Dairy Road Partners v. The Maui Planning Commission ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-DEC-2021
08:02 AM
Dkt. 93 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
DAIRY ROAD PARTNERS, A HAWAI#I LIMITED PARTNERSHIP,
Appellant-Appellant,
v.
THE MAUI PLANNING COMMISSION, AN AGENCY OF THE COUNTY
OF MAUI, A POLITICAL SUBDIVISION OF THE STATE OF HAWAI#I,
A & B PROPERTIES, INC., A HAWAI#I CORPORATION,
Appellees-Appellees
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CIVIL NO. 11-1-0455 (1))
SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Wadsworth and Nakasone, JJ.)
Appellant-Appellant Dairy Road Partners (DRP) appeals
from (1) the "Order Granting (1) Appellee A&B Properties, Inc.'s
Motion for Summary Judgment filed August 2, 2016, and (2)
Appellee Maui Planning Commission's Joinder in Appellee A&B
Properties, Inc.'s Motion for Summary Judgment filed September 7,
2016" (Order Granting Summary Judgment and Joinder); and (2)
"Final Judgment" filed on October 27, 2016 (2016 Final Judgment),
both filed by the Circuit Court of the Second Circuit (Circuit
Court).1
On appeal, DRP contends that the Circuit Court erred in
granting Appellee-Appellee A&B Properties, Inc.'s (A&B) Motion
1
The Honorable Rhonda I.L. Loo presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
for Summary Judgment and Appellee-Appellee Maui Planning
Commission's (Planning Commission) Joinder.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
dismiss this appeal for mootness.
This is the second appeal from the underlying case, for
which the pertinent background is as follows. A&B applied for a
Special Management Area Permit (Permit) with the County of Maui
Planning Department to construct a project (Project) on land
along Haleakalâ Highway in Kahului, Hawai#i (Subject Property).
The Planning Commission scheduled a public hearing on the Permit
application to be held on April 26, 2011. A Notice of Hearing
(Notice) was published and sent via certified mail pursuant to
the Planning Commission rules to all owners and certain lessees
within 500 feet of the Subject Property.
On April 25, 2011, DRP, a lessee, filed a Petition to
Intervene (Petition), asserting that the anticipated traffic from
the Project would affect DRP's gas station business (Dairy Road
Property).
At the April 26, 2011 hearing, the Planning Commission
voted to deny the Petition and to approve the Permit; and
subsequently entered its July 12, 2011 Findings of Fact,
Conclusions of Law, Decision, and Order Denying Dairy Road
Partners' Petition to Intervene Filed on April 25, 2011 (2011
Planning Commission FOF-COL-Order).
2011 Appeal to Circuit Court
On July 21, 2011, DRP appealed the 2011 Planning
Commission FOF-COL-Order to the Circuit Court.
On September 7, 2011, A&B filed a Motion to Dismiss
Appeal Filed on July 21, 2011, or In the Alternative, For Summary
Judgment, arguing that DRP failed to meet its burden in
establishing that it was a "person aggrieved" with an actual or
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threatened injury, or that such injury was traceable to the
Planning Commission's conduct, which the Circuit Court granted.
On September 29, 2011, the Circuit Court entered its Order
Granting Appellee A&B Properties, Inc.'s Motion to Dismiss Appeal
Filed on July 21, 2011, or, In the Alternative, For Summary
Judgment (Order Granting A&B's Motion to Dismiss), Filed on
September 7, 2011.
2011 Appeal to Intermediate Court of Appeals
On October 31, 2011, DRP appealed the Circuit Court's
Order Granting A&B's Motion to Dismiss. We concluded that DRP
had sufficiently established standing based on a declaration by
its general partner Glenn Nakamura (Nakamura), stating that DRP
was likely to suffer declining gasoline sales due to
traffic-related issues related to the A&B development project,
and thus, was a person aggrieved under Hawai#i Revised Statutes
(HRS) § 91-14. Dairy Rd. Partners v. Maui Planning Comm'n, No.
