Town v. Land Use Commission, 5388
| Decision Date | 19 June 1974 |
| Docket Number | No. 5388,5388 |
| Citation | 55 Haw. 538,524 P.2d 84 |
| Parties | Michael A. TOWN and Bonnie C. Town, Appellants, v. LAND USE COMMISSION et al., Appellees. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1. Where the language of the statute (HRS § 205-4) is plain and unambiguous that a specific time provision must be met, it is mandatory and not merely directory.
2. The adoption of district boundaries classifying lands into conservation, agricultural, rural or urban districts, or the amendment to said district boundaries is not a 'rule making' process within the meaning of HRS § 91-1(4).
3. A case involving an amendment to district boundaries which is challenged by an adjoining landowner having property interests in the outcome of said amendment is a 'contested case', within the meaning of HRS § 91-1(5).
4. All state and county boards, commissions, departments or offices must conform to the requirements of the Hawaii Administrative Procedure Act when acting in either a rule making capacity (quasilegislative), or in the adjudication of a contested case (quasi-judicial).
Michael A. Town, Wailuku, pro se, for appellants.
E. John McConnell, Jr., Deputy Atty. Gen. (George Pai, Atty. Gen., Honolulu, of counsel, Benjamin M. Matsbara, Deputy Atty. Gen., on the brief), for appellee Land Use Commission, State of Hawaii
Walter T. Shimoda, Wailuku, for appellees Daniel Fong and Haruo Fujitomo.
Before RICHARDSON, C. J., KOBAYASHI and OGATA, JJ., and Circuit Judge CHANG in place of LEVINSON, J., recused, and Circuit Judge HEEN assigned by reason of vacancy.
Michael A. Town (hereinafter appellant), with his wife Bonnie, brings this appeal before this court after motion for summary judgment was granted to the Land Use Commission of the State of Hawaii (hereinafter appellee) and other named defendants, Daniel Fong and Haruo Fujitomo, by the circuit court of the second circuit in the State of Hawaii.
On April 14, 1971, Ralph S. Yagi filed with the appellee a petition to amend the district designation for property located in the county of and on the island of Maui from its agricultural designation to a rural designation.
On April 15, 1971, the appellee informed Mr. Yagi by letter acknowledging the receipt On July 16, 1971, the appellee held a public hearing on Maui to consider the Yagi petition. Appellant, an adjoining landowner, and other interested parties were present at this hearing and spoke in opposition to the Yagi petition.
of the petition, and stating, 'After 45 but within 90 days following the public hearing the Land Use Commission is obliged to render a decision on your petition.'
A subsequent meeting was scheduled for October 8, 1971, on the island of Molokai to make a final decision on the Yagi petition. Appellant was present at the Molokai meeting; however, the decision on the petition was deferred at the request of Mr. Yagi.
Another meeting was scheduled for November 19, 1972, in Honolulu at which time the appellee scheduled a final decision on the Yagi petition. Appellant did not attend this meeting; however, he did write the appellee stating that it would be a violation of the Hawaii Administrative Procedure Act, HRS chapter 91, and a denial of due process if the petitioner were allowed to testify or give any further evidence on his petition. The decision on the petition was again deferred at the request of Mr. Yagi due to 'some unforeseen circumstances'.
A meeting was scheduled for January 7, 1972, in Hilo. Appellant was not present at this meeting; however, he did write to the appellee, renewing his objection to the taking of any testimony or further evidence from the petitioner. Mr. Yagi made an appearance at this meeting and requested permission to speak in behalf of his petition. After being informed that he would be allowed to speak provided that he did not attempt to introduce any new evidence, Mr. Yagi proceeded to rebut all statements made by the opposition to his petition and submitted documents for the consideration of the appellee, said documents including an unofficial survey of the three largest distributors of vegetables and fruits on the island of Maui, indicating that there was little or no demand for Kula grown fruits, and a pamphlet published by the Federal-State Market News Service.
