Limit Skyline Honolulu v. Prospect Properties LLC

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-MAY-2024
07:50 AM
Dkt. 109 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

LIMIT SKYLINE HONOLULU, Plaintiff-Appellant,
v.
PROSPECT PROPERTIES LLC; DIRECTOR OF
THE DEPARTMENT OF PLANNING & PERMITTING
OF THE CITY AND COUNTY OF HONOLULU,
Defendants-Appellees,
and
DOE DEFENDANTS 1-100, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 16-1-0047-01 DEO)

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

This appeal involves a proposed condominium project in
the lower Punchbowl area of Honolulu. Plaintiff-Appellant Limit
Skyline Honolulu (Limit Skyline) appeals from the January 8, 2018
Final Judgment (Judgment), entered in favor of Defendants-
Appellees Prospect Properties LLC (Prospect) and the Director
(Director) of the Department of Planning and Permitting of the
City and County of Honolulu (DPP) (collectively, Appellees) by
the Circuit Court of the First Circuit (Circuit Court). Limit
Skyline also challenges the following orders entered by the
Circuit Court: (1) the August 30, 2017 "Order Granting in Part
[Prospect's] Motion for Summary Judgment on Counts I and II of
the Complaint for Declaratory Relief, Filed August 9, 2016"
(Order Granting MSJ on Count I); (2) the December 7, 2017
"Findings of Fact, Conclusions of Law, Decision and Order Denying
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[Limit Skyline's] Motion for Summary Judgment on Count II of its
Complaint for Declaratory, Injunctive and Other Relief and
Granting Summary Judgment in Favor of [Appellees]"
(FOFs/COLs/Order Granting MSJ on Count II); and (3) the
December 7, 2017 "Findings of Fact, Conclusions of Law, Decision
and Order Granting [Prospect's] Motion for Summary Judgment on
Counts III and IV of [Limit Skyline's] Complaint Filed January 8,
2016" (FOFs/COLs/Order Granting MSJ on Counts III and IV).1/
On appeal, Limit Skyline contends that the Circuit
Court erred in: (1) concluding that the requirement for an
environmental assessment (EA) under HRS § 343-5(a)(1) was not
triggered by the Skyline Honolulu Project (the Project); (2)
concluding that the requirement for an EA under HRS § 343-5(a)(4)
was not triggered by the Project; (3) granting summary judgment
in favor of Prospect on Count II of the Complaint; and (4)
dismissing Counts II, III, and IV of the Complaint for failure to
exhaust administrative remedies.2/ Limit Skyline also contends
that the Director erred in several respects in approving a
Punchbowl Special District (Major) Permit (PSD Permit) for the
Project – contentions that appear to overlap with its points of
error challenging the Circuit Court's summary judgment rulings.
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve
Limit Skyline's contentions as follows.

I. Discussion

A. Summary Judgment on Count I

In Count I of the Complaint, Limit Skyline alleged

1/
The Honorable Jeannette H. Castagnetti presided over this case
from the filing of the complaint on January 8, 2016, to August 9, 2017, and
entered the August 30, 2017 Order Granting MSJ on Count I.

The Honorable Dean E. Ochiai presided over this case beginning
August 9, 2017, and entered the December 7, 2017 FOFs/COLs/Order Granting MSJ
on Count II, the December 7, 2017 FOFs/COLs/Order Granting MSJ on Counts III
and IV, and the January 8, 2018 Judgment.
2/
Limit Skyline's points of error have been restated and condensed
for clarity.

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that Prospect violated HRS § 343-5(a)3/ and former Hawai#i
Administrative Rules (HAR) § 11-200-6(b)(l)(D) by "failing to
prepare an EA/[Environmental Impact Statement] for the . . .
Project before applying for a [PSD] Permit." (Capitalization
altered.) In the Order Granting MSJ on Count I, the Circuit
Court concluded that "[HRS] Chapter 343 is not implicated" by the
Project, i.e., no EA was required, and thus summary judgment on
Count I in favor of Prospect was appropriate.
Limit Skyline's first two points of error appear to
challenge the Circuit Court's Order Granting MSJ on Count I. We
address each point in turn.

