Na Kia'i O Ma'ili, Inc. v. Laulima Development LLC

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
16-SEP-2024
08:15 AM
Dkt. 90 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

NA KIA#I O MA#ILI, INC., Plaintiff-Appellant,
v.
LAULIMA DEVELOPMENT LLC and CITY AND COUNTY OF HONOLULU,
Defendants-Appellees

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CCV-XX-XXXXXXX)

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

Na Kia#i O Ma#ili, Inc., James Brito, Sr., and Ted
Kuahine appeal from the Final Judgment for Laulima Development
LLC and the City and County of Honolulu entered by the Circuit
Court of the First Circuit on August 10, 2020.1 We affirm.
Laulima was developing Hale Makana O Maili, a rental
housing project intended to provide long-term affordable housing
to Wai#anae Coast communities. During February and March 2017,
Laulima presented the project at public meetings of the Wai#anae
Coast Neighborhood Board, the Nānākuli-Mā#ili Neighborhood
Board's Planning and Zoning Committee, and the Nānākuli-Mā#ili
Neighborhood Board. A link to the draft environmental assessment
was published on the state Department of Health Office of
Environmental Quality Control website on February 23, 2017. That

1
The Honorable Jeffrey P. Crabtree presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

satisfied the Hawai#i Environmental Policy Act, Hawaii Revised
Statutes (HRS) Chapter 343 (HEPA). On June 8, 2017 (after the
public review period for the draft environmental assessment
ended), a link to the project's Final Environmental Assessment
and Finding of No Significant Impact was published on the Office
of Environmental Quality Control website.
Laulima requested affordable housing exemptions from
certain City regulations and fees under HRS § 201H-38. The
City's Department of Planning and Permitting (DPP) sent its staff
report and recommendation for approval to the City Council on
September 21, 2018. The City Council's Committee on Zoning and
Housing held a public meeting on Laulima's request on October 18,
2018. The committee recommended approval. The City Council held
a public meeting and approved the request on October 30, 2018.
Na Kia#i sued Laulima and the City on November 14,
2019. Laulima and the City moved to dismiss under Hawai#i Rules
of Civil Procedure (HRCP) Rule 12(b)(6). Brito and Kuahine moved
to intervene. Na Kia#i moved to amend its complaint. The
circuit court granted both motions to dismiss and denied the
motion to amend and the motion to intervene. The Final Judgment
was entered on August 10, 2020. This appeal followed.
The opening brief contains three overlapping points of
error. All challenge the dismissal of the complaint.2The
motions to dismiss and the oppositions presented matters outside
the pleadings that weren't excluded by the circuit court. We
apply the standard of review for HRCP Rule 56 motions for summary
judgment. HRCP Rule 12(b); Okutsu v. State, 153 Hawai#i 192,
195, 528 P.3d 956, 959 (App. 2023). We review a grant of summary
judgment de novo. Nozawa v. Operating Engineers Local Union
No. 3, 142 Hawai#i 331, 338, 418 P.3d 1187, 1194 (2018). The
issues of constitutional law raised by Na Kia#i are also reviewed

2
The statement of the points of error does not challenge the orders
denying the motion to amend or motion to intervene. Those orders are not
before us in this appeal. Hawai#i Rules of Appellate Procedure Rule 28(b)(4).

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

de novo. Davis v. Bissen, 154 Hawai#i 68, 77, 545 P.3d 557, 566
(2024).
Na Kia#i argues it was deprived of property without due
process of law in violation of Hawai#i Constitution article I,
section 53 and article XI, section 9.4 The circuit court
concluded that Na Kia#i did not show it had a protected property
interest that triggered due process protection, citing In re
Application of Maui Electric Company, Ltd., 141 Hawai#i 249, 260,
408 P.3d 1, 12 (2017) (stating that "in order for procedural due
process protections to apply, Sierra Club must possess an
interest which qualifies as 'property' within the meaning of the
constitution.") (cleaned up)). We need not decide whether Na
Kia#i had a constitutionally protected property interest, because
under de novo review we "may affirm a judgment of the lower court
on any ground in the record that supports affirmance." State v.
Fukagawa, 100 Hawai#i 498, 506-07, 60 P.3d 899, 907-08 (2002).
Even if Na Kia#i had a constitutionally protected property
interest, the record does not show that Na Kia#i was deprived of
due process.
"Procedural due process requires notice and an
opportunity to be heard at a meaningful time and in a meaningful
manner before governmental deprivation of [a] property interest."
Ito v. Invs. Equity Life Holding Co., 135 Hawai#i 49, 73, 346

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Haw. Const. art. I, § 5 provides:

No person shall be deprived of life, liberty or property
without due process of law, nor be denied the equal
protection of the laws, nor be denied the enjoyment of the
person's civil rights or be discriminated against in the
exercise thereof because of race, religion, sex or ancestry.
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Haw. Const. art. XI, § 9 provides:

Each person has the right to a clean and healthful
environment, as defined by laws relating to environmental
quality, including control of pollution and conservation,
protection and enhancement of natural resources. Any person
may enforce this right against any party, public or private,
through appropriate legal proceedings, subject to reasonable
limitations and regulation as provided by law.

