“Custom and Practice” of Not Following Law Rejected as Defense by Supreme Court of Hawai’i

The Supreme Court of Hawai’i has rejected a municipality’s argument that it need not follow its own municipal code.

The municipal code requires a subdivision application to include specific, voluminous information, along with a preliminary plat. That requirement is regarded as unhelpful by municipal officials and has not been enforced for decades. So, in a case brought by a local resident challenging the subdivision’s development, the municipality’s attorneys argued that the code does not have to be followed:

Evidence was presented that the custom and practice of the Planning Department for over thirty years has been to [only] require basic information to be submitted with the preliminary plat [i.e., not the specific information actually required by the Code]. . . Requiring all such information when a preliminary approval is sought would be an unnecessary waste of effort. . . . Thus, construing the [Code] provisions to be mandatory, would produce an absurd and unjust result. Applicants would have to create plans without the input knowing what conditions would be required by various state and county departments, resulting in duplication of costs, time and efforts without any additional benefit to anyone.

The court rebuked that position:

Even assuming that some duplication of cost and effort results, the process by which the preliminary plat is to be submitted and the requirements for it are within the province of the legislative branch to prescribe. The Board Appellants have not shown that “an unnecessary waste of effort” is “an absurd and unjust result” that is “obviously inconsistent with the purposes and policies of the statute” in light of the mandatory language employed in the Code provisions. . . . As stated in Town v. Land Use Comm’n, 55 Haw. 538, 543, 524 P.2d 84, 88 (1974),

neither official construction nor usage, no matter how long indulged in, can be successfully invoked to defeat the purpose and effect of a statute which is free from ambiguity, nor will the courts be influenced by the construction placed upon a statute by the officials whose duty it is to execute it where such construction is manifestly incorrect.

The Board Appellants’ arguments are better addressed to the legislative branch.

The municipality’s lead attorney—who argued against a literal interpretation of the law—is a former lawmaker.

Justice Simeon Acoba authored the opinion for a unanimous court in Leslie v. Board of Appeals of the County of Hawai’i, 126 P.3d 1071 (Haw. 2006).

A link to the opinion and more information are available at the Supreme Court of Hawai’i Blog (Unofficial): http://hisupremecourt.blogspot.com.

—David M. Raatz, Jr., Legislative Attorney, County of Maui ( Hawai’i)