l ~'\‘»'\! _L!BRAHY
NoT F0R PUBLICATIQN IN WEST'S HAWAI‘I REPQRTS AND PACIFIC REPQRTER
NO. 28353
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE 0F HAWAI‘I
ALBERT PLEUS; PAMELA PLEUS; JAMES GROWNEY; and PRISCE§‘
Appellants-Appellants,
v.
ZONING BOARD OF APPEALS FOR THE CITY AND COUNTY OF HONOLULU;
DAVID TANOUE,F in his official capacity as Director of the
Department of Planning and Permitting for the City and County of
Honolulu; AND THRU, INC. HAWAII, a Hawaii corporation, Appellees-
Appellees.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 06-l-O447)
MEMORANDUM OPINION
(By: Nakamura, C.J., Foley, Leonard, JJ.)
Appellants-Appellants Albert Pleus, Pamela Pleus, James
Growney, and Priscilla Growney (collectively, Appellants) are
residents of Makiki Heights. They along with a significant
number of other Makiki Heights residents opposed the granting of
an application by one of their neighbors for a conditional use
permit (CUP) to operate a group living facility. The proposed
group living facility was described as an adult residential care
home for more affluent seniors who are at least sixty years 0ld.
Appellee-Appellee Director of the Department of Planning and
Permitting (Director) for the City and County of Honolulu
approved the application of Appellee-Appellee Thru, Inc. Hawaii
(THRU or the Applicant) for the CUP.W The Appellants appealed
the Director's decision to approve the CUP to Appellee-Appellee
Zoning Board of Appeals (ZBA) for the City and County of
Honolulu. The ZBA affirmed the Director's decision. The
y Pursuant to Hawafi Rules of Appellate Procedure (HRAP) Rule 43(c)
(2000), David Tanoue, the current Director of the Department of Planning and
Permitting for the City and County of Hono1ulu, has been substituted as a
party to this appeal in place of Henry Eng, the Director of that department at
the time this case was decided by the Circuit Court of the First Circuit.
W Henry Eng was the Director who approved the CUP.
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Appellants then appealed the ZBA's decision to the Circuit Court
of the First Circuit (circuit court). The circuit court, the
Honorable Eden Elizabeth Hifo presiding, affirmed the ZBA's
decision. _
Appellants appeal to this court from the circuit
court's Judgment in favor of Appellees-Appellees the ZBA, the
Director, and THRU (collectively, Appellees). The Judgment was
based on the circuit court's decision and order affirming the
findings of fact, conclusions of law, and decision and order of
the ZBA (Order Affirming the ZBA). Appellants also appeal from
the circuit court's order denying their motion to l) amend the
Order Affirming the ZBA and 2) amend the Judgment.
On appeal, Appellants assert that the circuit court
erred in affirming the ZBA's decision to affirm the Director's
decisionW to issue the CUP. Appellants argue that the Director
erred by l) ignoring public opposition to THRU's application for
the CUP; and 2) determining that THRU satisfied the four criteria
required for issuance of a CUP under the City and County of
Honolulu Land Use Ordinance (LUO), codified in the Revised
Ordinances of Honolulu (ROH) Chapter 21.9
y In their briefs, Appellants refer to the Department of Planning and
Permitting (DPP) as having granted the CUP, and they challenge the actions of
the DPP, However, the named party in this litigation is not the DPP, but the
Director of DPP in his official capacity. We will thus refer to the Director
as the party responsible for the actions challenged in this appeal,
9 Under the LUO, an applicant for a CUP must satisfy the requirements
set forth in the ROH § 21-2.90-2 (1990 & Supp. No. 4, 2-O4), which provides in
pertinent part as follows: ~
(a) The director may allow a conditional use permit on a finding
that the proposed use satisfies the following criteria:
(1) The proposed use is permitted as a conditional use in
the underlying zoning district and conforms to the
requirements of this chapter.
(2) The site is suitable for the proposed use considering
size, shape, location, topography, infrastructure and
natural features.
(3) The proposed use will not alter the character of the
surrounding area in a manner substantially limiting,
(continued...)
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We disagree with Appellants' contention that the
Director ignored public opposition to the CUP. The Director
responded to many of the concerns raised by Appellants and their
neighbors by requiring THRU to satisfy numerous conditions as
part of the Director's approval of the CUP. We further conclude
that there was substantial evidence in the record to support the
Director's determination that THRU satisfied the four criteria
required for issuance of a CUP and that the Director acted within
his discretion in approving the CUP.
BACKGROUND
The following background facts are taken from the
findings of fact issued by the ZBA, which were in material
respects approved by the parties:
FINDINGs oF FAcT
l. Petitioners[W] are neighbors of the subject
property located at 2615 Tantalus Drive, Makiki Heights,
Honolulu, Hawaii.
2. Applicant with the approval of the landowner
Dialta Alliata di Montereale, submitted an application for a
Conditional Use Permit-Major Group Living Facility.
