Save Sunset Beach Coalition v. City and County of Honolulu

• Citation: 102 Haw. 465,78 P.3d 1
• Decision Date: 20 October 2003
• Docket Number: No. 21332.,21332.
• Parties: SAVE SUNSET BEACH COALITION; Life of the Land; Larry McElheny; Benjamin Hopkins; and Peter Cole, Plaintiffs-Appellants, v. The CITY AND COUNTY OF HONOLULU; Obayashi Corporation; and Obayashi Hawai'i Corporation, Defendants-Appellees.
• Court: Supreme Court of Hawai'i

78 P.3d 1

102 Haw. 465

SAVE SUNSET BEACH COALITION; Life of the Land; Larry McElheny; Benjamin Hopkins; and Peter Cole, Plaintiffs-Appellants, v. The CITY AND COUNTY OF HONOLULU; Obayashi Corporation; and Obayashi Hawai'i Corporation, Defendants-Appellees.

No. 21332.

Supreme Court of Hawaii.

October 20, 2003.

William W. Saunders, Jr. and James J. Bickerton, Honolulu, (Bickerton Saunders Dang & Bouslog), on the briefs, for plaintiffs-appellants.

Jane Howell, Deputy Corporation Counsel, City & County of Honolulu, on the briefs, for defendant-appellee The City & County of Honolulu.

John T. Komeiji, Lyle Y. Harada, & Lloyd S. Yoshioka (Watanabe, Ing & Kawashima), on the briefs, for defendants-appellees Obayashi Corporation & Obayashi Hawai'i Corporation.

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

Opinion of the Court by ACOBA, J.

We hold that in connection with the complaint filed by Plaintiffs-Appellants Save Sunset Beach Coalition, Life of the Land,¹ Larry McElheny, Benjamin Hopkins, and Peter Cole (Plaintiffs), the first circuit court (the court) correctly applied the propositions stated below except for the last two; the effect of such error, however, was harmless.

First, the rezoning² by Defendant-Appellee City and County of Honolulu (the City) of 765 acres of land located on the North Shore of O'ahu and designated for "agricultural use"³ to a "country district" designation⁴ was a legislative act and thus is accorded deference on judicial appeal. Accordingly, the opponents of such a rezoning must demonstrate that the rezoning was "arbitrary, unreasonable or invalid[,]" Lum Yip Kee v. City and County of Honolulu, 70 Haw. 179, 187, 767 P.2d 815, 820 (1989), in order to have the rezoning vacated or reversed. Second, Article XI, section 3 of the Hawai'i State Constitution, which pertains to the preservation of agricultural lands and requires a two-thirds vote to approve any reclassification or rezoning of such lands, is not self-executing. Third, the four guidelines in a City zoning ordinance, ROH § 21-5.30(c),⁵ which concern the identification of so called "country district" lands, are directory and not mandatory. Fourth, the uses within a City designated "Country" zone may not be broader than the permitted uses authorized by HRS § 205-4.5 (2001), but may be more restrictive. Fifth, the specific issue of whether the uses permitted in country zoning as applied in this case is not ripe for review. Finally, whether an attorney-client privilege has been waived through an inadvertent disclosure of a protected item is judicially determined through a consideration of the circumstances surrounding the disclosure.

Accordingly, for the reasons stated herein, we affirm the court's January 30, 1998 final judgment.

I.

A.

Plaintiffs oppose a proposed residential development on state-designated agricultural district lands located on bluffs overlooking Sunset Beach. The land in question consists of several large parcels owned by Defendants-Appellees Obayashi Corporation and Obayashi Hawai'i Corporation (Obayshi). The total size of this area is approximately 1143.6 acres. The land itself is generally depicted as two plateaus, divided by cliffs and ravines. Obayashi attests that several types of intensive commercial farming were previously attempted on this property, but were abandoned due to "steep terrain, poor access, lack of appropriate irrigation, and the isolated pockets of good agricultural land."

In December of 1993, Obayashi proposed the development, designated as the "Lihi Lani Project," wherein agricultural activity would be integrated with 315 large acre country lots; fifty single family homes; eighty elderly rental units; fifty residences; a YMCA facility; and a variety of trails, parks, and open space. Of interest on this appeal, each proposed country lot contains land designated as an "agricultural easement," to be used for field stock and fruit trees. In addition, a profit sharing agreement is planned for the sale of agricultural products from the remaining acres, which are reserved solely for agricultural use. Plaintiffs contend that the proposed homes on these lots are expensive ranch-style houses, contrary to the intent of an agriculture district designation.

