HomeMy WebLinkAbout2006-11-22_Answering_Brief_re_Calvert LINCOLN S.T. ASHIDA 4478
Corporation Counsel 3: 2 2
PATRICIA K. O'TOOLE 1631
COURT
Deputy Corporation Counsel S TGA,T E 0 F 1-i A'V'('A 11
County of Hawaii
Hilo Lagoon Centre
101 Aupuni Street, Suite 325
Hilo, Hawaii 96720
Telephone No. 961-8251
Facsimile No. 961-8622
Email: potoole(dco.hawaii.hi.us
Attorneys for Appellees BOARD OF APPEALS OF THE COUNTY OF HAWAII AND
VALTA COOK, in his capacity as Chairperson of the BOARD OF APPEALS
OF THE COUNTY OF HAWAII
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, APPELLEES BOARD OF APPEALS OF
THE COUNTY OF HAWAII AND VALTA
vs. COOK, IN HIS CAPACITY AS
CHAIRMAN OF THE BOARD OF
BOARD OF APPEALS OF THE COUNTY APPEALS OF THE COUNTY OF
OF HAWAII, VALTA COOK, in his HAWAI'I'S ANSWERING BRIEF;
capacity as Chairperson of the BOARD OF STATEMENT OF RELATED CASES;
APPEALS OF THE COUNTY OF CERTIFICATE OF SERVICE
HAWAII, and MARLENE E. CALVERT,
Appellees/Appellant.
s:lit\yuen v BOA[CalverflWo6ans brief\I 1-20-06TKOjen.doc
APPELLEES-BOARD OF APPEALS OF THE COUNTY OF HAWAII AND VALTA COOK,
IN HIS CAPACITY AS CHAIRMAN OF THE BOARD OF APPEALS OF THE COUNTY OF
HAWAII'S ANSWERING BRIEF
STATEMENT OF RELATED CASES
CERTIFICATE OF SERVICE
` `G.^.
TABLE OF CONTENTS
Page(s)
TABLE OF AUTHORITIES................................................................................................. ii
I. STANDARD OF REVIEW....................................................................................... 2-4
II. FACTS AND BACKGROUND................................................................................ 4-5
III. ARGUMENT............................................................................................................. 5-13
A. APPELLANT CHRISTOPHER J. YUEN, PLANNING DIRECTOR,
COUNTY OF HAWAI`I'S (APPELLANT) FAILURE TO OBJECT
PRECLUDES HIM FROM RAISING ISSUES NOW................................. 5
1. FAILURE TO FOLLOW RULES..................................................... 6-8
2. FAILURE TO RAISE ISSUE..................................................... 8-9
B. COUNTY PROVISIONS CANNOT CONTRADICT
STATUTORY PROVISIONS....................................................................... 9-12
C. SUBDIVISION IS A PART OF THE ZONING AUTHORITY
GENERATED TO THE COUNTY BY HRS SECTION 46-4..................... 12-13
IV. CALVERT'S APPLICATION WAS FOR A COMMERCIAL
ENTERPRISE ............................................................................................................ 14
V. CONCLUSION.......................................................................................................... 15
STATEMENT OF RELATED CASES................................................................................. 16
-i-
TABLE OF AUTHORITIES
Page
Cases
Aio v. Hamada, 66 Haw. 401, 664 P.2d 727 (1983).............................................................. 3
Ariyoshi v. Hawai`i Public Employment Relations Board,
5 Haw. App. 533 704 P.2d 917 (1985).............................................................................. 8-9
Curtis v. Board of Appeals, 90 Hawaii 384, 978 P.2d 822 (1999)...................................... 2-4
Hardin v. Akiba, 84 Hawaii 305, 933 P.2d 1339 (1997)..................................................... 4
Hui Kakoo Aina Hoopulapula v. Board of Land and Natural Resources,
112 Hawaii 28, 149 P.2d 1230 (2006).............................................................................. 6
In Re Hawai`i Electric Light Co., 60 Haw. 625, 594 P.2d 612 (1979).................................. 2
Nakamura v. State, 98 Hawaii 263, 47 P.3d 730 (2002)...................................................... 4
Price v. Zoning Bd. Of Appeals of City and County of Honolulu, 77 Hawaii 168,
883 P.2d 629 (1994)......................................................................................................... 4
United Public Workers, AFSCME, Local 646, AFL-CIO v. Hanneman,
106 Hawaii 359, 105 P.2d 236 (2006).............................................................................. 12
Waikiki Resort Hotel, Inc. v. City and County of Honolulu, 63 Hawaii 222,
624 P.2d 1253 (1981)......................................................................................................... 9
Wright v. Home Depot U.S.A. Inc., 111 Hawaii 401, 142 P.3d 265 (2006)......................... 11
Other
Hawai'i County Code
Chapter23 (Subdivisions) ..................................................................................................... 12
Chapter25 (Zoning) ........................................................................................................... 12
Section23-6 ............................................................................................................ 13
Section23-18 ....................................................................................................................... 4
Section23-24 ....................................................................................................................... 13
