HomeMy WebLinkAbout2006-12-18_Planning_Department_Reply_Brief_re_Calvert FILED r.
LINCOLN S. T. ASHIDA 4478
Corporation Counsel
1006'0EC I8 Fli 2: 23
BOBBY JEAN LEITHEAD-TODD 4326
AMY G. SELF 7628
Deputies Corporation Counsel C.Oi4A1'IA.CLERK
1-11110 CIRCUIT COURT
Hilo Lagoon Centre STATE Of HAWAII.
101 Aupuni Street, Suite 325
Hilo,Hawaii 96720
Telephone No. 961-8251
Email: bjtodd @co.hawaii.hi.us
Attorneys for Appellant/Appellee CHRISTOPHER J. YUEN,
PLANNING DIRECTOR OF THE COUNTY OF HAWAI'I
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAII
CHRISTOPHER J. YUEN,PLANNING CIVIL NO. 06-1-0184
DIRECTOR, COUNTY OF HAWAII (Agency Appeal)
Appellant/Appellee,
vs. APPELLANT/APPELLEE
CHRISTOPHER J. YUEN,PLANNING
BOARD OF APPEALS OF THE COUNTY DIRECTOR OF THE COUNTY OF
OF HAWAII, VALTA COOK, HAWAI`I'S REPLY BRIEF;
in his capacity as Chairperson of the BOARD CERTIFICATE OF SERVICE
OF APPEALS OF THE COUNTY OF
HAWAII, and MARLENE E. CALVERT,
JUDGE: Greg K. Nakamura
Appellees/Appellant.
ORAL ARGUMENTS:
Date: January 5, 2007 at 9:00 a.m.
sAi6calvert\reply brief\121806WGSkd
APPELLANT/APPELLEE CHRISTOPHER J. YUEN,
PLANNING DIRECTOR OF THE COUNTY OF HAWAI`I'S REPLY BRIEF
COMES NOW Appellant/Appellee CHRISTOPHER J. YUEN, PLANNING
DIRECTOR, COUNTY OF HAWAII(hereinafter"Director"),by and through his
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undersigned counsel, AMY G. SELF, Deputy Corporation Counsel,pursuant to Hawaii
Revised Statutes ("HRS") § 91-14 and Rule 72 of the Hawaii Rules of Civil Procedure,.
respectfully submits his Reply Brief in accordance with the Briefing Schedule established
by the Court and filed on August 17, 2006, as amended by the Stipulation and Order
extending the time for the Director to file his reply brief filed December 14, 2006.
I. ARGUMENT
A. The Director is not Precluded from Judicial Review for Failure to
Obiect to the Proposed Finding of Fact and Conclusions of Law.
HRS § 91-14(a) sets forth the following jurisdictional requirements for an agency '
appeal:
(1) The proceeding that resulted in the unfavorable agency action must have
been a contested case hearing that was required by law and determined the
rights, duties, and privileges of specific parties;
(2) The agency action must represent a final decision and order or a
preliminary ruling that such deferral of review would deprive the claimant
of adequate relief;
(3) The claimant must have followed the applicable agency rules and have
been involved in a contested case hearing; and
(4) The claimant's legal interest must have been injured--i.e.,the claimant
must have standing to appeal.
Hui Kako`o Aina Ho`opulapula, et al. v. Board of Land and Natural Resources, et al.,
112 Haw. 28, 35, 143 P.3d 1230, 1237 (2006).
Appellees' reliance on the court's decision in Hui Kako`o Aina Ho`opulapula for
the supposition that this Court may lack jurisdiction to conduct judicial review of the
appeal filed by the Director because the Director failed to raise timely objections to the
Findings of Fact and Conclusions of Law ("FOFCOL")proposed by Appellee/Appellant
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Marlene E. Calvert(hereinafter referred to as "Mrs. Calvert")is misplaced. In that case
,that case, the appellants' failure to follow the agency's rules relating to contested case
proceedings (i.e., failure to submit a written request for a contested case hearing)resulted
in the appellants' failure to participate in a contested case hearing,which is required
under HRS § 91-14(a) for judicial review of an agency's decision. See Hui Kako`o Aina
Ho`opulapula, 112 Haw. 28, 143 P.3d 1230. Because there was no contested case
hearing during which evidence was produced,there was no record on appeal or a final
decision for the court to review; therefore, the court lacked jurisdiction to hear the
appellants' appeal. See id.
