I’ve finally had a chance to sit down and read the recent Hawaii Supreme Court opinion in Citizens Against Reckless Development v. Zoning Bd. of Appeals of the City and County of Honolulu (No. 27264, May 31, 2007), a case I posted about here. I won’t detail the complex procedural history of the case, as the most interesting aspect of the opinion deals with whether a request for an agency to issue a declaratory ruling under Haw. Rev. Stat. § 91-8 can effectively substitute for an appeal of an agency decision, and the facts that resulted in that holding are fairly straightforward.
The Honolulu Director of Planning and Permitting issued a Conditional Use Permit (CUP) to Wal-Mart build a store and “Sam’s Club” in urban Honolulu. A citizen’s group, CARD, objected, but apparently missed the deadline to file an administrative appeal of the issuance of the CUP with the ZBA (the board that reviews decisions of the Director). Instead, CARD asked the ZBA to issue a declaratory ruling under Haw. Rev. Stat. § 91-8, which allows “any interested person: to seek a ruling on the “applicability” of an agency’s rules or governing statutes:
Any interested person may petition an agency for a declaratory order as to theapplicability of any statutory provision or of any rule or order of theagency. Each agency shall adopt rules prescribing the form of the petitionsand the procedure for their submission, consideration, and prompt disposition. Orders disposing of petitions in such cases shall have the same status as otheragency orders.
The request for a declaratory ruling, the Court held, was a thinly disguised attempt to attack the issuance of the CUP:
Although styledas a “petition for a declaratory ruling as to the applicability ofcertain provisions of the [LUO] to the317,000 square-foot Wal-Mart/Sam’s Club development proposed for theKeeaumoku Superblock,” in reality five out ofsix of its specific requests sought a declaration that the CUP wasimproperly issued.
The Court held that an attack on the issuance of the CUP must have been accomplished under the agency’s appeal procedures, not through a declaratory judgment. Declaratory rulings are reserved for those situations where the law, as applied to a particular factual circumstance, is not known:
Use of thedeclaratory ruling procedural device only makes sense where theapplicability of relevant law is unknown, eitherbecause the agency has not yet acted upon particular factualcircumstances, or for some other reason the applicability ofsome provisions of law have not been brought into consideration.
The Court noted, in its key holding, that declaratory rulings are prospective only:
The legislativehistory of the HAPA [the Hawaii Administrative Procedures Act, Haw. Rev. Stat. ch. 91] and the caselaw of another jurisdiction are also inaccord with the view that thedeclaratory ruling procedure cannot be used to review decisions thatagencies have already rendered.
This case is important in land use cases since it clarifies the procedures to be used when challenging administrative actions, which generally have a very short time deadline. To challenge an agency’s decision in a particular case, the challenger must conform to the deadlines for agency appeals. Declaratory rulings are only available for prospective situations.