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Thursday, January 23, 2014
Hawaii Supreme Court Eases Path to Challenge Subdivision Approvals
By Robert Thomas @ 4:35 PM :: 3944 Views :: Development, Judiciary, Land Use

HAWSCT: Triggers To Administrative Appeals Must Be Clear And Noticed

by Robert Thomas, InverseCondemnation, January 23, 2014

The Hawaii Supreme Court has issued an opinion that is very good for property owners and anyone who must use the administrative appeals process. [Disclosure: we represent the prevailing Petitioner in this case.]

In Kellberg v. Yuen, No. SCWC-12-0000266 (Jan. 22, 2014), the unanimous court, in a detailed opinion by Justice Pollack, held that a person who challenged the County of Hawaii's admittedly illegal subdivision of a neighboring parcel need only appeal to the Board of Appeals from the "final" subdivision approval, and not a decision made months later. The court also held that if an agency believes that its decision must be appealed via its administrative process, it has an obligation to say so in a clear way:

If the goal of the exhaustion doctrine is to redirect grievances to their proper forum, then such a goal is not served by fostering uncertainty over the Director’s decisions and the BOA’s process for administrative review. Rather, claimants,agencies, and courts alike benefit when the process for agency review is clearly articulated so that claimants can fairly and efficiently resolve their disputes without resorting to the courts.

Similarly, providing such notice in the Planning Director’s communications would also be consistent with basic principles of due process, which generally provide that the right to be heard is meaningless without being given the information necessary to exercise that right.

Slip op. at 66.

Not only is this a good ruling for property owners, but it's a good day for anyone who believes in government transparency.

We're on a plane at the moment, on our way to the annual ALI-CLE Eminent Domain conference in New Orleans (gotta love in-flight internet access...it keeps you working all the time, it seems). We'll have more thoughts after a chance to read the opinion. We'll also post up the cert briefs in a separate post.

Kellberg v. Yuen, No. SCWC-12-0000266 (Haw. Jan. 22, 2014)

  *   *   *   *   *

Cert Briefs In Admin Due Process Case

by Robert Thomas, Inverse Condemnation, January 24, 2014

Here are the cert briefs in Kellberg v. Yuen, No. SCWC-12-0000266 (Haw. Jan. 22, 2014), the case in which the Hawaii Supreme Court held that there is only one "final decision" that a challenger must administratively appeal when objecting, and that due process requires the agency to give a challenger notice of the administrative process. 

We represent the prevailing Petitioner in the case, and promised to post the cert briefs, which, along with the briefs filed in the Intermediate Court of Appeals, are all of the appellate briefs filed in the case (the court did not request additional briefing after accepting cert). So here they are:

We're still at the ALI-CLE Eminent Domain conference, so have not had a chance to write up our thoughts on the opinion, so until we do, here's our colleague Rebecca Copeland's summary on her Record on Appeal blog.

Application for a Writ of Certiorari, Kellberg v. Yuen, No. SCWC-12-0000266 (Sep. 17, 2013)

RESPONDENTS/DEFENDANTS-APPELLEES CHRISTOPHER J. YUEN in his capacity as Planning Director, County of Hawai‘i and COUNTY OF HAWAI‘I’S OPPOSITION TO APPLICATION FOR A WRIT OF CERTIORARI FILED SEPTEMBER 17, 2013, Kellberg v. Yuen, No. SCWC-12-0000266 (Oct. 2, 2013)

Petitioner's Reply Brief, Kellberg v. Yuen, No. SCWC-12-0000266 (Oct. 9, 2013)


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