Electronically Filed Intermediate Court of Appeals



NO. 29696* DOUGLAS LEONE and PATRICIA A. PERKINS-LEONE, as Trustees under that certain unrecorded Leone-Perkins Family Trust dated August 26, 1999, as amended, Plaintiffs-Appellants v. COUNTY OF MAUl, a political subdivision of the State of Hawai'i, WILLIAM SPENCE, in his capacity as Director of the Department of Planning of the County of Maui, DOE ENTITIES I-50, Defendants-Appellees (CIVIL NO. 07-1-0496(1)) and WILLIAM L. LARSON and NANCY H. LARSON, as Trustees under that certain unrecorded Larson Family Trust dated October 30, 1992, as amended, Plaintiffs-Appellants v. COUNTY OF MAUl, a political subdivision of the State of Hawai'i, WILLIAM SPENCE, in his capacity as Director of the Department of Planning of the County of Maui, DOE ENTITIES I-50, Defendants-Appellees (CIVIL NO. 09-1-0413(2)) APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CIVIL NOS. 07-1-0496(3) and 09-1-0413(2)) JUNE 22, 2012 NAKAMURA, CHIEF JUDGE, FOLEY and LEONARD, JJ.

* On November

9, 2010, Case Nos. 29696

and 30159 were consolidated

in Case No.


In this consolidated Douglas under August Leone and Patricia that certain unrecorded

Plaintiffs-Appellants (Leones), as Trustees Family Trust dated Court of the Final

A. Perkins-Leone Leone-Perkins appeal

26, 1999, as amended, dismissing L. Larson

from the Circuit

Second Circuit's Judgment William due process,

(Circuit Court) June 5, 2009 Amended their inverse condemnation,

equal protection,

and 42 U. S. C.

1983 claims. Larson



and Nancy H. Larson unrecorded appeal dismissing

(Larsons), as Trustees Family Trust dated October Court's October 15, condemnation, equal

under that certain 2009 Final Judgment protection, in relevant part,

30, 1992, as amended,

from the Circuit their inverse

due process,

and 42 U.S.C.

1983 claims, which are, claims.~/ Appellants) argue their claims grounds. judgment for lack against of Spence


to the Leones'

The Leones that the Circuit of subject matter request

and Larsons


Court erred in dismissing jurisdiction on ripeness

They also

that this court grant partial County of Maui of Planning


Defendants-Appellees the Department (Director) reasons However, summary remand

(Maui County)

and Director For the

of the County of Maui, William condemnation. that the Circuit request

on their claims of inverse below, we conclude Appellants'


Court erred

in dismissing

inverse condemnation we vacate

claims as unripe. for partial and

we decline judgment.

to grant Appellants' Accordingly, proceedings.

the judgments

for further

11 ~/

The Honorable The Honorable


E. Cardoza

presided. presided.


R. Raffetto

1./ During the pendency of this Appeal, William Spence, Director of the Department of Planning of the County of Maui, succeeded Jeffrey S. Hunt. Thus, pursuant to Hawai'i Rules of Appellate Procedure (HRAP) Rule 43(c), Spence has been substituted automatically for Hunt in this case.




This appeal arises to create a public 1998 Kihei-Makena beach County the construction Council authorizing creation Council creation Community

from Maui County's Plan

troubled Maui.

attempts The the

park at Palauea Beach in Makena,

(Community Plan) assigned residences.

lots a "park" land use designation, of single-family (County Council) to acquire

which does not permit In 1996, the Maui No. 96-121, lots for the and the County for the No. 99Beach the

adopted Resolution the Palauea Beach on Maui," support"

the Mayor

of a public park. noted "an outpouring

At that time, Palauea Beach was "one of community

of the last undeveloped

leeward beaches

of a beach park. In 1999, the County Council adopted Resolution Palauea raised two of the sufficient its "official policy" Despite the Mayor's present to "preserve "appropriately financial to acquire

183, affirming in South Maui." concerns County Palauea January Council Beach

about the County's lots.


urged the administration However, it was unable

Maui County purchased

the two lots in

of 2000.

to allocate

funds to purchase to private February

the remaining

seven lots, which were then sold Palauea Beach parcel purchased Palauea 15 in 16 "Hotel-

individuals. The Leones purchased The Larsons of 2000. Beach parcels beneficial these parcels "park" in

of 2000.

and 17 in December Multifamily," uses, including

Their properties residences.

are zoned


a variety

of economically However,


are among nine Palauea the Community management Act (CZMA). Plan.

Beach lots that are designated lots are also located

The Palauea Beach area"

in a "special Zone Management

(SMA) under the Hawai'i Coastal Revised Statutes (HRS)

See Hawaii



The CZMA was enacted, Management


to the federal shoreline



Act, to protect


and coastal

resources HRS by establishing (2001). heightened land use controls delegated on areas.


within protected

zones, or special management to the county planning permit requirements HRS


The Legislature HRS


for administering commissions

the SMA provisions

or councils.