3. The application proposes to renovate the existing
2-story, 9,150 square feet single family residence to
establish a group living facility or adult residential care
home to allow a maximum of 20 residents who require minimum
medical need to reside on the property.
4. The subject property is approximately 73,000
square feet. The property is classified as being within an
Urban District under State land use law and is currently
zoned R-10 Residential under the [LUO].
5. The surrounding neighborhood is residential. The
subject property borders Tantalus Drive to the north and
Makiki Heights Drive to the south.
9(...continued)
impairing or precluding the use of surrounding
properties for the principal uses permitted in the
underlying zoning district.
(4) The use at its proposed location will provide a
service or facility which will contribute to the
general welfare of the community-at-large or
surrounding neighborhood.
y The Petitioners in the proceeding before the ZBA were the Appellants
and Sigrid Grover, Kathryn Howard, and Michael E. and Patricia J. O'Neill.
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6. The Department of Planning and Permitting held a
public hearing on the application on April 22, 2005.
7. The Director received numerous written and oral
comments to the application from neighbors and witnesses.
Approximately 200 individuals submitted written testimony in
opposition to the Application for Issuance of a Conditional
Use Permit (Major) for a Group Living Facility. Fifteen
neighbors presented live, oral testimony at the public
hearing either opposing or raising concerns regarding
issuance of the [CUP]. The comments against the application
were on various grounds objecting to the findings under the
[ROH] Section 21-2.90-2 that the Director was required to
make before granting the CUP, and addressing whether
granting a CUP for the proposed use complied with the
Primary Urban Center Development (PUC) Plan.
8. The concerns raised by the neighbors opposed to
the granting of the CUP include but are not limited to the
following: that the proposed use is not suitable for the
quiet single family neighborhood and that the existing
infrastructure in the neighborhood could not support the
proposed use; that the proposed group living facility is too
large (including the number of patients, staff, and
visitors) for the area and that the facility would have a
significant negative impact on the neighborhood; that the
proposed use will increase the traffic on the neighborhood
roadways that are narrow and inadequate to accommodate the
increase in use; that the proposed use will cause an
increase in on-street parking because the number of on-site
parking spaces for the proposed use is inadequate; that the
Applicant provided insufficient information on the proposed
facility's operation to allow the Director to assess the
land use impact of the facility's operation; and that the
facility would not benefit the community as the target
market consists of affluent seniors able to pay $90,000.00
to $120,000.00 a year to reside in an adult residential care
home offering minimal medical care.
9. The comments in favor of the application included
that the site is relatively isolated from the neighbors and
the proposed use is relatively innocuous and will preserve
the large estate. Aside from the Applicant, there was only
one neighbor that testified in favor of granting the CUP.
10. As is standard procedure, the Director soughtn
comments from various governmental entities that may be
affected by the proposed use. The Director received
comments from the following governmental entities; Board of
Water Supply, Honolulu Fire Department, Honolulu Fire
Department [sic], and various Divisions of the Department of
Planning and Permitting including the Traffic Review Branch,
Refuse Collection Branch, and the Drainage and Flood Branch.
1l. The Traffic Review Branch, of the Department of
Planning and Permitting, commented that the driveways for
the proposed group living facility should be wide enough to
accommodate two-way traffic. The Traffic Review Branch did
not recommend that a traffic assessment be performed prior
to approval of the CUP-Major for the group living facility.
The Traffic Review Branch, however, proposed a traffic
assessment be conducted within six months of the issuance of
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the certificate of occupancy by the Applicant, and
thereafter on an annual basis.
12. The traffic assessment suggested by the Traffic
Review Branch included documenting actual number of vehicles
entering and exiting the facility, the purpose of each trip,
and the annual update should include methods of reducing the
total number of trips, and should include incentives to
reduce the number of trips including bus and other transit
incentives to employees, carpooling by visitors and
employees and scheduling of trips to avoid peak hours of
traffic.
l3. As part of its application for the CUP, the
Applicant stated that the residents of the proposed group
living facility would not be permitted to have cars, and
that most of the traffic from the facility should not occur
during peak traffic hours. The Applicant also stated that
the facility's employees would be encouraged to use the bus,
and estimated that the facility would generate an average of
20 to 25 trips per day.
14. On May 31, 2005, the Director approved the
Applicant's CUP-Major for a group living facility and
imposed eighteen conditions on the approval including, but
not limited to, that the total number of adult residential
care recipients shall be limited to a maximum of l6, the
entire facility shall be administered by one care provider,
the Applicant shall submit a valid Department of Health
license for the facility, drive ways shall accommodate two
way traffic, including the survey suggested by the Traffic
Review Branch, deliveries shall be restricted to 9:OO a.m.
to 4:O0 p.m. Mondays to Saturdays, and that quiet hours
shall be between l0:0O a.m. to 6:OO p.m.
