United States District Court, D. Hawai'i
[Copyrighted Material Omitted]
Bridge Aina Le'a, LLC, Plaintiff: Bruce D. Voss, Matthew
C. Shannon, Michael C. Carroll, LEAD ATTORNEYS, Bays Deaver
Lung Rose & Holma, Honolulu, HI.
State of Hawaii, Land Use Commission, Vladimir P. Devens, in
his individual and official capacity, Kyle Chock, in his
individual and official capacity, Thomas Contrades, in his
individual and official capacity, Normand R. Lezy, in his
individual and official capacity, Duane Kanuha, in his
official capacity, Charles Jencks, in his official capacity,
Lisa M. Judge, in her individual and official capacity,
Nicholas W. Teves, Jr., in his individual and official
capacity, Ronald I. Heller, in his official capacity,
Defendants: E. Diane Erickson, LEAD ATTORNEY, Office of the
Attorney General-Hawaii, Honolulu, HI; William J. Wynhoff,
LEAD ATTORNEY, Office of the Attorney General-State of
Hawaii, Honolulu, HI.
GRANTING REVISED MOTION TO DISMISS
Oki Mollway, Chief United States District Judge.
case arises out of a decision by Defendant State of Hawaii
Land Use Commission (the " Commission" ) to
reclassify a parcel of land from urban use to agricultural
use. Plaintiff Bridge Aina Le'a, LLC (" Bridge"
), the owner of the parcel, claims that, in reclassifying the
land, the Commission and certain commissioners violated
Bridge's rights under the United States Constitution, the
Hawaii constitution, and various Hawaii laws. The Hawaii
Supreme Court has upheld the state trial court's
invalidation of the Commission's reclassification ruling.
Vladimir P. Devens, Kyle Chock, Thomas Contrades, Lisa M.
Judge, Normand R. Lezy, Nicholas W. Teves, and Ronald I.
Heller (collectively, " Individual Capacity
Commissioners" ), sued in their individual capacities,
were commissioners at the time of the events underlying
Bridge's suit. The former commissioners have been removed
from this case as Official Capacity Commissioners, and the
current commissioners--Edmund Aczon, Chad McDonald, Jonathan
Scheuer, Kent Hiranaga, Linda Estes, Aaron Mahi, Nancy
Cabral, and Arnold Wong--have been substituted as Defendants
in their official capacities pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure.
March 30, 2012, this court stayed the entirety of the present
action pending resolution of Bridge's administrative
appeal of the Commission's decision in state court.
Defendants appealed the stay, and Bridge filed a cross-appeal
challenging this court's denial of its motion seeking a
remand of all or part of this removed action to state court.
After the Hawaii Supreme Court affirmed the state trial court
in the administrative appeal, the Ninth Circuit ruled, "
While this case originally met Pullman's requirements,
abstention is no longer necessary." ECF 64, PageID #
662. The stay was dissolved, and the case is back on remand
before this court, which now considers the merits of
Defendants' motion to dismiss. The motion is granted in
all respects now being moved on by Defendants.
subject parcel of land consists of 1,060 acres in South
Kohala, on the island of Hawaii. See ECF No. 1-2, PageID #
15. On November 25, 1987, Signal Puako Corporation, the
then-owner of the parcel, petitioned for reclassification of
the land from " agricultural use" to " urban
use" to allow development of a large residential
community. See id. On January 17, 1989, the Commission issued
its Findings of Fact, Conclusions of Law, and Decision and
Order approving the petition on condition that 60 percent of
the units built be " affordable" units. See id. at
PageID # 16.
4, 1990, Signal Puako Corporation transferred the property to
Puako Hawaii Properties (" PHP" ). See id. at
PageID # 16.
April 1, 1991, PHP filed a motion to amend the 1989 Decision
and Order, seeking to decrease the total number of units in
the project. See id. at PageID # 17. On July 9, 1991, the
Commission issued its Amended Findings of Fact, Conclusions
of Law, and Decision and Order, which permitted a decrease in
the project's density. See id. The 1991 Decision and
Order also amended the affordable housing condition by
requiring a minimum of 1,000 affordable units, in addition to
the earlier 60 percent requirement. See id.
