West Sunset 32 Phase 1 v. County of Kaua'i Planning Commission

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
10-DEC-2024
08:16 AM
Dkt. 184 MO
CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

WEST SUNSET 32 PHASE 1, LLC; CHARLES SOMERS,
as Trustee of the Charles Somers Living Trust; and
CHARLES SOMERS, Individually,
Petitioners-Appellants-Appellees/Cross-Appellees,
v.
COUNTY OF KAUA#I PLANNING COMMISSION; COUNTY OF
KAUA#I PLANNING DEPARTMENT, by its Director Ka#aina Hull,
Appellees-Appellees/Cross-Appellants,
and
MICHAEL A. KAPLAN, Trustee of the Michael A. Kaplan
Revocable Trust, dated August 12, 1992 as amended and
restated by the instrument dated July 16, 2017,
Respondent-Appellee-Appellant/Cross-Appellee

IN THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CIVIL NO. 5CC191000105)

MEMORANDUM OPINION
(By: Leonard, Acting Chief Judge, Hiraoka and Nakasone, JJ.)

In this secondary appeal, Respondent-Appellee-

Appellant/Cross-Appellee Michael A. Kaplan, Trustee of the

Michael A. Kaplan Revocable Trust (Kaplan), and Appellees-

Appellees/Cross-Appellants County of Kaua#i Planning Commission

(Planning Commission) and County of Kaua#i Planning Department

(Planning Department) (together, Kaua#i County) (collectively,

Appellants), appeal from the July 17, 2020 Final Judgment (Final

Judgment) entered by the Circuit Court of the Fifth Circuit
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(Circuit Court),1 in favor of Petitioners-Appellants-

Appellees/Cross-Appellees West Sunset 32 Phase 1, LLC (West

Sunset) and Charles Somers, individually and as Trustee of the

Charles Somers Living Trust (Somers) (together, Appellees).

Appellants also challenge the Circuit Court's June 9, 2020

Findings of Fact [(FOFs)], Conclusions of Law [(COLs)], and

Decision and Order (FOFs/COLs/Order).

I. BACKGROUND

This dispute arises over the development of certain

properties located in the Kîlauea Stream Valley on Kaua#i (the

Subject Properties). The Subject Properties are located in a

Special Management Area (SMA).

On July 15, 2010, Hendrikus Group, Inc. (Hendrikus)

submitted a SMA Permit Assessment Application & Class IV Zoning

Permit Application, proposing the following developments: (1)

structures on a portion of the Subject Properties known as the

Kuleana, (2) structures on a portion of the Subject Properties

known as Parcel 41, and (3) archaeological & agricultural

restoration. The Planning Commission held public hearings on

Hendrikus's application on August 24, 2010, and September 28,

2010. On September 29, 2010, the Planning Director for the

Planning Department (Planning Director) issued "Special

Management Area Use Permit SMA (U) 2011-1, Class IV Zoning Permit

Z-IV-2011-1, and Use Permit U-2011-1" (the Subject Permits) to

Hendrikus for construction of a "new single-family residence,

accessory agricultural storage and office structure, development

1
The Honorable Kathleen N.A. Watanabe presided.

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of irrigation well, accessory photovoltaic installation,

demolition of structure and archaeological restoration of

historical auwai, rock walls, and terraces," subject to ten (10)

conditions. The Subject Permits did not provide a time frame

within which Hendrikus must make substantial progress on the

development.

On October 11, 2018, Kaplan purchased the Subject

Properties from Hendrikus. On March 29, 2019, Kaplan sent a

letter (Kaplan Application) to the Planning Commission,

requesting a two-year continuance to complete the work approved

in the Subject Permits, and approval to modify the design of the

previously approved single-family residence.

Kaplan's Application was placed on the agenda for the

Planning Commission's April 23, 2019 public meeting as a "general

business matter." The Planning Director's April 16, 2019

preliminary report on Kaplan's Application recommended approving

Kaplan's request for an extension of time and request to modify

the single-family residence. At the April 23, 2019 meeting, no

public testimony was received, but brief statements were made by

the Planning Department and Kaplan's representative. On May 2,

2019, the Planning Commission memorialized its oral decision from

the April 23, 2019 meeting approving Kaplan's Application.

On May 21, 2019, Somers filed a "Petition for the

Revocation of [the Subject Permits]" (Petition for Revocation)

pursuant to Rules of Practice and Procedure of the Kaua#i County

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Planning Commission (RPPPC) Chapter 12.2 Somers requested that

the Planning Commission either revoke the May 2, 2019 approval of

Kaplan's modifications and deem the Subject Permits as having

lapsed, or revoke the modification, require Kaplan to comply with

the notice requirements, and set the matter for further hearing

following public notice. Upon receipt, the Planning Director did

not reject Somers's Petition for Revocation as incomplete,

inaccurate, or failing to comply with the Planning Commission

rules as provided in RPPPC § 1-12-3(b).3
On June 12, 2019, Kaplan filed a memorandum in

opposition to Somers's Petition for Revocation, and on June 20,

2019, Somers filed a reply to Kaplan's memorandum in opposition.

