87 Hawai'i 217, Korean Buddhist Dae Won Sa Temple of Hawaii v. Sullivan

Decision Date09 April 1998
Docket NumberNo. 19734,19734
Citation953 P.2d 1315,87 Hawaii 217
Parties87 Hawai'i 217 KOREAN BUDDHIST DAE WON SA TEMPLE OF HAWAII, Appellant-Appellant, v. Jan Naoe SULLIVAN, 1 in her capacity as Director of Land Utilization of the City and County of Honolulu, and the Department of Land Utilization of the City and County of Honolulu, Appellees-Appellees. CONCERNED CITIZENS OF PALOLO, and Life of the Land, Appellants-Appellees, and Zoning Board of Appeals of the City and County of Honolulu, Appellee-Appellee, v. The KOREAN BUDDHIST DAE WON SA TEMPLE OF HAWAII, Appellee-Appellant. KOREAN BUDDHIST DAE WON SA TEMPLE OF HAWAII, Appellant-Appellant, v. ZONING BOARD OF APPEALS OF THE CITY AND COUNTY OF HONOLULU, Appellee-Appellee. (Two Cases.) KOREAN BUDDHIST DAE WON SA TEMPLE OF HAWAII, Appellant-Appellant, v. ZONING BOARD OF APPEALS OF THE CITY AND COUNTY OF HONOLULU, and Concerned Citizens of Palolo, and Life of the Land, Appellees-Appellees.
CourtHawaii Supreme Court

Roger S. Moseley, on the briefs, Honolulu, for appellant-appellant Korean Buddhist Dae Won Sa Temple of Hawaii.

Lawrence D. Kumabe, Deputy Corporation Counsel, on the briefs, for appellees-appellees Zoning Board of Appeals of the City and County of Honolulu.

Fred Paul Benco, on the briefs, Honolulu, for appellants-appellees Concerned Citizens of Palolo Life of the Lands.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

LEVINSON, Justice.

At issue in these consolidated appeals is the decision of Donald Clegg, then-Director of the Honolulu Department of Land Utilization (DLU) (the Director), to deny the appellant-appellant Korean Buddhist Dae Won Sa Temple of Hawaii's (the Temple's) application for a variance for its "Main Temple Hall" (the Hall), 2 which had previously been found to exceed the allowable height limit under the zoning code. The Temple filed a total of five appeals in the First Circuit Court from the actions of the Director and the Zoning Board of Appeals (ZBA) related to this issue, all of which were unsuccessful. On appeal to this court, the Temple argues that the circuit court erred because: (1) the Director abused his discretion by failing (a) either to make a declaratory ruling that the Hall was in compliance with the applicable zoning code (b) or to grant the Temple a variance; (2) the Temple was deprived of rights guaranteed by the Hawai'i Administrative Procedure Act (HAPA)--Hawai'i Revised Statutes (HRS) ch. 91--and the due process clauses of the fourteenth amendment to the United States Constitution and article I, section 5 of the Hawai'i Constitution, in that it was not granted a full trial-like hearing before the Director made his initial decision; (3) a direct appeal lies to the circuit court from variance and other decisions of the Director; and (4) application of the relevant height restriction to the Temple illegally burdened its right to the free exercise of religion, in violation of the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C.2000bb et seq., the first amendment to the United States Constitution, and article I, section 4 of the Hawai'i Constitution.

All of the Temple's arguments are without merit. Accordingly, we affirm.

I. BACKGROUND

On September 25, 1986, the Honolulu Building Department issued a building permit to the Temple to expand the construction on its compound (then consisting of several buildings, a courtyard, and statuary) in an "R-5" residential district, located at Wai'omoa'o Road and Halela'au Place, Palolo Valley, City and County of Honolulu. The permit authorized the construction of the Hall, which the Temple expected to use for "offices, [a] library, [a] museum and [an] exhibition room intended to further the understanding of the Korean Buddhist religion." The permit approved the Temple's building plans accompanying its permit request, which indicated that the height of the Hall would be approximately sixty-six feet above grade. No revision of the building plans was ever submitted to the Building Department. When the plans were approved, the Comprehensive Zoning Code (CZC) was in effect. CZC § 21-5.4 (1984-1985 Supp.) allowed a maximum height of twenty-five feet above the "high point of the buildable area boundary line" (HBABL). 3 However, after the Hall was actually built, a DLU inspector determined that an extra floor had been built and that the structure's height was seventy-four to seventy-five feet--nine feet higher than authorized by the building permit and 6.88 feet higher than the maximum height allowed by CZC § 21-5.4 (i.e., 6.88 feet over the HBABL plus twenty-five feet). Accordingly, the inspector issued a notice of violation on February 23, 1988, ordering the Temple to stop work on the Hall. 4

