CS Development LLC v. County of Kaua'i Planning Department

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
04-JUN-2025
08:08 AM
Dkt. 64 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I

CS DEVELOPMENT LLC and CHARLES
SOMERS, Individually, Intervenors-Appellants-Appellants,
v.
COUNTY OF KAUA‘I PLANNING DEPARTMENT;
COUNTY OF KAUA‘I PLANNING COMMISSION;
Respondents-Appellees-Appellees
and
VALERIE M. NEILSON; and DAVID N. KELLS,
Petitioners-Appellees-Appellees

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CIVIL NO. 5CCV-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Nakasone and McCullen, JJ.)

In this secondary appeal, we hold that the circuit
court lacked jurisdiction over the administrative agency appeal
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under Hawaii Revised Statutes (HRS) § 91-14(a), 1 where there was
no final decision in the contested case. Accordingly, we vacate
the August 15, 2022 Final Judgment and remand to the circuit
court for entry of an order dismissing the agency appeal for
lack of jurisdiction.
Intervenors-Appellants-Appellants CS Development LLC
and Charles Somers (Appellants) appeal from the Circuit Court of
the Fifth Circuit's (Circuit Court) 2 July 28, 2022 "Findings of
Fact, Conclusions of Law, Decision and Order" (Circuit Court
Order), and August 15, 2022 Final Judgment in favor of
Respondents-Appellees-Appellees County of Kaua‘i Planning
Department (Department) and County of Kaua‘i Planning Commission
(Commission) (collectively, County), and Petitioners-Appellees-
Appellees Valerie M. Neilson and David N. Kells (collectively,
Petitioners). The Circuit Court Order affirmed the Commission's
October 12, 2021 decision "to accept" the August 23, 2021
"Hearing Officer's Report and Recommendation of Contested Case"
(HO Report). 3
Appellants' December 20, 2021 "First Amended Notice of
Appeal to Circuit Court" attached the Commission's November 16,
2021 "Findings of Fact, Conclusions of Law of the [Commission]"
(FOFs/COLs), which directed Petitioners to submit additional

1 HRS § 91–14(a) (2023) limits judicial review to "[a]ny person
aggrieved by a final decision and order in a contested case . . . ."
(Emphasis added.)

2 The Honorable Kathleen N.A. Watanabe presided.

3 The minutes of the Commission's October 12, 2021 regular meeting
indicate that a motion "to accept" the HO Report passed unanimously. The
underlying contested case hearing involved Intervenors' challenge, as
adjoining property owners, to Petitioners' application for permits to build a
proposed project on their property (Proposed Project).

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information in accordance with the HO Report, and continued the
Commission hearing as follows:
At its public meeting conducted on October 12, 2021,
and in accordance with [HRS] § 91-12, the Planning
Commission reached the following Findings of Fact and
Conclusions of Law regarding the above captioned matter:

1. As concluded by the [HO] Report dated August 23,
2021, [Petitioners] shall submit additional information to
the Planning Department;

2. [Petitioners] shall submit the information in the
manner specifically set forth in the [HO] Report; and

3. The Agency Hearing is continued and any future
hearing shall be properly noticed and placed on the
Planning Commission's Agenda.

(Emphases added.)
The dispositive question is whether the Commission's
October 12, 2021 acceptance of the HO Report and November 16,
2021 FOFs/COLs constituted a "final decision and order" by the
Commission, as required for judicial review under HRS § 91-
14(a).
Upon careful review of the record and the May 14, 2025
supplemental briefs submitted by the parties, 4 and having given
due consideration to the arguments advanced, we resolve this
appeal as follows.
"A final order is 'an order ending the proceedings,
leaving nothing further to be accomplished.'" Haw. State Tchrs.
Ass'n v. Abercrombie, 126 Hawai‘i 13, 20, 265 P.3d 482, 489 (App.
2011) (citation omitted). "An order is not final if the rights
of a party involved remain undetermined or if the matter is
retained for further action." Id. (citation and brackets
omitted).

