DALTON v. CITY AND COUNTY OF HONOLULU

KOBAYASHI, Justice.

Plaintiffs filed suit on March 6, 1968. The amended complaint seeks (1) a declaratory judgment that Honolulu Ordinances 2840, 2841, 2913 and 3131 are null and void, and (2) an injunction restraining enactment of further ordinances relating to the land in question.

Jurisdiction in the circuit court was apparently based upon HRS § 632-1 and H.R.C.P. Rule 57.

Ordinances 2840 and 2841 were approved August 25, 1966. Ordinance 2840 purports to amend the General Plan of the City and County of Honolulu by changing the permitted land use for a 46.922 acre area of land in Kailua from residential and agricultural uses to medium density apartment use. Ordinance 2841 purports to make the same change in the General Plan Detailed Land Use Map. The effect of these ordinances was to permit the county to rezone the land in question, i.e., they did not in and of themselves rezone the land, rather they permitted subsequent ordinances rezoning the land to be considered.

Approximately 35 acres of the land in question are owned by the Castle Estate. Defendants Kailua Gardens and Lewers & Cooke were, at the time the suit was filed, the lessee and developer of the 35 acre Castle land. The remaining 11 acres are owned by the Bishop Estate. Defendants Kaelepulu and Island Construction were lessee and developer of the 11 acre Bishop land.

Ordinance 2913, approved December 28, 1966, took advantage of the amendments to the general plan to rezone the 37.197 acres (evidently this is the Castle land), from Rural Protective to Apartment District C. Similarly, Ordinance 3131, approved February 21, 1968, rezoned 10.969 acres1 (evidently this is the Bishop land) from Rural Class AA Residential to Apartment District C.

Defendant City and County of Honolulu (hereinafter county) enacted the ordinances in question.

Between September 24 and October 28, 1968, all parties made or joined in motions for summary judgment. On October 28, 1968, argument of the motions was heard. From the bench, the trial court denied plaintiffs' motion, and granted defendants' motions. The trial court ruled that "all of these ordinances are constitutional and valid." In granting the motion of defendant Lewers & Cooke, the trial court stated that the motion "is granted on every ground as set forth in the memorandum submitted, including laches and waiver on Page 4."

On November 4, 1968, the court entered a judgment upholding the validity of Ordinances 2913, 2840 and 2841. On December 20, 1968, the court entered a judgment upholding the validity of Ordinances 3131, 2840 and 2841.

In support of their motion for summary judgment, defendants Kaelepulu and Island Construction argued that plaintiffs lacked standing to sue. The trial court ordered Kaelepulu and Island Construction to delete reference to the defense of standing from their order and judgment.

Plaintiffs appeal from the denial of their own motion and from the granting of defendants' motions. Defendants Kaelepulu and Island Construction cross-appeal from the trial court's rejection of their argument that plaintiffs lacked standing.

Jurisdiction in this Court is based upon HRS § 632-2 and H.R.C.P. Rule 73.

The issues to be resolved by this appeal are standing, laches, and the validity of the ordinances.

I. Standing

Defendants Kaelepulu and Island Construction argue in their cross-appeal that the trial court erroneously required them to delete the ground of standing from their summary judgment order. Earlier, the county urged lack of standing in a motion to dismiss, which was denied by Judge Ogata, but the county has not appealed on this ground.

The standing necessary to pursue a declaratory judgment is described in HRS § 632-1:

Plaintiffs' interest in this case is that they "reside in very close proximity" to the proposed development. In fact two of the plaintiffs apparently "live across the street from said real property" upon which defendants plan to build high rise apartment buildings, thus restricting the scenic view, limiting the sense of space and increasing the density of population. Clearly this is a "concrete interest" in a "legal relation". Lynch v. Borough of Hillsdale, 136 N.J.L. 129, 54 A.2d 723 (1947); see generally 3 Davis, Administrative Law Treatise 283-285 (1958). Clearly, too, this is an "actual controversy", not merely a hypothetical problem.

Accordingly, we affirm the trial court's ruling that plaintiffs have standing to challenge the validity of the ordinances in question.

