Spirit of Aloha Temple et al v. County of Maui et al

Filing 109

ORDER GRANTING MOTION TO DISMISS AND/OR FOR PARTIAL SUMMARY JUDGMENT re 33 , 84 - Signed by JUDGE SUSAN OKI MOLLWAY on 1/27/2016. "Counts I to IX against the Planning Commission are dismissed, and those counts again st the County are stayed. The court declines to exercise supplemental jurisdiction over Count X and dismisses Count X without prejudice to Plaintiffs' pursuing of that claim in state court pursuant to 28 U.S.C. § 1367(d). The court stays the present case pending the state circuit court's determination of the matters raised in Count X. The court administratively closes this case and terminates all pending motions." (emt, )CERTIFICATE O F SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
SPIRIT OF ALOHA TEMPLE AND
FREDRICK R. HONIG,
Plaintiffs,
vs.
COUNTY OF MAUI AND MAUI
PLANNING COMMISSION,
Defendants.

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CIVIL NO. 14-00535 SOM/RLP
ORDER GRANTING MOTION TO
DISMISS AND/OR FOR PARTIAL
SUMMARY JUDGMENT

ORDER GRANTING MOTION TO DISMISS AND/OR FOR
PARTIAL SUMMARY JUDGMENT
I.

INTRODUCTION.
Plaintiffs Spirit of Aloha Temple and Fredrick R. Honig

applied for a State Land Use Commission Special Permit to build a
church and hold religious events on a parcel of land located in
the County of Maui.

After the application was denied by

Defendant Maui Planning Commission, Plaintiffs filed their
Complaint in this court, asserting federal and state claims
against both the Planning Commission and Defendant County of
Maui.
Before the court is Defendants’ Motion to Dismiss
and/or for Partial Summary Judgment, requesting that the Planning
Commission be dismissed from the action, or all claims against it
be dismissed with prejudice.

The motion to dismiss is granted.

II.

BACKGROUND.
Spirit of Aloha is a 501(c)(3) tax-exempt organization

that was incorporated as a church in 2007 to promote “Integral
Yoga.”

See ECF No. 1, PageID #s 5, 7.

minister and teacher of Integral Yoga.

Honig is a licensed
See id., PageID # 6.

Spirit of Aloha owns an eleven-acre parcel located in
Haiku, Maui.

See id., PageID # 9.

The parcel is zoned

“Agriculture” and is in a Special Management Area.

See id.

The

property is being used for limited “secular” purposes, including
a botanical garden, bird sanctuary, and staff housing.

See id.

In 2010, Plaintiffs applied for a special use permit to
use the property as a church.

See id., PageID #s 10-11.

Churches are permitted as a special use in an agricultural
district.

See id., PageID # 13.

Plaintiffs propose to use the

property for religious services, meetings, lectures, and events
such as weddings.

See id., PageID #s 10-11.

Plaintiffs’

application was denied by the Planning Commission on various
grounds.

See id., PageID #s 10-11.
On November 21, 2012, Plaintiffs filed another

application for a special permit to use the property for the same
religious purposes.

See id., PageID # 10.

The Maui Planning

Department issued a report and recommendation that the permit be
issued.

See id., PageID # 22.

However, after a public hearing

in which several residents in the surrounding area expressed

2

concern about road safety given increased traffic to and from the
property, various zoning violations by Plaintiffs, and the impact
of increased numbers of visitors on community resources, see id.,
PageID #s 26-27, the Planning Commission voted to deny the
application, see id., PageID # 28.

The Planning Commission set

forth its findings and conclusions in its Decision and Order of
October 30, 2014 (“October 2014 Decision”).

See id., PageID #s

29-30.
After its application was denied, Plaintiffs chose not
to seek review of the October 2014 Decision in state court under
Haw. Rev. Stat. § 91-14.

Instead, Plaintiffs filed their

Complaint in this court on November 26, 2014.

See ECF No. 1.

The Complaint asserts claims for violations of federal law under
the Religious Land Use and Institutionalized Persons Act of 2000
and 42 U.S.C. § 1983, and violations of the Hawaii constitution.
See id., PageID #s 35-44.

In addition, Count X seeks review of

the Planning Commission’s October 2014 Decision pursuant to Haw.
Rev. Stat. § 91-14.1

See id., PageID # 44.

Plaintiffs seek

monetary damages, injunctive relief, and attorney’s fees from
both the County and the Planning Commission.

See id., PageID #s

44-46.

1

The numbering of the counts in the Complaint includes
an error, as the Complaint does not include a Count III. ECF No.
1, PageID # 36. This order uses the count numbers in the
Complaint.
3

Defendants filed the present motion to dismiss the
Planning Commission because it is not an independent legal entity
that can be sued separately from the County.

See ECF No. 33,

PageID # 146.
III.

STANDARD.
Under Rule 12(b)(6) of the Federal Rules of Civil

Procedure, the court’s review is generally limited to the
contents of the complaint.

Sprewell v. Golden State Warriors,

266 F.3d 979, 988 (9th Cir. 2001); Campanelli v. Bockrath, 100
F.3d 1476, 1479 (9th Cir. 1996).

If matters outside the

pleadings are considered, the Rule 12(b)(6) motion is treated as
one for summary judgment.

See Keams v. Tempe Tech. Inst., Inc.,

110 F.3d 44, 46 (9th Cir. 1997); Anderson v. Angelone, 86 F.3d
932, 934 (9th Cir. 1996).

Courts may “consider certain

materials--documents attached to the complaint, documents
incorporated by reference in the complaint, or matters of
judicial notice--without converting the motion to dismiss into a
motion for summary judgment.”

United States v. Ritchie, 342 F.3d

903, 908 (9th Cir. 2003).
On a Rule 12(b)(6) motion to dismiss, all allegations
of material fact are taken as true and construed in the light
most favorable to the nonmoving party.

Fed’n of African Am.

Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir.
1996).

However, conclusory allegations of law, unwarranted

4

deductions of fact, and unreasonable inferences are insufficient
to defeat a motion to dismiss.

Sprewell, 266 F.3d at 988; Syntex

Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996).
Dismissal under Rule 12(b)(6) may be based on either:
(1) lack of a cognizable legal theory, or (2) insufficient facts
under a cognizable legal theory.

