Yuen v. BOARD OF APPEALS OF COUNTY OF HAWAII

NOT FOR PUBLICATION IN WEgST’S HAWAI‘I REPORTS AND PACIFIC REPORTER

NO. 29376

IN THE INTERMEDIATE COURT OF APPEALS

CF THE STATE OF HAWAIT

Appellant-Appellant, xi

v. ' §§

BOARD OF APPEALS OF THE COUNTY OF HAWAII;,` gp
VALTA COOK, in his capacity as Chairperson5§ 55

of the BOARD OF APPEALS OF THE COUNTY OF
HAWAII; and MARLENE E. CALVERT,
Appellees-Appellees

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CIVIL NO. 07-1-O4l4)

MEMORANDUM OPINION

Nakamura, C.J., Foley and Fujise, JJ.)

(By:
In a secondary appeal of an administrative decision

involving an application for a water variance, Appellant-

Appellant Christopher J. Yuen, Planning Director, County of
HawaiHq (Director) appeals from the Judgment filed on August 29,

2008 in the Circuit Court of the Third Circuitl (circuit court).

Pursuant to its "Findings of Fact, Conclusions of Law, and

Decision and Order Affirming the Board of Appeals of the County

of Hawaii's Decision and Order Filed November 19, 2007"

(FOF/COL/Order), the circuit court entered judgment in favor of

-Appellees-Appellees Board of Appeals of the County of HawaiU.

(BOA); Valta Cook, in his capacity as Chairperson of the BOA

and Marlene E. Calvert (Calvert) and against Director.

(Cook);
On appeal, Director contends the following Conclusions

of Law (COLs) in the circuit court's FOF/COL/Order are wrong:
(l) COLs 2 and 5, which state that the Calvert

variance was required by law to be obtained before the formation,

1 The Honorable Greg K. Nakamura presided.

wills s

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operation, or expansion of a commercial enterprise under Hawaii
Revised Statutes (HRS) § 91-l3.5 (Supp. 2005); _

(2) COLs 8 and 9, which state that the Calvert
variance application was automatically granted pursuant to HRS
§ 91-l3.5; and

(3) COL l0, which states that BOA's November 9, 2007
"Findings of Fact, Conclusions of Law, and Decision and Order
Approving variance Application No. 05~056" (BOA Decision and
Order) was affirmed.

I. BACKGROUND

Calvert and her late husband owned 480 acres of land in
the district of KaH1, County of Hawafi. The property was
developed in phases 1 and 2 for commercial purposes as Kahuku
Country Estates Subdivision (KCES), and Calvert sold all of the
lots within phases 1 and 2. For each phase, Calvert obtained
water waivers or variances from the County of HawaiUH

Calvert proposed a third phase of development for KCES.
On June 9, 2005, Calvert applied for a water variance from the
County of HawaFi for that phase, The Hawaii County Planning
Department (Planning Department), however, did not officially
deny Calvert's application until October 5, 2005 -- 58 days
after the deadline for issuing a decision had passed. On
October 28, 2005, Calvert appealed Director's denial to BOA.
After a hearing, BQA reversed Director's denial. Director
appealed the reversal to the circuit court, and the court
reversed and remanded BOA's decision.

On remand, BOA ruled in favor of Calvert

on the grounds that the Planning Director's decision was
late and therefore automatically approved, . . . and in
the alternative, that the decision denying the variance was
arbitrary and capricious in that it failed to consider other
relevant factors including the size of the catchment system,
storage capacity and monthly rainfall data.

On December l8, 2007, Director appealed the ruling to
the circuit court. The circuit court affirmed "on the ground
that the Planning Director's denial of the Calvert variance

Application was issued after the 60-day period for action on the

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application had expired and that, as a result, the application
was automatically granted pursuant to HRS § 91-13.5." The
circuit court did not address "other issues considered by the
[BOA] in its Decision and Order."
Director timely appealed from the Judgment.
II. ST¥H§DFEUDS (JF EUTVIEWV

A. Administrative Agency Decisions-Secondary Appeals

Review of a decision made by the circuit court upon
its review of an agency's decision is a secondary appeal,
In an appeal from a circuit court's review of an
administrative decision the appellate court will utilize
identical standards applied by the circuit court. Questions
of fact are reviewed under the "clearly erroneous" standard.
In contrast, an agency's legal conclusions are freely
'reviewable. An agency's interpretation of its rules
receives deference unless it is plainly erroneous or
inconsistent with the underlying legislative purpose.

Hawaii Teamsters & Allied Workers, Local 996 v..DeD't of Labor &

InduS. RelatiOnS, 110 HaWaiT.259, 265, 132 P.3d 368, 374 (2006)

(internal quotation marks and citations omitted).

B. Statutory Interpretation

Questions of statutory interpretation are questions of
law to be reviewed de novo under the right/wrong standard.

