Souza v. County of Hawaii

• Decision Date: 06 September 1988
• Docket Number: Civ. No. 88-00038.
• Citation: 694 F. Supp. 738
• Parties: Kenneth E. SOUZA, Jessie M. Souza, and Waikoloa Concrete and Aggregate, Inc., a Hawaii corporation, Plaintiffs, v. COUNTY OF HAWAII; County of Hawaii Planning Commission; County of Hawaii Planning Department; and Albert Lono Lyman, Individually, and in his official capacity as Planning Director of the County of Hawaii Planning Department, Defendants.
• Court: U.S. District Court — District of Hawaii

694 F. Supp. 738

Kenneth E. SOUZA, Jessie M. Souza, and Waikoloa Concrete and Aggregate, Inc., a Hawaii corporation, Plaintiffs, v. COUNTY OF HAWAII; County of Hawaii Planning Commission; County of Hawaii Planning Department; and Albert Lono Lyman, Individually, and in his official capacity as Planning Director of the County of Hawaii Planning Department, Defendants.

Civ. No. 88-00038.

United States District Court, D. Hawaii.

September 6, 1988.

Reinwald O'Connor Marrack Hoskins & Playdon, George W. Playdon, Honolulu, Hawaii, for plaintiffs.

John Wagner, Steven Christensen, Anson Lee, County of Hawaii, Hilo, Hawaii, for defendants.

ORDER

GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

EZRA, District Judge.

I. BACKGROUND.

A. Parties.

Plaintiff Waikoloa Concrete and Aggregate, Inc. (Waikoloa Concrete) operated a cement batching operation on the Island of Hawaii. Plaintiffs Kenneth E. Souza and Jessie Souza were owners and employees of Waikoloa Concrete.

Defendant County of Hawaii ("County") is a municipal corporation. Defendants County of Hawaii Planning Commission ("Planning Commission") and County of Hawaii Planning Department ("Planning Department") are administrative agencies of defendant County. Defendant Planning Director Albert Lono Lyman ("Lyman"), is the head of defendant Planning Department. State Land Use Commission (LUC) is a Hawaii state agency.

B. Facts.

In 1971, Boise Cascade Recreation Communities Group applied for a special permit to operate a quarry at Waikoloa, Hawaii. On October 14, 1971, the County Planning Commission tentatively established five conditions for the special permit, the fifth of which is germane to the matter before the court. The fifth condition provided: "The materials removed from the subject site shall be restricted to use within their own development." This would prevent the holder of the special permit from selling quarried materials off site.

On November 11, 1971, the County Planning Commission reconsidered the special permit application and eliminated the fifth condition. The State Land Use Commission (LUC) staff then drafted a report for the State's final approval of the permit. The State LUC staff report recommended including the fifth condition originally drafted into the permit by the County Planning Commission (10/14/71), but later deleted by the County Planning Commission (11/11/71).

On December 17, 1971, the State LUC approved the permit. The State LUC, however, approved the permit without the fifth condition, disregarding the recommendation of the State LUC staff report concerning the fifth condition. The permit as finally approved would have allowed its holder to market the quarried material off site.

The State LUC's final decision deleting the fifth condition was contained in the minutes of the State LUC's December 17, 1971 meeting. The State LUC did not provide the County with a copy of these minutes. The State LUC sent the County a letter, dated December 20, 1971, providing in pertinent part that the permit was approved, "subject to the conditions, as amended, imposed by the Hawaii Planning Commission." The approval letter also stated: "A copy of the staff report is enclosed for your information." The attached State LUC staff report recommended: "With regard to condition # 5 which was reconsidered and deleted by the Hawaii County Planning Commission at its meeting of November 11, 1971, the Land Use Commission staff feels that the restriction is justified and reasonable, and should be imposed...." Staff Report, at 6.

Boise Cascade's special permit ran from December 17, 1971 to December 17, 1976. The permit was given a series of five year extensions, apparently operative through 1991. Some time before 1981, Boise Cascade transferred its development holdings in Waikoloa and the special permit to Transcontinental Development Company ("TDC").

In 1985, plaintiffs Souzas started a business, Waikoloa Concrete, to prepare and sell batch concrete in West Hawaii on the Isalnd of Hawaii. In August, 1985, Waikoloa Concrete made arrangements with TDC for Waikoloa Concrete to operate batching facilities on the special permit site. Waikoloa Concrete obtained a building permit from the Planning Commission to assemble its batching facilities. Waikoloa Concrete then began selling batch concrete on and off site, i.e., in and outside of the Waikoloa development area.

