HomeMy WebLinkAbout2005-05-06 Answering Brief Re Ainaola Development LINCOLN S. T. ASHIDA 4478
Corporation Counsel
IVAN M. TORIGOE 4327
Deputy Corporation Counsel
County of Hawaii
Hilo Lagoon Centre
101 Aupuni Street, Suite 325
Hilo, Hawaii 96720
Telephone: 961-8251
Facsimile: 961-8622
E-mail: itorigoepco.hawaii.hi.us
Attorneys for Appellee COUNTY OF HAWAI'I
PLANNING COMMISSION
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAI'I
AINALOA DEVELOPMENT CIVIL NO. 04-1-0421
CORPORATION, (Agency Appeal)
Appellant, APPELLEE COUNTY OF HAWAI'I PLANNING
COMMISSION'S ANSWERING BRIEF;
vs. APPENDICES "1" —"3"; CERTIFICATE OF
SERVICE
COUNTY OF HAWAI'I PLANNING
COMMISSION; CHRISTOPHER YUEN,
Planning Director, County of Hawai'i, and
OLE FULKS,
Appellees.
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TABLE OF CONTENTS
TABLE OF AUTHORITIES..............................................................................................ii
I. STATEMENT OF THE CASE........................................................................................... 1
IL STATEMENT OF QUESTIONS PRESENTED FOR DECISION................................... 6
III. STANDARD OF REVIEW.............................................................................................6-8
IV. ARGUEMENT ..............................................................................................................8-28
A. THE APPEAL IS BARRED BY WAIVER AND RES JUDICATA................8-17
1. Summary of Judgment................................................................................ 8
2. ADC Waived Its Rights to Appeal Imposition of Condition No. 7............ 8
3. Res Judicata Applies to Administrative Adjudications ....................... 11-12
4. ADC's Request for Amendment of Conditions Cannot
Revive Barred Claims.......................................................................... 13-15
5. ADC's Constitutional Claims Are Waived and Barred By
ResJudicata ......................................................................................... 15-17
B. APPELLANT ADC FAILED TO CARRY ITS BURDEN OF
PROOF; THE COMMISSION'S FINDINGS ARE NOT CLEARLY
ERRONEOUS.................................................................................................. 17-25
C. THE"ROUGH PROPORTIONALITY" TEST DOES NOT
APPLY TO NON-DEDICATORY CONDITIONS........................................25-28
V. CONCLUSION................................................................................................................. 28
APPENDIX"1" Letter from Sidney Fuke & Associates to Mr. Norman Hayashi,
Director Planning Department, dated July 24, 1002; letter from
Sidney Fuke & Associates to Mr. Norman Hayashi, Director Planning
Department dated September 4, 1992; and Summary of Planning
Department Public Input& Information Meeting for the Ainaloa Golf
Course, September 1, 1992
APPENDIX"2" Findings of Fact, Conclusions of Law, Decision and Order dated
November 15, 2004
APPENDIX"3" Hawaii County Code Sections 25-2-44 and 25-2-65
i
TABLE OF AUTHORITIES
Cases
Camara v. Agsalud
67 Haw. 212, 685 P.2d 794 (1984). .................................................................................... 7
City ofMonterey v. Del Monte Dunes at Monterey Ltd.
526 U.S. 687, 119 S.Ct. 1624 (1999)................................................................................ 26
Commonwealth Edison Company v. United States
271 F.3d 1327, 1339-1340 (Fed. Cir. 2001)..................................................................... 26
Dolan v. City of Tigard
512 U.S. 374, 114 S.Ct. 2309 (1994).......................................................... 6, 16, 25, 26, 27
Dole Hawai`i Division-Castle & Cooke, Inc. v. Ramil
71 Haw. 419, 794 P.2d 1115 (1990)................................................................................... 7
Eastern Enterprises v. Apfel
524 U.S. 498, 118 S.Ct. 2131, 141 L.Ed.2d 451 (1998)................................................... 26
Ford v. Rigidply Rafters, Inc.
984 F.Supp. 386, 3 91-3 92 (D. Md. 1997)......................................................................... 24
Gay v. Zoning Board of Appeals of the Town of Westport
59 Conn.App. 380, 757 A.2d 61 (2000). .................................................................... 15, 16
Hardin v. Akiba
84 Hawaii 305, 933 P.2d 1339 (1997)............................................................................... 7
Hawkins v. State
183 Ariz. 100, 900 P.2d 1236 (Ariz. Ct.App. 1995)................................................... 11, 12
Igawa v. Koa House Restaurant
97 Hawaii 402, 3 8 P.3 d 570 (200 1)............................................................................. 7, 24
Spectrum of Connecticut, Inc., v. Planning and Zoning
Commission of the Town of Ellington
13 Conn.App. 159, 535 A.2d 382 (1988) ..................................................................... 9, 10
Ka Pa'akai O Ka�aina v. Land Use Commission
94 Hawaii 31, 7 P.3d 1068 (2000)................................................................................... 14
Kim v. Contractors License Board
88 Hawaii 264, 965 P.2d 806 (1998)............................................................................. 7, 8
ii
Morgan v. Planning Department, County of Kauai
104 Hawaii 173, 86 P.3d 982 (2004)......................................................................... 13, 14
Nakamura v. State of Hawai`i
98 Hawaii 263, 47 P.3d 730 (2002);................................................................................ 15
Pele Defense Fund v. Puna Geothermal Venture
77 Hawaii 64, 881 P.2d 1210 (1994)................................................................... 15, 16, 17
People v. Toms
191 Misc.2d 585, 743 N.Y.S.2d 690 (2002)..................................................................... 24
Price v. Zoning Board of Appeals of City and County of Honolulu
77 Hawaii 168, 883 P.2d 629 (1994)................................................................................. 7
Proskin v. Donovan
150 A.D.2d 937, 541 N.Y.S.2d 628 (1989)...................................................................... 10
Public Access Shoreline Hawaii v. Hawaii County Planning Commission
79 Hawaii 425, 903 P.2d 1246 (1995) ("PASH")............................................................ 25
Santos v. State
64 Haw. 648, 646 P.2d 962 (1982). ............................................................................ 11, 12
Sierra Club v. Hawai`i Tourism Authority
100 Hawaii 242, 59 P.3d 877 (2002)............................................................................... 14
Southern Foods Group, LLP v. State of Hawaii, Dept. of Educ.
89 Hawaii, 443, 974 P.2d 1033 (1999)............................................................................ 24
State v. Higa
79 Hawaii 1, 897 P.2d 928 (1995); recon. den................................................................ 11
U. S. Aluminum Corporation of Pennsylvania v. Borough ofMarietta
123 Pa.Cmwlth. 376, 553 A.2d 1046 (1989).................................................................. 8, 9
United States v. Sperry Corp.
493 U.S. 52, 110 S.Ct. 387, 107 L.Ed.2d 290 (1989)....................................................... 26
United States v. Utah Constr. &Mining Co.
