HomeMy WebLinkAbout07-08-2022 Letter from Petitioner's Attorney LPC Item 42 Bolton, Inc. (REMAND SPP-16-000188)
7/8/2022 Letter from Petitioner's Attorney (Michael Matsukawa)
Mori, Ashley
From: michael matsukawa <kapulu@msn.com>
Sent: Wednesday, July 6, 2022 1:09 PM
To: LPCtestimony
Subject: Bolton Application
Attachments: D00001.pdf
Please see attached written comments for the Leeward Planning Commission hearing in July 2022.
Thank you.
i
MICHAEL J. MATSUKAWA
ATTORNEY AT LAW
TERRITORIAL CENTRE, SUITE 201
75-5751 KUAKINI HIGHWAY
KAILUA-KONA, HI 96740
TELEPHONE NO. (8081 329-1385
FAX NO. (8081 329-0512
E-MAIL UI n.
July 8, 2022
Chairman and Members
Leeward Planning Commission
County of Hawaii
101 Pauahi Street
Hilo, Hawaii:
Re: REMAND SPP 16-000188
TK (3) 7-5-17: 31 and 44
Applicant: Bolton, Inc.
Petitioner: The Community Associations of
Hualalai, Inc.
Hearing: July 21, 2022 (9:30 a.m.)
Greetings:
The Community Associations of Hualalai, Inc. ("Petitioner") requests that
it be granted standing in this contested case. The Petitioner, along with many
property owners, citizens, persons interested in responsible government and
Councilperson Rebecca Villega, have being involved in this case for more than
six years.
By its decision, the Hawaii Supreme Court "turned the clock back to
2016," back to when the commission held its first and only public hearing in
SPP 16-000188, and has given the commission a second opportunity to
execute its duties under the law. The questions before the Leeward Planning
Commission and the answers to those questions are set forth below:
(1) Should the commission grant the Petitioner's request for
standing? Yes.
(2) What is the exact nature of the activity that is before the
commission in SPP 16-000188? A flood control project that is augmented
by other activities.
(3) What is the legal effect of the Planning Director's September
21, 2016 letter on the commission? None.
MICHAEL J. MATSUKAWA
ATTORNEY AT LAW
(4) Should the commission adopt the Planning Director's
conclusions in his letter? No. The commission should affirmatively reject
the planning director's statements in his letter.
(5) If the landowner wishes to withdraw its application in SPP 16-
000188, should the commission dismiss SPP 16-000188? Yes, but only
upon terms to avoid establishing unintended administrative precedent.
Introduction
Before the Leeward Planning Commission restarts SPP 16-000188, the
commission should review the regulations governing the use of land in the
Agriculture District -- what is permitted, by whom and under what conditions?
The commission should also review the factual record to describe the work that
the landowner is undertaking, which is a combined, multi-purpose flood
control project that is augmented by the landowner's concurrent use of the
project site for additional activities, such as a baseyard, stockpiling and rock
crushing for commercial purposes.
According to the landowner, it did not need a Special Permit for the flood
control project, but that it did need a Special Permit for the augmented
activities that the landowner would be engaged in concurrently with the flood
control project on the same project site. For reasons stated below, the
landowner needs a Special Permit for both the flood control project and the
augmented activities.
[ Main Project ] [ Augmented Activities ]
Rock Crushing for Commercial
Flood Control Project -and- Purposes, Baseyard, etc.
A.
Regulatory Structure
In Section 205-2(d), HRS, the Legislature outlined the uses that are
permitted in the Agriculture District. If the soil of the land falls into produc-
tivity rating class C, D, E or U, the Legislature gave the State Land Use
Commission the authority to determine what kind of activity on land with
"non-prime" soils is "compatible with" with the Legislature's outline of
permitted uses in Section 205-2(d), HRS. The Legislature also gave the
counties the authority to "define" what is "accessory" to the Legislature's
outline of permitted uses.
2111a g o
MICHAEL J. MATSUKAWA
ATTORNEY AT LAW
Chapter 205, HRS
Section 205-2(d), HRS
Legislature's Outline of
Permitted Uses on Land
I
---4 but if soil class
of land has rating
of C, D, E or U 4 go to 205-4.5(c), HRS and to 205-5, HRS
205-5(a) County may exercise its zoning power in the district.
205-5(b) State Land Use Commission may determine what is
"compatible with" the Legislature's outline of uses in
205-2(d) -and- Counties may "define" what is an
"accessory" use.
It is important to note that (1) the Legislature did not describe a flood
control project to be a permitted use in its outline of uses in Section 205-2(d),
HRS. Since the soil class of the land in SPP 16-000188 is C, D, E or U, the
State Land Use Commission is to determine if a flood control project is "compa-
tible with" the Legislature's outline of permitted uses in Section 205-2(d), HRS,
but the State Land Use Commission has not made such a "compatibility" deter-
mination. Nor has the Hawaii County Council enacted an ordinance that
"defines" a flood control project to be an "accessory" use.
