Neighborhood Bd. No. 24 (Waianae Coast) v. State Land Use Commission

• Decision Date: 22 January 1982
• Docket Number: No. 7112,7112
• Citation: 64 Haw. 265,639 P.2d 1097
• Parties: NEIGHBORHOOD BOARD NO. 24 (WAIANAE COAST); Waianae Hawaiian Civic Club; Nanakuli Hawaiian Homestead Association; Mikilua Farm Bureau; Waianae Land Use Concerns Committee, Appellants, v. STATE LAND USE COMMISSION, State of Hawaii; Oahu Corporation and City and County of Honolulu Planning Commission, Appellees.
• Court: Hawaii Supreme Court

Page 1097

639 P.2d 1097

64 Haw. 265

NEIGHBORHOOD BOARD NO. 24 (WAIANAE COAST); Waianae Hawaiian

Civic Club; Nanakuli Hawaiian Homestead

Association; Mikilua Farm Bureau;

Waianae Land Use Concerns Committee, Appellants, v. STATE LAND USE COMMISSION, State of Hawaii; Oahu Corporation and City and County of Honolulu Planning

Commission, Appellees.

No. 7112.

Supreme Court of Hawai'i.

Jan. 22, 1982.

Benjamin M. Matsubara, Honolulu (Ukishima & Matsubara, Honolulu, of counsel), for appellee Land Use Commission, State of Hawaii.

Steven Lim, Honolulu (Roger S. Moseley, Honolulu, on the brief), Deputies Corp. Counsel, for appellee City and County of Honolulu Planning Commission.

Leslie Fukumoto, Honolulu (Joined in answering briefs: Matthew S. K. Pyun, Jr., Pyun, Kim & Okimoto, Honolulu, of counsel), for appellee Oahu Corp.

Before RICHARDSON, C. J., LUM and NAKAMURA, JJ., and OGATA and MENOR, Retired Justices, Assigned by Reason of Vacancies.

Syllabus by the Court

1. In reviewing the planning commission and LUC decisions to grant applicant's special permit, the court is limited in its review to determining whether the administrative bodies committed errors of law or abused their discretion in granting the permit.

2. HRS § 205-6 allows the issuance of special permits for "certain unusual and reasonable uses within agricultural and rural districts other than those for which the district is classified," "but only when the use would promote the effectiveness and objectives of (HRS ch. 205)." Whether a particular use is "unusual and reasonable" is determined by applying the five guidelines set forth in the Land Use District Regulation § 5-2 to the proposed project.

3. Unlike a district boundary amendment, which is analogous to a rezoning in its effect of reclassifying land, and unlike a variance, which permits a landowner to use his property in a manner forbidden by ordinance or statute, a special permit allows the owner to put his land to a use expressly permitted by ordinance or statute on proof that certain facts and conditions exist, without altering the underlying zoning classification.

4. The special use technique may not be used to circumvent district boundary amendment procedures to allow ad hoc infusion of major urban uses into agricultural districts.

5. Use of special permit procedures to effectuate what amounts to a district boundary amendment frustrates the effectiveness and objectives of Hawaii's land use scheme.

LUM, Justice.

Appellants, five organizations composed of residents of Waianae, Nanakuli and Maili, Oahu, challenge the granting of a special permit pursuant to HRS § 205-6 (1976) to appellee Oahu Corporation ("Oahu") for construction of a major amusement park on 103 acres of land situated in an agricultural district ¹ at Kahe Point on the Waianae Coast. We conclude that a special permit should not have been granted to Oahu, and accordingly reverse the circuit court's decision upholding its issuance.

On March 3, 1977, Oahu submitted its application for a special permit to appellee, the Planning Commission of the City and County of Honolulu, seeking permission to develop a recreational theme park on the agricultural lands. As proposed, the park was to consist of cultural theme rides, restaurants, fast food shops, retail stores, exhibits, theaters, an amphitheater, a bank, nurseries, twelve acres of parking, a sewage treatment plant, and other related support services.

The proposed situs has been vacant and undeveloped since 1960. Its soils had been assigned a Land Study Bureau overall productivity rating of "E", or very poor for overall agricultural productivity with frequent rock out-croppings. ² Immediately south, between the subject parcel and Kamehameha Highway, are thirteen single-family homes which form part of an old agricultural subdivision. The lands further south of the site, although under sugar cultivation at the time of Oahu's application, were reclassified from an agricultural to an urban district in June 1977 to permit construction of a residential, commercial and resort development. Northwest of the site stands the Hawaiian Electric Kahe Power Plant, beyond and to the side of which lie lands designated for agricultural use.