20SA-22. for 20SA-28, inter areas.

The CZMA imposes IIdevelopmentsll within 20SA-26 authority impact, special (2001). alia, single-family


special management unless

The term IIdevelopmentllexpressly residences, construction HRS 20SA-22

excludes, county

the relevant or ecological depending

finds the proposed area[.]"

may have a IIcumulative effect on a on the nature the (2001 & Supp. 2011). major use for

or a significant management


Three types of SMA permits of the proposed permits, county issuing development: and emergency SMA permits.

are available, Id.

minor use permits,

use permits. HRS

The CZMA empowers procedures


to adopt rules implementing

20SA-29 (a) (2001) the CZMA, Maui County offers to seek use is not a "development" of Planning Commission Special Rule (SMA inter alia, landowners

In its rules implementing an assessment a determination under HRS Management Rule)



that their proposed

20SA-22. Area Rules

See Maui Department

for the Maui Planning



Upon review of an assessment must make a determination that the

application, proposed

the Director

use either:
Is exempt from the requirements because it is not a development 205A-22, HRS, as amendedi of this chapter pursuant to section


Requires a special management area minor permit pursuant to section 205A-22, HRS, as amended, which shall be processed in accordance with section 12-20214i


Requires a special management area use permit pursuant to section 205A-22, HRS, as amended, which shall be processed in accordance with sections 12-202-13 and





Requires a special management area emergency permit pursuant to section 205A-22, HRS, as amended, which shall be processed in accordance with section 12-20216; or Cannot be processed because the proposed action is not consistent with the county general plan, community plan, and zoning, unless a general plan, community plan, or zoning application for an appropriate amendment is processed concurrently with the SMA permit application.


SMA Rule 12-202-12 (f) (emphasis added) . Appellants construct properties. changing requisite to do so. "residential." and other Palauea residences Beach lot owners sought to for single-family the Community environmental However, assessment studies advocated on their respective a process from "park" to Appellants, refused funded the the Maui County was unable to accept Several process as a additional

The Director, Property

inter alia, initiated including because Commission

Plan designation owners, assessment

the Planning

environmental archaeological commissioners deliberate

and instead


and historical for prolonging lots.


the amendment


to preserve

the status quo - a de facto beach As one commissioner explained:

park on the privately-owned

So if we decide on no action on this thing then the whole beach would remain as it is now and they would not be able to build on the land that they own. Granted, we can't buy it but if we say no you can't develop it then we then have access to it, at least the beach.

This strategy utilize moving [the] beach homes. forward with constructing facto parking


"allow the people commissioner

of Maui to owners that lots from

area" while preventing Another the process



would result

in a loss of the "de for parking. the the

that people

are enjoying expressly

now" on the private

and could force Maui County At least one commissioner public's illegal camping, defecating, and parking

to use its own parcels

sought to preserve beach

which had resulted

in littering, lots, bemoaning

on the private


FOR PUBLICATION landowners' trespassers. resort

IN WEST'S HA WAI'I REPORTS AND PACIFIC REPORTER to hiring security guards to remove the

kppellants proposed Director


filed assessment

applications that their The "park" claims under alleging inter alia,

under SMA Rule 12-202-12, use is exempt rejected

seeking a determination applications Plan.if

from the SMA permit

requirements. because,


the proposed designation article I,

use was inconsistent in the Community

with the properties'


then filed inverse condemnation to the United

20 of the Hawai'i Constitution had engaged in regulatory

and the Fifth and takings by depriving They also violations damages, the Maui for



States Constitution, viable use.

that Maui County their properties asserted and, pursuant attorneys' County summary

of any economically

equal protection to 42 U.S.C.

and substantive

due process

1983, sought compensatory damages. argument In both cases, or, in the alternative,

fees, and punitive

filed motions judgment. claims

to dismiss

The County's

in both cases was that they failed to exhaust in both cases grounds. because namely: Commission; Plan It

Appellants' available

were not ripe because remedies. Court dismissed

administrative The Circuit

all claims

for lack of subject concluded Appellants (2) waiving application; to change failed



on ripeness

that the claims were unripe to exhaust the Director's and decision

for adjudication remedies, to the Planning


(1) appealing



and submitting

an SMA permit

(3) seeking an amendment designation

to the Community

the properties'

from "park" to

!/ The Larsons' assessment application apparently did not comply with certain other requirements of SMA Rule 12-202-12. However, upon the Director's determination that the application could not be processed due to inconsistency with the Community Plan, any other deficiencies became irrelevant to the ripeness analysis because, even if such deficiencies were remedied, the application could not be processed.


FOR PUBLICATION "residential." such remedies II.

