Hawaii Appellate Court Holds that Decisions By County Councils Are Not Subject to Hawaii's Environmental Policy Act

In a recent decision by the Hawaii Intermediate Court of Appeals (ICA), Mogilefsky v. County of Maui, the ICA determined that the Hawaii Environmental Policy Act (HEPA) was inapplicable to the enactment of zoning ordinances.  HEPA is a general reference to the state's environmental policy act which is embodied in Hawaii Revised Statutes (HRS) Chapter 343 and administrative rules under Hawaii Administrative Rules (HAR) Chapter 11-200.  The broader implication of the ICA's holding is that legislative actions will not be subject to HEPA.

Procedural History of the Case. David B. Mogilefsky (Mogilefsky) appealed a judgment in favor of Defendant County of Maui (County) filed on December 23, 2008 in the Circuit Court of the Second Circuit (circuit court). The circuit court entered judgment in favor of County pursuant to County's motion to dismiss entered on December 15, 2008.

Issue on Appeal.  Mogilefsky argued that County violated HAR § 11-200-26 by rezoning 670 acres in the Honuaula/Wailea 670 project without requiring a developer to submit a Supplemental Environmental Impact Statement pursuant to HEPA. County contended that HEPA was inapplicable, because the enactment of zoning ordinances is not an "agency action" under HRS § 343-2.

Analysis.  HAR § 11-200-2 defines "action" as "any program or project to be initiated by an agency or applicant" and "agency" as "any department, office, board, or commission of the state or county government which is part of the executive branch of that government." The Maui County Council (the Council) is a legislative body and is therefore excluded from this definition of "agency."

Article 3 of the Charter of the County defines the Council as a legislative body and that legislative acts are by ordinance.  The ICA analogized this case to the Hawaii Supreme Court's decision in Sandy Beach Defense Fund v. City Council of City and County of Honolulu, 70 Haw. 361, 370 (1989).  In that case, the Hawaii Supreme Court concluded that "the City Council, as the legislative branch of the County, is not subject to the procedural requirements of HAPA [Hawaii Administrative Procedure Act] when acting in either a legislative or non-legislative capacity."

The ICA read the definition of "agency" in HEPA as limited to the executive branch. The phrase "which is part of the executive branch of that government" qualifies the types of governmental bodies that are applicable "agencies." Because the Council is not a part of the executive branch of County, it is excluded from this definition. Consequently, County's enactment of zoning ordinances, as legislative acts, did not qualify as an "agency action."

ICA Holding and Conclusion.  The ICA agreed with the circuit court--HEPA is inapplicable to this case.

For more on environmental law issues see, Environmental Law.