Balistreri v. Pacifica Police

Dept., 901 F.2d 696, 699 (9th Cir. 1988) (citing Robertson v.
Dean Witter Reynolds, Inc., 749 F.2d 530, 533–34 (9th Cir.
1984)).
“[T]o survive a Rule 12(b)(6) motion to dismiss,
factual allegations must be enough to raise a right to relief
above the speculative level, on the assumption that all the
allegations in the complaint are true even if doubtful in fact.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
quotation marks omitted); accord Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (“[T]he pleading standard Rule 8 announces does not
require ‘detailed factual allegations,’ but it demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation”).
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, a plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitlement to
relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will
not do.”

Twombly, 550 U.S. at 555.

5

The complaint must “state a

claim to relief that is plausible on its face.”

Id. at 570.

“A

claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”

Iqbal,

556 U.S. at 678.
IV.

ANALYSIS.
A.

Dismissal of Counts I to IX Against the Planning
Commission.

Defendants seek dismissal of all claims against the
Planning Commission, arguing that the Planning Commission is not
an independent legal entity apart from the County that is capable
of being sued.

See ECF No. 33, PageID # 154.

The parties appear

to have agreed that the Planning Commission can be dismissed as a
party as to Counts I through IX.

At the hearing on the motion,

Plaintiffs stated they would agree to the dismissal of these
counts if the County agreed to stand by any judgment or
injunctive order applicable to the Planning Commission.
No. 47, PageID #s 220-23; ECF No. 80, PageID # 521.
agreed to this proposal.

See ECF

The County

See ECF No. 80, PageID # 522.

Under

these circumstances, the court grants Defendants’ motion to
dismiss the Planning Commission as a Defendant in Counts I to IX.
Counts I to IX remain pending against the County.
B.

Count X.

Count X seeks appellate review of the October 2014
Decision pursuant to Haw. Rev. Stat. § 91-14.
6

See ECF No. 1,

PageID #s 40-44.

Defendants argue that this court lacks the

jurisdiction to entertain such an action.
#s 241, 244-45.

See ECF No. 52, PageID

This court concludes that it has supplemental

jurisdiction over Count X.

However, this court declines to

exercise its discretion to retain supplemental jurisdiction over
the claim.
1.

The Court Has Supplemental Jurisdiction over
Count X.

City of Chicago v. International College of Surgeons,
522 U.S. 156 (1997), addressed whether a federal district court
may exercise supplemental jurisdiction over a claim seeking
federal court review of a state administrative agency action.
Id. at 174.

The City of Chicago had removed to federal court a

lawsuit that included claims raising federal questions as well as
state-law claims seeking review of a city agency’s denial of the
plaintiff’s request to redevelop two historic buildings.
159-61.

Id. at

The city argued that the applicable ordinance, which

resembles Haw. Rev. Stat. § 91-14 in providing that judicial
review of a municipal agency decision lies with the state court,
deprived the federal district court of jurisdiction to conduct
deferential appellate review of the agency action.
166.

Id. at 159,

The federal district court exercised supplemental

jurisdiction over the state-law claims and ruled on them.
161.

Id. at

The Seventh Circuit reversed and remanded the case to state

court, concluding that the district court had been without
7

jurisdiction.

Id.

The Supreme Court reversed.

Id. at 174.

The Court

explained that a federal district court has supplemental
jurisdiction to review state administrative challenges so long as
those claims “are so related to claims in the action within such
original jurisdiction that they form part of the same case or
controversy under Article III of the United States Constitution.”
Id. at 165 (quoting 28 U.S.C. § 1367).
The Court nonetheless clarified that just because a
district court may exercise supplemental jurisdiction over a
cross-system appeal does not mean that it always should.

The

Court noted that a federal district court’s decision to assert
supplemental jurisdiction was a discretionary one:
Of course, to say that the terms of § 1367(a)
authorize the district courts to exercise
supplemental jurisdiction over state law
claims for on-the-record review of
administrative decisions does not mean that
the jurisdiction must be exercised in all
cases. Our decisions have established that
pendent jurisdiction “is a doctrine of
discretion, not of plaintiff’s right,”
[United Mine Workers of Am. v. Gibbs, 383
U.S. 715, 726 (1966)], and that district
courts can decline to exercise jurisdiction
over pendent claims for a number of valid
reasons, id., at 726-27.
522 U.S. at 172-73 (citing Carnegie-Mellon Univ. v. Cohill, 484
U.S. 343, 350 (1988) (“As articulated by Gibbs, the doctrine of
pendent jurisdiction thus is a doctrine of flexibility, designed
to allow courts to deal with cases involving pendent claims in
8

the manner that most sensibly accommodates a range of concerns
and values.”)).
In addition, City of Chicago noted that principles of
comity may warrant abstention:
In addition to their discretion under
§ 1367(c), district courts may be obligated
not to decide state law claims (or to stay
their adjudication) where one of the
abstention doctrines articulated by this
Court applies. Those doctrines embody the
general notion that “federal courts may
decline to exercise their jurisdiction, in
otherwise exceptional circumstances, where
denying a federal forum would clearly serve
an important countervailing interest, for
example where abstention is warranted by
considerations of proper constitutional
adjudication, regard for federal-state
relations, or wise judicial administration.”
Quackenbush v. Allstate Ins. Co., 517 U.S.
706, 716 (1996) (citations and internal
quotation marks omitted).
522 U.S. at 174.

The Court cautioned that “there may be

situations in which a district court should abstain from
reviewing local administrative determinations even if the
jurisdictional prerequisites are otherwise satisfied.”

Id.

There is no dispute that this court has original
jurisdiction over Plaintiffs’ federal claims pursuant to 28
U.S.C. § 1331.

Accordingly, under City of Chicago and 28 U.S.C.

§ 1367, this court may exercise supplemental jurisdiction over
the state administrative claim so long as it and the other claims
“form part of the same case or controversy,” as evidenced by the
sharing of a common nucleus of operative facts.
9

28 U.S.C.

§ 1367; City of Chicago, 522 U.S. at 165.

