HomeMy WebLinkAboutCOM 0092.031 2004-2006 Claudia J. Rohr
369 Nene St.
Hilo, HI 96720
808-934-8040
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAII
Claudia J. Rohr ) Civil No.
Plaintiff, ) (Hilo)
vs. )
COMPLAINT FOR DECLARATORY
COUNTY COUNCIL OF COUNTY ) AND INJUNCTIVE RELIEF;
OF HAWAII; DEFENDANTS )
JOHN DOES 1-10, )
JANE DOES 1-10; )
DOES AGENCIES 1-10 ) CERTIFICATE OF SERVICE
Defendants )
COMPLAINT FOR DE LA ATORV D MENT
AND INJUN TTV R.TT
I. PRELIMINARY STATEMENT
1. Through this action the Plaintiff seeks a
Declaration from this Court that the process by which Bi11
355 and 356 is being reviewed and approved by the Hawaii
County Council is contrary to the requirements of HRS
Chapter 92, known as the Sunshine Law, the County Charter
and the Hawaii County Code. The complaint concerns
procedural irregularities in the review and approval of
Bi11 355, a state land use district boundary amendment, and
Bill 356, an amendment to 25-8-35 (Pepeekeo Zone Map),
Comm. No._~.-
Ref. To: toady ~J
1 Ref. Uate MAR j inns
Article 8, Chapter 7.5 (Zoning Code) of the Hawaii County
Code. The violations of HRS Chapter 92, the County
Charter, and Hawaii County Code is willful. Bill 355 and
Bill 356 should be sent back to the Planning Department or
be declared illegal. The procedural irregularities harmed
the Plaintiff by interfering with Plaintiff's ability to
observe and participate in government, and access the
shoreline in Continental Pacific, LLC's Pepeekeo Makai
subdivision.
2. Come now Claudia J. Rohr, plaintiff herein, and
for the purpose of obtaining relief, complain of the
defendants above named, jointly and severally, as follows:
II JURISDICTION, VENUE AND STANDING
3. This Court has jurisdiction in the matter pursuant
to Hawaii Revised Statutes Chapter 46, 92, and 603. Venue
lies in this judicial circuit because the prohibited acts
occurred in the County of Hawaii, State of Hawaii.
4. Plaintiff has standing, among other reasons, as a
County of Hawaii resident, registered voter, and further as
per 92-12(c) which states:
Any person may commence a suit in the circuit court of
the circuit in which a prohibited act occurs for the
purpose of requiring compliance with or preventing
violation of this part to discussions or decisions
of the public body.
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5. There is an actual controversy between the parties
on this matter which justifies the granting of declaratory
relief pursuant to HRS Chapter 632.
6. Plaintiff Claudia ROHR is a resident of South
Hilo, County and State of Hawaii whose interests will be
harmfully affected by the passage of Bill 356.
7. Defendant COUNTY COONCIL is the legislative body
of the County of Hawaii, whose purviews are set forth in
the Hawaii County Charter, Article III.
8. Defendants JOHN DOES 1-10, JANE DOES 1-10, DOE
GOVERNMENT AGENCIES 1-10 are unknown to Plaintiff, who
therefore sues said Defendants by such fictitious names and
ask leave of the Court to amend this complaint to
substitute the true names and capacities when same become
known.
IV FACTUAT ALLEGATIONS
ACS?
9. Claim I concerns the Hawaii County Council's
procedural irregularities in the review and approval of use
of the April 12 Settlement Agreement for Board of Appeals
and Subdivision of Continental Pacific LLC's land and
public access spacing to the shoreline in Continental
Pacific, LLC's Pepe'ekeo Makai subdivision in Pepe'ekeo,
Hawaii.
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BA K ROUND
10. Chris Yuen has been the dually appointed Planning
Director of the County of Hawaii since December of 2001.
11. Chris Yuen has a professional degree in Law and
was a practicing attorney prior to being appointed Planning
Director.
12. The Planning Director negotiated a settlement
agreement with Continental Pacific, LLC on behalf of the
Planning Department to resolve a dispute at the Board of
Appeals concerning use of pre-existing parcels of record.
13. Continental Pacific, LLC appealed the Planning
Director's non-recognition of house lots from the former
mill camp at Pepeekeo and other camps as pre-existing
parcels of record for use in a consolidation resubdivision
of Continental Pacific, LLC's lands.