15.' The Director determined that under LUO Table 2l~3
Master Use Table [(ROH Table 21-3)] a group living facility
was permitted within the R~1O Residential zoned areas with a
conditional use permit. The Director also determined that,
except for yard and height requirements, the proposed group
living facility would comply with the development standards
of the LUO for R-10 Residential Districts.
l6. The Director further determined that the 73,000
square feet site, that the topography and natural features
of the site, where the group living facility would be
located would be able to accommodate a maximum of 16
residents because two single family dwellings could be
constructed on the lot without subdividing the property.
With respect to the ability of the neighborhood's
infrastructure to accommodate the proposed use, the Director
determined that the current infrastructure could accommodate
the proposed use because he received no major objection to
the proposed use by any governmental agency.
17. The Director also determined that although the
Applicant provided few specific details about the operation
of the proposed use, the proposed use is a group living
facility as designated in the LUO, and thus is residential
in nature and would not alter the principle [sic] nature of
the residential use of the surrounding properties. The
Director deferred to the Department of Health regarding the
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operation and the specific licensing requirements for a
group living facility,
18. The Director determined that the Applicant's
proposed group living facility would provide a service and
contribute to the general welfare of the community at large
by providing expanded housing opportunities for the growing
elderly population in Hawaii, and by providing housing
options for seniors.
In its Order Affirming the ZBA, the circuit court added
two conditions to those imposed by the Director in his approval
of the CUP. The two additional conditions imposed the circuit
court were that 1) residents of the group living facility would
not be allowed to have cars; and 2) all parking for the group
living facility would be on the site and not on the street.
STANDARDS OF REVIEW
"The ZBA is the administrative agency designated to
hear and determine appeals from the [D]irector's actions in the
administration of the City and County of Honolulu zoning code."
Save Diamond Head Waters LLC, v. Hans Hedemann Surf, Inc.
121 Hawaii 16, 24, 211 P.3d 74, 82 (2009) (block quote format
and citations omitted). An order by the ZBA is an administrative
decision subject to review by the circuit court, ld.; Hawaii
Revised statutes (HRs) § 91-14(a) (1993). 3
Review of a decision made by the circuit court upon
its review of an agency's decision is a secondary
appeal. The standard of review is one in which this
court must determine whether the circuit court was
right or wrong in its decision, applying the standards
set forth in HRS § 91-14(g) (1993) to the agency's
decision.
Citizens Aqainst Reckless Dev. v. Zoninq Bd. of Appeals, 114
Hawafi 184, 193, 159 P.3d 143, 153 (2007) (citing Korean
Buddhist Dae Won Sa Temple of HawaiYi v. Sullivan, 87 HawaiU.
2l7, 229, 953 P.Zd 13l5, l327 (1998)). HRS § 9l-l4(g),
"Judicial review of contested cases," provides:
(g) Upon review of the record the court may affirm the
decision of the agency or remand the case with
instructions for further proceedings; or it may
reverse or modify the decision and order if the
substantial rights of the petitioners may have been
prejudiced because the administrative findings,
conclusions, decisions, or orders are:
(1) In violation of constitutional or statutory
provisions; or
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(2) In excess of the statutory authority or
jurisdiction of the agency; or
(3) Made upon unlawful procedure; or
(4) Affected by other error of law; or
(5) Clearly erroneous in view of the reliable,
probative, and substantial evidence on the whole
record; or
(6) Arbitrary, or capricious, or characterized
by abuse of discretion or clearly unwarranted
exercise of discretion.
HRS § 91-14(g) (1993). "'Under HRS § 91-14(g), conclusions
of law are reviewable under subsections (1), (2), and (4);
questions regarding procedural defects are reviewable under
subsection (3); findings of fact are reviewable under
subsection (5); and an agency's exercise of discretion is
reviewable under subsection (6).'" Paul v. Dep't of
TranSQ., 115 HawaiH.416, 426, 168 P.3d 546, 556 (2007)
(internal brackets omitted) (quoting Konno v. County of
HawaiHq 85 HawaFi 61, 77, 937 P.2d 397, 413 (1997)). “A
conclusion of law that presents mixed questions of fact and
law is reviewed under the clearly erroneous standard because
the conclusion is dependent upon the facts and circumstances
of the particular case." Del Monte Fresh Produce (Hawaii),
Inc. v. Internationa1 Lonqshore and Warehouse Union, Local
142, AFL-CIO, 112 HawaiH.489, 499, 146 P.3d 1066, 1076
'(2006) (internal brackets and quotation marks omitted)
(quoting Price v. Zoning Bd. of Appeals of City and County
of Honolulu, 77 Hawaii 168, 172, 883 P.2d 629, 633 (1994)).
Save Diamond Head Waters, 121 Hawafi at 24-25, 211 P.3d at 82-83
(brackets omitted). 1
An "agency's decision carries a presumption of validity
and appellant has the heavy burden of making a convincing showing
that the decision is invalid because it is unjust and
unreasonable in its consequences." Korean Dae Won Sa Temple of
Hawaii v. Sullivan, 87 Hawai‘i 217, 229, 953 P.2d 1315, 1327
(1998) (block quote format and citations omitted).
