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NO. CAAP-18-0000077

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

LIMIT SKYLINE HONOLULU, Plaintiff-Appellant,

v.

PROSPECT PROPERTIES LLC; DIRECTOR OF 

THE DEPARTMENT OF PLANNING & PERMITTING 

OF THE CITY AND COUNTY OF HONOLULU,

Defendants-Appellees, 

and

DOE DEFENDANTS 1-100, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CIVIL NO. 16-1-0047-01 DEO)

SUMMARY DISPOSITION ORDER

(By: Hiraoka, Presiding Judge, and Wadsworth and McCullen, JJ.)

This appeal involves a proposed condominium project in

the lower Punchbowl area of Honolulu. Plaintiff-Appellant Limit

Skyline Honolulu (Limit Skyline) appeals from the January 8, 2018

Final Judgment (Judgment), entered in favor of DefendantsAppellees Prospect Properties LLC (Prospect) and the Director

(Director) of the Department of Planning and Permitting of the

City and County of Honolulu (DPP) (collectively, Appellees) by

the Circuit Court of the First Circuit (Circuit Court). Limit

Skyline also challenges the following orders entered by the

Circuit Court: (1) the August 30, 2017 "Order Granting in Part

[Prospect's] Motion for Summary Judgment on Counts I and II of

the Complaint for Declaratory Relief, Filed August 9, 2016"

(Order Granting MSJ on Count I); (2) the December 7, 2017

"Findings of Fact, Conclusions of Law, Decision and Order Denying

Electronically Filed

Intermediate Court of Appeals

CAAP-18-0000077

30-MAY-2024

07:50 AM

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[Limit Skyline's] Motion for Summary Judgment on Count II of its

Complaint for Declaratory, Injunctive and Other Relief and

Granting Summary Judgment in Favor of [Appellees]"

(FOFs/COLs/Order Granting MSJ on Count II); and (3) the

December 7, 2017 "Findings of Fact, Conclusions of Law, Decision

and Order Granting [Prospect's] Motion for Summary Judgment on

Counts III and IV of [Limit Skyline's] Complaint Filed January 8,

2016" (FOFs/COLs/Order Granting MSJ on Counts III and IV).1/ 

On appeal, Limit Skyline contends that the Circuit

Court erred in: (1) concluding that the requirement for an

environmental assessment (EA) under HRS § 343-5(a)(1) was not

triggered by the Skyline Honolulu Project (the Project); (2)

concluding that the requirement for an EA under HRS § 343-5(a)(4)

was not triggered by the Project; (3) granting summary judgment

in favor of Prospect on Count II of the Complaint; and (4)

dismissing Counts II, III, and IV of the Complaint for failure to

exhaust administrative remedies.2/ Limit Skyline also contends

that the Director erred in several respects in approving a

Punchbowl Special District (Major) Permit (PSD Permit) for the

Project – contentions that appear to overlap with its points of

error challenging the Circuit Court's summary judgment rulings. 

After reviewing the record on appeal and the relevant

legal authorities, and giving due consideration to the issues

raised and the arguments advanced by the parties, we resolve

Limit Skyline's contentions as follows.

I. Discussion

A. Summary Judgment on Count I

 In Count I of the Complaint, Limit Skyline alleged

1/ The Honorable Jeannette H. Castagnetti presided over this case

from the filing of the complaint on January 8, 2016, to August 9, 2017, and

entered the August 30, 2017 Order Granting MSJ on Count I.

The Honorable Dean E. Ochiai presided over this case beginning

August 9, 2017, and entered the December 7, 2017 FOFs/COLs/Order Granting MSJ

on Count II, the December 7, 2017 FOFs/COLs/Order Granting MSJ on Counts III

and IV, and the January 8, 2018 Judgment.

2/ Limit Skyline's points of error have been restated and condensed

for clarity.

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that Prospect violated HRS § 343-5(a)3/ and former Hawai#i

Administrative Rules (HAR) § 11-200-6(b)(l)(D) by "failing to

prepare an EA/[Environmental Impact Statement] for the . . .

