2006-12-04_Memorandum_to_Petitioner_Opposition_to_Planning_Director_Motion_to_Dismiss_re_Herron_Whitehead

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granted to the Board by the County Charter Section 6-10 2 of the County Charter creates the Board and limits its powers to hearing and determining appeals from final decisions of the Director regarding matters within his respective jurisdiction and conducting hearings in accordance with Chapter 91, HRS, and the County Charter If, for example, an appeal of a final decision of the Director was pending before the Board, the appellant or any party to the appeal could petition the Board for a declaratory ruling on how the Board will apply the Board's Rules with respect to evidence, oral arguments, or whether the Board will waive or suspend any of the Board's Rules, etc In these examples,the Board would certainly have jurisdiction to issue a declaratory ruling because they relate to the powers granted to the Board by Section 6-10 2 of the County Charter If the Board refused to issue a declaratory ruling regarding an issue over which it has jurisdiction,the Board's refusal to make a ruling could be appealed to the courts See Lingle v HGEA, 107 Hawaii 178 (2005) Petitioners cite to the Lingle case for the proposition that the wording in Section 91-8, HRS, "was meant to induce agencies to issue declaratory rulings more frequently than had occurred in the past" However, this statement was taken out of context and is misleading as a result The complete sentence to which Petitioners refer is as follows The language of this section does not necessarily require an agency to issue a declaratory order in every instance but is intended to induce them to do so more frequently than they may have been doing in the past The issue addressed by the Court in Lingle was whether the circuit court had junsdiction over a refusal by the Hawaii Labor Relations Board ("HLRB")to issue a declaratory ruling, not whether the HLRB had jurisdiction to issue a declaratory ruling Although not addressed by the Court, the HLRB did have jurisdiction to issue a declaratory ruling because the issue related to an interpretation of a collective bargaining agreement Unlike the HLRB in Lingle, the Board 4