The state

administrative review claim and the federal claims in this action
share a common nucleus of operative facts; they all arise out of
Plaintiffs’ attempts to obtain a special use permit to use its
property as a church.
Defendants do not attack this aspect of the
jurisdictional analysis, but maintain that there are other
problems requiring this court to refrain from exercising
supplemental jurisdiction over Count X.

Defendants allege that

Plaintiffs’ appeal of the October 2014 Decision was untimely and
inadequate.

They note that Rule 72 of the Hawaii Rules of Civil

Procedure required Plaintiffs to satisfy several steps, including
the filing of its appeal within thirty days of the October 2014
Decision, the serving of a certified copy of the notice of appeal
on Defendants, and the designating of the record on appeal.
Defendants contend that these requirements have not been met.
See ECF No. 52, PageID #s 242-43.
It is clear, however, that at least in this court it is
the Federal Rules of Civil Procedure that govern Count X, not the
Hawaii Rules of Civil Procedure.

See, e.g., Nathan v. Boeing

Co., 116 F.3d 422, 423 (9th Cir. 1997) (Federal Rules of Civil
Procedure govern state law claims over which courts have
supplemental jurisdiction); Laidlaw Waste Sys., Inc. v.
Mallinckrodt, Inc., 925 F. Supp. 624, 634 (E.D. Mo. 1996)

10

(“Federal courts apply the Federal Rules of Civil Procedure to
matters of procedure when considering non-federal questions,
whether in a diversity action or as here when a state claim is
heard under supplemental jurisdiction.”); New.Net, Inc. v.
Lavasoft, 356 F. Supp. 2d 1090, 1099 (C.D. Cal. 2004) (same).
There is no federal equivalent to Rule 72 of the Hawaii
Rules of Civil Procedure.

Plaintiffs say that it would be absurd

to require them to perfect their appeal in this court by
preparing and presenting a designation to the clerk of the state
circuit court, as required by Rule 72 of the Hawaii Rules of
Civil Procedure.

See ECF No. 55-1, PageID # 261.

This court

concludes that Plaintiffs’ noncompliance with Rule 72 does not
affect this court’s jurisdiction over Count X.
While this court concludes that it has the power to
exercise supplemental jurisdiction in this case, that does not
mean this court should exercise that power.
2.

The Court Declines to Exercise Supplemental
Jurisdiction Over the State Law Claims.

Unlike federal question or diversity jurisdiction,
supplemental, or pendent, jurisdiction is not mandatory.

The

power to adjudicate state-law claims “need not be exercised in
every case in which it is found to exist.

It has consistently

been recognized that pendent jurisdiction is a doctrine of
discretion, not of plaintiff’s right.”

Gibbs, 383 U.S. at 726.

In weighing whether to exercise supplemental jurisdiction over a
11

state-law claim, courts should factor in “considerations of
judicial economy, convenience and fairness to litigants . . . .
Needless decisions of state law should be avoided both as a
matter of comity and to promote justice between the parties, by
procuring for them a surer-footed reading of applicable law.”
Id.
Under 28 U.S.C. § 1367(c), a court may decline to
exercise supplemental jurisdiction over a state-law claim if:
(1)
(2)

(3)
(4)

the claim raises a novel or complex
issue of State law,
the claim substantially predominates
over the claim or claims over which the
district court has original
jurisdiction,
the district court has dismissed all
claims over which it has original
jurisdiction, or
in exceptional circumstances, there are
other compelling reasons for declining
jurisdiction.

City of Chicago noted that the “statute thereby reflects the
understanding that, when deciding whether to exercise
supplemental jurisdiction, ‘a federal court should consider and
weigh in each case, and at every stage of the litigation, the
values of judicial economy, convenience, fairness, and comity.’”
522 U.S. at 173 (citation omitted).
“Each of the section 1367(c) bases is an independent
reason through which a court may decline supplemental
jurisdiction.”

Wisey’s # 1 LLC v. Nimellis Pizzeria LLC, 952 F.

Supp. 2d 184, 189 (D.D.C. 2013).
12

a.

§ 1367(c)(1).

Section 1367(c)(1) asks if the state-law claim presents
novel and complex issues of state law.

Count X does.

Plaintiffs say there is nothing novel about the statelaws issues in this case, given the more than a thousand Hawaii
cases that refer to Haw. Rev. Stat. § 91-14.
PageID # 823.

This argument is inapposite.

See ECF No. 91,
Haw. Rev. Stat. §

91-14 merely provides the procedural requirements a party must
follow, and the standards of review a state circuit court must
apply when it considers an appeal from an administrative agency’s
decision.

Haw. Rev. Stat. § 91-14 says nothing about the

substantive law in each case, which is what this court must
analyze in determining whether there are novel or complex issues
of state law under § 1367(c)(1).
The state law implicated in Count X is clearly complex.
Although Plaintiffs characterize the October 2014 Decision as
being as “mundane an administrative decision as one finds in
municipal decision-making,” see ECF No. 91, PageID # 820,
Plaintiffs seek a special use permit in a special management area
for a religious use.

This is not the typical appeal.

In fact, Plaintiffs acknowledge in their Complaint that
the Planning Commission could only grant a special use permit if
all of the following criteria were met:
1.

The proposed request meets the intent of
the general plan and the objectives and
13

policies of the applicable community
plan of the county;
2.

The proposed request is consistent with
the applicable community plan land use
map of the county;

3.

The proposed request meets the intent
and purpose of the applicable district;

4.

The proposed development will not
adversely affect or interfere with
public or private schools, parks,
playgrounds, water systems, sewage and
solid waste disposal, drainage, roadway
and transportation systems, or other
public requirements, conveniences and
improvements;

5.

The proposed development will not
adversely impact the social, cultural,
economic, environmental, and ecological
character and quality of the area;

6.

That the public shall be protected from
the deleterious effects of the proposed
use;

7.

That the need for public service demands
created by the proposed use shall be
fulfilled; and

8.

If the use is located in the state
agricultural and rural district, the
commission shall review whether the use
complies with the guidelines established
in section 15-15-95 of the rules of the
land use commission of the State.

See ECF No. 1, PageID #s 15-16 (alleging that “Maui County Code
§ 19.510.070(B) states that the standards for a special use
permit to be used by the planning commission required that each
of the following criteria must be met”).