14. The April 12, 2002 Settlement Agreement For Board
of Appeals and Subdivision, of Continental Pacific, LLC
Lands, hereafter referred to as "Subdivision Agreement" or
"Settlement Agreement" interchangeably, was executed by the
Planning Director, Deputy Corporation Counsel, Mayor of
Hawaii County, and Continental Pacific, LLC.
15. The Subdivision Agreement is more then just a
compromise agreement settling out entitlement issues
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relating to the subject matter of "use of pre-existing lots
of record," noticed and discussed at the Board of Appeals.
16. The Subdivision Agreement is a comprehensive
agreement deciding issues relating to administration and
satisfaction of requirements of HRS 205A Coastal Zone
Management; Planning Commission ("PC") Rule 9 Shoreline
Management Area; Hawaii County Code ("HCC") Chapter 16
Planning (Hawaii County General Plan); Hawaii County Code
("HCC") Chapter 34 Public Access; Hawaii County Code
("HCC") Chapter 23 Subdivision; and HCC Chapter 25 Zoning.
17. The Planning Director issued final approval of
Increment I subdivision of Continental Pacific, LLC's
Pepeekeo Makai lands on January 27, 2003, hereafter
refereed to as "Subdivision 7644."
18. Subdivision 7644 was a parcel consolidation
re-subdivision using 70 of the 92 pre-existing lots of
record recognized by the Planning Department by the terms
of the Settlement Agreement.
19. Bill 356 proposes to amend the Pepeekeo zoning
map to bring the zoning in the area of the former old
Pepeekeo mill camp into conformance with Continental
Pacific, LLC's subdivision plans for Increment II of It's
Pepeekeo Makai lands.
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20. The Subdivision Agreement includes terms that the
Planning Director, on behalf of the Planning Department,
would recommend approval of a Special Management Area Use
permit and a rezoning petition to the Planning Commission
for a proposed eleven lot subdivision located in the SMA
and state land use "U" urban district at Pepeekeo Point.
The proposed subdivision will create oceanfront residential
lots in the area formerly occupied by the old mill camp,
including the old ball fields and open common space along
the shoreline.
21. The Planning Department determined that
Continental Pacific, LLC must rezone portions of the former
Pepeekeo Mill and old camp from Industrial and Village
Commercial to Residential as a pre-requirement to
subdividing the lands in the state land use "U" urban
district for use in a residential subdivision.
22. The Planning Commission approved held public
hearings from September 21 through September 16, 2004 and
approved SMA permit 447 and the recommended approval of the
rezoning petition (Bill 356).
23. The Planning Department referenced the Subdivision
Agreement in agency recommendations and reports, SMA permit
conditions, and the rezoning ordinance. In this manner the
SMA permit 997 and Bill 356 incorporated a design standard
for the spacing of public accesses to the shoreline in the
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residential district that was less desirable and
compromised design standards codified in HCC Chapter 34 by
minimal reference.
24. At Planning Commission hearings, Members of the
public testified to the lack of convenient public access to
the shoreline, inadequate spacing of public accesses to
reach favorite rocky beaches, and the need for convenient
open space for picnicking without fear of being washed away
by a wave.
25. The Planning Commissioners asked the Planning
Director if there was anything they could do for the those
members of the public voicing complaint. The Planning
Director directed the attention to the Subdivision
Agreement each time and stated that the County had signed
the Agreement to settle a dispute. The Commissioners were
deterred from amending the conditions of approval in this
manner.
26. The Subdivision Agreement compromised the
standard requirements for spacing between public accesses
to the shoreline for lands in the "RS" Residential and "A"
Agriculture zoned districts, authorized under HCC
34-5(a)(1) and (3).
27. The Subdivision Agreement authorizes spacing
between public accesses in the residential zoned district
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at a greater distance apart then authorized in the standard
requirements of HCC 34-5(a)(1).
28. Hawaii County Code, 34-5 states in relevant part:
Section 34-5. Subdivision and development of land.
The following standards for public access shall apply:
(a) Shoreline Access.
(1) For lands in the RS, RD, RM, V, CO, CN, and
CV districts, the desired spacing of public
accesses shall be from eight hundred to one
thousand feet apart.