Project before applying for a [PSD] Permit." (Capitalization

altered.) In the Order Granting MSJ on Count I, the Circuit

Court concluded that "[HRS] Chapter 343 is not implicated" by the

Project, i.e., no EA was required, and thus summary judgment on

Count I in favor of Prospect was appropriate.

Limit Skyline's first two points of error appear to

challenge the Circuit Court's Order Granting MSJ on Count I. We

address each point in turn.

1. Use of State or County Lands or Funds

Limit Skyline contends that the Circuit Court erred in

concluding that an EA was not required under HRS § 343-5(a)(1),

where the Project will replace 11 small residences with a 110-

unit condominium complex and parking garage, and will therefore

likely require the use of state or county lands or funds. 

HRS § 343-5(a)(1) requires an EA for an action that

proposes "the use of state or county lands or the use of state or

county funds[.]" In construing the phrase "use of state or

3/ HRS § 343-5(a) (2022) states, in pertinent part:

§ 343-5 Applicability and requirements. (a) Except

as otherwise provided, an environmental assessment shall be

required for actions that:

(1) Propose the use of state or county lands or the

use of state or county funds, other than funds

to be used for feasibility or planning studies

for possible future programs or projects that

the agency has not approved, adopted, or funded,

or funds to be used for the acquisition of

unimproved real property; provided that the

agency shall consider environmental factors and

available alternatives in its feasibility or

planning studies; provided further that an

environmental assessment for proposed uses under

section 205-2(d)(11) or 205-4.5(a)(13) shall

only be required pursuant to section 205-5(b);

. . . .

(4) Propose any use within any historic site as

designated in the National Register or Hawaii

Register, as provided for in the Historic

Preservation Act of 1966, Public Law 89-665, or

chapter 6E[.]

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county lands," the supreme court has stated:

[W]hether a proposed activity constitutes a "use of state or

county lands" depends on the nature of the activity and the

extent of the involvement of state or county lands. [Nuuanu

Valley Ass'n v. City & Cnty. of Honolulu, 119 Hawai#i 90,

103, 194 P.3d 531, 544 (2008)]. When the proposed activity

utilizes state or county lands in a decidedly

inconsequential or negligible manner, like the mere

connection to state or county lands in Nuuanu Valley, or

when the use is hypothetical, like the "potential use" of a

public highway in Citizens[ for Prot. of N. Kohala Coastline

v. Cty. of Hawai#i, 91 Hawai#i 94, 979 P.2d 1120 (1999)],

then the activity does not rise to the level of "use"

contemplated by [the Hawai#i Environmental Policy Act

(HEPA)]. When, on the other hand, the proposed activity

utilizes state or county lands in an actual and more

substantial way, the activity qualifies as a "use" under

HEPA. Compare Nuuanu Valley, 119 Hawai#i at 103–04, 194

P.3d at 544–45 (connecting to existing county lines was not

a "use"), with Kahana Sunset Owners Ass'n v. Cty. of Maui,

86 Hawai#i 66, 71, 947 P.2d 378, 383 (1997) (installing a

new drainage line beneath a public street that would be

connected to an existing culvert beneath a public highway

was a "use"), Citizens, 91 Hawai#i at 103, 979 P.2d at 1129

(constructing two underpasses beneath a state highway was a

"use"), and Sierra Club v. Office of Planning, State of

Haw., 109 Hawai#i 411, 415–16, 126 P.3d 1098, 1102–03 (2006)

(constructing sewage and water transmission lines by

tunneling beneath state highways was a "use").

Umberger v. Dep't of Land & Nat. Res., 140 Hawai#i 500, 522-23,

403 P.3d 277, 299-300 (2017).

In moving for summary judgment on Count I, Prospect

produced evidence that the Project did not propose to use any

state or county funds. Prospect's evidence included the

Declaration of Thomas A. Schnell, the Project's lead planner,

supported by multiple exhibits. Schnell declared, among other

things:

5. The Project will connect privately-owned water

lines, sewage lines and roadways to existing county

infrastructure. The City and County of Honolulu has

determined that there is sufficient capacity in the existing

infrastructure in the sewer and water systems for the

Project. The Project will not involve the upgrade of the

City's sewer system or water main.