The Temple filed its first application for a variance on June 15, 1988. The Director 5 denied the application on September 16, 1988, after a public hearing. The Director noted that, subsequent to the granting of the permit, the CZC was repealed and replaced by the Land Use Ordinance (LUO), which was enacted on October 22, 1986. LUO § 5.40 (1988) provides that the maximum height of buildings in a residential district is thirty feet above grade (and is therefore more restrictive than CZC § 21-5.4, which began its height calculation from the HBABL). 6 The Director ruled that the originally approved height of sixty-six feet, although greater than that allowed under the LUO, would be permitted as "nonconforming" because it had been allowed under the law in effect at the time the building permit was issued. However, he ruled that the nine-foot overage, in excess of the authorized sixty-six-foot height, was illegal. The Director further ruled that the Temple had not met the standards for hardship that were required for a variance by the Revised Charter of the City and County of Honolulu (1973) (RCCCH or the City Charter).

The Temple appealed the Director's decision to the ZBA, which affirmed the Director's denial of the variance in an order entered on January 11, 1990. See Korean Buddhist Dae Won Sa Temple v. Zoning Bd. of Appeals, 9 Haw.App. 298, 301, 837 P.2d 311, 312, cert. dismissed, 74 Haw. 651, 843 P.2d 144 (1992). The Temple filed an appeal of the ZBA's decision in the circuit court on February 16, 1990. Id. at 301, 837 P.2d at 312. The ZBA moved to dismiss the circuit court appeal as untimely. Id. at 301, 837 P.2d at 312-13. The circuit court denied the ZBA's motion. The ZBA appealed the circuit court's order denying its dismissal motion to the Intermediate Court of Appeals (ICA), vacated the circuit court's order and remanded with instructions to dismiss the appeal as untimely. Id. at 301, 306, 837 P.2d at 312-13, 315.

The Temple filed a second variance application for a height overage on February 1, 1993. 7 The Director considered the application "because the rules and regulations pertaining to variance applications permit an applicant to reapply for the same or substantially the same variance one year from the effective date of the denial." 8 Public hearings were held on the 1993 variance application on September 2, 1993 and October 14, 1993. 9 Despite the Temple's insistence that it was entitled to a trial-like "contested case" hearing, the hearings officer (HO) treated the hearings as "public," allowing all witnesses to testify briefly without being subject to direct or cross-examination. The HO denied the Temple's repeated requests to cross-examine witnesses, but allowed the Temple to proffer rebuttal witnesses and arguments. In addition to the legal argument by counsel, fifty-three witnesses testified in support of the Temple's application, and twelve spoke in opposition, including representatives of the neighborhood organizations, "Concerned Citizens of Palolo" and "Life of the Land." Numerous letters, written statements, photographs, charts, and other exhibits, including evidence that other Buddhist temples in Korea and Hawai'i are not as large as the Hall and copies of a petition in support of the variance request allegedly signed by over 15,000 people.

Abbot Dae Won Ki, the spiritual leader of the Temple, introduced written testimony, in which he explained the importance of the design of the Hall and other Temple buildings to the ritual uses required by the Chogye Order of Korean Buddhism. After summarizing the history and some of the tenets of Buddhism, the abbot noted that the Temple is "dedicated ... to help spread the message of enlightenment, end suffering and promote world peace." When he first encountered the land on which the Temple was eventually built, Abbot Ki

knew immediately that this place was the right place. It was uniquely suited to the Temple in every respect. It was rectangular, just the shape for the compound we had in mind. It was on a fairly steep hillside which meant that the parking structure could be placed under part of the compound rather than in plain view. The land also had something else which none of the other parcels I had seen possessed. This land gave the feeling that it was a holy place. In 1979 we were able to purchase the land, of which the Zen Master also approved, calling the mountain behind it "Botah San."

Abbot Ki explained that the Temple's architectural components have "a special purpose and meaning and the compound is organized in a very special way, each of the elements having a harmonious relationship with the other." He elaborated that

[o]ur Buddhist order emphasizes meditation and all of the buildings and other parts of the Temple compound are very sensitively designed to be in balance and harmony with each other and the mountains which surround the Temple. The individual [b]uildings[,] and the individual parts of the buildings, serve more than a secular purpose[;] they add up to a whole, more like a religious work of art. Removing the peak of the roof of the Main Temple Hall would be comparable to removing the hand of God from Michelangelo's painting on the ceiling of the Sistine chapel, or the head of...

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