September 1, 2005, Bridge had become the owner of the
property. On that date, Bridge filed a motion to amend
conditions imposed by the 1991 Decision and Order so that the
affordable housing conditions would be " consistent and
coincide with County of Hawaii affordable housing
requirements." See id at PageID # 20.
November 25, 2005, the Commission entered its Findings of
Fact, Conclusions of Law, and Decision and Order granting in
part and denying in part Bridge's motion. See id. at
PageID # 21. The Commission stated:
Petitioner shall provide housing opportunities for low,
low-moderate, and moderate income residents of the State of
Hawaii by offering at least twenty percent (20%) of the
Project's residential units at prices determined to be
affordable by the County of Hawaii Office of Housing and
Community Development, provided, however, in no event shall
the gross number of affordable housing units within the
Petition Area be less than 385 units. The affordable housing
units shall meet or exceed all applicable County of Hawaii
affordable housing standards, and shall be completed in
substantial compliance with the representations made to the
See id. at PageID #s 21-22. The Commission also required
Bridge to " obtain, and provide copies to the Commission
[of] the certificates of occupancy for all of the
Project's affordable housing units within five (5) years
of November 17, 2005." Id. at PageID # 22.
December 9, 2008, the Commission issued an order to show
cause as to why the property should not revert to its former
agricultural classification given Bridge's alleged
failure to perform in accordance with the conditions imposed
by the Commission and the representations and commitments
made to the Commission. See id. at PageID # 24.
March 20, 2009, Bridge notified the Commission that it
intended to assign its interest in the project to DW Aina
Le'a Development, LLC (" DW" ). See id. at
PageID #s 26, 27.
end of a hearing on April 30, 2009, the Commission voted
unanimously to return the property to agricultural use. See
id. at PageID # 27.
August 19, 2009, Bridge moved for rescission of the
Commission's ruling returning the land to agricultural
use. Bridge argued that reversion of the land was improper
because Bridge had made " substantial commencement of
the use of the land" in accordance with section 205-4(g)
of Hawaii Revised Statutes. See id. at PageID # 28. On
September 28, 2009, the Commission rescinded its order to
show cause but imposed a condition that sixteen affordable
units be completed by March 31, 2010. See id. at PageID # 29.
The Commission also permitted DW to be named as a
co-petitioner with Bridge. See id. at PageID # 30.
alleges that sixteen affordable units were completed by March
31, 2010, as the Commission required. See id. at PageID # 30.
The Commission, however, determined by vote that Bridge and
DW had not completed the sixteen units by March 31, 2010. See
id. at PageID # 33. The Commission also voted to keep in
place the earlier order to show cause, to have a further
hearing on the matter, and to affirm that the date of
November 17, 2010, was the deadline by which 385 affordable
units had to be built, not just a goal. See id. The
Commission issued a written order to that effect on July 26,
2010. See id. at PageID # 34.
August 30, 2010, DW moved to amend certain conditions imposed
by the Commission. See id. at PageID # 35. Bridge later filed
a motion alleging violations of various statutes and
rules by the Commission, which Bridge contended rendered
action by the Commission invalid. See id.
hearing on January 20, 2011, the Commission, by a 5-3 vote,
decided to return the property to agricultural use. See id.
at 37. The Commission also voted to deny as moot Bridge's
motion seeking invalidation of earlier action by the
Committee. See id. at 38. The Commission did not at that time
rule on DW's motion to amend.
April 25, 2011, the Commission entered a written order
returning the property to agricultural use. See id. at PageID
13, 2011, the Commission denied DW's motion to amend. See
id. at PageID # 45.