This list of criteria

makes it clear that the reviewing court must engage in a
14

complicated assessment of multiple factors that are not only
highly factual, but also involve the interplay among various
state, county, and community land use policies.

By itself,

section 19.510.070(B) raises complex issues of state and local
law.
However, because Plaintiffs’ property is located in a
state agricultural district, this court would additionally have
to review the Planning Commission’s decision in light of the
guidelines established in section 15-15-95 of the rules of the
State of Hawaii’s Land Use Commission.

See Maui County Code

§ 19.510.070(B); Haw. Admin. R. § 15-15-95.

Section 15-15-95(c)

required the Planning Commission to determine whether Plaintiffs’
proposal was an “unusual and reasonable use” under the following
guidelines:
(1)

(2)
(3)

(4)

(5)

The use shall not be contrary to the
objectives sought to be accomplished by
chapters 205 and 205A, HRS, and the
rules of the commission;
The proposed use would not adversely
affect surrounding property;
The proposed use would not unreasonably
burden public agencies to provide roads
and streets, sewers, water drainage and
school improvements, and police and fire
protection;
Unusual conditions, trends, and needs
have arisen since the district
boundaries and rules were established;
and
The land upon which the proposed use is
sought is unsuited for the uses
permitted within the district.

Haw. Admin. R. § 15-15-95(c).
15

The need for this analysis, apart from further
complicating this court’s task, would also inject into the case
what appears to be an unsettled issue of law.

In Save Sunset

Beach Coal. v. City & County of Honolulu, 102 Haw. 465, 78 P.3d 1
(2003), the Hawaii Supreme Court instructed that “guidelines” in
an ordinance or statute “denote individual factors that are not
mandatory in themselves, but instead provide direction or
guidance with respect to the ultimate decision[.]”
15.

78 P.3d at

Subsequently, in an unpublished opinion, the Hawaii Supreme

Court relied on this proposition to hold that the Hawaii County
Planning Commission’s omission of a conclusion directly
addressing the suitable-use guideline in Haw. Admin. R.
§ 15-15-95(b)(5) did not invalidate its decision.

See Geiger v.

Hawai’i County Planning Comm’n, 109 Haw. 295, 125 P.3d 1060
(2005).2

2

This court is aware of federal, Ninth Circuit, and Hawaii
rules that prohibit the citation of unpublished opinions filed
prior to a certain date as precedent. See Fed. R. App. P. 32.1;
Ninth Circuit Rule 36-3; Haw. R. App. P. 35(c)(1). This court
cites to Geiger, a 2005 unpublished Hawaii Supreme Court case,
not for its precedential value, but instead to show that there
appears to be a lack of precedent in Hawaii’s appellate courts
regarding whether Haw. Admin. R. § 15-15-95(c)(1) must be
directly addressed by a planning commission in deciding a special
use permit application. Recognizing that Ninth Circuit Rule 36-1
and Rule 32.1 of the Federal Rules of Appellate Procedure do not
speak to this citation, as they are limited to the citation of
unpublished federal cases, this court acknowledges the citation
restrictions in Rule 35(c)(1) of the Hawaii Rules of Appellate
Procedure, but concludes that citing Geiger here does not
conflict with the apparent purpose of that rule.
16

It is still unclear to this court, however, whether
section 15-15-95(1), unlike section 15-15-95(b)(5) and the other
“guidelines,” must be directly addressed.

After all, section

15-15-95(c)(1) is distinct in that it uses the mandatory
directive “shall” in stating, “The use shall not be contrary to
the objectives sought to be accomplished by chapters 205 and
205A, HRS, and the rules of the commission.”

(Emphasis added).

See Malahoff v. Saito, 111 Haw. 168, 191, 140 P.3d 401, 424
(2006), as corrected (Sept. 19, 2006) (“It is well-established
that, where a statute contains the word ‘shall,’ the provision
generally will be construed as mandatory.”).

While section 15-

15-95(1) is an administrative rule rather than an ordinance or
statute, it appears to articulate a mandatory directive.
The Planning Commission, in denying the application,
cited to some of the guidelines set forth in Haw. Admin. R. § 1515-95 and concluded that the proposed use was not an “unusual and
reasonable use.”

See ECF No. 76, PageID # 473.

But the Planning

Commission never directly addressed section 15-15-95(c)(1).
id.

See

If this court adjudicated the appeal, this court might have

to decide whether the Planning Commission’s omission of a
conclusion directly addressing this subsection invalidated the
decision.

While a state court would similarly lack clear

guidance on this issue from the Hawaii Supreme Court, a state
trial court would know that its decision could be appealed to a

17

state appellate court.

By contrast, in the absence of an

existing controlling state precedent, a federal district court
would hear from a state appellate court only if the federal
district court certified a question to the Hawaii Supreme Court.
The obstacles to a special use permit are formidable.
As the Hawaii Supreme Court noted in Curtis v. Board of Appeals,
County of Hawai’i, 90 Haw. 384, 397, 978 P.2d 822, 835 (1999), as
amended (June 15, 1999), “such a permit is appropriate only in an
‘exceptional situation’ that does not contravene the general
purpose of an agricultural district.”

Despite what Plaintiffs

say, Count X brings with it the need to engage in a complex
analysis of statutes, ordinances, and rules as applied to the
facts of this case, not to mention the policy objectives
influencing every level of state government.

Such novel and

complex state-law issues are better resolved, in the first
instance, in a state court.
b.

§ 1367(c)(2).

Under § 1367(c)(2), this court may decline to exercise
supplemental jurisdiction over a state-law claim that
“substantially predominates over the claim or claims over which
the district court has original jurisdiction.”
§ 1367(c)(2).

28 U.S.C.

“[I]f it appears that the state issues

substantially predominate, whether in terms of proof, of the
scope of the issues raised, or of the comprehensiveness of the

18

remedy sought, the state claims may be dismissed without
prejudice and left for resolution to state tribunals.”
383 U.S. at 726.

Gibbs,

This court concludes that Count X substantially

predominates over the claims over which the district court has
original jurisdiction.
First, Count X substantially predominates in terms of
“the scope of the issues raised.”

