HomeMy WebLinkAbout2006-11-17_Motion_to_Dismiss_Petition_for_Declaratory_Ruling_re_Herron_Whitehead LINCOLN S. T. ASHIDA 4478
Corporation Counsel
AMY G. SELF 7628
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: asel2co.Hawai`i.hi.us
Attorney for CHRISTOPHER J. YUEN,
PLANNING DIRECTOR, COUNTY OF
HAWAII, the Appellee
IN THE BOARD OF APPEALS
COUNTY OF HAWAII
STATE OF HAWAII
In the Matter of the Petition for Declaratory BOA NO. DR 06-000001
Ruling
of CHRISTOPHER J. YUEN, PLANNING
DIRECTOR, COUNTY OF HAWAI`P S,
JAN R. HERRON-WHITEHEAD AND MOTION TO DISMISS PETITION FOR
LAVERNE TILL DECLARATORY RULING; MEMORANDUM
IN SUPPORT OF MOTION;
Petition for Declaratory Ruling relating to CERTIFICATE OF SERVICE
Change of Zone Ordinance No. 96-
117(M)(1)(b); Hawaii Revised Statutes §92F,
Uniform Information Practices Act; and
County of Hawaii General Plan
§13.2.5.6.2(g) "Connector Road" Course of
Action.
s:Ab&cAboa\Till DR 06-000001\mm to dismiss 11-17-06 AGSkd
CHRISTOPHER J. YUEN, PLANNING DIRECTOR, COUNTY OF HAWAI`P S, MOTION
TO DISMISS PETITION FOR DECLARATORY RULING
COMES NOW, CHRISTOPHER J. YUEN, PLANNING DIRECTOR, COUNTY OF
HAWAII(hereinafter"Director"), by and through his attorney, AMY G. SELF, Deputy
Corporation Counsel, hereby moves this Board of Appeals (hereinafter referred to as the
"Board")motion to dismiss the Petition for Declaratory Ruling filed by JAN R. HERRON-
WHITEHEAD and LAVERNE TILL (hereinafter referred to as"Petitioners") on or about
October 12, 2006.
This motion is made pursuant to Rules 3-12 and 6-4(4) of the Rules of Practice and
Procedure of the Hawai'i County Board of Appeals and is based upon and supported by the
memorandum in support of the motion attached and incorporated herein by reference.
DATED: Hilo, Hawaii, November 17, 2006.
CHRISTOPHER J. YUEN, Planning
Director, County of Hawaii, Appellee
By
AMY G. SELF
Deputy Corporation Counsel
His Attorney
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IN THE BOARD OF APPEALS
COUNTY OF HAWAII
STATE OF HAWAII
In the Matter of the Petition for Declaratory BOA NO. DR 06-000001
Ruling
of MEMORANDUM IN SUPPORT OF MOTION
JAN R. HERRON-WHITEHEAD AND
LAVERNE TILL
Petition for Declaratory Ruling relating to
Change of Zone Ordinance No. 96-
117(M)(1)(b); Hawaii Revised Statutes §92F,
Uniform Information Practices Act; and
County of Hawaii General Plan
§13.2.5.6.2(g) "Connector Road" Course of
Action.
MEMORANDUM IN SUPPORT OF MOTION
I. BACKGROUND
On or about October 12, 2006, Petitioners filed a Petition for Declaratory Ruling
(hereinafter"Petition"), pursuant to Rule 6 of the Rules of Practice and Procedure of the Hawai'i
County Board of Appeals. Petitioners' overall objective in requesting a declaratory ruling from
the Board is "[t]o Determine Whether the County of Hawaii Planning Director has the Authority
to Waive Enforcement of a Rezoning Ordinance Approval Condition Required in Rezoning
Ordinance No. 96-117(M)(1)(b): and Related Issues concerning the Uniform Information
Practices Act, Hawaii Revised Statute [sic] §92F, and the County's General Plan § 13.2.5.6.2(g)
"Connector Road" Course of Action[.]" See Petition to the Hawai`i County Board ofAppeals
for Declaratory Ruling(hereinafter "Petition') at 1.
More specifically, Petitioners are requesting the Board to issue a declaratory ruling on the
following three issues:
1. "Pursuant to the Hawaii County Charter 13-20(a) and the Uniform
Information Practices Act, HRS 92-F 11(b), Petitioners request that the Board of
Appeals make a Declaratory Ruling declaring that the Planning Director must
allow the public to have access to (to inspect and make copies of)its records
regarding the processing of subdivisions, rezoning ordinance conditions, or other
development matters, without exclusion of or removal of unprivileged documents
from those files. . . ."
