607-25

Actions based on failure to obtain government permit or approvals; attorney's fees and costs

§607-25 Actions based on failure to obtain government permit or approvals; attorney’s fees and costs. (a) As used in this section, “development” includes:

(1) The placement or erection of any solid material or any gaseous, liquid, solid, or thermal waste;

(2) The grading, removing, dredging, mining, pumping, or extraction of any liquid or solid materials; or

(3) The construction or enlargement of any structure requiring a discretionary permit.

(b) As used in this section, “development” does not include:

(1) The transfer of title, easements, covenants, or other rights in structures or land;

(2) The repair and maintenance of existing structures;

(3) The placement of a portable structure costing less than $500; or

(4) The construction of a structure which only required a building permit and for which a building permit could be granted without any discretionary agency permit or approval.

© For purposes of this section, the permits or approvals required by law shall include compliance with the requirements for permits or approvals established by chapters 6E, 46, 54, 171, 174C, 180C, 183, 183C, 184, 195, 195D, 205, 205A, 266, 342B, 342D, 342F, 342H, 342J, 342L, and 343 and ordinances or rules adopted pursuant thereto under chapter 91.

(d) For purposes of this section, compliance with the procedural requirements established by chapter 343 and rules pursuant to chapter 343 constitute a discretionary agency approval for development.

(e) In any civil action in this State where a private party sues for injunctive relief against another private party who has been or is undertaking any development without obtaining all permits or approvals required by law from government agencies:

(1) The court may award reasonable attorneys’ fees and costs of the suit to the prevailing party;

(2) The court shall award reasonable attorneys’ fees and costs of the suit to the prevailing party if the party bringing the civil action:

(A) Provides written notice, not less than forty days prior to the filing of the civil action, of any violation of a requirement for a permit or approval to:

(i) The government agency responsible for issuing the permit or approval which is the subject of the civil action;

(ii) The party undertaking the development without the required permit or approval; and

(iii) Any party who has an interest in the property at the development site recorded at the bureau of conveyances; and

(B) Posts a bond in the amount of $2,500 to pay the attorneys’ fees and costs provided for under this section if the party undertaking the development prevails;

(3) Notwithstanding any provision to the contrary in this section, the court shall not award attorneys’ fees and costs to any party if the party undertaking the development without the required permit or approval failed to obtain the permit or approval due to reliance in good faith upon a written statement, prepared prior to the suit on the development, by the government agency responsible for issuing the permit or approval which is the subject of the civil action, that the permit or approval was not required to commence the development. The party undertaking the development shall provide a copy of the written statement to the party bringing the civil action not more than thirty days after receiving the written notice of any violation of a requirement for a permit or approval; and

(4) Notwithstanding any provision to the contrary in this section, the court shall not award attorney’s fees and costs to any party if the party undertaking the development applies for the permit or approval which is the subject of the civil action within thirty days after receiving the written notice of any violation of a requirement for a permit or approval and the party undertaking the development shall cease all work until the permit or approval is granted. [L 1986, c 80, §2; am L 1990, c 20, §1; am L 1995, c 69, §15; am L 1996, c 82, §6; am L 1997, c 2, §12]

Revision Note

Pursuant to §23G-15, in:

(1) Subsection (e)(1), (2)(A)(iii) and (B), and (3), punctuation changed; and

(2) Subsection (e)(2)(A)(iii) and (3), “and” added after ending punctuation.

Law Journals and Reviews

Enforcement of Environmental Laws in Hawai‘i. 16 UH L. Rev. 85 (1994).

Ala Loop and the Private Right of Action Under Hawai‘i Constitution Article XI, Section 9: Charting a Path Toward a Cohesive Enforcement Scheme. 33 UH L. Rev. 367 (2010).

The Moon Court’s Environmental Review Jurisprudence: Throwing Open the Courthouse Doors to Beneficial Public Participation. 33 UH L. Rev. 581 (2011).

Case Notes

Under this section, attorneys’ fees may be awarded to: (1) a member of the public who prevails against a private party who has been or is undertaking development without obtaining all permits or approvals required by law from governmental agencies; and (2) a defendant private party who prevails against a plaintiff who has brought a frivolous suit. 86 H. 132, 948 P.2d 122 (1997).

Where plaintiff’s claims were not frivolous, award of attorneys’ fees to defendants not warranted under this section. 86 H. 132, 948 P.2d 122 (1997).

Where nothing in this section indicates that this section should provide the exclusive means for awarding attorney’s fees and costs against a party for a violation of chapter 343, this section was not the exclusive means for awarding attorney’s fees and costs for violations of chapter 343; also, this section did not prevent an award of attorney’s fees against defendant Superferry pursuant to the private attorney general doctrine. 120 H. 181, 202 P.3d 1226 (2009).

Where there was no record in the case that defendant Superferry qualified under subsection (e) as a private party that was “undertaking development without obtaining all permits or approvals required by law”, trial court erred in awarding plaintiff attorney’s fees and costs against defendant based on this section. 120 H. 181, 202 P.3d 1226 (2009).

In the circumstances of the case, art. XI, §9 of the Hawaii constitution created a private right of action to enforce chapter 205, and the legislature confirmed the existence of that right of action by enacting this section, which allows for the recovery of attorneys’ fees in such actions; chapter 205 is a law relating to environmental quality within the meaning of art. XI, §9, section 9 is self-executing, and §205-12 imposes “reasonable limitations and regulations” that were applicable to the case which allowed the private right of action to enforce chapter 205. 123 H. 391, 235 P.3d 1103 (2010).