplemental written direct testimony stated that, by 2030,

there would be a 29,000-unit housing deficit if there were no

further residential entitlements.        In her supplemental written

direct testimony, Bouslog opined that “Hoopili’s 11,750 units,

if entitled, would make a significant contribution towards

addressing this unmet need.”      According to Bouslog, Hoopili is

“ideally situated” to help meet Oahu’s housing needs, as it is

“[l]ocated near the emerging Second City of Kapolei and along

the major transportation corridor between Kapolei and the

existing urbanized areas of Oahu.”       Further, “the compact

development style and primary resident-orientation of the

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Project suggest that it would appeal to a broad range of

potential future buyers and renters, including substantial

shares of affordable and workforce housing.”            Bouslog estimated

that “the overall average absorption at Hoopili” would be “650

unit sales per year,” with projected average sales of 725 units

per year in the first ten-year phase of development, and

projected “average sales of about 595 units per year” in the

second ten-year phase of development.

      The DPP called Robert Stanfield, chief of the Development

Plans and Zone Change Branch of the DPP.           He testified that the

“DPP supports the Petition to reclassify the land from

Agricultural District to the Urban District,” because “the

Petition is consistent with all relevant city plans.”              He

testified that “an average of 1800 units a year will be needed

in Central Oahu and Ewa to successfully divert growth away from

the country areas and Windward Oahu and the East Honolulu

Sustainable Community areas.”         Stanfield also testified that the

City estimated that about 34,000 units in the Ewa region were

slated for construction as of July 2010.

      Bouslog believed that the DPP’s estimate of the number of

homes coming online was too high, because it included units

intended to be developed as second homes, timeshares, or resort

units.    She estimated that 24,000 potential primary housing



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units were planned for the Ewa region, which still fell far

below the number needed to meet Ewa’s housing needs.

      In her supplemental written direct testimony, Bouslog

stated that the following negative impacts would occur without

development of the Hoopili project:

          1. Island’s population and economic growth would likely be
          constrained. In the medium- and long-term, this would
          raise significant concerns:
          a) Displacement of development activity away from the
          planned Kapolei region and back into other areas of Oahu
          or the neighbor islands – areas less suited to accommodate
          significant growth;
          b) Worsening shortage of primary housing on Oahu;
          c) Accelerated price pressures on housing, especially Ewa
          and Kapolei;
          d) Higher prices associated with commercial and industrial
          properties - possibly good for landlords, but a burden for
          tenants and consumers; and
          e) A less efficient and cost effective transit system, if
          built.
          2. Significant loss of potential jobs creation in East
          Kapolei area, along with the economic and fiscal impacts
          those would support.

                c.    Evidence and Testimony on the Project’s
                      Consistency with the Hawaii State Plan

      D.R. Horton-Schuler called Vincent Shigekuni who was

admitted without objection as an “expert in the field of

planning.”   He testified that the Hoopili project was consistent

with the Hawaii State Plan.

      The OP called planning program administrator, Mary Lou

Kobayashi.   She testified that the “proposed reclassification

generally conforms to the overall theme, goals, objectives and

policies and priority guidelines of the Hawaii State Plan,

particularly those relating to housing, the economy and

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sustainability.”     Specifically, she testified that “the

reclassification supports Hawaii State Plan policies to provide

increased job opportunities, to effectively provide housing

opportunities and address sustainability through energy and

water conservation measure.”

      When cross-examined as to whether the Petition was

inconsistent with the Hawaii State Plan’s agricultural

objectives, Kobayashi answered, “No. . . [W]ith the fact that

there are additional lands available for agricultural use . . .

the reclassification would not necessarily adversely affect or

impact the . . . various agricultural objectives.”           This was

because “there are other lands that are available within the

Agricultural District for agricultural activities such that the

State Plan policies with regard to agriculture as a whole are

still being supported.”

                d.     Evidence and Testimony on Important
                       Agricultural Lands

      D.R. Horton-Schuler’s expert in the field of planning,

Shigekuni, testified that the “Petition Area is not designated

as Important Agricultural Land.”

      DPP’s chief planning division head, Kathy Sokugawa, also

testified that DPP “would not be recommending [the Hoopili] area

as a potential IAL area.”      Sokugawa also explained that the City

and County process for identifying IALs was supposed to start

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when the state gave funding to the counties for that purpose.

Sokugawa testified that the state had not yet funded the

counties, but that the City and County of Honolulu had set aside

its own funds to begin the IAL designation process.

      On March 7, 2012, while the LUC was in the midst of

evidentiary hearings on the Petition, counsel for Hee, Eric

Seitz, wrote a letter to DPP’s counsel, Don Kitaoka, drawing his

attention to the Honolulu City Council’s Resolution 12-23, which

he claimed “intended to expedite the classification of Important

Agricultural Lands . . . including those agriculturally

productive lands within the urban growth boundary classified as

prime agricultural lands.”      Seitz contended that the Resolution

“may have a critical impact” on the pending Hoopili proceedings;

therefore, he asked that DPP “produce witnesses who will be able

to testify as to the possible effects of the Resolution on

testimony and opinions previously offered by individuals and

officials whose support for the project[] was based upon the

premise that the lands at issue could not and would not be

classified as Important Agricultural Lands.”

