Kam v. Noh, No. 12861

CourtSupreme Court of Hawai'i
Writing for the CourtBefore LUM; LUM
Citation770 P.2d 414,70 Haw. 321
PartiesCalvin Chock Ming KAM and Shirley Sau Ling Kam, Plaintiffs-Appellants, and State of Hawaii, Department of Land and Natural Resources, Intervenor-Plaintiff-Appellant, v. Edwin Cha Son NOH, Miriam Chun Noh, and Charles Yoo, doing business as C. Yoo Construction, Defendants-Appellees.
Decision Date09 March 1989
Docket NumberNo. 12861

Page 414

770 P.2d 414
70 Haw. 321
Calvin Chock Ming KAM and Shirley Sau Ling Kam, Plaintiffs-Appellants,
and
State of Hawaii, Department of Land and Natural Resources,
Intervenor-Plaintiff-Appellant,
v.
Edwin Cha Son NOH, Miriam Chun Noh, and Charles Yoo, doing
business as C. Yoo Construction, Defendants-Appellees.
No. 12861.
Supreme Court of Hawai'i.
March 9, 1989.
Syllabus by the Court

1. Where a statute is susceptible to more than one interpretation, the court will look to the intent of the legislature.

2. The intention of the legislature is to be obtained primarily from the language contained in the statute itself.

3. Where the meaning of a word is unclear in one part of a statute but clear in another part, the clear meaning can be imparted to the unclear usage on the assumption that it means the same thing throughout the statute.

4. Laws in pari materia, or upon the same subject matter, shall be construed with reference to each other. What is clear in one statute may be called in aid to explain what is doubtful in another.

5. Words or phrases used in two or more sections of a statute are presumed to be used in the same sense throughout.

6. One provision of a comprehensive statute should be read in context of other provisions of that statute and in light of the general legislative scheme.

7. [70 Haw. 322] Each part or section of a statute should be construed in connection with every other part or section so as to produce a harmonious whole.

8. Restrictive covenant in deed limiting height of buildings is not a "restriction relating to the use" of land within the

Page 415

meaning of HRS § 171-63(b) which provides for the expiration of all restrictions relating to the use of residential lots sold in fee simple by the state.

9. Statute providing for expiration of all restrictions relating to the use of residential lots sold in fee simple by the state applies to purpose for which property is used and does not affect the enforceability of restrictive covenant in deed imposing building height limitation.

[70 Haw. 327] James N. Duca (Daniel Orodenker with him on the briefs), Kessner, Duca & Maki, Honolulu, for plaintiffs-appellants.

Lane T. Ishida (Johnson H. Wong and Derwin Hayashi with him on the briefs), Deputy Attys. Gen., Honolulu, for intervenor-plaintiff-appellant.

Stanley D. Suyat (Gilbert S. Coloma-Agaran with him on the brief), Carlsmith, Wichman, Case, Mukai & Ichiki, Honolulu, for defendants-appellees.

Before [70 Haw. 321] LUM, C.J., and NAKAMURA, PADGETT, HAYASHI and WAKATSUKI, JJ.

LUM, Chief Justice.

The question presented in this appeal is whether a restrictive covenant in a deed imposing building height limitations expired by operation of Hawaii Revised Statutes (HRS) § 171-63(b). The statute, relating to the sale of public lands by the State, provides that "all restrictions relating to the use" of residential lots sold in fee simple shall expire within ten years after issuance of the deed. The court below dismissed Appellants' complaint seeking enforcement of the restrictive covenant, finding that the covenant expired by operation of law. Because we conclude that § 171-63(b) limits only the length of time during which the State may restrict the purpose for which the property is used, and does not affect the enforceability of building height restrictions, we reverse the judgment of the court below.

I.

Appellants, Calvin Chock Mong Kam and Shirley Sau Ling Kam (the "Kams"), own a residence situated on the slopes of Diamond Head. They acquired their property in 1968. Appellees, Edwin Cha Son Noh and Miriam Chun Noh (the "Nohs"), are neighbors of the Kams. The Nohs acquired their adjacent lot in 1966. The State of Hawaii, through its Department of Land and Natural Resources ("DLNR"), was the original owner of all lots in the subdivision where the Kams and Nohs reside. The deed by which the Nohs acquired their lot from the State of Hawaii contains a covenant that "[n]o portion of any structures shall be more than 15 feet [70 Haw. 323] above the highest approved finished grade at the building." 1 An identical height limitation is incorporated by reference into the Kams' deed, and is common to all deeds issued by the State for lots in "Increment One" of the subdivision.