As to the other augmented activities, the Legislature did not describe the
landowner's augmented activities, which some have described to be a "quarry,"
to be a permitted use in its outline of uses in Section 205-2(d), HRS. The State
Land Use Commission has not determined that the augmented activities are
"compatible with" the Legislature's outline of permitted uses. Further, the
Hawaii County Council has not "defined" the augmented activities to be
"accessory" uses.
B.
Prior Permitting History
for the Flood Control Project
The land on which the activity referred to in SPP 16-000188 is or was
occurring is comprised of two separate but adjoining parcels that are owned by
the same landowner and that are designated as Tax Map Key (3) 7-5-17: 31
and 44. The planning department's background report states that in 2000, the
former Planning Commission issued Special Permit No. 1047 to the landowner
to build a coffee visitor center on Tax Map Key No. 31. A condition to Special
Permit No. 1047 requires the landowner to make flood control improvements
(the flood control project) to dispose of flood waters affecting both parcels of
31 F1 a g r
MICHAEL J. MATSLIKAWA
ATTORNEY AT LAW
land. However, Special Permit No. 1047 expired in 2010 and the landowner
abandoned the coffee visitor center.
Subsequent Grading Permit
In 2015, after Special Permit 1047 had expired, the landowner proposed
to construct the flood control improvements anyway and applied for grading
and stockpiling permits to build the "Kona Coffee & Tea Company Flood
Channel CLOMR Case No. 09-09-0036R/NPDES," a flood control project.
(Exhibit 1 enclosed)
Surprisingly, county officials issued grading and stockpiling permits to
the landowner, even though Special Permit No. 1047 had already expired and
even though the flood control improvements are not incidental to the coffee
visitor center (which had been abandoned) or to any principal agricultural
activity on the land. As is stated above, a flood control project is not listed in
the Legislature's outline of permitted uses in Section 205(d), HRS) to be a
"stand alone" permitted use, 1 is not the subject of any "compatibility"
determination by the State Land Use Commission 2 and is not "defined" by the
Hawaii County Council as an "accessory" use in the county Zoning Code. ;!
1 In its outline of permitted uses in Section 205-2(d), HRS, the Legislature did not
describe a flood control project to be a permitted use in the Agriculture District. Nor did
the Legislature state, in Section 205-2(d), HRS, that a flood control project is a "bona
fide agricultural service0 and used that support[s] the agricultural activities of the fee or
leasehold owner of the property and accessory to any of the above activities ..., inclu-
ding farm dwellings ..., farm buildings, mills, storage facilities, processing facilities ....
vehicle and equipment storage areas ... ."
2 In HAIR 15-15-25, the State Land Use Commission states that the uses set forth
in Sections 205-2, 205-4.5 and 205-5, HRS are "compatible with" the Legislature's
outline of permitted uses in Section 205-2(d), HRS. While this language is curious, it is
clear that the State Land Use Commission did not determine under this rule that a flood
control project is "compatible with" the Legislature's outline of permitted uses in Section
205-2(d), HRS.
3 The Hawaii County Council "defined" an accessory use as something that is
"customarily associated with and subordinate to the main use or principal use." Section
25-1-5, Zoning Code. The Hawaii County Council has not "defined" a flood control
project to be an "accessory" use in the Agriculture District.
41 P ;3 a' ,"m,
MICHAEL J. MATSUKAWA
ATTORNEY AT LAW
C.
SPP 16-000188
As is stated above, in 2015, county officials issued grading and stock-
piling permits to the landowner for the flood control project that is incidental to
expired Special Permit 1047 and to the abandoned coffee visitor center. (Exhi-
bit 1 enclosed). The landowner then started work. After nearby property
owners and others lodged numerous complaints against the landowner's work,
the Planning Director issued a "warning letter" to the landowner. This caused
the landowner to apply for a new Special Permit in SPP 16-000188.
In its application, the landowner did not describe the flood control
project as the work that required a Special Permit (Exhibit 2 enclosed). The
landowner only described the augmented activities (not the flood control
project) as the work that requires a Special Permit -- "A baseyard/staging yard
for equipment, storage of materials, stockpiling and crushing of natural
materials for commercial use." Planning officials accepted the application
without comment.
The Planning Director's Letter
After the Petitioner filed its request for standing and after the Leeward
Planning Commission held its first and only public hearing in SPP 16-000188,
the Planning Director (who is just a party in the proceeding and who is not the
final decision maker in SPP 16-000188) wrote a letter dated September 21,
2016 (Exhibit 3 enclosed) to the landowner, who is another party in the
proceeding, advising the landowner (1) that the landowner did not need a
Special Permit for the flood control project and (2) that the landowner did not
need a Special Permit for the augmented activities as well.
