This document provides an overview and summary of administrative hearings and contested cases in Hawaii. It begins with an introduction to Jesse Souki and his background in administrative law. It then discusses where contested cases fit within the project approval process. The remainder of the document outlines key aspects of contested cases, including when they are required, basic information to prepare for a case, the hearing process, and standards for judicial appeals.

1. Administrative Hearings 101
TUESDAY, MARCH 20, 2018
HAWAII STATE BAR ASSOCIATION – MAIN CONFERENCE ROOM – 1 CLE CREDIT
JESSE K. SOUKI, ESQ.

2. What does this guy know about
contested cases?
Deputy Corporation Counsel, Maui
◦ Advised planning department and commissions
Private Practice, Honolulu
◦ Practiced primarily before state land use
commission, county commissions, and board of
land and natural resources, zoning board of
appeals
Deputy Corporation Counsel, Honolulu
◦ Advised planning department, appeared before
land use commission, defended admin appeals
Office of Planning, Director
◦ Policy guidance, implement and draft rules,
administer statewide CZM program
Department of Land and Natural Resources,
Deputy Director
◦ Policy guidance on matters before the board of
land and natural resources
Hawaii Community Development Authority,
Executive Director
◦ Policy guidance, hearings officer, implement and
draft rules

3. Where does the contested case fit in the
project cycle?
Feasibility/
Market
Analysis
Site Selection/
Acquisition
Planning/
Engineering
Gov’t
Approvals
Financing
Construction
Disposition
Feasibility/Market Analysis
◦ Zoning, subdivision, plans, land use policies
◦ Timeline
Site Selection
◦ Geotech, hydrology, topography
◦ Historic preservation
◦ Environmental review
◦ Protected views
◦ Flora & Fauna
◦ Cultural Impacts
Planning/Gov’t Approvals
◦ Rezoning
◦ Conditional permits
◦ Variances
◦ SMA/certified shoreline
◦ Site plan review
◦ Permit review
◦ Environmental review

4. Basic Information
Landowner
Builder
Developer
Property information
Property & Community Characteristics
Community Engagement
Land Use & Regulations
Public Infrastructure
Proposed Use
Team Coordination
The Record

5. Basic Information
Project Team and Schedule
Who will sign documents?
Who will testify at the hearing?
Where does the buck stop?
What’s the budget and financial constraints?
What’s the timeline?
Lawyers
Planners
Architects
Engineers
Environmental Consultants
Permit expediter
Biologists
Cultural expert
Communications and public relations

6. Basic Information
Property Information
Deeds
Title Reports
◦ Exceptions/exclusions
◦ Kuleana
◦ Old government roads
Surveys
Legal description
Ownership interests
Land court/regular system
◦ Deregister?
Tax Maps/Plat maps

7. Basic Information
Property & Community Characteristics
Acreage
Existing and past uses
Topography
Floodplains
Coastal Issues
◦ Sea level rise
◦ Shoreline setback
◦ Access rights
Roads
Utilities
Police, Fire, Ambulance
Flora/Fauna
Soil Classification
Special Districts
View Corridors
School Impact Fees
Affordable Housing
Noise (FHWA/FTA)

8. Basic Information
Community Engagement and Land Use & Regs
COMMUNITY ENGAGEMENT
Current uses
Past uses
Community issues and concerns
Community leaders
◦ Electeds
◦ Federal, state, county, neighborhood
◦ Native Hawaiian organizations
◦ Hui
◦ Informal groups
LAND USE PLANS & REGULATIONS
General plans
Community development plans
Developer master plans
HCDA Plans
State Land Use Districts
Zoning
Special management area
Variances

9. Basic Information
Public Infrastructure
Roads
Water
Sewer
Fire
Parks
Utilities
Rail – Transit Oriented Development

10. Basic Information
Proposed Use and Team Coordination
PROPOSED USE
Project description
Authorizing agencies
Zoning and rules requirements
Market study
Jobs created
Taxes generated
Community benefits
TEAM COORDINATION
Project manager
Consultant contract management
Reports
Community relations
Media relations
Government relations
Coordinating permits
Contested case procedures

11. Basic Information
The Record
Pleadings
Briefs
Testimony
Transcripts
Related planning and permitting documents
Decisional documents

12. Summing it
Up
Before we get to the contested case, many
decisions are made and actions taken. Every
step is an opportunity to build consensus,
community support, and buy-in. These
decisions shape the contested case
proceedings and its outcomes.

