Nguyen v. Board of Appeals, County of Hawaii

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
08-MAR-2024
07:54 AM
Dkt. 119 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

CON NGUYEN and LINDA N. NGUYEN, Trustees under the
Con Nguyen and Linda N. Nguyen Trust dated
May 17, 1993; DEREK CAMERON BORISOFF and KRISTI
LYNN BORISOFF, Trustees under the Derek Cameron
Borisoff and Kristi Lynn Borisoff Revocable Trust
dated August 9, 2006, Appellants-Appellants,
v.
BOARD OF APPEALS, COUNTY OF HAWAII;
PLANNING DIRECTOR, COUNTY OF HAWAII;
KOLEA OWNERS' ASSOCIATION, INC.,
Appellees-Appellees

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CIVIL NO. 17-1-111K)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Wadsworth and Nakasone, JJ.)

Appellants-Appellants Con Nguyen and Linda N. Nguyen,

Trustees under the Con Nguyen and Linda N. Nguyen Trust dated May

17, 1993 (the Nguyens), and Derek Cameron Borisoff and Kristi

Lynn Borisoff, Trustees under the Derek Cameron Borisoff and

Kristi Lynn Borisoff Revocable Trust dated August 9, 2006 (the

Borisoffs), (collectively, Appellants) appeal from the February

6, 2018 Final Judgment (Judgment) entered in favor of Appellees-

Appellees the Board of Appeals, County of Hawai#i (Board of

Appeals), the Planning Director, County of Hawai#i (Planning
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Director), and the Kolea Owners' Association, Inc. (Kolea HOA) in

the Circuit Court of the Third Circuit (Circuit Court).1

Appellants also challenge the Circuit Court's December 7, 2017

Findings of Fact [(FOFs)], Conclusions of Law [(COLs)], and Order

Affirming the Board Of Appeals (Order Affirming).

Appellants raise nine points of error on appeal,

contending that the Circuit Court erred when it: (1) applied the

wrong standard of review and gave deference to the wrong planning

official; (2) found that the subject "view plane corridor" is not

adequately defined; (3) concluded that an "open space" writing on

a subdivision plat for Lot 22 of the Kolea Subdivision has no

legal effect; (4) concluded that the Planning Director may

interpret a condition in a Special Management Area (SMA) permit

under planning commission rules without notice to, review by, and

approval of the planning commission that first issued the permit;

(5) concluded that Planning Commission Rules of Practice and

Procedure Rule 9-10 is the applicable procedure for Kolea HOA to

obtain the Pool Annex approval; (6) determined that the Pool

Annex is consistent with SMA Permit 25; (7) failed to address any

effect from the settlement in BOA 15-000156 on the Board of

Appeals's decision; (8) affirmed the decision of the Board of

Appeals; and (9) based the Judgment on errors of law and/or

clearly erroneous facts.

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, as well as the

1
The Honorable Melvin H. Fujino presided.

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relevant legal authorities, we address the points of error as

follows:

(1) Regarding a circuit court's standard for reviewing

an agency's action, the Hawai#i Supreme Court has held:
When determining whether an agency abused its
discretion pursuant to HRS § 91–14(g)(6), the [circuit]
court must first "determine whether the agency determination
under review was the type of agency action within the
boundaries of the agency's delegated authority." Paul's
Elec. Serv., 104 Hawai#i at 417, 91 P.3d at 499. If the
determination was within the agency's realm of discretion,
then the court must analyze whether the agency abused that
discretion. Id. If the determination was not within the
agency's discretion, then it is not entitled to the
deferential abuse of discretion standard of review. Id.

In regards to the abuse of discretion standard of
review, this court has held that "[a]gency determinations,
even if made within the agency's sphere of expertise, are
not presumptively valid; however, an agency's discretionary
determinations are entitled to deference, and an appellant
has a high burden to surmount that deference[.]" Id. at
419, 91 P.3d at 501.

Kolio v. Haw. Pub. Hous. Auth., 135 Hawai#i 267, 271, 349 P.3d

374, 378 (2015).

To the extent that the Circuit Court's COLs are

inconsistent with this standard, the Circuit Court erred.