See Petition at 30.
2. "Petitioners request that the Board of Appeals make a Declaratory Ruling
declaring that, in reviewing subdivision applications, the Planning Director must
require conformity with relevant specific provisions of the General Plan, and in
the case of the Luala`i III subdivision, including insistence upon compliance with
the "Connector Road" mandate, that is, Transportation Course of Action
13.2.5.6.2(g). Accordingly, the Planning Director must refrain from any further
action on the Luala`i III subdivision, or any other development with the Town
Center project, unless and until Parker Ranch agrees complete Phases 1 and 3 of
the Connector Road according to the time schedule set forth in the Luala`i III
Tentative Plan Approval letter. In the event that Parker Ranch/Kaomalo are
unwilling to comply with this General Plan mandate—which simply implements
the Connector Road provisions in Rezoning Ordinance 96-117."
See Petition at 33.
3. "Petitioners request that the Board of Appeals make a Declaratory Ruling
that the Planning Director does not have the authority to waive the "requirements
of Rezoning Ordinance 96-117(M)(1)(b), which pursuant to the "adjacent
development" timing trigger now requires construction of the Connector Road
phases 1 and 3 in conjunction with the Luala`i III subdivision. The Planning
Director must not take any further action on any of the Luala`i at Parker Ranch
subdivision applications, or on any other proposed Town Center Development,
unless and until Parker Ranch/Kaomalo commits to now complete Phases 1 and 3
of the Connector road, and acts in compliance with that obligation. The Planning
Directory [sic] must stop accommodating this developer's avoidance of it [sic]
Connector Road obligation and immediately require revision of the Luala`i III
construction plans to show the infrastructure plans for Phases 1 and 3 of the
Connector Road including the associated intersections, and otherwise administer
this subdivision, including the requirement of bonding for road improvements,
pursuant to the time frame set forth in the Planning Department's March 22, 2005
Luala`i III Tentative Approval letter.
In addition, Petitioners request that the Board of Appeals also make a
Declaratory Ruling declaring that the Planning Director enforce all other
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provisions of Rezoning Ordinance 96-117 in a timely manner, including but not
limited to requiring that Parker Ranch immediately submit the detailed annual self
monitoring progress reports required in Rezoning Ordinance 96-117(K)."
See Petition at 40.
II. RELEVANT LAWS
Section 91-8 of the Hawaii Revised Statutes ("HRS")provides:
Any interested person may petition an agency for a declaratory
order as to the applicability of any statutory provision or of any
rule or order of the agency. Each agency shall adopt rules
prescribing the form of the petitions and the procedure for their
submission, consideration, and prompt disposition. Orders
disposing of petitions in such cases shall have the same status as
other agency orders.
Rule 6-4 of the County of Hawaii Board of Appeals Rules of Practice and Procedures
(hereinafter referred to as the "BOA Rules") provides:
The Board may for good cause refuse to issue a declaratory order
where:
(1) The question is speculative or purely hypothetical and does
not involve existing facts or facts that can be expected to
exist in the near future;
(2) The petitioner's interest is not of the type that would give
the petitioner standing to maintain an action if the
petitioner were to seek judicial relief,
(3) The issuance of the declaratory order may affect the
interests of the Board in litigation that is pending or may
reasonably be expected to arise; or
(4) The matter is not within the jurisdiction of the Board.
(Emphasis added.)
Section 6-10.2 of the Hawaii County Charter(2000), which establishes the jurisdiction
of the Board, provides in pertinent part:
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The board of appeals shall establish its rules of procedure and shall:
(a) Hear and determine appeals from final decisions of the
planning director or the director of public works
regarding matters within their respective jurisdictions.
(b) Conduct hearings in accordance with Chapter 91, Hawaii
Revised Statutes, and this charter.
(Emphasis added.)
Section 25-2-20 of the Hawaii County Code 1983 (2005 Edition, as amended), which
defines who may appeal from final decisions of the planning director regarding zoning issues,
provides in pertinent part:
(a) Any person aggrieved by the decision of the director in the
administration or application of this chapter, may, within
thirty days after the date of the director's written decision,
appeal the decision to the board of appeals.
(b) A person is aggrieved by a decision of the director if:
(1) The person has an interest in the subject matter of the
decision that is so directly and immediately affected,
that the person's interest is clearly distinguishable from
that of the general public; and
(2) The person is or will be adversely affected by the
decision.