13. When are contested
cases required?
HAWAII REVISED STATUTES CHAPTER 91
HAWAII ADMINISTRATIVE PROCEDURE ACT

14. Definitions, HRS §91-1
CONTESTED CASE
"Contested case" means a proceeding in which
the legal rights, duties, or privileges of specific
parties are required by law to be determined
after an opportunity for agency hearing.
"Agency hearing" refers only to such hearing held
by an agency immediately prior to a judicial
review of a contested case as provided in section
91-14.
"Party" means each person named or admitted
as a party, or properly seeking and entitled as of
right to be admitted as a party, in any court or
agency proceeding.
RULE
"Rule" means each agency statement of
general or particular applicability and future
effect that implements, interprets, or
prescribes law or policy, or describes the
organization, procedure, or practice
requirements of any agency.

15. Contested Case
May be required by
◦ Agency rule
◦ Statute
◦ Constitutional due process
Aguilar Two-step analysis
◦ Is it ”property” under the due process clause?
◦ Claimant seeks to protect a “property interest”—a benefit
to which the claimant is legitimately entitled.
◦ If it is, what specific procedures are required to
protect it?
Sandy Beach Balancing Test – What specific
procedures are required to satisfy due
process?
◦ Private interest which will be affected
◦ Risk of an erroneous deprivation
◦ procedures actually used, and the probable value, if any, of
additional or alternative procedural safeguards
◦ Governmental interest
◦ burden that additional procedural safeguards would entail

16. Case Examples
IN RE IAO
Property
◦ Native Hawaiian water rights
Due Process Required
◦ Due process hearing was required to protect the
asserted property right to exercise traditional
and customary practices protected by article XII,
section 7
◦ Property interest in the CWRM's order amending
the Interim Instream Flow Standards for two
streams
IN RE MECO
Property
◦ Right to a clean and healthful environment
Due Process Required
◦ Due process hearing was required to protect the
asserted property right to a clean and healthful
environment guaranteed by article XI, section 9
◦ Sierra Club's members allowed to participate in
power purchase agreement decision-making

17. Due Process
Requirements
Opportunity to be heard at a meaningful time and in a
meaningful manner
Right to submit evidence and argument
Right to present evidence, cross-examine opposing
evidence, and submit rebuttal evidence
Board may consider relevancy, materiality, and repetition
and limit a presentation of evidence in a contested case
proceeding

18. What does a hearing look like and who participates?

19. General Statutory Requirements
Reasonable notice to all parities
◦ The date, time, place, and nature of hearing
◦ The legal authority
◦ Sections of the statutes and rules involved
◦ Plain language of the issues involved and the
facts alleged by the agency
◦ Any party may retain counsel—it is not required
Parties may
◦ present evidence and argument on all issues
involved
No ex officio communications
The record of agency decision includes
◦ All pleadings, motions, intermediate rulings
◦ Evidence received or considered, including oral
testimony, exhibits, and a statement of matters
officially noticed
◦ Offers of proof and rulings thereon
◦ Proposed findings and exceptions
◦ Report of the officer who presided at the
hearing
◦ Staff memoranda submitted to members of the
agency in connection with their consideration of
the case

20. Rules of Evidence
Agencies may
◦ Exclude irrelevant, immaterial, or unduly
repetitious evidence
◦ Receive documentary evidence in the form of
copies or excerpts
◦ Take notice of judicially recognizable facts
Parities must be allowed
◦ Cross-examination
◦ Submission of rebuttal evidence
Party initiating the proceeding has the burden
of proof by a preponderance of the evidence

21. Meetings vs.
Contested Cases
Sunshine Law (HRS Chapter 92)
Every meeting of all boards shall be open to the
public and all persons shall be permitted to
attend any meeting.
The Sunshine Law does not apply to quasi-
judicial, contested cases.
Except for the land use commission, which is
required to openly deliberate (HRS §92-6).