On June 17, 2019, the Planning Director issued,

pursuant to RPPPC 1-12-5,4 the required director's report on

2
Somers is the owner of a nearby property on K âhili Quarry Road in
Kilauea.
3
RPPPC § 1-12-3(b) states, in pertinent part:
1-12-3 Form and Content of Petition.

. . . .
(b) The Director may reject any petition which is
incomplete, inaccurate or fails to comply with the Rules of
the Commission[.]
4
RPPPC § 1-12-5 states:
1-12-5 Revocation of Permits by the Planning
Commission. The Director shall review and investigate the
basis for any petition for revocation of a permit which the
Commission has final authority to grant or which the
Commission makes a recommendation and report to the Kaua #i
County Council, State Land Use Commission or other agency
which has the final authority to grant. The Director shall
file his report with the Commission within sixty (60) days
from the date of the acceptance of the petition, unless the
Commission allows the Director more time to investigate the
contents of the petition. The Commission shall review the
Director's report and if the Commission finds that there is
reasonable cause to believe that there currently is a
(continued...)

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Somers's petition. The Planning Director's preliminary

conclusion was that there is no reasonable cause to believe there

is currently a failure to perform according to the conditions

imposed in the Kaplan Application, and recommended denying

Somers's Petition for Revocation.

On June 25, 2019, the Planning Commission held a public

meeting, and Somers's petition was considered under a "general

business matter." Attorneys for Kaplan and Somers appeared and

made statements to and took questions from the commission. The
Planning Director informed the parties that the meeting was not a

contested case, and that what the commission was deciding was

whether to issue an order to show cause, which would involve a

contested case hearing. Somers's representative requested that

the matter be reset for a public hearing to allow all interested

parties to be heard. The Planning Commission unanimously voted

to deny Somers's petition, agreeing with the analysis of the

Planning Department. On June 27, 2019, the Planning Commission

issued its written decision denying Somers's Petition for

Revocation.

On July 25, 2019, Somers appealed the Planning

Commission's decision to the Circuit Court. On June 9, 2020, the

Circuit Court entered its FOFs/COLs/Order, vacating the Planning

Commission's June 27, 2019 decision, and ordering:

4
(...continued)
failure to perform according to the conditions imposed, the
Commission shall issue and serve upon the party bound by the
conditions an Order to Show Cause why the permit should not
be revoked or modified.

(Emphasis added).

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(A) [The Subject Permits] lapsed on September 28, 2012 and
are deemed to be no longer in effect and no further
development shall proceed under the authority of the
Subject Permits;
(B) This matter is remanded to the Planning Department
with instructions to find that Kaplan's request for
the construction of a farm dwelling unit in addition
to the pre-existing development on the Subject
Property, and amendment to modify the design of the
previously permitted single family residence requires
a Use Permit pursuant to Chapter 8-11.3 of the Kauai
County Code, a Class IV Zoning Permit pursuant to
Chapter 8-11.3 of the Kauai County Code, and
constitutes "Development" pursuant to HRS 205A-22 and
SMA Rule 1.4 F, thus requiring a SMA Use Permit as
defined in SMA Rule 7.3 C;
(C) The Director shall inform Kaplan of, and the [Planning
Commission], the Planning Department, and Kaplan shall
comply with the following requirements pursuant to SMA
Rule 7.3 C (a) - (d): the requirement of an
application pursuant to SMA Rule 8.0, the public
hearing requirements pursuant to SMA Rule 9.0, the
Planning Commission's requirements for action pursuant
to SMA Rule 10.0, and the area of critical concern to
delineate the scope of information which the applicant
must address; and
(D) Kaplan's request for Development shall not be approved
unless the Director or Planning Commission has first
made the requisite findings pursuant to HRS § 205A-26
(2)(A) - (C) and SMA Rule 4.0 B(1) - (3) after
conducting a public hearing and any other necessary
hearings pursuant to HRS Ch. 205A, the SMA Rules of
the County of Kauai, and the RPPPC, consistent with
this Court's Findings of Fact, Conclusions of Law, and
Decision and Order.

On July 17, 2020, the Circuit Court entered the Final

Judgment in favor of Appellees. Kaplan appealed on July 29,

2020. Kaua#i County cross-appealed on August 14, 2020.

II. POINTS OF ERROR

Kaplan raises six points of error on appeal, contending

that the Circuit Court erred by: (1) exercising jurisdiction

where no contested case occurred or was required to occur on

Somers's petition; (2) departing from its role as an appellate

court and concluding that the Subject Permits lapsed without

determining that the Planning Department and Planning Commission

abused their discretion in determining that substantial progress

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had been made under the Subject Permits; (3) concluding that the

Planning Commission's June 27, 2019 Decision contained inadequate

FOFs and COLs where the commission's discretionary decision was

supported by substantial evidence in the record; (4) concluding

that the extension and modification of the Subject Permits was

done upon improper procedure and inadequate notice; (5) ordering

that the Subject Permits had lapsed and no longer in effect

without remanding the matter to the Planning Commission,

depriving Kaplan of vested property rights without due process;
and (6) ordering that no further development shall proceed under

the Subject Permits without carrying out the mandatory analysis

as to whether injunctive relief was warranted.