1. Use of State or County Lands or Funds
Limit Skyline contends that the Circuit Court erred in
concluding that an EA was not required under HRS § 343-5(a)(1),
where the Project will replace 11 small residences with a 110-
unit condominium complex and parking garage, and will therefore
likely require the use of state or county lands or funds.
HRS § 343-5(a)(1) requires an EA for an action that
proposes "the use of state or county lands or the use of state or
county funds[.]" In construing the phrase "use of state or

3/
HRS § 343-5(a) (2022) states, in pertinent part:

§ 343-5 Applicability and requirements. (a) Except
as otherwise provided, an environmental assessment shall be
required for actions that:

(1) Propose the use of state or county lands or the
use of state or county funds, other than funds
to be used for feasibility or planning studies
for possible future programs or projects that
the agency has not approved, adopted, or funded,
or funds to be used for the acquisition of
unimproved real property; provided that the
agency shall consider environmental factors and
available alternatives in its feasibility or
planning studies; provided further that an
environmental assessment for proposed uses under
section 205-2(d)(11) or 205-4.5(a)(13) shall
only be required pursuant to section 205-5(b);
. . . .
(4) Propose any use within any historic site as
designated in the National Register or Hawaii
Register, as provided for in the Historic
Preservation Act of 1966, Public Law 89-665, or
chapter 6E[.]

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county lands," the supreme court has stated:

[W]hether a proposed activity constitutes a "use of state or
county lands" depends on the nature of the activity and the
extent of the involvement of state or county lands. [Nuuanu
Valley Ass'n v. City & Cnty. of Honolulu, 119 Hawai #i 90,
103, 194 P.3d 531, 544 (2008)]. When the proposed activity
utilizes state or county lands in a decidedly
inconsequential or negligible manner, like the mere
connection to state or county lands in Nuuanu Valley, or
when the use is hypothetical, like the "potential use" of a
public highway in Citizens[ for Prot. of N. Kohala Coastline
v. Cty. of Hawai#i, 91 Hawai#i 94, 979 P.2d 1120 (1999)],
then the activity does not rise to the level of "use"
contemplated by [the Hawai#i Environmental Policy Act
(HEPA)]. When, on the other hand, the proposed activity
utilizes state or county lands in an actual and more
substantial way, the activity qualifies as a "use" under
HEPA. Compare Nuuanu Valley, 119 Hawai#i at 103–04, 194
P.3d at 544–45 (connecting to existing county lines was not
a "use"), with Kahana Sunset Owners Ass'n v. Cty. of Maui,
86 Hawai#i 66, 71, 947 P.2d 378, 383 (1997) (installing a
new drainage line beneath a public street that would be
connected to an existing culvert beneath a public highway
was a "use"), Citizens, 91 Hawai#i at 103, 979 P.2d at 1129
(constructing two underpasses beneath a state highway was a
"use"), and Sierra Club v. Office of Planning, State of
Haw., 109 Hawai#i 411, 415–16, 126 P.3d 1098, 1102–03 (2006)
(constructing sewage and water transmission lines by
tunneling beneath state highways was a "use").

Umberger v. Dep't of Land & Nat. Res., 140 Hawai#i 500, 522-23,
403 P.3d 277, 299-300 (2017).
In moving for summary judgment on Count I, Prospect
produced evidence that the Project did not propose to use any
state or county funds. Prospect's evidence included the
Declaration of Thomas A. Schnell, the Project's lead planner,
supported by multiple exhibits. Schnell declared, among other
things:

5. The Project will connect privately-owned water
lines, sewage lines and roadways to existing county
infrastructure. The City and County of Honolulu has
determined that there is sufficient capacity in the existing
infrastructure in the sewer and water systems for the
Project. The Project will not involve the upgrade of the
City's sewer system or water main.