384 U.S. 394, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966)................................................. 11, 12
iii
Statutes
Hawaii Revised Statutes
Chapter91......................................................................................................................... 14
Section91-10(4).......................................................................................................... 23, 24
Section91-10(5)................................................................................................................ 1S
Section91-14 ...................................................................................................................... 6
Section91-14(a)................................................................................................................ 14
Section91-14(b).......................................................................................................... 13, 15
Section91-14(g).................................................................................................................. 7
Other Authorities
Hawai` County Code
Section25-2-44(a) ............................................................................................................ 27
Section25-2-65................................................................................................................. 19
Section25-2-65(2)............................................................................................................ 19
Section25-2-65(3)............................................................................................................ 19
iv
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAI'I
AINALOA DEVELOPMENT CIVIL NO. 04-1-0421
CORPORATION, (Agency Appeal)
Appellant, APPELLEE COUNTY OF HAWAI'I PLANNING
COMMISSION'S ANSWERING BRIEF;
vs. APPENDICES "1" —"3"; CERTIFICATE OF
SERVICE
COUNTY OF HAWAI'I PLANNING
COMMISSION; CHRISTOPHER YUEN,
Planning Director, County of Hawai'i, and
OLE FULKS,
Appellees.
APPELLEE COUNTY OF HAWAI'I PLANNING COMMISSION'S
ANSWERING BRIEF
Comes now Appellee COUNTY OF HAWAII PLANNING COMMISSION
(hereinafter, "the Planning Commission"), through its undersigned counsel, and for an
Answering Brief states as follows:
L STATEMENT OF THE CASE
The Planning Commission would supplement Appellant Ainaloa Development
Corporation's ("ADC") Statement of the Case by adding the following:
ADC is currently asking for relief from Condition No. 7 for three reasons: First, ADC
claims it is unable, financially, to comply. Second, the ADC claims that the condition of Ainaloa
Boulevard is safer today. Third, that Condition No. 7 is not reasonable in terms of fair share.
Contested Case Transcript("CCTr"), Testimony of Sidney Fuke, Record on Appeal, Folder E,
("ROA-E"), pp. 133-134.
As ADC admits, it agreed to Condition No. 7 as part of a community benefits package
that would be made conditions of Use Permit No. 106. Opening Brief, p. 3., Findings of Fact,
Conclusions of Law, Decision and Order dated November 15, 2004 ("FOF/COL"), FOF No. 17
quotes the current Planning Department recommendations:
. . . In supporting this project, the community had relied in large part to (sic)the
representations made by the applicant in 1992. . . . The community had supported the
project based upon representations made by the applicant at the time the permits were
approved, and not to provide the required benefits to the community would negate the
good faith efforts of both the applicant and the community. The community had relied
on the applicant to provide benefits. The agreements or understandings were included as
conditions in the permits to offset the impact of the proposed project on the surrounding
community.
The record plainly reflects such prior representations and reliance. ADC's own
representative, planning consultant and former Planning Director, Sidney Fuke ("Mr. Fuke"),
verified ADC's representations of community benefits:
But in either case like back in the 1990's, the late— early 1990's,
there were representations made into the—to the Ainaloa community and
association and larger because, unlike the situation today, the only legal
access to the subject property is through Ainaloa Boulevard. And as a result,
the discussions and everything else relating to community or community
related type of benefits, focused primarily with the Ainaloa Community
Association and not with the Hawaiian Acres subdivision. There were
representations made then and some of which the applicant is willing to
honor at this point in time, but as I indicated early, he's not—the developer's
not in a position to share—you know, share what he doesn't have.
CCTr, ROA-E at 124-125. Mr. Fuke further admitted that ADC had committed, to the County
and the community, to reconstruct Ainaloa Boulevard. In explaining what ADC now wants, he
testified:
Couple things. One is like extending the time within which to submit
and secure final plan approval, basically like a five-year period, retroactive to
December, 2003.
2
And in addition to that, in light of the applicant's then ability to share
what, what he perceived as being what he doesn't have, some measure of reduction
to the—what was previously committed into the County —to the community which
was codified as conditions of approval with the—in conjunction with the use permit
and the special permit.
And specifically, this relates to—in lieu of constructing the Ainaloa Boulevard
to County dedicable standard,you know, to contribute a million dollars of,you know,
to the County or whoever owns the road,you know, to improve Ainaloa Boulevard
along that line.
CCTr, ROA-E at 129-130. The Boulevard improvements were also promised in writing. See,
ROA-A, pp. 161, 204-205, 212-213 (See Appendix"1"). County Planner Norman Hayashi
testified that"because the community relied on the representations" they were made conditions
of the permit. CCTr, p. 181, ROA-E at 181. The 1992 Use Permit No. 106 expressly found that
these commitments were part of the basis for the granting of the permit, incorporating them into
conditions:
All essential utilities and services required for the development of a golf
course and related facilities are or will be made available. Conditions of approval
relative to the provision of such services are being proposed. These include off-site
roadway improvements and other community benefit assessments meeting with the
approval with the Department of Planning and affected agencies. In the area of roads, . . .
Ainaloa Boulevard shall be upgraded to County-dedicable standards from the Keaau-
Pahoa road intersection to the proposed entrance of the project. Also required shall be
installation of stop signs and street lights at road intersections that front Ainaloa
Boulevard with an existing power pole. All roadway improvements shall be installed
prior to occupancy.
Use Permit No. 106, Nov. 9, 1992, p. 4 (ADC Opening Brief, Appendix 2-4).
ADC representative, Mr. Fuke, testified that the same 1992 rules and findings still apply:
And the last criteria for considering time extension was whether the reasons,
you know, the relationship to the use permit and the special permit. And they have,
to my knowledge; there has been no changes or amendments to the criteria for issuing
a use permit or special permit. And so I think that the Commission's findings back in
1992 also apply to today.
CCTr, ROA-E at 131-132.
3
The subject Use Permit No. 106 was dated November 9, 1992. ADC could have, but did
not appeal Condition No. 7 within 30 days of November 9, 1992. Use Permit No. 106 actually
was appealed by other parties, all the way through affirmance by the Hawaii Supreme Court.
FOF/COL, FOF No. 7 (uncontested on appeal), Record on Appeal, Folder A, ("ROA-A"), pp.
280-289 (See Appendix"2"). Hence, ADC actually defended Use Permit No. 106, with
Condition No. 7, through all levels of appeals.
Further, ADC failed to appeal the continued imposition of Condition No. 7 in its two
prior extensions of Use Permit No. 106. ADC admits that it"never developed any portion of its
golf course, primarily due to the collapse in the Japanese economy soon after the permit was
issued in the early 1990s. ADC admits that"Time extensions for the development of the project
were granted by the County Planning Director in 1994 and by the Commission in 1998 because
of worldwide economic situation, as well as appeals by a neighboring property owner." Opening
Brief, p. 5; CCTr, ROA-E at 126-129.
Hence, ADC took two previous extensions over 12.5 years due to global economic
problems, without seeking relief from Condition No. 7 from the County or on appeal.
Boulevard safety is still a big issue. The Ainaloa Community Association ("Association")
surveyed its membership regarding the proposed $1,000,000 Boulevard improvement donation,
showing continued relevance of this issue. Unfortunately, the survey failed to explain that the
donation was proposed to be in lieu of the greater road benefits of the existing Condition No. 7
which ADC had not protested for 12.5 years. FOF/COL, FOF No. 18; CCTr, Testimony of Ed
Smythe, ROA-E at 176. The Association's support for the reduction is also motivated by the
assumption that the County "is making a move on accepting the roadway" and may be relieving
the Association from primary responsibility. CCTr, ROA-E at 116. Nevertheless, the
4
Association supports the $1 million road donation, because it will "go towards the safety of it,
which is what we wanted." CCTr, ROA-E at 117.