Notwithstanding that error, the Circuit Court correctly

articulated the clearly erroneous standard with respect to the

agency's FOFs, and the de novo review standard to COLs.

On this secondary appeal, this court applies the

following standard:
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 [Hawaii
Revised Statutes (HRS) § 91-14(g) (2012)] to the agency's
decision.
Paul's Elec. Serv., Inc. v. Befitel, 104 Hawai #i 412, 416, 91 P.3d
494, 498 (2004) [] (quoting Korean Buddhist Dae Won Sa Temple of
Hawaii v. Sullivan, 87 Hawai#i 217, 229, 953 P.2d 1315, 1327
(1998)).

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Flores v. Bd. of Land & Nat. Res., 143 Hawai#i 114, 120–21, 424

P.3d 469, 475–76 (2018).

Thus, this court applies the same standards as

applicable to the Circuit Court's review of the Board of Appeals'

decision, with questions of fact being reviewed using the clearly

erroneous standard, conclusions of law being freely reviewed, and

to the extent a determination is within the agency's realm of

discretion, utilizing an abuse of discretion standard. See

Kolio, 135 Hawai#i at 271, 349 P.3d at 378.
Here, Appellants contend that Planning Director Duane

Kanuha (Director Kanuha) had no authority and no discretion to

interpret SMA Permit 25, but that such authority belonged to the

planning commission that issued the permit. Appellants also

argue that Director Kanuha had no authority to allegedly alter

the Kolea Subdivision plat at issue here. Rather, Appellants

submit, former Planning Director Christopher J. Yuen (Former

Director Yuen) had the (sole) authority and discretion to

administer the SMA law in 2002 under HRS §§ 205A-4(b) (2017),

205-5(b) (2017).2

2
HRS § 205A-4 provides:
§ 205A-4 Implementation of objectives, policies, and
guidelines. (a) In implementing the objectives of the
coastal zone management program, the agencies shall give
full consideration to ecological, cultural, historic,
esthetic, recreational, scenic, and open space values, and
coastal hazards, as well as to needs for economic
development.
(b) The objectives and policies of this chapter and
any guidelines enacted by the legislature shall be binding
upon actions within the coastal zone management area by all
agencies, within the scope of their authority.

(continued...)

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However, both Former Director Yuen and Director Kanuha

served as Planning Director for the County of Hawai#i. The task

of implementing State policy under The Coastal Zone Management

Act, HRS Chapter 205A, "has been delegated in large part to the

counties, and they are responsible for the administration of the

special management area use permit procedure and requirements."

Kona Old Hawaiian Trails Grp. By & Through Serrano v. Lyman, 69

Haw. 81, 88, 734 P.2d 161, 166 (1987) (citing Mahuiki v. Plan.

Comm'n, 65 Haw. 506, 517, 654 P.2d 874, 881 (1982)).
The 2014 Charter of the County of Hawai#i (CCH)

provides for the creation of the Planning Department, which

consists of the Planning Director and the two planning

commissions, along with necessary staff. See CCH § 6-7.1.3 The

Planning Director is appointed by the mayor as the "chief

planning officer" of the County and the administrative head of

the Planning Department. See CCH § 6-7.2(a)-(b). The Planning

Director's duties are provided in the CCH and include, inter

alia, that the Planning Director shall:

2
(...continued)
HRS § 205A-5 provides:
§ 205A-5 Compliance. (a) All agencies shall ensure
that their rules comply with the objectives and policies of
this chapter and any guidelines enacted by the legislature.
(b) All agencies shall enforce the objectives and
policies of this chapter and any rules adopted pursuant to
this chapter.
3
CCH § 6-7.1 provides:

Section 6-7.1. Organization.
There shall be a planning department consisting of a
planning director, a windward planning commission, a leeward
planning commission and the necessary staff.

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(1) Advise the mayor, the windward planning commission,
the leeward planning commission and the council on all
planning and land use matters.
. . . .
(6) Render decisions on proposed subdivision plans
pursuant to law.

(7) Make recommendations on rezoning applications, special
exceptions and other similar requests.

