Mogilefsky v. County of Maui

_Mogilefsky's appeal is without merit.

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

NO. 29538
IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWATI

DAVID B. MOGILEFSKY, an indiVidual,

v.
COUNTY OF MAUI, Defendant-Appellee

Plaintiff-App

\g ia m 22 sir am

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CIVIL NO. 08-l-O243(3))

» SUMMARY DISPOSITION ORDER
(By: Foley, Presiding J., Fujise and Leonard, JJ.)

In this environmental suit, Plaintiff-Appellant David
B.

Mogilefsky (Mogilefsky) appeals from the "Judgment in Favor of

Defendant County of Maui Against Plaintiff David B. Mogilefsky"
filed on December 23,

2008 in the Circuit Court of the Second
Circuit

(circuit court).1 The circuit court entered judgment in
favor of Defendant-Appellee County of Maui

(County) pursuant to
the "Findings of Fact,

Conclusions of Law, and Decision and Order
Granting Defendant County of Maui's Motion to Dismiss, or, in the

Alternative, Motion for Summary Judgment; and Denying Plaintiff's

Motion for Summary Judgment" entered on December l5, 2008.

On appeal, Mogilefsky contends the circuit court erred
in granting County's July l6, 2008 "Motion to Dismiss Complaint
Filed on May 6, in the Alternative,

(Motion Dismiss/SJ),

2008 or, Motion for Summary
Judgment" "resulting in dismissal of the
Complaint with prejudice for failure to state a cause of action."

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 by the parties, as

well as the relevant statutory and case law, we conclude that

1 The Honorable Joseph E. Cardoza presided.

QQ'HA

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Mogilefsky argues that County violated HawaiU_
Administrative`Rules (HAR) § ll-200-262 by rezoning 670 acres in
the HonuaWila/Wailea 670 project without requiring a developer to
submit a Supplemental Environmental Impact Statement. County
contends the Hawafi Environmental Policy Act is inapplicable
because the enactment of zoning ordinances is not an "agency
action" under Hawaii Revised Statutes (HRS) § 343-2 (Supp. 2009).

HAR § ll-200-2 defines "action" as "any program or
project to be initiated by an agency or applicant"3 and "agency"
as "any department, office, board, or commission of the state or
county government which is part of the executive branch of that
government."4 The Maui County Council (the Council) is a
legislative body and is therefore excluded from this definition
of "agency."5

h Article 3 of the Charter of the County of Maui (the
Charter) establishes a county council, and § 3-6 of the Charter

states that "{t]he council shall be the legislative body of the

2 HAR § ll-200-26, General Provisions, provides:

A statement that is accepted with respect to a particular action
is usually qualified by the size, scope, location, intensity, use,
and timing of the action, among other things. A statement that is
accepted with respect to a particular action shall satisfy the
requirements of this chapter and no other statement for that
proposed action shall be required, to the extent that the action
has not changed substantively in size, scope, intensity, use,
location or timing, among other things. If there is any change in
any of these characteristics which may have a significant effect,
the original statement that was changed shall no longer be valid
because an essentially different action would be under
consideration and a supplemental statement shall be prepared and
, reviewed as provided by this chapter. As long as there is no'

change in a proposed action resulting in individual or cumulative
impacts not originally disclosed, the statement associated with
that action shall be deemed to comply with this chapter.

3 County does not qualify as an "applicant" because it is not a "person
who, pursuant to statute, ordinance, or rule, officially requests approval
from an agency for a proposed action." HAR § ll-200-2. HAR § ll-200-2
defines person as "any individual, partnership, firm, association, trust,
estate, private corporation, or other legal entity other than an agency.“

4 HRS § 343~2 and HAR § ll-200~2 define "agency" and "action"
identically.

5 Mogilefsky does not effectively respond to this argument.

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county." The Charter further states that "[e]very legislative
act of the council shall be by ordinance." lQ4 at § 4-l.
Article 6 of the Charter, "Executive Power," establishes a
separate and distinct executive branch of the Maui County
government. ;Q; at § 6-l.

In Sandv Beach Defense Fund v. City Council of City &
County of Honolulu, 70 Haw, 36l, 370, 773 P.2d 250, 257, (l989),

the HawaFi Supreme Court concluded that "the City Council, as

the legislative branch of the County, is not subject to the
procedural requirements of HAPA [HawaiH.Administrative Procedure
Act] when acting in either a legislative or non-legislative
capacity." The court based this decision on the plain language
of HRS § 91-1 (1993), which expressly excluded the legislative
branch, and the legislative history of HRS § 91-l, which also
supported the exclusion. Sandy Beach Defense Fund, 70 Haw. at
369-70, 773 P.2d at 256-57.

In the instant case, we read the definition of "agency"
as limited to the executive branch. The phrase "which is part of
the executive branch of that government" qualifies the types of
governmental bodies that are applicable "agencies," Because the
Council is not a part of the executive branch of County, it is
excluded from this definition. Consequently, County's enactment
of Ordinances 3353 and 3354, as legislative acts, does not
qualify as an "agency action."

HAR § 11-200-26 is therefore inapplicable to this case.
The circuit court properly granted County's Motion Dismiss/SJ.6

Therefore,

6 we need not address County's other arguments in support of the
circuit court's judgment. These include the following5 the enactment of
zoning ordinances is not a trigger under HRS § 343~5 (l993 & Supp. 2007), and
even if the enactment of the zoning ordinances is an "agency action" under HAR
§ ll-200-26, the community plan amendment to Honudula/ Wailea 670, once
adopted, is no longer a "proposed action" under HAR § ll-200-26.

3

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

The "Judgment in Favor of Defendant County of Maui
Against Plaintiff David B. Mogilefsky" filed on December 23, 2008
in the Circuit Court of the Second Circuit is affirmed.

DATED: Honolulu, Hawafi, June 22, 20l0.
On the briefs:

David B. Mogilefsky

Plaintiff-Appellant pro se. (Lé§MQA?7&;? §
Jane E. Lovell, Presiding Ju ge
Deputy Corporation Counsel,

County of Maui,
for Defendant-Appellee.
Associate Judge

ssociate Judge