The Planning Commission further found that the Hawaii County Council has resolved to
complete the Puna Emergency Access Road ("PEAR")which includes Ainaloa Boulevard.
Council member Gary Safarik testified to that, and that$2,000,000 already spent has provided
only a"minimal amount of work, basically resurfacing the roadway that's already substandard
and, and dangerous in some areas." CCTr, pp. 18-24, ROA-E at 105. Mr. Safarik has stated that
PEAR, including Ainaloa Boulevard, "has become a critical escape route and alternate route for
the people in the Puna region." CCTr., p. 19/100, ROA-E at 100. Whether Ainaloa Boulevard is
a private or County road, road improvements are still a major safety concern and expense.
ADC relied on Director of Public Works Bruce McClure's letter dated July 26, 2004 to
say that with signs, striping and pavement markers, the road can now be made "reasonably safe."
However, that letter addresses the Hawaiian Acres section of PEAR, not Ainaloa Boulevard.
ROA-E at 63-64.
Planning Department Exhibit 9 summarizes ADC's 1992 estimates of the costs of
"upgrade Ainaloa Boulevard" as $6.1 million. ROA-A at p. 171. The loss of over $5 million
(1992 dollars) in needed road improvements is obviously a serious setback to the community.
FOF/COL, FOF No. 25, Opening Brief Appendix 1-9.
Hearings Officer Colin Love observed during the contested case hearing to ADC
representative, Mr. Fuke, "you said that the owner cannot afford the amenities that he—that were
offered in the 1992. If that is to be a finding of fact I am to make, I have no evidence. You're
not—you're not Ainaloa Development Corporation. . . . I don't think that your-you can testify
as their financial adviser." CCTr, ROA-E at 155. ADC Attorney Sandra Song explained that
Mr. Fuke's testimony could be based on hearsay discussions with Ainaloa representatives.
5
CCTr, ROA-E at 156. Mr. Love acknowledged that he could accept that, but it would go the
weight of the testimony. CCTr, ROA-E at 157.
IL STATEMENT OF QUESTIONS PRESENTED FOR DECISION
1. Does a developer waive rights to challenge a condition of a use permit, when said
condition was accepted and defended by a developer, and not timely appealed?
2. Does a Contested Case Decision, not appealed, operate as res judicata to bar a
later attempt to contest and change a condition of said decision?
3. Does the invocation of an agency's inherent authority to amend permit conditions
revive the right to appeal imposition of the condition when betterments to the
condition are denied?
4. Does a landowner who seeks reduction in permit condition obligations have
standing as an aggrieved party under Hawaii Revised Statutes ("HRS") Section
91-14 when the status quo ante is maintained?
5. Did the Planning Commission violate law or abuse its discretion under the facts of
this case?
6. Does the "rough proportionality" Takings Clause test of Dolan v. City of Tigard,
512 U.S. 374, 114 S.Ct. 2309 (1994) apply to non-dedicatory conditions of a
discretionary permit?
III. STANDARD OF REVIEW
Upon review of the record the court may affirm the decision of the agency or remand the
case with instructions for further proceedings; or it may 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:
6
(1) In violation of constitutional or statutory provisions; or
(2) In excess of the statutory authority or jurisdiction of the agency; or
(3) Made upon unlawful procedure; or
(4) Affected by other error of law; or
(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the
whole record; or
(6) Arbitrary, or capricious, or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.
HRS Section 91-14(g)(1993). Conclusions of Law ("COL") 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. Hardin v. Akiba,
84 Hawaii 305, 310, 933 P.2d 1339, 1344 (1997); HRS Sections 91-14(g)(1), (2) and (4).
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
case. Price v. Zoning Board ofAppeals of City and County of Honolulu, 77 Hawaii 168, 172,
883 P.2d 629, 633 (1994). 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. Dole
Hawai`i Division-Castle & Cooke, Inc. v. Ramil, 71 Haw. 419, 424, 794 P.2d 1115, 1118 (1990).
"The court should not substitute its own judgment for that of the agency." Id., citing Camara v.
Agsalud, 67 Haw. 212, 216, 685 P.2d 794, 797 (1984). Igawa v. Koa House Restaurant, 97
Hawaii 402, 405-6, 38 P.3d 570, 573-4 (2001).
Findings of fact will not be disturbed unless clearly erroneous. A finding of fact is
clearly erroneous when, despite evidence to support the finding, the appellate court is left with
the definite and firm conviction that a mistake has been committed. Kim v. Contractors License
Board, 88 Hawaii 264, 269, 965 P.2d 806, 811 (1998).
7
"An agency's decision carries a presumption of validity and the appellant has the heavy
burden of making a convincing showing that the decision is invalid because it is unjust and
unreasonable in its consequences." Kim v. Contractors License Board, 88 Hawaii 264, 268,
965 P.2d 806, 810 (1998).
IV. ARGUMENT
A. THE APPEAL IS BARRED BY WAIVER AND RES JUDICATA
1. Summary of An-ument
The goal of ADC's appeal is to reduce the cost of the road improvement
Condition No. 7, of Use Permit No. 106, which it applied for and received from the County
Planning Commission. That Use Permit was dated November 9, 1992. ADC agreed to
Condition No. 7 at that time. ADC could have, but did not appeal Condition No. 7 within 30
days of November 9, 1992. Use Permit No. 106 actually was appealed by other parties, all the
way through affirmance by the Hawaii Supreme Court. Further, ADC failed to appeal the
continued imposition of Condition No. 7 in its two prior extensions of Use Permit No. 106.
Therefore, ADC is barred by waiver and res judicata from contesting the imposition of Condition
No. 7. The Planning Commission's discretionary extension of time for completion of conditions,
and removal of a different, unrelated condition, does not revive any right to appeal the
imposition of Condition No. 7, over 12 years after it was imposed.
2. ADC Waived Its Rights to Appeal Imposition of Condition No. 7
It is well established that failure to timely appeal imposition of a condition of use, waives
the user's right to later contest that condition.
In U. S. Aluminum Corporation of Pennsylvania v. Borough of Marietta, 123 Pa.Cmwlth.
376, 553 A.2d 1046 (1989), U.S. Aluminum operated a shredder under a setback exception,
conditioned on limited hours of operation. U.S. Aluminum twice sought to have the hours of
8
operation increased, but was turned down, and did not appeal. U.S Aluminum was cited for
violation of the time limits, and appealed a cease and desist order. It sought a modification of
variance from the condition, and challenged its validity. The court concluded:
The time to challenge those conditions was at the time they were imposed because our
cases are clear that a timely appeal is the exclusive method of challenging a zoning
board's decision . . . Having failed to appeal when the Board originally attached
conditions to its grant of the special exception, Appellants have waived their right to seek
review of those conditions. . . . Similarly, that waiver further extends to Appellant's right
to raise its constitutional challenge at this stage of the litigation.
