NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
NO. 29276
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAfI
,.l §
w; ss
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WAYLAND LUM and RAYNETTE LUM, §§
Appellants-Appellants,
v. ; §§
ZONING BOARD OF APPEALS OF THE CITY AND COUNT` my
OF HONOLULU; DAVID J. MINKIN, in his official Cap é5
as Chairperson of the Zoning Board of Appeals, City ~4
County of Honolulu; HENRY ENG,
1 nd
in his official capacity
as Director of the Department of Planning and
Permitting, City and County of Honolulu, State
of Hawaii; DAVID G. NOTTAGE and NANCY W. NOTTAGE,
Appellees-Appellees,
and
III and ARMELLE L.
Appellees
CARL A. FARDEN,
FARDEN ,
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 07-1-2072)
SUMMARY DISPOSITION ORDER
(By: Nakamura, C.J.,
Foley and Leonard, JJ.)
In this secondary agency appeal, Appellants~Appellants
Wayland and Raynette Lum (the Lums) appeal from the Judgment
filed on May 6,
2008 in the Circuit Court of the First Circuit1
(circuit court).
The circuit court entered judgment in favor of
the Zoning Board of Appeals of the City and County of Honolulu
(ZBA) and against the Lums.
The circuit court entered the
Judgment pursuant to its May 6,
2008 "Order Denying Appellants
[the Lums'] Appeal and Affirming Appellee
[ZBA'S]
Decision."
On appeal,2 the Lums contend that the reliance of the
circuit court and Appellee-Appellee Henry Eng, in his official
capacity as Director
(Director) of the Department of Planning and
1 The Honorable Eden Elizabeth Hifo presided.
Procedure Rule 28(b)(3)
2 Counsel for all parties are cautioned that Hawafi Rules of Appellate
requires that the statement of the case, including any
introduction section therein, must have "record references supporting each
statement of fact or mention of court or agency proceedings."
Q§'l\:i
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Permitting of the City and County of Honolulu, State of HawaiHq
upon Revised Ordinances of Honolulu 1990 (ROH), Chapter 21 (Land
Use Ordinance), § 21-2.90-2(c) (2003) to modify the yard setback
requirements based on a previously issued conditional use permit
(CUP) was arbitrary, capricious, and based upon a manifestly
erroneous interpretation of § 21-2.90-2(c) because
(l) no application for a minor modification of the CUP
was pending, and there was no notice or opportunity for the Lums
to be heard on the issue;
(2) the previously issued CUP was invalid to the
extent that it sought to jointly develop a single "zoning lot"
together with two right-of-way lots3 that, by definition, were
not themselves "zoning lots," in*violation of ROH § 21~5.380(a)
(1999); and d
(3) even assuming, arguendo, that the Director could
modify the yard setback requirement pursuant to ROH § 21-2.90-
2(c), notwithstanding the provisions of ROH § 21-5.380(a), the
Director's approval of the minor modification was arbitrary,
capricious, and an abuse of discretion because he conflated the
requirements for approving a variance, set forth in the Revised
Charter of the City and County of Honolulu (RCCCH) § 6-1517
(200l), with the requirements for a minor modification of a CUP,
set forth in ROH § 21-2 90-2(a) & (b) (2003), none of which were
satisfied.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, as
well as the relevant statutory and case law, we conclude the
Lums' appeal is without merit.
3 The three lots were originally owned by Carl A. Farden, III and
Armelle L. Farden (the Fardens) , who, during the course of the litigation,
sold the lots to David G. Nottage and Nancy W. Nottage (the Nottages). On
March 13, 2008, the circuit court approved a stipulation by which the Nottages
were substituted as party Appellees for the Fardens.
2
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
(l) The Director's August 1, 2006 Findings of Fact,
Conclusions of Law, and Decision and Order (Director's D&O)
approving a modification to the CUP for joint development (CUP-
JD) sua sponte did not deprive the Lums of the opportunity to
prepare testimony and legal argument relevant to CUP issues.4
ROH Chapter 21, § 21-2.90-1 (2003), which sets forth
application requirements for CUPs, grants the Director the
discretion to hold public hearings when the application for a CUP
is for a meeting facility, day-care facility, or school. James
Pierson (Pierson), the Director's representative,5 accurately
summarized the content of § 21-2.90-1 before the ZBA, pointing
out that § 21-2.90-1 did not require a hearing for CUP-JD
modification:
We can't require a hearing just because
The hearing requirements
THE»WITNESS:
we have people who may disagree.
are specified by law.
For conditional uses, a conditional use major permit
request all requires a public hearing. For a conditional
use minor permit, there's never a public hearing except for
those three exceptions I named earlier [meeting facility,
day~care facility, and school] where the director has
discretion to require one, largely based on input from the
neighborhood.
So for a conditional use permit for a joint
development, as a matter of law, there is no public hearing
requirement nor can the director impose a public hearing
requirement.
Additionally, we note that the Director afforded the
Lums the opportunity to present testimony at the hearing on the
4 The Nottages respond that the Lums failed to raise this issue at the
administrative level and therefore it is not properly before this court.
However, the circuit court may review constitutional issues raised for the
first time on appeal pursuant to Hawaii Revised Statutes (HRS) § 91-l4(g)
(l993). HOH Corp. v. Motor Vehicle Indus. Licensinq Bd., Dep't of Commerce &
ConSumer AffairS, 69 HaW. l35, l43, 736 P.2d l27l, l276 (l987). Under HOH
Co;p., the Lums' due process issue was properly before the circuit court and
therefore properly before this court on appeal.