Section23-32 ....................................................................................................................... 13
Section23-33 ....................................................................................................................... 13
Section23-83 ....................................................................................................................... 5
Section25-1-2(a) ................................................................................................................. 13
A-
Paae
Rules
Board of Appeals Rules of Practice and Procedure:
Section3-18 ............................................................................................................ 6-7
Planning Department Rules of Practice and Procedure:
Rule6 ................................................................................................ 9
Rule6-7 ............................................................................................... 4
Statutes
Hawaii Revised Statutes:
Chapter46 ........................................................................................................... 12-13
Chapter62 ........................................................................................................... 12
Chapter91 ........................................................................................................... 6-7
Section46-1.5 ........................................................................................................... 8 12
Section46-4 ........................................................................................................... ,
& 13
Section46-4(a) ....................................................................................................... 13
Section46-4a(8) .................................................................................................... 13
Section46-4a(10) .................................................................................................. 13
Section62-34(7) ..................................................................................................... 12
Section91-1 ........................................................................................................... 11
Section91-11 ......................................................................................................... 8
Section91-13.5.......................................................................................................... 5, 7
.......................................................................................... 8, 9, 10
........................................................................................................ 12 & 14
Section91-14(g)......................................................................................................... 2-3
Treatises
K. Davis,Administrative Law Text § 20.06 (3d ed. 1972).................................................... 8
-iii-
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, APPELLEES BOARD OF APPEALS OF
THE COUNTY OF HAWAII AND VALTA
VS. COOK, IN HIS CAPACITY AS
CHAIRMAN OF THE BOARD OF
BOARD OF APPEALS OF THE COUNTY APPEALS OF THE COUNTY OF
OF HAWAII,VALTA COOK, in his HAWAI`I'S ANSWERING BRIEF
capacity as Chairperson of the BOARD OF
APPEALS OF THE COUNTY OF
HAWAII, and MARLENE E. CALVERT,
Appel lees/Appellant.
APPELLEES BOARD OF APPEALS OF THE COUNTY OF HAWAII AND VALTA COOK
IN HIS CAPACITY AS CHAIRMAN OF THE BOARD OF APPEALS OF THE COUNTY OF
HAWAI`I'S ANSWERING BRIEF
Appellees Board of Appeals of the County of Hawaii and Valta Cook, in his capacity as
Chairperson of the Board of Appeals of the County of Hawaii (hereinafter"Board"), by and
through their undersigned counsel, hereby submits their Answering Brief in accordance with the
briefing schedule established by the Court.
I. STANDARD OF REVIEW
Upon secondary judicial review of an administrative decision, the standard of review is
one in which the Supreme Court applies the standards set forth in Hawaii Revised Statutes
("HRS") Section 91-14(g) to the agency's decision. HRS Section 91-14(g) sets forth the
standard of review applicable to an agency appeal and provides:
"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:
2
C,
(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 or 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."
The Hawaii Supreme Court has interpreted HRS Section 91-14(g) as follows:
In order to preserve the function of administrative agencies in
discharging their delegated duties and the function of this court
in reviewing agency determinations, 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 in its consequences."
(Citations omitted.) In re Hawai`i Electric Light Co., 60 Haw. 625,
630, 594 P.2d 612 (1979).
Therefore, in determining whether the standard of overturning the decision of the Board
has been met, the Board is entitled to a presumption of validity.
