No. 27804 (July 13, 2009)
Opinion pdf
OPINION OF THE COURT BY DUFFY, J.
Petitioners/Plaintiffs-Appellees Save Diamond Head Waters, LLC; Kapiolani Park Preservation Society, LLC; Mike Beason; and Richard K. Quinn (collectively SDHW) filed a timely Application for Writ of Certiorari (Application) urging this court to review the January 9, 2009 judgment of the Intermediate Court of Appeals (ICA) based on its Opinion in Save Diamond Head Waters, LLC. V. Hans Hedemann Surf. Inc. (SDHW). No. 27804, 119 Hawai'i 452, 198 P.3d 715 (App. 2008). The ICA's Opinion reversed the circuit court of the first circuit's (circuit court) April 19, 2006 Amended Final Judgment on Administrative Appeal, Vacating and Modifying Decision of the Zoning Board of Appeals Matter Number 2004/ZBA-04.
In its Application, SDHW presented the following questions:1. Must a reviewing court use the de novo standard of review to ascertain the scope of authority granted to an administrative agency by a legislative body?
2. Does an administrative agency (here the [Department of Permitting and Planning ("DPP")]} have the power to craft and interpret administrative rules in a fashion contrary to the plain language of the governing ordinances?
3. Must an administrative agency apply existing statutory standards when exercising its quasi-judicial function or may it ignore such standards and craft new "reasonable" standards?
4. Must the reviewing courts consider and apply the statutorily imposed standards in reviewing the quasi-judicial determinations of the agency?
5. Docs an administrative agency exceed its power by conditioning a zoning variance on the applicant undertaking to fulfill a public police function, such as maintaining order on a seawall hundreds of yards from the applicant's premises?
We accepted SDHW's Application on March 16, 2009, and oral argument was held on May 7, 2009.
For the following reasons, we (1) vacate the ICA's Opinion and (2) affirm the circuit court's amended final judgment on the grounds that the Director's mixed finding of fact and conclusion of law that the Hans Hedemann Surf, Inc.'s (Surf School) use of the New Otani Kaimana Beach Hotel's (Hotel) premises was a permissible change in nonconforming use was clearly erroneous as it is not supported in the record. [footnote omitted]