22. State Land Use
Commission
◦ Nine member volunteer board
◦ HAR Chapter 15-15
◦ Contested Cases
◦ District Boundaries
◦ Special Permits
◦ Important Agricultural Lands
◦ Orders to Show Cause
◦ “Any party or interested person may file a motion with the
commission requesting an issuance of an order to show cause
upon a showing that there has been a failure to perform a
condition, representation, or commitment on the part of the
petitioner.”

23. State Land Use Commission
District Boundary
Amendments
Amendments to district boundaries
◦ fifteen acres or less county
◦ greater than fifteen acres LUC
Hearing
◦ On island where land is located
◦ Within 180 days of filed petition
Intervention
◦ property interest
◦ direct and immediate effect from
project
◦ clearly distinguishable from that of the
general public
◦ Agencies of the state
Automatic Parties
◦ Affected county
◦ Office of Planning
Clear preponderance of the evidence that
◦ the proposed boundary is reasonable
◦ not violative of section 205-2
◦ consistent with sections 205-16 (Hawaii
State Plan) and 205-17 (decision-making
criteria)
Parties may stipulate to FOF, COL, D&O

24. State Land Use Commission, Checklist
Applicable goals, objectives, and policies of the Hawaii state plan
Conforms to the applicable district standards
Preservation or maintenance of important natural systems or habitats
Maintenance of valued cultural, historical, or natural resources
Maintenance of natural resources relevant to Hawaii's economy,
including ag resources
Commitment of state funds and resources
Provision for employment opportunities and economic development
Affordable housing
IAL Criteria
County general plan and all community, development, or community
development plans
Representations and commitments made by the petitioner
Pleadings
Intervention
Witness list
Exhibit list
◦ Environmental impact statement
◦ Technical reports
◦ Written testimony
Public Testimony – Must be taken along with witnesses
Annual Reports

25. State Land Use Commission
Special Permits
PROCESS
County may allow, “Certain unusual and reasonable uses within agricultural and rural
districts other than those for which the district is classified[.]”
Heard before planning commissions
Each county has its owner rules of procedure
Greater than fifteen acres and IAL
◦ LUC may impose additional conditions
IAL CRITERIA
Currently used for agricultural production
Soil qualities and growing conditions that support agricultural production of food,
fiber, or fuel- and energy-producing crops
Identified under agricultural productivity rating systems, such as the agricultural
lands of importance to the State of Hawaii (ALISH) system adopted by the board of
agriculture on January 28, 1977
Types associated with traditional native Hawaiian agricultural uses, such as taro
cultivation, or unique agricultural crops and uses, such as coffee, vineyards,
aquaculture, and energy production
Sufficient quantities of water to support viable agricultural production
Designation as important agricultural lands is consistent with general, development,
and community plans of the county
Contributes to maintaining a critical land mass important to agricultural operating
productivity
With or near support infrastructure conducive to agricultural productivity, such as
transportation to markets, water, or power

26. Hawaii Community
Development
Authority
Three Districts
◦ Kakaako, Heeia, Kalaeloa
Three Boards
◦ Nine volunteer members each
Three sets of plans and zoning rules
Contested cases require two hearings
◦ Presentation
◦ Decision-making
Report Outcome to House and Senate

27. Hawaii Community Development Auth.
Criteria Checklist
Advances the goals, policies, and objectives of the
applicable district plan
Protects, preserves, or enhances desirable neighborhood
characteristics through compliance with the standards and
guidelines of the applicable district rules
Avoids a substantially adverse effect on surrounding land
uses through compatibility with the existing and planned
land use character of the surrounding area; and
Provides housing opportunities for all income groups,
particularly low, moderate, and other qualified income
groups
Pedestrian oriented development, including complete
streets design
Transit oriented development, including rail, bus, and
other modes of rapid transit
Community amenities such as gathering places,
community centers, culture and arts facilities, and the full
array of public facilities normally provided by the public
sector
Preservation of important natural systems or habitats
Maintenance of valued cultural, historical, or natural
resources
Maintenance of other resources relevant to the State's
economy
Commitment of state funds and resources
Employment opportunities and economic development
Maintenance and improvement of the quality of
educational programs and services provided by schools

