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Friends of Makakilo v. D.R. Horton-Schuler Homes, LLC

Supreme Court of Hawai'i

October 30, 2014

FRIENDS OF MAKAKILO, Petitioner/Intervenor/Cross-Appellant-Appellant,
v.
D.R. HORTON-SCHULER HOMES, LLC, a Delaware limited liability company, d.b.a. D.R. HORTON-SCHULER DIVISION; THE LAND USE COMMISSION OF THE STATE OF HAWAI'I; OFFICE OF PLANNING, STATE OF HAWAI'I; DEPARTMENT OF PLANNING AND PERMITTING, CITY AND COUNTY OF HONOLULU, Respondents/Appellees-Appellees, and THE SIERRA CLUB and THE HONORABLE SENATOR CLAYTON HEE, Respondents/Appellants-Appellants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT. (CIV. NO. 12-1-2000).

Jack Schweigert and Linda M. B. Paul for petitioner.

Gregory W. Kugle and Matthew T. Evans for respondent, D.R. Horton-Schuler Homes, LLC.

David M. Louie, Bryan C. Yee, and Deborah Day Emerson for respondent, Office of Planning, State of Hawai'i.

David M. Louie, Diane Erickson, and Patricia Ohara for respondent, Land Use Commission of the State of Hawai'i.

Donna Y. L. Leong and Dawn Takeuchi Apuna for respondent, Department of Planning and Permitting, City and County of Honolulu.

Mark E. Recktenwald, C.J., Paula A. Nakayama, Sabrina S. McKenna, AND Richard W. Pollack, JJ., AND CIRCUIT JUDGE Gary W. B. Chang, ASSIGNED BY REASON OF VACANCY.

OPINION

Page 517

[134 Hawai'i 136] McKENNA, J.

I. Introduction

Petitioner/Intervenor/Cross-Appellant-Appellant Friends of Makakilo (" Friends" or " FOM" ), a 501(c)(4) non-profit corporation, appeals from the Circuit Court of the First Circuit's Final Judgment dated June 26, 2013, and filed June 27, 2013, which affirmed its November 9, 2013 Order dismissing FOM's " cross-appeal" [1] as untimely. Friends filed an Application for Transfer (" Application" ) with the Court on April 2, 2014. The Court has accepted FOM's appeal as a discretionary transfer under Hawai'i Revised Statutes (" HRS" ) § 602-58 (Supp. 2013).

FOM's appeal poses a question of first impression: when must a party that seeks judicial review of an administrative decision in the form of a cross-appeal file notice of its cross-appeal in circuit court? In brief, Friends suggests that cross-appeals may be filed within the deadlines set forth in Rule 4.1(b) of the Hawai'i Rules of Appellate Procedure (" HRAP" ),[2] i.e., within fourteen days after the initial notice of appeal is served on the cross-appellant, or within the time prescribed for filing the notice of appeal, whichever is later. Respondents/Appellees-Appellees D.R. Horton-Schuler Homes, LLC (" Horton-Schuler" ), the Office of Planning, State of Hawai'i (" State" ), and the Land Use Commission (" LUC" ) assert that there is no fourteen-day extension for the filing of cross-appeals, as all requests for judicial review must be filed within thirty days after service of the certified copy of the agency's final decision and order, as provided for in HRS § 91-14(b) (Supp. 2010).

II. Background

A. Procedural History

The at-issue " cross-appeal" arises from an LUC contested case hearing, Docket Number A06-771. In January 2007, Horton-Schuler petitioned the LUC to reclassify certain lands in .Ewa District, O.ahu from agricultural to urban use (" Ho'opili lands" or " Ho'opili Development" ). Horton-Schuler later amended its petition in September 2008. In February 2009, the LUC permitted Friends to intervene, and in September 2009, the LUC granted FOM's motion to declare the petition deficient, with leave to Horton-Schuler to amend. Horton-Schuler 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. The LUC continued a hearing on the revised petition on several discrete days from October 2011 to March 2012, with oral arguments held in May and June 2012. In its June 21, 2012

Page 518

[134 Hawai'i 137] Findings of Fact, Conclusions of Law, and Decision and Order (" Decision" ), the LUC granted Horton-Schuler's petition to reclassify the Ho'opili lands subject to certain conditions.[3] 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 Decision (" Sierra Club appeal" or " Sierra Club notice of appeal" ). On August 2, 2012, Friends filed a " Notice of Cross Appeal to Circuit Court." On August 23 and 24, 2012, the LUC and Horton-Schuler respectively filed motions to dismiss FOM's " cross-appeal." [4]

Oral argument on the motions was held on October 9, 2012. By an order dated November 9, 2012 (" Order" ), the circuit court held, pursuant to HRS § 91-14, that: (a) FOM's " cross-appeal" was not allowed by law because aggrieved parties, as defined in HRS § 91-14, have a right to appeal an agency decision, but not a right to cross-appeal, and (b) it is undisputed that FOM's " cross-appeal," when viewed simply as a request for judicial review, was untimely. The circuit court further held that even if cross-appeals of agency decisions were permitted and FOM's " cross-appeal" was deemed timely, (1) the content of the " cross-appeal" exceeded the scope of FOM's limited intervention in the proceedings before the LUC, and (2) Friends lacked standing to appeal as an " aggrieved person." Accordingly, the circuit court dismissed FOM's " cross-appeal" with prejudice, and affirmed its Order by Final Judgment filed June 27, 2013.

B. Points of Error

In its opening brief, Friends identifies eight points of error.

Point one contends the circuit court erred when it concluded that, pursuant to HRS ยง 91-14, an aggrieved party in a contested case before the LUC " [does] not ...


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