filed two actions challenging the Commission's decision
to reclassify the land to agricultural use. Bridge not only
sought judicial review of the Commission's decision
through an administrative appeal, Bridge also filed a
separate action in state court. See ECF No. 1-2. It is that
separate action that was removed to this court on June 27,
2011. See ECF No. 1.
Complaint in this action asserts the following claims: (1)
denial of due process of law in violation of the federal and
state constitutions (Count I); (2) inverse condemnation in
violation of the federal and state constitutions (Count II);
(3) denial of equal protection of the law under the federal
and state constitutions (Count III); (4) deprivation of
common law vested rights (Count IV); (5) equitable estoppel
(Count V); (6) deprivation of constitutional rights under 42
U.S.C. § 1983 (Count VI); (7) violation of chapters 91,
92, and 205 of Hawaii Revised Statutes and chapter 15-15 of
Hawaii Administrative Rules (Count VII); (8) unconstitutional
land development conditions in violation of the federal and
state constitutions (Count VIII); (9) injunctive and
declaratory relief (Count IX); (10) declaratory relief
pursuant to section 632-1 of Hawaii Revised Statutes and Rule
57 of the Hawaii Rules of Civil Procedure (Count X); and (11)
attorneys' fees and costs pursuant to 42 U.S.C. §
1988 (Count XI). See id.
27, 2011, Defendants filed a motion to dismiss all claims in
this action. See ECF No. 14.
March 6, 2012, the circuit court in the administrative appeal
entered its Findings of Fact and Conclusions of Law, and
Order Reversing and Vacating the State of Hawaii Land Use
Commission's Final Order. See ECF No. 41-3.
March 30, 2012, this court stayed the present action pending
final resolution of the administrative appeal of the
Commission's decision in state court. See ECF No. 48.
This court declined Bridge's remand request. Both sides
appealed to the Ninth Circuit. See ECF Nos. 49, 56.
15, 2012, the state circuit court entered its Amended
Findings of Fact and Conclusions of Law, and Order Reversing
and Vacating the State of Hawaii Land Use Commission's
Final Order. See ECF No. 71-2, PageID # 716. The circuit
court concluded that the Commission: (1) exceeded its
statutory authority and violated chapter 205 of Hawaii
Revised Statutes; (2) violated section 205-4(h) of Hawaii
Revised Statutes; (3) violated section 205-16 of Hawaii
Revised Statutes; (4) violated section 205-17 of Hawaii
Revised Statutes; (5) violated section 205-4(g) of Hawaii
Revised Statutes; (6) violated chapters 91 and 205 of Hawaii
Revised Statutes and chapter 15 of Hawaii Administrative
Rules; and (7) violated Bridge's and DW's federal and
state due process and equal protection
rights. See ECF No. 71-2, PageID #s 716-20.
Commission filed a notice of appeal and an application to
transfer the appeal from the Intermediate Court of Appeals to
the Hawaii Supreme Court. See id. at PageID # 721. The
transfer application was granted. See id.
November 25, 2014, the Hawaii Supreme Court affirmed in part
and vacated in part the state circuit court's second
amended final judgment. See DW Aina Le'a Dev., LLC v.
Bridge Aina Le'a, LLC., 134 Haw. 187, 339 P.3d 685
(2014). The Hawaii Supreme Court affirmed the state circuit
court's determination that the Commission had erred in
returning the property to agricultural use without complying
with section 205-4 of Hawaii Revised Statutes, but reversed
the state circuit court's determination that Bridge and
DW had had their procedural due process, substantive due
process, and equal protection rights violated. See id. at
191, 339 P.3d at 689.
January 23, 2015, the Ninth Circuit remanded this case to
this court for appropriate action in light of the Hawaii
Supreme Court's decision. See ECF 64, PageID # 663. The
Ninth Circuit concluded that, while this case originally met
the requirements for Pullman abstention, abstention was no
longer necessary. See id. at PageID # 662.
April 2, 2015, Defendants filed a request to reopen this case
in light of the Ninth Circuit's remand ruling and the
Hawaii Supreme Court's decision in the administrative
appeal. See ECF No. 71. Defendants also asked this court to
resolve their earlier motion to dismiss, which had been
subject to this court's stay. See id.