29. Subdivision 7649 map indicates that there is a
public parking area (P-6) at the bottom of Mill Road
adjoining a coastal trail intended for public use. The
Subdivision 7644 map delineates measurements from point to
point along the top of the pali. The Subdivision Agreement
designates Mill Rd. as the only mauka makai public access
to the coastal trail within the Residential zoned district
and area occupied by the former Pepeekeo Mill camp. The
distance between P-6 and a popular rocky beach north of the
Pepeekeo Light Station is approximately 1500 feet along the
coastal trail according to the measurements from point to
point along the paii on Subdivision 7644 map. The coastal
trail follows the top of the pali for 2425 feet over land
in the Residential zoned district without intersecting a
public access through the Proposed Subdivision.
30. Hawaii County Code, Chapter 34-5 (5)(A) and (B)
sets standards for exceptions to the spacing requirement
for public access to the shoreline. The Residential zoned
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district at Pepeekeo Point does not meet the standard for
exceptions because there is a coastal trail created by
survey on the Sub. 7644 map.
31. In the instance where there is a coastal trail
the spacing of mauka makai public accesses through a
development in the residential district must meet the
standards of HCC 34-5(a)(1).
32. HCC 34-5(a)(5) states there is no exception in
the case of a coastal trail:
(5) The desired spacing shall not be applicable along
sections of shoreline where the director has
determined that:
(A) The shoreline is inaccessible by land
approach due to extremely hazardous or impassable
conditions, such as steep cliffs or other
dangerously unstable terrain where no practical
remedy is feasible; and
(B) No public coastal trail exists inland of such
intervening hazardous or impassable lands and
which leads to an accessible shoreline or public
shoreline area within five thousand feet of the
subdivision or development.
33. In the case where no public streets exist other
means must be found to provide adequately spaced public
accesses through a development to the shoreline.
34. HRS 34-4 states, in relevant part:
Section 34-4. Application.
(d) Where the lands comprising a proposed subdivision
or development do not span the entire distance
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between a public street and a shoreline or mountain
area to which the County has determined by the
director that public access is necessary, the director
shall require dedication of those segments of the
needed public accessway laying within the proposed
subdivision or development.
35. In any event, Continental Pacific, LLC and the
Planning Director are required to get approval by
resolution from the County Council in the case the spacing
of public accesses are further a part then eight hundred to
a thousand feet for lands in the residential zoned
district.
36. HRS 34-5(a)(6) states:
Section 34-5. Subdivision and development of land.
The following standards for public access shall apply:
(a) Shoreline Access.
(6) A spacing of public access(es) further
apart than as set forth in subsections
(a) (1) through (a) (4) of
this section or the determination of
inaccessibility pursuant to subsection
(a)(5) of this section shall
be approved by resolution of the County
council.
37. The Subdivision Agreement did not openly address
the requirement that spacing of public accesses further
apart then the standards set by HRS 34-5(a) be approved by
resolution of the County Council.
38. Continental Pacific, LLC has not provided the
County with executed conveyance documents for proper
dedication of the public access easements within
Subdivision 7644.
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39. The public accesses lying within Subdivision 7644
were not properly designated on Subdivision 7644 final map.
40. Hawaii County Code Section 34-8 (Subdivision o£
land) states in relevant part:
(a) Upon review of a subdivision application, when it
is determined that public access must be provided, the
subdivider shall file the executed documents for
dedication of the public access, free and clear of all
encumbrances with the director.
(b) Prior to final subdivision approval, the
dedication documents shall be reviewed and approved as
to its form and content by the appropriate agencies.
The director may thereafter grant approval to the
subdivision in accordance with the subdivision rules
and regulations of the County.
(c) The public access shall be clearly designated on
the final map of the subdivision in accordance with
the subdivision rules and regulations.
41. The Planning Director compromised administration
of HCC 34-8(a)through(c), referenced above.
42. Many of Subdivision 7644's privately owned
streets are easements over private land. Continental
Pacific, LLC failed to grant rights of public use or access
over the subdivision's private streets leading to the
public parking areas.
43. Chapter 34-3(a)(11) states:
(11) "Public street" and "public highway" mean a
publicly owned street or highway or a privately owned
street or highway over which rights of public use or
access have been granted and duly accepted by the
state or county.
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44. Members of the public have testified that it is
unacceptable to approve more development until Continental
Pacific, LLC revises Subdivision 7644 map, drafts legal
descriptions and executes conveyance documents so that the
public can inspect the public accesses on the ground before
the County Council proceeds.