IN WEST'S HAWAI'I REPORTS The court rejected

AND PACIFIC REPORTER contention that


would be futile. and Larsons timely filed notices of appeal.

The Leones POINTS ON APPEAL Appellants' adjudication. points (1) were required (2) Appellants' Maui Planning (3) Appellants'

core argument

on appeal

is that the Circuit for raise the following that they remediesi that to the and rendered

Court erred in concluding of error: The Circuit to exhaust The Circuit Commission

their claims were unripe Appellants

More specifically,

Court erred in concluding administrative Court erred in concluding the Director's

all available


to appeal

determination that


their claims unripei plan amendment

The Circuit

Court erred in concluding


to seek a community OF REVIEW that ripeness

their claims unripe. III. APPLICABLE matter STANDARD "It is axiomatic jurisdiction." "Whether of Parks & Recreation, (2009) . is a question Dep't of Human (2008) IV. DISCUSSION The Circuit Appellants' Court lacked appeal, A. claims subject Court's matter sole determination was that the Circuit on this were not ripe and, therefore, jurisdiction. only that issue. and Regulatory to the United Takings Amendment, [shall not] be States Constitution, is an issue of subject Dep't


v. City & Cnty. of Honolulu, subject matter

121 Hawai'i 33, 39, 211 P.3d 750, 756 jurisdiction

a court possesses

of law reviewable Servs.,

de novo."

Kaho'ohanohano omitted) .

117 Hawai'i 262, 281, 178 P.3d 538, 557 marks and citation

(internal quotation


we will consider Inverse


The Fifth Amendment made applicable provides, in relevant

to the states by the Fourteenth

part, that "private property


FOR PUBLICATION taken for public



just compensation." likewise provides: for public

20 of the Hawai'i Constitution

"Private use without

property property, purpose" ~,

shall not be taken or damaged but it is subject

just compensation."

Thus, a governmental

body can take private of a "public owner. See, (2005)

to the requirements to the property

and "just compensation" U.S.A. the Takings

Lingle v. Chevron Within

Inc., 544 U.S. 528, 537-38 parameters,


Clause of the Fifth Amendment) . the State of domain by property, not the power of eminent of private

these constitutional

Hawai'i or any county may exercise instituting specifically proceeding recover domain. "inverse" government proceedings provided as set forth in HRS Chapter 101

for the condemnation by statute, an "inverse

(Eminent Domain).



is the means by which a property of property for public use without exercising 332

owner can seek to the power of eminent (defining in

the value

that has been taken by the (9th ed. 2009) Court's

See Black's Until

Law Dictionary

condemnation). the United States Supreme invasion decision Coal Co. v. Mahon, or physical 260 U.S. 393 (1922), only the Lingle, 544 U.S. at land

Pennsylvania direct 537. property

appropriation Beginning

of privately-held in Pennsylvania the use of the

was considered

to effect a taking. Holmes's

with Justice


Coal, the Supreme use regulations property taking"

Court recognized

that, in some instances, a "regulatory

can go "too far" and thus reduce that it constitutes just compensation

to such an extent requiring citing,

under the Fifth Amendment. Coal, 260 U.S. at An Introduction Takings:

Id. at 537-39, and Overview, categories

inter alia, Pennsylvania

413, 415; see also David L. Callies, The Supreme "regulations [] compel

24 U. Haw. L. Rev. 441, 443 Court has recognized regulatory the property

(2002). at least two (1) where

of compensable


owner to suffer a physical


FOR PUBLICATION 'invasion' intrusion"; beneficial Coastal



of his property and or productive

(2) "where regulation use of land." appear 505 U.S. 1003, 1015

denies all economically Lucas v. South Carolina that, in denying them (1992) (citations omitted). residence, Maui County


In this case, Appellants the opportunity has deprived property. B. property taking, (1985).

to contend

to build a single-family

them of all economically


use of their

Ripeness The Supreme Court has further held that, before a suit seeking Williamson compensation a owner may initiate for a

the claim must be ripe. A claim

Cnty. Reg'l Planning effects a with at

Comm'n v. Hamilton taking becomes implementing regarding issue." Planning because unripe residential Id.

Bank of Johnson

City, 473 U.S. 172, 186 of a regulation entity charged

that the application

ripe when

"the government

the regulations In Williamson, homes refused

has reached a final decision to the property sought to develop The plat claims were variances, at a Id. at the respondent to approve to various

the application

of the regulations

on its tract of land. to conform

Id. at 178-81. the preliminary subdivision

Commission it failed


Id. at 181, 187-88. because arises and thus the decision Ripeness final, definitive regulations 191.

The Court held that the takings was not final. regarding

the respondent

failed to seek available authority

Id. at 188, 193-94. "has arrived how it will apply the land in question."

when the land-use position

at issue to the particular

2./ As the only issue before us is whether Appellants' claims are ripe for adjudication, and Appellants' claim that they have been deprived of all economically beneficial use, we need not address the distinction between total takings and partial takings. See generally Callies, Takings, 24 U. Haw. L. Rev. at 445-50.