Indeed, the heart of

Plaintiffs’ Complaint is that the Planning Commission’s denial of
their special use permit application was unconstitutional:
Plaintiffs allege that the Planning
Commission’s denial of the Permit—which
satisfied all criteria under the relevant
zoning regulations—was based on
misapplication of state and local laws, ad
hoc factors specifically and specially
designed to prevent religious exercise on the
Property, and unequal treatment as compared
to similarly situated entities in Maui
County.
Plaintiffs further allege that the denial of
the Permit, which would allow Plaintiffs to
operate a place of worship for religious
observance, services and education,
substantially burdens the Plaintiffs’
religious exercise without using the least
restrictive means of achieving the compelling
governmental interest that the Planning
Commission alleges exists to deny the Permit.
Plaintiffs also allege that the Planning
Commission’s application of unwritten and ad
hoc “standards,” particularly with respect to
traffic standards, to deny the Permit
constitutes a prior restraint on the
Plaintiffs’ protected First Amendment
activity, does not provide reasonable notice
to Permit applicants of whether proposed
places of worship meet the standards for a
19

Permit, and is therefore vague and allows for
unbridled discretion on the part of the
Commission.
ECF No. 1, PageID #s 3-4.
For instance, Plaintiffs’ federal claim for
unconstitutional prior restraint, in violation of 42 U.S.C.
§ 1983, alleges:
The standards set forth in the County of
Maui’s zoning regulations governing special
permits for places of worship, and the
standards applied by the Commission in
reviewing and denying Spirit of Aloha Temple
and Frederick Honig’s Special Use Permit do
not provide a person of ordinary intelligence
a reasonable opportunity to understand
whether such land uses are permitted or
prohibited and, as such, constitutes an
unconstitutional prior restraint on
Plaintiff’s protected expression and
religious exercise under the First Amendment.
Such standards unconstitutionally afford the
Commission unbridled discretion in its review
of a Special Use Permit application for a
place of worship.
See ECF No. 1, PageID # 37.

This court, in fact, is unable to

discern from Plaintiffs’ Complaint any theory of liability with
regard to the federal claims that does not rely on the October
2014 Decision.
Given these circumstances, if the court retained
supplemental jurisdiction over Count X, the court would likely
address the merits of the administrative appeal before addressing
the merits of the federal claims.

If this court affirmed the

October 2014 Decision, it is hard to see how Plaintiffs could

20

succeed on their federal claims.
Second, Count X predominates in terms of “the
comprehensiveness of the remedy sought.”

Plaintiffs’ federal

claims, although also seeking money damages, primarily seek to
invalidate the October 2014 Decision, and to have their special
permit application approved.
Third, even in terms of proof, the administrative
appeal predominates, both because the federal claims turn on the
administrative record, and because Count X would likely require
the most extensive review of the administrative record.

Haw.

Rev. Stat. § 91-14 provides:
Upon review of the record the court may
affirm the decision of the agency or remand
the case with instructions for further
proceedings; or it may reverse or modify the
decision and order if the substantial rights
of the petitioners may have been prejudiced
because the administrative findings,
conclusions, decisions, or orders are:
(1)
(2)
(3)
(4)
(5)
(6)

In violation of constitutional or
statutory provisions; or
In excess of the statutory authority or
jurisdiction of the agency; or
Made upon unlawful procedure; or
Affected by other error of law; or
Clearly erroneous in view of the
reliable, probative, and substantial
evidence on the whole record; or
Arbitrary, or capricious, or
characterized by abuse of discretion or
clearly unwarranted exercise of
discretion.

Haw. Rev. Stat. § 91-14(g).
Count X alleges that the Planning Commission’s decision
21

was based on clearly erroneous findings.
40.

See ECF No. 1, PageID #

Under Haw. Rev. Stat. § 91-14(5), the reviewing court must

determine whether the findings at issue are “clearly erroneous in
view of the reliable, probative, and substantial evidence on the
whole record.”

That is, Count X requires a court to review the

entire record to determine whether the Planning Commission’s
findings were clearly erroneous.

Although the administrative

record is not presently before the court, the record apparently
is voluminous, spanning seven years of proceedings, hearings, and
other evidence, such as lengthy county and state agency comments,
written testimony by various stakeholders, settlement agreements
between the county and Spirit of Aloha, extensive draft and final
plans, and other reports by local departments and the parties
themselves.

See ECF Nos. 67-80; ECF No. 66, PageID # 340.

Relatedly, the Hawaii Supreme Court has instructed,
with regard to Haw. Rev. Stat. § 91-14:

“‘Where the decision

below is correct it must be affirmed by the appellate court
though the lower tribunal gave a wrong reason for its action.’”
Nihi Lewa, Inc. v. Dep’t Of Budget And Fiscal Services, 103 Haw.
163, 168, 80 P.3d 984, 989 (2003) (quoting Agsalud v. Lee, 66
Haw. 425, 430, 664 P.2d 734, 738 (1983)).

To accomplish what

Plaintiffs request, which is the vacating of the Planning
Commission’s decision, this court would first have to consider
whether there were other factual or legal reasons to affirm the

22

Planning Commission’s ruling, which would necessitate an
exhaustive legal and factual inquiry.

The court points this out

not in aid of skirting any duty, but rather as strong evidence
that Count X predominates over the federal claims.
c.

Other factors.

Comity presents another reason for this court to
decline jurisdiction over this cross-system appeal.

“Comity

‘reflects a proper respect for state functions, a recognition of
the fact that the entire country is made up of a Union of
separate state governments, and a continuance of the belief that
the National Government will fare best if the States and their
institutions are left free to perform their separate functions in
separate ways.’”

Levin v. Commerce Energy. Inc., 560 U.S. 413,

130 S.Ct. 2323, 2330 (2010).

“Notions of comity and federalism

demand that a state court try its own lawsuits, absent compelling
reasons to the contrary.”

Thatcher Enterps. v. Cache Cnty.

Corp., 902 F.2d 1472, 1478 (10th Cir. 1990).
Comity is especially important when a state claim
concerns an area of substantial state or local interest such as
land use planning.

Cf. Mission Oaks Mobile Home Park v. City of

Hollister, 989 F.2d 359, 360 (9th Cir. 1993), overruled on other
grounds by Green v. City of Tucson, 255 F.3d 1086 (9th Cir. 2001)
(staying proceedings because they implicated important state
interest in enforcing its own land use regulations).