6. The Project does not involve (a) installation of

new drainage systems on or under state or county lands; (b)

construction of any roadways on or over state or county

lands; or (c) construction of sewage lines or water lines

across or under state or county lands.

7. The Project does not propose the use of state or

county lands or funds.

 

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In the Order Granting MSJ on Count I, the Circuit Court

concluded in relevant part:

Even assuming the factual assertions made in [Limit

Skyline's] opposition were property [sic] attested to by a

person with personal knowledge as required by Hawai#i Rules

of Civil Procedure (HRCP) 56(e) and/or supported by exhibits

properly authenticated, the information provided by [Limit

Skyline], when viewed in the light most favorable to [Limit

Skyline], do not establish a genuine issue of material fact

for trial that the subject project proposes "the use of

state or county lands or the use of state or county funds"

as set forth in HRS [§] 343-5(a)(l). [Limit Skyline's]

claim of a use of state or county funds is speculative and

is not based on any specific evidence or facts put forth by

[Limit Skyline]. 

(Formatting altered; emphasis added). 

On appeal, Limit Skyline does not point to any facts in

the record supporting its argument that the Project will require

the use of state or county lands or funds. Instead, Limit

Skyline simply contrasts the existing "small old residences" with

the Project's "~110 new residential units" and concludes that it

is "highly likely" that state and county expenditures of funds

will be needed. At the December 29, 2016 hearing on Prospect's

motion, the Circuit Court questioned Limit Skyline on where it

had presented any admissible evidence of the proposed use of

state or county lands or funds so as to trigger an EA under HRS

§ 343-5(a)(1) or (4). Limit Skyline was unable to point to

specific admissible evidence to support its allegations. 

In sum, Limit Skyline failed to meet its burden of

producing admissible evidence to create a genuine issue of

material fact regarding whether the Project proposed the use of

state or county lands or funds.4/ The Circuit Court did not err

on this basis in the Order Granting MSJ on Count I.

2. Use Within an Historic Site

Limit Skyline contends that the Circuit Court erred in

concluding that an EA was not required under HRS § 343-5(a)(4)

4/ Limit Skyline argues that none of the exemptions in the sincerepealed and replaced HAR § 11-200-8(a) apply here. HAR § 11-200-8 was titled

"Exempt Classes of Action" and provided various exemptions from the

requirement for an EA once such a requirement was triggered. Because Limit

Skyline failed to raise a genuine issue of material fact that would trigger an

EA, an exemption from an EA requirement was not necessary. 

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because the Project is not "within the boundaries of the National

Memorial Cemetery." Limit Skyline argues that the Memorial

Cemetery in Punchbowl Crater is "within the area of potential

effect and secondary impacts" of the Project. 

HRS § 343-5(a)(4) requires an EA for an action that

proposes "any use within any historic site as designated in the

National Register or Hawai#i register, as provided for in the

Historic Preservation Act of 1966, Public Law 89-665 or chapter

6E." (Emphasis added.) The plain language of the statute thus

requires a use "within" a designated historic site.

There is no dispute that the Project was proposed to be

located on the lower slopes of Puowaina, also known as Punchbowl

Crater, and that both Punchbowl Crater and the National Memorial

Cemetery (Memorial Cemetery) within the crater are listed on the

National Register of Historic Places. However, in moving for

summary judgment on Count I, Prospect produced evidence that the

Project did not propose any use within these sites. Prospect's

evidence included a February 29, 2016 letter from Dr. Susan A.

Lebo, Archaeology Branch Chief of the Department of Land and

Natural Resources' (DLNR) State Historic Preservation Division

(SHPD), who stated that "the boundary of the historic property

does not extend to the current [Project] area." 