II. Laches

It appears from the transcript that the ground of laches for summary judgment was urged only by defendant Lewers & Cooke.2 Therefore, laches was held to apply only with respect to the 35 acre Castle land which was rezoned on December 28, 1966. At oral argument before this Court, counsel for Kaelepulu and Island Construction conceded that laches would not apply to the 11 acre Bishop land, which was rezoned February 21, 1968. Thus one of the issues on this appeal is whether plaintiffs are barred by laches from contesting the validity of the ordinance rezoning the 35 acre Castle land.

The standard for granting a summary judgment is contained in H.R.C.P. Rule 56:

The facts relevant to the issue of laches are:

1. The affidavit of plaintiff William H. Swope states that (a) he examined the Kailua Gardens file in the office of the planning commission shortly after the approval of Ordinances 2840 and 2841 on August 25, 1966; (b) he "met with the planning director and was informed by him that access and street problems were delaying the project because the fee simple owner of a proposed roadway would not grant an easement."

2. Ordinance 2913 was approved December 28, 1966, rezoning the 37.197 acres (the Castle land) from Rural Protective to Apartment District C No. R-17.

3. On February 27, 1967 Mr. Swope wrote a letter to Messrs. Tharp, Vanatta and Wong, partners in Kailua Gardens. This letter clearly states objection to the project, and suggests "a conference in the near future to avoid possible court action." Mr. Tharp's affidavit acknowledges receipt of the letter, and states that he spoke with Mr. Swope "within the next few days", advising him (a) that Kailua Gardens was "in the process of exercising their option with L.W. Campos Ranch, Ltd. to secure its lease on the Campos Dairy property in Kailua and negotiating with Harold Kainalu Long Castle to extend the term of said lease;" (b) that Mr. Walter G. Chuck was conducting these negotiations, and (c) that Mr. Swope should contact Mr. Chuck. Mr. Swope's affidavit states that after talking with Mr. Tharp he "did contact Mr. Chuck and raised his objections over the proposed project."

Mr. Tharp also states that he told Mr. Swope that Kailua Gardens was negotiating with Lewers & Cooke for a development agreement. Mr. Swope states that he "was not informed by Mr. Tharp that Kailua Gardens * * * [and others] were negotiating with Lewers & Cooke," that he "learned of negotiations with Lewers & Cooke, Inc., after a public announcement appeared in the newspapers",3 and that he "believed that Lewers & Cooke, Inc., had knowledge of [his] letter" to Kailua Gardens when it acquired the development rights from Kailua Gardens.

4. Mr. Tharp further states, that (a) on March 29, 1967, he and some of his partners agreed to purchase from Campos Ranch its leases with Castle for $1,370,000; (b) on March 29, 1967, Kailua Gardens (as general partner of Kailua Towers) entered into the leases with Mr. Castle; (c) on March 30, 1967, Kailua Gardens (as general partner of Kailua Towers) entered into a development agreement with Lewers & Cooke.

5. The affidavit of R. Gibson Rietow, an officer of Lewers & Cooke, states:

6. From the affidavit of a second Lewers & Cooke officer, it appears that between January 1, 1967, and March 30, 1968, Lewers & Cooke spent about $570,000 on the project, including $400,000 paid to Kailua Gardens pursuant to the development agreement of March 30, 1967.

7. From the affidavit of a third Lewers & Cooke officer, it appears that Lewers & Cooke (a) is obliged by the development agreement to pay Kailua Gardens $970,000 (in addition to the $400,000 already paid); (b) is obliged by the development agreement "to perform the development obligations of Kailua Towers" including the duty "to place improvements on the land" with a value of at least $9,000,000 between 1970 and 1976; and (c) "has committed itself to pay $50,000 toward the widening of Kailua Road."

The material facts as to which there is no genuine issue are: (a) Mr. Swope made known his objections to Kailua Gardens on February 27, 1967, within two months of the approval of Honolulu Ordinance 2913 which rezoned the land in question and plaintiffs filed this suit on March 6, 1968; (b) Lewers & Cooke entered in a development agreement with Kailua Gardens on March 30, 1967; and (c) by March 30, 1968, Lewers & Cooke had spent over $500,000 on the project, and was obliged to spend over $9,000,000 more over the next eight years, most of which was paid or is due under the development agreement of March 30, 1967, with Kailua Gardens.