6. The Project does not involve (a) installation of
new drainage systems on or under state or county lands; (b)
construction of any roadways on or over state or county
lands; or (c) construction of sewage lines or water lines
across or under state or county lands.

7. The Project does not propose the use of state or
county lands or funds.

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In the Order Granting MSJ on Count I, the Circuit Court
concluded in relevant part:

Even assuming the factual assertions made in [Limit
Skyline's] opposition were property [sic] attested to by a
person with personal knowledge as required by Hawai #i Rules
of Civil Procedure (HRCP) 56(e) and/or supported by exhibits
properly authenticated, the information provided by [Limit
Skyline], when viewed in the light most favorable to [Limit
Skyline], do not establish a genuine issue of material fact
for trial that the subject project proposes "the use of
state or county lands or the use of state or county funds"
as set forth in HRS [§] 343-5(a)(l). [Limit Skyline's]
claim of a use of state or county funds is speculative and
is not based on any specific evidence or facts put forth by
[Limit Skyline].

(Formatting altered; emphasis added).
On appeal, Limit Skyline does not point to any facts in
the record supporting its argument that the Project will require
the use of state or county lands or funds. Instead, Limit
Skyline simply contrasts the existing "small old residences" with
the Project's "~110 new residential units" and concludes that it
is "highly likely" that state and county expenditures of funds
will be needed. At the December 29, 2016 hearing on Prospect's
motion, the Circuit Court questioned Limit Skyline on where it
had presented any admissible evidence of the proposed use of
state or county lands or funds so as to trigger an EA under HRS
§ 343-5(a)(1) or (4). Limit Skyline was unable to point to
specific admissible evidence to support its allegations.
In sum, Limit Skyline failed to meet its burden of
producing admissible evidence to create a genuine issue of
material fact regarding whether the Project proposed the use of
state or county lands or funds.4/ The Circuit Court did not err
on this basis in the Order Granting MSJ on Count I.

2. Use Within an Historic Site
Limit Skyline contends that the Circuit Court erred in
concluding that an EA was not required under HRS § 343-5(a)(4)

4/
Limit Skyline argues that none of the exemptions in the since-
repealed and replaced HAR § 11-200-8(a) apply here. HAR § 11-200-8 was titled
"Exempt Classes of Action" and provided various exemptions from the
requirement for an EA once such a requirement was triggered. Because Limit
Skyline failed to raise a genuine issue of material fact that would trigger an
EA, an exemption from an EA requirement was not necessary.

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because the Project is not "within the boundaries of the National
Memorial Cemetery." Limit Skyline argues that the Memorial
Cemetery in Punchbowl Crater is "within the area of potential
effect and secondary impacts" of the Project.
HRS § 343-5(a)(4) requires an EA for an action that
proposes "any use within any historic site as designated in the
National Register or Hawai#i register, as provided for in the
Historic Preservation Act of 1966, Public Law 89-665 or chapter
6E." (Emphasis added.) The plain language of the statute thus
requires a use "within" a designated historic site.
There is no dispute that the Project was proposed to be
located on the lower slopes of Puowaina, also known as Punchbowl
Crater, and that both Punchbowl Crater and the National Memorial
Cemetery (Memorial Cemetery) within the crater are listed on the
National Register of Historic Places. However, in moving for
summary judgment on Count I, Prospect produced evidence that the
Project did not propose any use within these sites. Prospect's
evidence included a February 29, 2016 letter from Dr. Susan A.
Lebo, Archaeology Branch Chief of the Department of Land and
Natural Resources' (DLNR) State Historic Preservation Division
(SHPD), who stated that "the boundary of the historic property
does not extend to the current [Project] area."
Addressing Limit Skyline's argument that the Project
would potentially affect the Memorial Cemetery, the Circuit Court
found and concluded that:

Even assuming the factual assertions made in the
opposition were property [sic] attested to by a person with
personal knowledge as required by HRCP 56(e) and/or
supported by exhibits properly authenticated, . . . when
viewing the record evidence in the light most favorable to
[Limit Skyline], there is no evidence that the subject
property falls within the boundaries of the [Memorial
Cemetery] or proposes any use within said property. Thus
the subject project does not propose "any use within any
historic site designated in the National Register or
Historic [sic] Register, as provided for in the Historic
Preservation Act of 1966, Public Law 89-665, or chapter 6E"
as set forth in HRS [§] 343-5(a)(4).