In support of his letter, the Planning Director stated that the augmented
activities are "related to the on-site and off-site drainage improvement," i.e.,
related and incidental to the flood control project, and do not constitute
"commercial" activity. The Planning Director also stated that the flood control
project itself is not "prohibited by ... the State Land Use Law." Further, the
Planning Director stated that the so-called baseyard was related and incidental
to the flood control project. Thus, the Planning Director opined that the
landowner could undertake both the flood control project and the augmented
activities under the grading and stockpiling permits, and without a Special
Permit.
The Planning Director closed his letter, stating "We are confident that
these determinations are defensible based on all of the facts provided and
confirmed by our department." With that, the Planning Director stated that the
landowner's application for a Special Permit "will be withdrawn." However, the
51 Page
MICHAEL J. MATSUKAWA
ATTORNEY AT LAW
Leeward Planning Commission did not approve the Planning Director's letter or
his unilateral "termination" of SPP 16-000188.
Flood Control Project Augmented Activities
(rock crushing for commercial purposes, etc.)
Grading Permit I
issued under Special Application Filed in SPP 16-000188
Permit No. 1047 1
(expired) Petitioner Filed Request for Standing
I 1
I First Public Hearing
I
I Proceeding Suspended
I 1
Planning D'or Letter to Landowner
Planning Dor states (September 21, 2016)
flood control project I
is a permitted use Planning D'or"Terminates" Case
(no Special Permit 1
required) 1
I I
No Commission No Commission
Action Action
Appeal Granted
In the Petitioner's subsequent appeal, the Hawaii Supreme Court
remanded the case to the commission. In the interim, the landowner
continued to engage in various activities on the land.
D.
Grading Permit Revoked
On June 3, 2022, the Department of Public Works revoked the grading
permit under which the landowner was conducting grading activity on the land
for both the flood control project and the augmented activities. (Exhibit 4
enclosed) The revocation, in tandem with the Hawaii Supreme Court's
decision, brings all of the issues that had been raised in SPP 16-00188 back
into focus. As is stated, the Hawaii Supreme Court also "turned the clock back
to 2016" when the commission had held its first and only public hearing in SPP
16-000188.
E.
What is Before the Commission Today
Pursuant to the Hawaii Supreme Court's decision, the Leeward Planning
Commission must first address the Petitioner's pending request for standing.
As to any subsequent matters, the Hawaii Supreme Court left that for the
commission to determine under the law and its rules of practice.
61 Page
MICHAEL J. MATSUKAWA
ATTORNEY-AT LAW
• Should the commission grant the Petitioner's request for standing?
Yes. The Hawaii Supreme Court ruled that the Petitioner
meets all of the requirements to be granted standing as a party in
this proceeding.
• What is the work for which the landowner requested a Special
Permit in SPP 16-000188?
Activities to be conducted at the project site concurrently
with and as an augmentation to the flood control project. The
Petitioner contends that all of the activities, as well as the flood
control project, require a Special Permit.
• What is the effect of the Planning Director's letter of September 21
2016?
The Planning Director's letter is an advisory opinion that has
no legal force or effect. The Leeward Planning Commission, which
is the final decision maker in SPP 16-000188, took no action on
the Planning Director's letter or on the landowner's request to
withdraw its application, which request is based on the Planning
Director's letter.
The commission should note that the Hawaii Supreme Court
rejected the Planning Director's argument that the issue is "moot"
and that the Planning Director's letter is a "final decision" that the
Petitioner (a non-party) and others should have been appealed to
the county board of appeals as "aggrieved persons" if they did not
agree with the Planning Director's statements in his letter. 4
• Should the Leeward Planning Commission approve the PlanninIz
Director's conclusions in his letter of September 21 2016 that the
flood control project and the augmented activities are permitted
uses in the Agriculture District and do not require a Special
Permit?
4 In the appeal to the Hawaii Supreme Court, the Planning Director argued that his
letter constitutes 'official action," a final decision that the Petitioner(a non-party then)
and others should have appealed to the county board of appeals. The state supreme
court resected that argument. See also Kellberg v. Yuen, 131 Haw. 513, 528 (2014)
(only "final decisions of the planning director ... regarding matters within [his] ...
jurisdiction" can be appealed to the board of appeals).
7 ;+, •,
MICHAEL J. MATSUKAWA
ATTORNEY AT LAW
No. The Hawaii Supreme Court did not rule on this question
and let the commission decide the question. The commission has
not yet taken evidence in SPP 16-000188. If the commission takes
no action on this matter (again), the landowner, the public and
others will be left with the belief that the flood control project and
augmented activities are permitted uses in the Agriculture District
and can be conducted in the Agriculture District without a Special
Permit as the Planning Director stated in his letter (which would be
viewed as being some kind of administrative precedent).
