Hoopili rendering
Hoopili rendering

FORWARD BY ROBERT THOMAS – Earlier this year, the Hawaii Land Use Commission granted district boundary amendments (Under Hawaii’s statewide zoning, a “boundary amendment” is a reclassification of land, similar to a rezoning) effecting the reclassification of land from the “agricultural” district to the “urban” district for Castle & Cooke Homes’ proposed Koa Ridge development, and for Horton-Schuler Homes’ proposed Ho`opili development, both sited on agricultural land on Oahu. The Hawaii chapter of the Sierra Club filed agency appeals in both cases to the Hawaii Circuit Court of the First Circuit (1-CC-12-1-001999 and 1-CC-12-1-002000).

We aren’t commenting on these cases because we’ve got a stake in the game (our partner Greg Kugle is lead counsel for one of the parties), but our old friend Paul Schwind has agreed to pinch hit. He recently attended the first day in court, and his report follows. Since we’re involved in this case, our usual disclaimer is probably more applicable than usual: these aren’t our words, our thoughts, or those of our clients.

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Status of Sierra Club Hawaii Chapter’s Agency Appeal of Land Use Commission District Boundary Amendment for Horton-Schuler Homes’ Ho`opili Development

by Paul J. Schwind*

In keeping with a long tradition in Hawaii that land use cases are litigated in court on procedural rather than substantive grounds, the opening skirmish in Sierra Club, Hawaii Chapter et al. v. D. R. Horton-Schuler Homes LLC et al. (1CC-12-1-002000; Haw. 1st Cir. 2012) was fought over whether one of the parties’ appeal in the case should be disallowed.  Sierra Club Hawaii Chapter had been granted intervenor status during the Land Use Commission’s (LUC) quasi-judicial hearings on developer Horton-Schuler Homes’ petition for district boundary amendment from agricultural to urban.

On July 20, 2012, Sierra Club filed an appeal of the LUC’s decision and order granting the land use reclassification, within the 30 days prescribed in the Administrative Procedures Act for requesting judicial review of a contested case administrative hearing (Haw. Rev. Stat. § 91-14). Another intervenor, Friends of Makakilo, filed a “cross-appeal” on August 2, 2012, beyond the statutory deadline for an agency appeal. Horton-Schuler and the LUC moved to dismiss Makakilo’s cross-appeal; the City and County of Honolulu Department of Planning and Permitting (DPP) and the State Office of Planning (OP), respectively, joined in these motions to dismiss. On October 9, Judge Rhonda Nishimura heard argument on the motions and opposition thereto and issued her ruling orally; the written Order drafted by counsel for the lead prevailing party (Horton-Schuler) was filed on November 9.

Judge Nishimura began by setting the context for the parties as the interplay among Hawaii Rules of Civil Procedure (HRCP) Rules 72 and 81 (re appeals to a circuit court), Hawaii Rules of Appellate Procedure (HRAP) Rule 4.1 (re cross-appeals), and pertinent case law. She asked counsel for the parties to address (1) the time limits for cross-appeals, and (2) what is an “aggrieved” party that can claim standing for an appeal.

Sarah Hirakami opened for the LUC by arguing that cross-appeals are not allowed under HRS §91-14. Although Makakilo intervened at the agency level and is an automatic appellee, HRAP Rule 1(b) (re rules not to affect jurisdiction) does not extend the jurisdiction of the circuit court to entertain a cross-appeal in cases such as this. Jurisidiction here is governed by the scope of intervention allowed to parties in an LUC proceeding under the Land Use Law (HRS §205-4(e)) and the right of appeal under HRS §91-14 from the outcome of a proceeding (HRS §205-4(i)).

Gregory Kugle followed for Horton-Schuler by arguing that notwithstanding HRAP Rule 2.1 (re appliability of other court rules in the appellate courts), HRAP itself applies only in the appellate courts (i.e., not in the circuit courts acting on an agency appeal); therefore, cross-appeals are not allowed in the circuit courts. Further, an aggrieved party during an LUC proceeding is limited to the 30-day right of appeal set forth under HRS §205-4(i) and HRS §91-14. Jordan v. Hamada, 643 P.2d 73, 75-76 (Haw. 1982) is directly on point (appellant must be a “person aggrieved” by a decision and order in a contested case, and must have participated in the agency hearing in that case). In the Schuler-Homes LUC docket, Friends of Makakilo was allowed to intervene on five specific issues as a group representing neighborhood interests. Their cross-appeal goes far beyond that into areas in which they have no interest as a “person aggrieved.” Judge Nishimura added that for standing to lie, an aggrieved party must be specifically, personally, and adversely affected by the agency decision from which appeal is taken. See, e.g., In re Hawaiian Electric Co., 535 P.2d 1102, 1105 (Haw. 1975).