      Seitz enclosed Resolution 12-23 with the letter.           The

Resolution is entitled, “Urging the City’s Agricultural Liaison

to Expedite the Identifying and Mapping of Important

Agricultural Lands and Ensure that the City Works to Preserve

the Availability of Agricultural Lands for Farming.”            The

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Resolution notes that “the City Administration has begun the

process of identification and mapping of IALs[.]”           The

Resolution directed Laura Thielen, the then newly appointed city

Agricultural Liaison, to expedite the identification and mapping

of IALs and to report back to the City Council on the progress

of the City’s efforts.     The Resolution also stated that

“agriculturally productive lands within urban growth boundaries

that are classified as prime agricultural lands, provided

adequate water supply is available” be “consider[ed]” in the IAL

identification process.

      A week later, Kitaoka wrote a letter to the LUC alerting

them to Seitz’s letter.     Kitaoka represented to the LUC that the

DPP’s position was “that production of any additional witnesses

regarding this matter for the aforementioned dockets [i.e., Koa

Ridge and Hoopili] is unnecessary,” but that additional

witnesses would be provided if the LUC thought it was necessary.

Further, Kitaoka noted that the City Council expressly did not

intend for Resolution 12-23 to “influence the state Land Use

Commission decision making process on any case pending before

the Commission,” referring to Koa Ridge and Hoopili.             Indeed,

the City Council’s Committee on Zoning and Planning’s Report on

Resolution 12-23, attached to Kitaoka’s letter, states, “[I]t is

your committee’s intent that the City work within the parameters

set forth by state law [in identifying IALs] and not influence

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the state Land Use Commission decision-making process on any

case pending before the Commission.”

      After Resolution 12-23 entered the record, DPP re-called

chief planning division head Sokugawa.         When asked on direct

examination whether the resolution “would impact or affect prior

testimony or positions taken by [the DPP] in support of the

pending Petition,” Sokugawa answered in the negative.             Sokugawa

explained that the city’s development plans “designate [the

Hoopili parcel] for urban development, not agriculture.”

Sokugawa also highlighted “the last section of the committee

report [on Resolution 12-23, which] . . . states [that it] ‘is

not intended to influence the State Land Use Commission

decision-making process on any case pending before the

Commission.’”   When the OP asked about the process of

recommending IALs, Sokugawa explained that DPP was about to hire

a consultant to help with the IAL designation process, and that

when DPP has completed its IAL recommendations, the

recommendations will go to the City Council, then on to the Land

Use Commission.    One of the LUC Commissioners, Commissioner

Heller, also asked Sokugawa to provide a timeframe for the

completion of the IAL identification process.          Sokugawa

testified that the process would begin later in 2012, and that

her “optimistic guess would be that there’d be something before

the City Council in a year.”

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           4.   The LUC’s D&O

      The LUC reclassified the Petition lands from the state

agricultural land use district to the state urban land use

district, subject to conditions that are not relevant on appeal.

The LUC’s D&O was 186 pages long and contained 666 findings of

fact (“FOFs,” or “FOF” in the singular), 32 conclusions of law

(“COLs,” or “COL” in the singular), and 26 conditions.            Relevant

to this appeal, the LUC rendered 8 FOFs concerning the need for

the proposed project; 22 FOFs concerning the proposed project’s

impact on agricultural resources in the area; 11 FOFs finding

that the Petition area would not be designated as IAL; and 39

FOFs addressing the proposed project’s consistency with the

Hawaii State Plan.    That left nearly 600 other FOFs detailing

procedural matters; economic impacts; social impacts; impacts on

flora, fauna, arthropods, archaeological and historical

resources, cultural resources, groundwater resources, and scenic

resources; environmental quality; public services and facilities

such as highway and roadway facilities, parks and recreational

facilities, water service, wastewater disposal, drainage, solid

waste disposal, schools, police and fire protection,

emergency/medical services, and electricity and telephone

services; and conformance to other state and county plans such

as the Hawaii State Functional Plan, the General Plan for the

City and County of Honolulu, and the Ewa Development Plan, as
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well as the Coastal Zone Management Program.             Clearly, these

latter findings are not relevant on appeal.

       B. Circuit Court Appeal

       Appellants appealed the LUC’s D&O to the circuit court,

alleging that the LUC violated Article XI, Section 3 of the

Hawaii State Constitution (Count 1), violated Act 183 (Count 2),

and violated HAR § 15-15-77 (Count 3).           In their opening brief,

they did not identify any particular FOFs as clearly erroneous

or any COLs as wrong.        At oral argument, the circuit court asked

the Appellants which particular FOFs they believed were in

error.     Initially their response was “all of them”; however,

with further probing by the court Appellants clarified that they

challenged FOFs 428, 430-434, 437, 444-448, 567-568, 571-572,

and 574, which are discussed in greater detail infra, Section

IV.C.    The circuit court then asked Appellants which subsections

of HRS § 91-14(g) (2012)3 applied to their agency appeal, as



3
      HRS § 91-14(g) provides the following standards:

             (g) Upon review of the record the court may affirm the
             decision of the agency or remand the case with instructions
             for further proceedings; or it may reverse or modify the
             decision and order if the substantial rights of the
             petitioners may have been prejudiced because the
             administrative findings, conclusions, decisions, or orders
             are:
                   (1) In violation of constitutional or statutory
                   provisions; or
                   (2) In excess of the statutory authority or
                   jurisdiction of the agency; or
                   (3) Made upon unlawful procedure; or
                   (4) Affected by other error of law; or
                                                               (continued. . .)

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their Opening Brief did not specifically include that

information.       Appellants’ response was all six subsections

applied; however, through further questioning, they clarified

that subsection 3 (unlawful procedure)4 and 4 (other error of

law) did not apply.        The Appellants focused on subsection 1,

arguing that the LUC’s reclassification was “[i]n violation of

constitutional or statutory provisions,” specifically Article

XI, Section 3, HRS chapter 205, and HAR § 15-15-77.              When the

circuit court asked for argument on subsection 5, in other

words, whether the LUC’s D&O was “[c]learly erroneous in view of

the reliable, probative, and substantial evidence on the whole

record,” the Appellants did not point to a specific place in the

record, besides their opening brief, where they challenged the

evidence adduced before the LUC.