(8) Render decisions on proposed variances pursuant to
law, except that, if any written objections are made
to the planning director's actions under this section,
said actions shall be subject to review by the board
of appeals in accordance with Section 6-9.2, unless
otherwise provided by law or this charter.
(9) Perform such other related duties and functions as may
be necessary or required pursuant to law and this
charter.

CCH § 6-7.2(b)(1), (6)-(9).4

The CCH also provides for the duties and functions of

the planning commissions, which shall:
(1) Advise the mayor, council and the planning director on
planning and land use matters pursuant to law and this
charter.

(2) Review the general plan, its amendments and other
plans and modifications thereof and transmit such
plans with recommendations thereon through the mayor
to the council for consideration and action.

(3) Review proposed subdivision and zoning ordinances and
amendments thereto and transmit such ordinances with
recommendations thereon through the mayor to the
council for consideration and action.

. . . .
(5) Perform such other related duties and functions as may
be necessary or required pursuant to law and this
charter.

CCH § 6-7.5(a)(1)-(3), (5). In addition, subsection (b) states

that "[a] uniform body of rules of practice and procedure . . .

shall apply to both commissions." CCH § 6-7.5(b).

4
The Board of Appeals has jurisdiction to hear appeals from the
Planning Director's decisions. CCH § 6-9.2(a).

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The County of Hawai#i Planning Commission Rules of

Practice and Procedure (Commission Rules) define "Department" as

"the Planning Department" and "Director" to mean "the Planning

Director." Commission Rule 1.3(i), (j). Commission Rules "RULE

9. SPECIAL MANAGEMENT AREA" include, inter alia:
9-1 Authority

Pursuant to authority conferred by [HRS Chapter 205A],
the rule hereinafter contained is hereby established
and shall apply to all lands within the Special
Management Area of the County of Hawai#i.
. . . .
9-4 Definitions

For the purpose of this rule, unless it is plainly
evident from the content that a different meaning is
intended, certain words and phrases used herein are
defined as follows:

(a) "Assessment" means an evaluation by the
Department of a proposed use, activity, or
operation to determine whether a Special
Management Area Use Permit is required.

. . . .
9-5 Special Management Area

Special Management Area of the County shall be as
delineated on such maps filed with the Authority . . .
. . . .

9-9 Authority of the Department in the Special Management
Area

All development within the Special Management Area
shall be administered through the Department under
this rule pursuant to the objectives and policies and
the Special Management Area guidelines as provided by
Chapter 205A, HRS.

9-10 Assessment
(a) The Department shall assess all uses, activities
or operations proposed in the Special Management
Area except in cases in which the applicant
determines that the proposed use, activity or
operation will: a) exceed $125,000 in
valuation; or b) have a cumulative impact, or a
significant adverse environmental or ecological
effect on the Special Management Area. In this
case, the assessment procedures may be waived
and the applicant shall petition the Commission
for a Special Management Area Use Permit
pursuant to Section 9-11.

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(b) For proposed uses, activities or operations that
are subject to an assessment, the applicant
shall submit to the Department a Special
Management Area Assessment (SMAA) on a form
prepared by the Department. . . .
. . . .

(c) The Director shall assess the proposed use,
activity or operation[.]

(Emphasis added); see also Commission Rule 9-10(d)-(i) (detailing

the Planning Director's specific duties to act on applications

under various conditions).

There is no dispute here that SMA Permit 25 applies to
all of the Waikoloa Beach Resort, nor that the Kolea Subdivision

is within the Waikoloa Beach Resort. Accordingly, Director

Kanuha was acting within his delegated authority in assessing

whether Kolea HOA's proposed Pool Annex on Lot 22 was in

compliance with SMA Permit 25. See Commission Rules 9-9, 9-10;

see also Kolio, 135 Hawai#i at 271, 349 P.3d at 378 (citing

Paul's Elec. Serv., 104 Hawai#i at 417, 91 P.3d at 499).

Director Kanuha's factual determinations concerning whether the

proposed Pool Annex was consistent with SMA Permit 25 were

subject to review for clear error and his discretionary decisions
were reviewable under the deferential abuse of discretion

standard. See Kolio, 135 Hawai#i at 271, 349 P.3d at 378.

