Growth v. Land United Statese Comm'n

463 P.3d 1153

LANA‘IANS FOR SENSIBLE GROWTH, Intervenor-Appellant,

v. LAND USE COMMISSION, County of Maui Department of Planning, State Office of Planning, Appellees,andLana‘i Resorts, LLC, Petitioner-Appellee.

SCOT-17-0000526

Supreme Court of Hawai‘i.

MAY 15, 2020

Alan T. Murakami, (Moses K.N. Haia, III, with him on the briefs), Honolulu, for appellant Lana‘ians for Sensible Growth

Bryan C. Yee, Honolulu, (Dawn Takeuchi-Apuna with him on the brief), for appellee State Office of Planning

Benjamin A. Kudo, (James K. Mee and Sarah M. Simmons with him on the brief), Honolulu, for appellee Lana‘i Resorts, LLC

McKENNA, POLLACK, JJ., WITH WILSON, J., JOINING IN PARTS I—III(A)-(D) AND DISSENTING IN PARTS III(E) AND IV, AND WITH RECKTENWALD, C.J., CONCURRING IN THE JUDGMENT AND DISSENTING, WITH WHOM NAKAYAMA, J., JOINS

OPINION OF THE COURT BY POLLACK, J., EXCEPT AS TO PARTS III(E) AND IV

In 2017, the Land Use Commission of the State of Hawai‘i determined that, when it prohibited a resort from irrigating its golf course with "potable" water as a condition of its administrative order issued almost thirty years earlier, it did not mean "potable" by any common definition of the term. Instead, the Land Use Commission found that the term was intended to carry a special meaning that the Commission does not define—other than to say it excludes brackish water that contains chlorides over an unspecified level. Based upon this special interpretation of "potable," the Land Use Commission determined that the resort had not violated the administrative order. But neither the text of its administrative order nor the circumstances in which it was adopted offer any reason to depart from the plain meaning of the condition, which was intended to prohibit the resort from watering its golf course with water that is suitable for drinking under county water quality standards. This plain meaning is consistent with the common meaning of "potable" that this court recognized in its previous ruling in this case and serves to fulfill the constitutional duties with which the Land Use Commission is presumed to have complied.

We thus conclude that the Land Use Commission erred in its 2017 Order by interpreting a condition in its administrative order to mean that brackish water is per se "non-potable." Accordingly, we also consider whether the Commission erred in determining that the resort did not violate this condition under its plain meaning, which prohibits the utilization for golf course irrigation water suitable for drinking under the county's water quality standards.

I. BACKGROUND

A. The Initial Proceedings and the 1991 LUC Order

This case began in November 1989, when Lana‘i Resorts (the Resort) filed a Petition for Land Use District Boundary Amendment (Petition) with the Land Use Commission of the State of Hawai‘i (LUC).¹ The Petition sought "to effect district reclassification" of a large tract of rural and agricultural land so that the Resort could build an eighteen-hole golf course in Manele on the island of Lana‘i. The LUC permitted Lana‘ians for Sensible Growth (LSG) to intervene in the matter.² In April 1991, after six days of hearings, the LUC issued an order approving the Resort's Petition subject to several conditions (1991 LUC Order). Among these conditions was Condition 10, which gave rise to the litigation now before this court. Condition 10 states that the Resort is not allowed to use potable water to irrigate the golf course:

10. [The Resort] shall not utilize the potable water from the high-level groundwater aquifer for golf course irrigation use, and shall instead develop and utilize only alternative non-potable sources of water (e.g., brackish water, reclaimed sewage effluent) for golf course irrigation requirements.

In addition, [the Resort] shall comply with the requirements imposed upon [it] by the State Commission on Water Resource Management as outlined in the State Commission on Water Resource Management's Resubmittal—Petition for Designating the Island of Lanai as a Water Management Area, dated March 29, 1990.

(Emphasis added.) The "Resubmittal" referred to in the second paragraph of Condition 10 refers to the State Commission on Water Resource Management's (CWRM) March 1990 recommendation against designating the island of Lana‘i as a water management area.³

B. The 1996 LUC Order

In October 1993, the LUC issued an Order to Show Cause (OSC) to the Resort, directing it to show why certain portions of its golf course should not revert to their former land use classification or otherwise be changed to a more appropriate classification. The OSC stated that the LUC had reason to believe the Resort had failed to comply with Condition 10's requirement that it develop and utilize alternative sources of non-potable water for golf course irrigation.

