Bolte 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NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER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
30-MAR-2023
07:51 AM
Dkt. 66 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

GARY BOLTE; CHRIS BOLTE; and HUAKA MAHINA LLC,
Appellants-Appellees,
v.
MAUI PLANNING COMMISSION, Appellee-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CIVIL NO. 18-1-0119(1))

MEMORANDUM OPINION
(By: Leonard, Presiding Judge, and Wadsworth and Chan, JJ.)

In this secondary appeal, Appellee-Appellant Maui
Planning Commission (MPC or the Commission) appeals from the
Final Judgment (Judgment) entered on September 17, 2018, in the
Circuit Court of the Second Circuit (Circuit Court).1/ MPC also
challenges the following orders entered by the Circuit Court:
(1) the June 18, 2018 "Order Denying [MPC's] Motion to Dismiss
Amended Notice of Appeal Filed March 14, 2018" (Order Denying
MPC's Motion to Dismiss); (2) the July 27, 2018 "Order Granting
Appellants[-Appellees] Gary Bolte, Chris Bolte, and Huaka Mahina
LLC's [(collectively, the Boltes)] Motion For Summary Judgment,
Filed May 31, 2018" (Order Granting the Boltes' MSJ); and (3) the
July 27, 2018 "Order Denying [MPC's] Motion for Summary Judgment
as to [the Boltes'] Automatic Approval Claims, Filed June 25,
2018" (Order Denying MPC's MSJ).

1/
The Honorable Rhonda I.L. Loo presided.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

MPC contends that the Circuit Court erred in several
respects, including by asserting jurisdiction over the Boltes'
agency (or primary) appeal, where MPC had not issued a "written
final decision and order" on the Boltes' application for a permit
to operate a short-term rental home (STRH) in Lahaina, Maui.
For the reasons discussed below, we conclude that the
Circuit Court lacked jurisdiction over the primary appeal, as
asserted in the March 9, 2018 notice of appeal and the March 14,
2018 amended notice of appeal.

I. Background

A. Proceedings Before the MPC

On or about December 2, 2016, the Boltes submitted an
application for a STRH permit (Application) to the County of
Maui, Department of Planning (Department).
On September 8, 2017, MPC deemed the Application
complete and set it for public hearing on October 24, 2017. At
the October 24, 2017 public hearing, MPC opened the floor for
public testimony on the Application; there was none. Following
discussion, MPC voted to defer the matter to a later date "for
additional information from the [Boltes] and [to] have additional
commission members present." (Formatting altered.)
On January 9, 2018, MPC held a second public hearing
regarding the Application and again opened the floor for public
testimony; there was none. Following further discussion, MPC
voted to deny the Boltes' Application. The preparation of a
written decision and order for approval by MPC was then briefly
discussed.
On February 22, 2018, the Department sent the Boltes a
letter (February 22, 2018 Letter) stating, in relevant part:

At its regular meeting on October 24, 2017, [MPC]
reviewed the above application, and after due deliberation,
the Commission denied the [Boltes'] request for a STRH
Permit. In making its decision, the Commission took into
consideration, among other things, the number and distance
from the subject parcel to other permitted short-term rental
homes.

A Decision & Order will be mailed to you upon
completion of that document, and we will notify you when it
is scheduled for review and acceptance by the Commission.

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B. Primary Appeal in the Circuit Court

On March 9, 2018, the Boltes filed a notice of appeal
in the Circuit Court pursuant to Hawaii Revised Statutes (HRS)
§ 91-142/ and Hawai#i Rules of Civil Procedure (HRCP) Rule 72,
with an attached statement of the case. The notice of appeal
stated in part:

[The Boltes] . . . hereby appeal[] . . . [MPC's]
preliminary denial of the [STRH] Permit . . . and failure to
render a final decision within the required time period set
forth in the Maui County Code . . . ("Preliminary
Decision").
[MPC] erred in failing to render a final decision
within the 120 day mandatory period to issue a final
decision . . . .