U. S. Aluminum Corporation of Pennsylvania v. Borough of Marietta, 123 Pa.Cmwlth. at 382-3,
553 A.2d at 1049-50.
In Spectrum of Connecticut, Inc., v. Planning and Zoning Commission of the Town of
Ellington, 13 Conn.App. 159, 535 A.2d 382 (1988), Spectrum operated an arcade under a Special
Permit, with a condition requiring control of loitering. Spectrum did not challenge the validity of
the condition. When Spectrum sought renewal of the permit, it was denied, and tried to appeal
both the denial and the imposition of the condition. The Court held that Spectrum had waived its
rights to contest the condition, stating:
. . . a party may not challenge on appeal the validity of a preexisting condition to a
permit which it seeks to renew. Having failed to challenge it when it was imposed,
Spectrum was in no position to contest the validity of the condition when the commission
evaluated Spectrum's renewal application . . .
Spectrum of Connecticut, Inc., v. Planning and Zoning Commission of the Town of Ellington,
13 Conn.App. at 162, 535 A.2d at 384. Spectrum further argued that the condition was void, but
the Court found that Spectrum had acquiesced in the validity of the condition: "Here, Spectrum
accepted the condition imposed upon its special permit and acquiesced in the validity of that
condition by its application for renewal. . . . if we held otherwise, and allowed an applicant to
challenge the validity of a special permit condition which was not questioned until after the
9
applicant's noncompliance, a special permit applicant would have it both ways, making the
system of land use regulation . . . impractical and unworkable." Spectrum of Connecticut,
Inc., v. Planning and Zoning Commission of the Town of Ellington, 13 Conn.App. at 163,
535 A.2d at 384.
See also, Proskin v. Donovan, 150 A.D.2d 937, 938, 541 N.Y.S.2d 628, 629 (1989)
(Extension of use variance, eliminating time limits but reconfirming conditions, holding "to the
extent that petitioners' objections relate to the facial validity of condition 13(c), they are
foreclosed by their failure to timely challenge it when the Board reconfirmed that condition in
ruling on their 1984 application.")
The instant case provides a good example of how waiver should enforce equitable repose.
When a developer has accepted a condition, and twice previously gotten extensions, reaffirming
a condition, it cannot in good faith contest the matter over a decade down the road. If the
condition may be challenged after such a history, what is to prevent further reopeners? What is
to prevent ADC from later challenging the $1 million they now offer?
Here, ADC accepted and acquiesced in, and even legally defended its Use Permit,
including Condition No. 7, for 12.5 years. The County granted the permit, and the community
supported it, in reliance on ADC's promises and agreements, including Condition No. 7, which
was prominent. ADC sought and got two (2)prior time extensions, accepting Condition No. 7
each time.
If ADC intended to challenge the validity of Condition No. 7, it should have done so at
the time it was first imposed. Based on the foregoing authority, ADC has waived its right to
contest the validity of Condition No. 7 at this time. The Appeal should be denied.
10
3. Res Judicata Applies to Administrative Adjudications
"The doctrines of res judicata and collateral estoppel also apply to matters litigated before
an administrative agency." State v. Higa, 79 Hawaii 1, 8, 897 P.2d 928, 935 (1995); recon.
den., 79 Hawaii 1, 897 P.2d 928 (1995); Santos v. State, 64 Haw. 648, 653, 646 P.2d 962, 966
(1982).
In Santos, a union member sued for the same claims which he had previously brought
before the Hawaii Public Employment Relations Board ("HPERB"). HPERB found in Santos'
favor, but the Circuit Court reversed. Santos failed to further appeal. Thus, Santos was barred
from relitigating those same issues. Santos v. State, 64 Haw. at 656, 646 P.2d at 967.
"Where a party does not appeal a final administrative decision that decision becomes
final and res judicata." Hawkins v. State, 183 Ariz. 100, 900 P.2d 1236, 1240 (Ariz. Ct.App.
1995); see also United States v. Utah Constr. &Mining Co., 384 U.S. 394, 422, 86 S.Ct. 1545,
16 L.Ed.2d 642 (1966) ("When an administrative agency is acting in a judicial capacity and
resolved disputed issues of fact properly before it which the parties have had an adequate
opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose."
"The doctrine of res judicata applies when three conditions are present: (1) the issue in
the prior adjudication is identical to the present one; (2)there was a final judgment on the merits;
and (3)the party against whom the doctrine is asserted was a party, or was in privity with a
party, in the prior adjudication." State v. Higa, 79 Hawaii 1, 8, 897 P.2d at 935.
Here, it is the indisputable foundation of this case that ADC applied for and obtained Use
Permit No. 106, with its Condition No. 7, via contested case proceedings in 1992. It is
undisputed that Condition No. 7 was part of the Use Permit, and that ADC had full opportunity
to litigate the factual and legal merits of that Condition before the Planning Commission.
11
It is further undisputed that Use Permit No. 106 was challenged by other parties before
the Hawaii County Board of Appeals. The Use Permit was upheld by the Board, and the appeal
proceeded through the Third Circuit Court and the Hawaii Supreme Court. Ultimately, Use
Permit No. 106 was upheld. ADC successfully defended Use Permit No. 106, along with
Condition No. 7, through this grueling appeal process.
Moreover, the County granted ADC an administrative extension of the permit in 1994,
and another extension through the Commission in 1998, including Condition No. 7. ADC never
challenged Condition No. 7, since November 1992, instead defending and reaffirming it. Until
now.
Because ADC never appealed the imposition of Condition No. 7, the Planning
Commission's administrative decision to impose the condition "becomes final and res judicata."
Hawkins v. State, 183 Ariz. 100, 900 P.2d 1236, 1240 (Ariz. Ct.App. 1995); United States v.
Utah Constr. &Mining Co., 384 U.S. 394, 422, 86 S.Ct. 1545, 16 L.Ed. 2d 642 (1966);
Santos v. State, 64 Haw. 648, 653, 646 P.2d 962, 966 (1982). Res Judicata `is a bar to a new
action in another court between the same parties or their privies concerning the same subject
matter. It precludes the relitigation, not only of the issues that were actually litigated in the first
action, but also all grounds of claim or defense which might have been litigated in the first action
but were not litigated or decided." Santos v. State, 64 Haw. 648, 652, 646 P.2d 962, 965 (1982).
Hence, ADC is now barred by res judicata, from challenging the Planning Commission's
imposition of Condition No. 7 in Use Permit No 106. This appeal should be denied and
dismissed.
12
4. ADC's Request for Amendment of Conditions Cannot Revive Barred
Claims
ADC tries to avoid res judicata by claiming that their request for amendment of
Condition No. 7 essentially reopens all issues on the imposition of the condition. ADC argues
that the Planning Commission has jurisdiction to consider amendment of conditions, and that
once ADC invoked that jurisdiction, the 12.5-year old Condition No. 7 became vulnerable to
challenge,just as if it were newly created.
