Ward v. City & County of Honolulu Building Board of Appeals

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
13-AUG-2024
08:33 AM
Dkt. 75 SO

NOS. CAAP-XX-XXXXXXX AND CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

CAAP-XX-XXXXXXX
WILMA KEHAULANI WARD and RONALD WARD,
Appellants-Appellants, v. CITY AND COUNTY OF
HONOLULU BUILDING BOARD OF APPEALS; DAWN TAKEUCHI APUNA, as
Director of the City and County of Honolulu Department of
Permitting and Planning,1 Appellees-Appellees,
and
TRUSTEES OF THE ESTATE OF BERNICE PAUAHI BISHOP dba
Kamehameha Schools, Intervenor-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CC191000601)

and
CAAP-XX-XXXXXXX
WILMA KEHAULANI WARD and RONALD WARD,
Appellants-Appellants, v. CITY AND COUNTY OF HONOLULU
ZONING BOARD OF APPEALS; DAWN TAKEUCHI APUNA, as Director of the
City and County of Honolulu Department of Permitting and
Planning; TRUSTEES OF THE ESTATE OF BERNICE PAUAHI BISHOP dba
Kamehameha Schools, Appellees-Appellees,

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CC191000635)

1
Dawn Takeuchi Apuna, the current director of planning and
permitting, is substituted for former director Kathy K. Sokugawa. Hawai#i
Rules of Appellate Procedure Rule 43(c)(1).
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

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

Wilma Kehaulani Ward and Ronald Ward (the Wards) appeal
from the (1) Final Judgment for the City and County of Honolulu
Building Board of Appeals (BBA), the Director of the City
Department of Planning and Permitting (DPP), and Kamehameha
Schools (KS) in 1CC191000601, and (2) Final Judgment for the City
Zoning Board of Appeals (ZBA), DPP, and KS in 1CC191000635. We
affirm.
The Wards own property behind the Hale#iwa Store Lots.
KS owns the Store Lots, which front Kamehameha Highway. The
Wards claim the Store Lots block access between their property
and Kamehameha Highway. On December 12, 2017, the Wards
petitioned the DPP for declarations that: (1) KS violated the
Unilateral Agreement and Declaration for Conditional Zoning;2
(2) KS breached representations made in its Special District
Permit Application; and (3) the DPP must inform the City Council
of KS's breaches, and remedy them.
The DPP issued a Decision and Order on April 13, 2018.
It declined to make a declaratory ruling. It informed the Wards
they could appeal to the ZBA. It also forwarded the Wards'
petition to its Customer Service and Land Use Permits divisions
to investigate and respond if violations were found.
The DPP's Customer Service and Land Use Permits
divisions conducted an investigation. The DPP reported the
results by Letter dated August 31, 2018. It found "no violation
of any agreement, ordinance, or other law enforceable by the
City," and that "KS has taken reasonable steps to accommodate
access for the Wards and the other parcels behind the [Store
Lots]."
The Wards appealed the DPP's April 13, 2018 Decision
and Order (to not issue a declaratory ruling) to the BBA on

2
The Unilateral Agreement was recorded in the Bureau of Conveyances
on September 27, 2012, as a condition of the city council's approval of a
zoning change needed for KS to develop the Store Lots.

2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

May 11, 2018. The BBA dismissed the appeal for lack of
jurisdiction. The Wards appealed to the Circuit Court of the
First Circuit. The circuit court affirmed. The Final Judgment
was entered on March 10, 2020.3 The Wards appealed, creating
CAAP-XX-XXXXXXX.
The Wards appealed the DPP's August 31, 2018 Letter
(finding no violation by KS) to the ZBA. The ZBA dismissed the
appeal for lack of jurisdiction. The Wards appealed to the
circuit court. The circuit court affirmed. The Final Judgment
was entered on March 10, 2020.4 The Wards appealed, creating
CAAP-XX-XXXXXXX.
We consolidated the appeals. We review the circuit
court's decisions on the Wards' appeals as secondary appeals; we
apply the standards in Hawaii Revised Statutes (HRS) § 91–14(g)
to the BBA's and ZBA's decisions to determine whether the circuit
court was right or wrong.5 Flores v. Bd. of Land & Nat. Res.,
143 Hawai#i 114, 120, 424 P.3d 469, 475 (2018). The existence of
jurisdiction is a question of law reviewed de novo under the
right/wrong standard. Hoku Lele, LLC v. City & Cnty. of
Honolulu, 129 Hawai#i 164, 166, 296 P.3d 1072, 1074 (App. 2013).
(1) The BBA has jurisdiction over appeals from
decisions "in the administration of the Building Code, Electrical
Code, Plumbing Code, Housing Code, Building Energy Efficiency
Standards, and [Revised Ordinances of Honolulu (ROH)] Chapter 18,
1990, (Fees and Permits for Building, Electrical, Plumbing and
Sidewalk Codes)[.]" ROH § 16-1.1 (1990). The DPP's April 13,
2018 Decision and Order declined to declare whether KS violated
the Unilateral Agreement or breached representations made in its

