Agenda - Planning Commission - 02/05/2015

Home

Zoning Bulletin December 25, 2014 I Volume 81 Issue 24 The Background/Facts: In 2007, D.R. Horton -Schuler Homes, LLC ("HSH") petitioned the Hawai'i's Land Use Commission (the "LUC"), asking to reclassify certain lands in 'Ewa District, O'ahu (the "Lands") from agricul- tural to urban use. HSH later amended its petition in September 2008. In Feb- ruary 2009, the LUC permitted Friends of Makakilo ("Friends") to intervene. In September 2009, the LUC granted Friends' motion to declare the petition deficient, with leave to HSH to amend. HSH filed subsequent amendments to its petition in May and July 2011. In September 2011, the Sierra Club and Senator Clayton Hee were granted intervenor status. On June 21, 2012, the LUC issued its decision (the "Decision"), granting HSH's petition to reclassify the Lands subject to certain conditions. A copy of the LUC's Decision was delivered to Friends on June 23, 2012. On July 20, 2012, Senator Hee and the Sierra Club filed a notice of appeal with the Circuit Court of the First Circuit, requesting judicial review of the De- cision ("Sierra Club appeal"). On August 2, 2012, Friends filed a "Notice of Cross Appeal to Circuit Court." On August 23 and 24, 2012, the LUC and HSH respectively filed motions to dismiss Friend's "cross-appeal." Among other things, the circuit court held, pursuant to HRS § 91-14, that: (1) Friend's "cross-appeal" was not allowed by law because aggrieved parties, as defined in Hawai'i Revised Statutes ("HRS") § 91-14, have a right to appeal an agency decision, but not a right to cross-appeal; and (2) Friend's "cross- appeal," when viewed simply as a request for judicial review, was untimely. Friends appealed. Friends argued that as an aggrieved party, pursuant to HRS § 91-15, it had a right to cross-appeal. Friends also argued that "the timely appeal by the Sierra Club/Hee divested the LUC of jurisdiction and cross- appeals were appropriate and allowed by Rule 4.1, Hawai'i Rules of Appellate Procedure ("H.R.A.P.") thereby extending the deadline for a cross appeal to 14 days after the original appeal deadline of 30 days." DECISION: Judgment of circuit court affirmed. The Supreme Court of Hawai'i first held that HRS § 91-14 specifically permits the filing of cross-appeals in circumstances where multiple parties request judicial review of an agency decision with the 30 -day window provided in HRS § 91714(b). As a matter of first impression (i.e., the first time the court addressed the issue), the Supreme Court of Hawai'i also held that a party seek- ing judicial review through cross-appeal was not entitled to a 14 -day extension beyond the 30 -day window in which to file a petition for judicial review. In so holding, the court interpreted the plain language of the statute. HRS 91-14 provides in part: "(a) Any person aggrieved by a final decision and order in a contested case . . . is entitled to judicial review thereof under this chapter; but nothing in this section shall be deemed to prevent resort to other means of review, redress, relief, or trial de novo, including the right of trial by jury, provided by law . (b) Except as otherwise provided herein, proceedings for review shall be instituted in the circuit court . . . within thirty days after service of the certified copy of the final decision and order of the agency pursuant to rule of court . . .. The court in its discretion may permit other interested persons to intervene." (HRS § 91- 14.) Looking at the dictionary meaning of "cross-appeal," the court found that 2014 Thomson Reuters 7