Linda Paul responded for Friends of Makakilo that cross-appeals are not appeals. Just because HRCP Rule 72 does not mention cross-appeals does not mean they are not allowed. In arguing that cross-appeal is a constitutional right of due process under the separation of powers doctrine, Ms. Paul cited to Alakai na Keiki, Inc. v. Matayoshi, 277 P.3d 988, 1008 (Haw. 2012) (the power to adjudicate disputes is constitutionally conferred upon the courts; accordingly, judicial review is available to resolve a procurement dispute between a vendor and the Department of Education, even where certain “exclusive” judicial powers have been statutorily delegated to the DOE). [Note:  this decision makes no mention of cross-appeals.] She further cited to E & J Lounge Operating Co., Inc. v. Liquor Comm’n of City and County of Honolulu, 189 P.3d 432, 439 and n.14 (Haw. 2008) (intervenors filed a notice of cross-appeal to the Intermediate Court of Appeals following the Liquor Commission’s notice of appeal from the decision and order of the circuit court; pursuant to HRAP Rule 4.1, every other party’s appeal after the first is designated as a cross-appeal).  [Note:  this decision refers to cross-appeals at the appellate level, not in a circuit court.]

At this point, Judge Nishimura asked, what is the legal basis for cross-appeal under HRS Chapter 91 and the HRCP? Without answering that question, Ms. Paul responded that Makakilo is a “person aggrieved” under the five issues for which they were allowed to intervene; for example, they provided testimony to the LUC as to the personal impact of increased traffic from the development.

In rejoinder, Mr. Kugle referred to Ka Pa`akai o Ka`aina v. Land Use Comm’n, 7 P.3d 1068, 1076 (Haw. 2000), in which several parties each filed timely agency appeals which were then subsequently consolidated by the circuit court; there were no “cross-appeals” at the circuit court level. This court need not reach the “person aggrieved” question, although traffic impact is not personal or specific. Bottom line, Makakilo did not file a timely appeal within the mandatory 30 days.

Judge Nishimura then announced her ruling as soon as the parties concluded their arguments. She granted the motions to dismiss Makakilo’s cross-appeal, reasoning that Makakilo, as an intervenor, had the right to file a timely agency appeal under Chapter 91 but did not do so. Having thus dismissed the cross-appeal, she indicated that the question whether Makakilo had been specifically, personally, and adversely affected (by the LUC decision and order approving Horton-Schuler’s Ho`opili development) did not fall within the ambit of her ruling.

The take-away from this proceeding? If you fail to timely file a pleading in court, it is best not to rely on inapposite case law and avoid answering the judge’s direct question while attempting to justify your lapse of due diligence!

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*voluntarily inactive member of the Hawaii Bar

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Robert H. Thomas is one of the preeminent land use lawyers in Hawaii. He specializes in land use issues including regulatory takings, eminent domain, water rights, and voting rights cases. He has tried cases and appeals in Hawaii, California, and the federal courts. Robert received his LLM, with honors, from Columbia Law School where he was a Harlan Fiske Stone Scholar, and his JD from the University of Hawaii School of Law where he served as editor of the Law Review. Robert taught law at the University of Santa Clara School of Law, and was an exam grader and screener for the California Committee of Bar Examiners. He currently serves as the Chair of the Condemnation Law Committee of the American Bar Association’s Section on State & Local Government Law. He is the Hawaii member of Owners’ Counsel of America, a national network of the most experienced eminent domain and property rights lawyers. Membership in OCA is by invitation only, and is limited to a single attorney from each state. Robert is also the Managing Attorney for the Pacific Legal Foundation Hawaii Center, a non-profit legal foundation dedicated to protecting property rights and individual liberties. Reach him at rht@hawaiilawyer.com He is also a frequent speaker on land use and eminent domain issues in Hawaii and nationwide. For a list of upcoming events and speaking engagements.