Kaua#i County raises two points of error, contending

that the Circuit Court's (1) FOFs 55 and 56 are clearly erroneous

in view of the reliable, probative, and substantial evidence on

the record, and (2) COLs 32, 44, 45, 46, 47, 50, 51, 76, 77, 78,

80, 85, 87, 88, 91, 94, 97, 98, 100, 102, 110, and 111 are

clearly erroneous as a matter of law.

III. APPLICABLE STANDARDS OF REVIEW

A. Subject Matter Jurisdiction

Whether a court possesses subject matter jurisdiction

is a question of law reviewable de novo. Kaleikini v. Thielen,

124 Hawai#i 1, 12, 237 P.3d 1067, 1078 (2010) (citation omitted).
If a court lacks jurisdiction over the subject matter
of a proceeding, any judgment rendered in that proceeding is
invalid. Therefore, "'[s]uch a question is valid at any
stage of the case, and though a lower court is found to have
lacked jurisdiction, we have jurisdiction here on appeal,
not of the merits, but for the purpose of correcting an
error in jurisdiction.'"

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Bush v. Hawaiian Homes Comm'n, 76 Hawai#i 128, 133, 870 P.2d

1272, 1277 (1994) (citation omitted).

B. Administrative Agency Decisions - Secondary Appeals

Review of a decision made by a circuit court upon its

review of an agency's decision is a secondary appeal. Flores v.

Bd. of Land & Nat. Res., 143 Hawai#i 114, 120, 424 P.3d 469, 475

(2018). The standard of review is one in which this court must

determine whether the circuit court was right or wrong in its

decision, applying the standards set forth in Hawaii Revised
Statutes (HRS) § 91-14(g) (Supp. 2023) to the agency's decision.

Id.

HRS § 91-14(g) provides:
(g) Upon review of the record, the court may affirm
the decision of the agency or remand the case with
instructions for further proceedings; or it may reverse or
modify the decision and order if the substantial rights of
the petitioners may have been prejudiced because the
administrative findings, conclusions, decisions, or orders
are:
(1) In violation of constitutional or statutory
provisions;

(2) In excess of the statutory authority or
jurisdiction of the agency;
(3) Made upon unlawful procedure;

(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable,
probative, and substantial evidence on the whole
record; or
(6) Arbitrary, or capricious, or characterized by
abuse of discretion or clearly unwarranted
exercise of discretion.

"[U]nder HRS § 91-14(g), conclusions of law are

reviewable under subsections (1), (2), and (4); questions

regarding procedural defects under subsection (3); findings of

fact under subsection (5); and an agency's exercise of discretion

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under subsection (6)." United Pub. Workers, AFSCME, Local 646,

AFL-CIO v. Hanneman, 106 Hawai#i 359, 363, 105 P.3d 236, 240

(2005).

Mixed questions of law and fact are "reviewed under the

clearly erroneous standard because the conclusion is dependent

upon the facts and circumstances of the particular case." Save

Diamond Head Waters LLC v. Hans Hedemann Surf, Inc., 121 Hawai#i

16, 25, 211 P.3d 74, 83 (2009) (citation omitted).

IV. DISCUSSION
A. The Circuit Court's Exercise of Jurisdiction over
Somers's appeal

Kaplan argues that the Circuit Court lacked

jurisdiction to hear Somers's appeal from the Planning

Commission's denial of his Petition for Revocation because no

contested case occurred, nor was required to occur. The Circuit

Court determined that Somers's Petition for Revocation of the

Subject Permits was a contested case by concluding:
19. [Planning Commission] action on a Petition for
Revocation of Permits pursuant to RPPPC Ch. 12 involves a
three-step process: (1) filing a Petition for Revocation of
Permits pursuant to RPPPC Rule 1-12-3, which the Planning
Director may reject pursuant to RPPPC 1-12-3(b) if it is
incomplete, inaccurate or fails to comply with the Rules of
the [Planning Commission]; (2) holding a hearing pursuant to
RPPPC Rule 1-12-5 to determine whether there is reasonable
cause to believe that there is a failure to perform
according to the conditions imposed on the Permits and to
issue an Order to Show Cause; and (3) holding an Agency
Hearing on the Order to Show Cause according to the
contested case hearing procedures contained in RPPPC ch. 6,
pursuant to RPPPC 1-12-7.
20. According to the record, the Planning Director
did not reject Somers' Petition pursuant to RPPPC Rule
1-12-3(b), the [Planning Commission] did not find that there
was no reasonable cause to believe that there is a failure
to perform according to the conditions imposed on the
Permits pursuant to RPPPC 1-12-5, and although the [Planning
Commission] did not formally issue an Order to Show Cause,
Kaplan was served with a copy of Somers’ Petition for
Revocation and filed a memorandum in opposition to the same,
to which Somers filed a reply brief.

