On August 13, 2014, the HAWSCT accepted cert in Mark C. Kellberg v. Christopher J. Yuen, SCWC-12-0000266, on the issue of whether the circuit court erred in granting summary judgment in favor of the County of Hawaii on the issue of an illegal subdivision.
The underlying case involves a challenge by an adjacent landowner alleging that a seven-lot subdivision in the County of Hawaii is illegal because it violates the County’s Subdivision Control Code. The circuit court granted the County’s motion for summary judgment. This is the second time this appeal has made it to the HAWSCT. The first time, the ICA held that Kellberg failed to exhaust his administrative remedies. The HAWSCT disagreed (more available here).
On remand from the HAWSCT, and addressing the merits of the appeal, the ICA held that the circuit court erred in grating summary judgment in favor of the County on Kellberg’s claim that the subdivision violates the subdivision and zoning Codes, and that it is an invalid subdivision.
On cert, the County argues (1) the subdivision is legal, (2) the ICA erred in failing to address its additional arguments raised in the appeal including whether the circuit court’s summary judgment was correct because Kellberg failed to join necessary parties, and (3) Kellberg failed to join other landowners who were necessary parties.
Kellberg’s opposition to cert argues (1) the ICA was not required to expressly consider and expressly reject each of the County’s arguments, (2) since the subdivision was illegally approved, and is void, it cannot be rectified later, and (3) the ICA did not err in concluding that the subdivision approval was illegal even though other landowners had not been joined.
The HAWSCT’s order accepting cert is available here. Circuit Judge Garibaldi, sitting in the case by assignment, dissented in part from the grant of cert on the basis that she would not have scheduled the case for oral arguments here.
The application for cert is available here.
The opposition to cert is available here.
The reply in support of cert is available here.
Mahalo to fellow blogger Robert Thomas (www.inversecondemnation.com) for providing the cert documents (Robert represents Mr. Kellberg).