28. Hawaii Community Development Auth.
Process HAR Chapter 15-219
Consultation with staff planner
Depending on the size of the parcel (and the
district) contested case permit may be
required
An environmental assessment is usually
required
Public notice is posted
Hearings officer is sometimes used for the first
hearing
Large master planned projects tend to be
grandfathered under master plans
Staff report is prepared and presented to the
board
The board deliberates
If approved, a FOF, COL, D&O is prepared
Intervention deadline is 20 days after petition
filed

29. Board of Land
and Natural
Resources
Seven member volunteer board
Rules
◦ HAR Chapter 13-1, Practice and Procedure
◦ HAR Chapter 13-5, Conservation district
Contested cases
◦ Conservation district use permit (CDUP)
◦ Shoreline certification
DLNR
◦ Reviews and approves administrative
permits
◦ Reviews applications
◦ Prepare staff reports for BLNR
consideration

30. BLRN, Procedures
Written petition
◦ No later than the close of the board meeting, or
◦ Ten calendar days after the close of the board
meeting
Held after any public hearing
Concise Statement
◦ Interest
◦ Disagreement
◦ Relief sought
◦ What is the public’s interest in individual’s
participation
◦ Information related party status
Notice of hearing
Board may delegate fact finding to hearing
officer
Discovery not allowed
Subpoenas may be issued by the presiding
officer at the request of parties
Motions
Pre-hearing conference
Decision and Order
Reconsideration

31. Special Management Area Permits
Purpose
◦ “provide for the effective management,
beneficial use, protection, and development of
the coastal zone.”
Implementing Mechanisms
◦ Special Management Area Permits
◦ Federal Consistency
◦ Comprehensive Planning and Coordination
Contested Cases
◦ Maui, Hawaii, and Kauai counties consider SMA
permits in contested cases before their
respective planning commissions
SMA Guidelines (generally)
◦ Adequate access
◦ Adequate and properly located public recreation
◦ Provisions are made for solid and liquid waste
treatment
◦ Minimum adverse effect
◦ Not have any substantial adverse environmental
or ecological effect
◦ Consistent with the county general plan and
zoning
◦ Minimize impacts

32. Judicial Appeals

33. Standards of Review Applicable to an
Agency Appeal (GATRI)
Upon review of the record the court may
◦ Affirm the decision of the agency
◦ Remand the case with instructions for further proceedings
◦ 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:
◦ In violation of constitutional or statutory provisions
◦ In excess of the statutory authority or jurisdiction of the
agency
◦ Made upon unlawful procedure
◦ Affected by other error of law
◦ Clearly erroneous in view of the reliable, probative, and
substantial evidence on the whole record
◦ Arbitrary, or capricious, or characterized by abuse of
discretion or clearly unwarranted exercise of discretion
FOFs are reviewable under the clearly erroneous
standard to determine if the agency decision was
clearly erroneous in view of reliable, probative, and
substantial evidence on the whole record.
COLs are freely reviewable to determine if the agency's
decision was in violation of constitutional or statutory
provisions, in excess of statutory authority or
jurisdiction of agency, or affected by other error of law.
A COL that presents mixed questions of fact and law is
reviewed under the clearly erroneous standard
because the conclusion is dependent upon the facts
and circumstances of the particular case.
When mixed questions of law and fact are presented,
an appellate court must give deference to the agency's
expertise and experience in the particular field.

34. Standing to Appeal
Four requirements for judicial review over an agency
appeal:
◦ A contested case hearing
◦ Finality
◦ Compliance with agency rule
◦ Standing
Plaintiff must show:
◦ Suffered an actual or threatened injury
◦ The injury must be fairly traceable to the defendant's
actions
◦ Favorable decision would likely provide relief for the
plaintiff's injury
(Kilakila 'O Haleakala)
Constructive participation despite failure to testify at
hearing based upon assurances that petitioner's
written comments opposing the proposed action
would be applied to all dockets under review (Life of
the Land).
City failed to intervene in hearing despite PUC rules
providing for either formal intervention or informal
participation—no standing (City & County of
Honolulu).
A public hearing, conducted pursuant to public notice,
is a contested case where PUC granted appellant mere
informal status in docket (In re HECO).
Despite absence of rules for formal intervention,
association’s appeal of a variance granted standing
because ZBA rules requires notice and a public hearing
on any variance application (East Diamond Head Ass'n).