      After hearing argument from all the parties, the circuit

court dismissed the appeal and affirmed the LUC’s D&O.               The

Appellants timely appealed, and this court accepted transfer of

their case.

(. . .continued)
                    (5) Clearly erroneous in view of the reliable,
                    probative, and substantial evidence on the whole
                    record; or
                    (6) Arbitrary, or capricious, or characterized by
                    abuse of discretion or clearly unwarranted exercise
                    of discretion.
4
      At oral argument, counsel for Appellants represented, “We made it clear
[to the circuit court] that we were appealing the [LUC’s] process. . . .”
http://www.courts.state.hi.us/courts/oral_arguments/archive/oasc13_2266.htm
at 15:09-13. The record reveals, however, that Appellants abandoned any
challenge to the LUC’s D&O based on unlawful procedure.


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III. Standard of Review

           Review of a decision made by the circuit court upon its
           review of an agency’s decision is a secondary appeal. The
           standard of review is one in which this court must
           determine whether the circuit court was right or wrong in
           its decision, applying the standards set forth in HRS § 91-
           14(g) . . . to the agency’s decision.

Dep’t of Env. Servs. v. Land Use Comm’n, 127 Hawaii 5, 12, 275

P.3d 809, 816 (2012)(citation omitted).         An agency’s conclusions

of law are reviewed de novo, while an agency’s factual findings

are reviewed for clear error.       Camara v. Agsalud, 67 Haw. 212,

216, 685 P.2d 794, 797 (1984).

           In order to preserve the function of administrative
           agencies in discharging their delegated duties and the
           function of this court in reviewing agency determinations,
           a presumption of validity is accorded to decisions of
           administrative bodies acting within their sphere of
           expertise and one seeking to upset the order bears “the
           heavy burden of making a convincing showing that it is
           invalid because it is unjust and unreasonable in its
           consequences.”

In re Hawaii Elec. Light Co., 60 Haw. 625, 630, 594 P.2d 612,

617 (1979) (citations omitted).

IV.   Discussion

      A.   Article XI, Section 3 Does Not Require the LUC to Stay
           Reclassification Proceedings Pending the Completion of
           the County IAL Designation Process

      Appellants argue that that the LUC should be required to

stay reclassification of the potentially important agricultural

land at issue pending formal designation of IALs by the

counties, pursuant to the intent behind Article XI, Section 3 of

the Hawaii Constitution.     Constitutional intent is to be found



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in the language of the constitutional provision itself.            See

Malahoff v. Saito, 111 Hawaii 168, 181, 140 P.3d 401, 414 (2006)

(“[T]he fundamental principle in interpreting a constitutional

provision is to give effect to [the] intent [of the framers and

the people adopting it].      This intent is to be found in the

instrument itself.”).     The plain language of Article XI, Section

3 does not require the LUC to stay reclassification proceedings

until the IAL mapping process is complete.         Again, Article XI,

Section 3 provides the following:

           The State shall conserve and protect agricultural lands,
           promote diversified agriculture, increase agricultural
           self-sufficiency and assure the availability of
           agriculturally suitable lands. The legislature shall
           provide standards and criteria to accomplish the foregoing.

           Lands identified by the State as important agricultural
           lands needed to fulfill the purposes above shall not be
           reclassified by the State or rezoned by its political
           subdivisions without meeting the standards and criteria
           established by the legislature and approved by a two-thirds
           vote of the body responsible for the reclassification or
           rezoning action.

The provision requires only that any “[l]ands identified by the

State as important agricultural lands . . . shall not be

reclassified by the State . . . without meeting the standards

and criteria established by the legislature and approved by a

two-thirds vote of the body responsible for the reclassification

. . . action.”

      To the extent the Appellants argue that this constitutional

provision alone required the LUC to suspend reclassification

proceedings pending formal identification of IALs in order to

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“conserve and protect” agricultural land, that argument has been

foreclosed by Save Sunset Beach, 102 Hawaii 465, 78 P.3d 1.            In

that case, this court held that Article XI, Section 3, standing

alone, is “not self-executing, . . . has no effect and does not

act as a barrier to reclassification.”         102 Hawaii at 476, 78

P.3d at 12.   This court explained that a non-self-executing

constitutional provision is one that “merely indicates

principles, without laying down rules by means of which those

principles may be given the force of law.”         102 Hawaii at 475,

78 P.3d at 11.    Article XI, Section 3 by itself “merely

indicates principles” of agricultural conservation and

protection, and those principles do not have the force of law

absent the legislature’s provision of “standards and criteria to

accomplish” agricultural conservation and protection.            The

legislature did not provide the necessary “implementing

legislation” until 2005, upon the enactment of Act 183, which is

described in greater detail in the next section.

      The Appellants also analogize their case to Ka Paakai O

KaAina v. Land Use Comm’n, 94 Hawaii 31, 7 P.3d 1068 (2000).

That case held that Article XII, Section 7 required the LUC to

make specific findings of fact and conclusions of law regarding

the protection of customary and traditional native Hawaiian

rights when reclassifying land.       94 Hawaii at 47, 7 P.3d at


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1084.   Article XII, Section 7 provides, “The State reaffirms and

shall protect all rights, customarily and traditionally

exercised for subsistence, cultural and religious purposes and

possessed by ahupuaa tenants who are descendants of native

Hawaiians who inhabited the Hawaiian Islands prior to 1778,

subject to the right of the State to regulate such rights.”              The

language of Article XII, Section 7 expressly places an

affirmative duty upon state agencies, unlike the language of

Article XI, Section 3, which contains a mandate to conserve and

protect agriculture and agricultural lands, pursuant to

“standards and criteria” that the legislature shall provide.