On March 14, 2018, the Boltes filed an amended notice
of appeal containing the same allegations and attaching the same
statement of the case. In its statement of the case, the Boltes
alleged, among other things, that MPC had failed to render a
final decision within 120 days from the date the Application was
deemed complete by MPC, as purportedly required by Maui County
Code (MCC) § 19.510.020 A.7.3/ The Boltes asserted that MPC's
failure to issue a final decision within the prescribed period
violated the automatic approval provisions of HRS § 91-13.5(c).4/

2/
HRS § 91-14(a) (2012) provides, in relevant part:
(a) Any person aggrieved by a final decision and order
in a contested case or by a preliminary ruling of the nature
that deferral of review pending entry of a subsequent final
decision would deprive appellant of adequate relief is
entitled to judicial review thereof under this chapter[.]
3/
MCC § 19.510.020 A.7. provides:

The commission shall transmit to the County council
findings, conclusions, and recommendations for all changes
in zoning and conditional use permits within ninety days,
and within one hundred twenty days for all other
applications requiring council approvals, after the
application is deemed complete by the planning department.
However, if a consolidated application for a community plan
amendment and change in zoning is submitted, the findings,
conclusions, and recommendations shall be transmitted within
one hundred twenty days.
4/
HRS § 91-13.5 (2012) provides, in relevant part:

(a) Unless otherwise provided by law, an agency shall
adopt rules that specify a maximum time period to grant or

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On April 3, 2018, MPC filed a motion to dismiss the
Boltes' amended notice of appeal, arguing that there was no final
decision and order entered on the Boltes' Application and no
right to review pending a final decision and order.
On May 2, 2018, the Boltes filed a memorandum opposing
the motion to dismiss. The Boltes contended that the Circuit
Court had jurisdiction "because [the Boltes] are appealing
[MPC]'s failure to render a decision by the required deadline."
The Boltes maintained that MPC was required by MCC § 19.510.020
A.7. to issue a final decision and order within 120 days from the
date the Application was deemed complete by MPC, i.e., by
February 21, 2018. The Boltes further asserted: "As no decision
and order has issued and the 120-day statutory time period for
[MPC] to issue[] its decision and order has expired, [MPC] must
be compelled to issue a decision and order approving the
Application in accordance with HRS § 91-13.5(c)."
On May 7, 2018, MPC filed a reply memorandum. MPC
argued that for purposes of HRS § 91-13.5(c), "[t]he 'established
time period' in this case is 120 days, as defined in Rule § 12-
201-34 of the [MPC] Rules of Practice and Procedure[.]"5/

deny a business or development-related permit, license, or
approval; provided that the application is not subject to
state administered permit programs delegated, authorized, or
approved under federal law.
. . . .
(c) All such issuing agencies shall take action to
grant or deny any application for a business or development-
related permit, license, or approval within the established
maximum period of time, or the application shall be deemed
approved[.]
5/
MPC Rules of Practice and Procedure (MPC Rules) § 12-201-34
provides, in relevant part:

Maximum time period for decision. Except for state
administered permit programs delegated, authorized, or
approved under federal law, the commission shall review and
make a decision on applications within one hundred twenty
days from the later of: (1) the date the application is
deemed complete by the director, or (2) the closing of the
public hearing on the application, provided that, if a
contested case proceeding is conducted pursuant to
subchapter 4 of these rules, the decision shall be rendered
within the time specified by section 12-201.82.

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On May 10, 2018, the Circuit Court held a hearing on
MPC's motion to dismiss the amended notice of appeal. At the
hearing, the Boltes conceded that "the operative rule here is the
[MPC] Rule Section 12-201-34[,]" and under that rule, "the 120-
day time line triggers from either the date that the application
is deemed complete or 120 days after the public hearing closes."
The Boltes maintained that "[u]nder the circumstances here, there
was a hearing on October 24th, 2017, a public hearing which
triggered the 120-day deadline[.]" Referring to HRS § 91-13.5,
the Boltes argued that "the [MPC] has simply avoided the statute
altogether and created an indefinite time line for them to make a
decision." The Boltes asserted: "[W]e are required to raise
that argument now, otherwise, it would be deemed waived and we
would be denied relief."
Following oral argument, the Circuit Court denied MPC's
motion to dismiss and ruled as follows:

The Court finds . . . that pursuant to Maui County
Code 19.510.020.87[ 6/] and HRS 91-13.5(a), [MPC] must render
a final decision on a short-term rental application within
120 days of the application being deemed complete. [MPC]
determined that [the Boltes'] application was complete on or
about October 4, 2017, thereby, tolling the 120-day
deadline.
The county itself agrees that no final decision and
order has been rendered to date, specifically a final
decision was not issued on February 22, 2018. The planning
director merely issued a letter denying the application but
did not include the requisite findings of fact and
conclusions of law, as it was not approved by [MPC] at a
properly noticed hearing, under the Hawaii [S]unshine [L]aw.
Thereby, the Court finds that [MPC] should not be
allowed to avoid this Court's review simply because they
refused to issue a final decision, thereby violating the
rules. Accordingly, the Court's going to deny [MPC's]
motion to dismiss . . . .