Addressing Limit Skyline's argument that the Project

would potentially affect the Memorial Cemetery, the Circuit Court

found and concluded that:

Even assuming the factual assertions made in the

opposition were property [sic] attested to by a person with

personal knowledge as required by HRCP 56(e) and/or

supported by exhibits properly authenticated, . . . when

viewing the record evidence in the light most favorable to

[Limit Skyline], there is no evidence that the subject

property falls within the boundaries of the [Memorial

Cemetery] or proposes any use within said property. Thus

the subject project does not propose "any use within any

historic site designated in the National Register or

Historic [sic] Register, as provided for in the Historic

Preservation Act of 1966, Public Law 89-665, or chapter 6E"

as set forth in HRS [§] 343-5(a)(4).

(Formatting altered; emphasis added). 

Limit Skyline contends that the Circuit Court erred

because the Project "is likely to" adversely affect the Memorial

Cemetery due to the Project's "deep sub surface excavations into

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Punchbowl's volcanic tuff slope that may destabilize the hillside

beneath and immediately below the" cemetery site, therefore

constituting a "reasonably foreseeable" use within the Memorial

Cemetery. (Emphasis added.) Limit Skyline cites past incidents

of rock slides on the outer slopes of Punchbowl Crater to support

its assertion that the Project might impact the cemetery within

the crater. However, the cited exhibits do not appear to show

damage "within" the historic cemetery site. In any event, Limit

Skyline did not present any evidence that the Project is within

the boundary of the historic property.5/

In sum, Limit Skyline failed to meet its burden of

producing admissible evidence to create a genuine issue of

material fact regarding whether the Project proposed any use

within an historic site as set forth in HRS § 343-5(a)(4). The

Circuit Court did not err on this basis in the Order Granting MSJ

on Count I.

B. Summary Judgment on Count II

 In Count II of the Complaint, Limit Skyline alleged

that Prospect violated HRS Chapters 6E6/ and 343 by "failing to

provide an assessment of the Project's impact on historic and

cultural resources together with a complete archaeological

inventory survey [(AIS)]." (Capitalization altered.) Count II

also alleged that: "the [AIS] is incomplete"; Prospect "failed

to provide SHPD with an opportunity to review the Project as

5/ Limit Skyline also argues that the Project will impact view planes

to and from Punchbowl Crater, but does not explain how this issue would

trigger an EA under HRS § 343-5(a)(4) where the project is not within an

historic site. 

6/ In particular, HRS § 6E-42 (Supp. 2023) provides, in pertinent

part:

§ 6E-42 Review of proposed projects. (a) Except as

provided in section 6E-42.2, before any agency or officer of

the State or its political subdivisions approves any project

involving a permit, license, certificate, land use change,

subdivision, or other entitlement for use, which may affect

historic property, aviation artifacts, or a burial site, the

agency or office shall advise the department and prior to

any approval allow the department an opportunity for review

and comment on the effect of the proposed project on

historic properties, aviation artifacts, or burial sites,

consistent with section 6E-43, including those listed in the

Hawaii register of historic places. 

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required by HRS Chapter 6E prior to applying for a PSD permit";

Prospect "should be required, at a minimum, to prepare an EA as

required by HRS § 343 prior to any approvals needed by the

Project"; and "[SHPD] must also be given an opportunity to review

the impact of the Project on all historic properties that may be

impacted by the Project, which is not only part of the

environmental assessment under HRS Chapter 343, but required by

HRS Chapter 6E."

In the FOFs/COLs/Order Granting MSJ on Count II, the

Circuit Court first reiterated that "HRS Chapter 343 is not

implicated in this case[,]" and further concluded that there was

no genuine issue of material fact that: 

2. [Limit Skyline] did not initiate, let alone

exhaust, the administrative remedies available from the

Board of Land and Natural Resources [(BLNR)] for the alleged

violation of HRS Chapter 6E or the regulations adopted

thereunder.

4. [sic] HRS § 6E-42 only requires that SHPD be given

an opportunity to review and comment, which in fact occurred

in this case.