23

This court

is mindful that retaining Count X would not only deprive the
parties of the opportunity to litigate the claim before a state
circuit court that is more experienced in handling such matters,
it would also deprive the state appellate courts of the
opportunity to weigh in on the complex legal and factual issues
of state concern, if the decision were appealed.

This court once

again turns to the guidance provided in Gibbs, 383 U.S. at 726,
which stated, “Needless decisions of state law should be avoided
both as a matter of comity and to promote justice between the
parties, by procuring for them a surer-footed reading of
applicable law.”
Nor does this court find that considerations of
fairness or convenience tip the balance in favor of retaining
jurisdiction.

Considerations of fairness would favor retention

of Count X if, for example, Plaintiffs were unable to pursue
their administrative appeal in another forum.
the case.

But this is not

Under 28 U.S.C. § 1367(d), the period of limitation is

tolled while Count X is pending in this court and for thirty days
after it is dismissed, unless state law provides for a longer
time period.

Plaintiffs therefore appear to be able to assert

Count X in state court upon dismissal by this court.
Furthermore, it is not at all clear that dismissing
Count X and staying the case will prejudice Plaintiffs.

The

record does not suggest that a dismissal by this court will

24

materially delay resolution of Count X.

There is no reason for

this court to think that its own decision-making calendar is
different from that of a state court.

In fact, this court may

well take longer than a state court to reach a trial of this case
because federal trial dates in civil cases are on occasion
continued to allow the court to try criminal cases in accordance
with 18 U.S.C. § 3161.

By contrast, state circuit courts have

divisions reserved exclusively for civil cases that are not
susceptible to such delays and thus may be able to provide the
parties with firmer and earlier civil trial dates than this
court.
Dismissal of Count X would not materially inconvenience
the parties.

Although Plaintiffs insist that dismissal of Count

X would result in the hardship of having to litigate on two
fronts, this is not the case.

As discussed below, the court

intends to stay the remaining claims pending the resolution in
state court of the administrative appeal.

Count X is more

properly addressed in state courts.
C.

This Court Abstains from Deciding The
Constitutional Issues Pending Resolution of Count
X in State Court.

Because the court declines to exercise supplemental
jurisdiction over Count X and dismisses it so that Plaintiffs may
raise the claim in state court, the court must decide whether it
should abstain from adjudicating and stay Plaintiffs’ other

25

claims pending resolution of the administrative appeal.

Although

the parties have not moved for abstention, federal courts may
raise the issue sua sponte.

See, e.g., Bellotti v. Baird, 428

U.S. 132, 143–44 n. 10 (1976).

This court has already permitted

the parties to address the possibility of a stay, meaning that,
while raising the issue sua sponte, this court is not deciding it
sua sponte.
Plaintiffs, citing to 28 U.S.C. § 1367(d), submit that
there is no reason to stay the other claims pending the
resolution of the state administrative agency appeal because
Plaintiffs “would likely not file such action in state court
unless and until they were unsuccessful on their federal claims
and after an appeal was decided.”

See ECF No. 91, PageID # 829.

Section 1367(d) provides, “The period of limitations
for any claim asserted under subsection (a), and for any other
claim in the same action that is voluntarily dismissed at the
same time as or after the dismissal of the claim under subsection
(a), shall be tolled while the claim is pending and for a period
of 30 days after it is dismissed unless State law provides for a
longer tolling period.”

28 U.S.C. § 1367(d).

If Plaintiffs do

not file in state court until the federal claims are decided,
their administrative appeal may well become time-barred.
Plaintiffs insist that, even if this court dismisses
Count X, the statute of limitations will be tolled for as long as

26

the other claims remain pending in federal court.

For this

proposition, Plaintiffs cite to the California Court of Appeals’
statement in Kendrick v. City of Eureka, 98 Cal. Rptr. 2d 153,
154 (Cal. Ct. App. 2000), that “section 1367(d) continues to toll
the state statute of limitations during the federal appeal period
provided as a matter of statutory right, but tolling ceases once
the district court decision is affirmed by the federal appellate
court.”
Plaintiffs assign broad meaning to Kendrick.

In making

the above statement, the California court was only noting that
§ 1367(d) tolls a state statute of limitations through an appeal
to a federal court of appeals, but not during the time until the
Supreme Court denies a petition for writ of certiorari.
156-57.

Id. at

Kendrick did not say that a limitations period is stayed

with respect to a dismissed claim when a litigant chooses to let
the thirty-day period in § 1367(d) expire with respect to a claim
that is arguably no longer “pending” in federal court.

Kendrick

does not address the issue of whether a claim can be said to be
“pending” once it is dismissed if the remainder of the case is
stayed and no appeal is taken from the partial dismissal.
Plaintiffs are free to rely on the possibility that the Ninth
Circuit will agree with them that Kendrick indeed stands for that
proposition, but if they consequently do not file an
administrative appeal within thirty days of dismissal, they may

27

be risking losing the opportunity for judicial review of the
October 2014 Decision.
This court analyzes the issue of whether to stay the
remaining claims in light of Railroad Commission of Texas v.
Pullman Co., 312 U.S. 496 (1941).

A federal court may apply

Pullman abstention to “postpone the exercise of federal
jurisdiction when ‘a federal constitutional issue . . . might be
mooted or presented in a different posture by a state court
determination of pertinent state law.’”

VH Prop. Corp. v. City

of Rancho Palos Verdes, 622 F. Supp. 2d 958, 962 (C.D. Cal. 2009)
(quoting Pearl Inv. Co. v. City and Cnty. of San Francisco, 774
F. 2d 1460, 1462 (9th Cir. 1985), and C-Y Dev. Co. v. City of
Redlands, 703 F.2d 375, 377 (9th Cir. 1983)).

Pullman abstention

is an “equitable doctrine that allows federal courts to refrain
from deciding sensitive federal constitutional questions when
state law issues may moot or narrow the constitutional
questions.”

San Remo Hotel v. City and Cnty. of San Francisco,

145 F.3d 1095, 1104 (9th Cir. 1998).

It is also a discretionary

doctrine that flows from the court’s equity powers.

