In re: Petition of Kenneth S. Church
This text of In re: Petition of Kenneth S. Church (In re: Petition of Kenneth S. Church) is published on Counsel Stack Legal Research, covering Hawaii Intermediate Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 19-DEC-2025 07:53 AM Dkt. 98 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I
In the Matter of THE PETITION OF KENNETH S. CHURCH and JOAN E. HILDAL For Boundary Interpretation of Certain Land Consisting of Approximately 3.4 Acres situated at 29-3792 Hawaii Belt Road, Contiguous Tax Map Key(s) (3) 2-9-003; 029, 060, Wailea, County of Hawai#i, State of Hawai#i.
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT (CIVIL NO. 3CCV-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER (By: Hiraoka, Presiding Judge, and Wadsworth and McCullen, JJ.)
The Circuit Court of the Third Circuit1/ (Circuit Court) dismissed an agency appeal – from a decision by Appellee-Appellee State of Hawai#i Land Use Commission (LUC) – that should have been filed directly in the Hawai#i Supreme Court. Self- represented Appellants-Appellants Kenneth S. Church and Joan E. Hildal (Appellants) appeal from the Circuit Court's: (1) June 1, 2023 "Order Granting [LUC's] Motion to Dismiss Appeal for Lack of Subject Matter Jurisdiction and Denying Appellants' Motion to Transfer Appeal to the Hawai#i Supreme Court Nunc Pro Tunc" (Dismissal Order); and (2) August 23, 2023 Final Judgment. See Hawai#i Rules of Appellate Procedure (HRAP) Rule 4(a)(2). Appellants also appear to challenge the Circuit Court's August 4, 2023 "Order Denying [153] Appellants' Motion for Reconsideration
1/ The Honorable Henry T. Nakamoto presided. NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Filed June 13, 2023" (Order Denying Reconsideration). Appellants own land within the state conservation district (Property). On June 17, 2021, they filed a petition with the LUC pursuant to Hawaii Revised Statutes (HRS) § 91-8 and related Hawai#i Administrative Rules (HAR), including HAR § 15-15-22(f). They sought a declaratory order that the Property was incorrectly labeled conservation and should have been zoned agricultural. On March 15, 2022, the LUC issued an Order Denying Petition for Declaratory Order, and Reimbursement and Waiver of Fees (LUC Denial Order). The LUC concluded that Appellants had not shown by a preponderance of the evidence that the Property was incorrectly placed in the conservation district. On September 2, 2022, the LUC also denied Appellants' motion for reconsideration (LUC Reconsideration Order). On September 29, 2022, Appellants appealed from the LUC Denial Order and the LUC Reconsideration Order to the Circuit Court (the Agency Appeal). On February 27, 2023, Appellants filed their Opening Brief. On April 4, 2023, the LUC filed a motion to dismiss the Agency Appeal for lack of subject matter jurisdiction (Motion to Dismiss). In apparent opposition, on April 25, 2023, Appellants filed a motion to transfer the Agency Appeal to the Hawai#i Supreme Court nunc pro tunc (Transfer Motion). Following a hearing on May 15, 2023, the Circuit Court granted the Motion to Dismiss and denied the Transfer Motion, concluding it did not have jurisdiction to transfer the case to the supreme court. The court entered the Dismissal Order on June 1, 2023. On June 13, 2023, Appellants filed a motion for reconsideration of the Dismissal Order. The Circuit Court denied the motion for reconsideration in a July 13, 2023 Minute Order and the later August 4, 2023 Order Denying Reconsideration. The Final Judgment was entered on August 23, 2023. On appeal, Appellants appear to contend, among other things, that the Circuit Court erred in: (1) granting the LUC's motion to dismiss for lack of subject matter jurisdiction and denying Appellant's motion to transfer the appeal to the supreme
2 NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
court; and (2) denying Appellants' motion for reconsideration. 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 Appellants' contentions as follows, and vacate. The existence of jurisdiction is a question of law that we review de novo. Dailey v. Dept. Land and Nat. Resources, 155 Hawai#i 348, 564 P.3d 1147 (2025) (citing Dupree v. Hiraga, 121 Hawai#i 297, 312, 219 P.3d 1084, 1099 (2009)). In In re Kanahele, 152 Hawai#i 501, 526 P.3d 478 (2023), the supreme court held that LUC declaratory orders (or orders disposing of petitions for declaratory rulings) have the same status for judicial review as contested case orders. Id. at 512, 526 P.3d at 489. As a result, appeals from LUC declaratory orders, like appeals from contested case orders, were required to be filed directly with the supreme court under HRS § 183C-9, enacted in 2016 by Act 48, § 2.2/ See id. at 511-12, 526 P.3d at 488-89; Dailey, 155 Hawai#i at 350, 564 P.3d at 1149. After Kanahele, the supreme court decided Honoipu Hideaway, LLC v. Land Use Comm'n, 154 Hawai#i 372, 550 P.3d 1230 (2024), and Rosehill v. Land Use Comm'n, 155 Hawai#i 41, 556 P.3d 387 (2024). In Honoipu, the court held that a circuit court has the inherent and statutory authority to transfer a timely-filed appeal nunc pro tunc, or "backdated to the appropriate time[,]" to the supreme court. 154 Hawai#i at 374, 376, 550 P.3d at 1232, 1234. In Rosehill, after accepting transfer of an appeal to this court, the supreme court held that the appeal could be considered
2/ HRS § 183C-9 (Supp. 2019) provides, in relevant part:
(a) . . . Any other law to the contrary notwithstanding, including chapter 91, any contested case under this chapter shall be appealed from a final decision and order or a preliminary ruling that is of the nature defined by section 91-14(a) upon the record directly to the supreme court for final decision, except for those appeals heard pursuant to this chapter arising in whole or in part from part III of chapter 205A or arising in whole or in part from chapter 115. . . . HRS Chapter 183C concerns the conservation district. Part III of HRS Chapter 205A concerns shoreline setbacks, and HRS Chapter 115 concerns public access to coastal and inland recreational areas. The exceptions to HRS § 183C-9(a) do not apply to this appeal.
3 NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
note 3), as Kanahele had not yet been published. Under Honoipu and Rosehill, the Circuit Court had the inherent power to transfer the appeal to the supreme court. In any event, under Dailey, the appeal should have been transferred to the supreme court, which in turn had authority to determine whether the transfer was properly made. Id. at 358, 564 P.3d at 1157. Given our disposition, we need not reach Appellants' remaining contentions.
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