Abrams v. Maui Planning Commission

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
31-JUL-2025
08:27 AM
Dkt. 70 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

LEW AND MARIA De ABRAMS, individuals, THE SACRED EARTH ASSEMBLY,
a domestic nonprofit corporation, Appellants-Appellees, v.
MAUI PLANNING COMMISSION, COUNTY OF MAUI, Appellee-Appellee,
and
NÂ HÎNANO #O #ÔPÂNA, a domestic nonprofit corporation,
Applicant for Intervention-Appellant.

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CCV-XX-XXXXXXX(2))

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

Applicant for Intervention-Appellant Nâ Hînano #O
#Ôpâna (Nâ Hînano) appeals from the "Order Denying Movant Nâ
Hînano['s] Motion To Intervene or Alternatively for Leave to File
Brief of Amicus Curiae" (Order Denying Intervention), entered on
April 6, 2022, by the Circuit Court of the Second Circuit
(Circuit Court).1/ The Circuit Court denied Nâ Hînano's motion to
intervene in a secondary agency appeal filed by Appellants-
Appellees Lew Abrams (Lew) and Maria De Abrams (Maria) on behalf
of the Sacred Earth Assembly (together, SEA).2/

1/
The Honorable Peter T. Cahill presided.
2/
In a declaration filed on July 14, 2025, SEA's counsel stated,
among other things, that Lew passed away on November 13, 2022, and that "Maria
. . . on behalf of Sacred Earth Assembly continues on as the Plaintiff/
Appellant in this case."
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

The relevant chronology is as follows. On May 10,
2021, Appellee-Appellee Maui Planning Commission (MPC) issued its
findings of fact, conclusions of law, decision and order (MPC
Order) denying SEA's application for a special permit to operate
a church, pursuant to Hawaii Revised Statutes (HRS) § 205-6. On
June 8, 2021, SEA appealed to the Circuit Court from the MPC
Order. On February 12, 2022, Nâ Hînano filed a motion to
intervene in the appeal under Hawai#i Rules of Civil Procedure
Rule 24 or, alternatively, for leave to file an amicus brief
(Motion to Intervene). On April 6, 2022, the Circuit Court
denied the Motion to Intervene.
On appeal, Nâ Hînano contends that the Circuit Court:
(1) "failed to consider its jurisdiction in light of HRS § 205-
19"; and (2) erred in denying the Motion to Intervene as of right
by incorrectly concluding that the motion was untimely, and that
Nâ Hînano's ability to protect its interests would not be
impaired or impeded.
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 Nâ
Hînano's contentions as follows, and vacate.
In its first point of error, Nâ Hînano challenges the
jurisdiction of the Circuit Court over SEA's agency appeal. Nâ
Hînano argues in part that the Land Use Commission (LUC), rather
than MPC, "should have held the contested case, and the matter
appealed to the Hawai#i [S]upreme [C]ourt, not the circuit
court[,]" under HRS § 205-19.
We agree in part with Nâ Hînano's argument, i.e., that
the Circuit Court did not have jurisdiction over SEA's appeal
under HRS § 205-19. HRS § 205-19(a) (2017 & Supp. 2019) states,
in relevant part:

Any other law to the contrary notwithstanding, including
chapter 91, any contested case under this chapter shall be
appealed from a final decision and order or a preliminary
ruling that is of the nature defined by section 91-14(a)
upon the record directly to the supreme court for final
decision.

(Emphases added.) The supreme court has explained the history of

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this provision, as follows:

[I]n 2016 the legislature amended HRS § 91-14(b) to provide
for direct review by the supreme court or the intermediate
appellate court when provided by statute. 2016 Haw. Sess.
Laws Act 48, § 5 at 77. Now HRS § 91-14(b) provides that
"proceedings for review shall be instituted in the circuit
court except where a statute provides for a direct appeal to
the supreme court or the intermediate appellate court." In
the same 2016 Act, the legislature enacted HRS § 205-19,
regarding contested cases arising under HRS chapter 205.
2016 Haw. Sess. Laws Act 48, § 3 at 76-77. HRS § 205-19
provides: "any contested case under this chapter shall be
appealed from a final decision and order or a preliminary
ruling that is of the nature defined by section 91-14(a)
upon the record directly to the supreme court for final
decision."

