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.