Brescia v. North Shore Ohana

• Decision Date: 12 July 2007
• Docket Number: No. 27211.,27211.
• Citation: 168 P.3d 929
• Parties: Joseph A. BRESCIA, Plaintiff/Appellant-Appellee v. NORTH SHORE OHANA, Harold Bronstein and Caren Diamond, Defendants/Appellees-Appellants. and Planning Commission of the County of Kauai, Defendant/Appellee.
• Court: Hawaii Supreme Court

168 P.3d 929

Joseph A. BRESCIA, Plaintiff/Appellant-Appellee v. NORTH SHORE OHANA, Harold Bronstein and Caren Diamond, Defendants/Appellees-Appellants. and Planning Commission of the County of Kauai, Defendant/Appellee.

No. 27211.

Supreme Court of Hawai`i.

July 12, 2007.

Reconsideration Denied August 31, 2007.

Harold Bronstein, Lihue, on the briefs, for defendants/appellees-appellants.

Walton D.Y. Hong, Lihue, on the briefs, for plaintiff/appellant-appellee.

NAKAYAMA, ACOBA, and DUFFY, JJ.; with LEVINSON, J., concurring separately, and with whom MOON, C.J., joins.

Opinion of the Court by ACOBA, J.

We hold in this secondary appeal by Defendants/Appellees-Appellants North Shore Ohana, Harold Bronstein, and Caren Diamond [hereinafter collectively, "Appellants"], from the March 4, 2005 judgment of the circuit court of the fifth circuit¹ (the court) issued pursuant to the court's March 4, 2005 findings of fact, conclusions of law, decision and order reversing and remanding, in favor of Plaintiff/Appellant-Appellee Joseph A. Brescia (Brescia), the June 10, 2003 decision of Defendant/Appellee Kaua`i County Planning Commission (the Commission) to deny Brescia's application, the June 16, 2003 Commission's order denying Brescia's motion for reconsideration, and the Commission's findings of fact, conclusions of law, decision and order dated September 9, 2003 (2003 order), that: (1) the Commission's decision in enforcing the shoreline setback line as shown on the July 1, 1983 subdivision map is supported by reliable, probative, and substantial evidence, (2) the Commission did not act arbitrarily or abuse its discretion in denying Brescia's request for an amendment or variance as to his lot to build within 31 feet of the shoreline, given that, inter alia, other shoreline setbacks in the area ranged from approximately 35 to 80 feet, (3) Brescia did not have a right to rely on representations of the County of Kaua`i Planning Department (Planning Department), if any, as to any purported setback boundary inasmuch as (a) the Commission retained the authority to establish shoreline setbacks within the Special Management Area (SMA), as opposed to any individual planning department employee, and (b) Brescia was on notice that a restriction in his deed provided that the Commission could impose a greater shoreline setback at the time of building permit review, (4) Brescia was not vested with a sufficient property interest to implicate any alleged due process violation and, in any event, at the time of building permit review he was given a full public hearing by the Commission, and (5) inasmuch as Brescia acknowledged to the Commission that utilizing the Developer's Setback provided Brescia with between 4,203 sq. ft. and 4,974 sq. ft. of buildable area, and Brescia's own architect testified that utilizing the Developer's Setback did not necessarily make the lot unbuildable, Brescia did not demonstrate that he was denied reasonable use of his property. Accordingly, we vacate the court's March 4, 2005 judgment, and remand to the court with instructions to enter judgment affirming the 2003 order.

I.

A.

The subject property owned by Brescia is Lot 6 within the 15-lot² Wainiha Subdivision II, located on the makai³ side of Alealea Road on the north shore of the island of Kaua`i. The subdivision is located in the SMA along the shoreline. Any development in the SMA is governed by the Coastal Zone Management Act (CZMA), codified in Hawai`i Revised Statutes (HRS) chapter 205A. The CZMA includes guidelines for development within the SMA. The legislature, finding that "special controls on developments within an area along the shoreline are necessary to avoid permanent losses of valuable resources and the foreclosure of management options," HRS § 205A-21 (2001), delegated the responsibility to each of the counties of enforcing the objectives and policies of the CZMA and of issuing SMA permits in accordance with the statute's mandates. A policy under the CZMA is to "[e]nsure that new developments are compatible with their visual environment by designing and locating such developments to minimize the alteration of natural landforms and existing public views to and along the shoreline[.]" HRS § 205A-2(c)(3)(B) (2001). Further, an objective of the CZMA is to "[r]educe hazard to life and property from tsunami, storm waves, stream flooding, erosion, subsidence, and pollution." HRS § 205A-2(b)(6)(A) (2001).

