Beruflich Dokumente
Kultur Dokumente
Electronically Filed
Supreme Court
SCAP-17-0000823
13-DEC-2019
08:53 AM
---o0o---
vs.
and
PACREP 2,
Intervenor-Appellee.
SCAP-17-0000823
Permit.
Board of Appeals (ZBA), and argued that the Director abused his
1
The now completed condo-hotel is managed by The Ritz-Carlton Hotel
Company, L.L.C., and is known as “The Ritz-Carlton Residences, Waikiki Beach.”
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Local 5’s appeal of the 2139 Kûhiô Permit, and (2) the Director’s
did not receive notice that the Director had removed these
decision.
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of discretion.
I. BACKGROUND
Zoning Bd. of Appeals, 136 Hawai#i 95, 98, 358 P.3d 664, 667
§ 21-2.40-2 (1999).
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WSD permit. Therein, Local 5 contended that PACREP had not taken
premature.2
2
Local 5 had previously requested that it be “made a consulted
party in the development of [the] Environmental Assessment,” and raised
concerns regarding PACREP’s draft environmental assessment. The DPP was aware
that Local 5 had challenged the draft environmental assessment.
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project to ensure compliance with the LUO should any of the hotel
explained,
For purposes of establishing off-street parking (and
park dedication) requirements, a declaration of restrictive
covenant (“Declaration”) indicating the number of units to
be placed in a hotel pool should be required as a condition
of approval, and should be filed prior to the issuance of
any building permits.[ 3] Subsequent to the construction of
the Project, if any hotel unit is converted to a residential
unit, then one parking space must be provided for each
residential unit. While this is an LUO requirement, it
should also be enforced as a condition of approval through
the Declaration.
G, which provided:
C. Prior to the issuance of any building permits:
. . . .
3
The Director may require fee owners to record restrictive
covenants on the title to a property “[t]o record special conditions attached
to a permit, variance, or zone change.” DPP Rules § 8-1(a)(1) (1993).
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space for every dwelling unit. See ROH Ch. 21 Table 21-6.3
(2003).
4
A “hotel” is defined by the LUO as
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requirements.
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. . . .
to PACREP approving the 2121 Kûhiô Permit, Local 5 was aware that
the Director had approved the 2121 Kûhiô Permit with Conditions C
5
ROH § 21-2.20(k) (2010) describes the administrative procedures
regarding modifications to approved permits. It provides:
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until the ZBA held a contested case hearing on its appeal of the
6
ROH § 21-1.40 (1999) provides: “Appeals from the actions of the
director in the administration of the provisions of the LUO shall be to the
zoning board of appeals as provided by Section 6-1516 of the charter. Appeals
shall be filed within 30 days of the mailing of service of the director’s
decision.”
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1.7
7
HRS § 632-1 (1993) is the declaratory judgment provision, which
may be granted in civil cases “where an actual controversy exists between
contending parties . . . and the court is satisfied also that a declaratory
judgment will serve to terminate the uncertainty or controversy giving rise to
the proceeding.”
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The Director also required that in the event that any portion of
stalls or park dedication that had been in the 2121 Kûhiô Permit,
one parking space per residential unit, and no condition that the
stated:
I. Upon issuance of a COO [Certificate of Occupancy], the
Project shall institute and make available:
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the 2139 Kûhiô Permit, and thus received notice that the Director
narrow in scope:
Local 5 objects to the lack of conditions reasonably
necessary to insure that the project being approved as a
hotel is in fact used as a hotel and that the individual
buyers of each unit do not convert to a multi-family
dwelling without satisfying the more stringent LUO multi-
family requirements, such as 1:1 parking and park
dedication. The Director imposed such conditions on the
sister tower located at 2121 Kuhio - including the
requirement that units be placed into the hotel rental pool
and any units removed from hotel use demonstrate compliance
with LUO requirements for parking and park dedication - and
the failure to impose similar conditions is arbitrary,
capricious and an abuse of discretion.
(Emphasis in original.)
that (1) 2139 Condition I was vague and ambiguous; and (2) there
condition in the 2121 Kûhiô Permit which imposed parking and park
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Permit.”
issue the 2139 Kûhiô Permit without the same condition that had
the ZBA “[a]dd Condition C from the 2121 Kuhio Permit as a new
Because the Director removed the conditions from the first permit
before the second permit was approved on July 14, 2014, the DPP
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when the Director had considered the WSD permit for the 2121
ensure that the buyers of the individual hotel units within this
building did not use the hotel units for residential use[.]”