In arriving at its decision, the court relied on the Intermediate Court of Appeals'
("ICA") decision in Simpson v. Dept of Land and Natural Res., 8 Haw. App. 16, 791
P.2d 1267 (1990),which held that a public hearing required by law was not a contested
case hearing"where(1)the agency has properly promulgated specific procedures for a
contested case hearing and(2) a party has failed to follow such procedures." Hui Kako`o
Aina Ho`opulapula at 112 Haw. at 39, 143 P.3d at 1241 (citing Simpson, 8 Haw. App.16,
24-25, 791 P.2d 1267, 1273 (1990)).
In the case of Simpson,the petitioner had applied for a mooring permit from the
Department of Land and Natural Resources ("DLNR") and participated in a public
hearing required by law,but did not request a contested case hearing pursuant to the
DLNR's agency rules regarding contested case proceedings. See Simpson, 8 Haw. App.
at 18-19, 791 P.2d at 1270-1271. Because there was no final decision from a contested
case, the circuit court dismissed the appeal on the ground that it lacked subject matter
jurisdiction and the ICA agreed. See Simpson, 8 Haw. App. at 18-20, 791 P.2d at 1270-
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127 1. The ICA went on to state that the basic purpose of the DLNR's rules regarding
contested case proceedings was to provide the Board of Land and Natural Resources
("BLNR") "an opportunity to establish an adequate formal record for judicial review of
its decision and order" and that since the petitioner did not request a contested case
hearing,the record of the proceedings before the BLNR was sparse and inadequate for
judicial review. Simpson, 8 Haw. App. at 24-25, 791 P.2d at 1273. In other words,the
basis of the ICA's decision in Simpson and the Hawaii Supreme Court's decision in Hui
Kako`o Aina Ho`opulapula was that without a contested case hearing,there was no final
decision and no formal record to qualify for judicial review under HRS § 91-14(a).
Unlike the appellants in the cases of Hui Kako`o Aina Ho`opulapula and Simpson,
the Director has met the four judicial requirements for an agency appeal. First, there was
a contested case hearing,which was required by law that resulted in the unfavorable
decision by the Board of Appeals (hereinafter"Board") against the Director. Second,the
Board's decision represents a final decision of the contested case hearing. Third,the
Director followed the applicable rules of the Board by participating in the contested case
hearing through his attorney. Fourth, the Director is a"person" aggrieved by the Board's
final decision as defined in HRS § 91-1(2). Moreover,Hui Kako`o Aina Ho`opulapula
and Simpson are distinguishable from the present case because in the present case,this
Court has a final decision from a contested case hearing and an entire record of the
contested case proceeding for judicial review. To determine that the Director is
precluded from judicial review for failure to object to the FOFCOL would require a great
leap from the reasoning provided by the Hawaii Supreme Court's decision in Hui
Kako`o Aina Ho`opulapula and the ICA's decision in Simpson.
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B. Submitting Objections to the FOFCOL Would Have Been
Superfluous.
During the contested case hearing,the Director,through his attorney, raised the
following legal arguments:
1) That if the Director fails to act on a variance application within sixty days,
the variance application is deemed denied under Section 23-18 of the
Subdivision Code and under 25-2-54 of the Zoning Code;
2) That HRS § 91-13.5 does not apply to the County's Subdivision Code; and
3) That HRS § 91-13.5 especially does not apply to an application for a
variance from the Subdivision Code, since a variance provides an
exception to what is required by the Subdivision Code at the discretion of
the Director.
Record on Appeal(hereinafter"ROA") at 442 and 447-449. Those legal arguments were
preserved on the Record that is before this Court.
Those same legal arguments were also outright rejected by the Board during the
contested case hearing. In fact, some of the Board's members engaged in heated debates
with the Director's attorney insisting that because the Director failed to meet the sixty
days,the variance application was deemed approved pursuant to HRS § 91-13.5 with
total disregard of Section 23-18 of the Subdivision Code to which the Director and the
Board is bound. (ROA at 448-449.) Ultimately,this was the basis for the Board's
decision. (ROA at 450-451.) Because the FOFCOL accurately reflected the reasons for
the Board's decision,there was no need for the Director to object to the FOFCOL.