AND PACIFIC REPORTER in the nature of Absent a final impact of v. Rhode

This finality the Takings decision, Island, whether Clause courts

is rooted examine Courts


Id. at 190-91. at issue.

cannot accurately 606, 618 (2001).

the economic Id.; Palazzolo

the regulation

on the property

533 U.S.

cannot determine agency has

a land use restriction a regulatory

goes "too far," so as to extends. MacDonald, (1986) (quoting

constitute determined Sommer whether inverse

taking, until the appropriate 477 U.S. 340, 348

just how far the regulation Coal, 260 U.S. at 415). use" remains, inquiry.

Frates v. Yolo County, any "beneficial condemnation


Nor can they determine a core aspect of the 473 U.S. at 189 n.11. is dependent a Id. claim itself. on a is therefore

Williamson, Ripeness


the "just compensation" Id. at 190-91. to the examination


final decision. prerequisite degree

of the takings

Moreover, of discretion. as applied doctrine, opportunity Id. procedures, regulation." to modify property. permit "the nature

land use determinations Palazzolo, deprive discretion in inverse condemnation land-use

often involve a high The ripeness that of the cases, ensures

533 U.S. at 620.

courts do not prematurely to exercise must Id. The relevant land-use


in favor of the landowner. utilizing reasonable the ability discern However, to "the reach of a challenged authority retains


first have decided If the land-use its decision, Sommer of permitted

or revoke MacDonald,

a court cannot possibly development" 477 U.S. at 351.

and extent

on the subject

& Frates,

"once it becomes are known C.

clear that the agency

lacks the discretion a takings

any development,

or the permissible Palazzolo, Exhaustion

uses of the property claim is

to a reasonable Ripeness between versus

degree of certainty,

likely to have ripened." The Supreme distinction

533 U.S. at 620. of Administrative recognized Remedies the of

Court in Williamson doctrine

the ripeness

and the exhaustion


FOR PUBLICATION administrative respondent "because remedies doing

IN WEST'S HAWAI'I REPORTS Williamson, argued



473 U.S. at 192-93. 496 (1982), the

Patsy v. Florida seek variances

Board of Regents,

457 U.S.

in Williamson

that it should not be required it to develop upon 42 U.S.C. exhaust

that would have allowed that a plaintiff a

its property

its suit is predicated before bringing

§ 1983, and there The and, in

is no requirement Court explained exhaustion:

rd. at 192.

1983 action."

why that assertion the difference

could not be sustained between ripeness and

so, explained

The question whether administrative remedies must be exhausted is conceptually distinct, however, from the question whether an administrative action must be final before it is judicially reviewable. While the policies underlying the two concepts often overlap, the finality requirement is concerned with whether the initial decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury; the exhaustion requirement generally refers to administrative and judicial procedures by which an injured party may seek review of an adverse decision and obtain a remedy if the decision is found to be unlawful or otherwise inappropriate. Patsy concerned the latter, not the former. The difference is best illustrated by comparing the procedure for seeking a variance with the procedures that, under Patsy, respondent would not be required to exhaust. While it appears that the State provides procedures by which an aggrieved property owner may seek a declaratory judgment regarding the validity of zoning and planning actions taken by county authorities. ., respondent would not be required to resort to those procedures before bringing its § 1983 action, because those procedures clearly are remedial. Similarly, respondent would not be reguired to appeal the Commission's rejection of the preliminary plat to the Board of Zoning Appeals, because the Board was empowered, at most, to review that rejection, not to participate in the Commission's decisionmaking. Resort to those procedures would result in a judgment whether the Commission's actions violated any of respondent's rights. In contrast, resort to the procedure for obtaining variances would result in a conclusive determination by the Commission whether it would allow respondent to develop the subdivision in the manner respondent proposed. The Commission's refusal to approve the preliminary plat does not determine that issue; it prevents respondent from developing its subdivision without obtaining the necessary variances, but leaves open the possibility that respondent may develop the subdivision according to its plat after obtaining the variances. In short, the Commission's denial of approval does not conclusively



determine whether respondent will be denied all reasonable beneficial use of its property, and therefore is not a final, reviewable decision.