Appellants' argument that Former Director Yuen "fixed"

Lot 22 as "open space" in part of a view corridor, and Director

Kanuha then exceeded his authority by changing that dedication is

not factually supported by the record.

We conclude that Appellants' first point of error is

without merit.

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(2 & 3) Appellants contend that the Circuit Court

clearly erred concerning the findings on the view plane corridor

because documents in the record otherwise defined the corridor.

Appellants point to alleged setbacks in the Planning Commission's

Partial Planned Unit Development (PUD) Permit 13 and PUD Permit

12 as evidence of a defined view corridor. PUD Permit 14 revised

PUD Permit 13 and required, among its conditions, that any hotel

on Parcel 8 would "be set back between 74+- and 117+- feet from

the side property lines." PUD Permit 12 found that any proposed
six-story hotel on Parcel 9&10 would "have to be set back from

between 56 feet and 129 feet from the side property lines,"

instead of the usual 18-foot setback for a hotel, and conditioned

the permit on, inter alia, public shoreline access with related

parking at the mauka-end of the parcel. However, PUD Permit 12

contains no specific condition detailing a property line setback.

Two later easements on Lot 22 provided space for the public

parking and shoreline access. Appellants' argument that PUD

Permit 12 defined a view corridor on Parcel 9&10 that included

Lot 22 is not supported by the record. None of PUD permits 12,

13, or 14 affirmatively set specific areas for establishing a

view corridor but, rather, set limitations against how close to

the property boundary a six-story hotel could be built on Parcel

8 and how far from the property line any hotel on Parcel 9&10

could have been built.

Appellants point to Former Director Yuen's 2002

approval of the Kolea Subdivision plat as fixing "the location of

the 'view plane corridor' on Lot 22" due to the words "open

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space" written on Lot 22 on the plat. Appellants contend

Director Kanuha then "altered" such dedication of the view plane

open space when he approved the Pool Annex. However, Director

Kanuha testified before the Board of Appeals that there was never

an "open space" restriction on Lot 22. Director Kanuha testified

that if the Planning Department wanted to designate an area of a

subdivision as open space it would include the designation as a

condition for approval, which would have to be based on some

criteria and not be made arbitrarily. Deputy Director Daryn Arai
(Deputy Director Arai) testified that the "open space" writing on

a Kolea Subdivision plat had apparently been put there by the

developer, and that the Planning Department had not required an

open space dedication of Lot 22. Director Kanuha further

testified that a notation on a plat would not change the

underlying zoning or the permitted uses. There is no evidence

that Former Director Yuen intended to require the dedication of

Lot 22 as open space and "fixed it" through his approval of the

Kolea Subdivision plat.

Appellants further argue that Hawai#i County Code § 23-

69(9) supports their argument that the notation on the plat is

controlling. However, that section requires that land parcels

that are dedicated for any purpose must be shown on the final

plat and does not provide that anything written on a plat thus

becomes controlling.

(4) Appellants contend that the Circuit Court erred in

concluding that the Planning Director may interpret a condition

in an SMA permit under Commission Rule 9 without notice to,

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review by, and approval of the commission that first issued the

permit. The Commission Rules include:
9-9 Authority of the Department in the Special
Management Area
All development within the Special Management Area
shall be administered through the Department under
this rule pursuant to the objectives and policies and
the Special Management Area guidelines as provided by
Chapter 205A, HRS.

9-10 Assessment
. . . .
(b) For proposed uses, activities or operations that
are subject to an assessment, the applicant
shall submit to the Department a Special
Management Area Assessment (SMAA) on a form
prepared by the Department. . . .

(c) The Director shall assess the proposed use,
activity or operation upon the applicant’s
compliance with Section 9-10B based on the
following criteria:

(1) The valuation of the proposed use,
activity or operation.
(2) The potential effects and significance of
each specific circumstance of the use,
activity or operation, according to the
criteria of substantial adverse effect
established by Section 9-10H.
. . . .