Following twelve days of hearings regarding the OSC, the LUC issued its Findings of Fact, Conclusions of Law, and Decision and Order (1996 LUC Order). The LUC found that the Resort was irrigating the golf course primarily with nonpotable, brackish water from two wells located within the high level aquifer: Well 1 and Well 9.⁴ The LUC concluded that this use did not comply with Condition 10 and accordingly ordered the Resort to "immediately cease and desist any use of water from the high level aquifer for golf course irrigation requirements."

The Resort appealed the LUC's decision to the Circuit Court of the Second Circuit, which reversed the 1996 LUC Order. See Lanai Co. v. Land Use Comm'n, 105 Hawai‘i 296, 306, 97 P.3d 372, 382 (2004). We affirmed on review, holding that "the LUC erred in interpreting Condition No. 10 as precluding the use of ‘any’ or all water from the high level aquifer." Id. at 319, 97 P.3d at 395. This court explained that Condition 10 bars the use of only potable water from the high-level aquifer, and it allows the Resort to use non-potable water for golf course irrigation. Id. at 310, 97 P.3d at 386. We stated that "potable" is ordinarily defined as "suitable for drinking" but noted that the parties disagreed as to the meaning the 1991 LUC intended when it used the term in Condition 10. Id. at 299 n.8, 97 P.3d at 375 n.8 (2004) (quoting Webster's Seventh New Collegiate Dictionary 664 (1965)). The evidence did not conclusively establish that the aquifer contained only potable water, we held, and, indeed, the LUC's findings of fact "suggest[ed] that the use of [Wells 1 and 9], and their brackish water supply, was permissible." Id. at 313, 97 P.3d at 389. Because the 1996 LUC Order was ambiguous, we remanded the case to the LUC "for clarification of its findings ... as to whether [the Resort] used potable water from the high level aquifer, in violation of Condition No. 10." Id. at 319, 97 P.3d at 395.

C. The 2010 LUC Order

On remand in 2010, the LUC vacated its 1996 Order and granted the Resort's Motion for Modification of Condition 10 (2010 LUC Order). The newly-modified Condition 10 provided, in relevant part, the following:

a. [The Resort] shall not use ground water to irrigate the Manele Golf Course, driving range and other associated landscaping if the chloride concentration measured at the well head is 250 milligrams per liter (250 mg/l) or less.

b. In the event the chloride concentration measurement of ground water to irrigate the Manele Golf Course, driving range and associated landscaping falls below 250 mg/l, [the Resort] shall cease use of the affected well(s) producing such ground water for irrigation purposes until such time as the chloride concentration measurement of the water drawn from such wells rises above 250 mg/l.

The case was again appealed, and on review the Intermediate Court of Appeals (ICA) held that the 2010 LUC Order was invalid because LSG was not given a "full and fair opportunity to have its evidence heard and considered post-remand." Lanaians for Sensible Growth v. Lanai Resorts, LLC, Nos. CAAP-13-0000314, CAAP-12-0001065, 2016 WL 1123383 (App. Mar. 21, 2016) (mem.).

D. The 2017 LUC Order

The LUC held further hearings following the second remand and on June 1, 2017, issued the Findings of Fact, Conclusions of Law and Decision and Order that are the subject of this appeal (2017 LUC Order). In determining whether the Resort had violated Condition 10 when it used brackish water from Wells 1 and 9 for golf course irrigation, the LUC explained that the "common sense definition" of potable is "drinkable," and that the word "brackish" means "somewhat salty" and "distasteful."⁵ (Quoting Lanai Co., 105 Hawai‘i at 299 n.10, 97 P.3d at 375 n.10.) Based on testimony from the hearings, the LUC determined that "[w]ater with chloride concentrations above 250 ppm or mg/L is considered ‘brackish,’ " but water above this threshold "may also be considered ‘potable.’ "⁶

The LUC noted that the United States Environmental Protection Agency's (EPA) "secondary standards" define "brackish water" as "water having chlorides of 250 mg/L or above." When chloride levels exceed 250 mg/L, the LUC stated, customers begin to complain of "taste issues" and problems arise "with the water system itself such as corrosion and deposits in the pipelines." The LUC also explained that "in practice, county water departments generally limit chloride levels of water within their municipal system to less than 160mg/L, or at most, under the EPA's secondary standard of 250 mg/L."

The LUC found, however, that chlorides are considered to be a "secondary contaminant" because they affect only the "aesthetic qualities" of drinking water. In other words, chloride levels are not regulated by standards designed to protect public health. The Hawai‘i Department of Health (DOH) would allow public water systems to provide drinking water with chloride levels in excess of 250 mg/L, the LUC found, and some public water systems have done so in the past. It is also "typical," the LUC stated, "for county water supplies to use water pumped at or above 250 ppm in their domestic water systems, blended into other water."...