ADC's argument goes too far for its own good. Certainly, the Planning Commission has
inherent authority to amend conditions when justified, in its discretion. Morgan v. Planning
Department, County ofKauai, 104 Hawaii 173, 86 P.3d 982 (2004). However, if it were true
that ADC's invocation of the Planning Commission's amendment jurisdiction re-exposes
imposition of permit conditions to new appeals, then there would never be repose for the
Planning Commission's decisions. ADC would be able, at any time during the life of the permit,
to simply ask for an amendment of a condition, and gain a new appeal period for the imposition
of the condition. ADC would be able to do this at any time, any number of times.
That would be violently contrary to the intent of HRS Section 91-14(b), which provides
for a very short, thirty (30) day appeal period for contested case appeals. Plainly, the statute is
designed to provide a small appeal window, to quickly establish repose for administrative
decisions.
If the Planning Commission had taken some adverse action, increasing ADC's costs or
burdens by way of amendment, then such new action might be open to one timely appeal. For
example, had the Planning Commission increased the burden of Condition No. 7 by requiring
paving of more roadway, this increase, as a new burden, might be appealable. However, when
the Planning Commission has not taken any new action on a Condition, there is nothing new to
appeal.
13
Put another way, to illustrate the illogic of ADC's position, ADC really does not even
have standing to appeal Condition No. 7, as ADC cannot be an"aggrieved party" under
HRS Section 91-14(a) ("Any person aggrieved by a final decision and order in a contested case .
. . is entitled to judicial review thereof under this chapter . . ." ). "A plaintiff without standing is
not entitled to invoke a court's jurisdiction." Sierra Club v. Hawaii Tourism Authority,
100 Hawaii 242, 250, 59 P.3d 877, 885 (2002). The first test of standing is: Has the plaintiff
(or appellant) suffered an actual or threatened injury as a result of the defendants' conduct?"
Sierra Club, 100 Hawaii at 250, 59 P.3d at 885. See also,Ka Pa'akai O Ka'aina v. Land Use
Commission, 94 Hawaii 31, 42, 7 P.3d 1068, 1079 (2000). HRS Chapter 91 aggrieved parties
must show"injury in fact" including (1) an actual or threatened injury, which(2)is traceable to
the challenged action, and (3)is likely to be remedied by favorable judicial action.)
Here, ADC has asked for a betterment of their position under Condition No. 7, a
reduction in their monetary burden. The Commission's denial of that betterment request has
not harmed any legal interest of ADC. ADC is simply left in the status quo ante for Condition
No. 7, and suffers no adverse action. Thus, ADC is not an aggrieved party, and would lack
standing to reopen the imposition of Condition No. 7.
The lack of adverse action is further illuminated by the context of the request, which is to
seek extensions of time for performance of existing conditions, and thus the life of the permit.
At this juncture, the granting of the permit and imposition of conditions 12.5 years ago is not at
issue. ADC came, hat in hand, to seek the Planning Commission's grace in extending the life of
the permit. Under these circumstances, ADC is in no position to demand betterments. (Actually,
the implied power to modify conditions under Morgan v. Planning Department, County of
Kauai, 104 Hawaii, 173, 184-5, 86 P.3d 982, 993-994 (2004), is just that, implied. Hence, there
is no statutory requirement that the Planning Commission even hold a contested case hearing on
14
the matter. In particular, the refusal of a betterment of long existing conditions, in the course of
extending a permit, may be purely discretionary. And a purely discretionary hearing cannot, by
definition, be a contested case, since it is not required by law. Pele Defense Fund v. Puna
Geothermal Venture, 77 Hawaii 64, 68, 881 P.2d 1210, 1214 (1994)).
Since the Planning Commission here has not changed Condition No. 7, imposition of that
Condition cannot be attacked by a new appeal at this juncture, 12.5 years after its appeal period
has run. Any other holding would expose permit conditions to constant challenge and appeal, for
the life of the permit. That would also chill administrative review and amendment of conditions
where warranted. Such would be contrary to the policies underlying administrative jurisdiction,
which provide for very short appeal periods (HRS Section 91-14(b)), and limited review of
administrative decisions made by expert boards with specialized knowledge. Nakamura v. State
ofHawai`i, 98 Hawaii 263, 268, 47 P.3d 730, 735 (2002); Kona Old Hawaiian Trails
Group v. Lyman, 69 Haw. 81, 94, 734 P.2d 161, 169 (1987).
ADC provides no authority on point for its claims to create new appeal periods by merely
asking for removal of an existing condition, which it actually defended and failed to timely
appeal for over a decade. Res judicata bars ADC's attempt to relitigate imposition of Condition
No. 7, and the appeal should be denied and dismissed.
5. ADC's Constitutional Claims Are Waived and Barred By Res Judicata
ADC further seeks to dodge res judicata by claiming that the imposition of Condition
No. 7 in 1992 was unconstitutional and void ab initio. ADC relies on Gay v. Zoning Board of
Appeals of the Town of Westport, 59 Conn.App. 380, 388, 757 A.2d 61, 65 (2000). This lone
decision is inapposite.
First, Gay is factually and legally distinguishable. In Gay, the condition in question
required restrictions (no building)to be placed on a completely different, unrelated lot from the
15
one for which the variance was granted. The court thus concluded that"the action of the board
in imposing a condition on a parcel unconnected to the property for which the variances were
sought was ultra vires and the condition void ab initio." Gay v. Zoning Board ofAppeals of the
Town of Westport, 59 Conn.App. 380, 387-388; 757 A.2d 61, 65-66 (2000). In other words, the
Gay board had no authority at all to even apply such a condition.
Here, ADC does not dispute the Planning Commission's authority to impose conditions
related to the increased traffic impacts arising from the proposed golf course:
. . . Ainaloa is not contending that it should be relieved of any obligation to
contribute to off-site roadway impacts resulting from the development of its
golf course. On the contrary, it proposed a $1,000,000 cash contribution as
an alternative to the existing condition and is willing to contribute a proportional
share to the impact of the proposed development.
ADC's Opening Brief, p. 16. Hence, ADC is not really contesting the Planning
Commission's basic authority to impose such conditions. ADC is actually only contesting the
amount of the condition imposed. Thus, the imposition of the condition is not ultra vires or void
ab initio. Only the degree of the condition is being questioned, and this could and should have
been litigated 12 years ago. Gay is inapposite.
ADC claims that Condition No. 7 is not sufficiently proportional to the impact of the
project, and is unconstitutional underpolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309,
129 L.Ed.2d 304 (1994). Again, this is just another way of contesting the amount or degree of
the condition, not the basic authority of the Commission to impose such a condition. (Dolan is
actually inapposite here, see Argument Section"C" below).
Moreover, constitutional claims can be waived, and barred by res judicata. Pele Defense
Fund v. Paty, 73 Haw. 578, 600-601, 837 P.2d 1247, 1261 (1992) (Fourteenth amendment
claims barred). Claims that a permit condition is null and void can be barred by res judicata.
16
Pele Defense Fund v. Puna Geothermal Venture, 9 Haw.App. 143, 147, 827 P.2d 1149, 1152
(1992). In Pele Defense, claims that a geothermal permit condition were "null and void" were
held barred by res judicata when previously litigated.
Likewise, in the instant case, ADC's 12.5-year old claim that the amount of Condition
No. 7 is void ab initio are barred by res judicata. Res Judicata applies to constitutional claims.
The appeal should be dismissed and denied.