D:cscuss:om 7
Appellants argue that the Director "acted contrary to
the regulatory scheme of the LUO" by ignoring the public
opposition to THRU's application for the CUP (Major) and the lack
of substantial evidence that THRU had satisfied the four criteria
required for the issuance of the CUP. Appellants argue that the
Director treated the issuance of the CUP as automatic and rubber-
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stamped THRU‘s application. We disagree with Appellants'
arguments.
I.
Contrary to Appellants' contention, the record shows
that the Director considered the public opposition to THRU's
application for the CUP, including the testimony of neighbors to
the subject property that was presented at the public hearing on
THRU's application.9 The Director responded to many of the
concerns raised by the neighbors by imposing numerous conditions
on his approval of the CUP.
The most significant concerns expressed by those
opposed to THRU's application was the size of the proposed adult
residential care home (in terms of the number of people) and the
impact that it would have on traffic. The Director responded to
these concerns by reducing the number of adult care recipients
who could reside at the care home from a maximum of twenty (as
sought by THRU in its application) to a maximum of sixteen. The
reduction in the permissible number of adult care residents
correspondingly reduced the traffic and other land use impacts of
the proposed facility.
In addition, the Director imposed several conditions on
the approval of the CUP that were directed at mitigating the
traffic impacts of the proposed project. These included:
1. A requirement that THRU submit a revised site plan
showing the location of a loading space with
y After the public hearing, the Director requested additional
information from THRU on thirteen separate matters in order to assist the
Director in addressing "community concerns and to evaluate the potential
impacts of the proposed project." These requests included asking THRU to
identify the location of the on-site loading area for service vehicles and
explain how employees will access the facility from the parking area near the
tennis court, discuss what kind of emergency plans will be implemented and
what level of care the staff will be qualified to administer, describe
measures to mitigate noise, clarify traffic impacts, and provide all building
permits. THRU responded by providing additional information, including on-
site pictures and a scaled drawing. In response to statements made at the
public hearing, THRU also represented to the Director that the residents of
the facility would not be permitted to have cars, that most of the traffic
generated by the facility would not occur during peak traffic hours, and that
the facility's employees would be encouraged to use the bus.
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adequate access and maneuvering area that would
not obstruct any parking space or access aisle.
2. A requirement that driveways be wide enough to
accommodate two-way traffic and that landscaping
and structures in the vicinity of the driveways be
maintained to provide adequate sight distances to
pedestrians and other vehicles.
3. A requirement that within six months of the
issuance of a certificate of occupancy for the
group living facility and on an annual basis
thereafter, THRU prepare and submit a traffic
assessment regarding the impact of the facility to
the Department of Planning and Permitting (DPP)
for its review and approval. The assessment
should provide information about the number and
types of vehicles entering and leaving the site
and the purpose of the trips; address the methods
and strategies used by THRU, and the success of
each strategy, to reduce the total number of 1
vehicle trips to the site and the overall traffic
demand; and document traffic related complaints by
surrounding residents and steps to address such
complaints.
4. A restriction on deliveries by service vehicles to
between 9:OO a.m. and 4:OO p.m., Mondays through
Saturdays. "
The Director's actions in reducing the number of adult
care recipients who could reside at the proposed care home and
imposing numerous conditions on his approval of THRU's
application belie Appellants' claim that the Director ignored
public opposition to THRU's application and rubber-stamped the
proposed project. The record clearly shows that the Director
considered the concerns of those opposing the project in the
decision-making process.
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II.
Appellants argue that the Director erred in determining
that THRU satisfied each of the four criteria required for a CUP
because there was no substantial evidence or basis in the record
to support the Director's determinations. The four criteria that
must be satisfied for an applicant to be eligible for a CUP are:
(1) The proposed use is permitted as a conditional use in
the underlying zoning district and conforms to the
requirements of this chapter.
(2) The site is suitable for the proposed use considering
size, shape, location, topography, infrastructure and
natural features.
(3) The proposed use will not alter the character of the
surrounding area in a manner substantially limiting,
impairing or precluding the use of surrounding
properties for the principal uses permitted in the
underlying zoning district.
(4) The use at its proposed location will provide a
service or facility which will contribute to the
general welfare of the community-at-large or
surrounding neighborhood.
ROH § 21-2.90-2. We conclude that the Director did not err in
finding that each of these four criteria had been satisfied.
A.
Appellants assert that the Director erred in finding
that the proposed project satisfied the first criteria: "The
proposed use is permitted as a conditional use in the underlying
zoning district and conforms to the requirements of [the LUO]."
Appellants do not challenge the Directorls determination that
group living facilities, which include adult residential care
homes, are permitted as a conditional use within the R-10 zoned
Residential District in which the subject property is located.