court reopened the present action and instructed the parties
to submit supplemental briefing discussing what issues
remained in dispute in this case following the Hawaii Supreme
Court's decision in the administrative appeal. See ECF
parties dispute the effect of the Hawaii Supreme Court's
ruling on this case. See ECF Nos. 76, 77. Bridge contends
that the only claims rendered moot by the Hawaii Supreme
Court's decision in the administrative appeal are its
claims for declaratory relief. See ECF No. 76, PageID # 775;
ECF No. 86, PageID # 1121. Defendants, on the other hand,
have taken the position in supplemental briefs, as amended by
statements at the hearing on June 29, 2015, that all of
Bridge's claims except the monetary relief portions of
the claims based on alleged takings, imposition of
unconstitutional land development conditions, and deprivation
of common law vested rights were resolved by the Hawaii
Supreme Court. See ECF No. 77, PageID #s 786-89; ECF No. 83,
PageID #s 1114-15.
court first addresses the viability of Bridge's claims
for declaratory and injunctive relief, and turns thereafter
to the claims for monetary forms of relief.
motion to dismiss relies on both jurisdictional and
Rule 12(b)(1) of the Federal Rules of Civil Procedure, a
complaint may be dismissed for lack of subject matter
court's subject matter jurisdiction is limited to "
cases" or " controversies." Temple v.
Abercrombie, 903 F.Supp.2d 1024, 1030 (D. Haw. 2012).
This requires a federal court to determine whether a
plaintiff's challenge is justiciable,
a task accomplished through consideration of the doctrines of
standing, mootness, and ripeness. See Culinary Workers Union,
Local 226 v. Del Papa, 200 F.3d 614, 617 (9th Cir. 1999).
These doctrines reflect that the court's role " is
neither to issue advisory opinions nor to declare rights in
hypothetical cases, but to adjudicate live cases or
controversies consistent with the powers granted the
judiciary in Article III of the Constitution." Thomas v.
Anchorage Equal Rights Comm'n, 220 F.3d 1134, 1138 (9th
courts may raise a jurisdictional issue sua sponte if not
raised by the parties. See Bernhardt v. Cnty. of Los
Angeles, 279 F.3d 862, 868 (9th Cir. 2002); S. Pac.
Transp. Co. v. City of Los Angeles, 922 F.2d 498, 502
(9th Cir. 1990).
Rule 12(b)(6) of the Federal Rules of Civil Procedure, the
court's review is generally limited to the contents of
the complaint. Sprewell v. Golden State Warriors,
266 F.3d 979, 988 (9th Cir. 2001); Campanelli v.
Bockrath, 100 F.3d 1476, 1479 (9th Cir. 1996). If
matters outside the pleadings are considered, the Rule
12(b)(6) motion is treated as one for summary judgment. See
Keams v. Tempe Tech. Inst., Inc., 110 F.3d 44, 46
(9th Cir. 1997); Anderson v. Angelone, 86 F.3d 932,
934 (9th Cir. 1996).
Rule 12(b)(6) motion to dismiss, all allegations of material
fact are taken as true and construed in the light most
favorable to the nonmoving party. Fed'n of African
Am. Contractors v. City of Oakland, 96 F.3d 1204, 1207
(9th Cir. 1996). However, conclusory allegations of law,
unwarranted deductions of fact, and unreasonable inferences
are insufficient to defeat a motion to dismiss. Sprewell, 266
F.3d at 988; In re Syntex Corp. Sec. Litig., 95 F.3d
922, 926 (9th Cir. 1996).
under Rule 12(b)(6) may be based on either: (1) lack of a
cognizable legal theory, or (2) insufficient facts under a
cognizable legal theory. Balistreri v. Pacifica Police
Dept., 901 F.2d 696, 699 (9th Cir. 1988) (citing
Robertson v. Dean Witter Reynolds, Inc., 749 F.2d
530, 533-34 (9th Cir. 1984)).
[T]o survive a Rule 12(b)(6) motion to dismiss, factual
allegations must be enough to raise a right to relief above
the speculative level, on the assumption that all the
allegations in the complaint are true even if doubtful in
fact." Bell A. Corp. v. Twombly, 550 U.S. 544,
555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal
quotation marks omitted); accord Ashcroft v. Iqbal,
556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)
(" [T]he pleading standard Rule 8 announces does not
require 'detailed factual allegations,' but it
demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation." ).
" While a complaint attacked by a Rule 12(b)(6) motion
to dismiss does not need detailed factual allegations, a
plaintiff's obligation to provide the 'grounds'
of his 'entitlement to relief' requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do."