• If the applicant wishes to withdraw its application in SPP 16-
000188, should the Leeward Planning Commission grant that
request and dismiss SPP 16-000188?
Since the landowner's grading permit has been revoked, s
the landowner has no legal entitlement to engage in activities on
the land (flood control and augmented work) for now. If the
landowner wishes to withdraw its application in SPP-16-000188
and to dismiss SPP 16-000188, the commission can set a separate
hearing on the landowner's withdrawal request and ask the parties
to provide briefs and argument. Until the commission acts to
dismiss SPP 16-000188, the landowner remains a party in this
proceeding. If it chooses not to participate further, that is the
landowner's choice to make.
If the commission acts to dismiss SPP 16-000188, it should
do so on the express condition that the commission does not
approve the Planning Director's letter or his statements therein.
• What other concerns arise in SPP 16-000188 that deserve the
Leeward Planning Commission's consideration?
The revocation of the landowner's grading permit has
unmasked a subterfuge that has been going on for many years
with the apparent support of county officials. The question to the
Leeward Planning Commission is whether it will take any action
that will restore the public's trust and confidence in municipal
government in Hawaii County? If yes, what does the commission
propose to do, now and in the future, to redeem and to protect the
public interest?
5 The revocation is not permanent, but is conditional. (Exhibit 4 enclosed) The
landowner may reactivate the grading permit by complying with the terms set forth in the
revocation letter, which makes no reference to the landowner having to also obtain a
Special Permit for the flood control project.
MICHAEL J. MATSUKAWA
ATTORNEY AT LAW
In Cootey v. Sun Investment, Inc., 68 Haw. 480 (1986), the
Hawaii Supreme Court held that municipal permitting officials are
immune against harm caused by their negligent issuance of land
use permits. The court held that such permitting officials do not
owe a duty of care to the landowner-permitee's neighbors or to the
public except as may be otherwise provided by a statute or
ordinance. (Exhibit 5 enclosed) One should not assume, however,
that the court intended to give municipal permitting officials a
license, or complete immunity, to freely issue permits subject only
to appeals that neighbors and citizens might be willing to pursue,
using their own resources, to protect their interests and the public
interest.
The Petitioner asks the Leeward Planning Commission to grant its
request for standing, to affirmatively reject the Planning Director's letter of
September 21, 2106, and to take such steps that are necessary to redeem and
protect the public interest now and in the future. Thank you very much.
Yours ,
Michael . Matsukawa
ENC
91P
EXHIBIT "1"
County ofHawai'i ORIGINAL
Ji
�tE'.f ' r:, _ DEPARTMENT OF PUBLIC WORKS-ENGINEERING DIVISION
,�,,{ zr t,.�
IV�I ?- ' 9 2 5 2 4 l o�
tAB1 Gf PEI T NO. Fee: $ 1 °
Check only-payable
County Director of Fin
Owner: ' ,q r11 'J'II,/V Ij a z-TDA) Address:_?p �3 q-,t 'T 9� Phone: -)37.?Ztst
KAIGr.,A /L*^ng J . .967yS
Civil Eng./Surveyor:na/vqw.�, Ara064;,; Address: 3• y11:01 9&tl/40q DR Phone:
Aq$-79'1.-9
License No.: 15U-F?- C- IS-Az -WA Ido; i !, 96 9qb
Contractor: 3 dTG r j j N G Address: Pb SSz Phone: F0$•1 Z�
License No.: igC- PEA;L611A �20i �v 5
Location: A L,4 t j-4 P /1141elr 0y Tax Map Key:(3) r j••�_y�; D,3/ ori c Cut(Cy): j/65
e fdo
Parcel Area (acre): 3 4 Area to be Graded (acre): 6, Dis[1-7
osal Site:G�c ���/M:
Start Date: /f I IV Completion Date: t Fill(CY):
(minimum 2 working days after issuance date) Borrow Site:
Remarks: G-7r-adi,-ice moi- /:40.1-7 Gof7cec 19 7'0a tfA=p rz-► k=ako74 !'(aud GfZal1l-7ej
GI-01--f Cfl.sk-;r- /,/o. 0 9 - 09- o0 Iz10 ,oS( s
Ow/-;r r shz/1 /��Z-��y �•vi l-l2vc�zi i Co v✓, - 60 5 cc,c, f- • Z•7 !6-C-F)C3�'
SvGGGSSo/- sfa �2 G+-t � C'crcli -� [c�n CT S��I� q1 -0fS,
933-7653(Hawai'i Island) 40 Pookela Street, Hilo, HI 96720
1. STATE DLNR-HISTORIC PRESERVATION DIVISION Approved: 0 7 S 7
LOQ n!o •" Zo/o
Received By: Date: Z Date:
c5 CyG L6-7 R�i9e y� /o
2. PLANNING DEPARTMENT Approved:
f
Received By: Date: / j� I v� Date:
/ r
I
3. DEPARTMENT OF PUBLI WORKS A rove for P rmit Issuance:.
Received By:� Llr Date: I � i� Date:
Z2 /
I hereby certify that all work as requested above will conform to Chapter 10 of the Hawaii County Code.