Williamson, simply

473 U.S. 192-94 Thus, ripeness,

(citations omitted; decision


added) Y

in the context of a takings



a final, definitive, regarding

by the initial which inflicts an

land-use actual, variance decision decision decision

decision-maker concrete injury.

how it will apply the scheme allows law, then a restriction on the is not a final for a


at issue to the subject property, If the regulatory a variance of the land-use

from the requirements regarding is made,

that does not foreclose However, no appeal

the extent of governmental is required,

subject property. declaratory exhaustion judicial decision. courts. Although in accord. remedy Under is provided

as noted above, once that final and no collateral of the land ripe. seeks the The the application claim to become when a party

judgment doctrine, Thus,

action attacking for the takings by contrast,

use law is required, review


of the substance exhaustion process

of an adverse before

administrative within relief from the

of any appeals permitted seeking


is required


less explicitly, doctrine, a claimant

Hawai'i case law is "if an administrative first

the exhaustion by statute, v. Aona,

must seek relief relief is

from the administrative available." 509 (2009) such cases, exhaustion Williams

body before


121 Hawai'i 1, 9, 210 P.3d SOl, marks and citation economy, omitted). Id. In of In "the doctrine

(internal quotation in the interest temporarily divests

of judicial

a court of jurisdiction."

Kona Old Hawaiian

Trails Group v. Lyman,

69 Haw. 81, 734 P.2d 161

~/ Williamson enunciated a second barrier to ripeness in federal court takings cases, which is that the plaintiff must first seek compensation through the procedures that a state provides for seeking just compensation, or demonstrate that such procedures are unavailable or inadequate. Williamson, 473 U.S. at 194 97. This second requirement is plainly inapplicable to state court proceedings.

(1987), the Hawai'i Supreme jurisdiction" cases! in the courts," Court discussed "primary cognizable of Id. of the in resolution

in which claims are "originally requires to administrative

but their enforcement

issues that have been delegated at 93, 734 P.2d at 168 should suspend exhaustion issues the agency the first instance not interfere administrative at 169 comity designed administrative authority. land-use Where 6(c) provide intervention competence P.2d at 169 Accordingly, situation! remedies, sought relief review pending is empowered provides

agencies. disposition Similarly,

(citation omitted). to resolve.

In such cases, courts Id.

the administrative


that where a claim is "cognizable agency alone"! decision-making

by an administrative

courts may

in the agency's remedies omitted). to outline agencies

until all relevant Id. at 93, 734 P.2d are doctrines between spheres of of a of courts and

have been exhausted. These principles the relationship


and secure their proper seek to challenge for judicial

Id. at 93, 734 P.2d at 168. landowners the decision under the CZMA, HRS sections review. 91-14 and 205ASee Kona Old, 69 judicial


the mechanism in matters

Haw. at 91-93,

734 P.2d at 167-69.

This review requires department."

that have been placed and citation

"within the special Id. at 93, 734 omitted). in this administrative Id. but that they have

of the county planning (internal quotations for courts landowners including

to exercise


must first demonstrate

on their dispute

through available

any administrative

review process. authority!

On the other hand, where landowners the substance decision, operates of the decision of the land-use instead raise constitutional the doctrines to "prevent are not implicated. adjudication,

do not challenge

claims based on the effect of the and primary jurisdiction doctrine

of exhaustion

In such cases, the ripeness courts! through avoidance themselves

of premature

from entangling

in abstract


FOR PUBLICATION disagreements the agencies decision Kamikawa,


AND PACIFIC REPORTER and also to protect felt in a concrete (2000) (citation only requires rd.; accord "the on the position

over administrative from judicial formalized


until an administrative

has been

and its effects

way by the challenging and internal determination Williamson, initial ripeness quotation


Grace Bus. Dev. Corp. v. Ripeness it.

92 Hawai'i 608, 612, 994 P.2d 540,544 marks omitted). agency make a formal, the party before

that the appropriate

final, concrete

that affects 473 U.S. at 193

(takings claim is ripe when at a definitive injury"). a formal, concrete

decisionmaker issue before

has arrived an actual,

issue that inflicts determination properties. D. Director's constituted subject U.S. at 186. concluded, Appellants appeal Plan. 1. rules, Appellants Application Turning refusal

Thus, the use of their

us is whether

final, concrete

has been made affecting of the Ripeness

Appellants' Doctrine

to the case at hand, we must decide whether to process Appellants' assessment regarding the application at issue. of the


applications 473

final decisions


to the properties

Williamson, Court

Maui County argues, to exhaust

and the Circuit

that Appellants' failed failed

claims are not ripe because: the administrative to the Commission; and

(1) (2)

remedy of an

of the Director's


to apply for an Amendment Decision whether,

to the Community

The Director's dispute

Was a Final Decision under the applicable to the Commission of the Appellants that the to other Maui County cites SMA

The parties an appeal was available director's contend, appeals

from the Director's which provides


to Appellants

in this case.