CAAP-XX-XXXXXXX, 2015 WL 302643, at *4-6 (App. Jan. 23, 2015)
(mem.). We explained that:
[t]here is nothing in the record to suggest why Dairy Road
Partners, if it was allowed to intervene, would not or could
not find relief for the injury it alleges. Indeed,
intervention itself would at least "likely provide relief"
by necessarily focusing the agency's attention further on
the intervenor's concerns.
Dairy Rd. Partners, 2015 WL 302643, at *6. We vacated and
remanded the matter back to Circuit Court.
2016 Circuit Court Proceedings on Remand
Upon remand, A&B filed a Motion for Summary Judgment on
August 2, 2016, joined by the Planning Commission. A&B
challenged DRP's standing, arguing that DRP lost its leasehold
interest in the Dairy Road Property through a separate judicial
foreclosure proceeding of the lease (Foreclosure Case),2 and
thus, DRP had no interest remaining in the case. A&B submitted
2
The foreclosure proceedings were docketed as American Savings
Bank, F.S.B. v. Dairy Rd. Partners under Civil No. 2CC131000283.
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as an exhibit, an Order Granting Plaintiff Maui Gas Ventures
LLC's Motion for Confirmation of Sale, For Distribution of
Proceeds, For Issuance of Writ of Ejectment/Posession and For
Deficiency Judgment as to Defendant Dairy Road Partners Filed
March 29, 2016, filed June 21, 2016 (Foreclosure Order).
In its Opposition, DRP argued that summary judgment was
"procedurally improper" in an administrative appeal to the
Circuit Court and that it was improper for the Circuit Court to
consider the Foreclosure Order. DRP did not address the
Foreclosure Case or the Foreclosure Order in its Opposition.
The Circuit Court held a hearing on the Motion for
Summary Judgment on September 15, 2016. At the close of the
hearing, the Circuit Court ruled that,
Diary [sic] Road Partners standing, as an agreed [sic]
party due to traffic concerns, arose from its leasehold
interest. That interest no longer exists. Diary [sic] Road
Partners does not dispute that it lot -- lost its
leasehold interest in the subject property.
Therefore, while standing may have existed
previously, the Court is finding that Diary [sic] Road
Partners no longer has standing to challenge SMA permit.
On October 10, 2016, the Circuit Court entered its Order Granting
Summary Judgment and Joinder. On October 27, 2016, the Circuit
Court entered its Final Judgment.
This timely appeal followed.
Concurrent Foreclosure Case (2CC131000283)
As mentioned supra, starting in 2013, the Subject
Property was involved in foreclosure proceedings in a separate
case, American Savings Bank, F.S.B. v. Dairy Rd. Partners, Civil
No. 2CC131000283.3 The parties in the Foreclosure Case were
plaintiff American Savings Bank, F.S.B. (American Savings) and
defendants DRP and general partner Nakamura. On January 12,
2015, Maui Gas Ventures LLC (Maui Gas Ventures) filed a Notice
and Substitution of [Maui Gas Ventures] as Real Party in
3
The Honorable Joseph E. Cardoza presided.
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Interest for [American Savings], to substitute Maui Gas Ventures
for American Savings as the real party in interest. Maui Gas
Ventures LLC v. Dairy Rd. Partners, No. CAAP-XX-XXXXXXX, 2018 WL
2316509, at *1 (App. May 22, 2018) (mem.).4 Throughout the
Foreclosure Case, judgments were entered in favor of Maui Gas
Ventures and against DRP. At the conclusion of the Foreclosure
Case, Maui Gas Ventures purchased the Subject Property. DRP
appealed these judgments in a consolidated appeal that included,
inter alia, a series of orders granting summary judgment, sale of
the property, confirmation of sale, distribution of proceeds,
writ of ejectment/possession, and a deficiency judgment.
On May 22, 2018, this court issued its Memorandum
Opinion affirming the judgments entered by the Circuit Court in
the Foreclosure Case. Maui Gas Ventures LLC, 2018 WL 2316509, at
*4.
