Anyone who practices land use law is familiar with the primary jurisdiction and exhaustion of administrative remedies doctrines. These rules require courts to either dismiss claims or abstain from exercising jurisdiction unless and until an administrative agency has first developed the record and passed on the issues. If you've got notice of the action you claim is wrong, you must challenge that decision and seek a contested case in the agency's review process as a prerequisite to obtaining judicial review.
The latest case from the Hawaii Intermediate Court of Appeals, Dancil v. Arakawa, No. CAAP-11-001029 (Nov. 16, 2012), presents these issues in a familiar context: the County of Maui approved a coastal zone permit allowing a Halloween party to go forward in Lahaina, and someone was against it. After the County issued the permit, the objector did not appeal that decision up through the County's administrative appeals process within the 10-day statute of repose, but instead filed an original jurisdiction action in state court.
The court dismissed the action, holding that primary jurisdiction over the claim lay in the administrative tribunal, and the ICA affirmed. The challenger should have brought its claim in the administrative forum and the 10 day window had long since closed, so end of story and nothing much to see here, folks, please move along. Read the opinion for a fairly straightforward application of primary jurisdiction.
But this case raises three points worth noting:
- The case processed through the ICA with amazing speed. The trial court's judgment was entered on December 9, 2011, and the court of appeals issued its opinion less than a year later. This is fast for the ICA. We've had cases that have been sitting in that court for years, as do our colleagues. Was there something special about a case involving a Halloween party that made resolution more pressing? Or was this perhaps just an easy case that the court could knock out of its queue with relative speed?
- The opinion does not really deal with the more interesting issues of when a third-party is obligated to utilize the administrative process, and whether Due Process requires notice informing a party that they've got a short time frame in which to use the administrative review process. In cases where the permit applicant is denied a permit and it is clear that the applicant must challenge that decision immediately, it is clear that they have notice and should be subject to the exceedingly short statutes of repose that are often presented in such cases (in this case, 10 days). But what about those cases where a third party may not have received actual notice of the permit? Is the third party presumed to have knowledge by virtue of a mere publication of notice (in this case, the State Office of Environmental Quality Control is required to publish notice of the County's decision)? And what about those cases where party is not made aware of the short statute of repose and the requirement of pursuing relief in a specialized forum, and it is not obvious that it must do so? May the agency remain silent and let the statute of repose pass? In those cases, at least one court has held that the agency has an obligation to provide the party with express notice. See Brody v. Village of Port Chester, 434 F.3d 121 (2d Cir. 2005). While these questions are interesting, they were not answered by the Dancil opinio, and will be left for future resolution.
- Finally, what do the facts in this case say about the level of regulation that exists for what most (the plaintiffs perhaps excepted) believed was a fairly inconsequential activity in the coastal zone? Yes, the County determined that the Halloween party would not have a signficant impact on the environment, but the regulatory scheme required a complex process to assess whether the proposed activity would have an impact. If this level of scrutiny is given a Halloween party, is it any wonder that Hawaii landowners believe that their proposals for more intense uses are subject to a dizzying and seemingly endless array of regulations? We wonder whether a challenge to a Halloween party was the most efficient use of regulatory and judicial resources.