Waianae Model Neighborhood Area Ass'n, Inc. v. City and County of Honolulu, 5170

• Decision Date: 03 October 1973
• Docket Number: No. 5170,5170
• Citation: 55 Haw. 40,514 P.2d 861
• Parties: WAIANAE MODEL NEIGHBORHOOD AREA ASSOCIATION, INC., Plaintiff-Appellant, v. CITY AND COUNTY OF HONOLULU, a municipal corporation, Defendant-Appellee.
• Court: Hawaii Supreme Court

Page 861

514 P.2d 861

55 Haw. 40

WAIANAE MODEL NEIGHBORHOOD AREA ASSOCIATION, INC., Plaintiff-Appellant, v. CITY AND COUNTY OF HONOLULU, a municipal corporation,

Defendant-Appellee.

No. 5170.

Supreme Court of Hawai'i.

Oct. 3, 1973.

Syllabus by the Court

1. Appellate court may affirm summary judgment on any ground which appears in the record, regardless of whether the trial court relied on it.

2. A corporate plaintiff has standing to sue where the pleadings contain sufficient showing of individualized harm to it and its members. In such case, it cannot be said that plaintiff sought to do no more than vindicate its own value preferences through the judicial process.

3. An act of an administrative official, done in good faith and within the ambit of his duty, upon an erroneous and debatable interpretation of an ordinance, is no more than an irregularity, and the validity of such act may not be questioned after expenditures have been made and contractual obligations have been incurred in reliance thereon in good faith.

Wesley K. C. Lau, Associate Counsel, Legal Aid Society of Hawaii, Waianae, for plaintiff-appellant.

Robert E. St. Sure, Deputy Corp. Counsel, City & County of Honolulu, Honolulu (Paul Devens, Corp. Counsel, Honolulu, with him on the brief), for defendant-appellee.

Before RICHARDSON, C. J., and MARUMOTO, ABE, LEVINSON and KOBAYASHI, JJ.

MARUMOTO, Justice.

This is an appeal by Waianae Model Neighborhood Area Association, Inc., plaintiff, from a circuit court order granting the motion for summary judgment filed by the City and County of Honolulu, defendant, in an action brought by plaintiff, for itself and as representative of a class comprised of persons similarly situated, against defendant, seeking a judgment declaring that the application for building permit for Makaha Beach Apartment Hotel filed by Ruddy F. Tongg, Jr., with defendant's building department did not qualify as an exemption from the Comprehensive Zoning Code, and directing defendant to revoke the building permit issued to Tongg pursuant to the application.

The Comprehensive Zoning Code, which will hereafter be referred to as CZC, is incorporated by reference in the Revised Ordinances of Honolulu 1969, as Chapter 21, §§ 21-101 through 21-1406. It went into effect on January 2, 1969. However, it exempted from its operation any structure for which an application for building permit was filed with the building department before the effective date, accompanied by plans, specifications, and structural computations in sufficient detail to enable a complete check regarding compliance with the applicable statutes, ordinances, codes, rules, and regulations by the governmental agencies concerned therewith.

The exemption was subject to certain limitations, among which was the limitation in paragraph (d) of § 21-1406, reading as follows: 'After the filing of an application, any failure to make any correction ordered by any department in the plans, specifications or structural computations within fourteen (14) calendar days after the date of such order shall nullify the exemption herein granted.'

The record in the case shows the following undisputed facts:

1. Plaintiff is a corporation incorporated for the purpose of promoting the general welfare of the community in which its members reside or own property and improving the quality of its environment and the living conditions therein. Its members consist of persons who reside, or own property, in the area affected by the construction of Makaha Beach Apartment Hotel.

2. Makaha Beach Apartment Hotel, as originally planned, did not conform to the CZC standards. However, on December 30, 1968, Tongg filed with the building department an application for building permit for the structure, accompanied by plans, specifications and structural calculations required to be submitted with such application.

3. Defendant's planning department was one of the governmental agencies concerned with the checking of the plans accompanying the application for building permit. The plans were submitted to that department on January 20, 1969. Upon reviewing the plans, the department requested Tongg to make certain corrections. Tongg made those corrections within 14 days after the request. Thereafter, the following actions were taken with regard to the plans:

(a) On or about April 28, 1969, the department reviewed Tongg's amended plans.

(b) On or about May 16, 1969, the department requested Tongg to make additional corrections.

(c) On May 19, 1969, Tongg's architect requested the department for an extension of time from 14 days to 60 days to make the additional corrections.

(d) On May 29, 1969, Edgar A. Hamasu, division head, land use controls of the department, granted the requested extension.

(e) Tongg submitted the second amended plans to the department within the extended time.

(f) On or about July 30, 1969, the department approved the second amended plans.

4. Plaintiff was incorporated on or about January 27, 1970.

5. The building department issued the building permit for Makaha Beach Apartment Hotel on or about May 20, 1970.

6. Plaintiff commenced this action on December 11, 1970.

The gravamen of plaintiff's complaint is that the building permit for Makaha Beach Apartment Hotel was invalidly issued because, although Tongg had originally brought the application therefor within the purview of the exemption from CZC by filing the same before the effective date of the code, the exemption thus obtained became a nullity under paragraph (d) of § 21-1406, when Tongg failed to make the additional corrections to the plans requested by the planning department on May 16, 1969, within 14 days after the date of the request.

In taking that position, plaintiff construed paragraph (d) of § 21-1406 as prohibiting the planning department from granting any extension of time to make the corrections to the plans requested by it beyond 14 days after the date of the request for corrections.

Defendant advanced two contentions in the circuit court in support of its motion for summary judgment. The first contention was that plaintiff had no standing in the case to represent the class of persons it purported to represent. The second was that the issuance of the building permit for Makaha Beach Apartment Hotel was not an act which was utterly void but was a mere irregularity, and Tongg's reliance thereon to his financial detriment estopped defendant from invalidating the same.

It appears from the transcript of the hearing on the motion for summary judgment that the circuit court granted the motion in accordance with defendant's first contention. The transcript shows the following colloquy between the court and plaintiff's counsel:

'THE COURT: We don't want your feeling either, what does the case law say as to your standing, to the class representation--

'MR. LAU: To the standing?

'THE COURT: To the class representation. You represent a class isn't that what you are coming under the rules?

'MR. LAU: Yes.

'THE COURT: I think there you failed miserably. The Court will grant summary judgment.'

We affirm the order appealed from, but not on the ground on which the circuit court appears to have based its decision. We think that, under the record in this case, defendant was entitled to summary judgment in accordance with its second...