45. Bill 356 is agendized for second reading for a
regularly scheduled hearing before the County Council on
March 1, 2005. Bill 356 includes conditions of approval.
Condition (D) states in relevant part:
The project, including the provisions of public
accesses to and along the shoreline, limitations on
the number of dwellings in the RS zone, and furnishing
of water to the lots, shall be completed in
substantial compliance with the Settlement Agreement
dated April 12, 2002.
46. Part C. Public Access, page 7 of the Subdivision
Agreement states in relevant part:
The County of Hawaii hereby agrees and stipulates that
the terms of this Agreement and the recordation of the
Easements for Public Access for the Continental Lands
at the Bureau of Conveyances, State of Hawaii, shall
constitute full and final compliance with all public
access requirements for the Continental Lands of
Hawaii revised Statutes ("HRS") Section 46.6.5, HRS
Chapters 205A and 343, the Ala Loa or Ala Kahakai, and
Hawaii County Code Chapter 23 (Subdivision) and
Chapter 34 (Public Access).
47. February 1, 2005 the County Council Planning
Committee approved Bill 356 and forwarded the Bill to the
County Council for first reading with a majority vote.
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February 16, 2005 the County Council approved Bill 356 on
the first reading with a majority vote.
Conclusion Claim I.
48. By reviewing and voting on Bill 356 the County
Council is approving the lack of proper spacing of public
accesses as committed by the Subdivision Agreement without
proper notice and public debate.
49. The County Council must have reviewed and
approved the spacing of public accesses committed by the
Subdivision Agreement in principle because a majority of
the Council Members approved Bill 356 at first reading.
50. The County Council must have approved the spacing
of public accesses committed by the Subdivision Agreement
in principle because the Council Members approved the
language of the bill at first reading. Bill 356
incorporates the design standards for the public accesses
in the Subdivision Agreement in condition "D" by reference.
51. Or, maybe the County Council did not bother to
spend the time to review the spacing of the public accesses
for the proposed subdivision in the residential district
but approved the public access spacing committed by the
terms of the Subdivision Agreement solely on the Planning
Director's recommendation.
]3
52. In any event the deficiencies in the spacing of
public accesses to the shoreline in Continental Pacific,
LLC's Pepeekeo makai subdivision requires a separate
approval by the County Council according to HRS 34-5(a)(6).
53. The subject matter must be properly noticed as a
separate agenda item and be approved by resolution in an
open meeting.
54. Bi11 356 is improperly drafted. A bill may not
incorporate a design standard that is less stringent or
inconsistent with design standards codified under the law
by minimal reference. County Council Rules of Procedure,
Rule 27.2 (g) states in relevant part:
(g) A bill may incorporate therein any standard
technical code or portions thereof by reference. The
code, or portions, need not be published in the
manner required for ordinances, but not less than
three copies thereof shall be filed for use and
examination by the public in the Office of the County
Clerk, and notice of the availability of said copies
shall be published by the Clerk.
55. There is only one public access allotted for 2425
feet of shoreline in the residential district committed by
the Subdivision Agreement. This does not come close to
complying with the standards for spacing of public accesses
in the residential district codified in HCC Chapter 34.
HCC 34-5(a)(1) states:
For lands in the RS district, the desired spacing of
public accesses shall be from eight hundred to one
thousand feet apart.
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56. Incorporation of the deficient design standard for
public accesses in the Subdivision Agreement by reference
in bill 356 is plain error. Referencing the Subdivision
Agreement in bill 356 incorporates a sub-standard spacing
of public accesses for land in the residential district
without a separate vote of approval by resolution. This
violates the spacing requirements codified in HCC Chapter
39-5(a)(1) and The Sunshine Law.
57. HCC 34-5(a)(6) specifies that for lands in the
residential district a spacing of public access(es) further
apart than eight hundred to one thousand feet shall
be approved by resolution of the County council.
58. Only the incorporation of the design standards
codified in HCC Chapter 34-5(a)(1) by reference in Bill 356
would be consistent with the County Council's Rules of
Procedure, Rule 27.2 (g) and the Sunshine Law.
III COMPLTAN WITH TH TN HTN LAW CLAIM I.
59. The County Council is aware that there is an
actual controversy concerning the proper procedures for use
of the Subdivision Agreement. Persons have testified that
the Subdivision Agreement specifies deficient spacing of
public accesses and does not comply with HCC Chapter 34.
