Chang v. Planning Commission of Maui County

• Decision Date: 31 March 1982
• Docket Number: No. 8365,8365
• Citation: 64 Haw. 431,643 P.2d 55
• Parties: Edward CHANG, Appellant, v. PLANNING COMMISSION OF the COUNTY OF MAUI, and Makena Surf, an Oregon partnership, Appellees.
• Court: Hawaii Supreme Court

Page 55

643 P.2d 55

64 Haw. 431

Edward CHANG, Appellant, v. PLANNING COMMISSION OF the COUNTY OF MAUI, and Makena Surf an Oregon partnership, Appellees.

No. 8365.

Supreme Court of Hawai'i.

March 31, 1982.

As Amended April 15, 1982.

Syllabus by the Court

1. The Hawaii Administrative Procedure Act applies to special management area use permit application proceedings since, as "contested cases," they are actions in which the specific parties' legal rights and duties are required by law to be determined after an opportunity for agency hearing.

2. Neither HRS § 205A-29, HRS chapters 91 and 92, nor the planning commission rules require that notice of a meeting rescheduled for a later date be provided within the thirty and twenty-five day limits imposed on the original notice.

3. The court will not deviate from the plain language of the statute and rules to invalidate an SMA use permit where notice of a rescheduled hearing was not required to be provided within the laws' time limits for original notice, and where to do so is not mandated by the purposes of the laws or by any prejudice to appellant.

4. Although newspaper notice of hearing on an SMA use permit application failed to comply with one requirement of the Hawaii Administrative Procedure Act notice provisions, appellant may not claim prejudice where he received mailed and oral notice complying with this requirement.

5. HRS chapter 92, Hawaii's Sunshine Law, does not apply to deliberations of the planning commission on SMA use permit applications as they are exempt from operation of the statute as "adjudicatory functions exercised by a board and governed by Sections 91-8 and 91-9," HRS § 92-6(a)(2).

6. Closed deliberations of the planning commission on an SMA use permit application and subsequent motion to reconsider decision granting the permit violated Maui planning commission rules and county charter provision requiring open deliberations.

7. While the planning commission violated agency rules and the county charter by closing its deliberations, the reviewing court may not reverse the commission's decision granting the SMA use permit under the Hawaii Administrative Procedure Act unless appellant alleges and establishes prejudice to his substantive rights.

Jonathan D. Waxman, Wailuku, Maui (John J. Baker, Todd Boley and Isaac Davis Hall, Wailuku, Maui, with him on the briefs), for appellant.

David H. Nakamura, Wailuku, Maui (Crockett & Nakamura, Wailuku, Maui, of counsel), for appellee Makena Surf.

Before RICHARDSON, C. J., LUM and NAKAMURA, JJ., and OGATA and MENOR, Retired Justices, assigned by reason of vacancies.

LUM, Justice.

Appellant Edward Chang, a resident of Makena, Maui, brings this appeal to contest the granting of a special management area ("SMA") use permit to appellee Makena Surf, Ltd. ("Makena Surf") by co-appellee the Maui County Planning Commission ("planning commission") pursuant to HRS chapter 205A, Hawaii's Coastal Zone Management Act, ¹ thereby facilitating Makena Surf's construction of a 184-unit condominium development in the vicinity of Poolenalena Beach, Makena. As in his appeal before the second circuit court, appellant here complains of numerous procedural and substantive irregularities in the review and approval of the permit application. Only a few of appellant's contentions merit our attention, however, and we have confined ourselves to determining whether appellant was properly notified of the planning commission hearing on Makena Surf's application, and whether the commission's subsequent closed deliberations comported with statutory, charter and rule provisions governing public agency meetings. Finding both charter and rule violations but no reversible error, we sustain the lower court's affirmance of the planning commission's decision granting the SMA use permit.

I.

Makena Surf submitted its application for an SMA use permit to the planning commission on December 11, 1979. The commission scheduled a hearing on the application for February 26, 1980, which was later reset for March 11, 1980. Notice of the rescheduled hearing was published in the Maui News and Honolulu Advertiser on February 6, 1980. ² A separate notice of the March 11 hearing, entitled "Notice of Special Management Area Hearing," appeared in the Maui News on February 8, 1980, and in the Honolulu Advertiser on the following day. This announcement identified the subject of the permit application, gave the date, time and place of the hearing, mentioned that information relating to Makena Surf's application was available for public inspection at the county planning department, and advised that "(a)ny person seeking to be admitted as a party must do so at least fifteen (15) days prior to said hearing and comply with the provisions of Article I, Part II, Section 1-13 of the Maui Planning Commission rules." ³ The notice additionally recited that the hearings would be held under the authority of HRS chapters 205A and 91 and specified Maui Planning Commission Rules and Regulations.

