Nuuanu Valley Ass'n v. City of Honolulu, 28599.

CourtSupreme Court of Hawai'i
Citation119 Hawai'i 90,194 P.3d 531
Docket NumberNo. 28599.,28599.
PartiesNUUANU VALLEY ASSOCIATION, a Hawai`i non-profit corporation, Plaintiff-Appellant, v. CITY AND COUNTY OF HONOLULU; Henry Eng, Director of Department of Planning and Permitting in his official capacity; David Tanoue, Deputy Director of Department of Planning and Permitting in his official capacity, Defendants-Appellees, and Laumaka, LLC, Intervenor-Appellee, and John Doe 1-10; Jane Does 1-10; Doe Partnerships 1-10; Doe Corporations 1-10; and Doe Governmental Units 1-10, Defendants.
Decision Date24 October 2008

James J. Bickerton and Scott K. Saiki of Bickerton Lee Dang & Sullivan, Honolulu, for Plaintiff-Appellant Nuuanu Valley Association.

Don S. Kitaoka and Lori K.K. Sunakoda, Deputies Corporation Counsel, for Defendants-Appellees City and County of Honolulu, Henry Eng, and David Tanoue.

David B. Rosen of the Law Office of David B. Rosen, ALC, for Intervenor-Appellee Laumaka LLC.

MOON, C.J., LEVINSON, NAKAYAMA, and DUFFY, JJ. and ACOBA, J., concurring separately.

Opinion of the Court by NAKAYAMA, J.

Plaintiff-Appellant, Nuuanu Valley Association ("NVA"), appeals from the Circuit Court of the First Circuit's1 ("circuit court's") May 17, 2007 amended final judgment in favor of Defendants-Appellees City and County of Honolulu, Henry Eng, in his official capacity, and David Tanoue, in his official capacity (collectively, "Appellees"), and Intervenor-Appellee Laumaka, LLC ("Laumaka").2 On appeal, NVA presents the following points of error: (1) the Uniform Information Practices Act ("the UIPA"), as provided by Hawai`i Revised Statutes (HRS) Chapter 92F, mandates that "documents provided by private developers to [a government agency] become public records when received, and written communications to private developers become public records (not mere drafts) when transmitted"; (2) statutory "exceptions ... that would make these public records unavailable to the public for inspection" are inapplicable; (3) Appellees failed to follow its administrative rules and engaged in improper rule making; (4) development of the Laumaka subdivision will result in the "use" of state or county lands thereby triggering the environmental assessment ("EA") requirement of the Hawai`i Environmental Policy Act ("HEPA"); and (5) the circuit court abused its discretion when it denied NVA's motion for preliminary injunction. For the reasons that follow, we hold: (1) that prior to its acceptance, an engineering report submitted to a government agency in connection with a subdivision application, and any written comments made by the agency thereon, does not constitute a "government record" requiring disclosure pursuant to the UIPA; (2) that the circuit court erred in its determination that Appellees violated neither its administrative rules nor the Hawai`i Administrative Procedures Act ("HAPA"); (3) that Laumaka's subdivision does not "propose the use of state or county lands"; and (4) that NVA has not successfully carried its burden of showing irreparable damage for a preliminary injunction. Accordingly, we affirm in part and reverse in part the circuit court's May 17, 2007 amended final judgment.

I. BACKGROUND

The subject property of the instant case consists of approximately 45.9 acres of steep mountainside land in upper Nu'uanu valley. The property had been zoned for residential use since approximately 1943. In 2004, Puu Paka DP, LLC, the prior owner of the subject property, submitted an application to the Department of Planning and Permitting of the City and County of Honolulu ("DPP") for approval to develop a subdivision consisting of nine residential lots.

NVA is a Hawai`i non-profit organization whose members are homeowners and residents who live in Nu'uanu valley. On February 15, 2005, David Hall ("Hall"), a member of the NVA, submitted a letter to DPP requesting to inspect and obtain copies of all comments and engineering reports pertaining to Puu Paka DP, LLC's proposed subdivision.

In a letter dated February 25, 2005, DPP responded to NVA's letter, in pertinent part, as follows:

First, our subdivision files are not intended to be a central file for all documents, reports, drawings, comment sheets and correspondence. Documents, reports, drawings, comment sheets, and correspondence are usually kept separately in several areas, including the Civil Engineering Branch (CEB), Traffic Review Branch, Subdivision Branch, Wastewater Branch, and other agencies, such as the Board of Water Supply. Consequently, we apologize if there were some misconceptions about the completeness of our subdivision files.