§§§ ROH Table 21-3 Master Use Table (199O & Supp. No. 11, 8-07).
However, Appellants contend that the Director erred in finding
that the first criteria had been satisfied because 1) the
dwelling on the subject property did not meet the current LUO
requirements for building height or yard setback; and 2) there
was insufficient evidence to support the Director's conclusion
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that twelve on-site parking stalls would provide adequate parking
for the proposed adult residential care home. We disagree.
The Director found that the 9,150-square-foot dwelling
was constructed pursuant to building permits, indicating that it
complied with the applicable development standards when built.
The Director further found that structures on the property,
including the dwelling, "met residential setbacks when they were
constructed." Appellants do not dispute that the dwelling met
applicable development standards at the time it was built, but
argue that because the first criteria requires conformance with
the requirements of the LUO, the dwelling must comply with the
LUO's current height and setback requirements.
The LUO, however, permits a nonconforming structureF
that "was legally established as it now exists" to be continued,
subject to certain exceptions not applicable to this case. ROH
§ 21-4.11O (199O & Supp. No. 4, 2-04 & Supp. No. 9, 8-O6).
Indeed, the LUO specifically provides that "[a]ny nonconforming
structure may be repaired, expanded or altered in any manner
which does not increase its nonconformity." ROH § 21-
4.110(b)(3). Thus, the Director's decision to permit the
dwelling's nonconformity regarding building height and setbacks
to continue was in compliance with the requirements of the LUO,
The same is true of the Director's decision to require
twelve on-site parking stalls. The record indicates that the
Director's decision regarding the number of parking stalls was
based on the number of bedrooms and office square footage in the
dwelling, Moreover, the circuit court imposed an additional
condition with respect to the CUP, which has not been challenged
by THRU on appeal, that residents of the group living facility
will not be allowed to have cars, thereby ensuring that the
l/ The LUO defines "nonconforming structure" in relevant part as "a
structure which was previously lawful but which does not comply with the sign,
density, yard, setback or height regulations of the district, or design
requirements of the special district in which it is located . . . ." ROH §
21-10.l (1990 & Supp. NO. 9, 8-06).
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parking spaces would be fully available for use by non-residents.
while Appellants contend that it is "unlikely" that twelve on-
site stalls will be sufficient, they do not cite to any provision
of the LUO that was violated by the Director's decision or which
would require more parking spaces.
` s .
Appellants argue that the Director erred in finding
that the proposed project satisfied the second criteria: "The
site is suitable for the proposed use considering size, shape,
location, topography, infrastructure and natural features."
Appellants contend that the Director erred in finding that the
second criteria was satisfied because 1) the Director's
comparison of the sixteen-resident group living facility (that he
approved) to two eight-resident adult residential care homes was
unreasonable; and 2) the Director failed to present the public
comments raising concerns about traffic to the Traffic Review
Branch of DPP, which did not object to the proposed project or
recommend a prior traffic study. we conclude that Appellants's
arguments lack merit.
1.
In support of his determination that the site was
suitable for the proposed use, the Director found that the
73,000-square-foot site exceeded the 10,000 square foot minimum
lot area required for the R-10 Residential District in which the
site was located. In response to concerns expressed by
neighboring residents that the proposed twenty-resident facility
was too large and would intensify the land use, the Director
responded that
under current zoning regulations, without subdividing the
property, two single-family dwellings can be constructed on
the 73,000-square foot lot. Each dwelling could accommodate
a family. The definition of a family includes eight or
fewer persons who reside in an adult residential care home,
monitored and/or licensed by the State of Hawaii. Resident
managers or supervisors are not included in the resident
count; non-resident supervisors are also permitted. A [CUP]
is not required under these circumstances. Therefore, if
the amount of residents were reduced to 16, the proposal
would not increase density in terms of the number of
residents permitted "by-right" on the site. As such, a
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limitation on the number of adult residential care home
residents to a maximum of 16 will beemade a condition of
approval.
Appellants contend that the Director erred in
considering the land use impact of two eight-resident adult care
homes on the subject property in evaluating the suitability of
the site for the proposed project. We disagree. Appellants
claim that two eight-resident adult care homes could not be
placed on the subject property because the LUO requires adult
care homes to be separated by 1,000 feet. That claim is wrong.
The LUO provides that "[a]ny zoning lot which has a least twice
the required minimum lot size for the underlying
residential district may have two detached dwellings." ROH § 21-
8.30(a) (199O & Supp. No. 9, 8-O6). At 73,000 square feet, the
subject property greatly exceeds the 10,000 square foot minimum
lot size for a R-10 Residential District. Under the LUO, two
detached dwelling could be built on the subject property and each
dwelling could be used to operate an adult residential care home
with eight residents plus a resident manager or supervisors, all
without the need for a CUP. This is because the LUO defines a
"family" of people occupying a dwelling unit to include "eight or
fewer persons who reside in an adult residential care home,"
excluding a resident manager or supervisors, ROH § 21-10.1 (199O
& Supp. No. 2, 2-O3).