The Hawaii Supreme Court has elaborated on the standard by stating that the Findings of
Fact("FOP) of a board will be reviewed under the clearly erroneous standard. Curtis v. Board
of Appeals of the County of Hawai`i, 90 Hawaii 384, 393, 978 P.2d 822 (1999). Under this
standard, the court considers whether the finding is clearly erroneous in view of the reliable,
probative, and substantial evidence on the whole record. A reviewing court will not disturb
agency findings unless it is left with a"definite and firm conviction that a mistake has been
made." Aio v. Hamada, 66 Haw. 401, 406, 664 P.2d 727, 731 (1983).
An agency's 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. Curtis, supra. The
3
Appellate Court determined if such conclusions are right or wrong. Nakamura v. State,
98 Hawaii 263,47 P.3d 730 (2002).
A COL that presents mixed questions of fact and law is reviewed under the clearly
erroneous standard because the conclusion is dependant upon facts and the circumstances of the
particular case. Price v. Zoning Bd. of Appeals 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. Curtis, supra. The court should not substitute its own judgment for that of the agency. Id.
Because the agency's decision carries a presumption of validity,the party seeking to
reverse the agency's decision"has the heavy burden of making a convincing showing the
decision is invalid because it is unjust and unreasonable in the consequences. Hardin v. Akiba,
84 Hawaii 305, 310, 933 P.2d 1339, 1344 (1997).
II. FACTS AND BACKGROUND
The appeal concerns a denial of a variance request made by Calvert. Calvert and her
husband purchased 480 acres of property located in Ka'u in 1978. FOF 1, ROA 00495. Calvert
and her husband applied for and received water variances from the County in two phases of their
subdivision known as Kahuku Country Estates. As a result, they were able to sell the property in
three-acre lots. FOF 2, ROA 00495.
The property which is the subject of this appeal is located in the Kahuku Country Estates
and consists of two 21-acre lots into fourteen 3-acre lots. Calvert intends to sell the lots for
market value after subdivision using funds received from her retirement. FOF 8, ROA 00495
and FOF 16 ROA 00496-00497.
4
Calvert filed for a variance from the water supply requirements of Hawaii County Code
("HCC") Section 23-83 intending to supply domestic water with the use of catchment tanks.
FOF 16, ROA 00496. The application was received by the Planning Department on June 9, 2005
in the Kona office and on June 16, 2005 in the Hilo office. According to Planning Department
Rule 6-7 and HCC Section 23-18, the director was required to take action"within sixty days
after the filing of a proper application or within a longer period as may be agreed by the
applicant, deny the application or approve it subject to conditions."
Sixty days from the filing of the application was either August 8, 2005 (the filing in
Kona)or August 15, 2005 (the filing in Hilo). FOF 27, ROA 00498. The application was
marked in the Planning Department with an action date of 8/15/05. FOF 28, ROA 00498. No
request for an extension of time was made by the Planning Department. FOF 29, ROA 00498.
By letter dated September 29, 2005, the Director denied the variance application. The
letter was not mailed until October 5, 2005. The denial was based upon"inadequate rainfall."
FOF 33, ROA 00498.
Calvert filed a timely appeal from the Director's decision to the Board of Appeals which
held a contested case hearing on March 10, 2006. FOF 37, ROA 00498 and FOF 38, ROA
00499. The Board found that the water variance application was automatically approved by
virtue of the provisions of HRS Section 91-13.5 HRS. The Board adopted its Findings of Fact,
Conclusions of Law and Decision and Order on May 12, 2006. ROA 00491-00492 and ROA
00496. Appellant filed a timely appeal on June 14, 2006,from that Board order.
III. ARGUMENT
A. Appellant Christopher J.Yuen, Planning Director, County of Hawai`i's
("Appellant") Failure to Object Precludes Him from Raising Issues Now
Appellant now objects to certain FOF when he failed to object to their adoption before
5
the Board. The Board's rules required that objections be made in writing. This failure to follow
rules in making objections to the FOF means that Appellant cannot now object to them.
Appellant also for the first time on appeal argues that the automatic approval section of HRS
Chapter 91 does not apply because the process was"otherwise provided by law." This issue was
not preserved to the Board therefore it was not presented for appeal and should not be considered
by the court.