Potrero

Hills Landfill, Inc. v. Cnty. of Solano, 657 F.3d 876, 888 (9th
Cir. 2011) (citing Baggett v. Bullitt, 377 U.S. 360, 375 (1964),
and Smelt v. Cnty. of Orange, 447 F.3d 673, 678 (9th Cir. 2006)).
Pullman abstention is warranted if three conditions are
satisfied:

“(1) the federal plaintiff’s complaint requires

28

resolution of a sensitive question of federal constitutional law;
(2) the constitutional question could be mooted or narrowed by a
definitive ruling on the state law issues; and (3) the possibly
determinative issue of state law is unclear.”

Potrero Hills

Landfill, 657 F.3d at 888 (quoting Spoklie v. Montana, 411 F.3d
1051, 1055 (9th Cir.2005)).
This court has recently had occasion to abstain
pursuant to Pullman in an unrelated case in which a state
agency’s ruling was at the core of the dispute.

See Bridge Aina

Le’a, LLC v. Hawaii Land Use Comm’n, No. CIV. 11-00414 SOM, 2012
WL 1109046 (D. Haw. Mar. 30, 2012), aff’d, Bridge Aina Le’a, LLC
v. Chock, 590 Fed. Appx. 705 (9th Cir. 2014).

The present case

similarly presents both federal constitutional law claims and
state-law claims relating to an administrative decision.

Pullman

abstention is equally called for here.
1.

This Case Involves Sensitive Question of
Federal Constitutional Law.

The Ninth Circuit has consistently held that “land use
planning is a sensitive area of social policy that meets the
first requirement for Pullman abstention.”

San Remo Hotel, 145

F.3d at 1105 (quoting Sinclair Oil Corp. v. Cnty. of Santa
Barbara, 96 F.3d 401, 409 (9th Cir. 1996), and citing Sederquist
v. City of Tiburon, 590 F.2d 278, 281–82 (9th Cir. 1978), and
Rancho Palos Verdes Corp. v. City of Laguna Beach, 547 F.2d 1092,
1094–95 (9th Cir. 1976)).

See also VH Prop., 622 F. Supp. 2d at
29

962.

This case directly implicates land use planning, as

Plaintiffs are asking this court to determine whether an action
taken by the Planning Commission violated various federal
constitutional rights as well as state law.

The first Pullman

requirement is therefore satisfied.
2.

A State Court Ruling May Narrow or Alter Some
Federal Constitutional Issues.

The second Pullman abstention requirement involves a
“state law question that has the potential of at least altering
the nature of the federal constitutional questions.”
703 F.2d at 378.

C–Y Dev.,

“In land use cases, the Ninth Circuit has

frequently found this requirement satisfied where a favorable
decision on a state law claim would provide plaintiff with some
or all of the relief he seeks.”

VH Prop., 622 F. Supp. 2d at

963.
In VH Property, the plaintiffs alleged that the City of
Rancho Palos Verdes had violated their rights under the United
States and California constitutions and California law by denying
land development applications submitted by VH.

Id. at 960.

The

court found the second requirement satisfied: “it is possible
that resolution of VH’s state constitutional takings claim in its
favor will obviate the need to rule on its federal claims,
particularly if VH finds the compensation awarded by the state
court satisfactory.”

Id. at 963.

The court noted,

“Alternatively, the state court may issue a writ of mandamus
30

directing the City to approve VH’s development plans, mooting
VH’s federal claims to the extent they seek redress for a
permanent, rather than temporary, deprivation of property
rights.”

Id.
VH Property relied on two Ninth Circuit cases, Sinclair

Oil, 96 F.3d at 405, and C–Y Development, 703 F.2d at 378–80,
both of which addressed challenges to land use decisions.
Development is particularly relevant here.

C–Y

As explained in VH

Property:
[I]n C–Y Development, plaintiff challenged
the City of Redlands’ denial of its
applications for building permits, seeking,
among other things, a writ of mandamus
requiring the city to issue the permits. C–Y
Development, 703 F.2d at 378. The court held
that the second requirement for Pullman
abstention was met, observing that a writ of
mandate directing the city to issue the
permits would moot some of the federal issues
in the case. Id. at 380. The fact that
“following such hypothetical state
adjudication [plaintiff] might return to
federal court to seek damages for the alleged
temporary deprivation of its property rights”
did not render Pullman abstention
inappropriate. Id.
622 F. Supp. 2d at 963.
If Plaintiffs prevail in their administrative appeal,
they will obtain some of the relief they seek in this case.

That

might moot out, or at least affect, some of the constitutional
claims.

In their federal claims in this action, Plaintiffs seek

injunctive and monetary relief.

They seek an order invalidating

31

the Planning Commission’s decision, as well as an order directing
the Planning Commission to grant its special use permit.

A state

court’s decision in favor of Plaintiffs on Count X would
presumably ensure that the denial would be voided, or may even
direct the Planning Commission to approve the permit, mooting out
at least some of the injunctive relief claims.

Furthermore, “The

fact that ‘following such hypothetical state adjudication
plaintiff might return to federal court to seek damages for the
alleged temporary deprivation of its property rights’ [does] not
render Pullman abstention inappropriate.’”

VH Prop., 622 F.

Supp. 2d at 963.
As the Ninth Circuit noted in Sinclair Oil, 96 F.3d at
409, a ruling by a state court need not be “absolutely certain to
obviate the need for considering federal constitutional issues.”
It is enough for purposes of satisfying the second Pullman
abstention requirement if “state law issues might ‘narrow’ the
federal constitutional questions.”

Id.

The second Pullman

abstention requirement is met here.
3.

How the State-Law Issues Will Be Resolved is
Uncertain.

The third Pullman factor goes to the uncertainty of
issues of state or local law.

“Relying on the local nature of

land use claims, and the fact that they involve interpretation of
various state and local land use laws, the Ninth Circuit has
required only a minimal showing of uncertainty to satisfy the
32

third Pullman factor in land use cases.”
2d. at 964 (discussing Sinclair Oil).

VH Prop., 622 F. Supp.

In determining whether

determinative issues of state or local law are uncertain, the
Ninth Circuit says that “a local government’s enactment of land
use regulations ‘is by nature a question turning on the peculiar
facts of each case in light of the many [applicable] local and
state-wide land use laws . . . .’”

