Posted by: Patricia Salkin | May 26, 2012

HI Appeals Court Holds Land Use Commission Only has Jurisdiction over State Law Issues and Cannot Issue a Declaratory Ruling after County has Already Issues a Concrete Ruling

Kuleana Ku’ikahi LLC filed a petition requesting the Land Use Commission (LUC) issue a declaratory ruling determining that neighboring land was being used in violation of state and county laws. Kuleana raised seven issues (1) The current use of the land is in direct violation of state and county laws pertaining to the use of agricultural lands, (2) It was improper for the County to approve agricultural subdivisions without ensuring that there was an adequate supply of water, (3) Native Hawaiians have a right to use a local stream and that right is being adversely affected by the removal of water for the subdivisions, (4)the current land uses do not comply with constitutional and statutory provisions regulating agricultural land use, (5) The County system of enforcement does not comply with the statutory provisions regulating agricultural lands, (6) Current and proposed uses will create a disruption to natural flows of water and therefore hurt the ecosystem, (7) The land along the local stream require protection and preservation. 

The LUC dismissed issues 2, 3, 4 and 6 because it lacked jurisdiction. It dismissed issue 7 because Kuleana had not shown any ownership in the neighboring lands. It set aside issues 1 for hearing as to whether a declaratory judgment was appropriate and set aside issue 5 for hearing only upon an affirmative finding as to issue 1. The LUC determined that Kuleana failed to meet their burden of proof that the present uses are in violation of applicable state laws. Kuleana appealed to the circuit court which affirmed the LUC’s decisions. 

On appeal, the Intermediate Court of Appeals of Hawaii determined that the LUC properly limited its jurisdiction to issues of state law in dismissing issues 1 and 2. Kuleana argues that the LUC has the jurisdiction to require that counties fulfill their responsibilities regarding zoning enforcement. However, the court found that it is the counties, not the LUC, that are granted the power to enforce and regulate zoning. As an administrative agency, the LUC can only wield powers expressly or implicitly granted to it by statute and implied powers that it may have are limited to those reasonably necessary to make an express power effective. This is not the case with regulating and enforcing zoning and the LUC Correctly dismissed issues 1 and 2 for lack of jurisdiction. 

The court next determined that, without the need for a reclassification of district boundaries, the LUC did not have jurisdiction over issues 3, 4, 6 and 7. Kuleana cites HRS §205-17 which requires the LUC to take into account the preservation or maintenance of cultural, historical or natural resources when considering a petition for reclassification of district boundaries. However, a district boundary amendment was never sought and was not needed, therefore the LUC did not have jurisdiction under HRS §205-17. 

Further, Kuleana argues that the LUC has jurisdiction over issues 3 and 4 to order the subdivisions to comply with the laws regarding traditional access rights under the Hawaii Constitution. They make a similar argument regarding issues 6 and 7 claiming that the state and its subdivisions (LUC) have a duty to protect, control and regulate the use of water resources for the benefit of the people. The court acknowledges that such a duty exists, however it also applies to the County and the County had already answered the issue in approving the subdivisions. HRS §91-8 holds that declaratory relief is not meant to allow review of concrete agency decisions or which other means of review are available. Because of this, the declaratory relief sought by Kuleana would be inappropriate as it would essentially mean the court reviewing the County’s approval of the subdivisions.   

Kuleana Ku’ikahi, LLC v. State Land Use Comm’n, 2012 WL 1510188 (HI Ct. App. 4/27/2012)
The opinion can be accessed at:




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