Twombly, 550 U.S. at 555. The complaint must "
state a claim to relief that is plausible on its face."
Id. at 570. " A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged." Iqbal, 556
U.S. at 678.
BRIDGE'S PROCEDURAL COMPLAINTS ARE WITHOUT
raises various " procedural concerns," contending
that it has been prejudiced
by Defendants' failure to file a new motion to dismiss
after the conclusion of the state administrative appeal and
the reopening of this case, and by this court's
permitting of supplemental briefing regarding the effect of
the Hawaii Supreme Court's decision and the viability of
certain of Bridge's claims. See ECF No. 86, PageID #s
1123, 1130. This court is unpersuaded by Bridge's
complaints about the procedure used in addressing
Defendants' motion to dismiss.
were under no obligation to file a new motion to dismiss
after this case was reopened. Bridge points to no such
requirement and fails to explain, nearly four months after
this case was reopened, why imposition of such a requirement
would have been necessary. Had this court required Defendants
to file a new motion, it is the issues raised through
supplemental briefing that would likely have been briefed.
Bridge identifies no specific matter that has prejudiced it
or that it has been denied an opportunity to address.
most, Bridge says that Defendants have been permitted to
" backfill" their motion to dismiss through
supplemental briefing. See ECF No. 86, PageID # 1123. This
argument is plainly without merit. First, a new motion could
have done the same, or greater, " backfilling."
Second, the supplemental briefing, which addressed the effect
of the Hawaii Supreme Court's ruling on this action, gave
Bridge the same opportunity it gave Defendants to respond to
the court's inquiries. It is difficult to envision how
Bridge could possibly have been prejudiced by a supplemental
briefing process in which it had equal opportunity to respond
to the court's inquiries. See ECF No. 75; ECF No. 82; ECF
No. 84. In fact, the supplemental briefs and the hearing held
on June 29, 2015, have led to a reduction in the scope of
Defendants' motion to dismiss. The original motion to
dismiss sought dismissal of all claims against all
Defendants. See ECF No. 14. However, the original motion to
dismiss has been reduced in scope, so that the revised motion
to dismiss no longer covers all claims.
supplemental memorandum filed on June 15, 2015, Defendants
concede that, to the extent asserted against the Commission
and Official Capacity Defendants, the monetary relief
portions of certain claims are not rendered moot or otherwise
precluded by the Hawaii Supreme Court ruling. Specifically,
Defendants agree that the monetary relief portions of
Bridge's takings claims may proceed. Count I alleges a
regulatory taking, and Count II alleges a taking by inverse
condemnation. Defendants also concede that the
monetary relief portions of the vested rights claim in Count
IV and the unconstitutional conditions claim in Count VIII
are not resolved by the Hawaii Supreme Court's ruling.
See ECF No. 77.
hearing held on June 29, 2015, the parties therefore agreed
that, as against the Commission and Official Capacity
Defendants, certain matters would
be deleted from the motion. The court's minutes reflect
that the motion no longer seeks dismissal of the monetary
relief portions of the takings claims, the vested rights
claim, and the unconstitutional conditions claim. See ECF No.
82 (minutes of hearing). This means that this court does not
presently have before it the question of whether those claims
for monetary relief are barred by Williamson County
Regional Planning Commission v. Hamilton Bank of Johnson
City, 473 U.S. 172, 194-95, 105 S.Ct. 3108, 87 L.Ed.2d
126 (1985) (holding that federal takings claim is not
reviewable in federal court until plaintiff has sought
compensation from state and been denied).
complaints about this court's requests for supplemental
briefing on issues of mootness and ripeness are particularly
weak. Both issues being jurisdictional, they may be raised by
this court even if the parties fail to raise them. See, e.g.,
Wilson v. Fisch, Civ. No. 08-00347 JMS/KSC, 2009 WL
464334, at *3 (D. Haw. Feb. 24, 2009) (" [T]he court has
an obligation to ensure that it has jurisdiction over the
claims raised by the parties, and may raise this issue sua
CLAIMS FOR DECLARATORY AND ...