35. Project
Contested
Case
Appeal
Break the Cycle
Integrate environment, economy, and culture in
your presentations.
Think big: Your audience are current and future
generations.
Listen and learn from the interested public—
empathize.
Have the courage to remain logical and rational in
the face of emotional decision-making.
Look up, walk around, talk to people.
People often disagree on how to accomplish
something, but they all care about Hawaii, its
people, and its resources.

36. Sources
Hawaii Land Use Law & Policy, www.hilanduselaw.com
HRS §46-4, County zoning
HRS Chapter 6E, Historic Preservation
◦ Administrative Rules Pertaining to Historic Preservation in
Hawaii
HRS Chapter 91, Administrative Procedure
HRS Chapter 92, Sunshine Law
HRS Chapter 92F, Uniform Information Practices Act
HRS Chapter 226, Hawaii State Planning Act
HRS Chapter 343, Environmental Impact Statements
◦ EIS Rules
HRS Chapter 183, Conservation District
◦ OCCL Administrative Rules
◦ CDUA & Shoreline Certification
HRS Chapter 195D, Conservation of Aquatic Life,
Wildlife, and Land Plants,
◦ DOFAW Rules
HRS Chapter 205, Land Use Commission
◦ LUC Rules
HRS Chapter 205A, Coastal Zone Management Act
◦ SMA and Shoreline in HCDA
HRS Chapter 206E, Hawaii Community Development
Authority
◦ Plans and Rules
◦ Kakaako, Kalaeloa, Heeia

37. Cases
In re Maui Elec. Co., 141 Haw. 249, 408 P.3d 1 (2017) (due process hearing was required to protect the
asserted property right to a clean and healthful environment guaranteed by article XI, section 9 and
defined by HRS Chapter 269).
Mauna Kea Anaina Hou v. Bd. of Land & Nat. Res., 136 Hawai‘i 376, 363 P.3d 224 (2015) (BLNR acted
improperly when it issued a permit prior to holding a contested case hearing).
Kilakila 'O Haleakala v. Bd. of Land & Nat. Res., 131 Hawai'i 193, 317 P.3d 27 (2013) (contested case
hearing should have been held, as required by law and properly requested prior to BLNR's vote on the
application).
In re 'Īao Ground Water Mgmt. Area High-Level Source Water Use Permit Applications, 128 Hawai'i
228, 287 P.3d 129 (2012) (remanded to CWRM, finding a property interest in amended instream flow
standards where farmers "own or reside on land" in the affected area and "rely upon that water to
exercise traditional and customary rights" supported by statutory authority).
GATRI v. Blane, 88 Hawai'i 108, 962 P.2d 367 (1998) (holding that county community plan, specifically
implementing the general plan, has the force and effect of law).

38. Cases
Pele Def. Fund v. Puna Geothermal Venture, 77 Hawai'i 64, 881 P.2d 1210 (1994) (when the
requirements of standing were met and the agency's rules are followed, an agency hearing is
required when the challenged State action "adversely affects the constitutionally protected
rights" of others).
Sandy Beach Def. Fund v. City Council of Honolulu, 70 Haw. 361, 773 P.2d 250 (1989) (claims of
an aesthetic and environmental nature do not rise to the level of “property“ protected by due
process clause).
Life of the Land v. Land Use Comm'n, 61 Haw. 3, 594 P.2d 1079 (1979).
City & County of Honolulu v. Public Utilities Comm'n, 53 Haw. 431, 495 P.2d 1180 (1972).
In re Application of Hawaiian Electric Co., 56 Haw. 260, 535 P.2d 1102 (1975).
East Diamond Head Ass'n v. Zoning Board, 52 Haw. 518, 479 P.2d 796 (1971).