Rule 12-202-26,

that an "[a]ppeal


may be made to the commission." of statutory construction,

based on arguments process

set forth in SMA Rule 12-202-26






of the SMA Rules, but that it does not apply to the decision, under SMA Rule 12-202-12, assessment Plan. applications concerning We need not resolve argument to whether remedies refusing to Appellants' due to inconsistency this issue. to the had judicial appealability

Director's process

with the Community Commission exhausted review would

Maui County's

be pertinent

an applicant

its administrative analysis

prior to seeking claims.

of a decision decision

by the Director, applied was crystal clear:

but it is of no consequence The

to the ripeness Williamson

to takings

While the policies underlying the two concepts [ripeness and exhaustion] often overlap, the finality requirement is concerned with whether the initial decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injurYi the exhaustion requirement generally refers to administrative and judicial procedures by which an injured party may seek review of an adverse decision and obtain a remedy if the decision is found to be unlawful or otherwise inappropriate.


473 U.S. at 193 The Supreme concrete, ripe:

(emphasis added) rejected the proposition before a decision must be appealed

Court specifically

that the initial, takings

claim becomes

[R]espondent would not be required to appeal the Commission's rejection of the preliminary plat to the Board of Zoning Appeals, because the Board was empowered, at most, to review that rejection, not to participate in the Commission's decisionmaking.

Accordingly, required to appeal application Single-Family The Director's ripeness

we conclude

that Appellants decision because"

were not

the Director's

that their assessment [t]he proposed Plan." for how requirement regarding

could not be processed dwelling decision satisfied

is inconsistent

with the Commmunity position

the finality

by setting

forth a definitive


Maui County will apply the regulations land in question. 2. final decision designation amendment Amendment regarding to the Community the application because Plan failed to obtain a of the "park" use they did not seek an is essentially decision their Plan. Maui County argues that Appellants at issue to the particular

for their properties

to the Community

Plan to change the "park" designation. Plan amendment Plan and, thus, as with the the Director's may develop to the Community

The County argues a "variance" possibility properties

that a Community

from the Community of a variance

in Williamson, an amendment

leaves open the possibility after obtaining Cf. Williamson, GATRI v. Blane, the Community doctrine taking. It is undisputed held that the property adjudication procedure Community 188, 193-94. because for obtaining

that Appellants

473 U.S. at 192-94.


argue that, under (1998), to seek a

88 Hawai'i 108, 114, 962 P.2d 367, 373 does not require property to seeking owners

Plan has "the force and effect of law" and that the just compensation for a regulatory the Supreme of the 473 U.S. at to the Court

of ripeness

change in law prior

that, in Williamson,


claims were not ripe for themselves See Williamson,

they had not availed variances. here is whether a variance

The dispute

an amendment

Plan is, in effect, claims First,

that must be sought in of the Community Court in GATRI. application but

order for Appellants' Plan itself, The plaintiff its property,

to be justiciable. the nature

we must consider submitted

as explicated in GATRI seeking

by the Hawai'i Supreme

an SMA minor permit

to the Director,

to build a 470 square

foot snack shop on

which was zoned B-R Resort/Commercial,






in the Community

88 Hawai'i at 109, 962 P.2d at 368. use was allowable to the Director's decision

It was undisputed

that the proposed Similar Director action community

under the applicable in this case, the

in GATRI concluded, plan[.]"

inter alia, that "the proposed it is not consistent the Director's with the decision

cannot be processed The plaintiff


Id. at 110, 962 P.2d at 369. in GATRI appealed Id. The Circuit Court reversed the

to the Circuit Director's Supreme Court.



and the Director


to the Hawai'i The supreme of disposition is not 88

Id. at 110-11, two issues.

962 P.2d at 369-70. court's

court addressed remedies relevant

The supreme

the first issue, whether to the ripeness judicial

GATRI exhausted

its administrative court, See GATRI,

prior to its appeal

to the circuit

issue in this case.

Hawai'i at 111-12, sought direct decision. issue. review brought Thus,

962 P.2d at 370-71. the exhaustion


the plaintiff remedies have decision. court held was at

review of the substance

of the Director's judicial

of administrative

Here, the Appellants of the Director's In the second

have not sought direct


rather, Appellants it, the supreme

claims based on the effect of the Director's issue before did not err in his decision because

that the Director GATRI's general application Community

not to process with the

it was inconsistent a specific,

Plan, which GATRI,

in the County of Maui is a part of the relatively-detailed 962 P.2d at 371-74. of that the Community 88 Hawai'i at 112-15, in its holding

plan, and which contains

land use plan. The supreme the governing

court based its conclusion law, reflected

on its interpretation

21 The Community Plan at issue in GATRI was Kihei-Makena Community Plan, as adopted by the Maui County Council in 1985, in Ordinance No. 1490. That Community Plan was updated in 1997 and is now referred to as the 1998 Kihei-Makena Community Plan, the same plan that is at issue in the instant case.


FOR PUBLICATION Plan "was adopted

IN WEST'S HAWAI'I REPORTS after extensive Council public

AND PACIFIC REPORTER input and enacted into

law by the Maui County 2.80.050 effect without plan of Maui County," with the [Community

as an amendment

to section

of the Maui County Code",

"[i]t is part of the general it has the force and which is inconsistent an SMA permit that the in

and, "[t]herefore, development

of law and a proposed a plan amendment." Accordingly, Plan before

Plan] may not be awarded the supreme of law.