The legal issues raised by the Director's attorney during the contested case hearing were
purely questions of law,which were not affected by the facts of the case, and are freely
reviewable by this Court to determine if the Board's decision was in excess of statutory
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authority. See Curtis v. Board of Appeals of the County of Hawai`i, 90 Hawaii 384, 393,
978 P.2d 822, 831 (1999).
Moreover, Board's Rules § 3-18 does not require the parties to submit FOFCOL.
Because the Board found in favor of Mrs. Calvert, it requested Mrs. Calvert's attorney to
submit proposed FOFCOL, effectively waiving the requirement for the Director to submit
proposed FOFCOL pursuant to Board's Rule § 8-13. (ROA at 451.) The Director's
attorney was not requested or required to submit proposed FOFCOL or to submit
objections to Mrs. Calverts' proposed FOFCOL. (ROA at 451.) Board's Rule § 3-18
merely provides a time limit for submitting objections to FOFCOL, if a party desires to
do so.
C. The Board Exceeded its Statutory Authority or Made an Error of
Law When it Decided That Mrs. Calvert's Water Variance
Application Was Automatically Approved By Operation of
HRS 4 91-13.5.
HRS § 91-13.5 provides that:
Unless otherwise provided by law, an agency shall adopt
rules that specify a maximum time period to grant or deny a
business or development-related permit, license,or
approval. . . .
(Emphasis added.)
It is well established that HRS § 91-1 clearly excludes legislative branches from
the definition of"agency"and therefore, from compliance with the provisions contained
in HRS, Chapter 91. See Sandy Beach Defense Fund v. City Council, 70 Hawaii 361,
369, 773 P.2d 250, 256 (1989). The Hawaii County Council (hereinafter"Council") is
the legislative branch of Hawaii County. See Article III, Section 3-1,Hawaii County
Charter. In 1982, the Council adopted Ordinance No. 763, Sec. 5, and codified as
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Section 23-18,Hawaii County Code("Subdivision Code"),which provides in pertinent
part as follows:
The director shall,within sixty days after the filing of a
proper application or within a longer period as may be
agreed to by the applicant,deny the application or approve
it subject to conditions. The conditions imposed by the
director shall bear a reasonable relationship to the variance
granted. All actions shall contain a statement of the factual
findings supporting the decision.
If the director fails to act within the prescribed period,the
application shall be considered as having been denied.
(Emphasis added) § 23-18,Hawaii County Code. The passage of that section of the
Hawaii County Code preceded the passage of HRS § 91-13.5, so it was"otherwise
provided by law" (i.e., § 23-18,Hawaii County Code). In addition, Section 6-4.2 of the
Hawaii County Charter requires the Planning Director to administer the subdivision
ordinances passed by the Council. This means that the rules adopted by the Planning
Department must implement the Subdivision Code.
When the Board voted to reverse the Director's decision to deny the water
variance because the Director's decision was not rendered within sixty days and was
therefore automatically approved pursuant to HRS, Section 91-13.5,the Board essentially
made a decision to completely disregard Section 23-18,Hawaii County Code as adopted
by the Council. (ROA at 453.) Moreover,based on the Board's decision,the Board is
essentially ordering the Director to violate Section 23-18, Hawaii County Code when
making similar decisions in the future. In other words, if it takes the Director longer than
sixty(60) days to deny or approve any variance applications in the future, the Director
will have to approve the application in violation of Section 23-18,Hawaii County Code
which requires that the application be deemed denied; otherwise,his decision will be
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overturned by the Board on appeal.
The Board clearly exceeded its statutory authority by concluding that the variance
application was automatically approved contrary to the clear dictates of the Hawaii
County Subdivision Code. Contrary to Appellees' contention, the language of Section
23-18, Hawaii County Code, is not in conflict with HRS § 91-13.5 because
HRS § 91-13.5 does not apply to the Subdivision Code. The Subdivision Code was
enacted by the Council and the Council is not an"agency" for the purposes of
Chapter 91. (See HRS § 91-1(1).) Furthermore,the Director does not have the authority
to enact a rule that is contrary to the express language of the County's Subdivision Code.
