Korean Buddhist Dae Won Sa Temple of Hawaii, Inc. v. Zoning Bd. of Appeals of City and County of Honolulu

• Court: Hawaii Court of Appeals
• Writing for the Court: Before BURNS, C.J., HEEN, J., and SPENCER; HEEN
• Citation: Korean Buddhist Dae Won Sa Temple of Hawaii, Inc. v. Zoning Bd. of Appeals of City and County of Honolulu, 837 P.2d 311, 9 Haw.App. 298 (Haw. App. 1992)
• Decision Date: 22 May 1992
• Docket Number: No. 15256,15256
• Parties: KOREAN BUDDHIST DAE WON SA TEMPLE OF HAWAII, INC., Appellant-Appellee, v. ZONING BOARD OF APPEALS OF the CITY AND COUNTY OF HONOLULU and Donald A. Clegg, Director of Land Utilization of the City and County of Honolulu, Appellees-Appellants.

Page 311

837 P.2d 311

9 Haw.App. 298

KOREAN BUDDHIST DAE WON SA TEMPLE OF HAWAII, INC., Appellant-Appellee, v. ZONING BOARD OF APPEALS OF the CITY AND COUNTY OF HONOLULU and Donald A. Clegg, Director of Land Utilization of the City and County of Honolulu Appellees-Appellants.

No. 15256.

Intermediate Court of Appeals of Hawai'i.

May 22, 1992.

Reconsideration Denied June 8, 1992.

Certiorari Granted July 15, 1992.

Certiorari Dismissed Oct. 9, 1992.

Donna M. Woo, Deputy Corp. Counsel, City and County of Honolulu, on the briefs, Honolulu, for appellees-appellants.

Wendell H. Marumoto, on the brief, Honolulu, for appellant-appellee.

Fred Paul Benco and Linda S. Birn, on the amicus curiae brief, Honolulu, for Concerned Citizens of Palolo.

Syllabus by the Court

1. Appellate courts have jurisdiction to determine whether the circuit court had jurisdiction over the subject matter of the appeal.

2. Appellate courts are obligated to ensure that they have jurisdiction to hear and determine each case, even though the parties do not raise the issue.

3. The right to appeal from an administrative agency's decision is limited by the Hawaii Administrative Procedure Act, Hawaii

Revised Statutes (HRS), chapter 91 (1985).

4. The law requires strict compliance with statutes creating the right to appeal from administrative agency decisions.

5. The time established by a statute for lodging an appeal is mandatory, and the timely filing of a notice of appeal is fundamental to the court's jurisdiction to review an agency's decision.

6. Where the statutory time requirement for filing a notice of appeal has not been met, the appeal must be dismissed.

7. Rule 72(b), HRCP, provides that the notice of appeal from the administrative agency decision must be filed within 30 days after the adversely affected party is notified of the agency's final decision "in the manner provided by statute."

8. HRS § 91-14(b) provides that service of the agency decision shall be "pursuant to rule of court." The language of HRS § 91-14(b) clearly indicates that the legislature intended that the manner of service generally provided for by HRCP would govern service of the notice of appeal under HRS § 91-14.

9. The HRCP provisions regarding service clearly establish the date of mailing as the date of service. Thus, Rule 5(b), HRCP, allows service by mail of all pleadings and papers after the original complaint and summons and also provides that service by mail is complete upon mailing.

10. Service of the certified copy of an administrative agency's decision is complete when the certified copy is deposited in the mail.

Before BURNS, C.J., HEEN, J., and SPENCER, Circuit Judge, Assigned by Reason of Vacancy. ^*

HEEN, Judge.

Appellees-Appellants Zoning Board of Appeals (ZBA) of the City and County of Honolulu (City) and Donald A. Clegg, Director of the City's Department of Land Utilization (DLU) (collectively, where appropriate, the Board), appeal from the March 22, 1991 order (Order) of the first circuit court reversing ZBA's denial (ZBA Order) of Appellant-Appellee Korean Buddhist Dae Won Sa Temple of Hawaii, Inc.'s (Temple) application for a variance from the City's zoning ordinances and remanding the matter to ZBA for rehearing and reconsideration.

Sua sponte, we hold that the circuit court was without jurisdiction to hear the appeal from the ZBA Order. ¹ Consequently, we, too, are without jurisdiction. 4 Am.Jur.2d Appeal and Error § 9 (1962).

For several years the City and Temple had been at odds over Temple's alleged violations of the zoning regulations applicable to the property in Palolo Valley where Temple was constructing a cultural center building, an accessory building, and a gate structure, and Temple's alleged noncompliance with the plans approved by the City for the construction. The City had issued citations to Temple alleging that the cultural center building's height exceeded the maximum allowed under the City's Comprehensive Zoning Code (CZC) and that the accessory building and gate structure both intruded into the side yard setback area established for Temple's property by the City's Land Use Ordinance. Temple applied to DLU for a variance from the zoning regulations restricting the height of its cultural center building. DLU expanded the application to include the alleged encroachments by the accessory building and the gate structure. After a public hearing, DLU denied the variance. Temple appealed to ZBA. After public hearings, ZBA affirmed DLU's denial in an order entered on January 11, 1990. On February 16, 1990, Temple filed a notice of appeal in the circuit court.