Id. at 115, 962 P.2d at 374.'2.1 court has determined enactment, with the


us is a legislative

full force and effect

As the issue was not presented

~/ We note that the developer in GATRI sought an SMA minor use permit for a proposed "development" under the CZMA. 88 Hawai'i at 109-10, 962 P. 2d at 368-69. Here, by contrast, the proposed use - the construction of singlefamily residences - is not considered a "development" under the CZMA unless the authority finds a cumulative impact or significant environmental effects. HRS § 205A-22. Although the CZMA does not expressly require consistency for proposed land uses that are not considered "developments," the Maui County Code (MCC) renders the Community Plan binding on all county officials. MCC 2.80B.030(B) (2006). Under the express language of the code, neither the director nor the Planning Commission may approve land uses that are inconsistent with the Kihei-Makena Commmunity Plan. i see also Pono v. Molokai Ranch, Ltd., 119 Hawai'i 164, 192, 194 P.3d 1126, 1154 (App. 2008) ("Under the MCC, before the [Department of Public Works and Waste Management] or any other county agency issues a permit, the agency must ensure that the project in question adheres to the specifications of the general plan and community plans of Maui County"), abrogated on other grounds by County of Hawai'i v. Ala Loop Homeowners, 123 Hawai'i 391, 235 P.3d 1103 (2010) i see also MCC 19.04.015(A) (1991) (purpose of zoning is to regulate land usage in accordance with general and community plans) i MCC 19.510.040(A) (4) (b) (1991) (change of zoning must comply with community plan). The language of the SMA Rules comports with this outcome, stating in mandatory terms that "the director shall make a determination. . that the proposed action either: (5) Cannot be processed because the proposed action is not consistent with the county general plan, community plan, and zoning[.]" SMA Rule 12-202-12(f) (emphasis added). In any case, the Director's decision that Appellants' assessment applications could not be processed had the same effect as a determination that it was a development. If, because of a "cumulative impact or a significant environmental or ecological effect," a single-family residence is considered a development, then an SMA permit would be required. If a permit were required, it could not be approved because it would be inconsistent with the Community Plan. Thus, regardless of the denomination of the assessment application, the Director's determination of inconsistency with the Community Plan precludes further processing under applicable law. See GATRI, 88 Hawai'i at 115, 962 P.2d 374i see also Palazzolo, 533 U.S. at 62021i McCole v. City of Marathon, 36 So.3d 750, 754 (Fla. Dist. Ct. App. 2010) (decision is ripe when it becomes clear that further applications would be futile) i Howard v. County of San Diego, 109 Cal. Rptr. 3d 647, 653 (Cal. Dist. Ct. App. 2010) (recognizing futility as an exception to ripeness) i accord, Schooner Harbor Ventures, Inc. v. United States, 92 Fed. Cl. 373, 381-82 (Fed. Cl.2010). 18

FOR PUBLICATION GATRI, purpose County's the supreme

IN WEST'S HAW AI'I REPORTS court did not consider claim ripeness

AND PACIFIC REPORTER whether an amendment for the Maui with is essentially Plan. what the law or 70 Haw. to

the Community

Plan was in the nature of a variance analysis. that a Community characterization a legislative Plan amendment

of a takings argument


an administrative the supreme Moreover, provisions," administers

remedy akin to a variance

is incompatible


of the Community

act "predetermines act "executes

shall be for the regulation whereas a law already

of future cases falling under its Sandy Beach Defense

a non-legislative

in existence."

Fund v. City Council City Council 423-24, "application property," contrast, ordinance existence. council legislative

of the City & Cnty. of Honolulu,

361, 369, 773 P.2d 250, 256 606 P.2d

(1989) (quoting Life of the Land v. 61 Haw. 390, involves By by -- an in the parcels act. of real Issuing SMA permits Id.

of the City & Cnty. of Honolulu, 866, 887 (1980)). standards of general to specific

and is therefore a Community of a legislative

an administrative

Plan amendment execute

can only be achieved Council

body, the Maui County or administer

act that does not merely as the county's A Community zoning variance administrative Because amounts

a law already (designating

See Maui County Charter legislative act of the council or similar mechanism



body i .