5. [sic] Furthermore, although an AIS was never

required by SHPD for this Project, preparation of an AIS was

required by Defendant DPP, and an AIS was prepared for this

Project and accepted by SHPD.

5. With regard to the issuance of the PSD Permit,

under the Revised Charter of Honolulu [(Honolulu Charter)]

§ 6-1516, [Limit Skyline] is required to appeal the decision

of the Director of DPP to the [Zoning Board of Appeals

(ZBA)].

6. To the extent [Limit Skyline] is arguing that

Defendant DPP should not have issued the PSD Permit without

an accepted AIS, that argument was not presented to the ZBA

nor the BLNR.

On appeal, Limit Skyline contends that the Circuit

Court erred in granting summary judgment in favor of Prospect on

Count II. In its third point of error, Limit Skyline argues,

among other things, that the "Director erroneously approved the

PSD . . . Permit even though [Prospect] had not submitted a

complete [AIS] of the Project's Impact on the PSD's Historic and

Cultural Resources . . . ." (Formatting altered.) In its

fourth point of error, Limit Skyline argues that the Circuit

Court erroneously dismissed Count II, among other counts, for

failure to exhaust administrative remedies. We address each

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point in turn.

1. HRS § 6E-42 and the AIS

In Kaleikini v. Yoshioka, 128 Hawai#i 53, 283 P.3d 60

(2012), the Hawai#i Supreme Court applied Hawaii's historic

preservation law, HRS Chapter 6E, and its implementing rules to

the review process for the rail project. The court held:

[T]he SHPD failed to comply with HRS chapter 6E and its

implementing rules when it concurred in the rail project

prior to the completion of the required [AIS] for the entire

project. The City similarly failed to comply with HRS

chapter 6E and its implementing rules by granting a special

management area permit for the rail project and by

commencing construction prior to the completion of the

historic preservation review process.

Id. at 57, 283 P.3d at 64 (emphasis added). 

In Hall v. Dep't of Land & Nat. Res., 128 Hawai#i 455,

290 P.3d 525 (App. 2012), this court summarized the supreme

court's reasoning in Kaleikini, as follows:

[T]he rules applicable to Hawai#i's historic preservation

law establish a sequential review process, under which the

completion of an AIS, if required, must precede the SHPD's

concurrence in a project. [128 Hawai#i] at 68, 283 P.3d at

75. HRS § 6E–42 . . . requires a review and comment process

for "any project involving a permit, license, certificate,

land use change, subdivision, or other entitlement for use,

which may affect historic property . . . or a burial

site[.]" (Emphasis added.) The details of this process are

governed by [HAR] Chapter 13–284. Under this regulatory

regime, prior to State government approval of any project

involving a permit, the SHPD must be consulted "to determine

if the area proposed for the project needs to undergo an

inventory survey to determine if historic properties are

present." HAR § 13–284–5(b) (2003).

Id. at 457-58, 290 P.3d at 527-28.

When SHPD is so consulted, it may respond in one of

three ways:

(1) by determining that no historic properties are present;

(2) by determining that an adequate survey exists and that

historic properties are present, which allows the agency to

proceed to the next step in the review process, i.e.,

evaluation of the significance of the historic properties;

or (3) by concluding that an AIS needs to be done.

Id. at 458, 290 P.3d at 528 (quoting Kaleikini, 128 Hawai#i at

74, 283 P.3d at 81) (brackets and ellipsis omitted).

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Here, the summary judgment record on Count II does not

establish that SHPD made either of the first two determinations

when it was initially consulted about the Project in 2007.

Rather, SHPD determined that historic properties were present and

requested proposed mitigation commitments by Prospect, including

documentation of the potential affected properties. It appears

that in 2013, Prospect began the permitting and review process. 

