Adelkoff v. Board of Appeals of the County of Hawai'i

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
24-JUN-2024
07:55 AM
Dkt. 101 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

CAROL A. ADELKOFF, Appellant-Appellant, v.
BOARD OF APPEALS OF THE COUNTY OF HAWAI#I;
CATHY LEWIS, in her capacity as CHAIRPERSON
OF THE BOARD OF APPEALS OF THE COUNTY OF HAWAI#I;
ZENDO KERN, in his capacity as the PLANNING DIRECTOR
OF THE PLANNING DEPARTMENT OF THE COUNTY OF HAWAI#I;1
DOUGLAS W. DICK as Trustee of the REVOCABLE TRUST OF
DOUGLAS W. DICK; RUTH S. DICK as Trustee of the REVOCABLE
TRUST OF RUTH S. DICK, Appellees-Appellees_

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3CC181000078)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Wadsworth and Nakasone, JJ.)

Appellant-Appellant Carol A. Adelkoff (Adelkoff)

appeals from the January 18, 2019 Final Judgment of Dismissal

(Judgment) entered by the Circuit Court of the Third Circuit

(Circuit Court).2 Adelkoff also challenges the Circuit Court's

1
Pursuant to Hawai#i Rules of Evidence Rule 201 and Hawai#i Rules of
Appellate Procedure Rule 43(c)(1), we take judicial notice that (1) Cathy
Lewis is the current Chairperson of the Board of Appeals of the County of
Hawai#i, in place of Arne Werchick and (2) Zendo Kern is the current Planning
Director of the Planning Department of the County of Hawai #i in place of
Michael Yee.
2
The Honorable Robert D.S. Kim presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

December 26, 2018 Findings of Fact, Conclusions of Law, and

Decision and Order (FOFs/COLs/Order).3

Adelkoff raises four points of error on appeal,

contending that the Circuit Court erred by affirming (the

affirmation of) the approval by Defendant-Appellee the Planning

Director of the Planning Department of the County of Hawai#i

(Director) of the subdivision application (Subdivision Approval)

of Appellees-Appellees Douglas W. Dick, as Trustee of the

Revocable Trust of Douglas W. Dick, and Ruth S. Dick, as Trustee
of the Revocable Trust of Ruth S. Dick (the Dicks), and a related

Revised Final Plat Map (RFPM) because: (1) the RFPM did not

comply with the mandatory drainage and flooding mitigation

provisions of the County of Hawai#i subdivision code, and even if

the code provisions were discretionary, the Director made no

written waiver and acted in an arbitrary and capricious manner;

(2) even if the subdivision code provisions were discretionary,

not mandatory, the County of Hawai#i Planning Department

(Planning Department) failed to investigate the flooding

conditions on Adelkoff's abutting property prior to the

Subdivision Approval, which was arbitrary and capricious; (3) the

RFPM incorrectly shows direct vehicular access from Mâmalahoa

Highway onto subdivided Lot D-1 across Adelkoff's driveway in

violation of Ordinance No. 13-102 and the subdivision code; and

3
In the FOFs/COLs/Order and Judgment, the Circuit Court affirmed
the May 29, 2018 Finding of Fact, Conclusion of Law and Decision and Order
entered by the Hawai#i County Board of Appeals (Board of Appeals) that
conducted a contested case on a petition filed by Adelkoff appealing the May
2, 2017 issuance of final subdivision approval for a two-lot subdivision of
real property in Waimea, Hawai#i.

2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

(4) the Planning Department improperly delegated its

investigation into Adelkoff's flooding concerns.

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the arguments advanced and the issues raised by the parties, we

resolve Adelkoff's points of error as follows:

