Kellberg v. Yuen.Â

*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

Electronically Filed
Supreme Court
SCWC-12-0000266
22-JAN-2014
10:19 AM

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

---o0o---

MARK C. KELLBERG, Petitioner/Plaintiff-Appellant,

vs.

CHRISTOPHER J. YUEN, in his capacity as
Planning Director, County of Hawai#i,
and COUNTY OF HAWAI#I, Respondents/Defendants-Appellees.

SCWC-12-0000266
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-12-0000266; CIV. NO. 07-1-0157)
January 22, 2014
RECKTENWALD, C.J., NAKAYAMA, ACOBA, MCKENNA, AND POLLACK, JJ.
OPINION OF THE COURT BY POLLACK, J.
This appeal arises out of a decision by Respondents/

Defendants-Appellants Christopher J. Yuen in his capacity as

Planning Director of the County of Hawai#i (Planning Director)
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and the County of Hawai#i (County) (collectively, “County

Defendants”), to approve a subdivision on the subject property.

Petitioner/Plaintiff-Appellant Mark C. Kellberg (Kellberg), an

adjacent land owner, filed an action in the Circuit Court of the

Third Circuit (circuit court) challenging the subdivision

approval. The circuit court granted summary judgment on all

counts in favor of the County Defendants. In his Application for

Writ of Certiorari (Application), Kellberg seeks review of the

July 19, 2013 Judgment on Appeal of the Intermediate Court of

Appeals (ICA), filed pursuant to its June 20, 2013 Memorandum

Opinion, vacating the circuit court’s judgment and remanding for

an order dismissing the case. For the reasons set forth herein,

we vacate the ICA’s judgment and remand the case to the ICA for

consideration of the remaining issues raised by Kellberg in his

appeal to the ICA.

I. BACKGROUND

A. Subject Property

The subject property is a 49-acre parcel of land

located in N§ nole, County of Hawai#i (Subject Property).

Kellberg owns property adjacent to the Subject Property. On May

22, 2000, Virginia Goldstein, the Planning Director at the time,

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sent a letter to Robert Williams,1 President of Prudential Orchid

Isle Properties, reflecting the Planning Department’s

determination that the Subject Property consisted of six pre-

existing lots.2 A map was attached to Goldstein’s letter,

reflecting five adjoining lots in the larger 48.47-acre portion

of the Subject Property, and a sixth smaller, 0.600-acre non-

contiguous lot (identified as Lot 4 on the map).

In December 2003, the then-owners of the Subject

Property wrote to Christopher Yuen, who had taken over as

Planning Director, stating that they would like to consolidate

and re-subdivide the property. The owners wrote that it was

their belief that there were at least “seven usable lots of

record located” on the property. (Emphasis added). On June 2,

2004, the Planning Director responded to the owners and wrote

that based on a review of the relevant records, the Planning

Department had determined that “the subject property consist[s]

of two (2) separate legal lots of record[.]” (Emphasis added).

One of the lots included the small non-contiguous plot.

1
Ms. Goldstein was responding to Mr. Williams’ letter of April 10,
2000 regarding determination of pre-existing lots on the subject property.

2
§ 23-3(21) of the Hawai#i County Code (Supp. 2010) defines “pre-
existing lot” to mean “a specific area of land that will be treated as a legal
lot of record based on criteria set forth in this chapter.” § 23-118 (2005)
sets forth the relevant criteria for a pre-existing lot. A lot is a pre-
existing lot if it was created and recorded prior to November 22, 1944. § 23-
118(a).

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In 2004, Michael Pruglo purchased the Subject Property.

In a letter dated January 15, 2005, Sidney M. Fuke, a planning

consultant working with Pruglo, wrote to the Planning Director to

memorialize a January 12, 2005 discussion between Fuke and the

Director. Fuke wrote that at the January 12 meeting, the

Director confirmed that he “would accept the six (6) lots

acknowledged in the May 22, 2000 letter as lots of record[.]”

On April 7, 2005, Fuke filed a “Consolidation/

Resubdivision Application” (SUB 05-000064) with the Planning

Department, on Pruglo’s behalf. In the accompanying letter, Fuke

reiterated that pursuant to Goldstein’s May 22, 2000 letter and

Fuke’s January 15, 2005 discussion with the current Planning

Director, the Subject Property was determined to have six pre-

existing lots.

The preliminary plat map included with the application,

dated April 6, 2005, identifies the larger 48-acre portion of the

Subject Property as “Parcel 1,” and divides Parcel 1 into six

lots, labeled “1-A” through “1-F.” However, the smaller, 0.6-

acre non-contiguous lot from the Planning Department’s May 22,

2000 letter is not included as part of the proposed subdivision.

Instead, the non-contiguous lot is labeled “Parcel 2.”

On June 1, 2005, the Planning Director granted

tentative approval of the preliminary plat map.

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On July 1, 2005, Fuke submitted a final plat map to the

Planning Director. Consistent with the preliminary map, the

final plat map identifies the larger portion of the Subject

Property as “Parcel 1” and shows this portion divided into six

lots. The smaller non-contiguous portion of the property, while

reflected in the map, is no longer identified as “Parcel 2” or by

any label.

On July 11, 2005, the Planning Director sent a letter

to Fuke, providing, “FINAL SUBDIVISION APPROVAL NO. SUB-05-

000064.” The letter stated, “Please be informed that final

subdivision approval for recordation is hereby granted to the

final plat map as attached herewith inasmuch as all requirements

of the Subdivision Code, Chapter 23, as modified have been met.”

(Emphasis added).

According to Kellberg, he first became aware of the

subdivision of the Subject Property a month later on August 11,

2005, when he observed a “for sale” sign on the Subject Property,

and a realtor later called him with an offer to sell him a newly

created lot along his property line. The next day, he went to

the Planning Department. He asked an employee about filing an

appeal and was informed that the thirty-day period for appeals

had already passed. He asked to speak to the Planning Director,

but was told that he was unavailable. Kellberg then left his

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contact information and asked that the Director call him later

that day. When the Director did not contact him as requested,

Kellberg again visited the Planning Department on August 16 and

left his contact information. However, the Director did not call

him.

In a letter dated August 16, 2005, Kellberg informed

the Planning Director that he had recently learned of the

subdivision approval and that he was “writing to make [the

Planning Director] aware of serious omissions and errors” in the

approved subdivision plan. In relevant part, Kellberg noted that

the final subdivision plan on file with the Planning Department

divides the Subject Property into seven lots rather than six

lots. The seventh lot consisted of the smaller, non-contiguous

parcel reflected in the Planning Department’s May 22, 2000 map as

Lot 4. Kellberg wrote, “Your agreement to honor the previous

administration’s six pre-existing lot determination (as per your

01/12/05 meeting with Mr. Fuke), allows a six lot subdivision of

the subject property, while the ‘final’ subdivision plan on file

with your office divides the subject property into seven lots.”

Kellberg concluded his letter by stating that he “can

appreciate that at this late date, the errors and omissions I

have noted will be difficult to correct, and certainly

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inconvenient for all parties involved.” He wrote, “I would

encourage your prompt intervention in this matter[.]”

On October 19, 2005, the first subdivision lot was

sold.

In a letter dated January 17, 2006, Kellberg again

wrote to the Planning Director. He stated that in the five

months since his first letter, he had called the Planning

Director’s office and left numerous messages, with no response.

He reiterated that the most serious error in the subdivision

approval was that it failed to recognize Lot 4 and created seven

lots instead of the agreed-upon six lots. He concluded by

requesting a response and an account of the steps the Planning

Director had taken to correct the identified errors.

On February 17, 2006, Kellberg wrote to the County of

Hawai#i Office of the Corporation Counsel (Corporation Counsel)

with his concerns regarding the subdivision. Corporation Counsel

responded on February 24, 2006, and encouraged Kellberg to

continue attempting to contact the Planning Director and also

noted that Kellberg could consider appealing the matter to the

Hawai#i County Board of Appeals (BOA).

In a letter dated March 5, 2006, Kellberg wrote to the

Planning Department, stating that he was writing “at the

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suggestion of Corporation [Counsel] . . . to request information

concerning the [BOA].”

On March 21, 2006, the Chairman of the BOA responded to

Kellberg’s March 5 letter to the Planning Department. The

Chairman stated that “[a]ccording to our records, the Planning

Director granted Final Subdivision Approval on July 11, 2005 for

the 6-lot subdivision of the subject property.” (Emphasis

added). The Chairman continued by informing Kellberg that the

BOA rules required an appeal from the Planning Director’s

decision to be filed within thirty days of the decision: “For

your information, Section 8-3, Time Limit for Filing Appeal, of

Part 8 . . . states that an appeal from the decision of the

Planning Director shall be filed within thirty (30) days after

the decision.” A copy of the BOA’s Rules of Practice and

Procedures and a General Petition form were enclosed with the

letter.

On April 19, 2006, Pruglo and Fuke submitted a new

consolidation and resubdivision application for the Subject

Property (SUB 06-000333). The plan involved consolidating the

non-contiguous parcel with another parcel created by the previous

subdivision.3

3
On August 12, 2009, Fuke submitted a revised application for
Subdivision 06-000333, to consolidate the non-contiguous parcel (TMK 3-2-
02:110) with another lot created by Subdivision 05-00064 (TMK 3-2-02:68). On

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On June 19, 2006, Kellberg wrote a third letter to the

Planning Director.4 According to Kellberg, he had become aware

of the pending subdivision application and asked the Planning

Director to notify him when the subdivision application was

approved.

On August 25, 2006, Kellberg’s counsel, Stephen D.

Whittaker, wrote to the Planning Director at Kellberg’s request.

The letter provided that it was regarding “Subdivision Plan SUB-

05-000064; Resubdivision Plan 06-000333.” Whittaker wrote that

it was his assumption that “an appeal is premature in that Mr.

Kellberg has not received notice of any action purporting to

approve the ‘resubdivision’ . . . and on June 19, 2006, he asked,

in writing, to be notified ‘when tentative approval has been

granted . . . for the resubdivision.’”