3
The Honorable Bert I. Ayabe presided.
4
The Honorable Bert I. Ayabe presided.
5
The Wards' statements of the points of error challenge the circuit
court's conclusions of law, rather than those of the BBA or ZBA. In an HRS
§ 91-14 secondary appeal, we review the agency's findings and conclusions to
determine whether the circuit court was right or wrong in affirming or
vacating the agency's decision. Sierra Club v. Bd. of Land & Nat. Res., 154
Hawai#i 264, 284, 550 P.3d 230, 250 (App. 2024).

3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Permit Application. It was not a decision administering the
Building Code, Electrical Code, Plumbing Code, Housing Code,
Building Energy Efficiency Standards, or fees or permits for
Building, Electrical, Plumbing, or Sidewalk Codes. The BBA's
conclusion that it lacked jurisdiction over the Wards' appeal was
right. The circuit court was right to affirm the BBA.
(2) The ZBA has jurisdiction over appeals "from the
actions of the director [of planning and permitting] in the
administration of the zoning ordinances, including variances
therefrom, subdivision ordinances and any rules and regulations
adopted pursuant to either." Revised Charter of the City and
County of Honolulu (2017) § 6-1516 (emphasis added).
The Wards are correct that "actions of the director"
over which the ZBA has jurisdiction include "a decision rendered
on a petition for declaratory ruling[.]" Rules of the Zoning
Board of Appeals (ZBA Rules) § 21-1 (1997). The ZBA found that
the Wards filed a separate ZBA appeal from DPP's April 13, 2018
Decision and Order declining to make a declaratory ruling. The
Wards do not challenge that finding; the ZBA apparently had
jurisdiction over that appeal. This appeal concerns the DPP's
August 31, 2018 Letter. The Letter told the Wards that KS did
not violate the Unilateral Agreement or its Permit Application.
The Letter was not an "action of the director" as defined by ZBA
Rules § 21-1.6 See Hoku Lele, 129 Hawai#i at 169, 296 P.3d at
1077. The ZBA's conclusion that it lacked jurisdiction over the
Wards' appeal was right. The circuit court was right to affirm
the ZBA.

6
ZBA Rules § 21-1 (1998) provides, in relevant part:
"Action of the director" means a decision rendered on
an application pursuant to the Land Use Ordinance or the
Subdivision Ordinance; a decision rendered on a request for
a zoning variance; a decision rendered on a petition for
declaratory ruling; a decision rendered on a request for
reconsideration, pursuant to part 1, chapter 4, Rules of
Practice and Procedures of the department of land
utilization; and an enforcement order pursuant to section
8.60-2 of the Land Use Ordinance.

4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

For these reasons, the circuit court's March 10, 2020
Final Judgment in 1CC191000601 and March 10, 2020 Final Judgment
in 1CC191000635 are affirmed.
DATED: Honolulu, Hawai#i, August 13, 2024.

On the briefs:
/s/ Keith K. Hiraoka
Margery S. Bronster, Presiding Judge
Sunny S. Lee,
Jenna L. Durr, /s/ Clyde J. Wadsworth
for Wilma Kehaulani Ward Associate Judge
and Ronald Ward.
/s/ Sonja M.P. McCullen
Molly A. Stebbins, Associate Judge
Deputy Corporation Counsel,
for Dawn Takeuchi Apuna, as
Director of the City and
County of Honolulu Department
of Planning and Permitting.

Dennis W. Chong Kee,
W. Keoni Shultz,
Mallory T. Martin,
for Intervenor-Appellee
Trustees of the Estate
of Bernice Pauahi Bishop,
dba Kamehameha Schools.

5