Our statutory construction is guided by the following
well established principles:

our foremost obligation is to ascertain and give
effect to the intention of the 1egislature, which is
to be obtained primarily from the language contained
in the statute itself. And we must read statutory
language in the context of the entire statute and
construe it in a manner consistent with its purpose.

when there is doubt, doubleness of meaning, or
indistinctiveness or uncertainty of an expression used
in a statute, an ambiguity exists.

In construing an ambiguous statute, the meaning
of the ambiguous words may be sought by examining the
context, with which the ambiguous words, phrases, and
sentences may be compared, in order to ascertain their
true meaning, Moreover, the courts may resort to
extrinsic aids in determining legislative intent. One
avenue is the use of legislative history as an
interpretive tool.

[The appellate] court may also consider the reason and

spirit of the law, and the cause which induced the
legislature to enact it to discover its true meaning.

Linqle v. Hawafi Gov't Emplovees Ass'n, AFSCME, Local 152, 107
HawaiU.178, 183, 111 P.3d 587, 592 (2005) (internal quotation

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marks, brackets, and ellipses omitted) (quoting Guth v. Freeland,
96 HaWafi l47, 149-50, 28 P.3d 982, 984-85 (2001)).
C. Conclusions of Law
[The appellate] court reviews the trial court's COLs
de novo. A COL is not binding upon an appellate court and
is freely reviewable for its correctness. Moreover, a COL
that is supported by the trial court's FOFs and that
reflects an application of the correct rule of law will not
be overturned.
Bhakta v. County of Maui, 109 Hawafi 198, 208, 124 P.3d 943, 953
(2005) (internal quotation marks, citations, and brackets in
original Qmitted).
III. DISCUSSION
S.I`€

Director contends the circuit court's COLs 2 and 5

wrong. COLs 2 and 5 provide:

2. The variance Application at issue in this appeal
is a county application for approval required by law to be
obtained before the formation, operation or expansion of a
commercial enterprise under HRS § 91-l3.5.

5. The next question is whether the application for
a variance constituted an "application for a business or
development-related permit, license, or approval" for the
purpose of HRS § 91-13.5 (2005). The Court determines that
the mixed findings of fact and conclusions of law or
conclusions of law that support the view the Calvert
variance Application was an "application for a business or
development-related permit, license, or approval" as defined
under HRS § 91-13.5(g)‘" were not clearly erroneous nor did
they constitute errors of law. This is because the Calvert
variance Application was a "county application, petition,
permit, license, certificate, or any other form of a request
for approval required by law to be obtained prior to the
formation, operation, or expansion of a commercial or
industrial enterprise."

y(Footnote not in original.)

Director argues that the automatic

approval provision of HRS § 91-l3.53 does not apply to a variance

2 HRs § 91-i3.5(g) in 2005 was HRs § 91-13.5(f).

3 HRS § 91-13.5 provides in relevant part:

§91~13.5 Maximum time period for business or development-
related permits, licenses, or approvals; automatic approval;
extensions. (a) Unless otherwise provided by law, an agency shall
adopt rules that specify a maximum time period to grant or deny a
business or development-related permit, license, or approval;

(continued...)

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under Chapter 23 (Subdivisions) of the Hawafi County Code 1983
(2005 Edition, as amended) (HCC) because (1) the statutory
authority for the code, HRS § 46-1L5(13) (Supp. 2004), is not one
of the enumerated sections under § 91-13.5 to which automatic
approval applies and (2) applying automatic approval to county
variances would defeat the purpose and intent of the HCC.
Director notes that a water variance is not a legal

requirement for running a business and therefore cannot be
"required by law to be obtained prior to the formation,
operation, or expansion of a commercial or industrial
enterprise." HRS § 91-13.5. Director further argues that the
HCC imposes many obligations on subdividers of land, but there is
no legal requirement that a business acquire a variance before
subdividing. Director maintains that a variance is a distinct
land use approval which permits the applicant to use his or her

property in violation of the subdivision code and therefore it is

3(...continued)

provided that the application is not subject to state administered
permit programs delegated, authorized, or approved under federal
law, .

(c) All such issuing agencies shall take action to grant
or deny any application for a business or development-related
permit, license, or approval within the established maximum period
of time, or the application shall be deemed approved; provided
that the delay in granting or denying an application caused by the
lack of quorum at a regular meeting of the issuing agency shall
not result in approval under this subsection; provided further
that any subsequent lack of quorum at a regular meeting of the
issuing agency that delays the same matter shall not give cause
for further extension, unless an extension is agreed to by all
parties.

(f) For purposes of this section, "application for a
business or development-related permit, license, or approval"
means any state or county application, petition, permit, license,
certificate, or any other form of a request for approval required
by law to be obtained prior to the formation, operation, or
expansion of a commercial or industrial enterprise, or for any
permit, license, certificate, or any form of approval required
under sections 46-4, 46-4.2, 46-4.5, 46-5, and chapters 183C, 205,
205A, 34OA, 34OB, 34OE, 34OF, 342B, 342C, 342D, 342E, 342F, 342G,
342H, 3421, 342J, 342]'_., and 342P.