In re Kanahele, 152 Hawai#i 501, 511-12, 526 P.3d 478, 488-89
(2023) (footnote, ellipsis, and original brackets omitted).
Here, SEA (through Lew and Maria) applied for a special
permit under HRS Chapter 205 – specifically, HRS § 205-6.3/

3/
HRS § 205-6 (2017 & Supp. 2021), Special Permit, states, in
relevant part:

(a) Subject to this section, the county planning
commission may permit certain unusual and reasonable uses
within agricultural and rural districts other than those for
which the district is classified. Any person who desires to
use the person's land within an agricultural or rural
district other than for an agricultural or rural use, as the
case may be, may petition the planning commission of the
county within which the person's land is located for
permission to use the person's land in the manner
desired. . . .

(b) The planning commission, upon consultation with
the central coordinating agency, except in counties where
the planning commission is advisory only in which case the
central coordinating agency, shall establish by rule or
regulation, the time within which the hearing and action on
petition for special permit shall occur. The county
planning commission shall notify the land use commission and
such persons and agencies that may have an interest in the
subject matter of the time and place of the hearing.

(c) The county planning commission may, under such
protective restrictions as may be deemed necessary, permit
the desired use, but only when the use would promote the
effectiveness and objectives of this chapter; provided that
a use proposed for designated important agricultural lands
shall not conflict with any part of this chapter. A
decision in favor of the applicant shall require a majority
vote of the total membership of the county planning
commission.
(d) Special permits for land the area of which
is greater than fifteen acres or for lands designated
as important agricultural lands shall be subject to
approval by the land use commission. The land use
commission may impose additional restrictions as may

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Public hearings were held on the application, and the proceeding
was determined by MPC to be a contested case. A contested case
is "a proceeding in which the legal rights, duties, or privileges
of specific parties are required by law to be determined after an
opportunity for agency hearing." HRS § 91-1 (Supp. 2017). Here,
a hearing on SEA's application was "required by law" under HRS
§§ 91-9 and 205-6(b) (quoted supra) and determined the legal
rights, duties or privileges of SEA. See Community Ass'ns of
Hualalai, Inc. v. Leeward Planning Comm'n, 150 Hawai#i 241, 255,
500 P.3d 426, 440 (2021) (ruling that a proceeding for a special
permit application was a contested case because an agency hearing
was required by planning commission rules and statutes, including
HRS §§ 91-9 and 205-6(b), and such a hearing would have
determined the legal rights, duties, or privileges of specific
parties). The MPC Order was a final decision denying the
application. To appeal from that order, under the plain and
unambiguous language of HRS § 205-19(a), SEA was required to
appeal directly to the supreme court. The Circuit Court thus
lacked subject matter jurisdiction over SEA's appeal.4/
Lacking jurisdiction over the appeal, the Circuit Court

be necessary or appropriate in granting the approval,
including the adherence to representations made by the
applicant.

(e) A copy of the decision, together with the
complete record of the proceeding before the county
planning commission on all special permit requests
involving a land area greater than fifteen acres or
for lands designated as important agricultural lands,
shall be transmitted to the land use commission within
sixty days after the decision is rendered.

Within forty-five days after receipt of the
complete record from the county planning commission,
the land use commission shall act to approve, approve
with modification, or deny the petition. A denial
either by the county planning commission or by the
land use commission, or a modification by the land use
commission, as the case may be, of the desired use
shall be appealable to the circuit court of the
circuit in which the land is situated and shall be
made pursuant to the Hawaii rules of civil procedure.
4/
Although HRS § 205-6(e) (quoted supra) provides that the denial of
a special permit request by the county planning commission or the LUC is
appealable to the circuit court, the provisions of HRS § 205-19(a) apply
specifically to contested cases such as this, requiring appeal directly to the
supreme court. We take judicial notice of the Circuit Court's June 4, 2024
"Order Granting [SEA's] Motion to Transfer Case to Hawaii Supreme Court."

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lacked jurisdiction to enter the Order Denying Intervention. It
must therefore be vacated on that basis, and we need not reach Nâ
Hînano's remaining contentions.
For the reasons discussed above, the "Order Denying
Movant Nâ Hînano['s] Motion To Intervene or Alternatively for
Leave to File Brief of Amicus Curiae," entered on April 6, 2022,
by the Circuit Court of the Second Circuit, is vacated.

DATED: Honolulu, Hawai#i, July 31, 2025.

On the briefs:
/s/ Katherine G. Leonard
Lance D. Collins, Presiding Judge
Christina Lizzi, and
Bianca Isaki
for Applicant for /s/ Clyde J. Wadsworth
Intervention-Appellant. Associate Judge

Leslie K. Iczkovitz
for Appellants-Appellees. /s/ Sonja M.P. McCullen
Associate Judge

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