Hawaii Land Use and Admin Law Roundup – Busy Month at the ICA

Hawaii's Intermediate Court of Appeals handed down a string of decisions (most of the unpublished memorandum opinions or summary dispositions – which have lest precedential impact but still may be cited) relating to land use and administrative law. Most of my practice is in this area, so excuse the topical digression. BLNR and Contested Cases The ICA decided Bart v. Board of Land and Natural Resources which is a case involving short term rentals in homes in the conservation district on the island of Kauai. The landowners were given Conservation District Use Permits (CDUP) for the construction of single family residences on their respective properties, but the permits did not allow the owners to rent the residences or use them for commercial purposes. Some owners did rent their residences and the State sent them cease and desist letters. The owners petitioned the Board of Land and Natural Resources for a removal of those conditions. They requested a contested case to adjudicate their petition. The Chair of the Board denied the request. The decision was appealed to the Circuit Court on Kauai, which affirmed the decision. This secondary appeal followed. Under the administrative rules, the Board has the power to deny a request for a contested case, but that power was never delegated from the Board to the Chair. As such, the Circuit Court erred in affirming the Chair's denial and the matter was remanded to the Board to decide the owners request for a contested case on their petition. Delegations are important (especially to the federalism wonk in me) but are often overlooked as a manini detail. In this case, though, the Chair acted without authority which by regulation rested solely with the Board. Zoning and Hawaii Environmental Policy Act (HRS Ch. 343) The ICA decided Mogilefsky v. County of Mauiwhich is a case that says that zoning ordinances are not action triggering environmental review under the Hawaii Environmental Policy Act (HEPA). In this case, the County Council rezoned several hundred acres of land without requiring the developer to submit a Supplemental Environmental Impact Statement. Citing to Sandy Beach Defense Fund v. City and County of Honolulu (talk to Robert Thomas about that one) where the Hawaii Supreme Court held that Council action is legislative and not administrative for the purposes of the Hawaii Administrative Procedures Act, the ICA said that rezoning is not "action" for the purposes of HEPA. Auto-approval of Governmental Permits The ICA decided Yuen v. Board of Appeal of the County of Hawaiiwhich involved a variance application that was not acted upon within the deadline set forth in County rules. HRS 91-13.5 provides that governmental permits may be automatically approved after a certain time period passes. The government permitting authorities set the deadlines for such approvals. In this case, an owner applied for a variance but the approving authority did not issue its decision by the deadline. The variance was denied, then the Board of Appeals, citing the auto-approve law, reversed the denial of the variance. The Circuit Court affirmed the Board. The ICA reversed and found the auto-approve law inapplicable. Despite the statute's purpose (quicker governmental actions), the court found that variances were different than other permits. The statute was to foster quicker actions on permits required before commencement of a business enterprise and since variances couldn't be so classified, the ICA decided that the statute did not apply to variances. I graciously received copies of the briefs from my classmate Elijah Yip and they can be downloaded below: Yuen's Opening Brief Developer's Answering Brief Board of Appeals' Answering Brief Yuen's Reply Brief

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