The affidavits of Mr. Swope and Mr. Tharp are in direct conflict as to whether or not Tharp told Swope in February or early March, 1967, that Kailua Gardens was negotiating with Lewers & Cooke. This is certainly a material fact as to which there is a genuine issue necessitating a trial. Waterhouse v. Capital Investment Co., 44 Haw. 235, 249, 353 P.2d 1007, 1016 (1960).

United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Traylor v. Black, Sivalls & Bryson, Inc., 189 F.2d 213, 216 (8th Cir.1951); Doehler Metal Furniture Co. v. United States, 149 F.2d 130, 135 (2d Cir.1945); Arnstein v. Porter, 154 F.2d 464, 468 (2d Cir.1946) ["slightest doubt"]; Paul E. Hawkinson Co. v. Dennis, 166 F.2d 61, 63 (5th Cir.1948) ["beyond the peradventure of a doubt"]. Therefore Swope's affidavit must be accepted for the purpose of determining defendants' motion for summary judgment. We must assume therefore that plaintiffs did not know of Lewers & Cooke's interest in the project until sometime after March 30, 1967, on which date Lewers & Cooke entered the development agreement with Kailua Gardens. The great bulk of the damage alleged by Lewers & Cooke consists of obligations under this agreement. This damage could be held attributable to plaintiffs only on a theory that they were obliged to give notice to all unknown persons who might be interested in the project even before such unknown persons had obligated themselves.4 We are quite reluctant to consider such a novel theory, particularly since it was not articulated by the trial court, nor is there any support for it in defendants' briefs. Kennedy v. Silas Mason Co., 334 U.S. 249, 257, 68 S.Ct. 1031, 92 L.Ed. 1347 (1948).

It is therefore necessary that this case be remanded for trial on the question of whether plaintiffs are barred by laches from contesting the validity of the rezoning of the 35 acre Castle land. A decision after trial "will serve to bring into sharper focus certain issues of importance"5 which were passed over by the grant of summary judgment.

III. Validity of the Amendments to the General Plan

Plaintiffs contend that Ordinances 2840 and 2841, which purport to amend the general plan, are null and void. At first blush, HRS § 201-23 would seem to dispose of plaintiffs' contention:

However, Act 225, 1955 General Session, which authorized the creation of the commission which drafted the present Honolulu Charter, provided in § 6 that:

The present charter was approved by the electorate and ratified by the legislature. Act 261, 1959 General Session. Therefore the charter supersedes all laws in conflict therewith, including HRS § 201-23.

Defendants recognize that the charter supersedes conflicting statutes, and rely upon § 3-204 of the charter6 itself:

Defendants contend that the general plan was enacted as an ordinance, and that Ordinances 2840 and 2841 were a proper exercise of the county's general power to amend ordinances.

A. Plaintiffs argue that the general plan is not subject to the general power of amendment because such amendments are antithetical to Honolulu Charter § 5-509, which requires that the general plan be "long-range" and "comprehensive". Section 5-509 provides:

The meaning of "long-range" and "comprehensive" is clarified by reference to (1) expert testimony received by the charter commission in formulating § 5-509, and (2) the supporting data of the general plan submitted by the planning commission to the council.

Shortly before adopting the requirement that the general plan be "long-range" and "comprehensive",7 the charter commission solicited and received the advice of a city planning expert:

Minutes of the 64th Meeting of the Charter Commission held March 25, 1957, p. 2, on file in the Public Archives, at Honolulu, State of Hawaii.

In the supporting data of the 1964 general plan, p. 48, it is stated:

B. To insure that the general plan would be "long-range" and "comprehensive", stringent procedural hurdles were required to be overcome before a general plan could be adopted. These hurdles are:

The general power to amend ordinances (relied upon by defendants) contains none of these protections. Plaintiffs argue that since the general plan was adopted pursuant to a process containing special safeguards, the general power of amendment which does not contain these safeguards should not be held applicable to the general plan.

