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Kellberg v. Yuen

Intermediate Court of Appeals of Hawaii

June 20, 2013

MARK C. KELLBERG, Plaintiff-Appellant,
v.
CHRISTOPHER J. YUEN in his capacity as Planning Director, County of Hawaii, and COUNTY OF HAWAII, Defendants-Appellees

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT (CIVIL NO. 07-1-0157)

Mark C. Kellberg (on the opening brief) Plaintiff-Appellant pro se.

Stephen D. Whittaker (on the reply brief) [6] for Plaintiff-Appellant.

Michael J. Udovic Laureen L. Marten Deputies Corporation Counsel, County of Hawaii for Defendants-Appellees.

Foley, Presiding J., Leonard and Reifurth, JJ.

MEMORANDUM OPINION

Plaintiff-Appellant Mark C. Kellberg (Kellberg) appeals from the February 28, 2012 Final Judgment and various orders entered in the Circuit Court of the Third Circuit[1] (circuit court) which inter alia granted summary judgment on all counts in favor of Defendants-Appellees Christopher J. Yuen (Planning Director) and the County of Hawaii (collectively, County).

I. BACKGROUND

This appeal arose from the Planning Director's approval of a subdivision in the County of Hawaii. In 2000, the Planning Director determined the subject property (Parcel) consisted of six pre-existing lots. Based on this determination, the Parcel's owner, Michael Pruglo (Pruglo), sought to consolidate and re-subdivide the Parcel into six lots.

Hawaii County Code Chapter 23 (Subdivision Control Code) states: "The requirements and standards of [the Subdivision Control Code] shall not apply to consolidation and resubdivision action[s] resulting in the creation of the same or fewer number of lots than that which existed prior to the consolidation/resubdivision action[.]" Subdivision Control Code § 23-7. Based on the 2000 recognition of six pre-existing lots, [2]the Planning Director issued a final subdivision approval for the Parcel on July 11, 2005. However, an updated survey later revealed an additional, separate non-contiguous lot, such that the subdivision approval resulted in seven rather than six lots.

Kellberg owns property adjacent to the Parcel. In August 2005, he became aware of the subdivision approval, and he began seeking to challenge the seven-lot subdivision. Kellberg wrote to the Planning Director on August 16, 2005 and January 17, 2006 and to the Hawaii County Board of Appeals (BOA) on March 5, 2006.

On March 21, 2 006, the BOA responded by referring Kellberg to its Rules of Practice and Procedure (BOA Rules) and cited BOA Rules section 8-3, which requires that appeals of the Planning Director's decision be filed within thirty days after the decision. The BOA noted thirty days had passed since the subdivision approval.

Kellberg and his attorney then wrote to the Planning Director again on June 19, 2006, and August 25, 2006. The Planning Director responded by letter on October 23, 2006. He acknowledged Kellberg had correctly identified a mistake in the Parcel's subdivision approval, but he stated he was "not going to do anything to undo this situation at this time."

On May 11, 2007, Kellberg filed a complaint in the circuit court seeking declaratory and injunctive relief and damages. The complaint alleged the subdivision approval was invalid because the Parcel consisted of only two pre-existing lots, and the seven-lot subdivision[3] did not comply with the Subdivision Control Code. Kellberg also alleged the County violated the Fifth and Fourteenth Amendments of the United States Constitution and article I, section 5 of the Hawaii Constitution by failing to provide him with notice and an opportunity to be heard ...


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