Posted by: Patricia Salkin | March 22, 2014

HI Supreme Court Holds State Agency Approval Not A Ripeness Bar To Challenge To County Approvals

The Eric A. Knudsen Trust’s (“Knudsen Trust”) filed an application with the Planning Commission of the County of Kauai, Hawai’i to subdivide land it owned, to implement Phase I of its planned residential community development. The historic Hapa Road bordered the development. The State Historic Preservation Division (“SHPD”) recommended conducting an archaeological inventory survey of the parcels of land in the application, submitting a report to SHPD for review and approval, and developing detailed mitigation plans if significant historic sites were recommended for mitigation.
To obtain final approval, the Knudsen Trust was required to comply with certain requirements. The Knudsen Trust completed a final environmental impact statement (“Final EIS”) for its development discussing a portion of Hapa Road to be improved as a pedestrian and bicycle path and the historic rock walls would be preserved and restored. The State Land Use Commission approved the Final EIS. The Planning Commission granted final subdivision approval of the development.

Subsequently, Theodore Blake (“Blake”) filed a complaint in the Circuit Court asserting six counts: (1) that the Defendants failed to fulfill the obligations imposed upon them by the public trust doctrine; (2) that the County Defendants failed to thoroughly investigate and protect Native Hawaiian rights; (3) that the Defendants failed to comply with rules governing procedures for historic preservation review; (4) that the subdivision approval and construction threatened to cause irreparable injury to burial sites and other historic sites; (5) that because the Knudsen Trust’s land was located within the State’s coastal zone management area, the Planning Commission was obligated to give “full consideration of historic and cultural values prior to decision making the Coastal Zone Management Act (“CZMA”); and (6) that the Knudsen Trust would breach a part of Hapa Road to allow vehicular traffic into its development. Blake later amended his complaint stating that Hapa Road was owned by the State and not the County; that the Knudsen Trust caused a public nuisance in altering Hapa Road without appropriate government authorization; and alleged that the Knudsen Trust was negligent when it altered Hapa Road without appropriate government authorization.

The State filed a motion for summary judgment arguing that Blake’s claims were not ripe because the Knudsen Trust was prohibited from going forward on the development until such time as it received approval from the BLNR for an easement across Hapa Road, a final agency action. The circuit court granted summary judgment, stating that Hapa Road was owned by the State of Hawaii. The subdivision plan submitted to the Planning Commission, required access across Hapa Road. Further, that there had been no final agency action. Therefore, the matter was not ripe.

Blake raised two points to the Intermediate Court of Appeals (“ICA”): (1) that the circuit court erred in granting the State Defendant’s motion for summary judgment; and (2) that the circuit court erred in failing to grant summary judgment in his favor. Further, even if one of the counts were not ripe, judicial economy would not be served by dismissing all the other counts.
The State argued that the case was not ripe because there needed to be further factual development as to what actions would be taken by the parties, and the State, as owner of Hapa Road, had not taken final action as to whether to grant or deny an easement. Further, the circuit court correctly dismissed all the other claims in the interest of judicial economy. The Knudsen Trust argued that Blake’s claims were not ripe because further factual development was needed and no final agency action had been taken.

The appeals court affirmed and Blake filed an application for writ of certiorari asserting eight counts: (1) the State and County Defendants failed to fulfill their public trust obligations; (2) the Defendants failed to investigate and protect Native Hawaiian rights; (3) the Defendants failed to comply with the Hawaii statutes; (4) the Defendants irreparably injured historic sites, including burial sites; (5) the Defendants failed to comply with the objectives, policies, and guidelines of the CZMA; (6) the Defendants failed to submit or require a supplemental EIS for the proposed breach of Hapa Trail; (7) the Knudsen Trust caused a public nuisance by failing to preserve and by altering Hapa Road without appropriate government authorization; and (8) the Knudsen Trust was negligent in failing to preserve the Hapa Road and its adjacent walls.

The Supreme Court held that the court below erred because all of the claims were ripe for adjudication. The court stated that that there is final agency action even when there are pending conditions on a final approval of a permit, and that final agency action refers to the agency’s whose decision was being challenged. Here, it was clear that the Planning Commission’s final approval of the Knudsen Trust’s subdivision application was a “final agency action” because it granted “final approval months before Blake discovered that Hapa Road was owned by the State. Although BLNR would need to grant an easement, the pendency did not “per se affect the finality of the Planning Commission’s approval for purposes of appeal because Blake was challenging the Planning Commission’s action, and not the action of BLNR. Also, the Planning Commission’s final approval appeared to have been the County’s definitive position on the subdivision application. Because the Planning Director sent the Knudsen Trust a letter indicating that the subdivision was “granted final approval which comported with the rules for service of decisions. Furthermore, construction commenced on the property following the Planning Commission’s final approval. The commencement of construction was clearly an “effect” of that decision.

The court stated that Counts 1-5 were ripe for adjudication because the Planning Commission’s approval of the subdivision constituted a “final agency action” regardless of where the access point was located. The court stated that Count 6 was ripe for adjudication because there was no need for further factual development. The court disagreed with the Defendants argument that further factual development was necessary regarding the necessity of a Supplemental EIS to address a breach of Hapa Road, because it was unclear whether the BLNR would grant an easement over Hapa Road to allow access to the development. However, the circuit court failed to consider the necessity of a Supplemental EIS. Therefore, the question of the necessity of a Supplemental EIS was ripe for review, regardless of BLNR’s approval. The court stated that Counts 7 and 8 were ripe for adjudication. The court stated that Blake’s claims involved alleged conduct that has already occurred. Counts 7 and 8 pertained to two incidents in which the Knudsen Trust allegedly altered the walls. The decision as to whether Hapa Road was used as an access to the development was irrelevant to the resolution of those claims. Further, case law indicates that the proper course for a court faced with a complaint asserting both ripe and unripe claims is to either proceed on the ripe claims, or to stay some or all of the ripe claims in the interest of judicial economy. Therefore, it was clear that the circuit court and the court could address the merits of some claims even when other claims are unripe.
Therefore, the judgment was vacated and the case was remanded.

Blake v. County of Kaua’i Planning Comm’n, 315 P.3d 749 (HI 12/19/13)

The opinion can be accessed at: http://www.inversecondemnation.com/files/scwc-11-0000342.pdf

For Rob Thomas’s summary of the case see: http://www.hawaiifreepress.com/ArticlesMain/tabid/56/ID/11429/Blake-v-Kauai-Recktenwald-Court-continues-Moon-Courts-policies.aspx


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