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likely that the HawaiH.legislature did not intend for HRS § 91~
13.5's automatic approval provision to apply to variances.
BOA, Cook, and Calvert contend that COLs 2 and 5 are
right. BOA argues that the legislative history behind HRS § 91-
13.5 supports the extension of the automatic approval provision
to Calvert's variance application, Calvert argues that the
automatic approval provision of HRS § 91-13.5 applies to
Calvert's variance application because the variance is
"indispensable to moving forward with a commercial enterprise"
and therefore is "required by law to be obtained prior to the
formation, operation, or expansion of a commercial or industrial
enterprise."
HRS § 91-l3.5's automatic approval provision applies

to those county applications "for approval required by law to be

obtained prior to the formation, operation or expansion of a

commercial . . . enterprise." HRS § 91-13.5(f) (emphasis added).

,Both BOA and Calvert argue for an expansive reading of this

language. Calvert, in particular, argues that a variance is
"required by law" if it is "indispensable to moving forward with
a commercial enterprise." Calvert's interpretation of "required
by law" would render HRS § 91.13.5's reach virtually limitless.
Potentially any application, permit, license, or approval is
"indispensable to moving forward with a commercial enterprise."
Such a broad reading conflicts with the enumerated provisions
under HRS § 91-13.5 that expressly limit the provision's reach:
"'application for a business or development-related permit,
license, or approval' means . . . any form of approval required
under sections 46-4, 46-4.2, 46-4.5, 46-5, and chapters 183C,
205, 205A, 34OA, 34OB, 34OE, 34OF, 342B, 342€, 342D, 342E, 342F,
342G, 342H, 3421, 342J, 342L, and 342P."

The phrase "required by law" plainly and obviously
refers to those legal requirements that precede the formation,
operation, or expansion of a business. `Bhakta, 109 Hawaii at

208, 124 P.3d at 953 (internal quotation marks and citation

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omitted) ("It is a cardinal rule of statutory interpretation
that, where the terms of a statute are plain, unambiguous and
explicit, we are not at liberty to look beyond that language for
a different meaning, Instead, our sole duty is to give effect to
the statute's plain and obvious meaning.") A variance
application is not required by law because it is not an
obligation imposed on the developer by the HCC as a prerequisite
to subdivision. §§§ HCC § 23-14 ("variances from the provisions
of this chapter may be granted; provided, that a variance shall
not allow the introduction of a use not otherwise permitted
within the district; and provided further that a variance shall
not primarily effectuate relief from applicable density
limitations.").

Because we conclude that a variance is not required by
law prior to the formation, operation, or expansion of a
business, we conclude that COLs 2 and 5 are wrong.

Director contends that COLs 8 and 9 are wrong. COLs 8

and 9 provide:

8. The decision is affirmed on the ground that the
Planning Director's denial of the Calvert variance
Application was issued after the 60-day period for action on
the application had expired and that, as a result, the
`application was automatically granted pursuant to HRS §91-
13.5.

9. Because of this Court's conclusion that the
variance Application was approved as a matter of law on
August 8, 2005, the Court does not reach the other issues
considered by the Board of Appeals in its Decision and Order
filed November 19, 2007.

Because HRS § 91-13.5 does not apply to Calvert's variance
application, Calvert's application could not have been
automatically approved by operation of law upon the Director*s
failure to act on the application within the 60-day deadline.
Therefore COLs 8 and 9 are wrong. l

Director argues that COL 10 is wrong. COL 10 states
that "[b]ased on the foregoing, the [BOA's] Decision and Order is

affirmed." Because this court concludes that the "foregoing"

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analysis in the circuit court's FOF/COL/Order was wrong, we
conclude that COL 10 is wrong as well.
IV. CONCLUSION
We vacate the Judgment filed on August 29, 2008 in the

Circuit Court of the Third Circuit and remand this case to the
circuit court for further proceedings consistent with this
opinion.

DATED: Honolulu, Hawai‘i, June 22, 2010.
On the briefs:

Amy G. Self

Katherine A. Garson 1 é§; '¢2(, ;zz é
Deputies Corporation Counsel '

for Appellant-Appellant. Chief Judge

Renee N.C. Schoen
Brooks L. Bancroft

Deputies Corporation Counsel 1 _,»
for Appellees-Appellees Board ` C§? %,,
of Appeals of the County of '
Hawafi and valta Cook, Associate Judge

Roy A. vitousek III
Elijah Yip
(Cades Schutte, LLLP)

for Appellee-Appellee ‘Z: 42 ‘~

Marlene E. Calvert,
Associate Judge