(Footnote added.)
On May 22, 2018, MPC issued its "Findings of Fact,
Conclusions of Law, Decision and Order Denying A Short-Term
Rental Home Permit for the Huaka Mahina STRH" (Decision and
Order).

6/
It appears that the court was referring to MCC § 19.510.020 A.7.

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On June 18, 2018, the Circuit Court entered the written
Order Denying MPC's Motion to Dismiss. The order essentially
restated the court's oral ruling on May 10, 2018.
Also on June 18, 2018, the Boltes filed a separate
notice of appeal, appealing from the May 22, 2018 Decision and
Order. On August 9, 2018, the Circuit Court entered a
Stipulation to Stay Proceedings and Order, under which the
Boltes' appeal from the Decision and Order was "stayed until
thirty (30) days after the Hawaii Intermediate Court of Appeals
or the Hawaii Supreme Court enter[s] a final judgment on the
appeal in the [currently pending] Appeal, by mutual agreement of
the parties, or until the Court orders the stay lifted by motion
filed by one of the parties."
In addition, both parties filed motions for summary
judgment on the substantive issues implicated in the Boltes'
appeal to the Circuit Court. After further briefing and a
July 3, 2018 hearing, on July 27, 2018, the Circuit Court entered
the Order Granting the Boltes' MSJ. The Circuit Court entered
the Order Denying MPC's MSJ on the same date.
On September 17, 2018, the Circuit Court entered the
Judgment,7/ and on September 26, 2018, MPC timely filed its notice
of appeal.

II. Discussion

The dispositive issue in this appeal is whether the
Circuit Court properly exercised jurisdiction over the Boltes'
primary appeal pursuant to HRS § 91-14(a). HRS § 91-14(a)
provides, in relevant part:

7/
The Judgment states, in relevant part:
There are no remaining claims or parties and all other
claims, counterclaims, cross claims and third party claims
are hereby dismissed.
This Court expressly directs that Judgment be entered
as a final judgment pursuant to Rule 58 of the Hawaii Rules
of Civil Procedure.

The Judgment thus appears to dismiss "all other claims" without expressly
entering judgment in favor of the Boltes. Nevertheless, on its face, the
Judgment is final and appealable, as it resolves all claims as to all parties.

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(a) Any person aggrieved by a final decision and order
in a contested case or by a preliminary ruling of the nature
that deferral of review pending entry of a subsequent final
decision would deprive appellant of adequate relief is
entitled to judicial review thereof under this chapter[.]

MPC contends that its January 9, 2018 vote to deny the
Boltes' Application was not a "final decision and order" for
purposes of HRS § 91-14(a). MPC further contends that the Boltes
never pled or otherwise claimed that the vote to deny the
Application constituted "a preliminary ruling of the nature that
deferral of review pending entry of a subsequent final decision
would deprive [the Boltes'] of adequate relief." HRS § 91-14(a).
Accordingly, MPC argues, at the time the Boltes' filed their
appeal in the Circuit Court, the court lacked jurisdiction to
review the MPC's denial of the Application and erroneously denied
the MPC's motion to dismiss.
In response, the Boltes contend that they "expressly
appealed from a preliminary ruling and not a final decision[.]"
The Boltes argue that they "were entitled to automatic approval
of the Application based on [MPC's] failure to issue a Final
Order by the 120-day deadline of February 21, 2018." They
further argue that "they were required to timely appeal [the]
preliminary oral denial and lack of a final decision or risk
waiving their claim." They explain: "Had the Boltes waited
until the Final Order was issued, their failure to timely assert
their right to automatic approval would likely have been deemed
assent to an extension for the [MPC] to issue i[t]s Final Order –
waiving automatic approval."
The Hawai#i Supreme Court has construed HRS § 91-14(a)
as follows:

Judicial review over an agency appeal is authorized by HRS
§ 91–14 when the following requirements have been met:
first, the proceeding that resulted in the unfavorable
agency action must have been a contested case hearing
. . . ; second, the agency's action must represent a
final decision or order, or a preliminary ruling such
that deferral of review would deprive the claimant of
adequate relief; third, the claimant must have
followed the applicable agency rules and, therefore,
have been involved in the contested case; and finally,
the claimant's legal interests must have been
injured—i.e., the claimant must have standing to
appeal.

