City and County of Honolulu v. Midkiff

• Citation: 62 Haw. 411,616 P.2d 213
• Decision Date: 25 August 1980
• Docket Number: No. 6161,6161
• Parties: CITY AND COUNTY OF HONOLULU, a Municipal Corporation, Plaintiff-Appellee, v. Frank Elbert MIDKIFF, Richard Lyman, Jr., Hung Wo Ching, Matsuo Takabuki, Trustees under the Will and of the Estate of Bernice Pauahi Bishop, Deceased, Defendants-Appellees, and Robert H. Snyder, Defendant-Appellant, and John J. Stanford, et al., Intervenors.
• Court: Supreme Court of Hawai'i

Page 213

616 P.2d 213

62 Haw. 411

CITY AND COUNTY OF HONOLULU, a Municipal Corporation, Plaintiff-Appellee, v. Frank Elbert MIDKIFF, Richard Lyman, Jr., Hung Wo Ching,

Matsuo Takabuki, Trustees under the Will and of

the Estate of Bernice Pauahi Bishop,

Deceased, Defendants-Appellees,

and

Robert H. Snyder, Defendant-Appellant,

and

John J. Stanford, et al., Intervenors.

No. 6161.

Supreme Court of Hawai'i.

Aug. 25, 1980.

Syllabus by the Court

1. The standard of review of a summary judgment by the trial court is whether a genuine issue of material fact existed and if the moving party was entitled to judgment as a matter of law. Rule 56, Haw.R.Civ.P.

2. An appellate court will decide a zoning appeal on the basis of the law as it exists at the time of its decision.

3. The 1977 General Plan applies to the appeal of a decision made under the 1964 General Plan where the later Plan was enacted during the pendency of the appeal.

4. While a condemnation clause in a lease of real property is not unconscionable per se, where a question of fact is raised at trial, summary judgment is not an appropriate disposition; the trial court must then hold a hearing on the issue.

Peter A. Lee, Honolulu (Carl Tom, Honolulu, on the briefs, Oliver & Lee, Honolulu, of counsel), for defendant-appellant.

Samuel P. King, Jr., Deputy Corp. Counsel, City and County of Honolulu, Honolulu, for plaintiff-appellee.

Robert Bruce Graham, Jr., Honolulu (Hamilton, Gibson, Nickelsen, Rush & Moore, Honolulu, of counsel), for defendants-appellees.

Before RICHARDSON, C. J., and OGATA, MENOR, LUM and NAKAMURA, JJ.

OGATA, Justice.

Robert H. Snyder, defendant-appellant, appeals from the decisions of the First Circuit Court granting summary judgment to the City and County of Honolulu (hereinafter "City") and the Trustees Under the Will and of the Estate of Bernice Pauahi Bishop (hereinafter "Bishop Estate") in an eminent domain proceeding and a Crossclaim action arising therefrom. ¹

On March 20, 1974, the City initiated an eminent domain proceeding ² against certain property owned in fee simple by the Bishop Estate and leased by it to the appellant. The lease between the appellant and the Bishop Estate was entered into in 1964.

A short history of the property which is the subject of this appeal will assist in understanding the issues. On May 7, 1964, the Oahu General Plan was enacted. According to that document, the property was in an area planned for residential development. The Comprehensive Zoning Code, later enacted in 1969, classified the property as R-3 residential under Section 21-501(a)(5). ³ Although one of the permitted uses for R-3 property was park use, the Parks and Planning Departments felt that a General Plan amendment was necessary before the property could become a park. On May 9, 1972, the 1964 General Plan Land Use Map was amended to redesignate the property from residential to park use. The City Council passed Resolution Number 262 on January 17, 1974. The resolution provided for the acquisition of land for beach rights-of-way and parks in the Koko Kai area. As the appellant's property was one of the lots affected, he challenged the City's condemnation proceeding. During the pendency of his appeal, the City Council repealed the 1964 General Plan and adopted a new General Plan in 1977.

The appellant answered the City's eminent domain complaint on April 10, 1974, alleging that the City had no power to condemn the property without first amending the 1964 General Plan. The appellant argued further that the City's redesignation of the property from residential to park use was not a satisfactory amendment due to alleged procedural deficiencies.

On October 1, 1975, the City filed a Motion for Summary Judgment against the appellant. The City argued that no amendment of the 1964 General Plan was necessary to create a park on the appellant's property. Alternatively, the City stated that even if the trial court found that an amendment was required, the 1972 amendment procedure was sufficient. The trial court granted the Motion for Summary Judgment on both grounds.