Section 23-5 of the Hawaii County Code 1983 (2005 Edition, as amended), which
defines who may appeal from final decisions of the planning director regarding subdivision
issues, provides in pertinent part:
Any person aggrieved by the decision of the director in the
administration or application of this chapter, may, within thirty
days after the director's decision, appeal the decision to the board
of appeals.
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III. LEGAL ARGUMENT
The Board is without jurisdiction to issue a declaratory ruling on the issues presented in
the Petition. Petitioners are essentially asking the Board to interpret provisions from the County
Charter, the HRS, the County's General Plan, and Rezoning Ordinance No. 96-117.
As discussed below, the Board's authority to issue a declaratory ruling under Section 91-8 of the
HRS is limited by the powers granted to the Board in the County Charter.
A. The Issues presented in the Petition fall outside the scope of§ 91-8, HRS.
The Board is without authority to issue a declaratory ruling on the issues presented in the
Petition, unless they fall within the scope of Section 91-8, HRS. To fall within the scope of
Section 91-8, HRS, the issues presented by the Petition must relate to a statutory provision or a
rule or order of the Board. See,Fasi v. Hawai`i Public Employment Relations Board, 60 Haw.
436 (1979). "The words `statutory provision' are limited by their context, and do not embrace
every provision of the statute laws of the state." Id at 443. The issues or questions presented by
the Petition must be relevant to some action which the Board might take in the exercise of the
powers granted by the Hawaii County Charter. Se, Id. at 443.
The Hawaii County Charter grants the following powers to the Board:
(a) Hear and determine appeals from final decisions of the
planning director regarding matters within his jurisdiction;
and
(b) Conduct hearings in accordance with Chapter 91, Hawaii
Revised Statutes, and the County Charter.
See County of Hawaii Charter(2000), § 6-10.2. Therefore, the issues presented in the Petition
must be relevant to appeals from final decisions of the Director regarding matters within the
Director's jurisdiction to fall within the Board's authority to issue a declaratory ruling under
Section 91-8, HRS.
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B. The issues presented in the Petition fall outside the scope of the specific
powers granted by the County Charter.
The issues presented in the Petition do not relate to any final decisions made by the
Director regarding matters within the Director's jurisdiction. Instead, the Petitioners are
requesting the Board to issue a declaratory ruling on matters that are clearly outside the scope of
its powers granted by the Hawaii County Charter.
In the first issue presented in the Petition, Petitioners are actually asking the Board to
interpret Section 13-20(a) of the Hawaii County Charter and Section 9217-11(b), HRS, to declare
that the Director must allow the public to have access to information in the Planning
Department's records regarding the processing of subdivisions, rezoning ordinance conditions
and other related matters. This issue clearly does not relate to a final decision made by the
Director regarding matters within the Director's jurisdiction. Matters regarding public access to
government records under the Uniform Information Practices Act("UIPA"), Chapter 92F, HRS,
are under the jurisdiction of the State of Hawaii Office of Information Practices ('011"'), not the
Board. If Petitioners are claiming that the Director is in violation of the UIPA or
Section 13-20(a) of the Hawaii County Charter, they have the option to file a complaint against
the Director with the OIP. They do not, however, have the option of obtaining a declaratory
ruling from the Board because the Board is without jurisdiction to issue such a declaratory
ruling.
In the second issue presented in the Petition, Petitioners are asking the Board to rule that
the Director must require conformity with relevant specific provisions of the General Plan
regarding the Luala`i III subdivision and that the Director must refrain from any further action on
the Luala`i III subdivision unless and until Parker Ranch agrees to complete Phases 1 and 3 of
the Connector Road according to the schedule set forth in the Luala`i III Tentative Plan Approval
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letter. Petitioners do not point to any particular final decision made by the Director within the
Director's jurisdiction as a basis for their request for a declaratory ruling. The Board has no
authority to make a declaratory ruling which essentially dictates how the Director must perform
the duties of his position.
The Director's duties and responsibilities are provided in Section 6-4.2 of the Hawaii
County Charter, which requires the Director to"administer the subdivision and zoning
ordinances and regulations" and to "render decisions on proposed subdivision plans." Once the
Director renders a final decision regarding matters within his jurisdiction (i.e., subdivision and
zoning matters), the Board has the power to hear and determine appeals from that final decision.
The issue is not relevant to some action which the Board might take in the exercise of the powers
granted by the Hawaii County Charter. Therefore the Board is without authority to issue a
declaratory ruling on the issue pursuant to Section 91-8, HRS.
