A "Sunshine Law" challenge to the Maui County Council's approval of the Honua'ula project, also known as Wailea 670, has been defeated in a Hawaii Supreme Court ruling.
The high court's 80-page ruling Thursday in Kanahele v. Maui County Council finds that the council did not violate the state's open meetings law when its Land Use Committee and the council as a whole recessed and reconvened meetings on the project numerous times.
The council approved the 1,150-unit project's first phase of zoning in 2008. The project mauka of the Wailea Resort also calls for building an 18-hole golf course, a clubhouse, retail stores, a 12-mile network of trails and bike paths and a 40-acre preserve for native plants.
Those challenging the council's action contended that Hawaii law limits a board, such as the council, to a single continuance of a noticed meeting. In other words, any council committee or regular meeting - beyond a single continuance - would require the posting of a new agenda and the acceptance of public testimony, the petitioners maintained.
The high court said state law does not specifically say how recessed and continued meetings are supposed to be handled. So, the court turned to the administrative construction and legislative history of the Sunshine Law.
The Office of Information Practices is charged with administering the Sunshine Law.
The court cited an 2001 OIP opinion interpreting the public testimony requirement and said that a board "may decide on proposed rule revisions after the public hearing without the duty to accept further public testimony during its decision-making simply by continuing the decision-making portion of the meeting to a reasonable day and time."
The opinion explained that as "a practical matter, for a board to perform its designated role by deliberating toward decisions, it must be able to conclude the public testimony portion of an agenda item once it has afforded all interested persons an opportunity to present oral testimony."
The court also found legislative history to support the contention that new agendas and more testimony are not required for reconvened recessed meetings, although such instances should be reasonable and not impair the public's ability to provide testimony.
The Sunshine Law's provision to continue meetings to a "reasonable date and time" was adopted by the Legislature in 1985. Lawmakers determined it was unreasonable to deny state boards the ability to continue meetings, even when important issues are being considered.
The court also found legislative history that showed lawmakers wanted to ensure that interested people be allowed to present their views but determined that there "had to be some balance between access to boards and the board's ability to conduct business."
Lawmakers adopted the law's current language that says "boards may provide for reasonable administration of oral testimony by rule."
On a separate point, the high court did find that the County Council violated the Sunshine Law in 2008 by distributing written memoranda among its members outside of a duly noticed meeting, "through which the members impermissibly sought a commitment to vote."
In light of that decision, the Supreme Court sent the case back to 2nd Circuit Court for consideration of attorneys' fees. But it ruled that the violations do not require invalidation of the council's passage of the Honua'ula project.
Council Chairwoman Gladys Baisa welcomed the ruling in favor of the council's procedures for handling agendas and testimony on recessed meetings.
"Though I have my issues with the Sunshine Law, the council always goes beyond the call of duty to attempt to ensure we operate in full compliance," she said in a news release. "It's clear from the Supreme Court's ruling that the council's current legislative procedures are legally appropriate."
Baisa acknowledged that the council's former practice of circulating the numerous proposed project conditions in advance of a council meeting were found "technically inappropriate because cover memos circulating the conditions asked for 'favorable consideration.' ''
The full opinion can be found at www.courts.state.hi.us/docs/opin_ord/sct/2013/August/SCWC-29649.pdf.
* Brian Perry can be reached at firstname.lastname@example.org.