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21. At the June 25, 2019 hearing on Somers’ Petition,
attorneys for Somers and Kaplan argued the merits of Somers’
Petition, Kaplan’s architect Mr. Giorgio testified as a
witness, and the [Planning Commission] voted to deny Somers’
Petition based upon the merits of his Petition, not upon the
threshold matter involving lack of reasonable cause.

22. Under RPPPC 1-12-7 the [Planning Commission] was
required to hold an agency hearing prior to denying Somers’
Petition for Revocation on its merits. Pursuant to RPPPC
Rule 1-1-2, "'Agency Hearing' refers only to such hearing
held by the Commission immediately prior to a judicial
review of contested case as provided in Section 91-14
HRS[.]"
23. The Court determines that the June 25, 2019
[Planning Commission] hearing on Somers' Petition for
Revocation of the Subject Permits was a "Contested case" as
defined by HRS § 91-1 and RPPPC 1-1-2 (7)(i), and that
Somers may appeal the [Planning Commission's] June 27, 2019
Decision to the Circuit Court of the Fifth Circuit pursuant
to HRS § 91-14, HRS § 603-21.8, SMA Rule 15.0, RPPPC Rule
1-6-18(i), and Rule 72 of the Hawai#i Rules of Civil
Procedure.

Judicial review over an agency appeal is authorized by

HRS § 91–14 when the following requirements have been met:
[f]irst, 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.

In re Application of Maui Elec. Co., Ltd., 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)

(Kilakila)). "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.

HRS § 91–1 (Supp. 2023) defines a "contested case" as

"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 defines an "agency

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hearing" as "such hearing held by an agency immediately prior to

a judicial review of a contested case as provided in section

91–14."5 "Thus, '[a] contested case is an agency hearing that 1)

is required by law and 2) determines the rights, duties, or

privileges of specific parties.'" Kaniakapupu v. Land Use

Comm'n, 111 Hawai#i 124, 132, 139 P.3d 712, 720 (2006) (quoting

Pub. Access Shoreline Haw. v. Hawai#i Cnty. Plan. Comm'n, 79

Hawai#i 425, 431, 903 P.2d 1246, 1252 (1995)). We first consider

whether an agency hearing was required by law, and then consider
whether the hearing would have determined the rights, duties, or

privileges of the parties.

1. Required by law?

In order for an administrative agency hearing to be

required by law, "it may be required by (1) agency rule, (2)

statute, or (3) constitutional due process." Kilakila, 131

5
RPPPC § 1-1-2(3)'s definition of "contested case" and § 1-1-
2(7)(i)'s definition of "agency hearing" are identical to the HRS language,
and state:

1-1-2 Definitions. As used in these Rules, except as
otherwise required by context:

. . . .
(3) "Contested Case" means 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.
. . . .

(7) "Hearing"
(i) "Agency Hearing" refers only to such hearing
held by the Commission immediately prior to a
judicial review of a contested case as provided
in Section 91-14 HRS, including but not limited
to Class IV, Use, and Variance Permits pursuant
to the Comprehensive Zoning Ordinance of the
County of Kaua#i and other applicable laws.

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Hawai#i at 200, 317 P.3d at 34 (citation and internal quotations

omitted).
If the statute or rule governing the activity in
question does not mandate a hearing prior to the
administrative agency's decision-making, the actions of the
administrative agency are not "required by law" and do not
amount to "a final decision or order in a contested case"
from which a direct appeal to circuit court is possible.

Kaleikini, 124 Hawai#i at 17, 237 P.3d at 1083 (quoting Bush, 76

Hawai#i at 134, 870 P.2d at 1278).

Stated differently, "pursuant to HRS § 91–14, in order

for proceedings before an agency to constitute a contested case
from which an appeal can be maintained, the agency must be

required by law to hold a hearing before a decision is rendered."

Id. (citation omitted). Here, the Circuit Court determined that

the agency hearing was required by agency rule.

Chapter 12 of the RPPPC outlines the process for a

petition to revoke an SMA permit. RPPPC § 1-12-2 provides who

has standing to file a petition to revoke an SMA permit, and

RPPPC § 1-12-3(a) outlines the contents required in a revocation

petition. RPPPC § 1-12-3(a) provides, in pertinent part, that a

revocation petition must contain:
(1) the identification of the permit in question and a statement
concerning Section 1-12-2;
(2) the specific term or condition of the permit alleged to have
been violated or not complied with;

(3) a detailed factual basis of the alleged violation; and
(4) any other information that the Director requires for
an adequate investigation into the matter.

(Emphasis added).

Upon receipt of a revocation petition, the Planning

Director may reject it if the Planning Director determines the

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petition is "incomplete, inaccurate or fails to comply with the

Rules of the [Planning] Commission." RPPPC § 1-12-3(b).

If the Planning Director does not initially reject a

revocation petition under RPPPC § 1-12-3(b), the "[Planning]

Director shall review and investigate the basis" of said

petition, and "file his report with the [Planning] Commission."