5 Pierson testified that he was "a Planner VI assigned to the zoning
regulations and permits branch of the land use permits division." The record
indicates that Pierson processed the Fardens' variance application and
suggested the CUP~JD modification as a means of remedying the encroachment
issues.
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Fardens' variance application. There was no violation of the
Lums' due process rights.
(2) The CUP-JD did not violate ROH § 21-5.38O (l999)
for failure to include two zoning lots, as contended by the
Lums.6 Section 21-5.380(a) provides that "[w]henever two or more
zoning lots are developed in accordance with the provisions of
this section, they shall be considered and treated as one zoning
lot." The Lums argue that the plain language of this section
dictates that a joint development requires two or more zoning
lots. The Lums further argue that the definition of "zoning lot"
under ROH § 21-l0.l (2003) expressly excludes right-of-way lots
and because two of the three lots used in the joint development
are right-of-way lots, the CUP-JD violates § 21-5.380(a).
we note that the definition of "joint development"
permits "the development of two or more adjacent subdivision
lots," ROH § 21-l0.l. we further note that subdivision lots
include right-of-way lots. Accordingly, we conclude that the
CUP-JD did not violate ROH § 21-5.380, which permits an owner of
adjacent lots to pursue joint development of the lots by applying
for a CUP.
(3) The Director's D&O did not erroneously conflate
the standard for a variance under RCCCH § 6-15l77 with the
6 ROH § 21-5.38O sets forth the requirements for the joint development
of adjacent lots.
7 RCCCH § 6-l517, Zoning Variances, provides:
The director shall hear and determine petitions for varying
the application of the zoning code with respect to a specific
parcel of land and may grant such a variance upon the ground of
unnecessary hardship if the record shows that (l) the applicant
would be deprived of the reasonable use of such land or building
if the provisions of the zoning code were strictly applicable; (2)
the request of the applicant is due to unique circumstances and
not the general conditions in the neighborhood, so that the
reasonableness of the neighborhood zoning is not drawn into
question; and (3) the request, if approved, will not alter the
essential character of the neighborhood nor be contrary to the
intent and purpose of the zoning ordinance. Prior to the granting
of any variance, the director shall hold a public hearing thereon.
The director shall specify the particular evidence which supports
(continued...)
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alleged requirements for a minor modification of a CUP, as set
forth in ROH § 21-2.90-2(a) and (b). Nor did the Director's D&O
fail to demonstrate how these modification requirements were met.
ROH § 21-2.90-2(c) does not require an independent
finding that the proposed modification satisfies the criteria of
sub-parts (a) and (b).8 ROH § 21-2.90-2 (c) provides:
see. 21-2.90-2 c;enerel requirements
(c) The director may grant conditional use permits by
modifying application of the sign regulations;
district regulations relating to yards, landscaping,
and lot dimensions; and parking requirements for uses
which have an unusual peak-hour parking demand. §§
such modification shall be made unless the proposed
conditional use otherwise meets the requirements of
subsections (a) and (b). At no time may the director
modify the minimum standards for a specific
conditional use.
(Emphasis added.) The Lums contend the above underlined sentence
requires that a proposed modification meet the criteria of
subparts (a) and (b) for approval. The Nottages and the Director
contend the conditional use, not the modification, is subject to
the requirements of subparts (a) and (b).
The record supports this latter interpretation.
Pierson testified before the ZBA that a modification under
subpart (c) is not subject to the criteria of subparts (a) and
(b):
Q [Director‘s Counsel] _I'm going to show you Exhibit A of
the [D]irector's position, page eight. And this is
basically what you've just read; is that correct?
A [Pierson] Correct except the section that I read was
Subsection C which is not -- oh, you're right, it's there.
I‘m sorry. Yes.
Q Okay.
A It's the first quotation.
7(...continued)
the granting of a variance,
(Footnote omitted.)
8 ROH § 21-2.90-2 sets forth the general requirements for conditional
use permits and modifications.
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
Q And on that particular page in that exhibit it
indicates the four conditions under A and the [D]irector
found that it met all four of those conditions?
A Yeah. Well, actually we went further here than we're
required to do, I believe. But what Subsection C requires
is that the conditional use itself meets those criteria.
And that finding was made three years prior to this when the
[CUP] was granted. And typically when we grant
modifications to conditional use, we don't go through these
findings because that had already been done when the
conditional use was provided.
We conclude that the Director's interpretation is reasonable, and
we accordingly defer to it. Colony Surf, Ltd. v. Dir. of Dep't
of Planninq & Permitting, ll6 HawaFi 5l0, 5l4, 174 P.3d 349, 353
(2007) ("[A]n administrative agency's interpretation of the
ordinance that it is responsible for implementing is normally
accorded great weight, [except] when the agency's interpretation
conflicts with or contradicts the manifest purpose of the
ordinance it seeks to implement.").
Therefore,
IT IS HEREBY ORDERED that the Judgment filed on May 6,
2008 in the Circuit Court of the First Circuit is affirmed.
DATED: Honolulu, HawaFi, June 2l, 20l0.
On the briefs:
David Schulmeister §§ ‘ z/'jzZ § n
(Cades Schutte)
for Appellants-Appellants. Chief Judge
Duane W.H. Pang
Jesse K. Souki ~ -
Dawn E. Takeuchi-Apuna, 1 .
Deputies Corporation Counsel, Associate Judge
for Appellee-Appellee Henry Eng.
Dennis W. King
John Winnicki
(Deeley, King & Pang)
for Appellees-Appellees
David G. Nottage and Nancy
C. Nottage.