Kellberg v. Yuen

• Decision Date: 22 January 2014
• Docket Number: No. SCWC–12–0000266.,SCWC–12–0000266.
• Citation: 319 P.3d 432,131 Hawai'i 513
• Court: Hawaii Supreme Court
• Parties: Mark C. KELLBERG, Petitioner/Plaintiff–Appellant, v. Christopher J. YUEN, in his capacity as Planning Director, County of Hawai‘i, and County Of Hawai‘i, Respondents/Defendants–Appellees.

131 Hawai'i 513

319 P.3d 432

Mark C. KELLBERG, Petitioner/Plaintiff–Appellant,

v.Christopher J. YUEN, in his capacity as Planning Director, County of Hawai‘i, and County Of Hawai‘i, Respondents/Defendants–Appellees.

No. SCWC–12–0000266.

Supreme Court of Hawai‘i.

Jan. 22, 2014.

Robert H. Thomas and Mark M. Murakami, Honolulu, for petitioner.

Michael J. Udovic, Hilo, for respondent.

RECKTENWALD, C.J., NAKAYAMA, ACOBA, McKENNA, and POLLACK, JJ.

Opinion of the Court by POLLACK, J.

This appeal arises out of a decision by Respondents/ Defendants–Appellants Christopher J. Yuen in his capacity as Planning Director of the County of Hawai‘i (Planning Director) and the County of Hawai‘i (County) (collectively, "County Defendants"), to approve a subdivision on the subject property. Petitioner/Plaintiff–Appellant Mark C. Kellberg (Kellberg), an adjacent land owner, filed an action in the Circuit Court of the Third Circuit (circuit court) challenging the subdivision approval. The circuit court granted summary judgment on all counts in favor of the County Defendants. In his Application for Writ of Certiorari (Application), Kellberg seeks review of the July 19, 2013 Judgment on Appeal of the Intermediate Court of Appeals (ICA), filed pursuant to its June 20, 2013 Memorandum Opinion, vacating the circuit court's judgment and remanding for an order dismissing the case. For the reasons set forth herein, we vacate the ICA's judgment and remand the case to the ICA for consideration of the remaining issues raised by Kellberg in his appeal to the ICA.

I. BACKGROUND

A. Subject Property

The subject property is a 49–acre parcel of land located in Ninole, County of Hawai‘i (Subject Property). Kellberg owns property adjacent to the Subject Property. On May 22, 2000, Virginia Goldstein, the Planning Director at the time, sent a letter to Robert Williams,¹ President of Prudential Orchid Isle Properties, reflecting the Planning Department's determination that the Subject Property consisted of six pre-existing lots.² A map was attached to Goldstein's letter, reflecting five adjoining lots in the larger 48.47–acre portion of the Subject Property, and a sixth smaller, 0.600–acre non-contiguous lot (identified as Lot 4 on the map).

In December 2003, the then-owners of the Subject Property wrote to Christopher Yuen, who had taken over as Planning Director, stating that they would like to consolidate and re-subdivide the property. The owners wrote that it was their belief that there were at least "seven usable lots of record located" on the property. (Emphasis added). On June 2, 2004, the Planning Director responded to the owners and wrote that based on a review of the relevant records, the Planning Department had determined that "the subject property consist[s] of two (2) separate legal lots of record[.]" (Emphasis added). One of the lots included the small non-contiguous plot.

In 2004, Michael Pruglo purchased the Subject Property. In a letter dated January 15, 2005, Sidney M. Fuke, a planning consultant working with Pruglo, wrote to the Planning Director to memorialize a January 12, 2005 discussion between Fuke and the Director. Fuke wrote that at the January 12 meeting, the Director confirmed that he "would accept the six (6) lots acknowledged in the May 22, 2000 letter as lots of record[.]"

On April 7, 2005, Fuke filed a "Consolidation/Resubdivision Application" (SUB 05–000064) with the Planning Department, on Pruglo's behalf. In the accompanying letter, Fuke reiterated that pursuant to Goldstein's May 22, 2000 letter and Fuke's January 15, 2005 discussion with the current Planning Director, the Subject Property was determined to have six pre-existing lots.

The preliminary plat map included with the application, dated April 6, 2005, identifies the larger 48–acre portion of the Subject Property as "Parcel 1," and divides Parcel 1 into six lots, labeled "1–A" through "1–F." However, the smaller, 0.6–acre non-contiguous lot from the Planning Department's May 22, 2000 letter is not included as part of the proposed subdivision. Instead, the non-contiguous lot is labeled "Parcel 2."

On June 1, 2005, the Planning Director granted tentative approval of the preliminary plat map.