RPPPC § 1-12-5. The Planning Commission "shall review the

Director's report, and if the Commission finds there is

reasonable cause to believe that there currently is a failure to
perform according to the conditions imposed, the Commission shall

issue and serve upon the party bound by the conditions [(here

Kaplan)] an Order to Show Cause why the permit should not be

revoked or modified." See id. (emphasis added). The Circuit

Court determined that step two of the Planning Commission's

review of a petition for revocation involves "holding a hearing

pursuant to RPPPC § 1-12-5 to determine whether there is

reasonable cause to believe that there is a failure to perform"

according to the permit conditions.

However, the plain language of RPPPC § 1-12-5 does not

require a hearing prior to the Planning Commission's

determination on whether to issue an order to show cause, and

therefore, the Circuit Court's COL 19 is wrong. Only if the

Planning Commission determines that there is reasonable cause to

believe there is a failure to perform according to the permit's

conditions will the Planning Commission issue an order to show

cause and hold an agency hearing on said order. See RPPPC § 1-

12-7 ("The Commission shall conduct an Agency Hearing on the

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Order to Show Cause in accordance with the requirements of

Chapter 6 of these Rules."). Multiple RPPPC and SMA Rules

highlight that the mandatory hearing language is absent from

RPPPC § 1-12-5. For example, RPPPC chapter 13, governing special

permits, provides that "[t]he [Planning] Commission shall conduct

an Agency Hearing within a period of sixty (60) calendar days

from the date of acceptance of a properly filed and completed

petition. RPPPC § 1-13-5(a) (emphasis added). Another example

is SMA Rule 9.0, which states that "[t]he Planning Commission
shall conduct a public hearing within a period of sixty (60)

calendar days from the date of acceptance of a properly filed and

completed application as determined by the Planning Department."

SMA Rule 9.0(A) (emphasis added).

No mandatory hearing requirement is stated in the text

of RPPPC § 1-12-5. No hearing of any kind is required to be held

prior to the Planning Commission's determination of whether to

issue an order to show cause, making the decision to put Somers's

petition on for hearing discretionary, and "discretionary

hearings are not contested cases because they are not required by

law." Lingle v. Haw. Gov't Emp. Ass'n Local 152, 107 Hawai#i

178, 184, 111 P.3d 587, 593 (2005) (citing Pele Defense Fund v.

Puna Geothermal Venture, 77 Hawai#i 64, 68, 881 P.2d 1210, 1214

(1994)). Here, the Planning Commission did not issue an order to

show cause, and thus, no agency hearing, or hearing of any kind,

was required by any agency rule.

The Circuit Court, however, concluded that because (1)

the Planning Director did not reject Somers's petition under

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RPPPC § 1-12-3, and (2) the Planning Commission did not determine

that there was no reasonable cause to believe that there is a

failure to perform according to the conditions imposed on the

Subject Permits, that therefore (3) the Planning Commission

skipped the formal process of issuing an order to show cause and

denied Somers's petition during the June 25, 2019 meeting on the

merits, which they could not do prior to conducting the RPPPC

§ 1-12-7 agency hearing. This conclusion is wrong.

First, the Planning Commission concluded that there was
no reasonable cause to believe the allegations in Somers's

revocation petition. After hearing statements from Somers's and

Kaplan's attorneys, the Planning Commission voted "to decide what

to do on revocation of special management area Use Permit SMA(U)-

2011-1 Class IV, Zoning Permit Z-IV-2011-1 and a Permit U-2011-1

for [Kaplan], a request for revocation." The Planning Commission

voted to deny Somers's Petition for Revocation, and when asked to

put forth a reason why, the Planning Commission said they

"[a]gree with the analysis of the Planning Department." The

Planning Director's Report on Somers's Petition for Revocation

concluded that "the Department found that there is no reasonable

cause to believe that there is currently a failure to perform

according to the conditions imposed." (Emphasis added).

Accordingly, the Planning Commission denied Somers's Petition for

Revocation for lack of reasonable cause.

Second, the Planning Commission is tasked with

reviewing the basis of a revocation petition when determining

whether to issue an order to show cause. See RPPPC 1-12-3(a).

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RPPPC § 1-12-5 provides that based on the allegations in the

petition, only if the Planning Commission finds reasonable cause

to believe a term or condition in the permit is not being

complied with does the Planning Commission issue an order to show

cause. Therefore, if the Planning Commission determines that

there is no reasonable cause, it is rejecting the petition on its

merits.

Lastly, the Planning Commission did not "skip" a formal

process of issuing the order to show cause, because at the June
25, 2019 regularly scheduled commission meeting,6 all the

commission decided was whether to issue an order to show cause.

This is evidenced by the transcript of the meeting, which

provides, in pertinent parts:
[Planning Director] Hull: Um, at this point it's not a
contested case, so I'm not a party to the proceedings, but
just serving in capacity. If the modification -- because it
has been an interpretation of the department for years,
quite honestly, Counsel, that, um, a modification -- the
director's given the discretion to determine whether or not
the public notice is necessary.
. . . .