Due to differences in the language of the constitutional

provisions, Ka Paakai O KaAina does not support the argument

that Article XI, Section 3 places a free-standing affirmative

duty upon the LUC to conserve and protect the agricultural land

at issue in this case by staying reclassification until the

county IAL designation process has been completed.            Rather,

Article XI, Section 3’s mandate is implemented with reference to

the legislature’s “standards and criteria,” which were enacted

via Act 183, which is discussed in greater detail in the next

section of this opinion.

      As Article XI, Section 3 is not self-executing, and as the

plain language of Article XI, Section 3 expresses no intent to

require the LUC to stay reclassification proceedings pending the

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formal identification of IALs, it is not appropriate to resort

to constitutional history to divine such intent.           See Malahoff,

111 Hawaii at 181, 140 P.3d at 414 (“When the text of a

constitutional provision is not ambiguous, the court, in

construing it, is not at liberty to search for its meaning

beyond the instrument.”).      In any event, the constitutional

history is silent on the issue of whether IALs must first be

formally identified before the LUC can reclassify land.            While a

few delegates expressed strong concerns that the LUC had allowed

reclassification and urbanization of vast tracts of agricultural

land, no delegate suggested that the LUC should be required to

stay reclassification of land pending formal IAL designation.

See Committee of the Whole Report No. 18 in 1 Proceedings of the

Constitutional Convention of 1978, at 439-43.          Contrary to the

Appellants’ assertion, this constitutional history does not

demonstrate that Article XI, Section 3 expresses such a

“substantive mandate.”

      B.   Act 183 Does Not Require the LUC to Stay
           Reclassification Proceedings Pending the Completion of
           the County IAL Designation Process

      Save Sunset Beach held that Article XI, Section 3 was not

self-executing.    102 Hawaii at 476, 78 P.3d at 12.         As such,

Article XI, Section 3 required implementing legislation to

effectuate its purpose of agricultural conservation and

protection.   The enactment of Act 183 of the 2005 Legislative

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Session finally set forth the “standards and criteria” through

which the constitutional mandate would be fulfilled.            The plain

language of Act 183 does not require the LUC to identify IALs

before reclassifying land.      See Silva v. City and Cnty. of

Honolulu, 115 Hawaii 1, 6, 165 P.3d 247, 252 (2007) (“When

construing a statute, our foremost obligation is to ascertain

and give effect to the intention of the legislature, which is to

be obtained primarily from the language contained in the statute

itself.”)

      Act 183 set forth the procedures by which IALs are

identified.     There are two ways.      Under the first method, a

“farmer or landowner with lands qualifying under section 205-44

may file with the [LUC] a petition for declaratory order to

designate the lands as important agricultural lands.”            HRS

§ 205-45(a) (Supp. 2005).      It is undisputed in this case that

D.R. Horton-Schuler does not desire to designate the Petition

lands as IAL.    Rather, the dispute in this case centers upon the

second method by which IALs are identified, i.e., the method

initiated by the counties and culminating in the LUC’s formal

identification of IALs statewide.

      Under the second method, “[e]ach county shall identify and

map potential important agricultural lands within its

jurisdiction based on the standards and criteria in section

205-44 and the intent of this part, except lands that have been

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designated, through the state land use, zoning, or county

planning process, for urban use by the State or county.”               HRS

§ 205-47(a) (Supp. 2005).       The counties must then submit

“important agricultural lands maps . . . to the county council

for decision-making.”      HRS § 205-47(e) (Supp. 2005).         The county

councils “shall adopt the maps, with or without changes, by

resolution,” then transmit the maps “to the land use commission

for further action pursuant to section 205-48.”            Id.   HRS

§ 205-48 (Supp. 2005), in turn, states, “The land use commission

shall receive the county recommendations and maps” recommending

lands as IAL.    Under HRS § 205-49(a) (Supp. 2005), the LUC

“shall then proceed to identify and designate important

agricultural lands. . . .”        To date, although Kauai and the

City & County of Honolulu are currently in the process of

identifying proposed IALs, the counties have not submitted to

the county councils or the LUC their IAL recommendations.                See

http://mapoahuagland.com/about/faq (“At this time, only Oahu and

Kauai Counties are conducting the Mandatory County Designation

process.”)5 (last visited Dec. 15, 2015).

      Act 183 also amended HRS § 205-4, which sets forth the

general procedures for reclassifying land, but only to add that

5
      Pursuant to Hawaii Rules of Evidence Rule 201(b)(2), this court takes
judicial notice of the information on DPP’s website, mapoahuagland.com, which
was created to publically disseminate information about the county’s IAL
identification process.


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“lands designated or sought to be designated as important

agricultural lands,” like conservation lands and any lands of

greater than 15 acres, are to be reclassified by the LUC.                 2005

Haw. Sess. Laws Act 183, § 4 at 588-89.           Had the legislature

intended to suspend reclassification of land until IALs are

identified, it could have further amended HRS § 205-4 to so

state.    Nothing in the plain language of Act 183, however,

indicates an intent to have IALs designated first before

reclassification of land may proceed.