Sinclair Oil, 96 F.3d at 410

(quoting Santa Fe Land Improvement Co. v. City of Chula Vista,
596 F.2d 838, 841 (9th Cir. 1979)).
In Sinclair Oil, the Ninth Circuit, addressing whether
abstention was appropriate in a case asserting takings claims
under the United States and California constitutions, found the
third requirement satisfied even though the state takings claim
was not “particularly extraordinary or unique.”

96 F.3d at 410

(citing Kollsman v. City of Los Angeles, 737 F.2d 830, 826 n.18
(“[A]bstention often will be appropriate when state land use
regulations are challenged on state and federal grounds.”)).
In San Remo Hotel, the Ninth Circuit similarly found
the third requirement met, noting that the plaintiff’s claim
could be rendered moot under a local law that was being addressed
in a pending state-court action.

145 F.3d at 1105.

That case

involved an ordinance that imposed conditions on converting a
hotel from one that housed permanent residents to one that served
transient tourists.

The owners of the San Remo Hotel were

33

required by the ordinance to obtain a permit to convert hotel
units to nonresidential, or tourist, use.

Id. at 1099.

In

addition, local zoning laws required conditional use
authorization to establish a tourist hotel.

Id.

Because the San

Remo Hotel had been zoned for solely residential use before the
zoning law was enacted (even though it had actually been used as
both a residential and tourist hotel), the City Planning
Commission, affirmed by the Board of Permit Appeals, rejected the
plaintiffs’ argument that operating as a tourist hotel would be a
“prior non-conforming use” and required the plaintiffs to obtain
a conditional use permit to convert the hotel rooms to “tourist
use.”

Id. at 1099–1100.

The plaintiffs ultimately obtained the

required permit, but it was subject to three conditions.

Id. at

1100.
The plaintiffs then filed two actions, seeking,
ultimately, to unconditionally convert the rooms to tourist use.
The first action sought a writ of mandamus in state court
challenging the Board of Permit Appeals’ determination that the
hotel was properly zoned for only residential use.

Id.

The

second action, filed in federal court, asserted, among other
claims, that the ordinance constituted a facial taking without
just compensation under the United States Constitution.

Id.

The Ninth Circuit remanded the case and instructed the
district court to abstain with respect to the takings challenge.

34

Characterizing the plaintiffs’ case as a challenge to “the
applicability of the [ordinance] and the need to obtain a
conditional use permit,” the Ninth Circuit noted that the case
hinged on the designation of the San Remo Hotel as “residential,”
the precise subject of the pending state mandamus action.
1106.

Id. at

The third Pullman abstention requirement was met because

the state mandamus action required the state court to interpret
an ordinance and municipal zoning laws, as well as to determine
what effect to give particular facts.

Id.

The Ninth Circuit

concluded that those were “uncertain issues of state law.”

Id.

The special use permit application in this case has not
yet been challenged in state court.

VH Prop., 622 F. Supp. 2d at

964; see also Sinclair Oil, 96 F.3d at 410.

While there is no

pending companion case in state court for this court to take note
of, the state claims present issues of unsettled state law.

How

a state court will decide the issues in Count X is unclear.
Plaintiffs’ appeal will turn, at least in part, on how the state
court interprets state and local laws and administrative rules,
and what effect the state court gives to the actions taken by the
Planning Commission.

For example, the reviewing court will have

to determine whether the proposal by Plaintiffs constitutes an
“unusual and reasonable use” under Haw. Admin. R. § 15-15-95 and
whether the application satisfies every criterion under Maui
County Code § 19.510.070(B).

This court does “not claim the

35

ability to predict whether a state court would decide that the
[Planning Commission] here abused its discretion” or otherwise
erred.

Sinclair Oil, 96 F.3d at 410.

Whether the Commission

complied with state and local law presents uncertain issues of
state law.
This court, concluding that all three requirements are
met, abstains under Pullman with respect to Plaintiffs’ federal
claims.

Permitting a Hawaii court to determine the state and

local issues underlying the Complaint may potentially narrow the
federal constitutional issues presented.

The principles of

comity and federalism underlying Pullman therefore support this
court’s decision to abstain.

VH Prop., 622 F. Supp. 2d at

966-67.
Moreover, this court sees no reason that it cannot also
stay the state claims in Counts I to IX against the County that
this court is exercising supplemental jurisdiction over pursuant
to 28 U.S.C. § 1367.

The state-law claims are similar to the

federal claims in that both are based on allegations that the
Planning Commission’s decision violated religious and other
rights.

This court has the discretion to manage this case in an

orderly and efficient manner.

Thus, the court stays Plaintiffs’

state claims in the interest of sensible management of this case.
Appropriate abstention, unlike dismissal or remand, “does not
constitute abnegation of judicial duty.”

36

Louisiana Power & Light

Co. v. City of Thibodaux, 360 U.S. 25, 29 (1959).

When

warranted, abstention may be a productive “postponement of
decision for its best fruition.”
V.

Id.

CONCLUSION.
Counts I to IX against the Planning Commission are

dismissed, and those counts against the County are stayed.

The

court declines to exercise supplemental jurisdiction over Count X
and dismisses Count X without prejudice to Plaintiffs’ pursuing
of that claim in state court pursuant to 28 U.S.C. § 1367(d).
The court stays the present case pending the state circuit
court’s determination of the matters raised in Count X.

The

court administratively closes this case and terminates all
pending motions.

All scheduled matters, including the settlement

conference set for March 1, 2016, are taken off the calendar.
The case will be reopened upon the parties’ submission of written
statements either attaching a final state-court decision, or
explaining a change in circumstances that warrants the reopening
of this case.
When this case is reopened, any unadjudicated matter
stayed by this order may, upon written request by a party, be
reset for such supplemental briefing and/or hearing as may be
appropriate, without the need to refile papers already in the
case file.

37

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, January 27, 2016.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

Spirit of Aloha Temple, et al. v. County of Maui, et al., Civ. No. 14 00535
SOM/RLP; ORDER GRANTING MOTION TO DISMISS AND/OR FOR PARTIAL SUMMARY JUDGMENT

38