The planning commission held its hearing on Oahu's application on June 21, 1977, at which time both oral and written testimony were received from various individuals and organizations concerning the proposed development. ³ The commission subsequently approved Oahu's application by a single vote margin, despite the fact that the City and County Department of Land Utilization and the Office of Environmental Quality Control had both recommended against the application's approval. The matter was then referred to appellee, the state Land Use Commission ("LUC"), for its review pursuant to HRS § 205-6. ⁴

Appellants thereafter filed a petition with the LUC for intervention and a contested case hearing, seeking an opportunity for formal participation in the LUC hearing on Oahu's application. The LUC denied appellants' petition and approved Oahu's application. Appellants challenged the LUC decision in circuit court which, on June 22, 1978, sustained the commission's conclusion.

This appeal followed. Appellants contest the issuance of the special permit on numerous grounds, including (1) that HRS ch. 205 requires Oahu to pursue a district boundary amendment rather than a special permit; (2) that Oahu's application failed to meet the substantive special permit requirements of HRS § 205-6 and the Land Use District Regulations; and (3) that appellants were denied their due process and statutory right to a contested case proceeding at the planning commission or LUC level. We find it unnecessary to address all of appellants' contentions, however, as we agree that Oahu's application did not meet the substantive requirements for special permits set forth in HRS § 205-6 and the Land Use District Regulations promulgated by the LUC. ⁵

In reviewing the decisions of the planning commission and the LUC approving Oahu's application, we are guided by the common law rule limiting the scope of judicial review of special permit approvals to a determination of whether the administrative bodies committed errors of law or abused their discretion in granting the permit. See Corwine v. Crow Wing County, 309 Minn. 345, 244 N.W.2d 482, 486 (1976); Hansen v. Ponticello, 37 A.D.2d 892, 325 N.Y.S.2d 795, 797 (1971); 3 A. Rathkopf, The Law of Zoning and Planning, § 42.07 at 42-49 to 42-75 (4th ed. 1981 & Supp. 1981); accord, Appeal of Kates, 38 Pa.Commw.Ct. 145, 393 A.2d 499, 501 (1978). ⁶ HRS § 205-1 (1976) and § 205-2 (1976), respectively, established the state Land Use Commission and conferred upon it the power to classify all of Hawaii's lands into urban, rural, agricultural or conservation districts based upon existing use, statutory guidelines, LUC standards, and the county general plans. See generally D. Mandelker, Environmental and Land Controls Legislation ch. VII (1976). Uses permitted for the Kahe Point agricultural lands are enumerated in HRS § 205-2 ⁷ which provides, in pertinent part, that

(a)gricultural districts shall include activities or uses as characterized by the cultivation of crops, orchards, forage, and forestry; farming activities or uses related to animal husbandry, and game and fish propagation; services and uses accessory to the above activities including but not limited to living quarters or dwellings, mills, storage facilities, processing facilities, and roadside stands for the sale of products grown on the premises; agricultural parts and open area recreational facilities.

Recognizing that a major recreational theme park together with its accompanying support facilities would not constitute a permissible use under HRS § 205-2, Oahu sought and obtained a special permit rather than a district boundary amendment, both of which are provided for in HRS ch. 205 to afford landowners relief from the statutory requirements for agricultural districts.

HRS § 205-6 allows the county planning commission and the LUC to issue special permits for "certain unusual and reasonable uses within agricultural and rural districts other than those for which the district is classified," "but only when the use would promote the effectiveness and objectives of (HRS ch. 205)." Whether a particular use is "unusual and reasonable" is determined by applying the five guidelines set forth in the Land Use District Regulation § 5-2 to the proposed project. § 5-2 requires the following:

(1) Such use shall not be contrary to the objectives sought to be accomplished by the Land Use Law and Regulations.

(2) That the desired use would not adversely affect surrounding property.

(3) Such use would not unreasonably burden public agencies to provide roads and streets, sewers, water, drainage and school improvements, and police and fire protection.

(4) Unusual conditions, trends and needs have arisen since the district boundaries and regulations were established.

(5) That the land upon which the proposed use is sought is unsuited for the uses permitted within the District.

The planning commission, adopting the conclusions of the City and County Department of Planning and Economic Development, specifically found that all of the criteria were met by the Kahe Point proposal, despite numerous counterstatements by the DLU and OEQC disputing the factual bases for these conclusions. We deem it unnecessary to review the evidence with respect to all five standards, however, as we are left with a definite and firm conviction that the recreational theme park proposal fails to comply with the first and critical requirement that the proposed use not run contrary to the objectives sought to be accomplished by the Land Use Laws and Regulations, the counterpart of the statutory mandate that the proposed use promote the effectiveness and objectives of HRS ch. 205.

The special use or exception...