1. Failure to Follow Rules
A failure to follow the rules promulgated by the administrative agency results
in denial of consideration of issues by a circuit court. In the case of Hui Kakoo Aina
Hoopulapula v. Board of Land and Natural Resources, 112 Haw. 28, 149 P.2d 1230 (2006) a
member of the public failed to file a request for a contested case which was a requirement of the
agency before which he was appearing. The court determined that this failure was fatal to his
attempt to appeal the decision of the agency and an appeal from a contested case hearing. In this
case, Appellant's failure to follow the rules of the Board in filing objections to the Board's
findings means that this court should not consider the objections now.
Following a hearing before the Board, a proposed FOF, COL and Decision and Order
was prepared at the direction of the Board. Those FOF was served on Appellant. Appellant
made no objections to any of the findings therein. Yet in his opening brief, Appellant now
objects to FOF 26 and FOF 27 as clearly erroneous as being case of law and not FOF. Appellant
also objects to FOF 26 as erroneous by not completely quoting a matter of law cited.
The Board provides a procedure for the Board's rendering its decision and order. Under
Section 3-18 of the County of Hawaii Board of Appeals Rule of Practice and Procedure,
Issuance of Decision and Order, a proposed decision and order which shall include proposed
6
findings of fact shall be served on each party to the proceeding. The party then has fifteen (15)
days from service to submit written comments or objections to the Board. The Board is then
required to render a written decision and order which shall include separate FOF and COL. This
is consistent with the requirements of HRS Chapter 91 governing administrative proceedings.
In this case, the record shows that the proposed decision and order was served on
Appellant and that Appellant made no objections to the decision and order. By letter dated
March 14, 2006, the Board notified Appellant and Appellee Marlene E. Calvert ("Calvert")that
it would be considering the proposed FOF, COL and Decision and Order and that Appellant
would have fifteen(15) days from service to submit written comments or objections to the
Board. Record on Appeal ("ROA") 00453. Service of the proposed order was made via
facsimile and mail on April 21, 2006. ROA 00473-00474. The records show no filing of written
comments or objections as required by the Board's Rules of Practice and Procedure. The
minutes of the meeting of May 12, 2006, held by the Board to consider adoption of said FOF,
COL and Decision and Order show that"Deputy Corporation Counsel Amy Self,representing
the Planning Department said that the County had no comments or objections to the proposed
Findings of Fact, Conclusions of Law." Counsel for Calvert asked that the Board adopt the
proposed FOF, COL and Decision and Order as the County had no objections to them. The
Board then adopted the proposed FOF, COL and Decision and Order. ROA 00492.
The failure to follow the Board's Rules of Practice and Procedure requiring that written
objections be filed should preclude Appellant from making these objections now. In fairness to
the Board and parties, objections should be made known at the time the matter is under
consideration so that the Board has an opportunity to consider the issue raised before it adopts
7
the FOF. All arguments upon which Appellant now bases this appeal should have been
presented to the Board.
Therefore, the Court should not include the objections made first before it and not to the
Board, neither should it include arguments not made before the Board.
2. Failure to Raise Issue
The transcript of the contested case hearing before the Board is found at ROA
00407-00452. The argument of counsel and questioning by the Board is found at ROA 00439-
00451. Argument of counsel for Appellant is found at ROA 00442-00443. In addition, a
memorandum of law was filed by Appellant before the Board. The argument of Appellant was
that the provisions of HRS Section 91-13.5 did not apply because a subdivision was not part of
zoning under HRS Section 46-4 and that a request for a variance was not a permit required by
law within the context of the statute. Appellant never raised the argument now offered on appeal
that the statute does not apply because a variance is"otherwise provided by law." Therefore,
this argument should not be considered by the court now.
It has been held in Hawaii that a party before an administrative agency needs to raise an
issue or objection before that agency in order for the court appeal to consider the matter.