(1 & 2) Adelkoff argues that before a property owner

can obtain approval of a requested subdivision, the Director must

comply with, inter alia, Hawai#i County Code (HCC) §§ 23-64

(2016), 23-66 (2016), 23-92 (2016),4 and the Director failed to

4
The HCC was mostly republished in October 2016, but some
ordinances have been amended intermittently. The sections cited above are as
follows (with emphasis added):
Section 23-64. Existing conditions shown on preliminary
plat.
The preliminary plat shall include the following
information on existing conditions, unless waived or
deferred by the director:
(1) Location, width and names of all existing or
platted streets within or adjacent to the tract,
together with easements, other rights-of-way,
and other important features, such as corners,
property boundary lines, and control of access
lines adjacent to State highways;
(2) When required by the director, contours at
vertical intervals of five feet where the slope
is greater than ten percent. Elevations shall
be marked on the contours based on an
established bench mark or other datum approved
by the director of public works. In addition,
the contours as may be required by the manager,
State department of health, and director of
public works shall be shown;
(3) The location and direction of all water courses
and approximate location of areas subject to
inundation or storm water overflow;
(4) Existing uses of property, including but not
limited to, location of all existing structures,
wells, cisterns, private sewage disposal
systems, and utilities; and
(5) Zoning on and adjacent to the tract, provided
that if the information required by subsection
(3) is not shown, it shall be made a condition
of tentative approval, and tentative approval
shall also require drainage improvements
pursuant to section 23-92 or their equivalent.
(continued...)

3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

do so here. Adelkoff submits that, pursuant to Leslie v. Bd. of

Appeals, 109 Hawai#i 384, 126 P.3d 1071 (2006), the Director did

4
(...continued)
Section 23-66. Explanatory information on preliminary plat.
Unless waived or deferred by the director, the
preliminary plat shall include the explanatory information
listed in this section. If such information cannot be shown
practicably on the preliminary plat, it shall be submitted
in separate statements accompanying the preliminary plat:
(1) A vicinity map at a small scale, showing
existing subdivided land ownerships adjacent to
the proposed subdivision, and showing how
proposed streets may be extended to connect with
existing streets;
(2) Proposed deed restrictions in outline form if
any;
(3) Statement regarding water system to be
installed, including source, quality and
quantity of water;
(4) Provisions for sewage disposal, conceptual
drainage and flood control which are proposed.
The drainage map shall include the approximate
location of areas subject to inundation or storm
water overflow and all areas covered by
waterways, including ditches, gullies, streams
and drainage courses within or abutting the
subdivision; and
(5) Parcels of land proposed to be dedicated to
public use, and the conditions of such
dedication, provided that if the information
required in subsections (3) and (4) is not
shown, water supply, sewage disposal, and
drainage shall be determined by conditions of
tentative approval.

Section 23-92. Drainage, flood, and erosion mitigation
measures.
(a) The subdivider shall construct a storm water disposal
system to contain runoff caused by the subdivision
improvements within the boundaries of the subdivision,
up to the expected one-hour, ten year storm event, as
shown in Plate 1 of the Department of Public Works
"Storm Drainage Standards", dated October 1970, or any
approved revisions, unless those standards specify a
greater recurrence interval, in which case, the
greater interval shall be used. The amount of
expected runoff shall be calculated according to the
Department of Public Works "Storm Drainage Standards",
dated October 1970, or any approved revisions thereto,
or by any nationally-recognized method meeting with
the approval of the director of public works. Runoff
calculations shall include the effects of all required
subdivision improvements, and lot improvements that
may be allowed by existing zoning.
(b) Storm water shall be disposed into drywells,
infiltration basins, or other infiltration methods.
The subdivision shall not alter the general drainage
pattern above or below the subdivision.
(c) Subdivider shall also comply with the requirements of
chapter 27, Hawai#i County Code.

4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

not have authority to ignore the mandatory requirements of the

HCC and did not have discretion to approve the Dicks' subdivision

application without strict compliance with the requirements.

In Leslie, the supreme court held that HCC §§ 23-63

(1975), 23-64 (1975), 23-65 (1975), and 23-66 (1975) were

mandatory and not discretionary because they contained the term

"shall." 109 Hawai#i at 393-94, 126 P.3d at 1080-81. As a

result, the Director "lacked discretion to accept a subdivision

application without strict compliance with the code
requirements." Id. at 394, 126 P.3d at 1081 (internal quotation

marks omitted). The supreme court applied a three-prong test

used when determining whether "shall" can be interpreted as

directory, and concluded that it was not met, under the

circumstances of that case, nor in the context of the 1975

versions of HCC §§ 23-63, 23-64, 23-65, and 23-66. Leslie, 109

Hawai#i at 394-95, 126 P.3d at 1081-82.

However, the HCC was amended in 2006 shortly after

Leslie was decided. In relevant part, HCC §§ 23-62 through 23-78

were amended in 2006 by Ordinance No. 06-104 (Bill No. 246)

(approved July 3, 2006). The amendments arose as a result of

Leslie because the case "invalidate[d] [the] practices that the

[Department] ha[d] followed for at least thirty years, and

force[d] the County to adopt changes in the subdivision code, or

risk invalidating hundreds of past and pending subdivision

applications." Id. at 1.