Finally, in the third issue presented in the Petition, Petitioners are asking the Board to
make a declaratory ruling that the Director does not have the authority to waive the requirements
of Rezoning Ordinance No. 96-117(M)(1)(b). In addition, Petitioners are asking the Board to
interpret Rezoning Ordinance No. 96-117 to mean that the condition requiring the construction
of the connector road Phases 1 and 3 in conjunction with the Luala`i III subdivision has already
been triggered and that the Director must not take any further action on any of the Luala`i at
Parker Ranch subdivision applications until Parker Ranch/Kaomalo commits to now complete
Phases 1 and 3 of the connector road. Petitioners make no mention of any final decision made
by the Director relating to the conditions of Rezoning Ordinance No. 96-117.
There are no provisions in the Hawaii County Charter that authorize the Board to
interpret an ordinance, unless it is relevant to the Board's determination of an appeal from a final
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decision by the Director regarding matters within his jurisdiction. Likewise, the Board is not
authorized under the Hawaii County Charter to make a declaratory ruling which essentially
orders the Director not to perform the duties of his position as required under the Hawaii County
Charter. Because the issue is not relevant to some action which the Board might take in the
exercise of the powers granted by the Hawaii County Charter, the Board is without authority to
issue a declaratory ruling on this issue, pursuant to Section 91-8, HRS.
C. If a final decision was made by the Director, the appropriate action would
have been to appeal the decision to the Board.
If any of the issues presented in the Petition relate to a final decision that was made by
the Director regarding matters within his jurisdiction, with the exception of the first issue over
which the OIP has jurisdiction, Petitioners should have appealed the decision to the Board within
thirty days of the Director's final decision, pursuant to Section 23-5 of the Hawaii County Code
for subdivision issues or Section 25-2-20 of the Hawaii County Code for zoning issues. Failure
to file an appeal within the thirty days results in a waiver of the right to an appeal. If, for
whatever reason, Petitioners failed to appeal any final decisions by the Director and thus waived
their right to an appeal, they cannot now petition the Board for a declaratory ruling concerning
issues that are outside the Board's jurisdiction. Because the issues in the Petition are not within
the jurisdiction of the Board, good cause exists for the Board to refuse to issue a declaratory
order, pursuant to Rule 6-4 of the BOA Rules.
IV. CONCLUSION
The Board's authority to issue a declaratory ruling under Section 91-8, HRS, is limited by
the powers granted to the Board by the Hawaii County Charter. The powers granted by the
Hawaii County Charter to the Board are to hear and determine appeals from final decisions of
the Director regarding matters within his jurisdiction. Because the issues presented in the
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Petition are not relevant to appeals from final decisions of the Director regarding matters within
his jurisdiction, the Board is without authority to issue a declaratory ruling pursuant to Section
91-8, HRS.
Based upon all of the foregoing, the Director respectfully requests that the Board dismiss
the Petition for Declaratory Ruling pursuant to Rule 6-4 of the BOA Rules.
DATED: Hilo, Hawaii, November 17, 2006.
CHRISTOPHER J. YUEN, Planning
Director, County of Hawaii, Appellee
By
AMY G. SELF
Deputy Corporation Counsel
His Attorney
9
IN THE BOARD OF APPEALS
COUNTY OF HAWAII
STATE OF HAWAII
In the Matter of the Petition for Declaratory BOA NO. DR 06-000001
Ruling
of CERTIFICATE OF SERVICE
JAN R. HERRON-WHITEHEAD AND
LAVERNE TILL
Petition for Declaratory Ruling relating to
Change of Zone Ordinance No. 96-
117(M)(1)(b); Hawaii Revised Statutes §92F,
Uniform Information Practices Act; and
County of Hawaii General Plan
§13.2.5.6.2(g) "Connector Road" Course of
Action.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing document was served upon the
following on November 17, 2006.
Hand U.S. Mail
Delivery
MARGARET WILLIE X
Attorney at Law
65-1316 Lihipali Road
Kamuela, Hawaii 96743
VALTA A. COOK, Chairman X
Board of Appeals
County of Hawaii
101 Pauahi Street, Suite 3
Hilo, Hawaii 96720
Hand U.S. Mail
Delivery
PATRICIA K. O'TOOLE X
Office of the Corporation Counsel
Hilo Lagoon Centre
101 Aupuni Street, Suite 325
Hilo, Hawaii 96720
Represents Board of Appeals
STEVEN S.C. LIM, ESQ. X
Carlsmith Ball LLP
121 Waianuenue Ave.
Hilo, Hawaii 96720
CHRISTOPHER J. YUEN X
Planning Director
County of Hawaii Planning Department
101 Pauahi Street, Suite 3
Hilo, Hawaii 96720
AMY G. SELF
Deputy Corporation Counsel
County of Hawaii
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