Ariyoshi v. Hawai`i Public Employment Relations Board, 5 Haw.App. 533, 545 704 P.2d 917
(1985). According to the court, "[t]he concept underlying the rule is that a reviewing court
usurps that agency's function when it sets aside the administrative determination upon a ground
not theretofore presented to the agency and deprives the agency of an opportunity to consider the
matter, make its ruling and state the reasons for its action. That is substantially the law whether
or not it is embodied in a statutory provision. K. Davis,Administrative Law Text §20.06
(3d ed. 1972). This principle, reflecting the policy that a party must exhaust his administrative
8
remedies before seeking judicial review, is even more compelling where, as in the instant case,
the appellant was given an opportunity to objection even before the final order was entered. We
read HRS Section 91-11 to be in furtherance of the rule by specifically granting a party adversely
affected by a proposed decision the right to file exception and to make argument to the agency."
See also Waikiki Resort Hotel, Inc. v City and County of Honolulu, 63 Haw 222, 624 P.2d 1253
(1981).
B. County Provisions Cannot Contradict Statutory Provisions
Rule 6 of the Rules of Practice and Procedure of the Planning Department governs
variance procedures before the Director. Section 6-7 of that rule provides that:
(a) Within sixty days after the filing of a proper application or
within a longer period as may be agreed to by the petitioner,
the Director shall deny the application or approve it subject to
conditions. The conditions imposed by the Director shall bear
a reasonable relationship to the variance granted.
(b) All actions shall contain a statement of the factual findings
supporting the decision.
(c) If the Director fails to act within the prescribed period, the
application shall be considered as having been denied.
The section of the rule that provides for an automatic denial is in direct contradiction to
the statutory mandate that if no action is taken within the prescribed time period that the
application is to be deemed approved.
HRS Section 91-13.5 provides:
§91-13.5 Maximum time period for business or development-related
permits, licenses, or approvals; automatic approval; extensions. (a) 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; provided that the application is not subject to state administered permit
programs delegated, authorized, or approved under federal law.
(b) All such issuing agencies shall clearly articulate informational
requirements for applications and review applications for completeness in a
timely manner.
(c) All such issuing agencies shall take action to grant or deny any
application for a business or development-related permit, license, or approval
9
within the established maximum period of time, or the application shall be
deemed approved; provided that a delay in granting or denying an application
caused by the lack of quorum at a regular meeting of the issuing agency shall not
result in approval under this subsection; provided further that any subsequent lack
of quorum at a regular meeting of the issuing agency that delays the same matter
shall not give cause for further extension, unless an extension is agreed to by all
parties.
(d) Notwithstanding any other law to the contrary, any agency that
reviews and comments upon an application for a business or development-related
permit, license, or approval for a housing project under section 201 G-118 shall
respond within forty-five days of receipt of the application, or the application
shall be deemed acceptable as submitted to the agency.
(e) The maximum period of time established pursuant to this section shall
be extended in the event of a national disaster, state emergency, or union strike,
which would prevent the applicant, the agency, or the department from fulfilling
application or review requirements.
(f) This section shall not apply to:
(1) Any proceedings of the public utilities commission; or
(2) Any county or county agency that is exempted by county
ordinance from this section.
(g) For purposes of this section, "application for a business or
development-related permit, license, or approval" means any state or
county application, petition, permit, license, certificate, or any other
form of a request for approval required by law to be obtained prior to
the formation, operation, or expansion of a commercial or industrial
enterprise, or for any permit, license, certificate, or any form of
approval required under sections 46-4,46-4.2, 46-4.5, 46-5, and
chapters 183C, 205, 205A, 340A, 340B, 340E;340F, 342B, 342C,
342D, 342E, 342F, 342G, 342H, 342I, 342J, 342L, and 342P.
It should be noted that the statute allows the issuing agency to set its own time limit by
which it must take action. This approach allows each agency to evaluate and decide a reasonable
time period in which it can take action on the applications before it. In this case, the Planning
Department has established 60 days as the time limit for variance applications and it failed to act
upon Calvert's application on time.
The dates when the application was made and the date when the action was taken are set
forth in the record. It is undisputed that the action taken was late under the Planning
Department's own rules. Counsel for Appellant at the Board's hearing on the appeal admitted to
10
the Board that the action taken was late. ROA 00442. Therefore, the only question before the
court is the effect of the lateness.