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In re Application of Maui Electric Co. (MECO), 141 Hawai#i 249,
258, 408 P.3d 1, 10 (2017) (quoting Kilakila #O Haleakala v. Bd.
of Land & Nat. Res., 131 Hawai#i 193, 200, 317 P.3d 27, 34
(2013)). "In other words, there are four requirements for
judicial review over an agency appeal: a contested case hearing,
finality, compliance with agency rule, and standing." Id.
Here, finality is the only requirement at issue. No
final decision and order had been issued by MPC when the Boltes
filed their notice of appeal and amended notice of appeal in the
Circuit Court.8/ Thus, we must consider whether, for purposes of
HRS § 91-14(a), there was an appealable preliminary ruling.
The Boltes acknowledge that they appealed from a
preliminary ruling, which they identified in their statement of
the case as "the preliminary denial of [the Boltes' STRH]
[A]pplication . . . issued on February 22, 2018 . . . , and
[MPC's] failure to render a final decision within the required
time period." The Boltes do not explain, however, why the
February 22, 2018 Letter (or the underlying January 9, 2018 vote
to deny the Application) is "of the nature that deferral of
review pending entry of a subsequent final decision would deprive
[the Boltes] of adequate relief." They simply assert that they
were entitled to automatic approval of the Application based on
the MPC's failure to issue a final order by February 21, 2018,
and had they waited until the May 22, 2018 Decision and Order was

8/
"For purposes of HRS § 91–14(a), [the Hawai #i Supreme Court has]
defined 'final order' to mean 'an order ending the proceedings, leaving
nothing further to be accomplished.'" Bocalbos v. Kapiolani Med. Ctr. for
Women & Children, 89 Hawai#i 436, 439, 974 P.2d 1026, 1029 (1999) (quoting
Gealon v. Keala, 60 Haw. 513, 520, 591 P.2d 621, 626 (1979)). "Consequently,
an order is not final if the rights of a party involved remain undetermined or
if the matter is retained for further action." Id. (quoting Gealon, 60 Haw.
at 520, 591 P.2d at 626).
Here, at the end of the January 9, 2018 hearing, there was discussion
regarding the preparation of a written decision and order for approval by MPC.
See HRS § 91-12 (2012) ("Every decision and order adverse to a party to the
proceeding, rendered by an agency in a contested case, shall be in writing or
stated in the record and shall be accompanied by separate findings of fact and
conclusions of law."); MPC Rules § 12-201-82 ("Every decision and order
adverse to a party to the proceeding rendered by [MPC] shall be in writing or
stated in the record and shall be accompanied by separate findings of fact and
conclusions of law.") In addition, the February 22, 2018 Letter explicitly
stated: "A Decision & Order will be mailed to you upon completion of that
document, and we will notify you when it is scheduled for acceptance by the
Commission." Thus, the matter of the Application was "retained for further
action." Bocalbos, 89 Hawaii at 439, 974 P.2d at 1029.

