T-Mobile USA, Inc. v. County of Hawai'i Planning Commission

104 P.3d 930, 106 Haw. 343
CourtHawaii Supreme Court
DecidedJanuary 11, 2005
Docket24381
StatusPublished
Cited by13 cases

This text of 104 P.3d 930 (T-Mobile USA, Inc. v. County of Hawai'i Planning Commission) is published on Counsel Stack Legal Research, covering Hawaii Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
T-Mobile USA, Inc. v. County of Hawai'i Planning Commission, 104 P.3d 930, 106 Haw. 343 (haw 2005).

Opinions

Opinion of the Court by

MOON, C. J.

Appellant Voieestream PCS II Corporation (Voicestream) appeals from the third circuit court’s June 18, 2001 judgment2 that affirmed the decision of appellee County of Hawaii Planning Commission (HCPC), requiring Voicestream to obtain a special permit in connection with its development of a wireless communication network on the island of Hawaii. Briefly stated, Voices-tream’s proposed construction in this ease involves the installation of a “stealth” or cellular antenna concealed in a “false” chimney attached to a single family farm dwelling, including accompanying communications equipment placed in an adjacent garage. The single family farm dwelling is situated in a state land use agricultural district and is, therefore, subject to the uses prescribed in Hawaii Revised Statutes (HRS) chapter 205.

On appeal, Voicestream contends that the circuit court erred in affirming the HCPC’s .decision that Voieestream is required to obtain a special permit. For the reasons discussed herein, we reverse the circuit court’s June 18, 2001 judgment affirming the decision of the HCPC.

[345]*345I. BACKGROUND

A. Factual Background

Voicestream is a wireless communications provider licensed by the Federal Communications Commission and registered with the Hawai'i Public Utilities Commission. Voiees-tream is currently developing a wireless communication network in the County of Hawai'i using stealth antennas.

The instant case concerns the proposed installation of a stealth antenna at the residence of Timothy and LeNora Wee in the Pu'u Nani Agricultural Subdivision in Ka-muela, Hawai'i. Voicestream planned to attach to the Wee residence a false chimney housing a 23.5-foot tall pole, measuring 2 and 7/8 inches in diameter, with three flat-panel directional antennas momited flush with the top of the pole. Voicestream’s plan also includes the construction of a separate garage to house equipment for the antenna.

B. Procedural Background

Prior to August 31, 2000, Voicestream informally requested that the County of Ha-wai'i Planning Director (planning director) determine whether a special permit was required for the proposed stealth antenna.3 After consulting with the Department of the Corporation Counsel, the planning director informed Voicestream that a special permit was required for all telecommunications antennas pursuant to this court’s decision in Curtis v. Bd. of Appeals, County of Hawai‘i, 90 Hawai'i 384, 394-97, 978 P.2d 822, 832-35 (1999), wherein this court held that a special permit was required to build a 140-foot cellular telephone tower on state agricultural land.

On August 31, 2000, Voicestream filed its application for a special permit for the proposed stealth antenna. A hearing on the special permit application was held on October 20, 2000, during which Voicestream requested that the HCPC make a preliminary decision pursuant to HRS § 91-8 (1993)4 as to whether a special permit was required before rendering a decision on the special permit application. The HCPC unanimously decided that the stealth antenna required a special permit and granted the issuance thereof. On November 24, 2000, the HCPC entered its written decision.

On December 15, 2000, Voicestream appealed to the circuit court, seeking review of the HCPC’s decision that a special permit was required for its stealth antenna.5 Voi-cestream contended that this court’s decision in Curtis did not require it to obtain a special permit pursuant to HRS §§ 205-4.5 (Supp. 1997), quoted infra> and 205-6(a) (Supp. 1998)6 to construct and maintain the proposed stealth antenna in the state land use agricultural district. After a hearing on the matter, the circuit court affirmed the decision of the HCPC on June 18, 2001 and entered the following findings of fact (FOF) and conclusions of law (COL):

FINDINGS OF FACT
1. The HCPC has agreed that the statement of facts in VoiceStream’s Opening Brief filed on January 31, 2001, pp. 2-5, is accurate and therefore the [c]ourt [346]*346accepts these facts as proven and incorporates them herein by reference.
2. The wireless communications antennae [sic] proposed by VoiceStream would be enclosed in a false chimney constructed by VoiceStream and which would be incorporated into the Wee residence. The communication equipment associated with the antennae would be locked in a cabinet that would be at the rear of a new garage that VoiceStream would construct.
3. The height of the antennae [sic], 23.5 feet, would be within the height limitations for farm dwellings in the State land use and County zoning districts.
4. Both the garage and the chimney are permitted uses as accessory to a farm dwelling 'pursuant to HRS Ch. 205 and Hawaii County Code Ch. 25.
5. The HCPC’s interpretation of Curtis as stated in its Decision and in the statements of [the planning director] is that a Special Permit is required to construct or maintain any cellular communication “tower” or “antenna.”
6. The court accepts as fact that Voi-ceStream intends to continue building “stealth” or concealed cellular communications antennae in Hawaii County state land use Agricultural District.
7. The court accepts as fact that the HCPC’s position will continue to be that an HRS § 205-6 Special Permit is required for each and every case in which VoieeS-tream intends to construct any cellular communications antenna in a Hawaii County state land use Agricultural District.
CONCLUSIONS OF LAW
1. This court has jurisdiction over this appeal pursuant to HRS §§ 603-21.8, and 91-7.
2. The ongoing adverse interest to Voi-ceStream is the HCPC’s interpretation of Curtis: that the construction of a wireless communications antenna, even under the circumstances presented here where the antenna will be completely enclosed within an otherwise legally permitted structure, requires a Special Permit issued pursuant to HRS § 205-6.
3. This court can fashion an effective remedy by deciding whether or not an HRS § 205-6 Special Permit is in fact required in this ease.
4.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

County of Kaua'i v. Hanalei River Holdings Ltd.
375 P.3d 250 (Hawaii Intermediate Court of Appeals, 2016)
Ramos v. Estate of Elsenbach
361 P.3d 1260 (Hawaii Intermediate Court of Appeals, 2015)
Kyne v. Ritz-Carlton Hotel Co.
835 F. Supp. 2d 914 (D. Hawaii, 2011)
Davis v. FOUR SEASONS HOTEL LTD.
810 F. Supp. 2d 1145 (D. Hawaii, 2011)
Davis v. Four Seasons Hotel Ltd.
228 P.3d 303 (Hawaii Supreme Court, 2010)
Dejetley v. Kaho'ohalahala
226 P.3d 421 (Hawaii Supreme Court, 2010)
State v. Mainaaupo
178 P.3d 1 (Hawaii Supreme Court, 2008)
Enoka v. AIG Hawaii Ins. Co., Inc.
128 P.3d 850 (Hawaii Supreme Court, 2006)
Bhakta v. County of Maui
124 P.3d 943 (Hawaii Supreme Court, 2005)
T-Mobile USA, Inc. v. County of Hawai'i Planning Commission
104 P.3d 930 (Hawaii Supreme Court, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
104 P.3d 930, 106 Haw. 343, Counsel Stack Legal Research, https://law.counselstack.com/opinion/t-mobile-usa-inc-v-county-of-hawaii-planning-commission-haw-2005.