If the Director did enact a rule that is contrary to the express language of the County's
Subdivision Code, such rule would be superseded by the County's Subdivision Code.
Likewise, the Board does not have the authority to make a decision that is contrary to the
express language of the County's Subdivision Code.
D. The Legal Arguments Contained in the Director's Opening Brief
Involve a Question of Great Public Import.
Even if, as Appellees contend,the Director's legal argument that HRS § 91-13.5
does not apply because a variance is"otherwise provided by law"was raised for the first
time on appeal and should not be considered by this Court,it involves a question of great
public import and is therefore, well within this Court's discretion to hear. See Greene v.
Texeira, et al., 54 Haw. 231, 235, 505 P.2d 1169, 1172 (1973). The Director's legal
argument is purely a question of law and is freely reviewable to determine if the Board's
decision was in violation of constitutional or statutory provisions, in excess of statutory
authority or jurisdiction of Board, or affected by other error of law. See Curtis v. Board
of Appeals of the County of Hawai`i, 90 Hawaii at 393, 978 P.2d at 831 (1999).
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Moreover, it is a matter of great importance to the public to have a proper interpretation
of HRS § 91-13.5 to provide guidance to the Director and the Board for similar cases in
the future.
II. CONCLUSION
The Director is not precluded from judicial review by this Court under
HRS § 91-14 for failure to submit objections to Mrs. Calvert's FOFCOL. He participated
in the contested case hearing through his attorney as required by HRS § 91-14. The legal
arguments made by the Director's attorney were preserved in the Record that is now
before this Court.
The Board exceeded its statutory authority by finding that the variance application
was automatically approved contrary to the clear dictates of the Hawaii County
Subdivision Code. Automatic approval does not apply to subdivision variances because
they are"otherwise provided by law,"which is the Hawaii County Subdivision Code
enacted by the County Council. The County Council is a legislative body specifically
exempted from the provisions of HRS, Chapter 91. The Director must comply with the
Hawaii County Subdivision Code. Therefore,his decision to deny the variance
application is in compliance with the clear dictates of the Hawaii County Subdivision
Code.
Likewise, the Board's decision was clearly erroneous as HRS § 91-13.5 does not
apply to the Hawaii County Subdivision Code. .
Based upon all of the foregoing, the Director respectfully requests that the Court
reverse the Board's Findings of Fact, Conclusions of Law, and Decision and Order and
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issue an Order deeming the Calvert water variance application automatically denied as of
September 29, 2005,pursuant to Hawaii County Code, Section 23-18.
DATED: Hilo, Hawaii, December 18, 2006.
CHRISTOPHER J. YUEN,
PLANNING DIRECTOR,
COUNTY OF HAWAII
Appellant/Appellee
BY:
AMY . SELF
Deput Corporation Counsel
His Attorney
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IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAII
CHRISTOPHER J. YUEN, PLANNING CIVIL NO. 06-1-0184
DIRECTOR, COUNTY OF HAWAI'I (Agency Appeal)
Appellant/Appellee,
CERTIFICATE OF SERVICE
VS.
BOARD OF APPEALS OF THE COUNTY OF
HAWAII, VALTA COOK, in his capacity as
Chairperson of the BOARD OF APPEALS
OF THE COUNTY OF HAWAII, and
MARLENE E. CALVERT,
Appellees/Appellant.
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this date a copy of the foregoing document was
duly served upon the following individual(s)by hand delivery or depositing same in the United
States mail,postage prepaid, addressed as follows:
PATRICIA K. O'TOOLE
Deputy Corporation Counsel
Office of the Corporation Counsel
101 Aupuni Street, Suite 325
Hilo, Hawaii 96720
Attorney for Appellees/Appellant
BOARD OF APPEAL OF THE COUNTY OF HAWAII
VALTA COOK, in his capacity as
Chairperson of the BOARD OF APPEALS OF THE
COUNTY OF HAWAII
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ROY A. VITOUSEK, III, ESQ.
JOCELYN B. GAROVOY, ESQ.
Cades Schutte
75-170 Hualalai Road, Suite B-303
Kailua-Kona, Hawaii 96740
Attorneys for Appellee MARLENE CALVERT
DATED: Hilo,Hawaii, December 18, 2006.
�y ELF
Deputy Corporation Counsel
County of Hawaii
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