Bremner v. City & County of Honolulu

• Decision Date: 18 June 2001
• Docket Number: No. 22540.,22540.
• Citation: 28 P.3d 350,96 Haw. 134
• Court: Hawaii Court of Appeals
• Parties: Donald A. BREMNER, Plaintiff-Appellant, v. The CITY & COUNTY OF HONOLULU, a Hawaii Municipal Corporation, Defendant-Appellee.

28 P.3d 350

96 Haw. 134

Donald A. BREMNER, Plaintiff-Appellant, v. The CITY & COUNTY OF HONOLULU, a Hawaii Municipal Corporation, Defendant-Appellee.

No. 22540.

Intermediate Court of Appeals of Hawai'i.

June 18, 2001.

Reconsideration Denied July 5, 2001.

Certiorari Denied August 13, 2001.

Donald A. Bremner, plaintiff-appellant, on the briefs, pro se.

Jane H. Howell, and Duane W.H. Pang, Deputies Corporation Counsel, on the briefs, for defendant-appellee.

BURNS, C.J., WATANABE and LIM, JJ.

Opinion of the Court by LIM, J.

Plaintiff-Appellant Donald A. Bremner (Bremner) filed a complaint against the City and County of Honolulu for the purpose of voiding two City ordinances relating to zoning and development in Waikiki. In dismissing Bremner's complaint, the first circuit court, the Honorable Gail C. Nakatani presiding, found that he suffered no cognizable injury sufficient to imbue him with standing to challenge the ordinances, and that adjudication of the validity of the ordinances was not ripe, pending their actual implementation.

On appeal, Bremner contends that the ordinances violate his free speech, due process and equal protection rights under the federal and State constitutions, as well as numerous provisions of State statutes, the City Charter and City ordinances. For the following reasons, we affirm the circuit court's judgment dismissing Bremner's complaint.

I. Background.

The Honolulu City Council is the primary governing body responsible for formulating planning and development policies for the City and County of Honolulu. The Council utilizes three primary tools in furtherance of this responsibility.

The broadest and most holistic of these is the City's general plan, which "shall set forth the city's objectives and broad policies for the long range development of the city." Revised Charter of the City & County of Honolulu (RCH) § 5-407 (1994). As such, the general plan "shall contain statements of the general social, economic, environmental and design objectives to be achieved for the general welfare and prosperity of the people of the city and the most desirable population distribution and regional development pattern." Id.

Development plans are intended to provide more specific "conceptual schemes for implementing and accomplishing the development objectives and policies of the general plan within the city." RCH § 5-408 (1994). Development plans must articulate "statements of standards and principles with respect to land uses, statements of urban design principles and controls, and priorities as necessary to facilitate coordination of major development activities." Id. They must also be sufficiently descriptive to "serve as a policy guide for more detailed zoning maps and regulations and public and private sector investment decisions." Id.

Finally, zoning ordinances contain site-specific and thoroughly comprehensive guidelines for assessing the permissibility of proposed development on a given property. Zoning ordinances are thus designed to "carry out the purpose of the general plan and development plans" by enunciating "reasonable standards with respect to the location, bulk, size and permitted densities of buildings and other structures, the area of yards and other open spaces, off-street parking and loading spaces, and the use of buildings and lots." RCH § 6-907 (1994).

In addition to being specified in the RCH, the interrelationship between the general and development plans and their corresponding zoning ordinances is governed by Hawai`i Revised Statutes (HRS) § 46-4 (1993), which delegates zoning authority to the counties. That statute requires that "[z]oning in all counties shall be accomplished within the framework of a long range, comprehensive general plan . . . to guide the overall future development of the county." Accordingly, HRS § 46-4 contemplates that zoning "be one of the tools available to the county to put the general plan into effect in an orderly manner." Moreover, the statute directs that each county's zoning powers "shall be liberally construed in favor of the county exercising them, and in such a manner as to promote the orderly development of each county or city and county in accord with a long range, comprehensive, general plan, and to insure the greatest benefit for the State as a whole." Id. On November 13, 1996, the Honolulu City Council passed, by an 8-1 vote, ordinance No. 96-70 (the development plan ordinance), a bill to amend the development plan of Waikiki for the purpose of strengthening the area's economic viability. In amending §§ 24-2.2 and 24-2.3 of the Revised Ordinances of Honolulu (ROH) (1990), the development plan ordinance revised development guidelines on such matters as building density, transportation, infrastructure, aesthetic and cultural preservation, recreational resources and residential communities.