4 We issued a May 7, 2025 order requesting supplemental briefing on
the Circuit Court's jurisdiction under HRS § 91–14(a).

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The County argues that the Circuit Court had
jurisdiction under HRS § 91-14(a) because the November 16, 2021
FOFs/COLs is a "final decision and order" that "determined the
rights of the parties" and "approved the permits as recommended
by the [HO] Report, subject to several conditions." The County
relies on Blake v. Cnty. of Kaua‘i Plan. Comm'n, 131 Hawai‘i 123,
315 P.3d 749 (2013), and Mahuiki v. Plan. Comm'n, 65 Haw. 506,
654 P.2d 874 (1982), as examples where the Hawai‘i Supreme Court
"determined that similar actions involving zoning and land use
law with conditional permit approval are final orders within the
meaning of HRS § 91-14(a)." These cases are distinguishable,
however, because both involved clear grants of approval of
permits by the Commission; 5 and for the reasons explained infra,
this case does not.
Here, the Commission's November 16, 2021 FOFs/COLs
neither approved nor granted Petitioners' applications for
Special Management Area (SMA) Use, Zoning, or Use permits
(Application). A plain reading of the FOFs/COLs: (1) directs
Petitioners to submit additional information to the Department
"[a]s concluded" by the HO Report; (2) directs Petitioners to
submit the information in the manner specifically set forth in
the HO Report; and (3) states that the agency hearing before the
Commission is continued, subject to future notice and placement
on the Commission's agenda. The FOFs/COLs, on its face, lacked

5 In Blake, "the Planning Commission granted final approval" of the
subdivision application, and explained that "[a]lthough BLNR would need to
grant an easement . . . the pendency of that approval does not per se affect
the finality of the [Commission's] approval of the subdivision application
for purposes of appeal because Blake is challenging the Planning Commission's
action, and not the action of BLNR." 131 Hawai‘i at 133–34, 315 P.3d at 759–
60 (cleaned up) (emphasis added). In Mahuiki, "the Commission's decision was
to grant the developer the necessary permits, subject to several conditions."
65 Haw. at 511, 654 P.2d at 877 (emphasis added).

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finality because it did not determine whether Petitioners were
permitted to build their Proposed Project; and it did not end
the matter, but continued it for a "future" "Agency Hearing."
See Haw. State Tchrs. Ass'n, 126 Hawai‘i at 20, 265 P.3d at 489.
The lack of finality is similarly reflected in the Commission's
October 12, 2021 vote to accept the HO Report, which resulted in
an "open-ended deferral" of Petitioners' Application; and the
Commission indicated the matter would "return to the
Commissioners [sic] agenda after the requested materials are
submitted and proper notice and publication is completed." 6
Finally, the HO Report's recommendation for
conditional approval of a non-existent, yet-to-be submitted

6 The transcript of the October 12, 2021 Commission Public Meeting
reflects the following:

[County Attorney]: Six Ayes, Madam Chair, Motion [(to
accept HO Report)] Passes 6:0.

Chair Cox: Thank you. And just as a reminder to all of us
that the deferral of the Agency Hearing has been approved
as an open-ended deferral. And so, these, it will return to
the Commissioners [sic] agenda after the requested
materials are submitted and proper notice and publication
is completed.

[Intervenors' Counsel]: Thank you, Chair. . . . I just want
to clarify that given the open deferral; interveners are
still parties to this proceeding as it goes forward. So, we
were entitled to notice and participate [sic] and be
present at the agency here. Am I correct? We believe that's
correct under the Planning Commission Rules.

Chair Cox: I believe that is correct. [County Attorney],
can you clarify.

[County Attorney]: Yes, Madam Chair, the intervener
maintains their status because this is a Continued Agency
Hearing.

[Intervenors' Counsel]: Thank you so much for the
clarification appreciate [sic].

(Emphases added.)