Owner: le� Date: o,
F i to the Department of Public Works, Engineering Division, upon completion of work.
Certification
Accepted by: Date:
inoIni _ t
Rev 06/17/11
-- County of Hawai'i C' .,GINAL
DEPARTMENT OF PUBLIC WORKS–ENGINEERING D Q�. � •/•' '
��iPrt �Oi�Z�i 1
STOCKPILING PERMIT NO. 092525 Fe : $
Check only–payab
County Director of F
Owner.Daniel B. Bolton Address: Po Box 898 Phone: 808-329-8:
Kailua Kona, HI. 96745
Civil Eng./Surveyor: Ronald Arbogast Address:73-4174 Hulikoa Dr. Phone: 808-329-8,'e
License No.: 15587-c Kailua Kona, HI. 96740
Contractor.Bolton Inc. Address: Po Box 898 Phone: 808-329-82,
License No.: ABC-14458 Kailua Kona, HI. 96745 Ac A500Location: Hualalai Rd. Mauka of Queen K. Tax Map Key: (3) 7-5-017:031 Quantity(Cy):
l Reference Grading Permit No.: c) 9aZ $p�
Start Date: i // �/� Completion Date: It? /
(minimum 2 w6rking days after issuance date)
Remarks: �7�o�/�P� �� i� C.--D An / ys-7 c-- 7<<0 "D w l /161 A-6 f-72 Co�r2�
01 7Z-
a ,v1��GGra/ PeY .3 a2/c e✓ /��t+�s
933-7653 (Hawai'i Island) 40 Pookela Street, Hilo, HI 96720 LCJ 90-2W(0•I fOC2
1. STATE DLNR–HISTORIC PRESERVATION DIVISION Approved:
Received By: Date: AJ—Oe v [,6 I
Date:
2. PLANNING DEPARTMENT Ap,#rov ,
ilz'llc p—
Received Byz�'r� ('.L. Date: 'I /6 Date:_ '' -
3. DEPARTMENT QF PUBLIC WORKS /A ro ed:'
Received By' A� Date:
�i t 1
— Date:
I hereby certify that all ork quested above will conform to Chapter 10 of the Hawaii County Code.
Owner: Date: L
Return to the Department of Public Works, Engineering Division, upon completion of work.
C ation
A ad by: Date:
(DPW inspector/engineer) b
i.
Rev 06/17/11
County of Hawai'i
0�
DEPARTMENT OF PUBLIC WORKS—ENGINEERING DIVISION
pec ipt gp,. +ZZ'K1
STOCKPILING PERMIT NO. 092529
Fee: $
Check only—payaE
County Director of F
Owner.Daniel &Janet Bolton Address: Po Box 898 Phone. 808-329-8
Kailua Kona, HI. 96745
Civil Eng./Surveyor:Ronald Arbogast Address:73-4174 Hulikoa Dr. Phone: 808-329-8;
License No.: 15587-c Kailua Kona, HI. 96740
Contractor:Bolton Inc. Address:Po Box 898 Phone: 808-329-82
License No.: ABC-14458 Kailua Kona, HI. 96745 ,
Location:Hualalai Rd. Mauka of Queen K. Tax Map Key: (3) 7-5-017:044 Quantity (CYN/1(Y--Z I
Reference Grading P rmit No.:�'�rj
Iz� l� 112 I��
Start Date: Completion Date:_T_
(minimum 2 working days after issuance date)
Remarks: /i-r
J
IV-074e : 5,gjc=� le-17ec/-' �,s �b �-' L5 76 /e. %/771 7' 9/6/9t. 9e)) .5zi7-7
�G274/Gra. !al/Gc3� `!t.9L- tw-7-S 'ZG
933-7653(Hawai'i Mand) 40 Pookela Street, Hilo, HI 96720
1. STATE DLNR—HISTORIC PRESERVATION DIVISION Approved: LCB
Received By. Date: PO& Na• 6 000 MMOL_ Date: 6 LZ O
2. PLANNING DEPART ENT Approved:
Received By. Date: / Date:
3. DEPARTMENT F PUBLIC WORK 11 1A Ap ro ed:
Received B : L.IVVVI Date: t Zl�llt Date: L� Grp
y o Chapter 10 of the Hawaii County Code.
hereby ce /' that I w rk as a nested above will conform t t t� •�,�
y q ,
Owner:
Date: �' 7
Return to the Department of Public Works, Engineering Division, upon completion of work.
ration
ted by: Date:
(DPW inspector/engineer)
EXHIBIT 112"
i.AP0`1IG,G Dr--P ARl", ANT
i t i r i`if f)r lit.
tr
SPECIAL PERMIT APPLICATION
COUNTY OF HAWAII "n'j `•' — Pik 2- 3 2
PLANNING DEPARTMENT
(Type or Print the requested information)
APPLICANT 13 0 1 O n Sn
APPLICANTS SIGNATURE: ^, !/. ,DATE: ! "b
ADDRESS: _73- Y17y 11J) koo. Drive.