The appellant also filed a Crossclaim against the Bishop Estate questioning the validity of the condemnation clause in the lease between him and the Bishop Estate. The lease was for a 55-year term and contained the following pertinent terms. The appellant agreed to pay and paid a lease premium of $40,000.00 to the Bishop Estate for the construction of off-site improvements in the subdivision. In addition the appellant paid lease rent of $3,300.00 per year for the first thirty years of the lease, all property taxes, insurance and other assessments on the property. The condemnation clause in the lease stated that, in the event of a condemnation action, the appellant would not be entitled to compensation for any leasehold interest and would receive only the value of improvements he himself had made to the property. ⁴ The appellant contended, in opposition to Bishop Estate's Motion for Summary Judgment, that this clause was unconscionable and therefore invalid.

On October 31, 1975, the Bishop Estate moved for summary judgment on the Crossclaim by the appellant. The Bishop Estate contended that the condemnation clause in the lease between it and the appellant was valid and controlling. The trial court granted the Bishop Estate's Motion against the appellant.

The appellant appeals from both decisions of the trial court. For the reasons delineated below, we affirm in part and reverse in part.

I.

The appellant's first contention is that the trial court erred when it granted summary judgment in favor of the City in the condemnation action. The appellant argued that the City had no power to condemn the property without first amending the 1964 General Plan and that the City's attempt to so amend the Plan was procedurally deficient according to the guidelines set out in Dalton v. City & County of Honolulu, 51 Haw. 400, 462 P.2d 199 (1969) and Hall v. City & County of Honolulu, 56 Haw. 121, 530 P.2d 737 (1975).

We do not discuss the appellant's arguments concerning the 1964 General Plan in this opinion. The enactment of the 1977 General Plan during the pendency of this appeal makes it unnecessary to consider the old plan. It is well-established that, absent special circumstances, an appellate court will decide an appeal on the basis of the law as it exists at the time of its decision. Atlantic Richfield Company v. Board of Supervisors, 40 Cal.App.3d 1059, 1065, 115 Cal.Rptr. 731, 735 (1974); Burgarella v. Planning and Zoning Commission, 240 A.2d 211, 212 (Conn.1967); Stato v. Squicciarini, 59 App.Div.2d 718, 719, 398 N.Y.S.2d 373, 374 (1977); Anderson,, 1 American Law of Zoning § 25.31 (2d ed. 1977); 8A McQuillin, The Law of Municipal Corporations § 25.338 (3d ed. rev. 1976). In this appeal, therefore, the court must determine whether the condemnation of the appellant's property for use as a park is consistent with the 1977 General Plan.

The 1977 General Plan is a flexible social guide to long-range development in Hawaii. It is by design a broad-based and general document. In this respect it differs from the earlier General Plan which was a more detailed physical development guide. The Final Report of the Charter Commission, City and County of Honolulu, 1971-72, discussing changes in the definition of a general plan to be included in the 1973 Charter stated:

The new definition of the general plan has had most of the present physical detail removed from it for three principal reasons. The first is in line with the commission's philosophy that policy planning for the city should no longer be limited to physical planning. Attention is hence called to the phrase 'distribution of social benefits' as an objective to be accomplished. Furthermore, planning is to be treated as an ongoing process in which the general plan then is not a single best picture or golden flash of the city at some future point in time but rather a set of policies and objectives for its development. Some would be appropriately expressed in graphics form and others not. It is the intention of the Charter Commission that the term 'development objective' be construed liberally and in light of the Commission's emphasis on the purposes of planning and the need for comprehensive planning, rather than be limited to its land use or physical connotations.

Finally, by redefining the general plan as a set of policies and objectives, it is intended that the burdensomeness of amending the general plan encumbered by the Dalton decision (Dalton et al. v. City and County of Honolulu et al., 51 Hawaii 400, 462 P.2d 199) be lifted. It is to be adopted or amended by resolution, and the mayor is empowered to approve or reject it. Its standing as a resolution, rather than an ordinance, means that it is not a law, but a guide or policy statement. (Emphasis added.)

One of the expressly stated objectives of the 1977 General Plan is the expansion and maintenance of Oahu's system of beach parks. 1977 General Plan, Objectives and Policies, No. 9 Culture and Recreation. The City's condemnation of the appellant's property for use as a park is consistent with this objective. Further support for the City's action may be found in the Comprehensive Zoning Code. Because the appellant's property was zoned R-3 under the Code, one of its permitted uses already was as a park. See Comprehensive Zoning Code §§ 21-501(a)(4) (1978 Supp.), 21-511 (1969), 21-521 (1969).

As the City's condemnation of the appellant's property for park use is consistent with both the Comprehensive Zoning Code and the 1977 General Plan, we hold that the condemnation action was valid and that summary judgment in favor of the City was proper.

II.

In addition to filing an Answer to the Complaint previously filed by the City and County of Honolulu against the appellant and the Bishop Estate, the appellant initiated a Crossclaim against the Bishop Estate. The Bishop...