Local 5 continued:
[W]hen the director considers different projects, different
facts and different situations, he can apply different
conditions. That’s absolutely true. But that’s not the
case in this case. As I said, it’s the same project, two
phases of the same project, same property, shared amenities,
shared facilities and shared ownership. The very definition
of arbitrary and capricious is to be faced with the exact
same situation and do something totally different.
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a. Sadoski’s Testimony
testify. Sadoski stated that the 2121 Kûhiô project and the 2139
Kûhiô project were essentially the same project, and cited PACREP
removing conditions from the 2121 Kûhiô Permit was never sent to
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Atta), the Director who modified the 2121 Kûhiô Permit and
Kûhiô Permit because at that time, the DPP was unsure whether the
stated that PACREP verbally told him that the project “would be a
8
The “SEC question” appears to have been a concern by PACREP that
the project’s condo-hotel units might potentially create a securities issue.
Neither the DPP nor PACREP 2 specifically explained the problem in briefing on
appeal.
The ZBA concluded that the Director did not make an erroneous
finding about a potential securities problem. However, on appeal, the circuit
court determined that there was insufficient evidence to substantiate the
potential for a securities problem and struck the ZBA’s conclusion on the
issue from the ZBA’s order, and neither party has appealed this decision.
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SEC issue.
staff look into the SEC issue, “and the staff concluded that
covenant conditions.
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conclusions of law:
18. The primary and predominant use of the project
described in the 2139 Permit and the 2139 Application is
“hotel” as defined by the LUO.
. . . .
. . . .
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. . . .
9
The Honorable Rhonda A. Nishimura presided.
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rights.
10
See supra note 5.
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Permit, PACREP 2 and the DPP first explained that the circuit
properly before the ZBA, PACREP 2 and the DPP both argued that
the DPP contended that Local 5’s due process rights were not
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Fund v. City and Cty. of Honolulu, 70 Haw. 361, 377, 773 P.2d
At the hearing, the circuit court asked DPP how Local 5 could
G from the 2121 Kûhiô Permit. DPP responded that under the ICA’s
Hawai#i 164, 296 P.3d 1072 (App. 2013), Local 5 was not required
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that Local 5 “had notice for quite some time now, and they
The DPP further stated that the Director had not relied
the DPP also conceded that it could be assumed that the Director
was aware that the conditions had been removed from the 2121
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Permit and its own jurisdiction over the 2121 Kûhiô Permit, the
11
ROH § 21-2.20(k) provides the LUO procedures for modifying an
approved permit. See supra note 5.
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Kuhio Permit.”
A. Secondary Appeals
Accordingly,
[c]onclusions of law are reviewed de novo, pursuant to
subsections (1), (2) and (4); questions regarding procedural
defects are reviewable under subsection (3); findings of
fact (FOF) are reviewable under the clearly erroneous
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Kolio v. Hawai#i Pub. Hous. Auth., 135 Hawai#i 267, 271, 349 P.3d
374, 378 (2015) (citing Paul’s Elec. Serv., Inc. v. Befitel, 104
B. Statutory Interpretation
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the Court, 84 Hawai#i 138, 148, 931 P.2d 580, 590 (1997)).
The general principles of construction which apply to
statutes also apply to administrative rules. As in
statutory construction, courts look first at an
administrative rule’s language. If an administrative rule’s
language is unambiguous, and its literal application is
neither inconsistent with the policies of the statute the
rule implements nor produces an absurd or unjust result,
courts enforce the rule’s plain meaning.
Ins. Co. v. Ponce, 105 Hawai#i 445, 454, 99 P.3d 96, 105 (2004)).
III. DISCUSSION
Permit; (2) the circuit court erred when it failed to decide that
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the Director’s July 14, 2014 approval of the 2139 Kûhiô Permit
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v. Bd. of Trustees of the Emp. Ret. Sys., 65 Haw. 251, 255, 649
that the Director had removed two important conditions from the
2121 Kûhiô Permit. This court has consistently noted that the
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conditions. The DPP notes that DPP Rules § 6.2 provides that
was not the applicant and never formally requested notice of the
Director’s actions on the 2121 Kûhiô Permit, the DPP argues that
Local 5 cannot claim that the DPP violated its due process
rights. The DPP further argues that CARD, 114 Hawai#i 184, 159
P.3d 143, forecloses Local 5’s due process argument because Local
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of the decision under DPP Rules § 6.2. Id. at 187, 159 P.3d at
the conditional use permit, and the ZBA dismissed the appeal.
review of decisions that have come before the board and been
the 2121 Kûhiô Permit. While Local 5 was not formally notified
by the DPP that the Director had approved the 2121 Kûhiô Permit,
Local 5 was aware that the 2121 Kûhiô Permit had been approved
itself that the project was approved with conditions, Local 5 had
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6.2.