[Commission Member] Ms. Nogami Streufert: I – I'm not sure
it pertains to you right now. Um, I'm reading this Hawaiian
Islands Land Trust that we just got a few minutes ago, and
the last paragraph states that if we were to open this up
to, uh -- I'm not sure it's called an intervention, because
it -- we're not in a contested case, but if we were --
but --
. . . .

Mr. Hull: If it – uh, excuse me. The – the request before
you folks is a petition for revocation, um, and ultimately
the process for revocation is you can't immediately revoke
the permits today. If you are sighting towards a possible
revocation, the Commission would essentially vote for an
Order to Show Cause, which -- which is served upon the
property owner that was granted the permits and the
modification extension, and within 30 days, that, uh,

6
RPPPC § 1-2-2(a) provides that "Regular Meetings of the Commission
shall generally be held on the second and fourth Tuesdays of each month," and
June 25, 2019, was the fourth Tuesday in June.

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property owner has to demonstrate to you why these permits
should not be revoked, and then they come back -- the -- the
actual property owner would come back and go through the
Order to Show Cause hearings, and then that would
potentially be submitted over to a contested case, i.e., a
hearings officer, possibly.

. . . .

Mr. Hull: So -- so I think ultimately the Commission has a
couple options available for action. Uh, the Department is
recommending denial of the petition to revoke the permits.
You can adopt that recommendation. You can also, um, defer
the item for possibly allowing the property owner and the
petitioner to perhaps come to some type of amenable
agreement. Or, uh, third, um, you could issue an order to
show cause, which essentially is going down the road of
revocation but giving the, uh, uh, permit holder the notice
that -- that within 30 days, they have to get back to you
folks as to why the permit should not be revoked. Those are
essentially the three options before you folks.

(Emphasis added).

The transcript confirms not only that the meeting on

June 25, 2019 was not a contested case hearing, but that the

Planning Commission was deciding whether or not to take the step

to issue an order to show cause.

Thus, because RPPPC § 1-12-5 does not mandate a hearing

on a petition for revocation prior to the Planning Commission's

decision on whether to issue an order to show cause, and the

commission opted to not issue an order to show cause, not

triggering the agency hearing requirement in RPPPC § 1-12-7, the
June 25, 2019 meeting was not a hearing required by agency rule.

Somers does not argue that the June 25, 2019 meeting

was required by agency rule. Instead, Somers emphasizes that

because he participated in the June 25, 2019 meeting as an

adversary, a contested case occurred. Somers cites to In re

Application of Haw'n Elec. Co., 56 Haw. 260, 264, 535 P.2d 1102,

1105 (1975) and East Diamond Head Ass'n v. Zoning Bd. of Appeals

of City & Cnty. of Honolulu, 52 Haw. 518, 524, 479 P.2d 796, 799

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(1971), for the proposition that "a public hearing, conducted

pursuant to public notice, was a 'contested case' within the

meaning of HRS § 91-1." However, in East Diamond Head, the

hearing that was held giving rise to a contested case was

required by law to take place. See 52 Haw. at 520 n.2, 479 P.2d

at 797 n.2. As discussed, supra, the meeting held on June 25,

2019, was discretionary, not mandatory, and East Diamond Head is

inapplicable.

In In re Hawaiian Electric Co., hearings were required
to take place under Revised Laws of Hawai#i § 104-15 (1955),7

which provides, "[t]he commission shall not approve any increase

in rates without conducting an advertised public hearing or

hearings thereon on the island which the utility is situated."

See also 56 Haw. at 268 n.5, 535 P.2d at 1108 n.5 ("The

commission may, after a hearing, by order regulate, fix and

change all such rates, fares, charges, classifications, rules and

practices..."). In In re Hawaiian Electric Co., Hawaiian

Electric Company, Inc. filed an application for a rate increase,

and after the required public notice, the required hearings on

the company's application took place between November 9 and 11,

1971. Id. at 261, 535 P.2d at 1103. Therefore, Somers's

reliance on In re Hawaiian Electric Co., is misplaced.

Lastly, Somers argues that this case is analogous to

Korean Buddhist Dae Won Sa Temple of Haw. v. Sullivan, 87 Hawai#i

217, 953 P.2d 1315 (1998) (Korean Temple), where Somers asserts

7
Revised Laws of Hawai#i § 104-15 became HRS § 269-16 (Supp. 1974).
Id. at 268, 535 P.2d at 1108.

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the "[supreme] court found that the hearing before the zoning

board of appeals was. . . [an] 'agency hearing' [because] . . .

[the appellant] was permitted to introduce relevant evidence and

cross-examine witnesses." In Korean Temple, appellant Temple

filed a second variance application for a height overage with the

Director of the Honolulu Department of Land Utilization, and

public hearings were held in September and October of 1993 before

a hearings officer.8 Id. at 223, 953 P.2d at 1321. The Temple

asserted it was entitled to a "trial-like 'contested case'
hearing," but the hearings officer treated the hearings as

public, allowing witnesses to testify without being subject to

direct or cross-examination, and allowing the Temple to proffer

rebuttal witnesses and evidence. Id. at 224, 953 P.2d at 1322.

