HAWSCT: State Agency Approval Not A Ripeness Bar To Challenge To County Approvals
by Robert Thomas, InverseCondemnation, December 19, 2013
Here's one for you land users which details how the very broad way Hawaii Supreme Court treats claims of jurisdictional ripeness.
In Blake v. County of Kauai Planning Comm'n, No. SCWC-11-0000342 (Dec. 19, 2013), the court held that a third-party challenge to the Kauai Planning Commission's subdivision approval was ripe for adjudication, and that the trial court should have exercised subject-matter jurisdiction. This case was not an administrative appeal under the Administrative Procedures Act, but nonetheless turned on the issue of whether a state agency had taken "final agency action" under the judicially-adopted doctrine of ripeness. The court concluded that the fact that a state agency's approval which was necessary before a subdivision could go foward was not an impediment to a challenge to a county's subdivision approval.
The details of the case are set out at length in Chief Justice Recktenwald's opinion, but here are the salient facts. A Kauai landowner sought subdivision approval from the county Planning Commission, and all the parties assumed that a road bordering one phase of the proposed development was owned by the County. The road is apparently "historic," so the State Historic Preservation Division weighed in, recommending conditions including a study, and mitigation measures should any historic stuff be discovered. The Planning Commission tentatively approved the subdivision, subject to SHPD's conditions. After an environmental impact statement, the Commission gave its final approvals. The property owner began construction of the project.
But after Blake instituted an original jurisdiction action in circuit court challenging the subdivision approval under a variety of theories (public trust, Native Hawaiian rights, faulty historic review, shoreline problems, etc., etc.; any Hawaii land use lawyer knows the drill), it was discovered that the road was not owned by the County, but rather by the State. Blake added two more counts to his complaint and everyone filed motions for summary judgment.
The State asserted that Blake's complaint was not ripe, and that the court lacked subject matter jurisdiction because the property owner could not go forward with its project until it obtained an easement from the State across the road. Because the state agency tasked with considering a request for such an easement had not yet approved it, there was no final agency action. The circuit court agreed, and dismissed some of Blake's claims as unripe. His ripe claims were also dismissed as a matter of judicial economy. The Court of Appeals affirmed.
In concluding that all of Blake's claims were ripe, the Supreme Court held that the state agency had done enough to fix its position. The court's analysis strayed into the territory of our old "friend," the Williamson County ripeness doctrine from regulatory takings law, most recently considered by the Hawaii court of appeals in Leone v. County of Maui, 128 Haw. 183, 284 P.3d 956 (Haw. App. 2012) (we filed an amicus brief in Leone, arguing that a property owner need not change the law in order for its regulatory takings challenge to be ripe under Williamson County). The Supreme Court noted that Leone concluded the takings challenge was ripe because in that case because the Planning Commission, in rejecting the property owner's application, had taken a position definitive enough for a reviewing court to determine what was allegedly "taken."
In Blake, the court held that the situation was similar: even though state agency approval for the easement was needed, the Kauai Planning Commission's final approval of the subdivision fixed its position well enough for Blake to assert his myriad claims against the Planning Commission:
Although [the state agency] would need to grant an easement over Hapa Road, the pendency of that approval does not “per se affect the finality of the [Planning Commission’s] approval of the [subdivision application] for purposes of appeal” because Blake is challenging the Planning Commission’s action, and not the action of BLNR.
Slip op. at 21. The court also rejected each of the other reasons the circuit court and the ICA dismissed Blake's remaining claims. See id. at 23-29.
Justice Acoba concurred and dissented, agreeing with the other justices that all of Blake's claims were ripe, but concluding that the case should not have been remanded for further proceedings on the merits. Since all parties agreed that no material facts were disputed and had moved for summary judgment, Justice Acoba saw no reason why the Supreme Court could not rule as a matter of law on the merits.
What the case ultimately means is that even if the development could not continue without subsequent state approvals (and the lack of those approvals may be enough to stop the project), the fact that the county agency had definitively acted was sufficient to render a challenge ripe. What this means is that you should not treat "development approvals" holistically, but as separate processes for ripeness purposes. This should also mean that any statutes of limitation or repose should start ticking from the time the agency has reached "final" action, even if the development project has not obtained all other approvals necessary to go forward from other agencies.
This decision also reflects that the Recktenwald Court is continuing the Moon Court's policies of keeping the door to the courthouse doors opened as wide as possible. That's the position the court of appeals took in Leone regarding regulatory takings plaintiffs, and we're glad to see that the Supreme Court has adopted it, and made that case a precedent applicable statewide.
LINK: Blake v. County of Kauai Planning Comm'n, No.SCWC-11-0000342 (Haw. Dec. 19, 2013)