140.E u,C., orna NT 9(07y0
LIST APPLICANT'S INTEREST IF NOT OWNER: Con Tr Gk 4e)r
TELEPHONE: (Bus.) 0$-329-11V(Home) (Fax) 909-32 6-II rit'7 7 r 1 1
REQUEST: � °�7a4 i i3oa
► . r� :90.r L4";AMe rO rot. 2 t)T Me�TP1i a I
41 bukv+1 1,t4! erwell;raA aT mo Ar0A mokeli035 � mulSe
r ( mu-c`OL� . Seew
%TAX MAP KEY: - 017= 0 W Li ZONING: A$ - t q
AREA OF PROPER'T'Y/AREA OF REQUESTED USE 2 3g C.0 / 9 .9+3
LANDOWNER: Do i B wa
LANDOWNER'S SIGNATURE: DATE: 1 16
nn AA (May be by letter)
LANDOWNER'S ADDRESS: t'o to oX gacl
E0.lvs_- V-oN0.TN7- 1,6714 -05
AGENT:
ADDRESS: 79 - 69 q� me n- J OJT oc, 14wt
Roo u-r-.I.o c-,- 1i--�: N 7 25
TELEPHONE: (Bus.) 20$-345-21-73 ome) wh,- (Fax) rJlx
Please indicate to whom original correspondence and copies should be sent to:
ORIGINAL CVir 1_ T u At. Lda ^Q COPIES:6 0�' b� _ +n]G
Planning Deft-
EXHIBIT 113"
William P.Kenoi �r`•'`-
�p:'•• . � Duane Kanuha
Mayor Director
Joaquin Gamiao-Kunkel
'�. Deputy Director
•,E Of`M'�
West Hawaii Office East Hawaii Office
74-5044 Ane Keohokalole Hwy �• • • Pauahi S
Kaitna-Ktcm Iftwei 96740 0Qilil 101#y Qi Hawid�i. Hilo,Hmai iS 67200
Phone(808)323-4770 Phone(808)961-8288
Fax(808)327-3563 PLANNING DEPARTMENT Fax(808)961-8742
September 21,2016
Ms. Christy A. Logan,PMP
Bolton Inc.
P. O Box 898
Kailua Kona,HI 96745
Dear Ms.Logan:
Assessment of Conditions Relating to Warning Letter dated February 19,2016
(File No.2015-035149 and Disposition of Special Permit Application No. 16-000188
Applicant: Bolton,Inc.
TAW 7-5-017:044,Kahului let&211,North Kona,Hawai'i
This is in regard to our letter dated August 23, 2016,wherein we requested Bolton Inc. to cease and
desist all work on site until a site inspection was conducted That letter was the culmination of a
series of letters and confirmations requested of Bolton Inc.in an effort to determine whether or not a
violation of the Zoning Code or State Land Use Law had occurred and if so, whether or not the
Special Permit application filed by Bolton Inc. would continue to move forward.
After further consultation and field verification with and between DPW Engineering staff and our
Zoning Inspector,we conclude that work being conducted on the property under the parameters of
Grading Permit No. 092524 and stockpiling permits Nos. 092525 and 092529, and associated permits
secured thereto(DOH temporary covered source permit and community noise permit)do not fall
within the purview of Zoning Code requirements for a Special Permit under Section 25-5-72(c)(5),
HCC. 'p,
Section 25-5-72(c)requires that the following uses may be permitted in the(County)Agricultural
zoning district,provided that a Special Permit is obtained for such use if the building site is located
within the State Land Use Agricultural district. The only use category that could be reasonably
applicable under this section is "(5) excavation or removal of natural building material or minerals,
for commercial use." Generally speaking, we equate this definition to a quarry, where the purpose of
the excavation and removal of natural building material is solely for commercial purposes.
However, in this case, the evidence finds that the removal of natural building material from the
subject property is related to on-site ate to drainage improvement purposes with no further
evidence it is being conducted for cc�7ercial urposes as a quan y would. We can therefore
conclude that the material removal, as"yon-specifically represented,is therefore defined by Chapter
www.u,hnlanqi d t.k:,nn Xmvai"Cormty is an Equal Opportunlly Provider and Employer p anninp @hawaiiwuntr.rov
Ms. Christy A. Logan,PMP
Bolton Inc.