(Formatting altered; emphasis added).
Limit Skyline contends that the Circuit Court erred
because the Project "is likely to" adversely affect the Memorial
Cemetery due to the Project's "deep sub surface excavations into

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Punchbowl's volcanic tuff slope that may destabilize the hillside
beneath and immediately below the" cemetery site, therefore
constituting a "reasonably foreseeable" use within the Memorial
Cemetery. (Emphasis added.) Limit Skyline cites past incidents
of rock slides on the outer slopes of Punchbowl Crater to support
its assertion that the Project might impact the cemetery within
the crater. However, the cited exhibits do not appear to show
damage "within" the historic cemetery site. In any event, Limit
Skyline did not present any evidence that the Project is within
the boundary of the historic property.5/
In sum, Limit Skyline failed to meet its burden of
producing admissible evidence to create a genuine issue of
material fact regarding whether the Project proposed any use
within an historic site as set forth in HRS § 343-5(a)(4). The
Circuit Court did not err on this basis in the Order Granting MSJ
on Count I.

B. Summary Judgment on Count II

In Count II of the Complaint, Limit Skyline alleged
that Prospect violated HRS Chapters 6E6/ and 343 by "failing to
provide an assessment of the Project's impact on historic and
cultural resources together with a complete archaeological
inventory survey [(AIS)]." (Capitalization altered.) Count II
also alleged that: "the [AIS] is incomplete"; Prospect "failed
to provide SHPD with an opportunity to review the Project as

5/
Limit Skyline also argues that the Project will impact view planes
to and from Punchbowl Crater, but does not explain how this issue would
trigger an EA under HRS § 343-5(a)(4) where the project is not within an
historic site.
6/
In particular, HRS § 6E-42 (Supp. 2023) provides, in pertinent
part:
§ 6E-42 Review of proposed projects. (a) Except as
provided in section 6E-42.2, before any agency or officer of
the State or its political subdivisions approves any project
involving a permit, license, certificate, land use change,
subdivision, or other entitlement for use, which may affect
historic property, aviation artifacts, or a burial site, the
agency or office shall advise the department and prior to
any approval allow the department an opportunity for review
and comment on the effect of the proposed project on
historic properties, aviation artifacts, or burial sites,
consistent with section 6E-43, including those listed in the
Hawaii register of historic places.

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required by HRS Chapter 6E prior to applying for a PSD permit";
Prospect "should be required, at a minimum, to prepare an EA as
required by HRS § 343 prior to any approvals needed by the
Project"; and "[SHPD] must also be given an opportunity to review
the impact of the Project on all historic properties that may be
impacted by the Project, which is not only part of the
environmental assessment under HRS Chapter 343, but required by
HRS Chapter 6E."
In the FOFs/COLs/Order Granting MSJ on Count II, the
Circuit Court first reiterated that "HRS Chapter 343 is not
implicated in this case[,]" and further concluded that there was
no genuine issue of material fact that:

2. [Limit Skyline] did not initiate, let alone
exhaust, the administrative remedies available from the
Board of Land and Natural Resources [(BLNR)] for the alleged
violation of HRS Chapter 6E or the regulations adopted
thereunder.
4. [sic] HRS § 6E-42 only requires that SHPD be given
an opportunity to review and comment, which in fact occurred
in this case.

