More on the Supreme Court of Hawaii opinion in Brescia v. North Shore Ohana (No. 27211, July 12, 2007). The Court took up no less than seven points on appeal, but the most interesting to me was the analysis of the estoppel issue.
The case involved Kauai property within the coastal “Special Management Area.” The SMA is, generally speaking, the land nearest the shoreline, as defined in Hawaii’s Coastal Zone Management Act, Haw. Rev. Stat. ch. 205A. The CZMA established special controls for this strip of land, and the counties have authority to regulate uses within the SMA, including the location of the “shoreline setback,” which is (like other setbacks) an unbuildable zone that “sets back” structures from the shoreline. The statewide minimum setback is established by the CZMA, but the individual counties are permitted to establish greater setbacks, which vary from county-to-county.
“Estoppel” means that if a property owner receives and relies upon “official assurances” from government officials about an issue within their “ambit of authority,” the government is precluded from later changing its official mind on the issue. For more on estoppel and the related principle of vested rights, see my recent law review article on the subject. In Brescia, the county planning commission applied a 60-70 foot setback as shown in a subdivision map. The landowner asserted that county officials had informed him that the setback was smaller:
Brescia maintains that “for the past 16 years, the County had understood and represented to the public that the applicable setback was 20 feet.” As support for this contention, Brescia submitted a letter written to a neighboring property owner by Deputy Planning Director Sheilah Miyake, in which the shoreline setback for the neighbor’s property was confirmed to be 20 feet according to the Kauai Rules. Brescia states that “[a]t the time of and prior to acquiring Lot 6 for more than $900,000, Brescia and his agents inquired and were informed by members of the Kauai Planning Department that the setback for Lot 6 was 20 feet inland of the certified shoreline.” According to the Commission, Brescia submitted an affidavit “which stated he ‘was informed by Kauai County Officials’, whom he did not name, [that] the shoreline setback on Lot 6 was 20 feet inland of the certified shoreline.”
The Court’s decision did not turn on whether the landowner had in fact been so informed. Rather, the Court assumed he had, but held that because the planning commission had the final authority to establish setback lines, assurances by planning department functionaries were not “official assurances” on which the landowner had a right to rely. The Court put it somewhat differently, however, holding:
Estoppel “cannot be applied to actions for which the agency or agent ofthe government has no authority.” Turner v. Chandler, 87 Hawai`i 330,334, 955 P.2d 1062, 1066 (App. 1998) (quoting Filipo v. Chang, 62 Haw.626, 634, 618 P.2d 295, 300 (1980) (other citation omitted)) (emphasisadded).
. . . .
“‘[a]gents of the government must act within the bounds of theirauthority; and one who deals with them assumes the risk that they areso acting.'” (Quoting Sangre de Cristo Dev. Co., Inc. v. United States,932 F.2d 891, 894 (10th Cir. 1991).). The authority to establishsetback lines within the SMA, as stated in Brescia’s deed, rests withthe Commission. It is well accepted that a public employee not vestedwith decision making authority may not bind the state in its exerciseof the police power. See Godbold v. Manibog, 36 Haw. 206 (1942)(holding that a state cannot be estopped by the unauthorized acts orrepresentations of its officers).
True enough. But the more interesting question, in my opinion (and one admittedly not before the Court in Brescia) is what happens when the official or agency charged with “decision making authority” incorrectly informs a landowner, and the landowner relies on that representation — is it sufficient for the government to say that the official’s interpretation of the law was wrong, and that landowners always risk that officials may be wrong?
Under Waianae Model Neighborhood Area Ass’n v. City & County of Honolulu, 55 Haw. 40, 514 P.2d 861 (1973), the inquiry should include whether the official was within the “ambit of his duty,” and whether the official’s interpretation of the law was “at least debatable” —
[A]n act of an administrative official which is without any semblance of compliance with or authorization in an ordinance, is beyond his competence and is utterly void; but if an act of such official, done in good faith and within the ambit of his duty, upon an erroneous and debatable interpretation of an ordinance, is no more that an irregularity, and the validity of such act may not be questioned after expenditures have been made and contractual obligations incurred in reliance thereon in good faith.
Unfortunately, the facts in Brescia did not squarely present this issue. Maybe next time.