(2003) ("[e]very

shall be by ordinance") . cannot be equated with a A variance is a thoroughly (1991). the effect of an existing

Plan amendment relief. that changes

law on a particular to a change




the Community

Plan is legally binding, to its application.

an amendment

of the existing

law rather than an supports this an from an

administrative conclusion. administrative existing


A comparison agency,

of the two processes has authority

The Maui Board of Variances

and Appeals,

to grant variances

land use regulation

if it determines

the regulation


FOR PUBLICATION imposes unique

IN WEST'S HA WAI'I REPORTS AND PACIFIC REPORTER on a specific property. MCC MCC a Community an at any


§ 19.520.050(C). application,

The landowner

must file an appropriate hearing. (1991). for obtaining administrative in nature: basis,

and the board must hold a public (1997), 19.520.030 appears similarly the process



In some respects, Plan amendment individual Commission hearing. the process the Planning proposed findings,

landowner reviews

may apply, on an individual on a promulgated

time for an amendment

form; and the Planning However, to approve MCC

the application

and sets it for a public the bulk of or deny a review of the application, to providing The

MCC § 2.80B.II0(A), is legislative. Commission Instead,

(B) (2006). Following

has no authority

amendment. conclusions,

its role is limited

and recommendations. the application authority. (C).

19.510.020(A) (6)-(7); Maui County Charter must transmit to the Maui County Council, 2.80B.II0(B), public hearing The County


Commission ultimate

along with its which has the Charter

recommendations 8.6(1); MCC hold another


Maui County


Council must first amendment. MCC only by 4-3(1). to amend more akin from

on the proposed


The council may approve Maui County Charter the council's The amendment ordinance

an amendment 8-8.6(1), on whether

ordinance, approved Indeed, criteria

which must be submitted an administrative Plan.

to the mayor

and either

or vetoed. unlike that govern a zoning

variance, decision process

there are no specific is therefore a variance

the Community to enacting existing (2003)

than obtaining


See Save Sunset Beach Coal. v. City & 78 P.3d 1, 9-10 function). is a legislative

Cnty. of Honolulu, In Kailua Honolulu, identical context

102 Hawai'i 465, 473-74, Community

(holding that rezoning the supreme

Council v. City & County of this issue in the nearly which on O'ahu is

court addressed

of a general plan amendment,


accomplished planning by ordinance of the city council. "a purely advisory 60 Haw. 428, 432officer their act giving the and the akin function,"

33, 591 P.2d 602, 605 commission


The chief planning in submitting


to that of a legislative recommendations 606. legal effect city council. council's The court observed


to the city council.

Id. at 433, 591 P.2d at action of the

that lithe final operative is the legislative

to the proposal

Id. at 432, 591 P.2d at 605. or denial of a proposed a Community of its legislative function.

As a result, Id. is not an

approval Because

general plan amendment

is an "exercise administrative reaching See, ~, legislative Sierra

Plan amendment

act, it cannot reasonably 592 N.E.2d

be required

as a step in

a final agency determination Ward v. Bennett, "demapping"

for ripeness 787, 790

purposes. a 938 the

(N.Y. 1992) purposes) i TahoeAgency,

(holding that landowners Pres. Council, to ask

were not required procedure

to pursue

for ripeness

Inc. v. Tahoe Reg'l Planning (" [R]ipeness

F.2d 153, 157 plaintiffs Plan before 2002).

(9th. Cir. 1991) their

did not require

[the government]

to amend the 1984 253, 255



[federal takings]

claims. ") ; GSW, Inc. (Ga. Ct. App. take advantage law; it does See of

v. Dep't of Natural Ripeness any available not require Palazzolo,

Res., 562 S.E.2d or waivers


only that landowners changing


under existing

them to undertake 533 U.S. at 620.

the law itself. identical

In a California general general plan amendment plan amendment the ultimate

case nearly

to the one at a 109 a one Howard,

bar, the court held that the landowners' Cal. Rptr. at 654-55. in nature, Although decision

failure to obtain for obtaining

was not a bar to ripeness. the process could be characterized was, as here,

as administrative "a legislative by the County's the landowners Board could

to be voted on, after notice and a hearing, of Supervisors.

Id. at 654.



FOR PUBLICATION not be required ripeness. required Community V.

IN WEST'S HAW AI'I REPORTS AND PACIFIC REPORTER to pursue a legislative remedy to attain are not for

Id. at 655. For these reasons, to seek a change claims. that the Circuit Court erred in its jurisdiction because in Accordingly, Judgment in Civil we hold that Appellants the ripeness in the applicable law, i.e., the requirement

Plan, in order to satisfy

their takings

CONCLUSION We conclude that it lacked subject matter claims Court's

determination Appellants' we vacate

were not ripe for adjudication. June 5, 2009 Amended and October

the Circuit

Civil No. 07-1-0496 No. 09-1-0413,

15, 2009 Final Judgment

and we remand

for further proceedings.

Andrew V. Beaman (Chun, Kerr, Dodd, Beaman & Wong) for Plaintiffs-Appellants (Leroy E. Colombe and Bethany C.K. Ace, with him on the briefs) Mary Blaine Johnston Deputy Corporation Counsel for Defendants-Appellees (Brian T. Moto, Corporation Counsel, and Madelyn D'Enbeau, Deputy Corporation Counsel, with her on the briefs)


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