The effect of these special procedures, applicable only to the general plan, is that when the general plan is submitted to the council, the council is powerless to make additions or changes without first referring its additions or changes to the planning director and the planning commission for their recommendation. Without their recommendation, the council may adopt such additions or changes "only by the affirmative vote of at least two-thirds of its entire membership."

These stringent requirements for initial adoption of the general plan would be pointless if the council's general power to amend were held applicable to the general plan. For example, suppose that after the general plan had been prepared and recommended to the council, five of the nine members of the council proposed to change the plan. Charter § 5-512, subd. 4 would require that this proposal be referred by resolution to the planning director and the planning commission. Without the approval of the commission, the five councilmen would be powerless to adopt the change. But if the general plan could be amended as the defendants here contend, the five councilmen could join the other councilmen and adopt the general plan without proposing any changes, and thereafter, the five councilmen could promptly amend it in any manner they wished, subverting the limitation expressed in charter § 5-512, subd. 4.

C. Charter § 5-512, subd. 2 provides in pertinent part:

This section attempts to avoid the

Haar, "In Accordance with a Comprehensive Plan", 68 Harv.L.Rev. 1154 at 1158 (1955). It puts teeth into the requirement that the general plan be "long-range" by providing a test for courts to use in reviewing zoning ordinances, i.e., if a zoning ordinance does not "conform to and implement" the general plan, then the city did not have the power to adopt it.

In the context of the present case § 5-512, subd. 2 would have prevented the city from adopting Honolulu Ordinances 2913 and 3131 without first amending the general plan, since clearly Ordinances 2913 and 3131 do not conform to the unamended general plan. To allow the city to amend the general plan (under its general power to amend ordinances) and then adopt a zoning ordinance contrary to the unamended general plan, is to allow the city to accomplish by two ordinances exactly what the charter sought to prohibit.

D. The charter commission's first draft § 4-902 expressly gave to the council the power to amend the general plan:

The charter commission eliminated this provision from later drafts of the charter.

The charter commission's first draft § 4-909 provided:

These provisions were significantly altered before they eventually became § 5-512 of the charter:

Notice that: (1) The reference in the first draft to adopting anything less than a whole general plan was eliminated; and (2) At the same time, the restrictive clause in the first draft § 4-909.2 was expanded to prohibit adoption of zoning ordinances contrary to the general plan.

Clearly then, the charter commission considered giving the council an unlimited power to amend the general plan and to adopt zoning ordinances. Ultimately, however, the charter commission rejected the sections granting the council the power to amend the general plan, and wrote into the charter a specific prohibition against zoning ordinances which do not conform to and implement the general plan.

E. Defendants place great reliance upon charter § 5-515:

Defendants argue that "or any amendments thereto" refers to "the general plan" in § 5-515, subd. 1.

A careful review of the legislative history of § 5-515 and of the other pertinent sections of the charter compels this Court to conclude that the amendment process must meet certain strict procedural hurdles. Looking at the totality of the problem before us with the whole of Honolulu as one indivisible unit, we conclude that the better and correct interpretation of charter § 5-515 requires that in the process of amending the general plan, not only a public hearing is necessary but the council, the planning commission and the planning director are required to follow a course of conduct consistent with the safeguards that were required in the initial adoption of the general plan. This interpretation will not only meet the spirit of the law but fulfill the true intent of the laws covering the general plan.

We conclude that the city's general power to amend ordinances is not applicable to the general plan. The purpose of Honolulu Charter § 5-509 was to prevent the deterioration of our environment by forcing the city to articulate long-range comprehensive planning goals. The purpose of Honolulu Charter § 5-512, subd. 2 was to prevent the compromise of these planning goals. These sections of the charter allow less room for the exertion of pressure by powerful individuals and institutions. To allow amendment of the general plan without any of the safeguards which were required in the adoption of the general plan would subvert and destroy the progress which was achieved by the adoption of the charter's sections on planning, and by their effectuation in the 1964 general plan.