The 2121 Kûhiô Permit was not modified using the normal
Kûhiô Permit. Cf. CARD, 114 Hawai#i at 187, 159 P.3d at 146
(noting that the applicant had informed the public of its plans
the permit was approved with those conditions, and the permitting
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12
Local 5 argues that the ZBA lacks jurisdiction to address any
“modification” of a permit, because it is not an “action of the Director”
under ZBA Rules § 21-1. Revised Charter of the City and County of Honolulu
(RCCCH) § 6-1516, however, gives broad powers to the ZBA to “hear and
determine appeals from the actions of the director in the administration of
the zoning ordinances[.]” Modification of permits are expressly provided in
the LUO as an “administrative procedure.” See ROH § 21-2.20; cf. Hoku Lele v.
City and Cty. of Honolulu, 129 Hawai#i at 167-68, 296 P.3d at 1075-76
(concluding that a zoning verification is not an “action of the Director”
because nothing in the LUO addresses it).
Accordingly, in the ordinary case, a modification of a permit made
under ROH § 21-2.20(k) is an “action of the Director” as contemplated by RCCCH
§ 6-1516 and ROH § 21-1.40, and can be appealed to the ZBA. To the extent
that ZBA Rules § 21-1 states otherwise, it contradicts the broader language
and purpose of RCCCH § 6-1516. See Colony Surf. Ltd. v. Dir. of Dep’t of
Planning & Permitting, 116 Hawai#i 510, 515, 174 P.3d 349, 354 (2007).
Finally, while Local 5 requests that we determine, in the first
instance, whether any such “modification” was improper, we note that no agency
or court has ruled on the issue. Although there was an admitted modification,
because there has been no ruling in this case, it must be remanded. It is
therefore appropriate that the ZBA decide whether the Director’s September 6
Letter was a proper modification of the 2121 K ûhiô Permit pursuant to ROH
§ 21-2.20(k) and ZBA Rules § 22-8.
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issue here is whether the ZBA erred when it concluded that “[t]he
abuse his discretion, when he did not include in the 2139 Permit
remand the approval of the 2139 Kûhiô Permit. The record makes
clear that both the 2121 Kûhiô tower and the 2139 Kûhiô tower are
application for the 2139 Kûhiô Permit, PACREP 2 states that the
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Kûhiô tower and the 2139 Kûhiô tower from Kâlaimoku Street.
the Tower 1 Project (meaning both the Project and the Tower 1
Permit “should be based on the use of both the 2121 Kuhio and
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permit when it argued in the ZBA that one of the reasons why the
approved the 2139 Kûhiô Permit, as he was the one who issued the
letter.
July 14, 2014 approval of the 2139 Kûhiô Permit must similarly be
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conditions.13
IV. CONCLUSION
for the 2121 Kûhiô project to the DPP, Local 5 raised concerns
PACREP, the Director removed these conditions from the 2121 Kûhiô
this case, we conclude that the process for modifying the 2121
Kûhiô permit did not provide Local 5 with notice, such that
13
We therefore need not decide whether the definition of “hotel” in
the LUO is unconstitutionally vague, and do not address Local 5’s fourth
argument on appeal. See DW Aina Le#a Dev. v. Bridge Aina Le#a, LLC, 134
Hawai#i 187, 217, 339 P.3d 685, 715 (2014) (“[I]f a case can be decided on
either of two grounds, one involving a constitutional question, the other a
question of statutory construction or general law, . . . [this court] will
decide only the latter.” (second alteration in original)).
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with the 2121 Kûhiô tower, shares certain facilities and parking
stalls with the 2121 Kûhiô tower, and the permit for its
Kûhiô Permit, we also vacate the ZBA’s decision that approved the
Director’s granting of the 2139 Kûhiô Permit and remand the case
to the ZBA.
and Order, and remand to the ZBA to resolve Local 5’s challenges
(2) the Director’s July 14, 2014 approval of the 2139 Kûhiô
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