In early 1987, the DLNR denied the Nohs' request to waive the fifteen-foot height restriction. The Nohs nevertheless applied for a building permit from the City and County of Honolulu for proposed construction which would exceed the height limitation. The permit was issued on May 15, 1987 and construction commenced shortly thereafter.

On July 24, 1987, DLNR served Appellee Edwin Noh with a Cease and Desist Notice. Despite the notice, the Nohs continued construction on their home, causing the Kams to file a complaint against the Nohs and their contractor, Appellee Charles Yoo, on August 25, 1987. The complaint alleged that the Nohs had intentionally violated the fifteen-foot height restriction in their deed, and sought an injunction against further

Page 416

construction and an order requiring the Nohs to tear down the improvements which exceeded the fifteen-foot height restriction, as well as monetary and punitive damages. The Kams also moved for a temporary restraining order. The parties stipulated to entry of the temporary restraining order on August 31, 1987.

The Nohs responded with a motion to dismiss on the grounds that the building height restriction had lapsed according to HRS § 171-63(b). The State of Hawaii, through DLNR,...

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33 practice notes
  • Heilker v. Zoning Bd. of Appeals, No. 3374.
    • United States
    • Court of Appeals of South Carolina
    • July 23, 2001
    ...for which land ... is designed, arranged or intended, or to (for) which said land ... is occupied, maintained or leased."); Kam v. Noh, 70 Haw. 321, 770 P.2d 414, 416 (1989) (concluding the term "use" was synonymous with the term "purpose" in examining a zoning statute); Croxton v. Board of......
  • Lales v. Wholesale Motors Co., No. SCWC–28516.
    • United States
    • Supreme Court of Hawai'i
    • February 13, 2014
    ...[of a statute] should be construed in connection with every other part or section so as to produce a harmonious whole." Kam v. Noh, 70 Haw. 321, 326, 770 P.2d 414, 418 (1989). Interpreting "agent" 133 Hawai'i 371328 P.3d 380 as incorporating the principles of respondeat superior is consiste......
  • Castro v. Melchor, SCWC-12-0000753
    • United States
    • Supreme Court of Hawai'i
    • March 13, 2018
    ...the clear meaning can be imparted to the unclear usage on the assumption that it means the same thing throughout the statute." Kam v. Noh, 70 Haw. 321, 325, 770 P.2d 414, 416 (1989). This means that, "[i]n the absence of an express intention to the contrary, words or phrases used in two or ......
  • 76 Hawai'i 46, Richardson v. City and County of Honolulu, No. 16457
    • United States
    • Supreme Court of Hawai'i
    • February 18, 1994
    ...to each other. What is clear in one statute may be called in aid to explain what is doubtful in another." HRS § 1-16 (1985); Kam v. Noh, 70 Haw. 321, 325, 770 P.2d 414, 417 (1989). Third, "where there is a 'plainly irreconcilable' conflict between a general and a specific statute concerning......
  • Request a trial to view additional results
33 cases
  • Heilker v. Zoning Bd. of Appeals, No. 3374.
    • United States
    • Court of Appeals of South Carolina
    • July 23, 2001
    ...for which land ... is designed, arranged or intended, or to (for) which said land ... is occupied, maintained or leased."); Kam v. Noh, 70 Haw. 321, 770 P.2d 414, 416 (1989) (concluding the term "use" was synonymous with the term "purpose" in examining a zoning statute); Croxton v. Board of......
  • Lales v. Wholesale Motors Co., No. SCWC–28516.
    • United States
    • Supreme Court of Hawai'i
    • February 13, 2014
    ...[of a statute] should be construed in connection with every other part or section so as to produce a harmonious whole." Kam v. Noh, 70 Haw. 321, 326, 770 P.2d 414, 418 (1989). Interpreting "agent" 133 Hawai'i 371328 P.3d 380 as incorporating the principles of respondeat superior is consiste......
  • Castro v. Melchor, SCWC-12-0000753
    • United States
    • Supreme Court of Hawai'i
    • March 13, 2018
    ...the clear meaning can be imparted to the unclear usage on the assumption that it means the same thing throughout the statute." Kam v. Noh, 70 Haw. 321, 325, 770 P.2d 414, 416 (1989). This means that, "[i]n the absence of an express intention to the contrary, words or phrases used in two or ......
  • 76 Hawai'i 46, Richardson v. City and County of Honolulu, No. 16457
    • United States
    • Supreme Court of Hawai'i
    • February 18, 1994
    ...to each other. What is clear in one statute may be called in aid to explain what is doubtful in another." HRS § 1-16 (1985); Kam v. Noh, 70 Haw. 321, 325, 770 P.2d 414, 417 (1989). Third, "where there is a 'plainly irreconcilable' conflict between a general and a specific statute concerning......
  • Request a trial to view additional results

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