The permissible alternative uses of the subject
property without the need for a CUP was a relevant factor for the
Director to consider. An examination of the land use impacts of
other authorized ways in which the landowner could use the
subject property without a CUP provided a permissible means of
measuring or assessing the suitability of the site for the
proposed use. We cannot say that the Director acted improperly
or unreasonably in considering the potential impact of two eight-
resident adult care homes on the subject property in support of
his determination that the site was suitable for a sixteen-
resident group living facility.
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2.
_Prior to approving the CUP, the Director consulted with
the Honolulu Police Department (HPD) and the Traffic Review
Branch of DPP regarding the traffic impacts of the proposed
project. Neither HPD nor the Traffic Review Branch objected to
the application for the CUP. HPD responded that "[a]lthough
there may be a slight increase in vehicular traffic, this project
should have no significant impact on the facilities or services
of the [HPD]." The Traffic Review Branch responded with the
following comments:
1. All driveways shall be wide enough to
accommodate two-way traffic. Landscaping and structures in
the vicinity of the project driveways shall be maintained
such that adequate vehicular sight distance to pedestrian
and other vehicles is provided.
2. Within 6 months of the issuance of the
certificate of occupancy for the group living facility, and
on an annual basis, an assessment documenting traffic
related conditions from the general activities of the group
living facility shall be submitted to the DPP for review and
approval. The assessment should identify the number and
types of vehicles entering and exiting the site and the
intended purpose of the trip, including employees, visitors,
emergency medical service vehicles, and other trip ends, as
appropriate. The annual update should address methods
utilized by the facility to reduce the total number of
vehicle trips to the site and any traffic demand management
(TDM) strategies that have been employed to reduce the
overall traffic demand and the relative success rate of each
strategy, which would include bus and transit incentives,
car pooling by employees and visitors, scheduling trips to
and from the site to not coincide with the normal peak
periods of traffic and other TDM measures, as specified.
The assessment should also document traffic related
complaints or comments provided by the surrounding residents
and the relative course of action taken to address the
complaints or comments. The annual update shall be
submitted for review and approval by DPP until such time
that the TRB [(Traffic Review Branch)] deems that it is no
longer necessary.
The Director incorporated, virtually verbatim, the comments of
the Traffic Review Branch as conditions to his approval of THRU's
application for the CUP.
Appellants argue that Director erred in determining
that the site was suitable for the proposed project without
adequately assessing the traffic impacts in light of the "narrow
roads and dangerous curves in Makiki Heights." In particular,
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Appellants contend that the Traffic Review Branch's evaluation
of the traffic impacts of the proposed project was flawed because
the Traffic Review Branch did not review the public comments
raising concerns about traffic. Appellants also contend that a
traffic study should have been required before the CUP was
approved rather than the post-approval study recommended by the
Traffic Review Branch.
Contrary to Appellants' contention, the record
indicates that the Traffic Review Branch did review the public
comments regarding traffic concerns as part of its evaluation.
At the ZBA hearing, DPP Staff Planner Lynne Kauer (Kauer), who
reviewed THRU's application for the CUP and was involved in
drafting the Director's decision approving the CUP, testified as
follows:
Q. [By Appellants' counsel] what if any weight did you
give to the testimony and the letters from over 200 of the
neighbors that were concerned about the traffic problems
that would be created by this facility?
A. we reviewed all of the comments and we consulted with
the traffic review branch. we have to rely on the
appropriate agencies to provide us the necessary information
on traffic. And the traffic review branch did not have any
objections to this proposal. They did not think that there
was a problem.
Q. what was presented by you to the traffic branch?
A. The entire application is sent to the traffic review
branch for their review.
Q. And did you have any discussions with the people in
the traffic review branch about why the [D]irector shouldn't
be concerned about the comments by over 200 of the neighbors
about the traffic problems that were already existing up in
this neighborhood before you're going to add a commercial
facility that increases the traffic?
A. The traffic review branch was presented with all the
information and they did not feel that the roads couldn't
accommodate it or that there was any kind of need for a
traffic study or they did not have any objections to the
proposal.
Q. Did you have any discussions with anybody about the
concerns that the neighbors had whether these were real
concerns or just their wild imagination that you have 200
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neighbors coming in and saying the traffic's already
terrible on their roads, don't make it worse. Did you have
any discussions with anybody concerning that concern of the
neighbors?
A. Yes, we have to take into all the -- we have to take
all those considerations into -- those concerns into
consideration.
Q. And --
A. we had discussions with the traffic people. we had
discussions with the [D]irector.
Q. And the conclusion was that those aren't legitimate
concerns; is that correct?
A. 1 don't think we said that they were not legitimate
concerns, but we did address those concerns in the report.
Q. And you addressed them how?
A. By consulting the traffic review branch for their
input on the application and the proposal. They did not
feel that this would significantly impact traffic, the scale
of this facility from what would ordinarily be allowed in
the district.