The director denied the Temple's second variance application, and

the Temple appealed. Id. at 225-26, 953 P.2d at 1323-24.

The Zoning Board of Appeals (ZBA) then held a hearing9

on the temple's appeal, and largely affirmed the director's

decision. Id. at 227-28, 953 P.2d at 1325-26. The temple

appealed to the circuit court. Id. at 228, 953 P.2d at 1326.

The circuit court rejected the appeal, concluding, inter alia,

that the Hawai#i Administrative Procedure Act (HAPA) did not

require the director to hold a contested case hearing on the

variance application, and instead the contested case occurred

8
Pursuant to the Revised Charter of the City and County of Honolulu
(RCCCH), "prior to the granting of any variance, the director shall hold a
public hearing thereon." RCCCH Section 6-910(3) (1990 ed.). Thus, the
hearings before the hearings officer were required by law.
9
The ZBA stated that it considered the hearing a contested case
hearing. Id. at 227, 953 P.2d at 1325.

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during the ZBA proceeding. Id. at 228, 953 P.2d at 1326. The

temple appealed. Id. at 229, 953 P.2d at 1327.

The supreme court determined that the ZBA's practice of

hearing appeals from the director's decisions regarding variance

applications was without authorization because the 1993

amendments to the RCCCH were intended to take that power away

from the board. See id. at 237-39, 953 P.2d at 1335-37. The

supreme court then appears to conclude that the hearing before

the zoning board was a contested case, at least in part, because
the Temple was permitted to freely introduce evidence (including

rebuttal evidence) before the hearings officer (which was in the

record before the zoning board), was permitted to introduce

evidence before the zoning board relevant to the board's inquiry

of whether the director abused his discretion, and the Temple was

accorded the right to call and cross-examine witnesses before the

zoning board. Id. at 239-40, 953 P.2d at 1337-38.

The facts in the case before us are not analogous to

those in Korean Temple. First, here, the Planning Commission

stated that the June 25, 2019 meeting was not a contested case,

and the parties did not dispute that it was not a contested case,

whereas the ZBA in Korean Temple explicitly informed the parties

that the hearing was a contested case. Id. at 227, 953 P.2d at

1325.

Second, in Korean Temple, the temple was allowed to put

forward an extraordinary amount of evidence (including rebuttal

evidence) before the hearings officer, introduce evidence

relevant to the zoning board's inquiry, and conduct extensive

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examination and cross-examination of witnesses. Id. at 240, 953

P.2d at 1338. Here, the Planning Director's report prior to the

June 25, 2019 meeting says that the "entire record" should be

considered, including public testimony, any government agency

comments, and Somers's response to the Planning Director's

report. Neither party offered evidence, called witnesses, or

cross-examined witnesses, and besides statements from the

parties' representatives and a recap of the Planning Director's

report, no testimony was received.
Lastly, pursuant to RCCCH § 6-910(3), the director was

required to hold a public hearing prior to granting the Temple's

variance request. Although the supreme court determined that the

agency hearing was the hearing on appeal before the ZBA, a

hearing was, nevertheless, required by law to occur before the

director ruled on the Temple's variance request. This

distinguishes Korean Temple from the case before us, as no

hearing is required before the Planning Commission rejects a

petition for revocation.

The cases relied on by Somers to support a finding of a

contested case either demonstrate why the July 25, 2019 meeting

was not a contested case hearing, or are otherwise

distinguishable and do not offer support. The Planning

Commission meeting was not required by agency rule to take place,

and the Planning Commission has the authority to reject a

revocation petition when deciding whether to issue an order to

show cause without holding a contested case hearing. Therefore,

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the June 25, 2019 meeting was discretionary, not mandatory, and

not a contested case hearing.

2. Was there a determination of the rights, duties,
or privileges of the parties?

Even assuming, arguendo, that the June 25, 2019 meeting

on Somers's Petition for Revocation was required by law, it would

not have determined the rights, duties, or privileges of the

parties. At the June 25, 2019 meeting, the Planning Commission

was considering whether to issue an order to show cause, and such
consideration does not determine the rights, duties, or

privileges of the parties. See Kaniakapupu, 111 Hawai#i at 133-

34, 139 P.3d at 721-22.

In Kaniakapupu, on February 1, 1989, Myers petitioned

the State Land Use Commission (LUC) to amend the land use

district boundary for approximately 9.917 acres in an area known

as Nu#uana in Honolulu (the Myers Parcel) from "Conservation Land

Use District Boundary" to "Urban Land Use District Boundary."

Id. at 125-26, 139 P.3d at 713-14. The LUC approved the

reclassification in November 1989 subject to certain conditions.

Id. at 126, 139 P.3d at 714.

