Professional Documents
Culture Documents
Electronically Filed
Supreme Court
SCWC-17-0000181
10-MAR-2023
08:47 AM
Dkt. 33 OP
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HOOMOANA FOUNDATION,
Respondent/Respondent/Appellant-Appellee,
vs.
and
SCWC-17-0000181
statute, 2005 Haw. Sess. Laws Act 205, §§ 2-3 at 669-71, which
. . . .
. . . .
. . . .
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amendment.
I. BACKGROUND
A. Factual Background
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(Footnotes omitted.)2
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B. Procedural History
1. Administrative Proceedings
unwarranted.
statements with the LUC arguing that a special use permit, not a
determined:
intervene as moot.
allowed, but rather means that overnight camps are not an “open
present matter.
circumvent the land use laws and achieve spot zoning by seeking
agricultural lands.
. . . .
. . . .
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addressed in Mahaʻulepu.
permit, and (3) uses expressly not permitted under HRS § 205-
with the purposes of the land use statutes and the agricultural
The LUC argued that because the third category of uses fails to
applies to uses subsection (a) is silent on, but does not apply
. . . .”
is unwarranted.
addressed.
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HRS § 91-14(g).
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B. Statutory interpretation
Hawaiʻi 262, 266, 500 P.3d 447, 451 (2021) (citing State v.
Ruggiero, 114 Hawaiʻi 227, 231, 160 P.3d 703, 707 (2007)).
Ito v. Invs. Equity Life Holding Co., 135 Hawaiʻi 49, 61, 346
Abercrombie, 126 Hawaiʻi 318, 320, 271 P.3d 613, 615 (2012)).
III. DISCUSSION
Comm’n, 64 Haw. 265, 267 n.2, 639 P.2d 1097, 1099 n.2 (1982).
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. . . .” (Emphasis added.)
but only when the use would promote the effectiveness and
added).
Invs. Equity Life Holding Co., 135 Hawaiʻi at 61, 346 P.3d at 130
and reasonable uses” and “only when the use would promote the
land.
370, 384 (1996)). If special use permits were available for the
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controls over the general default rule and special use permit
In re R Child., 145 Hawai‘i 477, 485, 454 P.3d 418, 426 (2019)
(quoting State v. Coney, 45 Haw. 650, 662, 372 P.2d 348, 354
v. Bonded Inv. Co., 54 Haw. 385, 507 P.2d 1084 (1973)). HRS
special use permits are unavailable for the public and private
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but only when the use would promote the effectiveness and
141, 169, 324 P.3d 951, 979 (2014) (quoting Curtis v. Bd. of
Appeals, Cnty. of Haw., 90 Hawai‘i 384, 396, 978 P.2d 822, 834
6 In its answering briefs before the ICA, the foundation argued the
record is inadequate because it does not include the special use permit
application. The special use permit application is not in the record, though
the homeowners appear to have attached excerpts of the special permit
application as an exhibit. The foundation did not raise the issue on
certiorari. Given our disposition in this case – that the special use permit
procedure is not available for overnight camps on class A and B rated
agricultural district land – the fact that the special use permit is not in
the record is inconsequential. Throughout its briefing, the foundation
admitted it is “seeking a special use permit for the operation of an
overnight campground.”
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P.2d 906 (1990), superseded by statute, 2005 Haw. Sess. Laws Act
State v. Chang, 144 Hawai‘i 535, 553, 445 P.3d 116, 134 (2019).
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HRS §§ 205-4.5(b) and 205-6, despite the fact that golf courses
IV. CONCLUSION
7 The LUC’s contention that the foundation waived its argument regarding
Mahaʻulepu will not be addressed in light of this decision overruling
Mahaʻulepu.
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906 (1990), superseded by statute, 2005 Haw. Sess. Laws Act 205,
Judgment on Appeal.
Douglas R. Wright
(Deborah K. Wright on
the briefs) for petitioners
Puʻunoa Homeowners Association,
Inc. and Courtney L. Lambrecht
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Electronically Filed
Supreme Court
SCWC-17-0000181
10-MAR-2023
08:49 AM
Dkt. 35 OPD
---o0o---
HO‘OMOANA FOUNDATION,
Respondent/Respondent/Appellant-Appellee,
vs.
and
SCWC-17-0000181
I. Introduction
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529, 229 P.3d 313, 347 (2010) (citing Gray v. Admin. Dir., 84
Hawaiʻi 138, 143 n.9, 931 P.2d 580, 585 n.9 (1997)); State v.
Dannenberg, 74 Haw. 75, 83, 837 P.2d 776, 780 (1992) (citations
See State v. Garcia, 96 Hawaiʻi 200, 206, 29 P.3d 919, 925 (2001)
(quoting Hilton v. S.C. Pub. Rys. Comm’n, 502 U.S. 197, 202
1 Mahaʻulepu held that golf courses, which are deemed an impermissible use
on class A and B agricultural lands by Hawai‘i Revised Statutes (“HRS”) § 205-
4.5(a)(6) (1985), can still be authorized by special permit pursuant to HRS
§§ 205-4.5(b) (1985) and 205-6 (1985). Mahaʻulepu, 71 Haw. at 336–37, 790
P.2d at 908-09.