(h) Criteria of Substantial Adverse Effect

In considering the significance of potential
environmental effects, the Director shall
consider the sum of those effects that adversely
affect the quality of the environment and shall
evaluate the overall and cumulative effects of
the action.
A 'substantial adverse effect' is determined by
the specific circumstances of the proposed use,
activity or operation. In determining whether a
proposal may have a substantial adverse effect
on the environment, the Director shall consider
every phase of a proposed action and expected
consequences, either primary or secondary, or
the cumulative as well as the short or long-term
effect of the proposal. The Director should
bear in mind that in most instances, the
following factors of a proposal, although not
limited to same, may constitute a substantial
adverse effect on the environment when the
proposed use, activity or operation:
. . . .

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(10) is contrary to the objectives and policies
of the Coastal Zone Management Program and
the Special Management Area Guidelines of
Chapter 205A, HRS.

(Emphasis added).

Based on the above, we conclude that the Circuit Court

was not wrong in concluding that the Commission Rules delegated

authority for enforcing and ensuring compliance with SMA Use

Permits to the Planning Director.

As noted above, SMA Permit 25 is a master permit

covering the entire Waikoloa Beach Resort of which the Kolea

Subdivision is a part. Kolea HOA filed an SMA use permit

application seeking approval from the Planning Director for the

Pool Annex under SMA Permit 25. The Planning Director's duties

include assessing applications, such as the one for the Pool

Annex, to determine if they comply with the SMA master permit

such as SMA Permit 25 here. Commission Rules 9-9, 9-10(b)-(c).

Therefore, the Circuit Court did not err in concluding that the

Planning Director acted within his authority and properly

exercised his discretion here.
(5) Appellants similarly contend that Commission Rule

9-10 was not the proper vehicle to address whether the

construction of the Pool Annex on Lot 22 was consistent with SMA

Permit 25. However, as previously discussed, Former Director

Yuen's approval of the final plat for the Kolea Subdivision in

2002 did not designate Lot 22 as open space that could not be

improved. Contrary to Appellants' argument, none of Hawai#i

County Code § 23-75, Commission Rule 3, or HRS § 91-8 apply

because Director Kanuha's approval of the Pool Annex was not a

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change to Lot 22 from "open space." The Circuit Court did not

err in concluding that Commission Rule 9-10 was the proper

procedure for the Planning Director to assess Kolea HOA's

application for the Pool Annex.

(6) Appellants argue that because the "open space"

designation for Lot 22 is legally binding, the Circuit Court

erred in concluding that the Pool Annex is consistent with SMA

Permit 25. As we have rejected Appellants' argument that Lot 22

was designated as open space, we conclude that this argument is
without merit.

(7) Appellants argue that the Circuit Court failed to

address the effect that the settlement had in BOA 15-000156 on

the Board of Appeals' decision below. Appellants do not provide,

and the record does not show, how the Board of Appeals' reference

to the settlement in BOA 15-000156 was for any other reason than

reciting the procedural history of this matter. There is no

indication that the settlement factored into the board's

decision. This point of error is without merit.

(8 & 9) For the reasons stated above, we reject

Appellants' contention that the Circuit Court erred in affirming

the decision of the Board of Appeals, as well as Appellants'

contention that the Circuit Court based the Judgment on clearly

erroneous facts and errors of law.

Accordingly, the Circuit Court's February 6, 2018

Judgment is affirmed.

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DATED: Honolulu, Hawai#i, March 8, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Michael J. Matsukawa,
for Appellants-Appellants. /s/ Clyde J. Wadsworth
Associate Judge
D. Kaena Horowitz,
Amy G. Self, /s/ Karen T. Nakasone
Deputies Corporation Counsel, Associate Judge
Office of the Corporation Counsel,
County of Hawai#i,
for Appellees-Appellees
BOARD OF APPEALS, COUNTY OF
HAWAII; PLANNING DIRECTOR,
COUNTY OF HAWAII.
Robert H. Thomas,
(Damon Key Leong Kupchak Hastert)
for Appellees-Appellees
KOLEA OWNERS' ASSOCIATION, INC.

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