On October 23, 2006, more than a year after Kellberg’s

first letter, the Planning Director responded by letter to

Kellberg and Whittaker. The Director stated that he was writing

in response to Kellberg’s letters of August 16, 2005, January 17,

October 21, 2009, Fuke submitted a final plat map to the Planning Director.
Although the final approval of Subdivision 06-000333 is not included in the
record on appeal, according to a Planning Department employee, the non-
contiguous parcel was “consolidated with an adjoining property.”

4
Kellberg’s June 19, 2006 letter is not included in the record on
appeal. However, the letter is referenced throughout the record, and the
Planning Director acknowledged receiving the letter.

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2006, and June 19, 2006, and to Whittaker’s letter of August 25,

2006. The Director wrote, “The number of pre-existing lots on

[the Subject Property], and their subsequent use in Sub. 05-00064

and the pending Sub. 06-000333 seems to be the most important

issue.”

With respect to the number of pre-existing lots, the

Planning Director acknowledged that the Planning Department had

previously recognized six lots on the subject property, per the

Department’s May 22, 2000 letter. The Director further

acknowledged that in the Department’s June 2, 2004 letter, the

Department only recognized two lots. The Director stated, “This

was a mistake, because the Department should have respected the

previous determination.”

The Director explained that he subsequently informed

Fuke that the Department “would honor” the May 22, 2000

recognition of six lots. Accordingly, Pruglo’s subdivision

application was based on recognizing six pre-existing lots. The

Director also acknowledged that “there was a mistake in the

approval” of the subdivision application because the Planning

Department had not accounted for the non-contiguous lot:

As Mr. Kellberg correctly points out, there was a mistake in
the approval of that subdivision. One of the six recognized
lots was a 0.699 acre portion of Grant 11,070. For some
reason, it was not contiguous with the remainder of TMK No.
3-2-2-35. In the consolidation/resubdivision, the Planning
Department did not notice that this noncontiguous portion
had been included in the lot count. Thus, it remained

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separate, and is now TMK No. 3-2-2-110. Thus, with the six
lots in Sub. 05-00064 and parcel 110, there are now seven
lots instead of six.

(Emphases added). The Director then stated that he would not be

taking any action to “undo this situation at this time” because

the subdivision had already “received final subdivision approval

and at least some of the lots have been sold”:

I am not going to do anything to undo this situation at this
time. Sub. 05-0064 has received final subdivision approval
and at least some of the lots have been sold. Given that
parcel 110 is physically separated from the remainder of
Sub. 05-00064, and from any property owned by the
subdivider, I cannot see a way to erase its separate
existence.

The Director concluded his letter by apologizing for

not responding earlier and informing Kellberg that the Planning

Department staff had been “instructed to send copies of future

correspondence from our office concerning Sub. 06-000333 and any

revisions of Sub. 05-00064.”

In a letter dated February 6, 2007, Kellberg responded

to the Director. Kellberg stated that he had reviewed the

revised final plat map referenced in the Director’s January 19,

2007 letter, and the “major defect” regarding the non-contiguous

lot remained. Kellberg continued, “[A]nd so I thought I would

avail myself of the opportunity to ask you to reconsider your

stated position that you are ‘not going to do anything to undo

this situation at this time.’” Kellberg cited § 23-74(c) of the

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Hawai#i County Code (County Code),5 providing that the Director’s

“approval for recordation of the final plat by the director shall

not relieve the subdivider of the responsibility for any error in

the dimensions or other discrepancies. Such errors or

discrepancies shall be revised or corrected, upon request, to the

satisfaction of the director.” Kellberg wrote that it was his

belief that this provision “would give you the legal power to

require Mr. Fuke and Mr. Pruglo to correct the mistake,

regardless of the cost or inconvenience to themselves.”

Kellberg noted that Fuke and Pruglo still owned two

pairs of abutting lots in the subdivision. Accordingly, it was

within the Director’s power “to resolve the original lot count

‘mistake’ by simply notifying Mr. Fuke and Mr. Pruglo that they

are required to combine one or the other of these abutting pairs

into a single lot, thereby reducing the total number created to

the requisite six.”

On June 15, 2007, the Planning Director wrote a letter

briefly responding to Kellberg, which did not address the

concerns raised by Kellberg.

5
The 2005 edition of the County Code, as amended by supplements
through 2012, is available at http://www.hawaiicounty.gov/lb-
countycode/#countycode.

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B. Circuit Court Proceedings

1.

On May 11, 2007, Kellberg filed a Complaint in the

circuit court against the County Defendants.6 In Count I,

Kellberg alleged that he is a “person aggrieved by the decision

of [the Planning Director] to approve SUB-05-00064.” He further

alleged that the Planning Director had continually refused to

revise the subdivision approval to comply with Chapter 23 of the

County Code, despite the Director’s acknowledgment that there was

a mistake in the approval of the seven-lot subdivision. The

Director had also refused to require Pruglo to comply with the

law.

In Count II, Kellberg alleged that he was entitled to a

declaratory judgment regarding “the application of the [County

Code] to SUB-05-00064 and [the Planning Director’s] arbitrary

decision to disregard the limitations of Section 23-67 and to

create seven (7) lots out of one in violation of Section 23-7

[(governing pre-existing lots)].”

Under Count III, Kellberg claimed that as an adjacent

landowner, he has a property interest in the subdivision. He

stated that the County Defendants approved the subdivision

6
The Honorable Glenn S. Hara, presiding.

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“without correcting patent defects” and without providing any

notice or due process to him. He alleged that the subdivision

approval therefore violated his right to due process under the

Fifth and Fourteenth Amendments to the U.S. Constitution and

article I, section 5 of the Hawai#i Constitution.

In Count IV, Kellberg alleged that the Planning

Director abused his discretion and violated statutes by refusing

to apply County Codes § 23-67, requiring tentative approval of

the preliminary plat map to be deemed void without timely

submission of a final map, and § 23-74(c), requiring errors in

subdivisions to be revised or corrected to the director’s

satisfaction.

In Count V, Kellberg alleged that he was entitled to an

injunction requiring the Planning Director to bring the

subdivision into compliance with the County Code and prohibiting

the County Defendants “from permitting more than two (2) lots on

the Subject Property and from allowing any subdivision of the

Subject Property other than in accordance with [the County

Code].”

Finally, in Count VI, Kellberg claimed that his

property had been adversely and materially impacted by the

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subdivision and by the County Defendants’ refusal to correct the

mistakes that had been made.7

2.

On January 9, 2008, the County filed a Motion to

Dismiss the Complaint (First Motion to Dismiss). The County

argued that the Complaint must be dismissed because Kellberg “has

not alleged any concrete interest which gives rise to standing on

his part to bring this suit.”

Following a hearing on the motion, the court entered an

order denying the County’s First Motion to Dismiss on April 1,

2008. The court found that Kellberg, “as the owner of real

property adjoining SUB-05-00064, has standing to assert the

claims in the Complaint.”

On July 23, 2008, the County Defendants filed a Motion

to Dismiss for Failure to Exhaust Administrative Remedies (Second

7
Based on the foregoing, Kellberg requested that the court provide
the following relief: 1) declare the subdivision violative of the County Code
and therefore void; 2) declare the Planning Director’s conduct in approving
the subdivision illegal and void as against public policy; 3) determine that
Kellberg should be provided with notice and an opportunity to be heard on the
merits of the subdivision approval; 4) find that the Planning Director’s
refusal to correct mistakes in the subdivision approval constitutes an abuse
of discretion and direct the Planning Director to take necessary action to
bring the subdivision approval in compliance with the County Code; 5) issue a
mandatory injunction requiring the Planning Director to correct the
subdivision and enjoining the County Defendants from approving further
subdivision of the Subject Property until it is brought into compliance with
the County Code; 6) award Kellberg monetary damages as proven at trial; 7)
award Kellberg attorneys’ fees and costs; and 8) grant Kellberg such other
relief as is just and proper.

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Motion to Dismiss).8 The County Defendants noted that pursuant

to County Code § 23-5, any person aggrieved by the Director’s

decision “may, within thirty days after the director’s decision,

appeal the decision to the board of appeals.” The County

Defendants argued that Kellberg was aware of the subdivision in

August 2005, and “the Planning Director, in a letter dated

October 23, 2006, refused to accede” to Kellberg’s requests. The

County Defendants argued that Kellberg had not appealed any

decision of the Director to the BOA within the required thirty-

day time frame. Accordingly, the circuit court lacked subject

matter jurisdiction over the case because Kellberg had failed to

exhaust all available administrative remedies.

Kellberg responded that the circuit court has original

jurisdiction over the Complaint, which alleged violations of the

state and federal Constitution and violations of statutes.

Kellberg argued that even if the court found that the Planning

Department or BOA has unique expertise regarding any issues

raised in the Complaint, the doctrine of primary jurisdiction

required the action to be stayed rather than dismissed.

A hearing on the Second Motion to Dismiss was held on

September 5, 2008. In response to the court’s questions

8
The Second Motion to Dismiss also sought dismissal based on the
failure to join indispensable parties.

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regarding notice of the subdivision to Kellberg, counsel for the

County Defendants argued that the Planning Director’s October 23,

2006 letter “says this was a final decision and nothing else

could have occurred.” Thus it was the County Defendants’

position that Kellberg had until November 23, 2006 to file an

appeal.

However, the court responded that the letter was

“somewhat ambiguous or at least confusing” because the Chairman

appeared to be saying that the final subdivision approval was on

July 11, 2005, and Kellberg should have filed an appeal by August

11, 2005, which was well before the Chairman’s letter.

On September 30, 2008, the circuit court entered its

findings of fact, conclusions of law and order denying the Second

Motion to Dismiss. The court found “the County has not shown

that there were administrative processes available to Mr.

Kellberg providing meaningful and adequate notice of SUB 05-00064

and an opportunity to appeal the Planning Director’s decision.”

The court concluded that it had “original jurisdiction

of Plaintiff’s Complaint which, under the circumstances, is not

subject to dismissal for failure to exhaust administrative

remedies.” The court further concluded that Kellberg “did not

fail to exhaust available administrative remedies and, instead,

the Court finds that, under the circumstances presented on the

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motion, Plaintiff did not have an available administrative

remedy.”

