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Sunday, November 23, 2014
Supreme Court Blocks Friends of Makakilo Appeal vs DR Horton
By Robert Thomas @ 3:29 PM :: 5297 Views :: Development, Land Use

HAWSCT: No "Cross-Appeal" In Administrative Appeals

by Robert Thomas, InverseCondemnation, November 20, 2014

The Hawaii Supreme Court has issued a unanimous opinion in Friends of Makakilo v. D.R. Horton-Schuler Homes, LLC, No. SCAP-13-0002408 (Oct. 30, 2014), holding that there's not really such thing as a "cross appeal" in administrative appeals (at least in the sense that "cross appeal" is usually used in appellate procedure). 

Quick facts: D.R. Horton petitioned the state Land Use Commission for a boundary amendment (aka a rezoning). Three parties intervened and sought and were granted a "contested case." The LUC concluded that D.R. Horton was entitled to the boundary amendment. Thirty days later, two of the three intervenors filed a notice of appeal under the Hawaii Administrative Procedures Act, Haw. Rev. Stat. § 91-14, which gives circuit (trial) courts jurisdiction over appeals by any person aggrieved by an agency's decision in a contested case. The HAPA gives those parties 30 days to file.

Thirteen days after the appeal was filed, the third intervenor -- Friends of Makakilo -- filed its own 91-14 appeal, labeling it a "cross appeal." The circuit court concluded the appeal was untimely filed, and dismissed for lack of jurisdiction. 

The Supreme Court affirmed, rejecting Friends' argument that the rules regarding cross appeals in Haw. R. App P. 4.1 govern. That rule notes that in appeals from circuit courts to the Hawaii appellate courts, "[i]f a timely notice of appeal is filed by a party, any other party may, if allowed by law, file a cross-appeal," within 14 days of the filing of the notice of appeal. The court held that while § 91-14 contemplates the possibility of appeals by more than one aggrieved party (which would fall within the definition of "cross appeal"), those appeals must adhere to the 30 day time limit, or be jurisdictionally barred. The Rules of Appellate Procedure, which govern appeals from district and circuit courts to the Hawaii appellate courts, do not apply to administrative appeals (which are governed by Haw. R. Civ. P. 72):

Although a circuit court might assume an appellate role when reviewing administrative decisions, it is not an “appellate court” as that term is used in the HRAP, and therefore the HRAP — including Rule 4.1 — do not apply to it.

Slip op. at 12.

Bottom line: if you are aggrieved by an agency decision in a contested case, you have thirty days to file your appeal, and you can't wait for another party to go first and then "cross appeal" later.

Seems about right to us. Read the entire opinion (a quick read at 21 succinct pages) for more details.

Disclosure: our partner Greg Kugle represents D.R. Horton, the prevailing party below and in this appeal.

PDF: Friends of Makakilo v. D.R. Horton-Schuler Homes, LLC, No. SCAP-13-0002408 (Haw. Oct. 30, 2014)

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