Current Appellate Proceedings
In its Opening Brief, DRP contends, inter alia,5 that
the Circuit Court erred in deciding a motion for summary judgment
in an administrative appeal, and erred in holding that it did not
have subject matter jurisdiction because, at the time of filing
its Opening Brief, DRP had supplied a declaration that it had
been at the Subject Property since 1985. DRP argues that while
4
We have discretion to take judicial notice "where the equity of
the situation dictates" and may take judicial notice of court records which
are not part of the record on appeal. State v. Kwong, 149 Hawai #i 106, 117,
482 P.3d 1067, 1078 (2021) (quoting Eli v. State, 63 Haw. 474, 478, 630 P.2d
113, 116 (1981)).
5
Specifically, DRP contends that: (1) the Circuit Court erred in
deciding a motion for summary judgment in an administrative appeal to the
Circuit Court, where HRS § 94-14(b) states in pertinent part that an appeal to
the [C]ircuit [C]ourt "shall be treated in the same manner as an appeal from
the Circuit Court to the intermediate appellate court;" (2) the Circuit Court
erred in holding on a motion for summary judgment that the Circuit Court had
no subject-matter jurisdiction; (3) the Circuit Court erred in holding on a
motion for summary judgment that the Planning Commission correctly denied
DRP's Petition by finding there was no good cause to excuse DRP's untimely
filing where the notice of hearing was mailed in accordance with Planning
Commission Rule; and (4) the Circuit Court erred in holding on a motion for
summary judgment that the Commission correctly denied DRP's Petition by
finding that DRP was not entitled to be mailed a notice of hearing where the
Dairy Road Property was located more than 500 feet from the Subject Property.
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the Foreclosure Order states, "[U]pon closing of escrow . . . the
Purchaser or his written nominee shall be entitled to immediate
and exclusive possession of the Mortgaged Property," there is
nothing in the record to indicate that the purchaser of the Lease
has immediate and exclusive possession of the Subject Property.
DRP argues that, at the time of filing its OB, as the Foreclosure
Order was under appeal, the "record on appeal therefore continues
to support DRP's standing" as an "aggrieved person" pursuant to
our Memorandum Opinion in Dairy Rd. Partners, 2015 WL 302643, at
*6.
A&B argues that DRP lacks standing to appeal as a
"person aggrieved" based on DRP's leasehold interest in the Dairy
Road Property and the "allegedly adverse effect that the Project
would have on traffic." A&B requests that this court take
judicial notice of the Foreclosure Case and its then-pending
appeal. A&B asserts that DRP lost its leasehold interest through
the Foreclosure Case, a fact that is undisputed by DRP. A&B
states, "The leasehold interest was sold, the purchaser was
granted 'immediate and exclusive possession' of the Dairy Road
Property and DRP's interest in the Property was 'forever barred
and foreclosed.'" A&B argues that even if the Foreclosure Case
has been appealed, the appeal makes no difference because DRP did
not obtain a stay of enforcement of the Foreclosure Order and
Judgment pending appeal in this case.
In light of the reference to the Foreclosure Order and
Foreclosure Case in both parties' briefs, on September 7, 2021,
we issued an Order to Show Cause (OSC) to provide the parties an
opportunity to explain why, given DRP losing its leasehold
interest in the Subject Property, this appeal should not be
dismissed for mootness and lack of subject matter jurisdiction.
Mootness
"It is axiomatic that mootness is an issue of subject
matter jurisdiction. Whether a court possesses subject matter
jurisdiction is a question of law reviewable de novo." Kaleikini
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v. Thielen, 124 Hawai#i 1, 12, 237 P.3d 1067, 1078 (2010)
(quoting Hamilton ex rel. Lethem v. Lethem, 119 Hawai#i 1, 4-5,
193 P.3d 839, 842-43 (2008)). "[I]f the parties do not raise the
issue of a lack of subject matter jurisdiction," this court will
raise it sua sponte. Kapuwai v. City & Cty. of Honolulu Dep't of
Parks & Recreation, 121 Hawai#i 33, 40, 211 P.3d 750, 757 (2009)
(quoting Tamashiro v. Dep't of Human Servs., State of Hawai#i,
112 Hawai#i 388, 389, 146 P.3d 103, 113 (2006)); see also Sierra
Club v. Castle & Cooke Homes Hawaii, Inc., 132 Hawai#i 184, 190
n.13, 320 P.3d 849, 855 n.13 (2013) (citing Chun v. Employees'
Ret. Sys. of the State of Hawaii, 73 Haw. 9, 13, 828 P.2d 260,
263 (1992)).