The appellee's minutes of the January 7, 1972, meeting reveals that subsequent to the testimony given by Mr. Yagi, the following took place:
Since there was no further discussion, Vice-Chairman Tangen moved that this petition be approved on the following bases: matters of access and water can be worked out with the County; upon field investigation of the land under question, he was satisfied that this land is unsuitable for agricultural pursuits; and findings of the Maui County Planning Department regarding this request. He then elucidated that his motion for approval of the petition was 'not based on anything that was said here today because these facts were made known to us before.'
The motion to approve this petition was carried.
On March 21, 1972, appellant filed an appeal in the circuit court of the second circuit, State of Hawaii, Civil No. 1941, praying for reversal of the decision of the appellee on the Yagi petition. Both parties filed motions for summary judgment and the court granted the motion in favor of the appellee.
I. Whether the time period prescribed by HRS § 205-4 and Land Use Commission's State Land Use District Regulation 2.35 stating that the appellee 'shall' render a decision not less than 45 days after, but within 90 days of the public hearing, is mandatory or directory.
II. Whether the Land Use Commission acted properly under the applicable provision of the Hawaii Administrative Procedure Act, HRS chapter 91, at the January 7, 1972, meeting.
Appellant's primary contention is that under Land Use Commission's State Land Use District Regulation 2.35 1 and HRS § 205-4, prior to 1972 amendment, 2 the appellee was required as a matter of law to render a decision on the Yagi petition within the prescribed time period. Appellant contends that the sentence stating: 'Within a period of not more than ninety days and not less than forty-five days after the hearing, the commission shall act upon the petition for change' (emphasis added), is a mandatory provision of the statute rather than directory and should the appellee fail to act within the prescribed period, any decision rendered thereafter is null and void.
In Hawaii Corporation v. Kim, 53 Haw. 659, 500 P.2d 1165 (1972), a case involving the failure of the appellant to give notice of its intention to bid on a state contract by the specified statutory deadline which was not to be later than six days prior to the opening of bids, we held:
We are of the opinion that the time specified in HRS § 103-25, as implemented, is mandatory and not subject to waiver by the appellee. HRS § 103-25 clearly provides '. . . he shall, not less than six calender days prior to the day designated for opening bids, give written notice . . ..' (Emphasis added.) The language of the statute is plain and unambiguous that the prospective bidder must meet the time specified in the statute in giving his written notice of his intention to bid to have his bid considered by the officer charged with letting the contract for the construction . . .. (53 Haw. at 666, 500 P.2d at 1169)
In Territory v. Fasi, 40 Haw. 478 (1954), this court stated at 484:
The language is clear and explicit. The language is as mandatory as The Ten Commandments. (Emphasis added.)
See also, Maui County v. do Rego, 24 Haw. 608 (1919).
The language of appellee's Regulation 2.35 and HRS § 205-4 with regard to the time provision is plain and unambiguous with no implication of a contradiction in its intent. As stated in Territory v. Fasi, supra, at 483-484, citing Nichols, Ltd. v. Vannatta, 33 Haw. 602, 606 (1935), with approval:
'* * * neither official construction nor usage, no matter how long indulged in, can be successfully invoked to defeat the purpose and effect of a statute which is free from ambiguity, nor will the courts be influenced by the construction placed upon a statute by the officials whose duty it is to execute it where such construction is manifestly incorrect.'
We are of the opinion that the time period requiring a decision to be rendered after 45 days and before 90 days has elapsed following the public hearing clearly is a mandatory requirement and not merely directory, subject to the waiver by the applicant. 3
We are of the further opinion that the argument by counsel for appellee during oral argument contending that since appellant's only interest in the case was in preserving the status quo and that any delay on the decision by the commission was to his advantage and, therefore, the time limitation may be waived solely by the applicant, is without merit. An interested party to a proceeding for a change in boundary, especially where he is an adjoining property owner, has an inherent interest in the decision no matter what that decision may be and he is entitled to have that decision within the specified period of time. The impact that the change in boundary will have, if approved, to the use and value of adjoining property are factors that must be considered. The interested party should not be placed in a state of limbo at the discretion of the applicant or the appellee, and the time limitations prescribed by HRS § 205-4 and LUC Regulation 2.35 insures the protection of both the...
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