5. [sic] Furthermore, although an AIS was never
required by SHPD for this Project, preparation of an AIS was
required by Defendant DPP, and an AIS was prepared for this
Project and accepted by SHPD.
5. With regard to the issuance of the PSD Permit,
under the Revised Charter of Honolulu [(Honolulu Charter)]
§ 6-1516, [Limit Skyline] is required to appeal the decision
of the Director of DPP to the [Zoning Board of Appeals
(ZBA)].

6. To the extent [Limit Skyline] is arguing that
Defendant DPP should not have issued the PSD Permit without
an accepted AIS, that argument was not presented to the ZBA
nor the BLNR.

On appeal, Limit Skyline contends that the Circuit
Court erred in granting summary judgment in favor of Prospect on
Count II. In its third point of error, Limit Skyline argues,
among other things, that the "Director erroneously approved the
PSD . . . Permit even though [Prospect] had not submitted a
complete [AIS] of the Project's Impact on the PSD's Historic and
Cultural Resources . . . ." (Formatting altered.) In its
fourth point of error, Limit Skyline argues that the Circuit
Court erroneously dismissed Count II, among other counts, for
failure to exhaust administrative remedies. We address each

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point in turn.

1. HRS § 6E-42 and the AIS
In Kaleikini v. Yoshioka, 128 Hawai#i 53, 283 P.3d 60
(2012), the Hawai#i Supreme Court applied Hawaii's historic
preservation law, HRS Chapter 6E, and its implementing rules to
the review process for the rail project. The court held:

[T]he SHPD failed to comply with HRS chapter 6E and its
implementing rules when it concurred in the rail project
prior to the completion of the required [AIS] for the entire
project. The City similarly failed to comply with HRS
chapter 6E and its implementing rules by granting a special
management area permit for the rail project and by
commencing construction prior to the completion of the
historic preservation review process.

Id. at 57, 283 P.3d at 64 (emphasis added).
In Hall v. Dep't of Land & Nat. Res., 128 Hawai#i 455,
290 P.3d 525 (App. 2012), this court summarized the supreme
court's reasoning in Kaleikini, as follows:

[T]he rules applicable to Hawai#i's historic preservation
law establish a sequential review process, under which the
completion of an AIS, if required, must precede the SHPD's
concurrence in a project. [128 Hawai#i] at 68, 283 P.3d at
75. HRS § 6E–42 . . . requires a review and comment process
for "any project involving a permit, license, certificate,
land use change, subdivision, or other entitlement for use,
which may affect historic property . . . or a burial
site[.]" (Emphasis added.) The details of this process are
governed by [HAR] Chapter 13–284. Under this regulatory
regime, prior to State government approval of any project
involving a permit, the SHPD must be consulted "to determine
if the area proposed for the project needs to undergo an
inventory survey to determine if historic properties are
present." HAR § 13–284–5(b) (2003).

Id. at 457-58, 290 P.3d at 527-28.
When SHPD is so consulted, it may respond in one of
three ways:

(1) by determining that no historic properties are present;
(2) by determining that an adequate survey exists and that
historic properties are present, which allows the agency to
proceed to the next step in the review process, i.e.,
evaluation of the significance of the historic properties;
or (3) by concluding that an AIS needs to be done.

Id. at 458, 290 P.3d at 528 (quoting Kaleikini, 128 Hawai#i at
74, 283 P.3d at 81) (brackets and ellipsis omitted).