B. APPELLANT ADC FAILED TO CARRY ITS BURDEN OF PROOF; THE
COMMISSION'S FINDINGS ARE NOT CLEARLY ERRONEOUS
ADC states the substantive issue on appeal as follows: "There was no evidence
on the record, as a whole, to support the Commission's decision to retain the condition in Use
Permit No. 106 requiring the $6,000,000 improvement of Ainaloa Boulevard." Opening Brief,
pp. 17-18. This misapprehends the nature of the evidence, and the burdens of proof before the
Commission.
First, as stated in the foregoing, the nature of the Planning Commission's review was not
whether to"retain the condition" on road improvements, but whether, in the Planning
Commission's inherent discretion, the condition might be removed, or reduced in cost, if the
permit's life were extended. Condition No. 7 had existed without objection for 12.5 years, and
was not expiring, unless the entire Permit did. ADC was asking for an extension of time to
perform conditions, while also asking for betterments in its position. There is no statute or rule
requiring a contested case hearing for this requested betterment. In fact, the Planning
Commission had no obligation to further extend the life of the permit, let alone give up road
improvements if the permit were extended.
Even assuming that some contested case right applies, "Except as otherwise provided by
law, the party initiating the proceeding shall have the burden of proof, including the burden of
17
producing evidence as well as the burden of persuasion. The degree or quantum of proof shall be
a preponderance of the evidence." HRS Section 91-10(5) (2003). Indisputably, ADC initiated
the request for amendment of conditions and extension of Use Permit No. 106. Hence, it was
ADC which had the burdens of producing evidence and persuasion.
Here, ADC had the burden of proving that after 12.5 years of living with, and even
legally defending the permit and conditions, it was suddenly entitled to relief from most of its
road mitigation duties. ADC had sought and received two prior permit extensions in 1994 and
1998, without questioning Condition No. 7. The Hearings Officer, Colin Love, noted the lack of
direct evidence of financial inability, noting that the hearsay nature of Mr. Fuke's testimony
would affect its weight. ADC fails to point out any new substantial evidence which would
support its extraordinary claim. (It should not be allowed to attempt to do so in its Reply Brief,
to which the Appellees will have no opportunity to respond).
Instead, ADC makes a limited attack on whether its 1992 "representations" of road
improvements and"community support" were or could be the basis for Use Permit No. 106, or
the continuation of Condition No. 7. Opening Brief, p. 17. In substance, this attempts to attack
the validity of the permit.
In response, it is essential to keep in mind again that the 1992 granting of Use Permit
No. 106 and the imposition of Condition No. 7 are not currently at issue. The Permit's
performance deadlines have run out, and ADC is seeking its third time extension, and reduction
of its condition burdens. Hence, the basis for the original conditions is not currently at issue. It
remains, however, ADC's burden to prove that something has changed to now justify the
reduction of its duties. It has not carried that burden.
However, the Planning Commission's findings that nothing has changed to justify
amendment of Condition No. 7 are supported by substantial evidence. ADC claims that its
18
commitments to road improvements, and community support, were not the basis for the
imposition of Condition No. 7, and cannot support continuation of the condition now. ADC is
correct in stating that the Planning Commission properly "did, in fact apply the criteria" of the
zoning code, Hawaii County Code ("HCC") Section 25-2-65 (See Appendix"Y'), in issuing
Use Permit No. 106 in 1992. Opening Brief, p. 17.
ADC errs, however, in arguing that their representations of commitments to road
improvements, and the reliance on these representations by the community are irrelevant. They
are clearly relevant, since HCC Section 25-2-65(3)requires the commission to consider, in
reviewing a Use Permit application, whether the proposed use "shall not unreasonably burden
public agencies to provide roads and streets . . . and other related infrastructure." HCC Section
25-2-65(2)requires consideration of whether the proposed use"shall not be materially
detrimental to the public welfare nor cause substantial, adverse impact to . . . surrounding
properties."
The burden of Ainaloa Boulevard improvement and maintenance may fall on a private
road association, as it did in 1992, or upon the County, if condemnation or dedication occurs.
Likewise, the burden of liability for injury or death on the Boulevard will be borne by whichever
public or private entity is responsible. Hence, a developers' road impact obligations, as
promised and incorporated into permit conditions, is facially relevant to any request for
extension of a permit's life.
FOF/COL, FOF Nos. 14 and 17, attacked by ADC, plainly state such relevance.
FOF/COL, FOF No. 14 states in part: "At the time both permits were initially approved in
1992, the permits were granted based upon representations made by the Applicant and the
understandings of the community that a number of much-needed improvements would be made
19
by the Applicant. These agreements or understandings were included as conditions in the
permits."
FOF/COL, FOF No. 17 quotes the current Planning Department recommendations
regarding Condition No. 9 (provision of asphalt paver and water tanker), not No. 7 (Ainaloa
Boulevard Improvement). Nevertheless, the quoted rationale holds true:
. . . In supporting this project, the community had relied in large part to(sic)
the representations made by the applicant in 1992. . . . The community had
supported the project based upon representations made by the applicant at
the time the permits were approved, and not to provide the required benefits
to the community would negate the good faith efforts of both the applicant
and the community. The community had relied on the applicant to provide
benefits. The agreements or understandings were included as conditions
in the permits to offset the impact of the proposed project on the surrounding
community.
The record plainly reflects such prior representations and reliance. ADC's own
representative, planning consultant and former Planning Director, Mr. Fuke, verified ADC's
representations of community benefits:
But in either case like back in the 1990's, the late— early 1990's, there were
representations made into the—to the Ainaloa community and association and
larger because, unlike the situation today, the only legal access to the subject
property is through Ainaloa Boulevard. And as a result, the discussions and
everything else relating to community or community related type of benefits,
focused primarily with the Ainaloa Community Association and not with the
Hawaiian Acres subdivision. There were representations made then and some
of which the applicant is willing to honor at this point in time, but as I indicated
early, he's not—the developer's not in a position to share—you know, share
what he doesn't have.
CCTr, ROA-E at 124-125. Mr. Fuke further admitted that ADC had committed, to the County
and the community, to reconstruct Ainaloa Boulevard. In explaining what ADC now wants, he
testified:
Couple things. One is like extending the time within which to submit and
secure final plan approval, basically like a five-year period, retroactive to
December, 2003.
20
And in addition to that, in light of the applicant's then ability to share
what, what he perceived as being what he doesn't have, some measure of
reduction to the—what was previously committed into the County—to the
community which was codified as conditions of approval with the—in
conjunction with the use permit and the special permit.
And specifically, this relates to—in lieu of constructing the Ainaloa
Boulevard to County dedicable standard,you know, to contribute a million dollars
of,you know, to the County or whoever owns the road,you know, to improve
Ainaloa Boulevard along that line.
CCTr, ROA-E at 129-130. County Planner Norman Hayashi testified that"because the
community relied upon the representations" they were made conditions of the permit. CCTr,
ROA-E at 181. The 1992 Use Permit No. 106 expressly found that these commitments were part
of the basis for the granting of the permit, incorporating them into conditions:
All essential utilities and services required for the development of a golf course
and related facilities are or will be made available. Conditions of approval
relative to the provision of such services are being proposed. These include off-
site roadway improvements and other community benefit assessments meeting
with the approval with the Department of Planning and affected agencies. In the
area of roads, . . . Ainaloa Boulevard shall be upgraded to County-dedicable
standards from the Keaau-Pahoa road intersection to the proposed entrance of the
project. Also required shall be installation of stop signs and street lights at road
intersections that front Ainaloa Boulevard with an existing power pole. All
roadway improvements shall be installed prior to occupancy.