In 2000, the Hui was formed "to care for and serve as a

steward of Kaniakapupu," which "is located on property owned by

the State that shares a common boundary with . . . the [Myers]

parcel." Id. On April 21, 2003, the Hui filed a motion for an

order to show cause, pursuant to Hawai#i Administrative Rules

(HAR) §§ 15–15-70 and 15-15-93, seeking to have the LUC issue an

order to show cause why the classification of the Myers Parcel

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should not be reverted back to a conservation district.10 Id. at

127, 139 P.3d at 715. The LUC held a hearing on the Hui's motion

for an order to show cause, and orally voted to deny the motion

on the basis "that the Hui had not met its burden of

demonstrating a failure to perform a condition, representation,

or commitment on the part of Myers." Id. at 128, 139 P.3d at

716. On appeal, the circuit court determined that the LUC did

not hold a contested case hearing, and only if the motion for an

order to show cause had been granted would a contested case
hearing have been required. Id. at 131, 139 P.3d at 719.

The supreme court affirmed the circuit court's

conclusion that no contested case occurred, determining that the

hearing on whether to issue an order to show cause did not

determine the rights, duties, or privileges of the parties. See

id. at 133-34, 139 P.3d at 721-22. Specifically, the supreme

court concluded that:
If the LUC had determined that it "ha[d] reason to believe
that there had been a failure to perform according to the
conditions imposed, or the representations and commitments
made by [Myers]," then the LUC would have issued an "order
to show cause why the property should not revert to its
former land use classification or be changed to a more
appropriate classification[ ]" to Myers. HAR § 15–15–93(b).
In other words, the only determination the LUC was required
to make when hearing the instant motion for an order to show
cause was whether it had reason to believe that Myers had
failed to perform (1) according to the conditions imposed by
the November 1989 order or (2) any representations or
commitments made that led to the November 1989 order. As
such, the LUC was not required to—and, therefore, did
not—determine the Hui's rights and privileges to protect
their native Hawaiian cultural and traditional practices at
Kaniakapupu.

Id.

10
The Hui asserted, inter alia, that Myers violated a condition in
the November 1989 approval order. Id. at 127, 139 P.3d at 715.

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The supreme court continued, stating that "the Hui's

motion for an order to show cause was essentially a threshold

motion or procedural vehicle to obtain a show cause hearing in

order for the LUC to determine the rights, duties, or privileges

of specific parties." Id. at 134, 139 P.3d at 722.

Here, what the Planning Commission was deciding during

the June 25, 2019 meeting is nearly identical to the

circumstances in Kaniakapupu. If the Planning Commission had

determined there was reasonable cause to believe Kaplan had
failed to perform according to the conditions of the Subject

Permits, the Planning Commission would have issued an order to

show cause why the Subject Permits should not be revoked. Like

Kaniakapupu, the Planning Commission was only required to

determine whether it had reason to believe Kaplan was in

violation of the Subject Permits, and was not required to make

any determinations on whether Kaplan's plans affect Somers's

conservation easements, nor whether Hendrikus or Kaplan had

failed to perform according to the conditions in the Subject

Permits, i.e., the rights, privileges, or duties with respect to

the land in question.

Therefore, the June 25, 2019 meeting was not a

contested case hearing for the purposes of obtaining judicial

review pursuant to HRS § 91-14(a) because it was not required by

law and it did not determine the rights, privileges, or duties of

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the parties, and the Circuit Court erred in exercising

jurisdiction over Somers's appeal.11

V. CONCLUSION

Based on the above, we decline to reach the other

points of error raised by West Sunset and the County. The

Circuit Court's July 17, 2020 Judgment is vacated, and the case

is remanded to the Circuit Court for dismissal of Somers's appeal

from the Planning Commission for lack of subject matter

jurisdiction.
In addition, IT IS HEREBY ORDERED that Kaplan's May 30,

2024 motion for retention of oral argument is denied.

DATED: Honolulu, Hawai#i, December 10, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Margery S. Bronster,
Rex Y. Fujichaku, /s/ Keith K. Hiraoka
Skylar G. Lucas, Associate Judge
(Bronster Fujichaku Robbins),
for Respondent-Appellee-Appellant/ /s/ Karen T. Nakasone
Cross-Appellee. Associate Judge

Chris Donahoe,
Deputy County Attorney,
Office of the County Attorney,
for Appellees-Appellees/
Cross-Appellants.

Roy A. Vitousek III,
Mauna Kea Trask,
(Cades Schutte LLP),
for Petitioners-Appellants-
Appellees/Cross-Appellees.

11
The Circuit Court additionally found that it has jurisdiction over
Somer's administrative appeal pursuant to SMA Rule 15.0 and RPPPC 1-6-18(i).
However, RPPPC Rule 1-6-18(i) is found in the section of the RPPPC that deals
with appeals from agency hearings (contested cases), and likewise, SMA Rule
15.0 allows for "[a]ny party to the agency hearing pursuant [to] Chapter 6 of
the [RPPPC]" to appeal. Thus, because there has been no agency hearing for
which an appeal is proper, RPPPC § 1-6-18(i) and SMA Rule 15.0 do not give
Somers an additional basis to appeal the decision.

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