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Here, the summary judgment record on Count II does not
establish that SHPD made either of the first two determinations
when it was initially consulted about the Project in 2007.
Rather, SHPD determined that historic properties were present and
requested proposed mitigation commitments by Prospect, including
documentation of the potential affected properties. It appears
that in 2013, Prospect began the permitting and review process.
SHPD reviewed Prospect's PSD Permit Application and, by letter
dated September 24, 2015, identified SHPD's "outstanding
concerns," reiterated its determination that historic properties
were present, and stated it "look[ed] forward to continuing to
work with [DLNR and DPP] throughout the historic preservation
review process"; it did not state that an adequate survey
existed. On November 3, 2015, the Director issued his Findings
of Fact, Conclusions of Law, and Decision and Order approving the
PSD Permit, subject to certain conditions. Two months later, an
AIS was completed and sent to SHPD on December 28, 2015. By
letter dated February 29, 2016, almost five months after approval
of the PSD Permit, SHPD accepted the AIS's determination of "no
historic properties affected" and agreed that no further work was
necessary.
The Director approved the PSD Permit before SHPD
completed the sequential review process required under HRS
§ 6E–42 and its implementing rules. Based on Kaleikini and Hall,
we conclude that the Circuit Court erred in granting summary
judgment in favor of Appellees on the merits of Limit Skyline's
HRS Chapter 6E claim in Count II.7/

2. Exhaustion of Administrative Remedies
"Courts have developed two principal doctrines to
enable the question of timing of requests for judicial
intervention in the administrative process to be answered: (1)
primary jurisdiction; and (2) exhaustion of administrative
remedies." Kellberg v. Yuen, 131 Hawai#i 513, 527, 319 P.3d 432,
446 (2014) (quoting Kona Old Hawaiian Trails Grp. v. Lyman, 69

7/
To the extent Count II is based on alleged violations of HRS
Chapter 343, for the reasons previously discussed, the Circuit Court did not
err in concluding that "HRS Chapter 343 is not implicated" by the Project.

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Haw. 81, 92–93, 734 P.2d 161, 168 (1987) (Kona Old)). The
exhaustion doctrine "provides that where a claim is cognizable in
the first instance by an administrative agency alone, judicial
review of agency action will not be available unless the party
affected has taken advantage of all the corrective procedures
provided for in the administrative process." Id. (brackets and
internal quotation marks omitted) (quoting Kona Old, 69 Haw. at
93, 734 P.2d at 169). "In order for the doctrine to apply, 'the
statute, ordinance or regulation under which the agency exercises
its power must establish clearly defined machinery for the
submission, evaluation and resolution of complaints by aggrieved
parties.'" Id. at 536, 319 P.3d at 455 (brackets, emphasis, and
internal quotation marks omitted) (quoting Pele Defense Fund v.
Puna Geothermal Venture, 9 Haw. App. 143, 151, 827 P.2d 1149,
1154 (App. 1992)). Since application of exhaustion requires that
the claim be cognizable only before the agency, "the court must
first determine whether the agency has exclusive original
jurisdiction, in which case, the doctrine of exhaustion would
apply. If not, and the court finds that it does possess
jurisdiction over the matter, the court can then decide if it is
appropriate to apply the doctrine of primary jurisdiction." Pac.
Lightnet, Inc. v. Time Warner Telecom, Inc., 131 Hawai#i 257,
269, 318 P.3d 97, 109 (2013) (further explaining the doctrine of
primary jurisdiction).
Here, as to Count II, the Circuit Court ruled that
Limit Skyline did not exhaust the administrative remedies
"available from [BLNR] for the alleged violation of HRS Chapter
6E or the regulations adopted thereunder." The court further
ruled that under Honolulu Charter § 6-1516, Limit Skyline was
required to appeal the Director's decision approving the PDS
Permit to the ZBA, but Limit Skyline did not present its argument
that the permit should not have been issued without an accepted
AIS to the ZBA or BLNR. Thus, the Circuit Court appears to have
granted summary judgment in favor of Appellees on Count II on the
grounds that Limit Skyline failed to exhaust the respective
administrative remedies provided by both the ZBA and BLNR.