Use Permit No. 106, Nov. 9, 1992, p. 4 (ADC Opening Brief, Appendix 2-4)
As explained above, ADC failed to appeal the imposition of Condition No. 7, which was
based on the representations of benefits made by ADC. ADC cannot now attempt to revive its
appeal rights, 12.5 years later. In fact, ADC representative Sidney Fuke testified that the same
1992 rules and findings still apply:
And the last criteria for considering time extension was whether the reasons,you
know, the relationship to the use permit and the special permit. And they have, to
my knowledge; there has been no changes or amendments to the criteria for
issuing a use permit or special permit. And so I think that the Commission's
findings back in 1992 also apply to today.
21
CCTr, ROA-E at 131-132. ADC cannot have it both ways, claiming a right to time extension
based on the 1992 findings and conditions, and yet trying to jettison their major commitments to
the County and Ainaloa community. The Planning Commission's findings that Condition No. 7,
and ADC's road commitments were an important part of the basis of granting Use Permit
No. 106 is clearly supported by substantial evidence and cannot be clearly erroneous.
ADC also argues that there was no evidence to say that the Ainaloa Boulevard paving
was "still required to satisfy community concerns." Opening Brief, p. 17. Again, (assuming a
right to appeal the issue)it is ADC's burden to prove the opposite, that Ainaloa Boulevard road
safety is no longer a community or County issue.
Yet there is ample evidence that Boulevard safety is still a big issue. The fact that the
Ainaloa Community Association surveyed its membership regarding the $1,000,000 Boulevard
improvement donation, is itself plain evidence of continued relevance of this issue.
Unfortunately, the survey failed to explain that the donation was proposed to be in lieu of the
greater road benefits of the existing Condition No. 7 which ADC had not protested for 12.5
years. FOF/COL, FOF No. 18; CCTr, Testimony of Ed Smythe, ROA-E at 176. The Ainaloa
Community Association's support for the reduction is also motivated by the assumption that the
County "is making a move for the road" and may be relieving the Association from primary
responsibility. CCTr, ROA-E at 116. Nevertheless, the Association supports the $1 million road
donation, because it will "go towards the safety of it, which is what we wanted." CCTr., ROA-E
at 117.
The Planning Commission further found that the Hawaii County Council has resolved to
complete the Puna Emergency Access Road ("PEAR")which includes Ainaloa Boulevard.
Council member Gary Safarik testified to that, and that$2,000,000 already spent has provided
22
only a"minimal amount of work, basically resurfacing the roadway that's already substandard
and, and dangerous in some areas." CCTr, ROA-E at 105. Mr. Safarik has stated that PEAR,
including Ainaola Boulevard, "has become a critical escape route and alternate route for the
people in the Puna region." CCTr, ROA-E at 100. Whether Ainaloa Boulevard is a private or
County road, road improvements are still a major safety concern and expense.
Planning Department Exhibit 9 summarizes ADC's 1992 estimates of the costs of
"upgrade Ainaloa Boulevard" as $6.1 million. The loss of over $5 million (1992 dollars)in
needed road improvements is obviously a serious setback to the community. FOF/COL,FOF
No. 25., Opening Brief Appendix 1-9. The Commission's findings regarding the continuing
need for Ainaloa Boulevard road improvements and payments such as those under Condition
No. 7 are not clearly erroneous.
ADC does not specifically discuss other allegedly erroneous fact findings. To summarily
respond to these:
1. ADC erroneously claims that FOF/COL, FOF No. 14 finds that the Use
Permit was granted in 1992 "solely upon agreements made by Ainaloa . . . rather than
upon the standards for granting a use permit." Opening Brief, p. 10, item No. 1.
FOF/COL, FOF No. 14 does not say that, but only addresses the relevance of the road
commitments made by ADC in context of the use permit standards.
2. Contrary to ADC's claims, FOF/COL, FOF No. 19 does not claim that the
County does not have funds to make PEAR safe; it only summarizes Councilman
Safarik's testimony regarding the need for costly road improvements for PEAR.
3. ADC claims no evidence of the effects of inflation on the value of the
proposed $1 million dollar donation, compared to the $6.1 million 1992 commitment.
However, agencies may take notice of judicially recognizable facts. HRS Section
23
91-10(4). Inflation is judicially recognizable. See,People v. Toms, 191 Misc.2d 585,
589, 743 N.Y.S.2d 690, 693 (2002) ("The court may properly take judicial notice of the
consumer price index and of government inflation statistics"); Ford v. Rigidply Rafters,
Inc., 984 F.Supp. 386, 391-392 (D. Md. 1997) (judicial notice of average inflation rate
from The World Almanac & Book of Facts).
4. Regarding FOF/COL, COL No. 4, as noted above, the Commission clearly
did consider ADC's arguments regarding ability to pay, as well as the state of the road
and the commitments and representations that ADC made regarding road improvements,
which became conditions of Use Permit No. 106. ADC also admits it"agreed to" the
conditions. Opening Brief, p. 3.
5. Other legal argument claims on p. 10 of the Opening Brief are responded
to in the previous argument.
"It is well established that courts decline to consider the weight of the evidence to
ascertain whether it weighs in favor of the administrative findings, or to review the agency's
findings of fact by passing upon the credibility of witnesses or conflicts in testimony, especially
the findings of an expert agency dealing with a specialized field." Igawa v. Koa House
Restaurant, 97 Hawaii 402, 409-410; 38 P.3d 570, 577-578 (2001).
"When mixed questions of fact and law are presented, an appellate court must give
deference to the agency's expertise and experience in the particular field. The Court should not
substitute its own judgment for that of the agency. . . . a presumption of validity is accorded to
decisions of administrative bodies acting within their sphere of expertise and one seeking to
upset the order bears the heavy burden of making a convincing showing that it is invalid because
it is unjust and unreasonable under the circumstances." Southern Foods Group, LLP v. State of
Hawai`i, Dept. ofEduc., 89 Hawaii, 443, 452-3, 974 P.2d 1033, 1042-3 (1999). Here, the
24
Commission's findings are supported by substantial evidence, and should not be disturbed on
appeal. ADC has not made a convincing showing that their being held to honor their 12.5 year
old commitments to the community, upon which its permit is based, is unjust and unreasonable.
This appeal should be denied.
C. THE"ROUGH PROPORTIONALITY" TEST DOES NOT APPLY TO
NON-DEDICATORY CONDITIONS
As established above, ADC's attacks on the imposition of Condition No. 7 are
barred by waiver and res judicata. This includes ADC's claim that the condition must be
"roughly proportional" to the impact of the proposed development, under Dolan v. City of
Tigard, 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed 2d 304 (1994), as supposedly adopted in Public
Access Shoreline Hawai`i v. Hawaii County Planning Commission, 79 Hawaii 425, 452, 903
P.2d 1246, 1273 (1995) ("PASH").