The parties filed timely responses to the OSC. In its
Response to our OSC, DRP contends that this appeal should not be
dismissed for mootness for several reasons. First, DRP argues
that it has standing and is still considered an "aggrieved
person" pursuant to HRS § 91-14 and as recognized by this court
in Dairy Rd. Partners, 2015 WL 302643, at *4-6. Second, DRP
argues that there is no authority holding that once an aggrieved
person has become entitled to judicial review under HRS § 91-14,
that subsequent events, such as the Foreclosure Case, can render
an appeal moot. Third, DRP argues that if a foreclosure of its
leasehold interest caused DRP to lose its standing as an
"aggrieved person" to appeal under HRS § 91-14(a), it "would be
improper, particularly since DRP's appeal to the circuit court is
from a denial of a petition to intervene rather than from the
dismissal of a lawsuit." DRP does not provide authority to
support its third argument. DRP also did not address the
mootness doctrine, nor any of the exceptions to the mootness
doctrine. We may disregard a "particular contention if the
appellant makes no discernible argument in support of that
position." Hawaii Ventures, LLC v. Otaka, Inc., 114 Hawai#i 438,
478-79, 164 P.3d 696, 736-37 (2007) (citation omitted).
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A&B argues that mootness applies to contested case
appeals under HRS § 91-14 and that the appeal is moot because
DRP's leasehold interest is foreclosed. Planning Commission
argues that dismissal for lack of appellate jurisdiction is
appropriate under the authorities cited by this court.
DRP's appeal is moot because relief is no longer
available to DRP.
DRP argues that there is no authority holding that
subsequent events can make relief no longer available to an
aggrieved person entitled to judicial review of the Planning
Commission's decision pursuant to HRS § 91-14. DRP claims that:
[T]he actualization of the very harm DRP's general partner
predicted would result from [A&B]'s development project and
that served as the basis for the ICA finding injury-in-fact
- a further reduction in gasoline sales because regular
customers are avoiding traffic on the road fronting DRP's
station (which in turn has resulted in DRP defaulting on its
mortgage and being foreclosed upon) – is now a new basis to
argue that DRP no longer has standing to appeal the
Commission's decision denying DRP’s Petition . . . .
DRP's argument, however, does not address how this
court is able to grant effective relief if DRP does not have an
interest in the Subject Property that was the subject of its
Petition to the Planning Commission. See Bank of New York Mellon
v. R. Onaga, Inc., 140 Hawai#i 358, 366, 400 P.3d 559, 567 (2017)
(quoting Kaho#ohanohano v. State, 114 Hawai#i 302, 332, 162 P.3d
696, 726 (2007)) ("A case is moot if the reviewing court can no
longer grant effective relief.")(brackets omitted).
[A] case is moot where the question to be determined is
abstract and does not rest on existing facts or rights.
Thus, the mootness doctrine is properly invoked where events
have so affected the relations between the parties that the
two conditions of justiciability relevant on appeal—adverse
interest and effective remedy—have been compromised.
R. Onaga, Inc., 140 Hawai#i at 365, 400 P.3d at 566 (brackets in
original) (quoting Okada Trucking Co., Ltd. v. Bd. of Water
Supply, 99 Hawai#i 191, 195-96, 53 P.3d 799, 803-04 (2002)).
Thus, if an event occurs that renders it impossible for an
appellate court to grant an appellant "any effectual relief
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whatever, the court will not proceed to a formal judgment, but
will dismiss the appeal." City Bank v. Saje Ventures II, 7 Haw.