      Act 183 sets forth methods for identifying IALs, and

Article XI, Section 3 then mandates heightened protection of

IALs so identified.       Act 183 is not ambiguous, and there is no

express requirement within it prohibiting the LUC from

reclassifying land pending formal identification of IALs.                 As

such, there is no need to resort to legislative history to

divine such intent. See Silva, 115 Hawaii at 6, 165 P.3d at 252

(holding that “the courts may resort to . . . the use of

legislative history as an interpretive tool” in “construing an

ambiguous statute. . . .”).

      Even if this court were to resort to legislative history,

an examination of that history reveals silence on the issue of

whether the LUC must stay reclassification proceedings until

IALs are formally identified.         There is no suggestion in

committee reports or floor speeches of such an intent.              See 2005

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Haw. Sess. Laws Act 183, pp. 580-93; H. Stand. Comm. Rep. No.

194, in 2005 House Journal, at 1127; H. Stand. Comm. Rep. No.

531, in 2005 House Journal, at 1245; 2005 House Journal, at 298

(floor speech); H. Stand. Comm. Rep. No. 968, in 2005 House

Journal, at 1411-12; 2005 House Journal, at 993-99 (floor

speeches); S. Stand. Comm. Rep. No. 1281, in 2005 Senate

Journal, at 1639-41; S. Stand. Comm. Rep. No. 1592, in 2005

Senate Journal, at 1775-77; Conf. Comm. Rep. No. 175, in 2005

House Journal, at 1818-19, 2005 Senate Journal, at 1080-81.

      Appellants also assert that the LUC must adopt rules and

regulations regarding designation of Important Agricultural

Lands.    The LUC did, however, recently adopt the following rules

and regulations regarding county designation of IALs, thus

mooting the Appellants’ argument:          HAR §§ 15-15-125 (effective

2013) (“County identification of important agricultural lands”)

and -126 (effective 2013) (“Criteria for designation of lands as

important agricultural lands pursuant to county

recommendation”).      To the extent that the Appellants argue that

there should be rules and regulations allowing the LUC to

designate IALs independently of the processes described in HRS

§§ 205-47 through -49, such argument is not supported by the

plain language of those statutes.

      Lastly, one crucial fact severely undermines the

Appellants’ argument that the LUC should stay reclassification

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of the Petition lands in this case because they would likely

qualify as IALs.    HRS § 205-47(a) exempts from IAL designation

“lands that have been designated, through the . . . county

planning process, for urban use by the State or county.”            The

Petition area is located within the Urban Growth Boundary of the

Ewa Development Plan.     The Petition lands have, therefore, been

designated through the county planning processes for urban use

and are, as a result, disqualified as IAL.         Although the

Appellants argue that the land could be taken out of the Urban

Growth Boundary upon the revision of the Ewa Development Plan,

this court takes judicial notice of the recently amended Ewa

Development Plan, which continues to include Hoopili within the

Urban Growth Boundary.     Further, at the hearing before the LUC,

DPP also expressly testified that it would exclude the Petition

land from its IAL recommendations.        Even after the City

Council’s Resolution 12-23 became part of the record, DPP’s

witness testified that DPP’s plan to exclude the Petition land

as IAL would not change.      In fact, the DPP has excluded the

Petition lands from its current IAL recommendation.           See

http://mapoahuagland.com/about/faq/ (“Can lands reserved for

[the] Hoopili . . . development[] be designated as IAL?            No,

[this] project[ is] excluded from consideration as IAL because

[it has] long been included in County land use plans for urban


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use.    State law does not allow land identified for urban use by

the State or county to be designated as IAL.”) (last visited

Dec. 15, 2015).     In short, even if the LUC were to stay the

instant reclassification proceedings to allow the county-

initiated IAL designation process to run its course, it would

make no difference for the particular lands at issue in this

case.

       C.   Reliable, Probative, and Substantial Evidence
            Supported the LUC’s Findings That the Reclassification
            Complied with HAR § 15-15-77

       The Appellants argue before this court that the circuit

court erred in upholding the LUC’s decision and order, because

the LUC “simply ignor[ed]” “overwhelming and dispositive

evidence” that alternative agricultural lands were insufficient,

that agriculture on Oahu would not be harmed by the

reclassification, and that the Hoopili lands are needed for

urban growth, all in violation of HAR § 15-15-77.

       Preliminarily, we note that, despite pinpointing specific

challenged FOFs at oral argument before the circuit court, the

Appellants’ Opening Brief once again pursues a global attack on

the LUC’s D&O.     The Opening Brief before this court, like the

opening brief before the circuit court, fails to identify which

FOFs the Appellants view as clearly erroneous.           As such, this

court is bound by all of the LUC’s unchallenged FOFs.             See

Bremer v. Weeks, 104 Hawaii 43, 63, 85 P.3d 150, 170 (2004)
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(holding that “findings of fact . . . that are not challenged on

appeal are binding on the appellate court”) (citations omitted).

We remind counsel that Hawaii Rules of Appellate Procedure

(“HRAP”) Rule 28(b)(4)(C) (2010) requires that an appellant’s

opening brief concisely state points of error, and, “when the

point involves a finding or conclusion of the . . . agency,

either a quotation of the finding or conclusion urged as error

or reference to appended findings and conclusions. . . .”                 This

court has looked past violations of HRAP Rule 28(b)(4) to reach

the merits of a case where issues of great importance are at

stake.    See, e.g., Morgan v. Planning Dep’t, 104 Hawaii 173,

181, 86 P.3d 982, 990 (2004) (“[B]ecause the issues raised in

the instant case are of great importance [i.e., the Hawaii

constitution’s recognition of the significance of conserving and

protecting Hawaii’s natural beauty and natural resources], we

address the merits of the issues raised . . . notwithstanding

the [Appellants’] technical violation of HRAP Rule 28(b)(4).”)