Q. Anybody in that branch live up there or have any
direct knowledge of the traffic problems involved?
A. I'm sure they do. They are aware of traffic problems
on the island. I mean that's what they do. That's their
role. I mean that‘s what they do.
(Emphasis added.)
In addition to Kauer's testimony, the Traffic Review
Branch's comments to the proposed project provide compelling
evidence that it was presented with and reviewed the public
comments about traffic concerns. The Traffic Review Branch's
comments, which were incorporated as conditions to the Director's
approval of the CUP, address many of the traffic concerns
expressed by the public. For example, the Traffic Review
Branch's recommendation that all driveways be wide enough to
accommodate two-way traffic and be maintained to provide for
adequate vehicular sight distance responds to public concerns
that parking spaces on the subject property will be difficult to
enter and exit and exiting vehicles will be difficult for
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oncoming cars to see.W Furthermore, many of the provisions of
the traffic assessment that the Traffic Review Branch recommended
be done after approval of the CUP reflect concerns raised by the
public, including the provisions regarding the identification of
the number and types of vehicles traveling, and the intended
purpose of trips, to and from the subject property; methods used
to reduce the number of vehicle trips to the subject property;
strategies used to reduce overall traffic demands such as
scheduling trips to not coincide with the normal peak periods of
traffic; and documentation of traffic related complaints by the
surrounding residents and the actions taken to address the
complaints.
Under these circumstances, we conclude that it was
appropriate for the Director to rely upon the evaluation of the
Traffic Review Branch in determining the suitability of the site
for the proposed use, The Traffic Review Branch did not
recommend that a traffic assessment needed to be conducted prior
to approval of the CUP and instead recommended a post-approval
traffic assessment to monitor and address the traffic impacts.
Based on the record in this case, we cannot say that the Director
erred in finding that the site was suitable for the proposed use
without requiring a pre-approval traffic study.
C.
Appellants argue that the Director erred in finding
that the proposed project satisfied the third criteria: "The
proposed use will not alter the character of the surrounding area
in a manner substantially limiting, impairing or precluding the
use of surrounding properties for the principal uses permitted in
the underlying zoning district." Appellants contend that THRU
lacked experience in operating an adult residential care home and
therefore there is no support in the record for the staffing and
F In his decision approving the CUP, the Director noted that the
concerns raised in opposition to the CUP included that " [t]he two parking
spaces with access from Makiki Heights Drive will be difficult to enter and
exit and the entry will be difficult for oncoming cars to see."
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operational estimates THRU included in its application.
Appellants further contend that because the Director improperly
relied upon THRU's unsupported estimates to evaluate the traffic
impact of the proposed project on the surrounding community, the
Director's determination that the proposed project would not
alter the character of the neighborhood was erroneous. we
disagree with Appellants' arguments.
Although THRU had no prior experience operating an
adult residential care home, the record shows that THRU hired a
consultant who did have experience with the operation of an adult
residential care home. The staffing and operational estimates
included in THRU's application were based on information and
input provided by THRU's consultant. we conclude that the
Director's reliance on THRU's estimates was not improper and that
the Director did not err in finding that the proposed project
would not alter the character of the neighborhood in a manner
substantially limiting, impairing or precluding the principal
uses of the surrounding properties.
THRU hired Donald Clegg (Clegg), who was the former
director of the Department of Land Utilization, the predecessor
department to the DPP, to prepare the application for the CUP.
Clegg testified at the ZBA hearing that he had assisted other
clients in obtaining licences and permits for the operation of
care homes, including one or two clients who needed CPUs. In
this capacity, he "consult[ed] with the operators of these
facilities and gather[ed] the basic data about what was involved
in the operations."
More importantly, Clegg testified that THRU had
retained Sarah Suzuki (Suzuki) of Blue water Resources, a
consultant in elderly care homes who had experience in, and was
currently operating, an elderly care home. Clegg stated that
Suzuki provided assistance with respect to staffing and general
operations. Clegg testified that THRU's estimate of twenty to
twenty-five round trips per day for the proposed adult
residential care home was based on information from "the
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consultants . . . who have operated and planned similar
facilities" and that THRU increased the staffing levels based on
input from the consultants. Clegg further testified that Suzuki
was present at the open house THRU held for neighboring
residents; that Suzuki answered questions at the open house and
talked about the number of people who would be involved in the
operation of the care home, including who would be working and
what they would be doing; that the substance of THRU's
application included Suzuki's input; and that Suzuki "basically
approved" the staffing estimates proposed by THRU.