As an adjoining landowner, appellant received a "Notice of Special Management Area Hearing" from Makena Surf by certified mail on or about February 13, 1980, as required by Planning Commission Rule 2-11.3.f. Virtually identical to that described above, this notice additionally informed its recipient that any party could be represented by counsel. Makena Surf also enclosed a letter notifying appellant of a "public hearing" on the permit application set for March 11, describing the proposed development and informing appellant that testimony pertaining to the application could be submitted in advance to the planning commission or in person at the hearing.

On February 26, 1980, appellant wrote to the planning director seeking party status at the March 11 hearing. ⁴ Representatives of the planning department and corporation counsel met with appellant on March 6 to discuss his request. They attempted to review with appellant the commission procedures for intervention and advised him to seek the services of an attorney. Appellant apparently responded to the suggestion by stating that he did not plan to use a lawyer at the hearing and that he felt he did better without one.

Appellant attended the March 11 hearing, but because the commission lacked a quorum for the matter of Makena Surf's application, the hearing on the permit request was postponed until April 8, 1980. Notice of the new hearing date appeared in the Maui News and Honolulu Advertiser on March 24, 1980. Entitled "Notice of Rescheduled Special Management Area Hearing," the newspaper column again described the application's subject, noted that the hearing was to be governed by HRS chapters 205A and 91, and advised that project information was open for public inspection. Appellant also received an agenda of the April 8 meeting in the mail on or about April 4.

The planning commission granted appellant's request for intervenor status at the commencement of the April 8 hearing, which appellant attended. The first portion of the hearing was devoted to the receipt of evidence and testimony of witnesses representing the planning department and Makena Surf, both parties to the hearing. Appellant, not represented by an attorney, was given the opportunity to cross-examine each witness, to object to evidence introduced, to present testimony on his behalf, and to make a closing statement. Aside from questioning Makena Surf's project representative, however, appellant declined to exercise any of his rights as a party. The planning commission then received the written and oral testimony of twenty-five persons in the audience, as agreed to by all parties in a pre-hearing conference.

Following closed deliberations, the planning commission issued its Findings of Fact, Conclusions of Law, Decision and Orders on May 15, 1980, in which it approved Makena Surf's SMA use permit application subject to Makena Surf's compliance with enumerated conditions. Appellant, now represented by counsel, filed a motion for reconsideration on June 17, 1980, seeking to have the planning commission vacate its order granting the SMA use permit for the commission's alleged failure to comply with the federal Coastal Zone Management Act, the Hawaii Revised Statutes, and the planning commission rules relative to notice and conduct of the permit application hearing and to the substantive requirements for permit issuance. ⁵ The commission denied appellant's motion, and appellant sought review of the denial in circuit court. Appellant also filed a motion to remand the case to the planning commission for the taking of additional evidence pursuant to HRS § 91-14(e) and for the commission's written reasons for its denial of appellant's motion, as required by Planning Commission Rule 1-33. The circuit court disagreed with virtually all of appellant's contentions, and issued an order granting in part and denying in part appellant's motion to remand. ⁶ As this action disposed of the merits of appellant's earlier appeal by stipulation of the parties, appellant now approaches this court to challenge the correctness of the circuit court's ruling. ⁷

II.

At the outset we observe that Makena Surf's SMA use permit application proceeding was a "contested case" within the meaning of HRS chapter 91, the Hawaii Administrative Procedure Act ("HAPA"), as the parties' legal rights and duties "are required by law to be determined after an opportunity for agency hearing." HRS § 91-1(5) (1976); Planning Commission Rule 2-11.3.h; see City of Coronado v. California Coastal Zone Conservation Commission, 69 Cal.App.3d 570, 138 Cal.Rptr. 241 (1977); Town v. Land Use Commission, 55 Haw. 538, 524 P.2d 84 (1974). The state Coastal Zone Management Act and corresponding planning commission rules specifically make HRS § 91-9 and planning commission contested case procedures applicable to proceedings on SMA use permit applications in Maui County. See HRS § 205A-29(a); Planning...