On May 27, 2009, Kellberg filed a “Motion for Partial

Summary Judgment on Count I (Violation of Statute), Count II

(Declaratory Judgment) and Count IV (Abuse of Discretion)”

(Motion for Partial Summary Judgment). Kellberg argued that

there was no genuine issue of material fact that the County

Defendants had violated the County Code by approving the

subdivision, which “yielded seven (7) lots out of six (6)[.]”

Additionally, Kellberg claimed that the Planning Director, who

acknowledged the “mistake” in his subdivision approval, was

required to correct the mistake.

In response, the County Defendants argued that the

“determinations of pre-existing lots as well as the approval of

the number of lots in a consolidation and re-subdivision are

determinations within the discretion of the Planning Director.”

On May 29, 2009, the County Defendants filed a “Motion

to Dismiss Pursuant to Rule 12(b)(6) of the Hawaii Rules of Civil

Procedure” (Third Motion to Dismiss). The County Defendants

argued that no private cause of action exists to permit Kellberg

to challenge the Planning Director’s actions regarding the County

Code.

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On June 19, 2009, a hearing was held on Kellberg’s

Motion for Partial Summary Judgment. The court explained that it

was “inclined to . . . flesh out the record at the County level”

by granting Kellberg’s Motion for Partial Summary Judgment “in

the form of an order remanding this back down to the County for a

appeal before the Board of Appeals.” The court further explained

that it was finding that “Kellberg was denied an appeal before

the Board of Appeals based on the October 23, 2006, decision of

the director,” but stopping short of finding a specific violation

of the subdivision approval and “leaving that up to the Board of

Appeals.” The court stated that it was “sending it back to the

Board of Appeals to process” Kellberg’s “[a]ppeal of the October

23 decision.”

On July 24, 2009, the court filed its order granting

the Motion for Partial Summary Judgment. The order provided, “IT

IS ORDERED ADJUDGED AND DECREED that Plaintiff should have been

allowed to appeal the decision of October 23, 2006 pursuant to

the provisions of Section 23-5 of the Hawaii County Code but

Plaintiff was denied such an opportunity to appeal.” The order

continued, “The Court remands this case to the Board of Appeals

for the County of Hawaii regarding the Appeal of the Decision of

the Director found in the October 23, 2006 letter to Mr.

Kellberg.”

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On the same day, the court entered its order denying

the County Defendants’ Third Motion to Dismiss, reaffirming that

Plaintiff, as the owner of real property adjoining SUB-05-00064,

has standing to assert the claims in the Complaint.”

C. Board of Appeals Proceedings

On September 15, 2009, Kellberg filed a “General

Petition for Appeal of Decisions by Planning Director” (Petition)

with the Board of Appeals.9 In his Petition, Kellberg stated

that he sought “reversal, modification, or remand” of “three

major decisions” of the Planning Director, “to whatever extent is

necessary” to satisfy the County Code: 1) the January 12, 2005

decision to honor the May 22, 2000 determination that the Subject

Property contained six pre-existing lots; 2) the July 11, 2005

decision to grant final subdivision approval; and 3) the October

23, 2006 letter stating that the Director would do nothing to

bring the subdivision into compliance.10

On October 21, 2009, the County Defendants filed a

motion to dismiss the Petition.

9
The Petition was attached as Exhibit B to Kellberg’s declaration,
which was attached to Kellberg’s March 4, 2010 motion for partial summary
judgment on Count V and for an injunction against the County.

10
Kellberg appears to have prepared and submitted the Petition
without the assistance of counsel.

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The BOA held a hearing to consider the Petition and the

motion to dismiss on November 13, 2009. Counsel for the County

Defendants argued that “[a]ny ruling by Judge Hara . . . cannot

confer additional jurisdiction to the Board” and that Judge Hara

“made no determination” that the BOA “should accept

jurisdiction[.]” Counsel also argued that if the BOA took

“October of 2006 as the date of the decision . . . then any

appeal would have had to been filed no later than . . . November

22, 2006.”

Kellberg and his counsel questioned “what decisions are

included in that October 2006 letter.” Kellberg’s counsel

further argued that whether the October letter could be

characterized “as a final decision that in the ordinary course

might be appealable” was not relevant to the BOA’s decision on

the Petition.

The BOA voted 5-1 to grant the motion to dismiss the

Petition. On February 19, 2010, the BOA filed its findings of

fact, conclusions of law, and decision and order (Decision and

Order). The BOA found that Kellberg was appealing “from a

written decision of the Planning Director dated October 23, 2006

. . . informing Appellant that the Planning Department would take

no further action on a complaint by Appellant regarding

consolidation and re-subdivision application SUB 05-000084.” The

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BOA found that Kellberg “filed an appeal from the Director’s

Decision on September 15, 2009.”

The BOA further found that Kellberg “received notice of

the requirements regarding the time for filing a notice of appeal

to the [BOA] on March 5, 2006 prior to the October 23, 2006

letter from the Planning Director.”

The BOA concluded that Kellberg’s appeal was filed

“beyond the time permitted to file an appeal,” and the BOA

therefore lacked jurisdiction to consider the appeal.

Accordingly, the BOA determined that Kellberg’s appeal was

“dismissed and the decision of the Planning Director . . .

affirmed.”

D. Circuit Court Proceedings Continued

1.

On March 4, 2010, Kellberg filed a “Motion for Partial

Summary Judgment on Count V (Injunction) and for Injunction

against the County of Hawaii” (Motion for Injunction) with the

circuit court. Kellberg requested an order granting summary

judgment on Count V of the Complaint, seeking an injunction

remanding the case to the Planning Department with instructions

to the Planning Director to bring the subdivision into compliance

with the County Code, and enjoining the County Defendants from

“allowing the further sale, transfer of ownership, or development

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and improvement of lots created” by the subdivision until

compliance is demonstrated.

Kellberg argued that he had fully complied with the

circuit court’s July 24, 2009 order granting the Motion for

Partial Summary Judgment, but was “deliberately and effectively

prevented” by the County Defendants “from obtaining the relief

intended by the Court.” Kellberg argued that the BOA’s treatment

of his appeal demonstrated that Kellberg “never had, nor would

have ever been allowed to have, an administrative remedy with

regard to any aspect of SUB 05-00064.”

The County Defendants argued in response that the BOA

rendered its final decision in its Decision and Order filed on

February 22, 2010, but Kellberg did not file an appeal from this

Decision and Order. Thus the BOA’s findings “are final and have

a preclusive effect upon the issues concerning the exhaustion of

administrative remedies and the jurisdiction of the circuit court

with respect to this case.”

A hearing on the Motion for Injunction was held on

April 28, 2010. At the hearing, counsel for the County

Defendants argued that “the problem” with the case was that

although the circuit court “remanded” the case to the BOA, the

case “never came up from the board of appeals.” The court

responded, “[D]idn’t [the BOA] finally dismiss the appeal on the

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same grounds that I found that Mr. Kellberg had a basis to go

ahead and have an appeal, and that is – the timing of all of

these matters did not allow him to adequately lodge an appeal

with the board?” The court clarified that it had remanded the

case to the BOA to “see what kind of remedies they had if they

were, in fact, convinced that the subdivision laws, as I was

convinced, was not complied with.”

The court concluded that it was “inclined to go ahead

and grant the motion,” but also stated that the court was

“reluctant” because “the issue of whether or not there may be

adequate remedies at law in terms of damages would preclude the

granting of a motion for summary judgment.”

Nearly five months later, on September 22, 2010, the

circuit court filed an order denying the Motion for Injunction.

The order provided that the court’s July 24, 2009 order remanding

the matter to the BOA rendered Count V of the Complaint “moot as

the remand addressed Mr. Kellberg[’s] right and opportunity to be

heard referred to in Count V.”

On October 15, 2010, the circuit court filed a second

order denying the Motion for Injunction. The order was largely

identical to the initial order. The second order additionally

provided that Kellberg’s “failure to exhaust his administrative

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remedies forecloses this court from further action in this

matter.”

2.

On April 21, 2011, the County Defendants filed a

“Motion for Summary Judgment” (Motion for Summary Judgment) on

all claims, asking the court to dismiss the Complaint.

In relevant part, the County Defendants argued that

Kellberg had failed to exhaust his administrative remedies.

Pursuant to County Code § 23-5, Kellberg “had thirty days to

appeal the Planning Director’s decision to recognize six pre-

existing lots or grant final subdivision approval.” “However,

Plaintiff failed to file an appeal with the BOA until the Court

ordered him to do so.”

On May 3, 2011, Kellberg filed a memorandum in

opposition to the Motion for Summary Judgment. Kellberg noted

that the circuit court had already determined in its September

30, 2008 order denying the Second Motion to Dismiss, that the

County had not shown there were administrative processes

available to Kellberg that provided notice and an opportunity to

appeal the subdivision approval. Accordingly, Kellberg argued

that the Motion for Summary Judgment should be denied as an

untimely motion for reconsideration.

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A hearing on the Motion for Summary Judgment was held

on May 11, 2011.11 On June 16, 2011, the court filed an order

granting the Motion for Summary Judgment as to all counts. The

order provided only that “the record reflects the absence of any

genuine issue of material fact.”

On February 28, 2012, the court filed a Final Judgment

in favor of the County Defendants and against Kellberg on all

counts of the Complaint.

E. Appeal

1.

On April 4, 2012, Kellberg filed an appeal with the

ICA, appealing the Final Judgment, as well as eight of the

circuit court’s prior orders.12

In his opening brief, Kellberg raised eight points of

error. In relevant part, Kellberg argued that the circuit court

erred in granting summary judgment based on a finding that

Kellberg failed to exhaust his administrative remedies by not

11
The Honorable Ronald Ibarra, presiding.

12
Kellberg appealed the circuit court’s 1) July 24, 2009 order
granting Motion for Partial Summary Judgment; 2) September 22, 2010 order
denying Motion for Injunction; 3) October 15, 2010 order denying Motion for
Injunction; 4) June 14, 2011 order denying Motion for Supplemental Injunctive
Relief; 5) June 16, 2011 order denying Motion to Enforce Judgment; 6) June 16,
2011 order granting Motion for Summary Judgment; 7) August 31, 2011 order
granting in part and denying in part Motion to Vacate; 8) January 23, 2012
order denying Motion for Clarification; and 9) February 28, 2012 Final
Judgment.
All eight orders were referenced in the circuit court’s Final
Judgment.