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

P.3d 118, 142 (2015) (cleaned up). As best we can discern, Na
Kia#i contends it was deprived of due process because none of its
members received notice of the project. According to the
complaint, this was because of Laulima "misleading in the naming
of the development project submitted to the City & County of
Honolulu with a place name that does not exist in Hawai#i
according to Place Names of Hawai#i[.]" Na Kia#i doesn't cite to
the record where Laulima's submission to the City can be found.
We are not obligated to search the record for information that
should have been provided by Na Kia#i. Haw. Ventures, LLC v.
Otaka, Inc., 114 Hawai#i 438, 480, 164 P.3d 696, 738 (2007). We
note that DPP's report to the City Council on Laulima's HRS
§ 201H-38 application refers to the project as Hale Makana O
Maili. Not Mā#ili. It appears that Na Kia#i is arguing its
members didn't realize the project was located in Mā#ili because
of the way its name was spelled. But DPP's report contains the
tax map key number for the property involved, the names of
streets and a stream bordering the property, and maps of the
location. Under these circumstances, we decline to hold that the
difference between Maili and Mā#ili resulted in a denial of due
process.5
The opening brief argues that "the very ordinance which
authorized the housing development was misleading by failing to
name the correct name of the street along which the Plaintiff
members lived, calling it Kuaaupuni Street as opposed to the
proper name, Kulaaupuni street[.]" The brief does not cite the
ordinance. City Council Resolution No. 18-206, CD1, FD1
(Oct. 30, 2018) authorizing the HRS § 201H-38 exemptions refers
to Kulaaupuni Street once, and to Kuaaupuni Street once, both in
reference to the project's location. The draft environmental
assessment contains multiple references to Kulaaupuni Street and
does not use the name Kuaaupuni. Under these circumstances, we

5
We also note that Na Kia#i spells its name Ma#ili rather than
Mā#ili. See Mary Kawena Pukui, Samuel H. Elbert & Esther T. Mookini, Place
Names of Hawaii 139 (2nd ed. paperback 1976).

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also decline to conclude that the single typographical error in
the City Council resolution is of constitutional consequence.
Na Kia#i summarized its lack-of-notice arguments during
the circuit court hearing as: "There was no mail sent to us.
There was no signs put up in our area. No one called us, no one
contacted us, and instead they just proceeded with this whole
ball of wax[.]" The record shows, and Na Kia#i does not
controvert, that Laulima presented the project during public
meetings of the Wai#anae Coast Neighborhood Board, the
Nānākuli-Mā#ili Neighborhood Board's Planning and Zoning
Committee, and the Nānākuli-Mā#ili Neighborhood Board. The
record shows, and Na Kia#i does not controvert, that Laulima
complied with HEPA's notice requirements. Na Kia#i cites no
statute, administrative rule, or other law requiring notice by
mail or posting under the circumstances of this case. See, e.g.,
HRS § 281-57 (Supp. 2019) (liquor license applicant must mail
notice of hearing on application to owners of property within
five hundred feet from applicant's premises).
The circuit court did not err by granting Laulima's and
the City's motions to dismiss. The "Final Judgment in Favor of
Defendants Laulima Development LLC and City and County of
Honolulu" entered by the circuit court on August 10, 2020, is
affirmed.
DATED: Honolulu, Hawai#i, September 16, 2024.

On the briefs:
/s/ Keith K. Hiraoka
Hayden F. Burgess, Presiding Judge
for Plaintiff-Appellant
Na Kia#i O Ma#ili, Inc. /s/ Clyde J. Wadsworth
Associate Judge
Andrew J. Lautenbach,
Nainoa J. Watson, /s/ Sonja M.P. McCullen
for Defendant-Appellee Associate Judge
Laulima Development LLC.

Duane W. H. Pang,
Deputy Corporation Counsel,
City and County of Honolulu,
for Defendant-Appellee
City and County of Honolulu.

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