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Home My WebLink About2005-05-06 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. slit\ainaloaTc answering briefl5-3-05\IMTjen.doe 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