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timely appealing the Planning Director’s July 11, 2005 approval

of the subdivision.

Kellberg stated that under the doctrine of exhaustion

of remedies, an aggrieved party may apply directly to the court

for relief if no administrative procedures are provided for the

party to seek a remedy. In this case, Kellberg argued that no

administrative remedies were available to him, as reflected in

the circuit court’s order denying the County Defendants’ Second

Motion to Dismiss. In that order, the court concluded that

Kellberg “did not fail to exhaust administrative remedies and,

instead, the Court finds that, under the circumstances presented

on the motion, Plaintiff did not have an available administrative

remedy.”

Kellberg also argued that he had no available

administrative remedy because he received no notice (whether

“actual, constructive, or by way of visible developmental

activity”) of the subdivision application or approval. Rather,

he first learned of the subdivision on August 11, 2005, a day

after the thirty-day period of appeal had expired. Kellberg

maintained that where a litigant fails to exhaust remedies

because the litigant was not appropriately notified of its

availability in time to use the remedy, then failure to exhaust

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is excused. He was therefore entitled to seek direct judicial

review of his Complaint.

Kellberg further argued that the Planning Director’s

October 23, 2006 letter did not inform him that he had a right to

appeal the Director’s decision to do nothing about the mistakes

in the approval. He argued, “Having been rebuffed by the BOA . .

. , no reasonable person would have understood [the Planning

Director’s] decision to do nothing as a separately appealable

decision.” Accordingly, Kellberg exhausted every potential

avenue of administrative remedy before filing his Complaint.

With respect to his exhaustion of remedies following

the BOA’s dismissal of his Petition, Kellberg argued that the

doctrine of exhaustion of remedies is not absolute, and provides

for exceptions when no effective remedies exist. He complied

with the court’s July 24, 2009 order granting the Motion for

Partial Summary Judgment by filing his Petition with the BOA, but

the BOA and the County Defendants acted in defiance of the court

order by refusing to review the subdivision. Thus, “[t]he BOA’s

February 19, 2010 dismissal of Kellberg’s appeal definitively

demonstrated the further pursuit of an administrative remedy to

the dispute to be futile.”

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2.

The County Defendants argued in their answering brief

that Kellberg failed to timely file an appeal with the BOA, and

when the County Defendants “raised this jurisdictional issue,”

the circuit court “ordered this case to the BOA.” Subsequently,

the “BOA conducted an evidentiary hearing” and “ruled against

Kellberg.” However, Kellberg “failed to appeal the decision of

the BOA,” thereby “deliberately fail[ing] to exhaust his

administrative remedies.” The County Defendants argued that this

decision by Kellberg to not appeal the BOA’s decision precluded

the circuit court from granting any further relief, as reflected

in the circuit court’s October 15, 2010 order denying the Motion

for Injunction.

3.

The ICA concluded in its Memorandum Opinion that

“Kellberg failed to exhaust the administrative remedies available

to him before commencing his action, leaving the circuit court

without jurisdiction to act on his complaint.”

Kellberg v. Yuen, No. CAAP-12-0000266, 2013 WL 3156015, at *3

(Haw. App. June 20, 2013) (Memo. Op.).

Pursuant to Part 8 of the BOA Rules and § 23-5 of the

County Code, persons aggrieved by a decision of the Planning

Director have thirty days to appeal the decision to the BOA. Id.

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The ICA stated that “[t]he time limit for the taking of an appeal

established by statute is mandatory and if not complied with, the

appeal must be dismissed.” Id.

The ICA determined that “Kellberg did not file a

petition for an appeal until the circuit court issued its July

24, 2009 order ‘remanding’ the case to the BOA.” Id. at *3.

According to the ICA, the circuit court’s decision to deny the

County Defendants’ Second Motion to Dismiss for failure to

exhaust administrative remedies was based “on the March 2006

communications between Kellberg and the BOA.” Id. The ICA

disagreed with the circuit court’s interpretation of the BOA’s

letter as foreclosing Kellberg’s right to appeal. Id. at *3-4.

Instead, the ICA stated, “The BOA’s letter addressed Kellberg’s

right to appeal the July 11, 2005 subdivision approval only; it

did not preclude or otherwise address Kellberg’s right to appeal

any other decision of the Planning Director.” Id. at *4.

The ICA found that “[t]he Planning Director’s October

23, 2006 letter, in which he refused to reconsider the

subdivision approval despite the error, constituted an appealable

decision from which Kellberg should have appealed to the BOA” but

“he failed to pursue the available administrative procedures by

appealing to the BOA within the time limit.” Id.

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Based on the foregoing, the ICA held that the circuit

court should have dismissed Kellberg’s action for lack of subject

matter jurisdiction. Id. The ICA vacated the circuit court’s

Final Judgment and remanded the case for an order of dismissal.

Id. The ICA’s Judgment on Appeal was filed on July 19, 2013.

F. Application

1.

On September 17, 2013, Kellberg timely filed his

Application to this court.13 Kellberg raises the following

questions presented for review:

1. Final Decision. Does the Director’s letter conceding
that 15 months earlier he erroneously approved a
subdivision, but which states “I am not going to do anything
to undo this situation at this time,” constitute a new final
decision that must be appealed to the BOA, and which
supplants the existing right to judicial review of the
original final decision approving the subdivision?

2. Due Process Notice. If the Director’s letter was a new
final decision supplanting the original final subdivision
decision that must have been appealed to the BOA within 30
days in order to preserve the right to judicial review, did
the Director have a due process obligation to give Kellberg
notice?

Kellberg maintains that under the exhaustion of

administrative remedies doctrine, the administrative review

process “must be apparent, straightforward, and understandable to

the people required to utilize it.” Kellberg argues that the ICA

committed two grave errors in this regard.

13
Kellberg’s motion for extension of time was filed and granted on
August 7, 2013.

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a.

“First, the BOA has jurisdiction to review only ‘final

decisions’ by the Director, and by definition there can be only a

single ‘final’ decision approving a subdivision application that

can be appealed to the BOA.” In this case, the “final decision”

was the Director’s approval of the subdivision in 2005. Kellberg

thus maintains that any subsequent decisions made by the Planning

Director did not have to be appealed to the BOA.

Kellberg argues that the ICA erroneously held that he

was required to have appealed from the Director’s October 2006

letter, which was written fifteen months after the final

subdivision approval. Accordingly, the ICA effectively concluded

that the letter, and not the Director’s July 2005 subdivision

approval, was the “true final decision on the matter,” or

alternatively that there can be more than one “final decision.”

Kellberg contends that the “ICA’s conclusion rests on

the erroneous foundation that all decisions of the Director must

be appealed to the BOA.” The ICA thus erroneously held that the

BOA Rules allow for appeals of “any” decision of the Director in

the administration of the zoning and subdivision chapters of the

County Code.

Additionally, Kellberg argues that the Director’s 2005

approval of the subdivision was “final” under the plain meaning

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of the word, as it was “the last step in the process of approving

subdivisions, and nothing remained for the Director to do.” By

contrast, the Director’s 2006 letter was not “final” “because it

left open the possibility of future action (‘I am not going to do

anything to undo this situation at this time’).” Moreover, the

letter was not a “decision” regarding the subdivision but “simply

a statement 15 months after the fact that the Director was going

to do nothing.”

Kellberg concludes that the ICA’s decision creates a

situation of “administrative chaos,” “in which every decision

made by the Director potentially must be reviewed by the BOA

within 30 days, and no final decision can ever be understood to

be truly final because a later decision, even a decision to do

nothing must be appealed.”

b.

With respect to the second issue, Kellberg argues that

even if the October 2006 letter was a new “final” decision

requiring Kellberg to appeal anew to the BOA, “the Director had a

due process obligation to inform Kellberg of his right to appeal

this new decision,” particularly in light of the Planning

Department and the BOA previously informing him that no appeal

was possible.

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Kellberg contends that the BOA’s thirty-day time limit

for appeals is mandatory, exclusive, and short. When a statute

or rule provides for such shortened appeals periods, Kellberg

argues that the due process clauses of the state and federal

Constitution require an agency to give express and conspicuous

notice of the time period and of avenues for redress.

Kellberg notes that the Director’s letter only

acknowledged that a mistake had been made and did not mention the

BOA appeals process or the thirty-day limitations period. There

was also no notice in the letter that the letter constituted a

“final decision.”

In addition, Kellberg argues that the property interest

jeopardized by the Director’s lack of notice is “constitutionally

significant,” and the burden on the Director to inform recipients

that a letter represents a “final decision” that they must appeal

to the BOA within thirty days is “comparatively small.” Kellberg

notes in this regard that the City and County of Honolulu

includes “clear and conspicuous notice” that its letters must be

appealed to the Zoning Board of Appeals.

Kellberg thus concludes that assuming the Director’s

October 2006 letter was the exclusive means for him to challenge

the 2005 subdivision approval, the Director nevertheless failed

his due process duty to inform Kellberg. Accordingly, “the letter

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did not affect Kellberg’s right to institute a lawsuit to

invalidate the subdivision approval.”

Consequently, Kellberg requests that this court

“reverse the ICA’s opinion and judgment, and remand the case [to

the ICA] for consideration of the remaining issues raised by

Kellberg’s appeal.”

2.

The County Defendants respond by maintaining that

Kellberg failed to file an appeal “of the Planning Director’s

decision to recognize six pre-existing lots or grant final

subdivision approval.” Kellberg also failed to appeal the BOA’s

decision to dismiss the appeal following the circuit court’s

order.

Additionally, the County Defendants argue that the

Director’s October 23, 2006 letter “clearly stated no further

action would be taken” and thus constituted a final appealable

order under the BOA Rules.

II. STANDARD OF REVIEW

The existence of jurisdiction is a question of law that we
review de novo under the right/wrong standard. Questions
regarding subject matter jurisdiction may be raised at any
stage of a cause of action. When reviewing a case where the
circuit court lacked subject matter jurisdiction, the
appellate court retains jurisdiction, not on the merits, but
for the purpose of correcting the error in jurisdiction. A
judgment rendered by a circuit court without subject matter
jurisdiction is void.

