Monday, June 11, 2007

Procedural Use of Agency Declaratory Rulings

The Hawaii Supreme Court opines on the procedural use of agency declaratory rulings under HRS § 91-8, and states its disdain for “back door” appeals, in Citizens Against Reckless Development (“CARD”) v. Zoning Board of Appeals of the City and County of Honolulu (“ZBA”), Haw. S. Ct. No. 27264, May 31, 2007.

CARD challenged the issuance of a conditional use permit (“CUP”) to Wal-Mart by the Director of the Department of Planning and Permitting, City and County of Honolulu (“Director”). CARD appealed the issuance of the CUP to the ZBA, but the ZBA dismissed the appeal because CARD failed to timely appeal to the ZBA within thirty-days under LUO § 21-1.40 and accompanying ZBA Rule § 22-2.

Subsequently, CARD sought a declaratory ruling from the Director as provided by HRS § 91-8 and accompanying DPP Rule § 3-1. The Director of DPP dismissed the request and the First Circuit upheld the Director’s decision. CARD appealed the First Circuit’s decision to the Hawaii Supreme Court in the instant case. There, the court upheld the First Circuit's decision, stating that

Based on the text and structure of the statute [HRS § 91-8], its legislative history, and relevant caselaw, we agree with Wal-Mart that the declaratory ruling procedure was not intended to be utilized to seek review of agency determinations that have already been made and which have not been timely appealed.

The court opined that “the declaratory ruling procedure of HRS § 91-8 is meant to provide a means of seeking a determination of whether and in what way some statute, agency rule, or order, applies to the factual situation raised by an interested person,” and “[i]t was not intended to allow review of concrete agency decisions for which other means of review are available.” Consequently, the proper procedural role for an administrative declaratory order is for “an individual to seek an advance determination of how some law or order applies to his or her circumstances.”

In addition, CARD also argued that the Court’s pervious decision in “Swire Properties is very clear that the § 91-8 Petition is available to interested parties who had not received notice of an action of the Director to obtain review of the Director's action[.]” The court rejected this argument stating that the Swire Properties verbiage relied upon by CARD was dicta, and even if the dicta were applicable, “Swire Properties . . . was not intended to authorize an untimely “back door” appeal of Director decisions by requesting a declaratory ruling.”

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