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In reaching this decision, however, the Circuit Court
did not determine that specific statutes, ordinances or
regulations under which DPP or BLNR exercise their respective
powers establish "clearly defined machinery for the submission,
evaluation and resolution of complaints by aggrieved parties" –
here, Limit Skyline's challenge to the proposed issuance of the
PSD Permit based on alleged violations of HRS Chapter 6E.
Kellberg, 131 Hawai#i at 536, 319 P.3d at 455. Nor did the
Circuit Court determine whether DPP or BLNR has exclusive
original jurisdiction over specific Chapter 6E claims raised by
Limit Skyline. See Pac. Lightnet, 131 Hawai#i at 269, 318 P.3d
at 109. Rather, the Circuit Court concluded generally that "HRS
§6E-10.5 sets forth a comprehensive enforcement regime for
Chapter 6E, vested in the [BLNR] to investigate and penalize
violation of Chapter 6E or the regulations adopted thereunder[,]"
and that "[p]ursuant to [Honolulu Charter] section 6-1516, a
challenge to the issuance of a PSD Permit must be appealed to the
ZBA."
Appellees are no more specific in their Answering
Brief. They point to no DPP rules for submitting, evaluating and
resolving complaints by aggrieved parties regarding the proposed
issuance of special district permits, and we have found none.8/
Appellees note only that the "[C]ircuit [C]ourt pointed to [HRS]
§6E-10.5," and argue that "Limit Skyline did not exhaust its
administrative remedies with regard to whether there was a
violation [of HRS Chapter 6E] because it never presented its
claim to BLNR to investigate." However, HRS §6E-10.5 itself does
not establish a process for presenting such claims to BLNR to
investigate, evaluate, and resolve, and Appellees do not cite any
applicable rules or regulations that do.
On this record, we cannot conclude that in the context
of this case, statutes, ordinances or regulations under which DPP

8/
We note that City and County of Honolulu Administrative Rules,
Planning Department, Part 1—Rules of the Planning Commission ( Planning
Commission Rules) § 2-52(c) provides that "[p]ersons may petition the
commission to intervene in all proceedings before the commission for special
use permits, subject to the requirements of this subchapter." (Emphasis
added.) The Planning Commission Rules do not appear to contain a similar
provision regarding proceedings for special district permits.

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or BLNR exercise their respective powers establish "clearly
defined machinery for the submission, evaluation and resolution
of complaints by aggrieved parties." Kellberg, 131 Hawai#i at
536, 319 P.3d at 455. Accordingly, the Circuit Court erred in
granting summary judgment in favor of Appellees on Count II on
the grounds that Limit Skyline failed to exhaust the respective
administrative remedies provided by the ZBA and BLNR.

C. Summary Judgment on Count III

In Count III of the Complaint, Limit Skyline alleged
that Prospect violated HRS Chapters 342D and 343 by "failing to
provide an assessment of the water quality impacts of the
project, including whether it may cause significant runoff and
erosion . . . ." (Capitalization altered.)
In the FOFs/COLs/Order Granting MSJ Granting MSJ on
Counts III and IV, the Circuit Court first reiterated that "HRS
Chapter 343 is not implicated in this case[,]" and further
concluded as to Count III that there was no genuine issue of
material fact that:

2. [Limit Skyline] does not have a private right of
action to enforce HRS Chapter 342D, as enforcement is vested
with the Director of Health.

3. [Limit Skyline] did not initiate, let alone
exhaust, the administrative remedies available from the
Director of Health with regard to its allegations that
Prospect violated HRS Chapter 342D.

4. Furthermore, because no demolition or
construction has occurred at the Project site, Defendant
Prospect could not have discharged any pollutants into state
waters in violation of HRS § 342D-50(a).

5. The claim for violation of HRS Chapter Ch. 342
is also therefore premature.

In its reply brief, Limit Skyline states that it "has
not appealed its HRS [Chapter] 342D stormwater runoff claim[.]"
To the extent Count III is based on alleged violations of HRS
Chapter 342D, it is therefore waived. To the extent Count III is
based on alleged violations of HRS Chapter 343, for the reasons
previously discussed, the Circuit Court did not err in concluding
that "HRS Chapter 343 is not implicated" by the Project.