On December 4, 1996, the Council passed, by a 6-3 vote, ordinance No. 96-72 (the zoning ordinance), a bill to revise the zoning guidelines for Waikiki. In amending the land use ordinance, ROH ch. 21 (1990), the zoning ordinance implemented the new development objectives contained in the development plan ordinance.

On May 12, 1997, Bremner filed a complaint in federal district court challenging the validity of the development plan ordinance and the zoning ordinance (collectively, the 1996 ordinances) on grounds that they violated his federal due process and equal protection rights under the United States Constitution, as well as his civil rights under 42 U.S.C. § 1983. On February 3, 1998, the district court dismissed that complaint, finding that Bremner "lacks standing and that his claims are not ripe for adjudication."

Following the dismissal of his complaint by the federal district court, Bremner filed this action on March 5, 1998, seeking a declaratory judgment voiding the 1996 ordinances. The City filed a motion to dismiss the complaint on February 7, 1999.

At a hearing on March 10, 1999, the circuit court dismissed the complaint. In its oral ruling, the court first noted that "the complaint cannot be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief and the allegations in the complaint are taken as admitted and are construed to be true."

Applying this standard, the court reasoned that Bremner "has no standing as he has suffered at this time no quantifiable injury in fact." The court found that Bremner's "deep personal interest do [sic] not give rise to such injury[,]" and that, as a result, he is "nothing more than a concerned citizen."

In addition to finding that Bremner lacked standing to challenge the 1996 ordinances, the court observed that "the issues with [sic] which [Bremner] attempts to raise by way of his complaint are not ripe for review in that the ordinances have not been implemented in anyway [sic]." The court noted that "there must be a specific development or a specific project which gives rise to a claim[,]" and therefore, "there can be at this time no legally recognized injury because of the speculative situation—because of the lack of the implementation." The court concluded that, "under these circumstances, the Court does not believe that there is any way that the plaintiff could prevail on any of his allegations in the complaint." The court then granted the City's motion to dismiss.

II. Standard of Review.

Review of a motion to dismiss "is based on the contents of the complaint, the allegations of which we accept as true and construe in the light most favorable to the plaintiff. Dismissal is improper unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Norris v. Hawaiian Airlines, Inc., 74 Haw. 235, 240, 842 P.2d 634, 637 (1992) (citation and internal block quote format and internal quotation marks omitted). Because such a review is a matter of law,

[w]e review the trial court's [conclusions of law] de novo under the right/wrong standard. Raines v. State, 79 Hawai`i 219, 222, 900 P.2d 1286, 1289 (1995). "Under this. . . standard, we examine the facts and answer the question without being required to give any weight to the trial court's answer to it." State v. Miller, 4 Haw.App. 603, 606, 671 P.2d 1037, 1040 (1983). See also Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 119, 839 P.2d 10, 28,reconsideration denied, 74 Haw. 650, 843 P.2d 144 (1992). Thus, a [conclusion of law] "is not binding upon the appellate court and is freely reviewable for its correctness." State v. Bowe, 51, 53, [sic] 77 Hawai`i 51, [53,] 881 P.2d 538, 540 (1994) (citation omitted).

Brown v. Thompson, 91 Hawai`i 1, 8, 979 P.2d 586, 593 (1999) (citations and internal block quote format omitted, some brackets in the original).

III. Discussion.

A. The Zoning Ordinance.

In his complaint, Bremner contended that the zoning ordinance is unlawful because (1) it conflicts with the express provisions of the City's general plan, in violation of HRS § 46-4; (2) it is impermissibly vague and encourages arbitrary and discriminatory application, in violation of his due process and equal protection rights under the Fourteenth Amendment to the United States Constitution and article I, section 5 of the Hawai`i Constitution; and (3) it was enacted without the benefit of an environmental assessment, in violation of his right to a clean and healthy environment under article XI, section 9 of the Hawai`i Constitution.

For the reasons discussed below, we agree with the circuit court that Bremner lacks standing to pursue the first and second of these claims, and that, in any event, those issues are not yet ripe for consideration. We furthermore believe that Bremner's third claim is without support in the law and is, in any event, barred as untimely.

1. The Issue of Standing.

In considering the question of standing, we do not...