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Lingle v. Haw. Gov't Emps. Ass'n, 107 Hawai#i 178, 182, 111 P.3d

587, 591 (2005) (quoting Amantiad v. Odum, 90 Hawai#i 152, 158-

59, 977 P.2d 160, 166-67 (1999)).

III. DISCUSSION

A.

The first issue raised by Kellberg in his Application

is whether the Planning Director’s October 23, 2006 letter

constituted a final decision that was required to be appealed to

the BOA.

1.

“Courts have developed two principal doctrines to

enable the question of timing of requests for judicial

intervention in the administrative process to be answered: (1)

primary jurisdiction; and (2) exhaustion of administrative

remedies.” Kona Old Hawaiian Trails Grp. v. Lyman, 69 Haw. 81,

92-93, 734 P.2d 161, 168 (1987) (quotation marks and brackets

omitted). “These principles are doctrines of comity designed to

outline the relationship between courts and administrative

agencies and secure their proper spheres of authority.” Leone v.

Cnty. of Maui, 128 Hawai#i 183, 192, 284 P.3d 956, 965 (App.

2012). Pacific Lightnet, Inc. v. Time Warner Telecom, Inc., __

Hawai#i __, __ P.3d __, at *13 (Haw. Dec. 18, 2013) (“under the

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doctrine of primary jurisdiction, the court and the agency share

concurrent jurisdiction over the matter”).

The doctrine of exhaustion of administrative remedies

provides that “where a claim is cognizable in the first instance

by an administrative agency alone,” “[j]udicial review of agency

action will not be available unless the party affected has taken

advantage of all the corrective procedures provided for in the

administrative process.” Kona Old, 69 Haw. at 93, 734 P.2d at

169 (quotation marks and citations omitted). “As such, the

doctrine of exhaustion of remedies temporarily divests a court of

jurisdiction.” Williams v. Aona, 121 Hawai#i 1, 9, 210 P.3d 501,

509 (2009).

In contrast, the doctrine of primary jurisdiction

“applies where a claim is originally cognizable in the courts,

and comes into play whenever enforcement of the claim requires

the resolution of issues which, under a regulatory scheme, have

been placed within the special competence of an administrative

body.” Kona Old, 69 Haw. at 93, 734 P.2d at 168 (quotation

marks, ellipses and brackets omitted) (emphasis added). “When

this happens, the judicial process is suspended pending referral

of such issues to the administrative body for its views,” and the

courts are effectively “divested of whatever original

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jurisdiction they would otherwise possess.” Id. at 93, 734 P.2d

at 168-69 (quotation marks omitted).

In this case, the ICA held that the County Code and BOA

Rules “expressly provide an administrative process for resolving

Kellberg’s claims challenging the Planning Director’s decision to

grant the subdivision approval.” 2013 WL 3156015, at *3. The

ICA then applied the doctrine of exhaustion of administrative

remedies and held that the circuit court should have dismissed

Kellberg’s action for lack of subject matter jurisdiction because

Kellberg “failed to pursue the available administrative

procedures by appealing to the BOA within” thirty days of

“receiv[ing] an appealable decision in the form of the Planning

Director’s October 23, 2006 letter.” Id. at *4.

a.

The basic premise of the ICA’s decision is that the

Planning Director’s October 23, 2006 letter constituted an

appealable “decision” within the meaning of County Code § 23-5

and BOA Rules Part 8.

“When interpreting [county charters], municipal

ordinances, and administrative rules, the general principles of

statutory construction apply.” Hoku Lele, LLC v. City & Cnty. of

Honolulu, 129 Hawai#i 164, 167, 296 P.3d 1072, 1075 (App. 2013).

In statutory construction, “our foremost obligation is to

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ascertain and give effect to the intention of the legislature,

which is to be obtained primarily from the language contained in

the statute itself.” Paul v. Dep’t of Transp., 115 Hawai#i 416,

426, 168 P.3d 546, 556 (2007) (quoting Gray v. Admin. Dir. of the

Court, 84 Hawai#i 138, 148, 931 P.2d 580, 590 (1997)).

In this case, both the County Code and the BOA Rules §§

8-2 and 8-3 provide that an aggrieved person may appeal “the

decision” of the Planning Director to the BOA within thirty days

after the decision. County Code § 23-5 (2005) provides that

“[a]ny person aggrieved by the decision of the [planning director

of the County] in the administration or application of this

chapter, may, within thirty days after the director’s decision,

appeal the decision to the board of appeals.14 (Emphasis added).

Similarly, the BOA Rules provide that “[a]ny person aggrieved by

the decision of the Director in the administration or application

of the Zoning, [and] Subdivision . . . chapters of the Code . . .

14
§ 23-5 provides that upon appealing the director’s decision to the
BOA, the BOA may take the following actions:

The board of appeals may affirm the decision of the director, or
it may reverse, modify or remand the decision if the decision is:

(a) In violation of this chapter or other applicable law; or
(b) Clearly erroneous in view of the reliable, probative and
substantial evidence on the whole record; or
(c) Arbitrary, or capricious, or characterized by an abuse of
discretion or clearly unwarranted exercise of discretion.

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may appeal the decision to the Board,”15 § 8-2 (emphasis added),

so long as the appeal is “filed within thirty days after the

decision.”16 § 8-3.

Neither the County Code nor the BOA Rules defines the

phrase “the decision.” However, the County Charter, which

establishes the BOA and its jurisdiction,17 specifies that the BOA

“shall: (a) Hear and determine appeals from final decisions of

the planning director or the director of public works regarding

matters within their respective jurisdictions.”18 § 6-9.2 (2010)

(emphasis added). “[A]n ordinance must conform to, be

subordinate to, not conflict with, and not exceed the charter[.]”

Fasi v. City Council of City & Cnty. of Honolulu, 72 Haw. 513,

518, 823 P.2d 742, 744 (1992) (quotation marks and citation

15
“Aggrieved person” is defined pursuant to County Code § 25-2-20
(2005). BOA Rules § 8-2. § 25-2-20 provides:

(b) A person is aggrieved by a decision of the director if:
(1) The person has an interest in the subject matter of the
decision that is so directly and immediately affected, that
the person’s interest is clearly distinguishable from that
of the general public; and
(2) The person is or will be adversely affected by the
decision.
16
The BOA Rules are available at
http://records.co.hawaii.hi.us/Weblink8/DocView.aspx?dbid=1&id=34351.

17
The BOA consists of seven members appointed by the mayor and
confirmed by the County council. County Charter § 6-9.2.
18
The 2010 County Charter is available at
http://hawaii.gov/elections/charters/charter_hawaii.pdf.

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omitted). Accordingly, the County Code and the BOA Rules must be

interpreted in a manner consistent with the Charter.

The County Charter requires appeals to be taken from

the Planning Director’s “final decisions.” The word “final”

means “not to be altered or undone,” “decisive” and “conclusive.”

Webster’s Third New Int’l Dictionary 851 (1993) [hereinafter

Webster’s]. See Black’s Law Dictionary 705 (9th ed. 2009)

[hereinafter Black’s Law] (defining “final” to mean “not

requiring any further judicial action by the court to determine

the matter litigated; concluded”).

Although the BOA Rules and the County Code do not use

the term “final decision,” the word “decision” alone also

connotes finality. “Decision” is defined to mean “the act of

deciding; specif: the act of settling or terminating,” “a

determination arrived at after consideration,” “the quality of

being decided,” and “the act of forming an opinion or of deciding

upon a course of action.” Webster’s, supra at 585. In the legal

context, “decision” means “[a] judicial or agency determination

after consideration of the facts and the law; esp., a ruling,

order, or judgment pronounced by a court when considering or

disposing of a case.” Black’s Law, supra at 467.

Thus the word “decision,” understood in its ordinary

and popular meaning, connotes a state of being final, settled or

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complete, and therefore has the same essential meaning as the

phrase “final decision.” See HRS § 1-14 (2009) (“The words of a

law are generally to be understood in their most known and usual

signification, without attending so much to the literal and

strictly grammatical construction of the words as to their

general or popular use or meaning.”); Saranillio v. Silva, 78

Hawai#i 1, 10, 889 P.2d 685, 694 (1995) (“Under general

principles of statutory construction, courts give words their

ordinary meaning unless something in the statute requires a

different interpretation.”).

Accordingly, when reading the County Code and BOA Rules

in concert with the County Charter, it is clear that only the

Planning Director’s “final decision” is appealable to the BOA.

Given that a “final decision” settles a matter, it is implicit

that there can only be a single “final decision” that may be

appealed. Additionally, County Code § 23-5 and BOA Rules § 8-2

refer to “the decision” in the singular.

b.

In this case, the subdivision challenged in Kellberg’s

Complaint19 was approved pursuant to the Planning Director’s July

11, 2005 letter to Fuke, which provided, “FINAL SUBDIVISION

19
Kellberg alleged in his Complaint that he was a “person aggrieved
by the decision of [the Planning Director] to approve SUB-05-00064.”

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APPROVAL NO. SUB-05-000064.” The letter stated, “Please be

informed that final subdivision approval for recordation is

hereby granted to the final plat map[.]” (Emphasis added). The

Planning Director’s decision to approve the subdivision was

understood by all interested persons to settle the matter of the

subdivision and to “decid[e] upon a course of action” with

respect to the Subject Property. Cf. Webster’s, supra, at 595.

Accordingly, Pruglo and Fuke acted in reliance on the

Director’s final approval, selling the first subdivision lot in

October 2005, and thereafter submitting a second subdivision

application in April 2006, which proposed consolidating lots that

were created by the July 11 subdivision approval.

Furthermore, the County Code consistently treats the

Director’s final plat approval as the “final decision” on a

subdivision application. For example, the final plat approval

triggers the owner’s ability to convey the land, to offer to

sale, lease or rent any subdivision, and to enter into options or

agreements for the purchase, sale, leasing or rental of the land.