We hold that the safeguards specified by the charter as applicable to the adoption of the general plan must be followed in altering the general plan. The record in this case shows that the county failed to follow a course of conduct consistent with the safeguards that are required in the initial adoption of the general plan. These safeguards require that alterations in the general plan must be comprehensive and long-range. More specifically, if the city believes the general plan of 1964 is obsolete, then comprehensive updating of the 1964 plan's "studies of physical, social, economic and governmental conditions and trends" is in order. If new study reveals, among other things, (a) a housing shortage that was underestimated in the 1964 general plan, (b) the most rational solution to this housing shortage is more apartments, (c) some of these new apartments should most rationally be in Kailua, (d) the land set aside in the 1964 general plan for apartments in Kailua must be increased to meet this need, and (e) the acreage in question in this case is the best site for additional apartments (rather than some other site, or rather than some other use for this land to fit some other need underestimated in the 1964 plan); then the general plan may be amended to permit a change in zoning. The vice of the amendment to the general plan questioned by this suit is precisely that it did not consider these alternatives.

Since the trial courts' grant of summary judgment for defendants was erroneous, we reverse. Plaintiffs' motion for summary judgment should have been granted with regard to the 11 acre Bishop land. We remand for entry of judgment for plaintiffs and against those defendants concerned with the 11 acre Bishop land.

With regard to ordinances 2840, 2841 and 2913, as they affect the 35 acre Castle land, a trial is necessary on the issue of laches, therefore the case is remanded to the circuit court. If laches applies, with regard to ordinance 2840 and 2841 or with regard to ordinance 2913, the judgment should be entered for the defendants concerned with the 35 acre Castle land and the validity of said ordinances 2840, 2841, 2913, as they affect the 35 acre Castle land shall be a legal fact and be unquestioned. If, however, laches does not apply, then judgment should be entered for plaintiffs.

ABE, Justice, dissenting, with whom HAWKINS, Circuit Judge, joins.

The majority of the court holds that Ordinances 2840 and 2841, which purported to amend the general plan for the City and County of Honolulu, are null and void. I dissent from the majority decision.

The majority in its opinion holds that "the better and correct interpretation of charter § 5-515 requires that in the process of amending the general plan, not only a public hearing is necessary but the council, the planning commission and the planning director are required to follow a course of conduct consistent with the safeguards that were required in the initial adoption of the general plan."

A study of the Charter shows that §§ 3-204 and 5-515 are applicable to the amendment of the general plan which was duly adopted by an ordinance.

The general plan for the City and County of Honolulu was duly adopted by the City Council on May 7, 1964, as Ordinance No. 2443.1

It would then follow that the general plan as an ordinance would be subject to the general power of the council to revise or repeal ordinances under the provisions of § 3-204,2 however, subject to the provisions of § 5-515 of the Charter.

The pertinent portion of § 5-515 reads:

As I interpret the provisions of § 5-515, before the general plan can be amended the planning commission is mandated to hold a public hearing before it makes a recommendation to the city council for any amendment to the general plan and the council may hold a public hearing.

The record shows that the planning commission held a public hearing on the two ordinances at Kailua on June 2, 1966, after notice of the public hearing was duly published in the Honolulu Advertiser and the Honolulu Star-Bulletin on May 22, 1966. The record also shows that the notice of the public hearing was sent to applicable governmental agencies, three community associations and owners and lessees of the land under consideration for change. There is no question that the planning commission met all of the requirements of § 5-515 before recommending the adoption of the amendment to the general plan.

Then Ordinance Nos. 2840 and 2841 were enacted by the City Council by votes as follows:

The record shows that no public hearing was held by the council prior to the enactment of the ordinances; however, § 5-515, I believe, gives the council discretion as to the holding of a public hearing; and thus, it must be deemed that the action of the council was valid and legal under § 5-515.