In this case, we note that the Appellants did specifically

challenge FOFs 428, 430-434, 437, 444-448,6 567-568, 571-572, and


6
       FOFs 444-448 concern whether there is enough groundwater for the
Hoopili development. These findings, however, are only tangentially related
to the HAR § 15-15-77 issue. The Appellants brought up groundwater only to
argue that “[r]emoving land from agricultural production will have grave
impacts for this island, including potentially substantial impacts to the
groundwater.” Whether or not the future Hoopili residents will have enough
groundwater, however, is an issue unconnected to whether the reclassification
(1) will not impair agricultural production or (2) is necessary for urban
                                                               (continued. . .)

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574 before the circuit court, and due to the public importance

of this case, we will consider the Appellants’ appeal as

continuing to challenge these particular FOFs.           Even given this

latitude, however, the Appellants fail to carry their burden of

showing why the LUC’s D&O should not be affirmed.

           1.   HAR § 15-15-77(b)(6)

        HAR § 15-15-77(b)(6) provides the following:

           Lands in intensive agricultural use for two years prior to
           date of filing of a petition or lands with a high capacity
           for intensive agricultural use shall not be taken out of
           the agricultural district unless the commission finds
           either that the action:
           (A) Will not substantially impair actual or potential
           agricultural production in the vicinity of the subject
           property or in the county or State; or
           (B) Is reasonably necessary for urban growth.

(Emphasis added).     This regulation is stated in the disjunctive.

Therefore, if the LUC’s reclassification satisfies one prong,

the reclassification will be upheld.

                 a.   Reasonable Necessity of Urban Growth

      The LUC’s FOFs concerning the necessity of urban growth

were numbered 356-363.      Even giving Appellants the latitude of

considering the particular FOFs challenged before the circuit

court, the fact remains that the Appellants did not challenge

these findings, and they are binding upon this court.             Bremer,

104 Hawaii at 63, 85 P.3d at 170.        As such, this court must


(. . .continued)
growth. In other words, the groundwater issue is separate from Appellants’
point of error concerning HAR § 15-15-77, and is therefore not further
discussed in this opinion.


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accept that the reclassification was necessary for urban growth.

Further, that singular finding under HAR § 15-15-77(b)(6)

justifies the LUC’s reclassification, as HAR § 15-15-77(b)(6) is

stated in the disjunctive.

                b.    No Substantial Impairment of Agricultural
                      Production

      As this court is procedurally bound by the LUC’s

determination that the reclassification was reasonably necessary

for urban growth due to Appellants’ failure to challenge that

determination, there is no need to examine Appellants’ challenge

to the LUC’s FOFs as to whether the reclassification will impair

agricultural production.      However, once again giving latitude

due to the public importance of this case, we note that the

Appellants did challenge the following FOFs on this issue:

          428. The DOA, [sic] is working to make good agricultural
          land available as part of its strategy to expand our
          agricultural industry in the State, including land for the
          possible relocation of the tenants of the Petition Area.
          Such lands include the proposed 150-acre agricultural park
          on Kunia Road, a 400-acre parcel off of Kunia Road held by
          the DLNR, and the 1,700-acre Galbraith Trust Lands
          currently in the process of being purchased by the DOA. The
          DOA is working to provide the infrastructure necessary to
          provide water to these lands.

          . . . .

          430. An increasing number of farmers in Hawaii are
          implementing intensive farming methods, such as farming two
          or more crops per year; using trellises, cages or sticks to
          support plants; and growing plants using hydroponic farming
          in greenhouses, which have resulted in increasing
          production without requiring more land. In particular, many
          of the tomatoes, cucumbers, peppers, and lettuces sold in
          our supermarkets are grown hydroponically in greenhouses by
          Hawaii and mainland farmers.




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           431. There are disputing [sic] opinions as to whether good
           farm lands are or are not necessary because of hydroponics.
           According to some experts, hydroponics is highly capital
           intensive and its feasibility and profitability is unproven
           in Hawaii.

           432. Estimates of the amount of acreage needed to increase
           food self-sufficiency vary widely. The Petitioner estimates
           that approximately an additional 23,000 acres on Oahu would
           be required for 100% self-sufficiency in fresh produce.
           Faculty researchers from the University of Hawaii
           calculated that “near self-sufficiency” for a range of
           vegetables, grains, fruits, other crops, meat, and dairy
           would require an estimated 260,800 acres statewide.

           433. Currently, approximately 15,000 acres of land is
           farmed statewide to produce approximately 33% of the
           State’s fresh vegetables, melons and fruits. Therefore,
           achieving 100% self-sufficiency in these crops would
           require about 30,000 additional acres of farmland
           statewide. The additional land required is small compared
           to the estimated 177,000 acres ± 5,000 acres of good
           farmland that is available statewide. In addition, another
           70,000+ acres could become available if shipping is
           interrupted to such an extent that exporting crops becomes
           unfeasible.

           434. For the Island of Oahu, approximately 23,000
           additional acres would be required for 100% self-
           sufficiency in fresh produce. This estimate is high, given
           inter-island shipping and reduced land requirements from
           intensive farming.

           . . . .

           437. The Project will have little or no adverse impact on
           Hawaii’s agricultural production, as other farmland is
           available on the island of Oahu to accommodate the
           relocation of the existing Ewa farms, as well as to
           accommodate the future growth of diversified crop farming.
           Land is available because of the contraction of statewide
           agriculture.