Appellant argues that HRS Section 91-13.5 does not apply because it provides that
"unless otherwise provided','.means that the Subdivision Code and Planning Department Rule
provision which provides for automatic denial would prevail over the statutory provision. The
County Code needs to.comply with the general laws of the state. Under HRS Section 46-1.5
General powers and limitations of the counties the county is granted certain powers however
they are"[s]ubject to general law." In this case the state has enacted a general law establishing a
requirement for agencies to act within a specific timeframe.
The law should not be read in a way to render it ineffectual to the County. Accepting the
argument provided by Appellant would mean that the County could exempt itself from the
operation of this law by making code provisions which contradict the statute. It is clear from the
language of the statute that the legislature intended the law to apply to county issued permits. In
defining the permits to which the law applies,the legislature includes "any state or county
applications." The only specific exemption for counties is "state administered permit programs,
delegated, authorized or approved under federal law." Legislative enactment should be
interpreted in such a manner as to give them effect. Wright v. Home Depot U.S.A. Inc.,
111 Hawaii 401, 142 P.3d 265 (2006).
The Planning Department is an executive agency bound by the provisions of HRS
Section 91-1 for the purposes of the chapter defines an agency as "each state or county board,
commission, department or office authorized by law to make rules or to adjudicate cases, except
those in the legislature or judicial branches." The Planning Department did in fact adopt rules
relating to subdivision applications and time limits for actions.
11
According to the legislative history of HRS Section 91-13.5, the law was enacted in an
attempt to correct a reported problem of delays in obtaining business and development related
approvals. The Governor's Economic Revitalization Task Force studied the issue. In enacting
Act 164, S.B. No. 2204 (1998) the legislature stated:
The purpose of this Act is to require the establishment of maximum time
periods for the review and approval of all business and development related
permit approvals and licenses. Issuing agencies would be required to review
application for completeness in a timely manner and then to act upon the
application within an established time frame, or application approval would be
automatic.
Having established a time limit for action on variance applications, the Planning
I
Department must perform under that time limit or the consequence under state law is automatic
approval. The obligation of the court in interpreting a statute is to ascertain and give effect to the
PP g
intention of the legislature in enacting the law, United Public Workers, AFSCME, Local 646,
AFL-CIO v. Hanneman, 106 Hawaii 359, 105 P.2d 236 (2006). In this case,the legislative
intent is clear to make the timing permitted process more certain. Allowing the County to
exempt itself from the requirements of the law does not give effect to the legislative intent.
Appellant argues that this is not the case because the County provides for automatic
denial. However, in the case of a conflict between the state law and a county law, the state law
should prevail.
C. Subdivision is a Part of the Zoning Authority Generated to the County by
HRS Section 46-4
Appellant argues that the variance application is not a permit under HRS Section 46-4
which grants the County its zoning authority.
The County was originally granted authority to enact subdivision laws by virtue of HRS
Section 62-34(7). Chapter 62 was repealed in its entirety and replaced by HRS Chapter 46
12
which sets forth a general grant of powers to the counties. HRS Chapter 46 does not contain a
specific authorization relating to subdivisions. Appellant now argues that HRS Section 46-4 is
not the source of authority for subdivisions, however,the broad grant of authority under HRS
Section 46-4 does in fact cover subdivisions which is a process relating to zoning and
implements zoning authority.
According to HRS Section 46-4, zoning is to be accomplished within a framework of a
long-range comprehensive general plan prepared or being prepared to guide the overall future
development of the County. Both HCC Chapter 23 (Subdivisions) and Chapter 25 (Zoning)
provides that "[t]his chapter shall be applied and administered within the framework of the
County general plan which is a long-range, comprehensive, general plan prepared or being
prepared to guide the overall future development of the County." HCC
Section 23-6 (Subdivision) and HCC Section 25-1-2(a) (Zoning). This indicates the
interrelatedness between zoning and subdivision such that they should not be considered
separate for the purpose of coverage by HRS Section 46-4.
In addition, HRS Section 464(a)provides that the zoning power granted herein shall be
exercised by ordinance which may relate to building setback lines and future street lines
(HRS Section 46-4a(8)) and the percentage of a lot that may be occupied, size of yards, courts,
and other open spaces (HRS Section 46-4a(10)).