On Kaua`i, the Commission is the body charged with implementation of the CZMA. In that regard, the Commission adopted the Planning Department's "Shoreline Setback Rules and Regulations" [hereinafter "Kaua`i Rules"] in furtherance of this obligation. HRS § 205A-48 (2001), entitled "Conflict of other laws," states in relevant part that "[i]n case of a conflict between the requirements of any other state law or county ordinance regarding shoreline setback lines, the more restrictive requirements shall apply in furthering the purposes of this part."

B.

This is the second time the Wainiha Subdivision II has been considered by this court. On October 25, 1978, the Commission approved SMA Permit (U)-79-1 allowing for the development of the subdivision. The Commission's issuance of SMA (U)-79-1 was subsequently challenged and eventually overturned by this court in Mahuiki v. Planning Comm'n, 65 Haw. 506, 654 P.2d 874 (1982).

On July 5, 1983, developer Alex Ferreira (the Developer) reapplied for an SMA Use Permit. The Developer proposed a 22-lot subdivision. Included within his application was a proposed preliminary subdivision plan map dated July 1, 1983, on which the Developer designated a so-called "Zoning District Boundary Setback Line" [hereinafter "Developer's Setback"]. The Developer also included in his application an Environmental Assessment which stated, inter alia, that "[n]o structures are allowed within 40 feet of the certified shoreline and, therefore, the shoreline area will not be affected."

After community opposition was expressed, the Developer presented a second proposal for a 20-lot subdivision, again indicating the same Developer's Setback on a map dated September 19, 1983. A third plan proposing 19 lots was also submitted at the same time, and it too included a map indicating the Developer's Setback. The Director of the Planning Department stated the following, inter alia, in his evaluation of these two proposals:

ADDITIONAL FINDINGS:

. . . .

Additionally, [the Developer] proposed the following restrictions applicable to either design scheme chosen:

1. All building plans subject to design review and approval by the Planning Department prior to building permit/zoning permit approval.

. . . .

EVALUATION:

. . . [R]evisions to the subdivision are necessary due to the following:

. . . .

3. Lots 2 and 3 may not have sufficient buildable area due to the required 40 feet setback from the certified shoreline. . . . .

1. This shoreline property is located within the Urban Land Use District, is further zoned Residential District (R-4), with a strip along the shoreline zoned Open District (O). The North Shore Development Plan Update maintains the Open District (O) to avoid the undue encroachment of structures onto the shoreline.

. . . .

CONCLUSION:

Based on the foregoing, it is concluded that the design alternatives conform to the Kauai General Plan, the Comprehensive Zoning Ordinance, and the Subdivision Ordinance. It is further concluded that adverse environmental and ecological effects can be minimized, and that the project can be consistent with the [SMA] objectives, policies and guidelines contained in Chapter 205-A of the [HRS], and Rules and Regulations of the County of Kauai relating to objectives, policies and guidelines, respectively, provided that:

1. Proper shoreline and building setbacks are established;

. . . .

It is also concluded that provided all these restrictions are established, it is not necessary to select a design alternative and that such decision could be made at time of subdivision review and approval. In meeting SMA objectives, it is more important to establish the restrictions and criteria at this time and not necessarily the subdivision layout.

(Emphases added.)

After continued opposition by both community members and members of the Commission, the Developer presented a fourth proposal for a 15-lot subdivision. Like all of its predecessor proposals, it was accompanied by a map that included the same Developer's Setback. On December 15, 1983, the Commission issued its "Findings of Fact, Conclusions of Law, Decision and Order" approving SMA (U)-84-2. No reference to the maps presented in the proceedings was made in the SMA (U)-84-2 order. However, the Commission's findings included the following:

DESCRIPTION OF REAL PROPERTY

. . . .

10. ... The Zoning for the property is "Residential District (R-4)" and Open District (O). The Open District strip is approximately 40-75 feet wide. The property is within the [SMA] district.

. . . .

12. The draft North Shore Development Plan Update ("North Shore Update"), as approved by the Planning Commission, recommends that the subject site and surrounding properties be rezoned from its present Residential District (R-4)/Open District (O) to Residential District (R-2)/Open District (O) due to their location in a coastal high hazard zone area ... and due to the rural nature of the area. As of this date, the North Shore Update is still subject to: a) public hearings at the County Council level; b) County Council review and approval; and c) review and approval by the Mayor.

. . . .

SMA REQUIREMENTS

22. The North Shore of Kauai has long been recognized for its natural beauty and scenic qualities. The goals of the North Shore Development Plan Update reflect that the area's unique natural beauty and special rural charm should be preserved. Haena definitely reflects these characteristics, and any development within the area should be sensitive to the...