Actually,PASH didn't reach the takings issue, or the "rough proportionality" test." The
Court mentioned Dolan, but held that the takings issue was premature. Public Access Shoreline
Hawai`i v. Hawai`i County Planning Commission, 79 Hawaii at 452, 903 P.2d at 1273. Hence,
PASH does not represent any real adoption of Dolan. Moreover, unlike the instant case,PASH
arguably involved an actual physical invasion of land, and thus a possible true"taking."
Dolan, unlike the instant case, required a literal taking of realty, a dedication of property
for improvement of a storm drain system and for a bicycle/pedestrian walkway, as a condition of
a building permit. Under such a forced dedication, the court required that there be an"essential
nexus" between a legitimate state interest and the permit condition. Further, there must be a
"rough proportionality" between the nature and extent of the required dedication and the
development's impact. Dolan v. City of Tigard, 512 U.S. 374, 391, 114 S.Ct. 2319-20.
However, the United States Supreme Court has refrained from applying Dolan to non-
dedication cases. "Although in a general sense concerns for proportionality animate the Takings
25
Clause, . . . we have not extended the rough-proportionality test of Dolan beyond the special
context of exactions—land-use decisions conditioning approval of development on the
dedication of property to public use." City ofMonterey v. Del Monte Dunes at Monterey Ltd.,
526 U.S. 687, 702, 119 S.Ct. 1624, 1635 (1999) (underline added, declining to extend Dolan to
denial of development case).
The United States Supreme Court has further declined to apply the Takings Clause to
obligations to pay money. In United States v. Sperry Corp., 493 U.S. 52, 110 S.Ct. 387, 107
L.Ed.2d 290 (1989), the Supreme Court held that a federal statute requiring payment of a portion
of an arbitral award from the Iran-United States Claim Tribunal did not violate the Takings
Clause, because, in part, "[i]t is artificial to view deductions of a percentage of a monetary award
as physical appropriations of property. Unlike real or personal property, money is fungible."
United States v. Sperry Corp, 493 U.S. at 62, n. 9, 110 S. Ct. at 395.
See also, Commonwealth Edison Company v. United States, 271 F.3d 1327, 1339-1340
(Fed. Cir. 2001). Analyzing Eastern Enterprises v. Apfel, 524 U.S. 498, 537, 118 S.Ct. 2131,
141 L.Ed.2d 451 (1998), the Commonwealth Edison court concluded: "Thus five justices of the
Supreme Court in Eastern Enterprises agreed that regulatory actions requiring the payment of
money are not takings. We agree with the prevailing view that we are obligated to follow the
views of that majority. . . . This court has similarly concluded that the imposition of an obligation
to pay money does not constitute an unconstitutional taking of property . . . . In short, while a
taking may occur when a specific fund of money is involved, the mere imposition of an
obligation to pay money, as here, does not give rise to a claim under the Takings Clause of the
Fifth Amendment." Commonwealth Edison Company v. United States, 271 F.3d at 1339-1340.
26
Thus,Dolan's rough proportionality test does not apply to Condition No. 7, which
requires no dedication of real property, but only expenditures of money to improve Ainaloa
Boulevard.
ADC admits, as it must, that it should contribute to mitigation of road impacts. Opening
Brief, p. 16. ADC represented to the County and community a commitment to, and acquiesced
in the imposition of Condition No. 7, for 12.5 years. The County extended the life of Use Permit
No. 106 twice previously including this condition, in 1994 and 1998. ADC has now received a
third extension of time, but is now asking for relief from the bulk of road improvement
obligations.
ADC has had the use of its money for 12.5 years, the traffic situation has if anything
worsened, and the permit was expressly granted (and extended)based upon the fulfillment of
conditions. ADC's claims of financial disability are not new, but were the basis for two prior
permit extensions, in which Condition No. 7 was not questioned. ADC produced no direct
testimony of financial disability, only hearsay. As Mr. Love noted, this would affect the weight
of that testimony. On these facts, the Planning Commission's denial of modification of
Condition No. 7 was not an abuse of discretion.
ADC claims that Condition No. 7 is not consistent with the County's "fair share"
standards. ADC has not, however shown that the"fair share" rezoning standards are the
exclusive vehicle for conditioning improvements ("fair share" does not even apply here, as there
is no rezoning). Actually, the council may impose any other rezoning conditions if"reasonably
conceived to fulfill needs directly emanating from the land use proposed," including"fulfillment
of the need for public service demands created by the proposed use." HCC Section 25-2-44(a)
(See Appendix"Y').
27
ADC also argues that Ainaloa Boulevard is now used by the neighboring Hawaiian Acres
subdivision also. This is irrelevant to the imposition of road improvement conditions, which
ADC must admit it should bear to some extent. Having accepted Condition No. 7 for 12.5 years,
ADC cannot now complain of the additional use by neighbors. In fact, this only emphasizes the
need for these improvements. ADC might have been denied the permit altogether due to the
condition of Ainaloa Boulevard; having committed to improving the Boulevard, it should not
complain of the use of that road.
Under these facts, the Commission's decision to not amend Condition No. 7 was clearly
not arbitrary or capricious, and was well within its reasonable discretion. The Court should
apply proper deference to the Commission's expertise and experience with this project, and
should not substitute its judgment for that of the Commission. This appeal should be denied.
V. CONCLUSION
Based on all of the foregoing, the Commission respectfully urges that its Findings of
Fact, Conclusion of Law, Decision and Order dated November 15, 2004 was not in violation of
law or an abuse of its discretion, and was supported by substantial evidence. ADC's claims
attacking the imposition of Condition No. 7 were waived and barred by res judicata. The
Commission therefore respectfully urges that this appeal be dismissed and denied.
Dated: Hilo, Hawaii, May 6, 2005.
COUNTY OF HAWAII PLANNING
COMMISSION, Appellee
By
IVAN M. TORIGOE
Deputy Corporation Counsel
Its Attorney
28
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAI'I
AINALOA DEVELOPMENT CIVIL NO. 04-1-0421
CORPORATION, (Agency Appeal)
Appellant, CERTIFICATE OF SERVICE
vs.
COUNTY OF HAWAI'I PLANNING
COMMISSION; CHRISTOPHER YUEN,
Planning Director, County of Hawai'i, and
OLE FULKS,
Appellees.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that two (2) copies of the foregoing document were served upon
the following, by mailing the same, postage prepaid, on May 6, 2005:
OLE FULKS
HC-1 Box 5664
Kea`au, Hawaii 96749
Appellee
I ALSO HEREBY CERTIFY that two (2) copies of the foregoing document were served
upon the following, by hand delivery, on May 6, 2005:
BOBBY JEAN LEITHEAD-TODD SANDRA PECHTER SONG
Office of the Corporation Counsel 101 Aupuni Street, Suite 124
101 Aupuni Street, Suite 325 Hilo, Hawaii 96720
Hilo, Hawai i 96720 Attorney for Appellant
Attorney for Appellee Christopher Yuen, Ainaloa Development Corp.
Planning Director, County of Hawai i
IVAN M. TORIGOE
Deputy Corporation Counsel
County of Hawaii