“When all else fails, read the instructions.”
That old adage is the first lesson to be taken from the Supreme Court of Hawaii’s decision earlier this year in Leslie v. Board of Appeals, 109 Haw. 384, 126 P.3d 1071 (2006). Disclosure: I filed an amicus brief in that case, supporting one the arguments of the property owner and the county on a different issue.
The case began when Kiilae Estates asked the County of Hawaii to approve a subdivision of its land. The county subdivision code contains a long list of information that “shall” be submitted with preliminary subdivision plats. The long-standing practice of the county Planning Department, however, was to defer submission of these materials until after the review of the preliminary subdivision plans. It made more sense, the Department claimed, to wait until later in the process when the developer’s plans are more complete, and thus the information would be more useful to planners.
After the Department approved Kiilae’s preliminary subdivision, a person claiming to exercise “PASH” rights – native Hawaiian gathering rights on less than fully developed property – appealed, asserting the information was mandatory. The trial court overturned the subdivision approval, and the county and the property owner appealed to the Hawaii Supreme Court.
The court voided the approval. Relying on the mandatory language of the Hawaii County Code, the court held the Planning Department did not have discretion to override the Code’s express requirements and postpone submission of the information, regardless of how much sense it would make to do so. The language of the Code states that the information “shall” be submitted with the application, not later, and the court held this language means what is says. “Shall” means shall.
This result should not have been overly surprising. The Code’s language is plain, and says “shall,” a term used when legislative bodies wish to have an agency undertake mandatory, nondiscretionary action.
A cardinal rule of statutory construction requires a court to read a statute literally when its language is unambiguous and does not result in absurd or impossible results. The Hawaii Supreme Court as of late has tended to be a “strict constructionist” court when it comes to plain statutory and constitutional language, often relying on dictionary definitions of words to analyze statutes. This rule of construction is grounded in the principle that unelected agencies and government officials cannot rewrite by practice laws enacted by elected officials (in statutes or ordinances) or by the people (in the constitution).
But what about the Planning Department’s long-standing practice of deferring submission of the information until later in the subdivision process when it would be more useful? The court rejected the argument that practice and custom trumped explicit statutory language. The long-standing practice of the Department could not override the express language of the Code. Thus, the court held the Planning Department practices cannot and should not alter what the Code says.
What this means to property owners and other seeking government land use approvals, therefore, is that they should rely on the language of the rule or code before blindly trusting the government’s “practice” or “custom,” even when the government itself tells you its interpretation of the rules.
But shouldn’t a property owner have a right to take the government at its word when it tells the property owners “this is the way we do it?” In many cases, yes. When a government official gives a property owner “official assurance” about what the government’s own rules require, a property owner should be entitled to rely on those assurances. After all, when regulations impact property, should not the word of the regulator matter? Property owners should not be required to challenge the government’s pronouncement of what its own rules say and mean.
These questions were not addressed by the court because they were not raised by the parties. For further background and analysis of this issue, see Arrow of Time: Vested Rights, Zoning Estoppel and Development Agreements in Hawaii, 27 U. Haw. L. Rev. 17 (2004).
While the court’s decision may not have made that much difference in the case of Kiilae – during the two years the appeal was pending, the developer resubmitted its application with the complete information – it has broader implications because it warns parties: read the instructions, and tread lightly when trusting the regulators. In the end, if it makes more sense to gather the information later in the subdivision approval process, the county council can change the Code. But it is the council that has the authority to make the change, not the Planning Department by custom or practice.