On July 1, 2005, Fuke submitted a final plat map to the Planning Director. Consistent with the preliminary map, the final plat map identifies the larger portion of the Subject Property as "Parcel 1" and shows this portion divided into six lots. The smaller non-contiguous portion of the property, while reflected in the map, is no longer identified as "Parcel 2" or by any label.

On July 11, 2005, the Planning Director sent a letter to Fuke, providing, "FINAL SUBDIVISION APPROVAL NO. SUB–05–000064." The letter stated, "Please be informed that final subdivision approval for recordation is hereby granted to the final plat map as attached herewith inasmuch as all requirements of the Subdivision Code, Chapter 23, as modified have been met." (Emphasis added).

According to Kellberg, he first became aware of the subdivision of the Subject Property a month later on August 11, 2005, when he observed a "for sale" sign on the Subject Property, and a realtor later called him with an offer to sell him a newly created lot along his property line. The next day, he went to the Planning Department. He asked an employee about filing an appeal and was informed that the thirty-day period for appeals had already passed. He asked to speak to the Planning Director, but was told that he was unavailable. Kellberg then left his contact information and asked that the Director call him later that day. When the Director did not contact him as requested, Kellberg again visited the Planning Department on August 16 and left his contact information. However, the Director did not call him.

In a letter dated August 16, 2005, Kellberg informed the Planning Director that he had recently learned of the subdivision approval and that he was "writing to make [the Planning Director] aware of serious omissions and errors" in the approved subdivision plan. In relevant part, Kellberg noted that the final subdivision plan on file with the Planning Department divides the Subject Property into seven lots rather than six lots. The seventh lot consisted of the smaller, non-contiguous parcel reflected in the Planning Department's May 22, 2000 map as Lot 4. Kellberg wrote, "Your agreement to honor the previous administration's six pre-existing lot determination (as per your 01/12/05 meeting with Mr. Fuke), allows a six lot subdivision of the subject property, while the ‘final’ subdivision plan on file with your office divides the subject property into seven lots."

Kellberg concluded his letter by stating that he "can appreciate that at this late date, the errors and omissions I have noted will be difficult to correct, and certainly inconvenient for all parties involved." He wrote, "I would encourage your prompt intervention in this matter[.]"

On October 19, 2005, the first subdivision lot was sold.

In a letter dated January 17, 2006, Kellberg again wrote to the Planning Director. He stated that in the five months since his first letter, he had called the Planning Director's office and left numerous messages, with no response. He reiterated that the most serious error in the subdivision approval was that it failed to recognize Lot 4 and created seven lots instead of the agreed-upon six lots. He concluded by requesting a response and an account of the steps the Planning Director had taken to correct the identified errors.

On February 17, 2006, Kellberg wrote to the County of Hawai‘i Office of the Corporation Counsel (Corporation Counsel) with his concerns regarding the subdivision. Corporation Counsel responded on February 24, 2006, and encouraged Kellberg to continue attempting to contact the Planning Director and also noted that Kellberg could consider appealing the matter to the Hawai‘i County Board of Appeals (BOA).

In a letter dated March 5, 2006, Kellberg wrote to the Planning Department, stating that he was writing "at the suggestion of Corporation [Counsel] ... to request information concerning the [BOA]."

On March 21, 2006, the Chairman of the BOA responded to Kellberg's March 5 letter to the Planning Department. The Chairman stated that "[a]ccording to our records, the Planning Director granted Final Subdivision Approval on July 11, 2005 for the 6–lot subdivision of the subject property." (Emphasis added). The Chairman continued by informing Kellberg that the BOA rules required an appeal from the Planning Director's decision to be filed within thirty days of the decision: "For your information, Section 8–3, Time Limit for Filing Appeal, of Part 8 ... states that an appeal from the decision of the Planning Director shall be filed within thirty (30) days after the decision." A copy of the BOA's Rules of Practice and Procedures and a General Petition form were enclosed with the letter.

On April 19, 2006, Pruglo and Fuke submitted a new consolidation and resubdivision application for the Subject Property (SUB 06–000333). The plan involved consolidating the non-contiguous parcel with another parcel created by the previous subdivision.³

On June 19, 2006, Kellberg wrote a third letter to the Planning Director.⁴ According to Kellberg, he had become aware of the pending subdivision application and asked the Planning Director to notify him when the subdivision application was approved.

On August 25, 2006, Kellberg's counsel, Stephen D. Whittaker, wrote to the Planning Director at Kellberg's request. The letter provided that it was regarding "Subdivision Plan SUB–05–000064; Resubdivision Plan 06–000333." Whittaker wrote that it was his assumption that "an appeal is premature in that Mr. Kellberg has not received notice of any action purporting to approve the ‘resubdivision’ ... and on June 19, 2006, he asked, in writing, to be notified ‘when tentative approval has been granted ... for the resubdivision.’ "

On October 23, 2006, more than a year after...