On October 26, 1994, the state Land Use Commission (LUC) approved a land use district boundary amendment⁶ that reclassified 57.3 acres of the property from agricultural to urban land use district.⁷ This approval is uncontested in the instant case. Before development could begin, Obayashi attempted to obtain from the City and County of Honolulu (the City) an amendment to the North Shore Development Plan Use Map,⁸ a Special Management Area Permit for 28 acres of land for the proposed elderly housing and the YMCA facility,⁹ and a zoning reclassification of several hundred acres of land from general agriculture (also known as "AG-2")¹⁰ to country designation. The State Department of Agriculture, pursuant to HRS § 141-1(8) (1993),¹¹ is charged with reviewing and making recommendations with respect to agricultural planning and development. It submitted a letter to the City stating that Lihi Lani project was "progressive" and more agriculturally defined then most approved agricultural subdivisions. After reviewing the proposed development, the City Planning Department and the City Department of Land Utilization recommended approval. Thereafter, several public hearings were held before the City Council at Honolulu Hale, and at the Kapolei and Haleiwa Elementary Schools. The City Council heard hours of testimony, including that of Plaintiffs.

On May 19, 1995, five days before the City Council voted on the proposed change, Plaintiffs filed a complaint in the court. Copies of this complaint were circulated to the City Council on the same day, as well as a letter from Plaintiffs' attorney suggesting that the City Council postpone its final vote on the Lihi Lani project so that the land use laws could be more closely studied in the hopes of "avoid[ing] a protracted legal battle." On May 24, 1995, the City Council passed, by a 5-to-4 vote, bill number 89 granting a development plan amendment, resolution number 94-232 approving a SMA permit, and bill number 88 to rezone 765 acres from AG-2 to country designation.

B.

On June 8, 1995, Plaintiffs filed an amended complaint challenging, in effect, the development plan amendment, the Special Management Area Permit, and the zoning reclassification on both constitutional and statutory grounds and requesting injunctive and declaratory relief.¹²

On December 5, 1995, a pretrial protective order was issued regarding a legal memorandum requested by the Plaintiffs from Obayashi, titled "State Agricultural District Restrictions." ¹³ This memorandum was listed as a reference in an environmental impact statement (EIS)¹⁴ prepared by University of Hawai'i Professor emeritus Dr. Frank Scott on behalf of Obayashi. The court found that the memorandum was inadvertently disclosed to Dr. Scott, but held that the attorney-client privilege was not waived.

On October 10, 1995, Obayashi filed a motion to dismiss or for summary judgment as to all counts. On January 5, 1996, the City filed a joinder in Obayashi's motion to dismiss or for summary judgment. On January 9, 1996, Plaintiffs filed a counter-motion for summary judgment.

On March 27, 1996, an order of dismissal was granted regarding counts II, III, IV, and V of the Plaintiffs' complaint on the ground that the issues raised were "premature."¹⁵ In the order, the court expressly concluded that "no formal development plan or permit application has been submitted or final agency action taken."¹⁶ The court also denied Plaintiffs' request for a temporary restraining order.

On September 9, 1997, a jury waived trial¹⁷ based on stipulated evidence was held on the remaining claims in the amended complaint, namely counts I, VI, VII, VIII, IX and X. On October 15, 1997, the court issued findings and conclusions in favor of Defendants-Appellees City and Obayashi (collectively Defendants) as to all the remaining counts. On January 30, 1998, final judgment was entered in favor of the City and Obayashi and against Plaintiffs. On February 4, 1998, Plaintiffs filed a notice of appeal.

II.

On appeal, Plaintiffs contest only the City's rezoning of 765 acres of land from AG-2 to country designation for the 315 country lots by City Council bill number 88,¹⁸ and the granting of the discovery order preventing the production of the legal memorandum prepared for Obayashi. Plaintiffs do not challenge the dismissal of counts II, III, IV, and V.

Plaintiffs raise essentially the following arguments: (1) the City's act of rezoning the land from agricultural to country was a quasi-judicial act and, thus, directly reviewable by this court on a de novo basis; (2) Article XI, section 3 of the Hawai'i State Constitution is self-executing and requires a two-thirds majority vote to approve the zoning change; (3) because no standards and criteria have been designated by the legislature pursuant to Article XI, section 3, no "important" agricultural lands may be rezoned; (4) there was no requirement that the legislature specifically designate agricultural lands as "important" under Article XI, section 3, as the drafters intended to adopt standards published just prior to the 1978 constitutional convention; (5) the Country zoning change conflicts with ROH § 21-5.30(c); (6) the City's approval of country zoning exceeded statutory authority granted it under HRS chapter 205 and was inconsistent with the State's agricultural district designation of the land; and (7) the court erred in issuing the December 5, 1995 protective order.¹⁹

III.

A.

As to Plaintiffs' first argument on appeal, and in connection with the proper standard of review, we must decide whether rezoning of property by a county ordinance is a quasi-judicial or legislative action. Plaintiffs argue that the rezoning affects...