The County of Hawai#i noted that Leslie created an

issue because there were "several hundred" pending subdivision

5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

applications that did not conform to the "strict letter of the

Code in all respects." Id. at 2. "Most of the tentative and

final subdivision approvals given by the [Department] for several

decades are based upon applications that have some defects

according to [Leslie]." Id. As a result, the County amended

Chapter 23 to, in part, "eliminate some requirements and

standards that have not generally been followed." Id. Part of

these amendments included the addition of the language "unless

waived or deferred by the director", to HCC §§ 23-64 and 23-66.
Id. at 6-7. In amending its subdivision code, Hawai#i County

conferred discretion to the Director to determine whether to

strictly enforce the provisions of HCC §§ 23-64 and 23-66,

rejecting the mandatory interpretation set forth in Leslie.

Thus, Adelkoff's argument based on Leslie is without merit.

Adelkoff further argues that even if compliance with

these sections was not mandatory, it was an abuse of discretion

for the Director to issue the Subdivision Approval without the

specified drainage and flooding mitigation information. Adelkoff

asserts that the Preliminary Plat Map did not include "[t]he

location and direction of all water courses and approximate

location of areas subject to inundation or storm water overflow"

in violation of HCC § 23-64(3); the Dicks did not submit a

drainage map depicting the "approximate location of areas subject

to inundation or storm water overflow and all areas covered by

waterways, including ditches, gullies, streams and drainage

courses within or abutting the subdivision, including [Lot C];"

nor did the Director require provisions for "conceptual drainage"

6
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

or "flood control" for the proposed subdivision, allegedly in

violation of HCC § 23-66(4). Finally, Adelkoff claims that the

record does not reflect that the Director formally waived the

requirements of HCC §§ 23-64(3) or 23-66(4).

However, Adelkoff did not challenge any specific FOFs

in making these arguments here or in the Circuit Court.

Unchallenged FOFs are binding on appeal. See, e.g., Pila#a 400,

LLC v. Bd. of Land and Nat. Res., 132 Hawai#i 247, 268, 320 P.3d

912, 933 (2014). The Circuit Court found that Adelkoff's
exhibits presented at the March 8, 2018 hearing demonstrated that

the water "flooding" Adelkoff's property flowed from east to

west, not from the north (i.e., not from the Dicks' Lot). In

mixed findings and conclusions, the Circuit Court concluded that

HCC § 23-64(3) did not apply to the Subdivision Application

because there were no watercourses or areas "subject to

inundation or storm water overflow" on Lot D (the Dicks' Lot).

The Circuit Court similarly concluded that HCC § 23-66 also did

not apply because there were no areas of inundation on Lot D and

the Dicks did not propose, nor did the Director require, drainage

improvements. The Circuit Court's numerous, detailed, and

unchallenged FOFs concerning the flooding and drainage issues

raised by Adelkoff are supported by substantial evidence adduced

at the contested case hearing before the Board of Appeals and are

not clearly erroneous. We further conclude that the Circuit

Court did not err in concluding that the Director did not abuse

his discretion in issuing the Subdivision Approval based on the

7
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

alleged flooding and drainage issues, and the Circuit Court did

not err in denying Adelkoff's appeal on those grounds.

Adelkoff also argues that the Subdivision Approval

violated HCC § 23-92(a) and (b) because the Director failed to

require, and the Dicks failed to prepare, water disposal systems

and calculations, and the Director could not have waived or

deferred the above-stated HCC provisions because they are

mandatory conditions. The Circuit Court found and concluded,

inter alia, that the Dicks were not required to provide runoff
calculations because they did not propose improvements, nor were

improvements required (except for a separate meter), Lot D did

not have drainage issues, and "there was no storm water to

dispose of in this subdivision." Upon review, the Circuit

Court's findings (and the Board of Appeals' findings) were

supported by substantial evidence in the record and were not

clearly erroneous.

For these reasons, we conclude that no relief is

warranted based on Adelkoff's first two points of error.

(3) Adelkoff argues that the Director did not have the

authority to issue the Subdivision Approval because the RFPM

failed to comply with two restrictions, Condition F of Ordinance

No. 13-102 (Condition F) and HCC §§ 23-34 and 23-53 (2016).