Persons have argued that approval of deficient spacing
between public accesses must be properly agendized, noticed
and considered in an open meeting. The Council, for
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whatever reason, is willfully considering approving Bill
356 on second reading anyway. This is procedurally
incorrect and willfully violates the Sunshine Law. HRS 92-1
states in relevant part:
Opening up the governmental processes to public
scrutiny and participation is the only viable and
reasonable method of protecting the public's interest.
Therefore, the legislature declares that it is the
policy of this State that the formation and conduct of
public policy - the discussions, deliberations,
decisions, and action of governmental agencies - shall
be conducted as openly as possible.
(2) The provisions requiring open meetings shall
be liberally construed; and
3) The provisions providing for exceptions to the
open meeting requirements shall be strictly
construed against closed meetings. [L 1975, c
166, pt of ~ 1]
60. HRS 92-7 requires that the Council list all items
under consideration on the agenda of a forthcoming meeting
and provide the agenda in a written public notice. HRS
92-7 (d) states in part:
HRS 92-7(d): Items of reasonably major importance not
decided at a scheduled meeting shall be considered
only at a meeting continued to a reasonable day and
time.
61. Chapter 34 clearly states deficient spacing of
public accesses requires a separate vote of approval by the
County Council. The County Council understands that they
are subject to the Sunshine Law and that matters of
importance must be properly agendized, noticed and
considered in open meetings. The County Council understands
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that the spacing of public accesses at Continental Pacific,
LLC's subdivision is a matter of reasonable importance
because it has been discussed and debated earnestly at
public hearings for Bill 356 on three occasions.
62. The Planning Committee and County Council both
failed to continue their deliberations on Bill 356 until a
later date when the Planning Committee and County Council
could add the subject matter of approving the deficient
spacing of public accesses to a scheduled meeting. The
Planning Committee and the County Council both improperly
approved Bill 356 by majority vote.
63. Agency comments are outdated and "stale" due to
the updating of Tax Key Map (3)2-8 plat 8 and the length of
the approval process.
HARM TO PTATNTTFF, CT ATM T_.
64. The Plaintiff enjoys visiting the Pepeekeo Light
Station, the old camp ball fields and the surrounding
shoreline area for scientific study, hiking, picnicking,
and viewing the rugged coastline and fishing activities and
asks for equal protection of the law.
65. The Plaintiff is been denied properly spaced
public accesses and convenient public access to the
shoreline area at Pepeekeo Point area without due process
of law.
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66. The Plaintiff has been under duress for lack of
proper administration of HCC 39-8 (a) through(c) prior to
consideration of further development approvals.
67. The Plaintiff has been denied the ability to
observe and participate in a governmental action affecting
public access to an area of personal interest and
historical importance.
PRA R FOR TNJ N TTV R i,T
WHEREFORE Plaintiff prays for judgment of the Court to
declare the procedure by which the County Council is
reviewing and approving Bill 355 and Bill 356 contrary to
the Sunshine Law, HRS Chapter 92.
Enjoin the County Council to postpone the second
reading of Bill 355 and 356 until procedural irregularities
can be reviewed and properly corrected for compliance with
the Sunshine Law, HRS Chapter 92.
Enjoin the County Council to go back and provide a
proper separate agenda listing and hold an open meeting to
review and approve the spacing of the public accesses
through the proposed subdivision located in the residential
zoned district, affected by Bi11 356. Enjoin the County
Council to issue approval by resolution or direct the
Planning Director to correct deficiencies in the spacing of
the public accesses in an open meeting.
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Enjoin the County Council to go back and issue a
proper separate agenda listing and hold an open meeting to
properly review and approve the spacing of the public
accesses through Subdivision 7644. Enjoin the County
Council to issue approval by resolution or direct the
Planning Director to correct deficiencies in the spacing of
the public accesses in an open meeting.
Enjoin the County Council to direct the Planning
Director to bring Subdivision 7644 into compliance with HCC
34-8(a)through(c) prior to further consideration or
processing of development or subdivision applications.
Hold a judicial review of the Subdivision Agreement
and issue a declaratory ruling on the matter of its proper
use to comply with Hawaii County Code, and the Sunshine
Law, HRS Chapter 92.
Enjoin the County Council to send back Bill 356 and
Bill 355 to the Planning Department to be reprocessed
starting with correct applications, reports, and agency
comments.
Award attorney's fees and penalties for an amount to
be determined.
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