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issued to file their appeal, they would likely have been deemed
to have waived automatic approval. To the extent the Boltes are
claiming that only automatic approval of their Application would
provide them "adequate relief" in this situation, they cite no
authority supporting their position.
In essence, the Boltes contend that waiting for a final
decision and order from the MPC in these circumstances arguably
could have been deemed a waiver of their alleged right to
automatic approval, citing in particular, Kauai Springs, Inc. v.
Planning Comm'n of Cnty. of Kaua#i, 133 Hawai#i 141, 324 P.3d 951
(2014). There, the supreme court considered whether "Kauai
Springs assented, through verbal and nonverbal conduct, to extend
the automatic approval deadlines for [certain use and zoning]
permits." Id. at 165, 324 P.3d at 975. In conjunction with HRS
§ 91-13.5, "[Kauai County Code (KCC)] §§ 8–19.5(g) and 8–19.6(e)
provide[d] that an application that is not acted upon within the
prescribed time limits (120 days for a special permit, 90 days
for a use permit) is 'deemed approved' unless the applicant
assents to a delay." Id. (emphasis omitted). The supreme court
concluded that the assent provisions in KCC §§ 8–19.5(g) and
8–19.6(e) did "not conflict with HRS 91-13.5." Id. at 167, 324
P.3d at 977. However, the court also ruled that "[t]he
applicant's assent to a delay must occur prior to the [automatic
approval] deadline." Id. at 168, 324 P.3d at 978. Applying that
standard to Kauai Springs' conduct, the court concluded: "[T]he
record in this case demonstrates that Kauai Springs assented to
an extension of the time frame for considering the Use and Class
IV Zoning permits, prior to the deadlines for those individual
permits, as both Kauai Springs and the Planning Commission
treated the application for the three permits as comprising a
consolidated application request." Id. In reaching this
conclusion, the court considered, inter alia, Kauai Springs'
extensive affirmative conduct indicating its assent to extending
the automatic approval deadlines for the requested permits. Id.
In contrast, here, the rules at issue do not contain
any similar provision permitting an applicant to "assent" to a
delay in MPC's decision on an application. See, e.g., MPC Rules

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§ 12-201-34. Moreover, merely waiting for the MPC to issue a
final decision and order, which was statutorily required (see HRS
§ 91-12) and which the MPC had represented to the Boltes was
forthcoming, is not the type of affirmative conduct that was
found to constitute assent in Kauai Springs. Nor is it the type
of conduct from which "an intention to waive [a known right] may
be reasonably inferred[.]" Id. at 167, 324 P.3d at 977 (quoting
Coon v. City & Cnty. of Honolulu, 98 Hawai#i 233, 261, 47 P.3d
348, 376 (2002)). Kauai Springs is therefore inapposite in this
regard.
Ultimately, the Boltes fail to establish that the
January 9, 2018 vote to deny the Application or the February 22,
2018 Letter represented a preliminary ruling "such that deferral
of review [pending entry of a subsequent final decision] would
deprive [the Boltes] of adequate relief[.]" MECO, 141 Hawai#i at
258, 408 P.3d at 10. Here, the Boltes may seek judicial review
of the MPC's statutorily-required final decision and order
entered on May 22, 2018, and assert that it was untimely under
any applicable automatic approval deadline.9/
We conclude that the Circuit Court lacked jurisdiction
over the Boltes' primary appeal, as asserted in the March 9, 2018
notice of appeal and the March 14, 2018 amended notice of appeal.
Other points raised in this appeal are therefore moot.

III. Conclusion

For the reasons discussed above, we vacate the
following orders and judgment entered in the Circuit Court of the
Second Circuit: (1) the June 18, 2018 "Order Denying [MPC's]
Motion to Dismiss Amended Notice of Appeal Filed March 14, 2018";
(2) the July 27, 2018 "Order Granting [the Boltes'] Motion For
Summary Judgment, Filed May 31, 2018"; (3) the July 27, 2018
"Order Denying [MPC's] Motion for Summary Judgment as to [the
Boltes'] Automatic Approval Claims, Filed June 25, 2018"; and (4)
the September 17, 2018 "Final Judgment." The case is remanded to
the Circuit Court with instructions to dismiss the appeal, as

9/
We express no opinion on the merits of that appeal or any
arguments or defenses that might be raised in response to it.

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asserted in the March 9, 2018 notice of appeal and the March 14,
2018 amended notice of appeal, for lack of jurisdiction. The
dismissal is without prejudice to and shall not affect the appeal
initiated by the June 18, 2018 notice of appeal.

DATED: Honolulu, Hawai#i, March 30, 2023.

On the briefs:
/s/ Katherine G. Leonard
Thomas W. Kolbe and Presiding Judge
Caleb P. Rowe,
Deputies Corporation Counsel,
County of Maui, /s/ Clyde J. Wadsworth
for Appellee-Appellant. Associate Judge

Michael C. Carroll and
James G. Deihl /s/ Derrick H.M. Chan
(Bays Lung Rose & Holma) Associate Judge
for Appellants-Appellees.

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