§ 23-76 (2005) (“Land shall not be offered for sale, lease or

rent in any subdivision, nor shall options or agreements for the

purchase, sale, leasing or rental of the land be made until

approval for recordation of the final plat is granted by the

director.”). § 23-75 (2005) provides that “[n]o change in a

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subdivision, or in the plan of a subdivision, already approved,

may be made without the approval of the director.” (Emphasis

added).

The Code provides for the correction of “any error in

the dimensions or other discrepancies” contained in the final

plat, subsequent to final approval, but does not indicate that

any corrections have the effect of nullifying the final approval.

§ 23-74(c) (2005) (“The approval for recordation of the final

plat by the director shall not relieve the subdivider of the

responsibility for any error in the dimensions or other

discrepancies. Such errors or discrepancies shall be revised or

corrected, upon request, to the satisfaction of the director.”).

In fact, in 2006, County Code § 23-73 was amended to provide:

“The director’s issuance of final subdivision approval shall be

valid despite the absence of technical information as required by

section 23-69(1) and (3), or the absence of similar technical but

non-substantive information required by sections 23-69 and 70.”

County of Hawai#i, Haw., Ordinance No. 06-104 (Jul. 3, 2006),

available at

http://records.co.hawaii.hi.us/Weblink8/0/doc/30642/Page1.aspx.

Accordingly, although the subdivider in this case

submitted a revised final plat map in December 2006, which was

recertified on January 19, 2007, the County Defendants maintained

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that the revised map was “submitted to correct a deficiency” with

respect to showing the location of existing dwellings and did not

have the effect of “reevaluat[ing] the already-approved

subdivision.”20 In accordance with its position, the County

Defendants declared that “Final Subdivision Approval was

previously issued July 11, 2005.”

This position was further reflected in the BOA

Chairman’s March 21, 2006 letter to Kellberg, which stated,

“According to our records, the Planning Director granted Final

Subdivision Approval on July 11, 2005 for the 6-lot subdivision

of the subject property.” In the next sentence, the BOA Chairman

wrote, “For your information, Section 8-3 [of the BOA Rules]

states that an appeal from the decision of the Planning Director

shall be filed within thirty (30) days after the decision.”

Thus, the indisputable inference is that the Chairman considered

the Director’s final subdivision approval to be “the decision”

referenced in § 8-3.

Under these circumstances, it is clear that the July

11, 2005 subdivision approval was the Director’s final,

appealable “decision” within the meaning of County Code § 23-5

and BOA Rules Part 8.

20
County Code § 23-64 (Supp. 2006) provides that the preliminary
plat shall include information on the “location of all existing structures,”
“unless waived or deferred by the director.”

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c.

The ICA did not dispute that the Director’s July 11,

2005 subdivision approval constituted an appealable decision.

The ICA found that the BOA Chairman’s March 2006 letter to

Kellberg “addressed Kellberg’s right to appeal the July 11, 2005

subdivision approval only[.]” 2013 WL 3156015, at *4. However,

the ICA went on to find that the BOA’s letter “did not preclude

or otherwise address Kellberg’s right to appeal any other

decision of the Planning Director,” and the Director’s October

23, 2006 constituted a second appealable decision. Id. (emphasis

added).

First, as noted, only the Planning Director’s final

decision is appealable pursuant to the County Code, BOA Rules,

and County Charter. As Kellberg argues, if “any” decision of the

Planning Director triggered an appeal to the BOA, then

“administrative chaos” would result because “every decision made

by the Director potentially must be reviewed by the BOA within

thirty days, and no final decision can ever be understood to be

truly final because a later decision, even a decision to do

nothing must be appealed.” Thus, the ICA erred in determining

that Kellberg had a right to appeal “any other decision” of the

Planning Director in addition to the acknowledged final

subdivision approval.

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Second, the Director’s October 23, 2006 letter did not

constitute a final decision. The letter was sent over a year

after the final subdivision approval. In the letter, the

Director explained what had occurred with the Planning

Department’s determination of pre-existing lots, and

acknowledged, “As Mr. Kellberg correctly points out, there was a

mistake in the approval of that subdivision.” The Director then

wrote, “I am not going to do anything to undo this situation at

this time.” The Director explained, “Sub. 05-00064 has received

final subdivision approval and at least some of the lots have

been sold. Given that parcel 110 is physically separated from

the remainder of Sub. 05-00064, and from any property owned by

the subdivider, I cannot see a way to erase its separate

existence.” The Director concluded the letter by informing

Kellberg that any future correspondence from the Planning

Department concerning “Sub. 06-000333 and any revisions of Sub.

05-00064” would be sent to him.

The Director’s letter did not state that it constituted

a final decision on the subdivision approval, or alternatively

that it constituted a decision on a request for reconsideration

of the subdivision approval. Contrary to the ICA’s assertion, it

was not “clear [that] the Planning Director’s October 23, 2006

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letter constituted an appealable decision.” 2013 WL 3156015, at

*4.

Notably, the ICA did not explain what aspects of the

letter affirmatively made it “clear” that it constituted an

appealable decision. The ICA’s entire analysis consisted of

demonstrating that the Director’s letter was unlike the letters

at issue in Hoku Lele, LLC v. City & Cnty. of Honolulu, 129

Hawai#i 164, 296 P.3d 1072 (App. 2013),21 in the sense that the

Director did not “actively discourage[]” Kellberg from appealing

or “suggest[] the planning director could take further action

that would culminate in an appealable decision.” 2013 WL

3156015, at *4.

However, the fact that the Director did not “actively

discourage” Kellberg from appealing does not lead to the

conclusion that the Director’s letter constituted a final,

appealable decision.

Contrary to the ICA’s conclusion, an examination of the

Director’s letter demonstrates that there is nothing in the

21
In Hoku Lele, the plaintiff submitted a “zoning verification”
request to the city’s Department of Planning and Permitting, seeking
confirmation of the legality of the plaintiff’s property and certain buildings
on the property. 129 Hawai#i at 165, 296 P.3d at 1073. The Department’s
director response “actively discouraged [the plaintiff] from appealing to the
[Zoning Board of Appeals] by suggesting the director could take further action
and could change his position regarding [the plaintiff’s] right to retain
Buildings C and D through a determination on a variance application.” Id. at
165, 296 P.3d at 1077.

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letter to suggest that it constituted a separate appealable

decision from the July 11, 2005 “final subdivision approval.”

The most conclusive statement in the Director’s letter provides,

“I am not going to do anything to undo this situation at this

time.” However, the Director went on to explain that he could

not “undo” the situation because the subdivision had already

“received final subdivision approval and at least some of the

lots have been sold.” (Emphasis added). Thus, rather than

establishing a new decision, the Director’s October 23, 2006

letter reinforced the finality of the Director’s July 11, 2005

subdivision approval as the “final decision” on the subdivision.

The July 11, 2005 final subdivision approval therefore

constituted the Director’s final “decision” on the matter of the

subdivision. The Director’s October 23, 2006 letter did not have

the effect of supplanting the final subdivision approval and did

not constitute an appealable final “decision.” The ICA thus

erred by holding that Kellberg failed to exhaust available

administrative procedures based on the ICA’s determination that

the Director’s letter constituted an appealable decision.

2.

Under County Code § 23-5 and BOA Rules § 8-2 and § 8-3,

Kellberg was required to file an appeal with the BOA within

thirty days of the Planning Director’s final decision on July 11,

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2005. Prior to filing his Complaint with the circuit court,

Kellberg did not file such an appeal. As noted, generally the

doctrine of exhaustion of remedies requires an aggrieved party to

exhaust administrative remedies before seeking judicial review.

Kona Old, 69 Haw. at 93, 734 P.2d at 169.

However, the “doctrine of exhaustion is not absolute.”

Williams v. Aona, 121 Hawai#i 1, 11, 210 P.3d 501, 511 (2009).

See generally 2 Am. Jur. 2d Administrative Law § 478 (“Failure to

exhaust remedies is not an absolute bar to judicial consideration

and must be applied in each case with an understanding of its

purposes and of the particular administrative scheme involved.”).

This court has held that “‘[a]n aggrieved party need

not exhaust administrative remedies where no effective remedies

exist.” Williams, 121 Hawai#i at 11, 210 P.3d at 511 (quoting

Hokama v. Univ. of Haw., 92 Hawai#i 268, 273, 990 P.2d 1150, 1155

(1999)). Likewise, “[w]henever exhaustion of administrative

remedies will be futile it is not required.”22 Poe v. Haw. Labor

Relations Bd., 97 Hawai#i 528, 536, 40 P.3d 930, 938 (2002)

(quoting 4 Davis, Administrative Law Treatise § 26:11 (2d ed.

1983)) (quotation marks and brackets omitted).

22
“[T]he burden of proving that any particular administrative remedy
is futile rests with the litigant seeking to bypass it.” In re Doe, 96
Hawai#i 272, 287 n.20, 30 P.3d 878, 893 n.20 (2001).

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“Ordinarily, futility refers to the inability of an

administrative process to provide the appropriate relief.” In re

Doe Children, 96 Hawai#i 272, 287 n.20, 30 P.3d 878, 893 n.20

(2001). See e.g., Poe, 97 Hawai#i at 536-37, 40 P.3d at 938-39

(individuals who sue employers for breach of a collective

bargaining agreement need not exhaust remedies under that

agreement “when pursuing the contractual remedy would be

futile”); Haw. Insurers Council v. Lingle, 120 Hawai#i 51, 72,

201 P.3d 564, 585 (2008) (in suit challenging constitutionality

of statute requiring payment of fees to insurance commissioner,

commissioner would have been powerless to declare the fees

imposed to be unconstitutional or to provide a refund on that

basis).