On March 13, 1990, Board filed a motion in circuit court to dismiss Temple's appeal as untimely. Attached to the motion is an affidavit by ZBA's secretary averring that on January 12, 1990, she personally mailed a certified copy of the ZBA Order to Temple's attorney at his business address. In an affidavit opposing the motion, Temple's attorney averred that he received the certified copy of the ZBA Order on January 17, 1990. Temple's attorney also averred that in a conversation with ZBA's secretary he was informed that the certified mail receipt in her possession confirmed the January 17, 1990 delivery date. On July 6, 1990, after a hearing, the circuit court entered an order denying the motion (Order of Denial).

Temple's appeal to the circuit court was heard on November 26, 1990. On March 22, 1991, the circuit court entered the Order, and on April 3, 1991, Board appealed.

In this court, Board has not continued its jurisdictional attack. ² However, we are obligated to insure that we have jurisdiction to hear and determine each case. State v. Kam, 69 Haw. 483, 748 P.2d 372 (1988). Our examination of the record indicates that Temple's notice of appeal from the ZBA Order was untimely.

In the Order of Denial, the circuit court did not specify the grounds for denying Board's motion to dismiss. However, the record contains the following minute order:

MINUTE ORDER: APRIL 3, 1990

MOTION DENIED: THE ZBA IS AN ADMINISTRATIVE AGENCY OF THE CITY & COUNTY OF HONOLULU. ITS FINAL DECISION WAS ADOPTED ON 1/11/90. ANY APPEAL THEREFROM MUST FOLLOW HRS SECTION 91-14(B) AND BE "INSTITUTED IN THE CIRCUIT COURT ... WITHIN THIRTY DAYS AFTER SERVICE OF THE CERTIFIED COPY OF THE FINAL DECISION AND ORDER OF THE AGENCY PURSUANT TO RULE OF COURT...."

HERE, SERVICE WAS BY MAILING ON 1/12/90. THE MAILING WAS RECEIVED ON 1/17/90. AN APPEAL WAS FILED ON 2/16/90. APPELLANT RELIES ON HRCP 72(B) WHICH GOVERNS TIMELINESS OF THE APPEAL AND STATES THAT A NOTICE OF APPEAL SHALL BE FILED IN CIRCUIT COURT "WITHIN THIRTY DAYS AFTER THE PERSON DESIRING TO APPEAL IS NOTIFIED ... IN THE MANNER PROVIDED BY STATUTE." APPELLANT WAS NOT NOTIFIED UNTIL 1/17/90 WHEN HE RECEIVED THE FINAL ZBA DECISION AND ORDER. IT FOLLOWS THAT THE APPEAL IS THEREFORE TIMELY.

ALL PARTIES NOTIFIED. MR. MARUMOTO TO PREPARE THE ORDER. [Emphasis in original.]

The essence of the Order of Denial is that under Rule 72(b), Hawaii Rules of Civil Procedure (HRCP) (1980), the 30-day period for filing the notice of appeal under Hawaii Revised Statutes (HRS) § 91-14(b) (1985) begins when the notice of an administrative agency decision is actually received. As we will discuss below, the Order of Denial is contrary to the clear legislative intent of HRS § 91-14(b).

We state, first, the principles of law applicable to administrative appeals. The right to appeal from an administrative agency's decision is limited by the Hawaii Administrative Procedure Act, HRS, chapter 91. In re Eric G., 65 Haw. 219, 649 P.2d 1140 (1982). The law requires strict compliance with statutes creating the right to appeal from administrative agency decisions. DelVecchio v. Department of Income Maintenance, 18 Conn.App. 13, 555 A.2d 1007 (1989). See In re Tax Appeal of Lower Mapunapuna Tenants Ass'n, 73 Haw. 63, 828 P.2d 263 (1992). The time established by a statute for filing an appeal is mandatory, see In re Tax Appeal of Fasi, 63 Haw. 624, 634 P.2d 98 (1981), and the timely filing of a notice of appeal is fundamental to the court's jurisdiction to review an agency's decision. 2 Am.Jur.2d, Administrative Law § 718 (1962); see Life of the Land, Inc. v. Land Use Comm'n, 61 Haw. 3, 594 P.2d 1079 (1979). Where the statutory time requirement for filing a notice of appeal has not been met, the appeal must be dismissed. Donis v. Board of Examiners, 207 Conn. 674, 542 A.2d 726 (1988).

The Order of Denial misconstrued the relationship between HRS § 91-14(b) and Rule 72(b), HRCP.

HRS § 91-14(b) reads as follows:

(b) Except as otherwise provided herein, proceedings for review shall be instituted in the circuit court within thirty days after the preliminary ruling or within thirty days after service of the certified copy of the final decision and order of the agency pursuant to rule of court except where a statute provides for a direct appeal to the supreme court, which appeal shall be subject to chapter 602, and in such cases the appeal shall be in like manner as an appeal from the circuit court to the supreme court, including payment of the fee prescribed by section 607-5 for filing the notice of appeal (except in cases appealed under sections 11-51 and 40-91). The court in its discretion may permit other interested persons to intervene.

Rule 72(b), HRCP, provides as follows:

(b) Time. The notice of appeal shall be filed in the circuit court within 30 days after the person desiring to appeal is notified of the rendering or entry of the decision or order, or of the action taken, in the manner provided by statute.

Rule 72(b), HRCP, provides that the notice of appeal from the administrative agency decision must be filed within 30 days after notification of the agency's final decision "in the manner provided by statute." The statute, HRS § 91-14(b), provides that service of the agency decision shall be "pursuant to rule of court." The language of HRS §...