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D. Summary Judgment on Count IV
In Count IV of the Complaint, Limit Skyline alleged a
"denial of substantive due process" "under Article I, Sections 2
and 5, and Article XI[,] Section 9 of the Hawai#i State
Constitution." Count IV alleged, among other things, that:
"[t]he Project is likely to negatively impact the human
environment in terms of obstructing vistas and view planes in
violation of HRS § 343"; the PSD Permit application "provides a
scant and inadequate analysis on the impact of the Project on
significant scenic features and view planes"; and "[t]he Project
is also likely to negatively impact the human environment in
terms of traffic safety in violation of HRS § 343."
(Capitalization altered.)
In the FOFs/COLs/Order Granting MSJ on Counts III and
IV, the Circuit Court first reiterated that "HRS Chapter 343 is
not implicated in this case[,]" and further concluded as to Count
IV that there was no genuine issue of material fact that:

6. . . . [Limit Skyline] takes issue with aspects
of the Project approved by the PSD Permit that are alleged
to have an adverse impact on view planes and traffic.

7. With regard to the issuance of the PSD Permit,
under the Revised Charter of Honolulu § 6-1516, [Limit
Skyline] is required to appeal the decision of the Director
of DPP to the ZBA.

8. [Limit Skyline] did not exhaust its
administrative remedies with regard to its allegations that
the Project approved by the PSD Permit is likely to
negatively impact the human environment in terms of
obstructing vistas and view planes and the Project is likely
to negatively impact the human environment in terms of
traffic safety. Thus, this Court does not have subject
matter jurisdiction over these challenges to the issuance of
the PSD Permit.

(Record citation omitted.)
On appeal, Limit Skyline contends that the Circuit
Court erred in dismissing Count IV for failure to exhaust
administrative remedies.
We need not decide whether, as a general matter, Limit
Skyline's constitutional claims are subject to the exhaustion of
administrative remedies doctrine. For the reasons previously
discussed, we cannot conclude that in the context of this case,
statutes, ordinances or regulations under which DPP exercises its

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power establish "clearly defined machinery for the submission,
evaluation and resolution of complaints by aggrieved parties."
Accordingly, the Circuit Court erred in granting summary judgment
in favor of Appellees on Limit Skyline's substantive due process
claims brought under article I, sections 2 and 5, and article XI,
section 9, pursuant to the exhaustion of administrative remedies
doctrine.

E. Other Points of Error
Given our rulings regarding Counts 1 through IV of the
Complaint, we do not reach Limit Skyline's remaining points of
error.

II. Conclusion

For the reasons discussed above, we affirm the Circuit
Court's: (1) August 30, 2017 Order Granting MSJ on Count I; (2)
December 7, 2017 FOFs/COLs/Order Granting MSJ on Count II, as to
the HRS Chapter 343 claim in Count II; and (3) December 7, 2017
FOFs/COLs/Order Granting MSJ on Counts III and IV, as to Count
III. We vacate the Circuit Court's: (1) December 7, 2017
FOFs/COLs/Order Granting MSJ on Count II, as to the HRS Chapter
6E claim in Count II; (2) December 7, 2017 FOFs/COLs/Order
Granting MSJ on Counts III and IV, as to Count IV; and (3)
January 8, 2018 Final Judgment. We remand the case to the
Circuit Court for further proceedings consistent with this
Summary Disposition Order.

DATED: Honolulu, Hawai#i, May 30, 2024.

On the briefs:
/s/ Keith K. Hiraoka
Linda M.B. Paul Presiding Judge
for Plaintiff-Appellant.

Gregory W. Kugle, /s/ Clyde J. Wadsworth
Loren A. Seehase, and Associate Judge
Joanna C. Zeigler
(Damon Key Leong Kupchak
Hastert) /s/ Sonja M.P. McCullen
for Defendant-Appellee Associate Judge
Prospect Properties LLC

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Brad T. Saito and
Duane W.H. Pang
Deputies Corporation Counsel,
City & County of Honolulu,
for Defendant-Appellee
City and County of Honolulu,
Director of the Department of
Planning and Permitting

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