SHPD reviewed Prospect's PSD Permit Application and, by letter

dated September 24, 2015, identified SHPD's "outstanding

concerns," reiterated its determination that historic properties

were present, and stated it "look[ed] forward to continuing to

work with [DLNR and DPP] throughout the historic preservation

review process"; it did not state that an adequate survey

existed. On November 3, 2015, the Director issued his Findings

of Fact, Conclusions of Law, and Decision and Order approving the

PSD Permit, subject to certain conditions. Two months later, an

AIS was completed and sent to SHPD on December 28, 2015. By

letter dated February 29, 2016, almost five months after approval

of the PSD Permit, SHPD accepted the AIS's determination of "no

historic properties affected" and agreed that no further work was

necessary.

The Director approved the PSD Permit before SHPD

completed the sequential review process required under HRS

§ 6E–42 and its implementing rules. Based on Kaleikini and Hall,

we conclude that the Circuit Court erred in granting summary

judgment in favor of Appellees on the merits of Limit Skyline's

HRS Chapter 6E claim in Count II.7/

2. Exhaustion of Administrative Remedies

"Courts have developed two principal doctrines to

enable the question of timing of requests for judicial

intervention in the administrative process to be answered: (1)

primary jurisdiction; and (2) exhaustion of administrative

remedies." Kellberg v. Yuen, 131 Hawai#i 513, 527, 319 P.3d 432,

446 (2014) (quoting Kona Old Hawaiian Trails Grp. v. Lyman, 69

7/ To the extent Count II is based on alleged violations of HRS

Chapter 343, for the reasons previously discussed, the Circuit Court did not

err in concluding that "HRS Chapter 343 is not implicated" by the Project. 

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Haw. 81, 92–93, 734 P.2d 161, 168 (1987) (Kona Old)). The

exhaustion doctrine "provides that where a claim is cognizable in

the first instance by an administrative agency alone, judicial

review of agency action will not be available unless the party

affected has taken advantage of all the corrective procedures

provided for in the administrative process." Id. (brackets and

internal quotation marks omitted) (quoting Kona Old, 69 Haw. at

93, 734 P.2d at 169). "In order for the doctrine to apply, 'the

statute, ordinance or regulation under which the agency exercises

its power must establish clearly defined machinery for the

submission, evaluation and resolution of complaints by aggrieved

parties.'" Id. at 536, 319 P.3d at 455 (brackets, emphasis, and

internal quotation marks omitted) (quoting Pele Defense Fund v.

Puna Geothermal Venture, 9 Haw. App. 143, 151, 827 P.2d 1149,

1154 (App. 1992)). Since application of exhaustion requires that

the claim be cognizable only before the agency, "the court must

first determine whether the agency has exclusive original

jurisdiction, in which case, the doctrine of exhaustion would

apply. If not, and the court finds that it does possess

jurisdiction over the matter, the court can then decide if it is

appropriate to apply the doctrine of primary jurisdiction." Pac.

Lightnet, Inc. v. Time Warner Telecom, Inc., 131 Hawai#i 257,

269, 318 P.3d 97, 109 (2013) (further explaining the doctrine of

primary jurisdiction).

Here, as to Count II, the Circuit Court ruled that

Limit Skyline did not exhaust the administrative remedies

"available from [BLNR] for the alleged violation of HRS Chapter

6E or the regulations adopted thereunder." The court further

ruled that under Honolulu Charter § 6-1516, Limit Skyline was

required to appeal the Director's decision approving the PDS

Permit to the ZBA, but Limit Skyline did not present its argument

that the permit should not have been issued without an accepted

AIS to the ZBA or BLNR. Thus, the Circuit Court appears to have

granted summary judgment in favor of Appellees on Count II on the

grounds that Limit Skyline failed to exhaust the respective

administrative remedies provided by both the ZBA and BLNR.

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In reaching this decision, however, the Circuit Court

did not determine that specific statutes, ordinances or

regulations under which DPP or BLNR exercise their respective

powers establish "clearly defined machinery for the submission,

evaluation and resolution of complaints by aggrieved parties" –

here, Limit Skyline's challenge to the proposed issuance of the

PSD Permit based on alleged violations of HRS Chapter 6E.