It would appear self-evident that a party lacks an

effective administrative remedy in a situation where the party is

time-barred from appealing an administrative decision that the

party was never appropriately made aware of until after the time

for appeals had ended. If the party is not given notice that an

appealable administrative decision was made in the first

instance, then even the most sophisticated party who is aware of

the appeals process would be precluded from any opportunity to

timely appeal the decision. See Michael Asimow, Judicial Review:

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Standing and Timing, 27 Judicial Review of Agency Action 269

(1997) (“Where a litigant failed to exhaust a remedy because he

was not appropriately notified of its availability in time to use

the remedy, the failure to exhaust is excused.”).23

Washington courts have recognized the futility of an

administrative appeal in such circumstances, holding that a

party’s failure to exhaust administrative remedies will be

excused “if the aggrieved party has no notice of the initial

administrative decision or no opportunity to exercise the

administrative review procedures.” South Hollywood Hills

Citizens Ass’n for Pres. of Neighborhood Safety & Env’t v. King

Cnty., 677 P.2d 114, 118 (Wash. 1984) (en banc) (holding that

county ordinance requiring publication of plat approval and

posting of notices on property itself were constitutionally

sufficient to notify adjacent property owners). See Gardner v.

Pierce Cnty. Bd. of Com’rs, 617 P.2d 743, 745 (Wash. Ct. App.

1980) (exhaustion rule inapplicable where “[d]efendants

concede[d] that the County did not give notice of the negative

declaration when it was issued . . . , and there is nothing in

23
This report was prepared for the California Law Revision
Commission, an independent state agency. Cal. Gov’t Code § 8280. The
commission publishes its annual reports, recommendations and studies in
published bound volumes, available at http://www.clrc.ca.gov/Mreports-
publications.html. Asimow’s report to the Commission is available at
http://clrc.ca.gov/pub/BKST/BKST-Asimow5.pdf.

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the record . . . to indicate that [the plaintiff] had notice of

the declaration or an opportunity to challenge it[.]”).

In this case, the subdivision application, submitted

April 7, 2005, was approved by the Planning Director on July 11,

2005, through a letter sent directly from the Director to Fuke.

At the time of the approval, the County Code did not require any

notice to adjoining property owners of pending subdivision

applications or final approval of applications.24 Kellberg lacked

knowledge of the subdivision application and approval until

August 11, 2005, when he learned of the subdivision by chance,

through observing a “for sale” sign on the Subject Property and

being contacted by a realtor offering to sell him a subdivision

lot. By that time, the thirty-day time period for appealing the

Director’s decision to the BOA had already passed the day before,

on August 10, 2005. Under these circumstances, where Kellberg

failed to timely appeal the Director’s final subdivision approval

because he had no opportunity to receive notice of the approval,

24
Subsequently on September 18, 2005, the County passed an ordinance
adding County Code § 23-58.1, requiring the subdivision applicant to post a
sign on the subject property that would notify the public of the application
and remain on the property until final approval, or until the application has
been rejected or withdrawn. County of Hawai#i, Haw., Ordinance No. 05-135
(Sept. 18, 2005), available at
http://records.co.hawaii.hi.us/Weblink8/0/doc/27823/Page1.aspx.
In 2006, the County amended the County Code to add § 23-58.2,
requiring the director to publish, on a semi-monthly basis, a list of all
subdivision applications. County of Hawai#i, Haw., Ordinance No. 06-104 (Jul.
3, 2006), available at
http://records.co.hawaii.hi.us/Weblink8/0/doc/30642/Page1.aspx.

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the exhaustion doctrine should not be applied to preclude

Kellberg’s appeal.

Even if Kellberg had immediately filed an appeal with

the BOA on August 11, 2005, when he first learned of the

subdivision approval, his appeal would have been dismissed as

untimely. This was confirmed by the BOA Chairman’s March 21,

2006 letter, which was written in response to Kellberg’s request

for information regarding the BOA’s appeals process. The

Chairman wrote that final subdivision approval had already been

granted on July 11, 2005 and that any appeal from the Director’s

decision must be filed within thirty days of the decision.

The County Defendants have not claimed that Kellberg

had any way of knowing that the subdivision had been approved on

July 11, 2005. The County Defendants have also not addressed

what effect such lack of knowledge had on Kellberg’s inability to

exhaust administrative remedies. Instead, the County Defendants

sought to avoid the issue of whether Kellberg received any notice

of the final subdivision approval by arguing that they considered

the Director’s October 23, 2006 letter to be the “final decision”

from which Kellberg should have appealed.

However, as noted, the Director’s October 2006 letter

did not constitute an appealable decision. Accordingly, Kellberg

was only able to appeal from the July 11, 2005 final subdivision

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approval, of which he had received no notice within the period

allowed for an appeal. Because the County Code and the BOA Rules

did not require any such notice, the law did not provide Kellberg

with a meaningful opportunity to appeal the Planning Director’s

decisions. See Pele Defense Fund v. Puna Geothermal Venture, 9

Haw. App. 143, 151, 827 P.2d 1149, 1154 (1992) (“Where the

administrative machinery is not provided, the power of the court

is not ousted by a claim of failure to exhaust administrative

remedies.”). Thus, Kellberg’s failure to timely appeal the final

subdivision approval to the BOA is excused.

Furthermore, this court has held that the exhaustion

doctrine may be excused when the policy interests underlying the

doctrine, which involve interests of comity between courts and

administrative agencies, are “outweighed by other interests.”

Williams, 121 Hawai#i at 11, 210 P.3d at 511. See South

Hollywood Hills Citizens Ass’n, 677 P.2d at 118 (“Washington

courts have recognized exceptions to the exhaustion requirement

in circumstances in which these policies are outweighed by

consideration of fairness or practicality.”); Lochsa Falls,

L.L.C. v. State, 207 P.3d 963, 968 (Idaho 2009) (the court has

recognized exception to exhaustion doctrine “when the interests

of justice so require”).

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In this case, although the time for appeal had already

passed by the time Kellberg learned of the final subdivision

approval, Kellberg diligently made multiple efforts to correct

what he believed to be serious errors and omissions in the

subdivision approval. Kellberg immediately began attempting to

contact the Planning Director after learning about the

subdivision, visiting the Planning Department office the next day

and leaving messages for the Director to contact him. When the

Director failed to contact him as requested, Kellberg wrote his

first letter on August 16, 2006, detailing the errors he observed

in the subdivision approval. Kellberg continued attempting to

contact the Director to no avail, and wrote a second letter to

the Director on January 17, 2006.

In February and March 2006, Kellberg contacted

Corporation Counsel, the BOA, and the Mayor regarding his

concerns about the subdivision approval. Corporation Counsel

responded by suggesting that Kellberg simply continue attempting

to contact the Director and consider appealing to the BOA,

although the BOA subsequently informed him that the time for an

appeal had already passed. On June 19, 2006, Kellberg wrote a

third letter to the Director, and Kellberg’s counsel wrote a

fourth letter to the Director on Kellberg’s behalf on August 25,

2006. Despite Kellberg’s significant efforts, the first and only

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substantive response Kellberg received in regard to his concerns

with the subdivision approval was the Director’s October 23, 2006

letter.

Under these circumstances, it would be manifestly

unfair to apply the exhaustion doctrine to dismiss Kellberg’s

Complaint simply because he failed to appeal the July 11, 2005

decision within thirty days. The doctrine of exhaustion is one

of comity between the courts and the agencies. “Comity may be

broadly defined as ‘reciprocity,’” or the principle that courts

will give effect to the decisions of agencies “out of deference

and mutual respect.” Chun v. Bd. of Trs. of Emps.’ Ret. Sys. of

State of Haw., 92 Hawai#i 432, 446, 992 P.2d 127, 141 (2000)

(quotation marks and citations omitted).

This case does not implicate any concerns of comity

between the circuit court and the BOA, as the County Defendants’

actions and the BOA’s procedures had the effect of precluding

Kellberg entirely from filing an appeal of the Director’s final

subdivision approval. Similarly, exercising jurisdiction over

Kellberg’s Complaint raises no concerns that it will encourage

the “deliberate flouting of administrative processes,” or

infringe on “agency autonomy” by preventing the BOA from

“apply[ing] its expertise . . . and correct[ing] its own errors.”

Andrade v. Lauer, 729 F.2d 1475, 1484 (D.C. Cir. 1984). On the

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contrary, the circuit court expressly gave the BOA the

opportunity to address the merits of Kellberg’s claims and to

correct any errors of the Planning Director with respect to the

subdivision approval. Rather than taking the opportunity to

apply its expertise, however, the BOA dismissed Kellberg’s

Petition for untimeliness.

The purpose of the exhaustion requirement is “to

redirect grievances for their proper resolution, not to preclude

them altogether.” Hokama, 92 Hawai#i at 275, 990 P.2d at 1157.

From the time Kellberg learned of the final subdivision approval,

he was already precluded from an opportunity to appeal the

approval to the BOA because he was not notified of the approval,

and the applicable law at the time provided no mechanism for such

notification. When the circuit court sought to provide Kellberg

with an opportunity appeal to the BOA, the BOA dismissed his

appeal as untimely. Based on the foregoing, it cannot be said

that Kellberg had any meaningful administrative remedies left to

exhaust before filing his Complaint.

If the exhaustion doctrine were strictly and

mechanically applied in this case, then Kellberg would be left

without a remedy, prevented from any opportunity to redirect his

grievance for its proper resolution. Such a result would be

plainly inequitable under the circumstances. Cf. Hokama, 92

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Hawai#i at 275, 990 P.2d at 1157 (holding that twenty-day

limitations period for filing grievances under contract “should

not operate to automatically bar” the plaintiff’s claims where

the plaintiff’s failure to exhaust administrative remedies was

reasonable under the circumstances); Painters Dist. Council No.

2. v. Tiger Stripers, Inc., 582 F. Supp. 860, 863 (E.D. Mo. 1984)

(“[t]o now hold [the claimant] to the time period specified in

the contract for initiating the grievance procedure . . . would

neither be fair nor serve to further the purposes of the

exhaustion requirement,” where the claimant’s belief that the

administrative procedure “was neither mandatory nor available to

it” was “not unreasonable”).

Accordingly, Kellberg was not required to exhaust

administrative remedies by appealing the Director’s final

subdivision approval to the BOA within thirty days of the

decision. The ICA therefore erred by holding that Kellberg’s

Complaint should have been dismissed for lack of subject matter

jurisdiction based on the exhaustion doctrine.

3.

The County Defendants also argue that Kellberg

“deliberately failed to exhaust his administrative remedies”

because Kellberg did not appeal the BOA’s decision to dismiss his

Petition following the circuit court’s remand to the BOA.

