56 Haw. 235 | Haw. | 1975
This is an appeal by plaintiff, a non-profit corporation, from a judgment of the court below in favor of defendants and against the plaintiff. For the reasons hereinafter set forth, we vacate the judgment and dismiss the complaint.
On October 4, 1972, the planning commission of the city and county of Honolulu (hereinafter commission) held a public hearing on the application of Headrick Development, Inc., (hereinafter HDI) for Melemanu Woodlands, Unit II, planned development housing situate in Waipio, Oahu.
The president of plaintiff association, who was the first person to speak at the public hearing, then informed the chairman of the commission that Unit II, the proposed development under consideration, was also involved in litigation. In response to such information, the chairman was advised by the deputy corporation counsel that Unit II was
Thereafter on October 6, 1972, the planning department of the city and county of Honolulu transmitted to HDI a letter which propounded numerous inquiries which arose during the public hearing. Two of these questions related to whether or not Unit II is a part of the pending litigation mentioned during the public hearing and whether or not HDI would be able to legally dedicate Waikalani Drive, the access road, after it has been improved to the city and county of Honolulu. These questions were then referred by HDI to its attorneys who responded by letter dated October 13,1972, addressed to HDI. On October 16, 1972, HDI wrote to the planning department in answer to its letter of October 6, 1972. Copies of these communications were submitted by the planning department to the commission for its consideration prior to November 1,1972. No similar inquiries were submitted to the plaintiff for response and the corporation counsel was not consulted on any of these subjects.
On November 1, 1972, the commission recommended its approval of this development with certain modifications or restrictions. This recommendation was thereafter submitted to the mayor for transmission to the city council of the city and
On November 30,1972, before the city council was able to consider and act upon the application based upon the recommendation of the commission, the plaintiff association instituted this action to enjoin defendants, George Koga and George Akahane,
On January 15, 1973, after HDI was allowed to intervene as a party defendant,
We agree with the court below that the instant action is premature
It is admitted by plaintiff that the city council is free to either grant the application with or without modification or to deny the same.
If the council should grant the application, against all protestation by members of plaintiff association, and the land involved in the application is redesignated by ordinance as a planned development district, it will be time enough for the plaintiff association to institute judicial proceedings to review the validity of the ordinance because of the alleged due process infirmities of its underpinnings, including defects in the planning commission’s proceedings. Dalton v. City and County of Honolulu, 51 Haw. 400, 462 P.2d 199 (1969).
Judgment vacated and complaint dismissed.
The site for this proposed planned development housing is located in Waika-kalaua Gulch, Waipio, Oahu, one mile northeast of Kamehameha Highway. HDI is the owner-developer of another planned development housing designated as Mele-manu Woodlands, Unit I, which is located next to the same highway on its north side. There are 43 one acre lots situated between Unit I and the proposed Unit II, and homes have been built on 18 of these lots. Eleven of these homes are owned and occupied by members of plaintiff association.
The creation of a planned development housing is authorized under article 10 of ordinance No. 3234 of the city and county of Honolulu. Section 21-104(c) thereof provides: “Within 30 days after receiving the Director’s report, the Planning Commission shall hold a public hearing on the application, notice of which shall be published at least 10 days prior to such hearing. Within 30 days after such hearing the Commission shall submit its recommendations to the Mayor for transmittal to the City Council. The Commission may recommend approval in whole or in part, with or without modifications, or recommend disapproval.”
In addition to these two members of the city council, Rev. Eugene B. Connell and Robert R. Way, individually and in their respective capacities as chairman of the commission and as planning director of the city and county of Honolulu, and the city and county of Honolulu, a municipal corporation, were named as defendants.
The then applicable provisions of subparagraph 2 of section 5-515 of the charter of the city and county of Honolulu read as follows:
“2. Prior to recommending the adoption of the general plan and any development plan or any subdivision or zoning ordinance or any amendments thereto, and prior to the adoption of subdivision regulations or any amendments thereto, the planning commission shall hold a public hearing thereon at which interested persons shall be afforded a reasonable opportunity to be heard. Notice of the time and place of the hearing shall be published at least ten days prior to such hearing in a daily newspaper of general circulation in the city.”
In this appeal HDI was also an appellee and a cross-appellant. After the argument before us, HDI withdrew by stipulation of all of the parties which stipulation was approved by this Court.
The following conclusion of law appears in the trial court’s findings of fact and conclusions of law:
“5. Until the City Council shall refuse to allow members of the Plaintiff to be heard on matters relevant to Headrick’s application, this action is premature. ”
Section 21-104(d) of ordinance No. 3234 of the city and county of Honolulu provides: “The City Council shall either grant the application, with or without modification, or deny such application. If the application is granted, the area of land involved shall be redesignated as a planned development district by ordinance and such ordinance shall incorporate the Plan, including any condition or restriction that may be imposed by the Council.”