Kellberg, 131 Hawai#i at 536, 319 P.3d at 455. Nor did the

Circuit Court determine whether DPP or BLNR has exclusive

original jurisdiction over specific Chapter 6E claims raised by

Limit Skyline. See Pac. Lightnet, 131 Hawai#i at 269, 318 P.3d

at 109. Rather, the Circuit Court concluded generally that "HRS

§6E-10.5 sets forth a comprehensive enforcement regime for

Chapter 6E, vested in the [BLNR] to investigate and penalize

violation of Chapter 6E or the regulations adopted thereunder[,]"

and that "[p]ursuant to [Honolulu Charter] section 6-1516, a

challenge to the issuance of a PSD Permit must be appealed to the

ZBA." 

Appellees are no more specific in their Answering

Brief. They point to no DPP rules for submitting, evaluating and

resolving complaints by aggrieved parties regarding the proposed

issuance of special district permits, and we have found none.8/

Appellees note only that the "[C]ircuit [C]ourt pointed to [HRS]

§6E-10.5," and argue that "Limit Skyline did not exhaust its

administrative remedies with regard to whether there was a

violation [of HRS Chapter 6E] because it never presented its

claim to BLNR to investigate." However, HRS §6E-10.5 itself does

not establish a process for presenting such claims to BLNR to

investigate, evaluate, and resolve, and Appellees do not cite any

applicable rules or regulations that do. 

On this record, we cannot conclude that in the context

of this case, statutes, ordinances or regulations under which DPP

8/ We note that City and County of Honolulu Administrative Rules,

Planning Department, Part 1—Rules of the Planning Commission (Planning

Commission Rules) § 2-52(c) provides that "[p]ersons may petition the

commission to intervene in all proceedings before the commission for special

use permits, subject to the requirements of this subchapter." (Emphasis

added.) The Planning Commission Rules do not appear to contain a similar

provision regarding proceedings for special district permits. 

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or BLNR exercise their respective powers establish "clearly

defined machinery for the submission, evaluation and resolution

of complaints by aggrieved parties." Kellberg, 131 Hawai#i at

536, 319 P.3d at 455. Accordingly, the Circuit Court erred in

granting summary judgment in favor of Appellees on Count II on

the grounds that Limit Skyline failed to exhaust the respective

administrative remedies provided by the ZBA and BLNR.

C. Summary Judgment on Count III

In Count III of the Complaint, Limit Skyline alleged

that Prospect violated HRS Chapters 342D and 343 by "failing to

provide an assessment of the water quality impacts of the

project, including whether it may cause significant runoff and

erosion . . . ." (Capitalization altered.) 

In the FOFs/COLs/Order Granting MSJ Granting MSJ on

Counts III and IV, the Circuit Court first reiterated that "HRS

Chapter 343 is not implicated in this case[,]" and further

concluded as to Count III that there was no genuine issue of

material fact that:

2. [Limit Skyline] does not have a private right of

action to enforce HRS Chapter 342D, as enforcement is vested

with the Director of Health.

3. [Limit Skyline] did not initiate, let alone

exhaust, the administrative remedies available from the

Director of Health with regard to its allegations that

Prospect violated HRS Chapter 342D.

4. Furthermore, because no demolition or

construction has occurred at the Project site, Defendant

Prospect could not have discharged any pollutants into state

waters in violation of HRS § 342D-50(a).

5. The claim for violation of HRS Chapter Ch. 342

is also therefore premature.

In its reply brief, Limit Skyline states that it "has

not appealed its HRS [Chapter] 342D stormwater runoff claim[.]"

To the extent Count III is based on alleged violations of HRS

Chapter 342D, it is therefore waived. To the extent Count III is

based on alleged violations of HRS Chapter 343, for the reasons

previously discussed, the Circuit Court did not err in concluding

that "HRS Chapter 343 is not implicated" by the Project. 