Second, for reports and plans, which are still under review, we may not have them in our possession at all times. Our usual practice is to return these reports and plans with our comments marked thereon to the person or company who prepared them. For example, as of February 17, 2005, the CEB does not have a copy of the geotechnical report in our files, since it was returned to the consultant along with comments.

Third, our review comments, in addition to being directly marked on reports and plans, are usually summarized electronically in our system called "POSSE." Attached are copies of the electronic review comments that were not in our files on January 27 and 28, 2005.

Fourth, for security reasons, we ask that future requests for information be made through our Data Access and Imaging Branch....

The subdivision application submitted by Puu Paka DP, LLC was deferred on or about January 21, 2005, and subsequently expired on or about October 21, 2005. On June 17, 2005, the subject property was sold to Laumaka, who proceeded with Puu Paka DP, LLC's earlier plan to subdivide the property.

On October 27, 2005, Laumaka submitted a new application to DPP for subdivision of the subject property into nine residential lots. Thereafter, Hall submitted letters to DPP on, among other dates, November 16, 2005, requesting all engineering reports submitted in connection with Laumaka's proposed subdivision.

In a letter dated December 13, 2005, DPP responded to Hall's November 16, 2005 letter, as follows:

In response to your November 16, 2005 letter ..., any engineering report that is formally accepted by our department as part of a permit application is available for inspection and copying at the Data Access Imaging Branch. Engineering reports that may be in our possession at the time of public records request and which are being evaluated by the department as part of its decision for acceptance, are withheld from public disclosure as being part of the department's deliberative process. Once these reports have been formally accepted, they are available for inspection and copying.

On March 15, 2006, NVA provided notice to DPP of its intent to sue it for violation of the UIPA.

On March 17, 2006, DPP "accepted" a geotechnical report prepared for the subject property by Masa Fujioka and Associates. This report was made available to the public on the same day.

On March 23, 2006, NVA filed a motion for preliminary injunction and its complaint in the circuit court seeking declaratory and injunctive relief for Appellees' alleged violation of the UIPA and HEPA. NVA filed a first amended complaint on April 28, 2006, which sought the same relief for the following amended claims: (1) DPP failed to produce public records pursuant to the UIPA; (2) DPP's record policies violate the UIPA; (3) DPP failed to comply with its administrative rules and engaged in improper rule making; and (4) an environmental assessment should have been prepared pursuant to HEPA.

On April 20, 2006, DPP found that a "Preliminary Drainage Report" prepared by Mitsunaga and Associates for the subject property was "acceptable." Consistent with its departmental policies and procedures, the "Drainage Report" was made available to the public later that day.

On May 15, 2006, NVA's motion for preliminary injunction was denied after five days of hearing before the circuit court. Ultimately, at the May 15, 2005 hearing, the circuit court orally concluded that the reports requested by NVA were not records maintained by DPP, and NVA unsuccessfully met its burden to warrant the issuance of a preliminary injunction.

On May 19, 2006, tentative approval was granted by DPP for Laumaka's proposed subdivision subject to certain conditions.3

On June 28, 2006, the circuit court filed its order denying NVA's motion for preliminary injunction. Therein, the circuit court found, among other things, that the subdivision process consists of three-parts, as follows: (1) tentative approval; (2) approval of final engineering plans; and (3) approval of final map.

On October 27, 2006, NVA filed two motions for partial summary judgment, which contained a total of four "counts." Count one sought production of all government records in relation to the application for Laumaka's subdivision. Count two sought a declaratory ruling that DPP's practice of not disclosing engineering reports until they are accepted violates the UIPA. Count three sought a declaratory ruling that DPP's practice constitutes improper rule-making and violates DPP's administrative rules. Count four sought a declaratory ruling that Appellees are required to prepare an environmental assessment in connection with Laumaka's subdivision. NVA's first motion for partial summary judgment contained "counts" one through three and alleged that "[s]ummary judgment is appropriate because there is no genuine issue of material fact, and [NVA] is entitled to judgment as a matter of law." Its second motion for partial summary judgment did not contain a similar statement.

NVA's motions for partial summary judgment were orally denied by the circuit court at a hearing held on November 15, 2006. At this hearing, Appellees orally requested that the circuit court grant summary judgment in their favor. The circuit court decided to continue the hearing to November 20, 2006, in order to give NVA an...

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