It is undisputed that Condition F limited "direct"

vehicular access to Mâmalahoa Highway from Lot D (and later Lots

D-1 and D-2) to the #ohana driveway. In other words, the Dicks

could not construct (for example) additional driveway access to

the highway from their property. However, as stated in the

8
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Circuit Court's FOFs, which are supported by substantial evidence

in the record, Condition F did not prohibit the Dicks from the

continued use of the Easement over Adelkoff's property. The

Circuit Court found that the Easement, which ran along the "side"

(or flag pole) of both Lots D-1 and D-2, was considered indirect

access between Lots D-1 and D-2 and Mâmalahoa Highway. Adelkoff

fails to point to evidence in the record or legal authority for

her contention that the subdivision of Lot D extinguishes the

Easement. We conclude that the Circuit Court did not err in
concluding that the Subdivision Approval did not violate

Condition F.

Adelkoff also argues that the Subdivision Approval

violates HCC § 23-34 (2016) and 23-53, which provide:
Section 23-34. Access to lot from street.
Each subdivided lot shall abut upon a public street or
approved private street. No lot shall be platted without
access on a street. The director may indicate the side or
sides of any lot from which driveway access shall be
permitted or prohibited.

Section 23-53. Private streets.
No private street or alley shall be approved unless
they are improved as specified under article 6, division 2
of this chapter.

Here, the Circuit Court found, inter alia, that both

Lots D-1 and D-2 had existing access to a street (Mâmalahoa

Highway) over the Easement, which is not a street. The Circuit

Court's FOFs relevant to this point of error are well supported

by substantial evidence in the record and not clearly erroneous.

We conclude that Adelkoff's arguments are without merit.

(4) Adelkoff argues that the Planning Department

unlawfully delegated its responsibilities to the Dicks'

representative, Sidney Fuke (Fuke), to review and investigate the

9
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Subdivision Application rather than doing its own review and

investigation in violation of the HCC and Kahana Sunset Owners

Ass'n v. Cty. of Maui, 86 Hawai#i 66, 75, 947 P.2d 378, 387

(1997). Adelkoff points to two pages of email communications in

the record between Fuke and the Planning Department, starting

with Fuke's inquiring if the department could move forward, in

part due to Douglas Dick's battle with cancer and desire to "tidy

up his estate." The email communications end with the Planning

Department correspondent telling Fuke who will be "working on
this." As stated in the FOFs/COLs/Order, Adelkoff failed to

demonstrate that the Director improperly delegated decision-

making authority or investigative or any other duties to the

Dicks' representative. Adelkoff has not challenged COL 88, which

states: "Both [Department of Public Works] and the Planning

Department independently investigated and reviewed relevant

information presented by [Adelkoff] as well as the Dicks and

their representative." We conclude that this point of error is

without merit.

For these reasons, the Circuit Court's January 18, 2019

Judgment is affirmed.

DATED: Honolulu, Hawai#i, June 24, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Bruce D. Voss,
David A. Imanaka, /s/ Clyde J. Wadsworth
(Bays Lung Rose & Holma), Associate Judge
for Plaintiff-Appellant.
/s/ Karen T. Nakasone
Associate Judge

10
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

D. Kaena Horowitz,
Deputy Corporation Counsel,
County of Hawai#i,
for Defendants-Appellees
Board of Appeals of the County
of Hawai#i, Arne Werchick, in his
capacity as Chairperson of the
Board of Appeals of the County of
Hawai#i, Michael Yee, in his capacity
as the Planning Director of the
Planning Department of the County of
Hawai#i.

Thomas L.H. Yeh,
Of Counsel,
Jill D. Raznov,
(Law Offices of Yeh & Moore),
for Defendants-Appellees
Douglas W. Dick, as Trustee
of the Revocable Trust of
Douglas W. Dick, and Ruth S.
Dick, as Trustee of the
Revocable Trust of Ruth S. Dick.

_________________________________________________________________

NO. CAAP-XX-XXXXXXX, IN THE INTERMEDIATE COURT OF APPEALS OF THE
STATE OF HAWAI#I, ADELKOFF v. BOARD OF APPEALS OF THE COUNTY OF
HAWAI#I, et al.; SUMMARY DISPOSITION ORDER
_________________________________________________________________

11