Section 5-515 clearly states the requirement of the amending procedure of the general plan; and it is difficult to understand the majority's act of reading into the section other procedural requirements not provided for therein — namely, that the same procedural steps be taken for the enactment of an ordinance amending the general plan as required for the adoption of the general plan. The majority holds that the amendment procedures must meet "stringent procedural hurdles" such as:

The intent of the drafters of the Charter may have been as stated by the majority, that is, quoting the majority decision:

Now, assuming what has been said by the majority of the court is correct, is it for this court to read provisions into the section to prevent this? Was it not the responsibility of the drafters of the Charter to write into § 5-515 that procedural requirement specifically? I believe where a legislative body has failed, this court should not legislate even to prevent evil because "it is not for this court to usurp legislative power and enter into the legislative field. Pillsbury v. United Engineering Co., 342 U.S. 197, 72 S.Ct. 223, 96 L.Ed. 225 (1952); State v. Moeller, 50 Haw. 110, 433 P.2d 136 (1967); Marks v. Waiahole Water Co., 36 Haw. 188 (1942); People v. Olah, 300 N.Y. 96, 89 N.E.2d 329, 19 A.L.R.2d 219 (1949)." A.C. Chock, Ltd. v Kaneshiro, 51 Haw. 87, 93, 451 P.2d 809, 813 (1969).

The majority, I believe, attempts to justify its interpretation of § 5-515 on the ground that as interpreted the section will "fulfill the true intent of the laws covering the general plan." However, as we have said in Public Utilities Commission v. Narimatsu, 41 Haw. 398 (1956) at page 401:

The planning commission and the city council have met all of the requirements for amending the general plan and I would hold that Ordinance Nos. 2840 and 2841 valid and legal.

Even assuming that for the purpose of amending the general plan, the same procedural steps are required as for the adoption of the general plan, as set forth in the majority opinion, I believe all of the hurdles were met or overcome.

The record shows that applications for the amendment to the general plan were filed by the land owners or developers with the planning director. After receiving these requests, the inter-office memos in the record show that studies were made in connection with these applications. Thereafter, these requests, together with the studies, were referred by the planning director to the planning commission. The commission on May 5, 1966, set a public hearing on the matter at Kailua for June 2, 1966.

Further, as stated above, notice of the public hearing was duly given and the public hearing was duly held on June 2, 1966. After the hearing, the planning commission acted favorably and recommended amendments to the general plan, subject to construction of adequate streets. The commission submitted drafts of the proposed amendments to the corporation counsel on July 28, 1966, who submitted the draft of the ordinances to the council on August 1, 1966. The ordinances passed third reading on August 25, 1966, with eight aye votes, no nay vote and one absent, thus the ordinances passed with more than two-third votes of its entire membership, thereby meeting the requirements even where the planning commission had originally disapproved the proposed changes to the general plan prior to its approval.

The record shows studies were made in connection with the applications for amendments to the general plan and in the absence of proof to the contrary, it should be deemed that the planning commission and the city council considered that the general plan adopted in 1964 to be obsolete; that comprehensive "studies of physical, social, economic and governmental conditions and trends" were made; that the new study revealed, among other things, "(a) a housing shortage that was underestimated in the 1964 general plan, (b) the most rational solution to this housing shortage is more apartments, (c) some of these new apartments should most rationally be in Kailua, (d) the 67 acres set aside in the 1964 general plan for apartments in Kailua must be increased to meet this need, and (e) the acreage in question in this case is the best site for additional apartments (rather than some other site, or rather than some other use for this land to fit some other need underestimated in the 1964 plan) * *."3

It is the general rule that the laws are presumed to be legal and constitutional. Goldblatt v. Town of Hempstead, N.Y., 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962); Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960). The burden is upon the person assailing the legality of a statute. Spears v. Honda, 51 Haw. 1, 449 P.2d 130 (1968); Koike v. Board of Water Supply, etc., 44 Haw. 100, 352 P.2d 835 (1960). This burden, I believe, the plaintiffs have failed to overcome.

Thus, I cannot agree that even under the additional requirements read into § 5-515 by the majority for the enactment of amendments to the general plan, the ordinances should be declared illegal and thus null and void.

I also disagree with the majority on the issue of laches.

If the ordinances are illegal because they were not enacted as required under the provision of the City Charter, can the defense of laches be applicable to this suit for a declaratory judgment to have the ordinances ruled illegal, null and void?4

If the ordinances are illegal, they are illegal, and laches, if there were on the part of the plaintiffs, will not make them legal.