App. 130, 134, 748 P.2d 812, 815 (1988) (quoting Mills v. Green,
159 U.S. 651, 653 (1895)).
Our courts have recognized that the sale of a subject
property during the pendency of an appeal renders an appeal moot,
as no effective relief may be granted by the court. Lathrop v.
Sakatani, 111 Hawai#i 307, 313, 141 P.3d 480, 486 (2006).
Further, it is the "appellant's burden to seek a stay if post-
appeal transactions could render the appeal moot." Id. (quoting
In re Gotcha Int'l L.P., 311 B.R. 250, 255 (B.A.P. 9th Cir.
2004)).
Here, it is apparent from the record that we do not
have the ability to grant DRP effective relief if this case is
vacated and remanded to the Circuit Court for judicial review
pursuant to HRS § 91-14. It is undisputed by DRP that its
leasehold interest in the Subject Property was sold in the
Foreclosure Case. Instead, DRP bases its argument on the fact
that it was still in possession of the property as of the filing
of its Opening Brief in 2017. However, the confirmation of sale
and its accompanying judgments in the Foreclosure Case, including
a writ of ejectment/posession, were affirmed on appeal by this
court in 2018. As the judgment was affirmed, possession was
granted to Maui Gas Ventures, the purchaser of the Lease, and DRP
is without possession of the property. As DRP did not attempt to
obtain a stay of proceedings to enforce the judgment pending
appeal, it lost possession upon entry of the 2016 Final Judgment.
See R. Onaga, Inc., 140 Hawai#i at 367, 400 P.3d at 568; Lathrop,
111 Hawai#i at 313, 141 P.3d at 486.
Even if this court found that DRP had standing in the
2011 Appeal, because the Foreclosure Case and its subsequent
appeal were affirmed and have since concluded, and DRP has since
lost the Lease and possession of the property, there is no
effective remedy that can be granted to DRP in this case. See
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Lathrop, 111 Hawai#i at 313, 141 P.3d at 486. If this court
vacates and remands the instant case for judicial review by the
Circuit Court, the Circuit Court will be left to decide whether
the Planning Commission should have granted DRP's Petition under
circumstances where DRP no longer possesses the Subject Property.
See R. Onaga, Inc., 140 Hawai#i at 366, 400 P.3d at 567. As the
conditions of justiciability relevant on appeal of "adverse
interest and effective remedy" are no longer present, we conclude
that this case must be dismissed as moot.6 R. Onaga, Inc., 140
Hawai#i at 365, 400 P.3d at 566; see Saje Ventures II, 7 Haw.
App. at 134, 748 P.2d at 815.
Therefore, IT IS HEREBY ORDERED that this appeal is
dismissed.
DATED: Honolulu, Hawai#i, December 28, 2021.
On the briefs:
/s/ Keith K. Hiraoka
Frederick W. Rohlfing III Presiding Judge
(Case Lombardi & Pettit)
for Appellant-Appellant /s/ Clyde J. Wadsworth
Associate Judge
Calvert G. Chipchase
(Cades Schutte) /s/ Karen T. Nakasone
for Appellee-Appellee Associate Judge
A & B Properties, Inc.
Kristin K. Tarnstrom
Deputy Corporation Counsel
County of Maui
for Appellee-Appellee
Maui Planning Commission
6
The Hawai#i Supreme Court has recognized three exceptions to the
mootness doctrine: (1) the "capable of repetition, yet evading review"
exception; (2) the public interest exception; and (3) the "collateral
consequences" exception. Hamilton ex rel. Lethem, 119 Hawai #i at 5, 7-10, 193
P.3d at 843, 845-48; Flores v. Ballard, 149 Hawai #i 81, 88 n.7, 482 P.3d 544,
551 n.7 (App. 2021), cert. granted, SCWC-XX-XXXXXXX, 2021 WL 2555639 (Haw.
June 22, 2021). DRP did not address any of these exceptions in its OSC
Response, and they are waived. See Hawaii Ventures, 114 Hawai #i at 478-79,
164 P.3d at 736-37.
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