Over the last decade, Hawai`i County has approved Community Development Plans (CDPs) for most of the districts making up the Big Island. The Kona CDP was one of the first, adopted by the County Council in 2008, and resulted from years of community engagement.
But are the CDPs legally binding on the county, or do they merely provide guidance that county agencies may consider – but may also ignore – in making administrative decisions?
That question was at the heart of an appeal of the 2011 decision by then-Planning Director B.J. Leithead-Todd to approve an application to subdivide about 72 acres of land in South Kona adjoining property owned by Richard and Patricia Missler. The Misslers have argued that the Kona CDP prohibits such development.
The land, in the ahupua`a of Waikaku`u, is steeply sloped, climbing about 800 feet from the Mamalahoa Highway, where the landscape is characterized by scattered shrubby vegetation, to old-growth `ohi`a forest in the mauka portion. In order to avoid having to put in water lines, the subdivision application proposed clustering 13 two-acre agricultural lots in the higher-elevation area, with a remainder parcel of 41 acres in the lower, drier portion. In this way, residences built on the two-acre parcels could be permitted using catchment systems.
As Leithead-Todd later acknowledged, her staff made several errors in processing the subdivision application. Time extension requests by the applicant were not filed or were filed late, and her staff erroneously described vegetation on the property as consisting of “keawe, koa haole, and a variety of grass, shrubs and weeds.”
When the Misslers’ appeal was heard by the county Board of Appeals, Leithead-Todd said that, despite the errors, she would have approved the application anyway, because it was “consistent with provisions in the County Code on [Planned Unit Developments] as well as consistent with the General Plan, and the overall density was consistent with the zoning of five acres.”
The Board of Appeals upheld Leithead-Todd’s decision, and the Misslers then sought relief in the courts.
There, in the courtroom of now-retired Judge Ronald Ibarra, they prevailed. Ibarra determined that contrary to the view of the Board of Appeals and the Planning Department, the county’s CDPs had the full force and effect of law.
Both the Misslers and the county appealed Ibarra’s decision to the Intermediate Court of Appeals. The county argued that the Community Development Plans were advisory and that the Planning Department had ultimately to look only to the authority of the county’s General Plan in determining whether to approve applications. The Misslers felt that Ibarra’s decision concerning attorney’s fees – he allowed them for the appeal to the court, but denied them for the administrative appeal – was too narrow.
The ICA published its decision on June 26. In strong words, the appellate court affirmed Ibarra’s decision on the force and effect of the CDPs. It quoted provisions in the Kona CDP that, it said, “provide a detailed scheme for implementing the General Plan.”
“Further, because the Kona CDP was adopted pursuant to the General Plan and Hawai`i County Code … adopts and incorporates by reference the Kona CDP as an ordinance, the provisions indicated in the Kona CDP to be legally binding on County agencies hold the force of law.”
Among those provisions is the requirement that, when it comes to “sensitive resources,” the Planning Department is to inventory, among other things, “predominantly native ecosystems, which may not be considered endangered but are valued because of their nearly pristine condition.”
Another key element of the ICA decision concerned the Misslers’ contention that the county did not properly consider its public trust obligations in approving the subdivision application. Here again the ICA upheld Ibarra’s finding that recent rulings of the state Supreme Court bind the counties to weighing the impact of their decisions on public trust resources, especially that of water.
“The county contends that it fulfilled its duty under the public trust doctrine when it reviewed the … permit in accordance with the criteria set forth in the Hawai`i County Code and when it sought review and comment of other agencies as to the effect of the permit on public natural resources. However, the county has duties under the public trust doctrine independent of the [Planned Unit Development] permit requirements found in the Hawai`i County Code,” the ICA wrote, referring to the Supreme Court’s decision in the Kaua`i Springs case. Under Kaua`i Springs, the ICA continued, “the county was ‘duty-bound to place the burden on the applicant to justify the proposed water use in light of the trust purposes.’”
Although the county lost on the merits, it will not be filing any appeal. It prevailed, however, on the issue of attorney fees.
The Misslers had asked for attorney fees to be awarded for their involvement at all levels of their appeal: at the departmental level, at the Board of Appeals, and in the courts. Ibarra had awarded their fees only against the Planning Department at the Circuit Court level, and not at the proceeding before the Board of Appeals, noting that at that level, the Misslers did not prevail.
Here, the ICA looked at the Misslers’ claim in light of a “three-prong” test to see if it meets the “private attorney general” test. If any one of the three prongs is not met, then the claim fails.
In this case, the ICA determined that it was unclear if the Misslers met the first prong (relating to “the societal importance of the public policy vindicated by the litigation”). It went on to find that the second prong — determining the need for private enforcement and the burden it placed on the plaintiff — was not met. In this, it agreed with the county, which argued that two Supreme Court decisions (Waiahole II and Maui Tomorrow) concluded that the private attorney general doctrine does not apply to cases arising out of contested case hearings. “Because the second prong of the private attorney general doctrine is not met, we need not address the third prong,” the ICA wrote. (The third prong weighs the number of people who stand to benefit from the decision.)
Michael Matsukawa, the attorney representing the Misslers, was asked if his clients intended to appeal.
He replied that he has already prepared an appeal to the state Supreme Court but that can’t be filed until the ICA clerk files the judgment on appeal.
“The ICA was not willing to ‘make new law’” on the matter of attorney fees, he said, deferring instead to the Supreme Court on this issue. Matsukawa argued, though, that there are already cases supporting his clients’ position.
“In my draft petition to the Supreme Court, I note that the facts of the Missler case align with the facts in the cases in which the court allowed attorney fees (being the SuperFerry, Honolulu Rail and Kawaihao Church cases),” he went on to say. “In each case, a planning official issued a permit or approval to allow development to proceed, circumventing the law in the process. The complaining parties then filed direct actions in the circuit court (declaratory judgment actions) to ‘appeal’ since that is the only remedy available in such instances.
“In the Missler case, the only remedy available to them by law was to go through the agency appeal process and then the circuit court at the end of the evidentiary proceedings that had to be held first before the board of appeals.
“My point is the form of the remedy is not important (direct civil action versus agency appeal). If a plaintiff succeeds in correcting the improper action of government officials, actions that were made in denial of their duty under the law, and the government officials then tried to block the plaintiff from enforcing the law, fees should be awarded to the plaintiff, especially when the law in question is a law of great importance to the community and to the entire state.
“The successful plaintiffs in the SuperFerry, Honolulu Rail, and Kawaihao Church cases carried the ball for the public interest, proving that government officials had knowingly avoided the law and then blocked the plaintiff, but they eventually lost before a court. Why should the Missler case be any different simply because, by law, they were forced to bring their challenge through the agency appeal process that ultimately ended up with judicial review?”
— Patricia Tummons
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