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D. Summary Judgment on Count IV

In Count IV of the Complaint, Limit Skyline alleged a

"denial of substantive due process" "under Article I, Sections 2

and 5, and Article XI[,] Section 9 of the Hawai#i State

Constitution." Count IV alleged, among other things, that: 

"[t]he Project is likely to negatively impact the human

environment in terms of obstructing vistas and view planes in

violation of HRS § 343"; the PSD Permit application "provides a

scant and inadequate analysis on the impact of the Project on

significant scenic features and view planes"; and "[t]he Project

is also likely to negatively impact the human environment in

terms of traffic safety in violation of HRS § 343." 

(Capitalization altered.) 

In the FOFs/COLs/Order Granting MSJ on Counts III and

IV, the Circuit Court first reiterated that "HRS Chapter 343 is

not implicated in this case[,]" and further concluded as to Count

IV that there was no genuine issue of material fact that: 

6. . . . [Limit Skyline] takes issue with aspects

of the Project approved by the PSD Permit that are alleged

to have an adverse impact on view planes and traffic.

7. With regard to the issuance of the PSD Permit,

under the Revised Charter of Honolulu § 6-1516, [Limit

Skyline] is required to appeal the decision of the Director

of DPP to the ZBA.

8. [Limit Skyline] did not exhaust its

administrative remedies with regard to its allegations that

the Project approved by the PSD Permit is likely to

negatively impact the human environment in terms of

obstructing vistas and view planes and the Project is likely

to negatively impact the human environment in terms of

traffic safety. Thus, this Court does not have subject

matter jurisdiction over these challenges to the issuance of

the PSD Permit.

(Record citation omitted.) 

On appeal, Limit Skyline contends that the Circuit

Court erred in dismissing Count IV for failure to exhaust

administrative remedies.

We need not decide whether, as a general matter, Limit

Skyline's constitutional claims are subject to the exhaustion of

administrative remedies doctrine. For the reasons previously

discussed, we cannot conclude that in the context of this case,

statutes, ordinances or regulations under which DPP exercises its

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power establish "clearly defined machinery for the submission,

evaluation and resolution of complaints by aggrieved parties." 

Accordingly, the Circuit Court erred in granting summary judgment

in favor of Appellees on Limit Skyline's substantive due process

claims brought under article I, sections 2 and 5, and article XI,

section 9, pursuant to the exhaustion of administrative remedies

doctrine.

E. Other Points of Error

Given our rulings regarding Counts 1 through IV of the

Complaint, we do not reach Limit Skyline's remaining points of

error.

II. Conclusion

For the reasons discussed above, we affirm the Circuit

Court's: (1) August 30, 2017 Order Granting MSJ on Count I; (2)

December 7, 2017 FOFs/COLs/Order Granting MSJ on Count II, as to

the HRS Chapter 343 claim in Count II; and (3) December 7, 2017

FOFs/COLs/Order Granting MSJ on Counts III and IV, as to Count

III. We vacate the Circuit Court's: (1) December 7, 2017

FOFs/COLs/Order Granting MSJ on Count II, as to the HRS Chapter

6E claim in Count II; (2) December 7, 2017 FOFs/COLs/Order

Granting MSJ on Counts III and IV, as to Count IV; and (3)

January 8, 2018 Final Judgment. We remand the case to the

Circuit Court for further proceedings consistent with this

Summary Disposition Order.

DATED: Honolulu, Hawai#i, May 30, 2024.

On the briefs:

Linda M.B. Paul

for Plaintiff-Appellant.

Gregory W. Kugle,

Loren A. Seehase, and

Joanna C. Zeigler

(Damon Key Leong Kupchak

Hastert)

for Defendant-Appellee

Prospect Properties LLC

/s/ Keith K. Hiraoka

Presiding Judge

/s/ Clyde J. Wadsworth

Associate Judge

/s/ Sonja M.P. McCullen

Associate Judge

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Brad T. Saito and

Duane W.H. Pang

Deputies Corporation Counsel,

City & County of Honolulu,

for Defendant-Appellee

City and County of Honolulu, 

Director of the Department of

Planning and Permitting

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