Page 2
September 21,2016
10,HCC,Erosion and Sedimentation Control.All aspects of the drainage way improvement project
thereafter are controlled under the requirements and conditions of the approved wadins or applicable
land alteration permit(s). From a use standpoint,the approved drainage way improvements and
related activities alone do not define or establish a class of use upon these Agricultural lands that is
prohibited by the Zoning Code or the State Land Use Law.
With regard to the base yard component of the pending Special Permit application, your letter of
August 3,2016 provided, as requested, a list of all equipment on site and a breakdown of what
equipment was directly related to the drainage way improvement project and what equipment was
not. A review of the listing confirms that almost all of the equipment on site is necessary to
implement the approved grading plan. Our investigation has also determined that Bolton Inc. has an
established base yard elsewhere and as such,we conclude that the equipment on site is directly
related to implementing the approved grading permit and because a base yard is not being
established, a Special Permit application will not be required. Therefore,your Special Permit
application will be withdrawn from further processing and the filing fee will be refunded under
separate cover.
We thank you for all your cooperation in this matter and we are confident that these determinations
are defensible based on all of the facts provided and confirmed by our department.
Please feel free to contact me our offices if there are any further questions.
Sincerely,
D4 KANUHA
1� g Director
L .
DK:dsa:mad
P.\wpwin60\DSA\2016\Ltr3BolWnInc09l616REV.doc
cc William V.Brilhante,Assistant Corporation Counsel
DPW Engineering(Kona)
Planning Division(ATTN: Daryn Arai and Jeff Darrow)
West Hawaii Division(ATTN: Bennett Mark and Horace Yanagi)
Councilmember Dru Kauuha
�
ouneilmember Karen Eoff
tervenor Jeff Citron
Michael Matsukawa,Esq.
EXHIBIT 114"
v,:•(,�, Vii,
Mitchell D.Roth +' • Steven Ikaika Rodenhurst,P.E.
Mayor Director
N%
Lee E.Lord Stephen M.Pause,P.E.
Managing Director / gull ry Of P401141afunt"i
Deputy Director
DEPA�/R�/ ,,TMENzT OF UBLIC WORKS
Aupuni Center
101 Pauahi Street,Suite 7•Hilo,Hawai'i 96720-4224
(808)961-8321 •Fax(808)961-8630
public—works@hawaiicounty.gov
June 3, 2022
CERTIFIED MAIL
Daniel B. Bolton
Janet T. Bolton
75-476 Hualalai Road
PO Box 898
Kailua-Kona, Hawaii 96740
RE: REVOCATION of Grading Permit No. PW.ENG2021-00094 (extension of Permit No.
092524)for TMK(3) 7-5-017:044 and TMK(3) 7-5-017:031
Dear Mr. and Mrs. Bolton:
The County of Hawaii, Department of Public Works (DPW), inspected the premises located at
75-476 Hualalai Road, Kailua-Kona, Hawaii (Tax Map Key's 7-5-017:031 and 7-5-017:044) on
March 15, 2022. On the basis of this inspection as well as additional information discussed
herein, DPW, pursuant to the authority granted in HCC Chapter 10-15 hereby revokes the
above-referenced Grading permit. This revocation shall be effective immediately.
BACKGROUND
By letter dated December 21, 2009, the Federal Emergency Management Administration
(FEMA) issued a Conditional Letter of Map Revision (CLOMR)for Case No. 09-09-0036R for
the Kona Coffee and Tea Company Flood Channel Project. The project consists of
channelization and grading along Waiaha Drainageway from upstream of Hawaii Belt Road to
approximately 170 feet downstream of Hualalai Road.
Grading Permit No. 092524 was issued by DPW—Engineering Division for TMK 7-5-017:031
and 044 on January 6, 2016, to allow the applicant, Kona Coffee &Tea Company, to perform
work under the FEMA CLOMR, Case No. 09-09-0036R. The permit provided for the grading of
6.03 acres including the cut of up to 116,400 cubic yards of material which was to be disposed
of on site. The permit stated that it was for"grading for Kona Coffee &Tea Company Flood
County or Hawaii is an Equal Opportunity Provider and Employer.
Daniel B. Bolton
Janet T. Bolton
June 3, 2022
Page 2
Channel CLOMR Case No. 09-09-0036R/NPDES File HI R10 D565; owner shall comply with
Hawaii County Code Sect. 27-16(f)(3)(13) or successor statue and condition 9 of SPP 99-015.
This permit was last renewed on October 15, 2021with an October 17, 2022 expiration date.