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However, the circuit court’s order granting Kellberg’s

Motion for Partial Summary Judgment remanded the case to the BOA

specifically for the purpose of allowing Kellberg to appeal the

Director’s October 23, 2006 letter. The circuit court had

explained during the hearing on the motion that it wanted to

“flesh out the record at the County level,” and that the court

was “sending it back to the Board of Appeals to process”

Kellberg’s appeal. The court had also denied the County

Defendants’ Third Motion to Dismiss on the same day that it

entered its order remanding the case to the BOA.

Kellberg complied with the court’s order of remand by

filing his Petition with the BOA. Nevertheless, the BOA

dismissed the Petition based on Kellberg’s failure to file an

appeal with the BOA within thirty days of the Director’s letter.

Consistent with the circuit court’s order of remand,

after the BOA’s dismissal, Kellberg returned to the circuit court

and filed the Motion for Injunction, requesting an order granting

summary judgment on Count V of the Complaint and seeking an

injunction remanding the case to the Planning Department with

instructions to the Planning Director to bring the subdivision

into compliance with the County Code.

At the hearing on the Motion for Injunction, the

circuit court commented that the BOA dismissed the Petition for

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being untimely, even though the court had already held that “the

timing of all of these matters did not allow [Kellberg] . . . to

adequately lodge an appeal with the board[.]” The circuit court

again explained, “I was trying to give the county and the board

of appeals the opportunity [to provide remedies].” The court

further stated that it was “inclined to go ahead and grant the

motion[.]” However, five months later, the court filed orders

denying the Motion for Injunction, determining that Count V of

the Complaint was “moot” because the court’s order remanding the

case to the BOA “addressed Mr. Kellberg[’s] right and opportunity

to be heard referred to in Count V.” The court concluded that

Kellberg’s “failure to exhaust his administrative remedies

forecloses this court from further action in this matter.”

It is unclear how Kellberg’s actions could be

interpreted as failing to exhaust administrative remedies when

Kellberg complied with the court’s order remanding the case to

the BOA and the BOA undermined the purpose of the remand by

dismissing his Petition as untimely. The circuit court’s

consideration of Kellberg’s Complaint was still ongoing when the

court remanded the case to the BOA by granting Kellberg’s Motion

for Partial Summary Judgment as to Counts I, II and IV of the

six-count Complaint. As noted, the circuit court did not dismiss

the case when it remanded the case to the BOA; rather, it denied

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the County Defendants’ Third Motion to Dismiss. Thus it was

clearly contemplated that the parties would return to the circuit

court regardless of the outcome of the BOA appeal. It was

therefore unnecessary for Kellberg to have filed a separate

appeal of the BOA’s dismissal.

Filing such an appeal would also have been contrary to

the interests of judicial economy served by the exhaustion

doctrine. See Williams, 121 Hawai#i at 9, 210 P.3d at 509 (“In

general, the doctrine of exhaustion of remedies is a policy of

judicial economy.”).

“‘The exhaustion principle asks simply that the avenues

of relief nearest and simplest should be pursued first.’” Kona

Old, 69 Haw. at 93, 734 P.2d at 169 (quoting Moore v. City of

East Cleveland, 431 U.S. 494 (1977) (Burger, C.J., dissenting))

(ellipses omitted). In the context of this case, where the

circuit court ordered the BOA to consider Kellberg’s appeal, and

the BOA acted contrary to the order, the “nearest and simplest”

avenue of relief for Kellberg was to return to the circuit court

rather than filing an entirely new appeal. Accordingly, the lack

of a new appeal did not constitute a failure to exhaust

administrative remedies.

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B.

The second issue raised in Kellberg’s Application asks

whether, assuming that the Director’s October 23, 2006 letter was

an appealable final decision, the Director had a due process

obligation to give Kellberg notice that the letter constituted

such a decision.

As Kellberg notes, the court need not reach the second

question because the Director’s letter did not constitute an

appealable final decision. However, it is noted that while the

ICA did not address whether the Director’s letter satisfied due

process requirements, the ICA held that it was “clear” that the

Director’s letter constituted an appealable decision. 2013 WL

3156015, at *4.

In Hoku Lele, 129 Hawai#i 164, 296 P.3d 1072, the court

held that the Zoning Board of Appeals lacked jurisdiction to

review the planning director’s letters responding to requests for

zoning verification because the director lacked the ability to

render “decisions” on such requests. Id. at 167-68, 296 P.3d at

1075-76. However, the court found that even assuming the board

had jurisdiction to review the letters, “the procedure employed

by the [city planning department] in this case creates a

substantial risk of permanently depriving [the plaintiff] of its

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ability to seek review either at the ZBA or in court.” Id. at

168, 296 P.3d at 1076 (emphasis added).

In this regard, the Hoku Lele court noted that where

the time for appeal was “mandatory, exclusive, and short,” other

jurisdictions had held that “due process required the government

to provide affirmative notice” of the right to appeal. Id. The

court then found that the director’s letter in that case

“included several paragraphs explaining the variance application

process but failed to mention the ZBA” appeals process and

actively discouraged the plaintiff from appealing to the ZBA by

suggesting he could take further action and by suggesting a

variance application as a second option. Id. at 168-69, 296 P.3d

at 1076-77.

Similarly, even if the Planning Director’s October 2006

letter had constituted an appealable “decision,” the ICA’s

finding that the letter was “clear” in this regard is problematic

in two respects. First, it is unreasonable to expect the

recipient of the Director’s correspondence to know that any

casual conclusion or observation (“I am not going to do anything

to undo this situation at this time”) may constitute a final

appealable decision. Second, the difficulty of timely appealing

to the BOA from such correspondence is compounded when

considering that the time for appeals is relatively short; only

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thirty days from the time of the Director’s decision. These

challenges “create[] a substantial risk of permanently depriving”

the recipient of his or her ability to seek timely review through

the BOA. Hoku Lele, 129 Hawai#i at 168, 296 P.3d at 1076.

As noted by Kellberg, the burden on the Director to

inform recipients that a letter represents a “final decision”

that must be appealed to the BOA within thirty days is minimal

when considering the interests of the recipients. For example,

Kellberg argues that the City and County of Honolulu clearly

states in its letters that the Planning Director has reached a

decision, which may be appealed to the Zoning Board of Appeals

within thirty calendar days.

Providing notice that the Director’s letter constitutes

a final appealable decision is consistent with the exhaustion

doctrine. In order for the doctrine to apply, “[t]he statute,

ordinance or regulation under which the agency exercises its

power must establish ‘clearly defined machinery for the

submission, evaluation and resolution of complaints by aggrieved

parties.’” Pele Defense Fund v. Puna Geothermal Venture, 9 Haw.

App. 143, 152, 827 P.2d 1149, 1154 (App. 1992) (quoting

Rosenfield v. Malcolm, 421 P.2d 697, 701 (Cal. 1967)) (emphasis

added). Cf. Haw. Blind Vendors Ass’n v. Dep’t of Human Servs.,

71 Haw. 367, 374, 791 P.2d 1261, 1265 (1990), overruled on other

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grounds by Tamashiro v. Dep’t of Human Servs., 112 Hawai#i 388,

146 P.3d 103 (2006) (holding that plaintiffs were not time barred

from requesting an agency hearing because the agency process was

not “of such a nature as to impress fully upon the litigant the

opportunity for recourse it supplies and the consequence of

failure to seek such recourse”).

If the goal of the exhaustion doctrine is to redirect

grievances to their proper forum, then such a goal is not served

by fostering uncertainty over the Director’s decisions and the

BOA’s process for administrative review. Rather, claimants,

agencies, and courts alike benefit when the process for agency

review is clearly articulated so that claimants can fairly and

efficiently resolve their disputes without resorting to the

courts.

Similarly, providing such notice in the Planning

Director’s communications would also be consistent with basic

principles of due process, which generally provide that the right

to be heard is meaningless without being given the information

necessary to exercise that right. Cf. Brody v. Village of Port

Chester, 434 F.3d 121, 130-32 (2d Cir. 2005) (notice of

condemnation procedures “sent to affected property owners must

make some conspicuous mention of the commencement of the thirty-

day review period to satisfy due process”); Town of Randolph v.

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Estate of White, 693 A.2d 694, 696 (Vt. 1997) (“The right to be

heard is worth little unless one is informed that the matter is

pending and can choose ‘whether to appear or default, acquiesce

or contest.’”) (quoting Mullane v. Central Hanover Bank & Trust

Co., 339 U.S. 306, 314 (1950)); Memphis Light, Gas & Water Div.

v. Craft, 436 U.S. 1, 13 (1978) (municipal utility’s notice of

termination of utility service was not reasonably calculated to

inform customers of the availability of an opportunity to present

their objections, where the “final notice” simply stated that

payment was overdue and that service would be discontinued if

payment was not made).

The record in this case demonstrates that the errors

resulted from Kellberg’s lack of notice as to the Director’s

final subdivision approval, and confusion over the nature of the

Director’s October 2006 letter. As noted, the County Code now

includes mechanisms for providing public notice of subdivision

applications and final approval.25 In order to prevent future

misunderstandings over the significance and effect of the

Director’s statements and correspondence, it would be beneficial

for the Planning Director to clearly indicate when an appealable

“decision” has been made and how an interested person may

challenge that decision. In addition to being consistent with

25
See supra note 24.

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the doctrine of exhaustion of remedies and the principles of due

process, such efforts would impose only a minimal burden on the

Director while having the significant benefit of promoting

clarity in the review process. Such clarity would help to ensure

that grievances are actually resolved through their proper forum

rather than precluded due to lack of notice and confusion over

the review process.

IV. CONCLUSION

For the reasons set forth in this opinion, we vacate

the ICA’s July 19, 2013 Judgment on Appeal and remand the case to

the ICA for consideration of the remaining issues raised by

Kellberg in his appeal to the ICA.

Robert H. Thomas and /s/ Mark E. Recktenwald
Mark M. Murakami
for petitioner /s/ Paula A. Nakayama

Michael J. Udovic /s/ Simeon R. Acoba, Jr.
for respondent
/s/ Sabrina S. McKenna

/s/ Richard W. Pollack

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