The Appellants’ Opening Brief contains no argument or record

citations referencing (1) how much land is necessary for 100%

self-sufficiency; or (2) intensive farming methods, particularly

hydroponics; therefore, “[p]oints not argued may be deemed

waived.”   HRAP Rule 28(b)(7) (2010).       Thus, Appellants have



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waived review of FOFs 430-434.       Therefore, the only remaining

FOFs not waived on the agricultural impact issue are FOFs 428

and 437.

      As to FOF 428, the Appellants argue that Director Kokubun

himself testified that the State does not yet have the funds to

invest in water infrastructure improvement.          The Appellants’

point is consistent with the FOF, which states that the State is

“working to provide the infrastructure necessary to provide

water to these lands.”     Kokubun’s testimony (that the Department

of Agriculture was “working on getting some planning and design

money to take a look at” the infrastructure needs of the

available agricultural land) supports this FOF.           Consequently,

this FOF is not clearly erroneous.

      Turning to FOF 437, it is clear that this fact is the one

the Appellants primarily challenge.        They disagree with the

premise that there is enough available agricultural land on Oahu

to relocate the Hoopili tenants and accommodate the future

growth of diversified farming.       The Appellants contend that the

LUC “simply ignor[ed]” their evidence that it was hard for

farmers to find available agricultural land; to secure long-term

leases on agricultural land; and to economically prepare land

for farming, particularly where water infrastructure must be

developed or improved.     Additionally, Appellants argue that



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there was no “record of productivity” on replacement

agricultural lands.

      The LUC represented in its Answering Brief, however, that

it did not “simply ignore” testimony that “lands had been in

cultivation, but considered the specific replacement lands as

well as other evidence concerning agriculture in Hawaii in

general.”   Indeed, the LUC considered testimony from Plasch that

“the Project will have little or no adverse impact on Hawaii’s

agricultural production because farmland is available in upper

Kunia and the North Shore to accommodate the relocation of

existing farms in Ewa.”     Plasch also testified that “the

development of the Petition Area and the resulting loss of

agricultural land will not limit the growth of diversified crops

since ample agricultural land is available on Oahu and the other

islands.”   Plasch explained that 263,000 acres of farmland have

been released statewide from 1968 to 2009 due to the contraction

of plantation agriculture, with about 177,000 ± 5,000 acres of

good farmland now available for diversified agriculture.            On

Oahu alone, Plasch testified, there are 30,000 acres of high

quality farmland available for diversified agriculture.            He

further testified that the farms on Hoopili have sufficient

lands outside of the urban growth boundary to continue their

operations.


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      For their part, Hoopili tenants Aloun Farms and Sugarland

Farms attested to the suitability of the replacement lands.

Director Kokubun also testified as to the thousands of acres in

Kunia and Wahiawa that the Department of Agriculture was going

to make available for agricultural production, with plans to

improve water infrastructure.       In summary, Plasch, Kokubun, Sou,

and Jefts provided reliable, probative, and substantial evidence

supporting the LUC’s FOF 437.       Substantial evidence is “credible

evidence which is of sufficient quality and probative value to

enable a person of reasonable caution to support a conclusion.”

In Re Water Use Permit Applications, 94 Hawaii 97, 119, 9 P.3d

409, 431 (2000) (citations omitted).        We are, therefore, bound

by this finding.    A court reviewing an agency’s decision cannot

“consider the weight of the evidence to ascertain whether it

weighs in favor of the administrative findings, or . . . review

the agency’s findings of fact by passing upon the credibility of

witnesses or conflicts in testimony, especially the finding of

an expert agency in dealing with a specialized field.”

Application of Hawaiian Elec. Co., Inc., 81 Hawaii 459, 465, 918

P.2d 561, 567 (1996) (citation omitted).

      Appellants have not shown how finding of fact number 437

was clearly erroneous.     In short, the Appellants have not met

their burden of proving that the LUC’s finding that the


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reclassification would not impair agricultural production was

clearly erroneous.

             2.   HAR § 15-15-77(a)

      HAR § 15-15-77(a) requires reclassifications to conform to

the Hawaii State Plan.       Although the Appellants challenged five

FOFs (at oral argument before the circuit court) regarding the

project’s conformance with the Hawaii State Plan, Appellants’

Opening Brief contains no supporting argument.            The Opening

Brief states only, “The Hawaii State Plan provides that the

state shall ‘assure the availability of agriculturally suitable

lands with adequate water to accommodate present and future

needs.     HRS § 226-7.”    Under HRAP Rule 28(b)(7), then, the

argument that the LUC’s reclassification violated HAR § 15-15-

77(a) is waived.

      D.    The LUC’s Conclusions of Law

      We note that HRS § 205-4(h) (Supp. 2005) requires the LUC

to approve a proposed boundary amendment only after concluding,

by a preponderance of the evidence, that it is “reasonable, not

violative of section 205-2 and part III of this chapter, and

consistent with the policies and criteria established pursuant

to sections 205-16 and 205-17.”         (Emphasis added).      HAR § 15-15-

77 further requires that any approved boundary amendment be

consistent with HRS § 205A-2 (Hawaii’s Coastal Zone Management

Program).    In this case, in COL 12, the LUC concluded that the

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reclassification “is reasonable, not violative of HRS § 205-2,

and is consistent with the policies and criteria established

pursuant to HRS §§ 205-16, 205-17, and 205A-2,” omitting any

conclusion regarding part III of HRS Chapter 205.             The

Appellants did not challenge COL 12, but this court may freely

review the LUC’s COLs.       Ka Paakai O KaAina, 94 Hawaii at 41, 7

P.3d at 1078.       We note that the LUC did render the following

COL 7:

            The Commission, notwithstanding the agricultural use or
            agricultural classification of the Petition Area, has
            authority to entertain this Petition and render a decision
            thereon without consideration of the standards and criteria
            for the reclassification or rezoning of IAL set forth in
            HRS § 205-50, because the Petition Area is not currently
            designated as IAL under Act 183 (2005) and HRS Chapter 205.