Defendant Lyman as advised by his staff informed TDC that the fifth condition indicated on the original special permit authored by the County Planning Commission was in effect. TDC then informed the plaintiffs that the fifth condition was in effect. Plaintiff Souza contacted defendant Lyman, who also informed Souza that the fifth condition was in effect. In April, 1986, TDC applied through the defendant Planning Department that defendant Planning Commission amend the special permit by removing the fifth condition. The plaintiffs cooperated in this application.

In April 1986, defendant Lyman requested TDC to instruct plaintiff Waikoloa Concrete to end its off site sale of batched material. At a public hearing held on May 28, 1986, defendant Lyman and a staff member of defendant Planning Department told defendant Planning Commission that the fifth condition was in effect and prohibited the plaintiffs' off site sales. TDC thereafter withdrew its application to amend the special permit. Because of the defendants' position concerning the fifth condition, TDC notified the plaintiffs it would end its arrangement with them.

The plaintiffs were issued a cease and desist order by defendant Lyman on July 11, 1986, ordering the plaintiffs to end its off site operations by the middle of August 1986. The plaintiffs applied for an amendment to the special permit deleting the fifth condition. The cease and desist order was suspended on August 5, 1986, pending the decision of the County Commission on whether to delete the fifth condition. On August 28, 1986, defendant Planning Commission denied the plaintiffs' application. On October 16, 1986, defendant Planning Commission denied plaintiffs' request for deferral of the restriction of off site sales. On November 12, 1986, the defendants issued a cease and desist order to Waikoloa Concrete, directing it to end all off site sales of batched material.

The plaintiffs complied with the cease and desist order. The plaintiffs did not appeal the County's action under Haw.Rev. Stat. § 91-14. The plaintiffs liquidated Waikoloa Concrete's assets relating to batching operations and closed their batching business. On December 16, 1986, the plaintiffs learned the fifth condition was never in effect, and the defendants had mistakenly enforced a nonexistent condition.

On January 19, 1988, the plaintiffs filed their section 1983 suit in this court.

Additional facts are presented as required in the discussion below.

C. Previous Rulings Pertinent to Determination.

On July 11, 1988, the court heard the defendants' motion for summary judgment. See Order Denying in Part and Continuing in Part Defendants' Motion for Summary Judgment, July 15, 1988. The court considered the motion as one for summary judgment because materials external to the pleadings were considered by the court. Rosales v. United States, 824 F.2d 799, 802 (9th Cir.1987).

The defendants moved for summary judgment on the plaintiffs' 42 U.S.C. § 1983 suit, arguing the plaintiffs failed to raise a cognizable claim under the fifth and fourteenth amendments supporting their suit. The salient issue concerned the animus of defendant Lyman and his staff in mistakenly enforcing a nonexistent condition in a special land use permit. The court ruled the defendants had submitted materials sufficient to meet their initial burden of "identifying for the court those portions of the materials on file that it believes demonstrates the absence of any genuine issue of material fact," T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)), that defendant Lyman and his staff were not more than negligent in enforcing the nonexistent condition.

The court ruled because the defendants met the initial T.W. Elec. burden, the plaintiffs could not defeat summary judgment absent significant probative evidence supporting their claim that defendant Lyman and his staff were more than negligent. Commodity Futures Trading Comm'n v. Savage, 611 F.2d 270, 282 (9th Cir.1979). The court continued determination of this matter to allow the plaintiffs to conduct discovery and thereafter submit materials to meet their Commodity Futures counterburden concerning the animus of defendant Lyman and his staff. The court ruled the plaintiffs must raise a genuine issue of material fact that Lyman and his staff were more than negligent in mistakenly enforcing the nonexistent condition of the permit, citing Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986).

The court also continued its determinations of the good faith immunity of defendant Lyman, the viability of the plaintiffs' fifth amendment due process claims and fourteenth amendment procedural due process claims, and the dismissal the plaintiffs' pendent state claims.

D. Disposition of the Motion.

The court heard the defendants' continued motion for summary judgment on August 29, 1988. George Playdon appeared for the plaintiffs. Steven Christensen appeared for the defendants. After carefully considering the record and argument of counsel, the court finds and concludes as follows. The court GRANTS summary judgment to all defendants on the plaintiffs' section 1983 suit. The plaintiffs have not met their Commodity Futures counterburden of showing significant probative evidence that the defendants were more than negligent in enforcing the nonexistent condition in the special permit....