The Subdivision Code contains provisions which relate to these issues identified in the
statute as zoning matters. HCC Section 23-24 relates to special building setback lines, HCC
Section 23-32 describes lot size, shape and setback line, and HCC Section 23-33 relating to
minimum lot sizes. While the HCC may contain different chapters relating to zoning and
subdivision, they are related and are based on the same state grant of authority.
13
IV. CALVERT'S APPLICATION WAS FOR A COMMERCIAL ENTERPRISE
Appellant disputes that the variance required for subdivision approval is part of a County
application required by law to be obtained prior to the operation of a commercial enterprise.
FIRS Section 91-13.5 defines "application for a business or development-related permit, license
or approval" as follows:
"...any state or county application, petition, permit, license, certificate, or any
other form of a request for approval required by law to be obtained prior to the
formation, operation, or expansion of a commercial or industrial enterprise, or for
any permit, license, certificate, or any form of approval required under sections .
46-4,46-4.2, 46-4.5, 46-5, and chapters 183C, 205, 205A, 340A, 340B, 340E,
340F, 342B, 342C, 342D, 342E, 342F, 342G, 342H, 342I, 342J, 342L, and 342P."
The testimony presented to the Board on behalf of Calvert was that the property which
was the subject of the subdivision and variance application was purchased over 20 years ago. It
was intended to be subdivided and to provide an income for the purchasers. The subdivision,
Kahuku Country Estates Subdivision, was begun by Calvert. Calvert has applied for and
received variances for subdivision of four 21-acre parcels into 8 three-acre parcels. ROA 00003.
These were granted in 1989 and 1981. ROA 00011-00025, 00030-00043. The current
application was for the subdivision of the same 21-acre lots unto 14 3-acre lots. It is the Board's
findings that under these circumstances of the enterprise being one for profit, that it is a
commercial enterprise. ROA 00449. The Board's determination on this is to be accorded
deference under the case law in Hawaii.
14
V. CONCLUSION
Therefore, based upon the points and authorities set forth herein, Appellees request that
the Court uphold the decision of the Board.
Dated: Hilo, Hawaii,November 22, 2006.
BOARD OF APPEALS OF THE COUNTY OF
HAWAII AND VALTA COOK, IN HIS CAPACITY
AS CHAIRPERSON OF THE BOARD OF APPEALS
OF THE COUNTY OF HAWAII, Appellees
By Ua4KtQ-� .
PATRICIA K. O'TOOLE
Deputy Corporation Counsel
Their Attorney
15
C
STATEMENT OF RELATED CASES
The Appellees Board of Appeals of the County of Hawaii and Valta Cook in his capacity
as Chairman of the Board of Appeals of the County of Hawai'i are unaware of any related
cases presently before the circuit court or on appeal.
Dated: Hilo, Hawai'i, November 22, 2006.
BOARD OF APPEALS OF THE COUNTY OF
HAWAII AND VALTA COOK, IN HIS CAPACITY
AS CHAIRPERSON OF THE BOARD OF APPEALS
OF THE COUNTY OF HAWAII, Appellees
BY (X� YtQ.Q�-K,
PATRICIA K. O'TOOLE
Deputy Corporation Counsel
Their Attorney
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAII
CHRISTOPHER J. YUEN, PLANNING CIVIL NO. 06-1-0184
DIRECTOR, COUNTY OF HAWAII,
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
I HEREBY CERTIFY that on November 22, 2006, a copy of the foregoing document
was served upon the following in the manner indicated below:
Hand Delivery Mail Fax
BOBBY JEAN LEITHEAD-TODD N
AMY G. SELF
Deputies Corporation Counsel
Office of the Corporation Counsel
101 Aupuni Street, Suite 325
Hilo, Hawaii 96720
Attorneys for Appellant
CHRISTOPHER J. YUEN, PLANNING DIRECTOR,
COUNTY OF HAWAII
ROY A. VITOUSEK, III, ESQ. N
JOCELYN B. GAROVOY, ESQ.
Cades Schutte
75-170 Hualalai Road, Suite B-303
Kailua-Kona, Hawaii 96740
Attorneys for Appellee MARLENE CALVERT
PATRICIA K. O'TOOLE
Deputy Corporation Counsel
County of Hawaii