In addition, DPP Staff Planner Kauer testified that
with respect to THRU's staffing estimates, THRU would have to
meet certain staffing requirements of the State Department of
Health (DOH) for adult care facilities, Kauer stated that she
reviewed the DOH guidelines establishing the minimum number of
employees an operator would require. In terms of the staffing
figures provided by THRU, Kauer stated that as far as she knew,
THRU was complying with the DOH guidelines.
we also note that THRU's application for the CUP was
based on the staffing requirements for a proposed twenty-resident
adult care facility. The Director's reduction of the number of
residents for the proposed care home to a maximum of sixteen
adult care residents provides a margin of safety to protect
against THRU's underestimation of its staffing requirements.
we conclude that there is sufficient evidence in the
record to support the Director's reliance on THRU's staffing and
operational estimates. Accordingly, the Director had an adequate
basis on which to assess the traffic impacts of the proposed
project.
`we disagree with Appellant's claim that the Director
abused his discretion by ceding his obligation to assess the land`
use impacts of the proposed adult care home to the DOH. The
Director noted that THRU would have to provide detailed
information about its operations to obtain a license from DOH to
operate an adult residential care home. In order to ensure that
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the operation of the facility was consistent with THRU's
application for the CUP, the Director required THRU to submit a
copy of the DOH license prior to occupying the facility and to
maintain a valid DOH license at all times.
The Director did not cede his obligation to assess the
land use impacts of the proposed project to the DOH. Instead,
requiring THRU to obtain and maintain a DOH license was a means
for the Director to obtain additional assurance that the proposed
project would in fact be operated as adult residential care home
in a manner consistent with the representations contained in
THRU's CUP application. In this respect, THRU's obligation to
obtain and maintain a DOH license was relevant to the Director's
finding that the proposed use would not alter the character of
the surrounding area.
Appellants express their skepticism over whether THRU
will comply with the conditions imposed on the approval of its
application for the CUP or with the representations it made in
its application. However, in approving the CUP, the Director
retained the authority to revoke the CUP for noncompliance with
the conditions imposed. The Director also reserved the right to
change the conditions for the CUP "upon a finding that
circumstances related to the approved project have significantly
changed so as to warrant a modification to the conditions of
approval." we conclude that the Director did not err in finding
that the third criteria had been satisfied.
D.
Appellants assert that the Director erred in finding
that the proposed project satisfied the fourth criteria: "The
use at its proposed location will provide a service or facility
which will contribute to the general welfare of the
community-at-large or surrounding neighborhood." we disagree
with Appellants' claim of error.
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In determining that the fourth criteria had been
satisfied, the Director found in pertinent part:
The proposed group living facility will provide a service
that will contribute to the general welfare of the
community-at-large. The facility will provide expanded
housing opportunities for the growing elderly population by
providing housing options for senior citizens. The facility
will provide elderly housing choices for in-town (urban)
living, offering the convenience and amenities of an urban
lifestyle. These include seniors no longer able to live on
their own, but wanting to remain near their home
neighborhoods.
The record contains a report by the State of Hawafi's
Executive Office on Aging and a newspaper article that reference
the challenges presented by Hawafi's older adult population.
These materials show that life expectancy has increased and that
Hawafi's older adult population is already large and is growing
much faster than the older adult population nationally. As noted
by the Director, the proposed group living facility will provide
increased housing opportunities and options for seniors,
especially for those who may be unable to live on their own but
wish to remain near to their families, by offering the
convenience and amenities of an in-town residence. we conclude
that the Director did not err in finding that the use of the
subject property to provide such increased housing options and
opportunities would contribute to the general welfare of the
community-at-large.W
E.
we conclude that there was sufficient evidence in the
record to support the Director's determination that THRU
satisfied the four criteria required for issuance of a CUP.
Based on our review of the record, we conclude that the Director
acted within his discretion in approving the CUP.
5 In its reply brief, Appellants raise a new argument that the circuit
court erred by failing to include two additional conditions (besides the
conditions it imposed) in its written Order Affirming the ZBA that the circuit
court had orally indicated it would include. Appellants, however, are not
entitled to raise an argument for the first time in its reply brief, and we
decline to address this argument. See In re Hawaiian Flower Mills, Inc., 76
Hawafi 1,14 n.5, 868 P.d 419, 432 n.5 (1994); HRAP Rule 28(b)(7) and 28(d)
(2006) .
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CONCLUSION
we affirm the circuit court's October 11, 2006,
Judgment in favor of Appellees and its October 10, 2006, Order
Affirming the ZBA. we also affirm the circuit court's December
8, 2006, order denying Appellants' motion to 1) amend the Order
Affirming the ZBA and 2) amend the Judgment.
DATED: Honolulu, Hawafi, May 28, 2010.
On the briefs:
J. Stephen Street,
Reginauld T. Harris
(Rush Moore LLP)
for Appellants-Appellants
Duane w.H. Pang,
Deputy Corporation Counsel,
City and County of Honolulu
for Appellee-Appellee
DAVID TANOUE, in his official
capacity as Director of the
Department of Planning and
Permitting for the City and
County of Honolulu
Robert F. Miller
for Appellee-Appellee
Thru, Inc., a Hawaii Corporation
22
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Chief Judge
Q/
Associate Judge