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"Revised Application" set forth in the last three pages of the
89-page report also lacks finality. In the report, the HO
concluded that the Commission's hearing on the Application "must
be rescheduled" because Petitioners "did not file the affidavit
required by [Kauaʻi County Code (KCC)] § 8-3.1(f)(4) and SMA
Rules § 9.0.E"; and that Petitioners did "not comply with KCC
§ 8-3.1(f)(4), SMA Rules § 9.0.B., and Commission Rule 1-13-
5(b)" because they failed to adequately describe the purpose or
nature of their project. The HO concluded that "KCC § 8-
3.1(f)(4) and SMA Rules § 9.0.F. require the [Commission]
Hearing to be postponed, the Petitioners pay the cost of
republication and processing . . . , and follow the same
notification requirements of those provisions to re-notify
affected persons of the postponed [Commission] Hearing." The
clearest indication of the lack of finality with respect to the
disposition of the Petitioners' Application is in COL 32, in
which the HO stated it was "premature to determine whether the
Application should be denied":
32. It is premature to determine whether the
Application should be denied and/or the Planning Department
committed errors of law or abused its discretion because
Petitioners may revise the Application to address those
alleged deficiencies warranting correction ("Revised
Application"), and submit the Revised Application for review
by the Planning Department. In turn, the Director's Report
would revised and updated [sic] ("Revised Director's
Report") for the Planning Commission's consideration at the
Rescheduled [Commission] Hearing.

(Emphases added.) The HO's final recommendation that the
Commission approve the Application included a critical footnote
54 that stated: "This recommendation assumes the Revised
Director's Report APPROVES the Proposed Project as detailed in
the Revised Application." Thus, the recommended conditional
approval of the Application is speculative and premature,

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because it rests on a series of prerequisite circumstances, each
of which may or may not occur.
Appellants argue that they should be entitled to
judicial review because the effect of the HO's recommended
conditional approval means they "are not provided an opportunity
to review the information submitted or [to] submit their own
additional information in response." They alternatively argue
that the FOFs/COLs "should be considered an appealable
'preliminary ruling'" under HRS § 91-14(a), "that is 'of the
nature that deferral of review pending entry of a subsequent
final decision would deprive [Appellants] of adequate
relief[.]'" Appellants claim the deferred agency hearing
"appears to be a mere pro forma exercise" to approve
Petitioners' Revised Application, if and when one is submitted.
Appellants' arguments are not persuasive. The Revised
Application, assuming arguendo one is submitted, must again go
through the same review and notice requirements in accordance
with the governing law, as set forth in the HO Report. Further,
Appellants sought and received on-the-record assurances from the
County at the October 12, 2021 Commission meeting, that their
intervenor status would continue and that they would be entitled
to notice and participation at the "Continued Agency Hearing" on
a Revised Application. Appellants' argument that they will be
"deprive[d]" of "an opportunity to meaningfully participate" is
unfounded.
We conclude that when the Commission voted to accept
the HO Report, it was agreeing that it could not issue a final
decision on the Application because it was premature to do so.
The HO Report's conditional approval recommendation was not
"final" because it did not decide the Application, did not end
the proceedings on the Application, left the Application

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undetermined, and postponed the Commission hearing pending the
submission of a Revised Application and a Revised Director's
Report. Accordingly, the November 16, 2021 FOFs/COLs was not a
"final decision and order" under HRS § 91-14(a), and the Circuit
Court lacked jurisdiction.
For the foregoing reasons, we vacate the Circuit
Court's August 15, 2022 Final Judgment and remand for entry of
an order dismissing the agency appeal for lack of jurisdiction.
DATED: Honolulu, Hawai‘i, June 4, 2025.
On the briefs:
/s/ Keith K. Hiraoka
Mauna Kea Trask,
Presiding Judge
for Intervenors-Appellants-
Appellants.
/s/ Karen T. Nakasone
Associate Judge
Chris Donahoe,
Deputy County Attorney
/s/ Sonja M.P. McCullen
for Respondents-Appellees-
Associate Judge
Appellees.

Valerie M. Neilson and
David N. Kells, MD,
Self-represented Petitioners-
Appellees-Appellees.

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