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days or less[.]”
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respectfully dissent.
II. Discussion
(citation omitted).
court; it then includes the respective substituted parties. See Majority op.
at note 3.
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Haw. at 336, 790 P.2d at 909.4 Maha‘ulepu thus held that uses
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State v. Nesmith, 127 Hawaiʻi 48, 60, 276 P.3d 617, 629 (2012).
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03; 2012 Haw. Sess. Laws Act 97, § 6 at 209-11; 2012 Haw. Sess. Laws Act 113,
§ 2 at 407-09; 2012 Haw. Sess. Laws Act 167, § 1 at 591-92; 2012 Haw. Sess.
Laws Act 329, § 3 at 1112-13; 2014 Haw. Sess. Laws Act 55, § 2 at 143-44;
2015 Haw. Sess. Laws Act 228, § 2 at 660-61; 2016 Haw. Sess. Laws Act 173, §
2 at 550-51; 2017 Haw. Sess. Laws Act 12, § 15 at 28-30; 2017 Haw. Sess. Laws
Act 129, § 2 at 500-02; 2018 Haw. Sess. Laws Act 49, § 3 at 174; 2022 Haw.
Sess. Laws Act 131, § 2 at 306-08.
Finally, since 1990, the legislature has made the following amendments
to HRS § 205-6 (which authorizes special use permits): 1998 Haw. Sess. Laws
Act 237, § 6 at 815-16; 2005 Haw. Sess. Laws Act 183, § 5 at 589; 2021 Haw.
Sess. Laws Act 153, § 8 at 584.
6 The LUC argues that the legislature’s 2005 and 2006 amendments to
chapter 205 rejected Maha‘ulepu.
The 2005 and 2006 amendments clearly established that golf courses and
driving ranges are prohibited on all classes of agricultural lands, except
for legacy golf courses and driving ranges approved before July 1, 2005. See
2005 Haw. Sess. Laws Act 205, §§ 2-3 at 669-71; 2006 Haw. Sess. Laws Act 250,
§ 1 at 1082. The 2005 amendment amended HRS § 205-2(d) to include the
following sentence: “For the purposes of this chapter, golf courses and golf
driving ranges are prohibited in agricultural districts, except as provided
in section 205-4.5(d).” 2005 Haw. Sess. Laws Act 205, § 2 at 670. It also
added a new subsection (d) to HRS § 205-4.5: “(d) Notwithstanding any other
provision of this chapter to the contrary, golf courses and golf driving
ranges approved by a county before July 1, 2005, for development within the
agricultural district shall be permitted uses within the agricultural
district.” Id. § 3 at 671. In 2006, the legislature amended HRS § 205-2(d)
to read in part: “Agricultural districts shall not include golf courses and
golf driving ranges, except as provided in section 205-4.5(d).” 2006 Haw.
Sess. Laws Act 250, § 1 at 1082.
Even though the amendments expressly addressed only golf courses and
driving ranges, and not the other excluded uses in HRS § 205-4.5(a)(6), the
LUC contends the amendments show the legislature’s disapproval of all the
excluded uses in subsection (a)(6), including overnight camps. The LUC
invokes the maxim noscitur a sociis, which means “words of a feather flock
together,” or, “the meaning of a word is to be judged by the company it
keeps.” See State v. Aluli, 78 Hawai‘i 317, 321, 893 P.2d 168, 172 (1995)
(quoting State v. Deleon, 72 Haw. 241, 244, 813 P.2d 1382, 1384 (1991)).
The maxim noscitur a sociis falls flat here. The plain language of the
2005 and 2006 amendments addresses only golf courses and driving ranges, not
overnight camps — overnight camps do not “keep company” with golf courses in
the amendments. See id. “[T]he contrast between a specific subject matter
which is expressed and one which is not mentioned leads to an inference that
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the latter was not intended to be included within the statute.” State v.
Choy Foo, 142 Hawaiʻi 65, 74, 414 P.3d 117, 126 (2018) (quoting Int’l Sav. &
Loan Ass’n v. Wiig, 82 Hawai‘i 197, 201, 921 P.2d 117, 121 (1996)). Here, we
must infer that if the legislature intended to prohibit the authorization of
overnight camps through a special use permit as well as golf courses and
driving ranges, it would have done so. See id. Maha‘ulepu’s reasoning
applied to all the uses excluded in HRS § 205-4.5(a)(6), and we must presume
the legislature knew this. See Nesmith, 127 Hawaiʻi at 60, 276 P.3d at 629.
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Ito v. Invs. Equity Life Holding Co., 135 Hawaiʻi 49, 61, 346
Abercrombie, 126 Hawaiʻi 318, 320, 271 P.3d 613, 615 (2012)).
351 P.3d 1138, 1144 (2015) (quoting State v. Pali, 129 Hawai‘i
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4.5(a)(6).
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Haw. Lab. Rels. Bd., 97 Hawaiʻi 528, 536, 40 P.3d 930, 938
(2002))).
(Emphasis added.)10
HRS § 165-2 (2011 & Supp. 2012) defines a “farming operation” as:
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4.5(a)(14).
III. Conclusion
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