This COL, however, merely states that the reclassification of

the Petition lands was not being made pursuant to HRS § 205-50,

which governs reclassification of IALs only.            This statement is

true, in that the instant reclassification was made pursuant to

HRS § 205-4, which governs all land reclassifications.              This

COL, however, does not fulfill the requirement under HRS § 205-

4(h) that the LUC conclude, by a preponderance of the evidence,

that the reclassification did not violate part III of Chapter

205.     Hence, the LUC erred in failing to conclude, by a

preponderance of the evidence, that the reclassification was not

violative of part III of Chapter 205.




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      Under the circumstances of this case, however, this error

is harmless because the LUC made separate findings on Important

Agricultural Lands that would have supported a conclusion that

it had complied with part III of Chapter 205 to the extent that

it could, given the unfinished state of the formal county IAL

designation process.     These FOFs were as follows:

          555. The City IAL Process is set forth in HRS § 205-47.

          556. DPP is currently in the process of hiring a consultant
          to provide assistance in making its IAL designation
          recommendations to the City Council. The DPP is expected to
          start the recommendation process later in 2012. In doing
          so, DPP will work with the City Agricultural Liaison;
          however, the process is ultimately a DPP initiative.

Moreover, with regard to the particular lands at issue, it would

make no difference if the LUC awaited the completion of the

formal IAL identification process, as the Petition lands were

not designated IAL, were slated for urban development under

county plans, and the county was not going to designate them as

IAL, notwithstanding Resolution 12-23, which the following FOFs

make clear:

          557. The Petition Area is currently not designated as IAL,
          and the DPP stated that it will not be recommending the
          Petition Area as a potential.

          558. On February 15, 2012, the City Council passed
          Resolution No. 12-23, entitled “Urging the City’s
          Agricultural Liaison to Expedite the Identifying and
          Mapping of Important Agricultural Lands and Ensure that the
          City Works to Preserve the Availability of Agricultural
          Lands for Farming.”

          559. Resolution No. 12-23 would not change DPP’s position
          on not including the Petition Area as a potential IAL area.

          560. HRS §§ 205-44(c)(6) and 205-47(a) and (d), requires
          DPP to consider consistency with the Ewa DP and with the

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            Urban Boundary contained therein, in identifying IALs. HRS
            §§ 205-44, 205-47.

            561. The City Council Committee Report No. 74, which was
            adopted by the Committee on Planning and Zoning in
            conjunction with Resolution No. 12-23, specifically states
            that the resolution “is not intended to influence the state
            Land Use Commission decision-making process on any case
            pending before the Commission.”

This court again takes judicial notice of the fact that the

DPP’s current recommended IALs do not include Hoopili.              See

http://mapoahuagland.com/about/faq/ (last visited Dec. 15,

2015).     Thus, under the facts of this case, reclassification

would not be “violative of part III” because this particular

parcel was not, and would not be, identified as IAL.

V.    Conclusion

      The LUC in this case properly reclassified D.R. Horton-

Schuler’s property from the agricultural land use district to

the urban land use district.        Article XI, Section 3 and Act 183

reveal no intent to require the LUC to stay reclassification

proceedings pending formal designations of IALs.             Further, the

Appellants did not provide persuasive argument that the LUC’s

D&O violated HAR § 15-15-77.        First, the Appellants did not

challenge the LUC’s finding that the reclassification was

reasonably necessary for urban growth; therefore, this court is

bound by that finding.       Even if it were not, substantial

evidence supported the LUC’s additional findings that the

reclassification would not substantially impair agricultural



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production.   Second, the Appellants did not provide argument on

the issue of whether the reclassification violated the Hawaii

State Plan.   Consequently, we cannot conclude that the LUC’s D&O

violated HAR § 15-15-77.      For the foregoing reasons, the circuit

court’s decision and order, which affirmed the LUC’s D&O and

dismissed the Appellants’ appeal, is affirmed.

      We take this opportunity to reiterate, however, that

pursuant to the first statute within Part III, HRS § 205-41, the

legislature has declared as follows:

           Declaration of policy. It is declared that the people of
           Hawaii have a substantial interest in the health and
           sustainability of agriculture as an industry in the State.
           There is a compelling state interest in conserving the
           State’s agricultural land resource base and assuring the
           long-term availability of agricultural lands for
           agricultural use to achieve the purposes of:
                 (1) Conserving and protecting agricultural lands;
                 (2) Promoting diversified agriculture;
                 (3) Increasing agricultural self-sufficiency; and
                 (4) Assuring the availability of agriculturally
                     suitable lands,
           pursuant to article XI, section 3, of the Hawaii State
           Constitution.

Accordingly, although there is no basis under the law to

overturn this reclassification, the state and county governments

are reminded of the importance of agriculture to the future of




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this state and of the need to effectuate the mandate of Article

XI, Section 3 through the implementation of Act 183.

Eric A. Seitz,                   /s/ Mark E. Recktenwald
Della A. Belatti,
and Sarah R. Devine,             /s/ Paula A. Nakayama
for petitioners
                                 /s/ Sabrina S. McKenna
Gregory W. Kugle
and Matthew T. Evans             /s/ Gary W. B. Chang
for respondent
D.R. Horton-Schuler
Homes, LLC




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