Stockpiling Permit No. 092525 was issued by DPW—Engineering Division for TMK 7-5-017:031
on January 22, 2016. This permit allowed for the stockpiling of up to 8,000 cubic yards of
material. The permit stated that it was for"stockpiling in conjunction with Kona Coffee and Tea
Co. Flood Channel Project." The permit was not renewed.
Stockpiling Permit No. 092715 was issued by DPW—Engineering Division for TMK 7-5-017:044
on June 2, 2017. This permit allowed for the stockpiling of up to 14,800 cubic yards of material
referencing "Grading Permit No. 092524." This permit was last renewed on June 2, 2021with a
June 3, 2022 expiration date.
Stockpiling Permit No. 092749 was issued by DPW—Engineering Division for TMK 7-5-017:031
on September 8, 2017. This permit allowed for the stockpiling of up to 14,000 cubic yards of
material. The permit stated that"grading for the flood channel will generate substantial volumes
of excavated material that will be stored on site while the material is broken down for beneficial
use in the construction of floodway." This permit was last renewed on December 13, 2021with a
December 14, 2022 expiration date.
A letter prepared on behalf of Bolton Inc. to the County of Hawaii Planning Department, from
Kona Wai Engineering, LLC, dated July 26, 2017, and signed by Stephen J. Hebert, P.E., stated
that"the estimated time to complete the floodway work (i.e., the Kona Coffee and Tea Company
Flood Channel Project) is eighteen months." No other information regarding project completion
or a requested time extension has been received by DPW.
FINDINGS
The Grading Permit was issued on the basis that the applicant was completing a "Flood
Channel Project" per the CLOMR granted by FEMA for Case No. 09-09-0036R. More than six
years have passed since the initial issuance of Grading Permit No. 092524. Numerous
inspections of the site have been performed and results have been shared with the
Permittee/Site Owner. In addition, DPW has been provided with reports and documentation
from concerned parties indicating impacts to surface waters that have occurred due to soil
erosion and sediment runoff from the site during extreme rainfall events. The Permittee has
been advised by inspectors and in writing to do more to mitigate the contribution of the site to
surface water impact. A letter issued by DPW on May 31, 2017, in fact directed the Permittee
"to give high priority to quality control and minimizing disturbed areas."
The Permittee last submitted a schedule indicating the project would be completed within
18 months of their July 26, 2017, letter. Based on site observations on March 15, 2022, the
current project completion date is unclear, and it appears that the Permittee/Owner has no
timetable to complete the work scope for the CLOMR. It should be noted that for every day the
work remains incomplete, and the bare ground is exposed and not re-vegetated, and
insufficient stormwater retention and/or detention is provided, and proper erosion control
County of Hawaii is an Equal Opportuniry Provider and Employer.
Daniel B. Bolton
Janet T. Bolton
June 3, 2022
Page 3
structures are either not in place or are not being maintained, this means that the likelihood of
impacts to surface water by siltation from exposed land increases.
Pursuant to HCC Chapter 10-15 (a):
"The Director of Public Works may, in writing, suspend or revoke a permit issued under the
provisions of this chapter whenever.-
(9) The permit has been issued on the basis of incorrect or insufficient information
supplied by the permittee;
(2) The grading, grubbing, or stockpiling is not being performed in accordance with the
terms and provisions of the permit;or
(3) The grading, grubbing, or stockpiling discloses objectionable or unsafe conditions."
The work that has been undertaken by the Permittee/Site Owner does not meet the minimum
performance requirements for the issued Grading permit. Insufficient steps have been taken to
address impacts to stormwater from exposed soil during significant rainfall events. Anecdotal
evidence provided to DPW strongly indicates that construction activities have contributed to
impacts to Waiaka Stream during large rainfall events, resulting in deposits of large quantities of
silt and sediment finding their way to the ocean. Further, the permittee has failed to complete
the work in a timely fashion and has misled DPW by providing an inaccurate schedule for work
completion.
CORRECTIVE ACTIONS
Pursuant to HCC Chapter 10-15 (b):
"When a permit has been suspended or revoked, the permittee may submit detailed plans andy
proposals for compliance with the provisions of this chapter and for correcting the objectionable
or unsafe conditions. Upon approval of such plans and proposals by the director of public works,
the director may authorize the permittee in writing, to proceed with the work."
This letter serves as notice that Grading Permit No. 092524 is being revoked effective the date
of this letter. In order to restart any grading or grubbing activities on site, the Owner is required
to complete the following:
1. Submit a new, comprehensive Grading permit application that includes, at a minimum,
an updated survey clearly showing the limits and current topography for the Flood
Channel Project; clearly delineate all disturbed and undisturbed vegetated/non-
vegetated areas; show locations of gravel crushing and stockpiling; show locations of all
installed permanent stormwater management facilities and structures (e-g., pipes,
berms, dams, etc.); show locations and details of all temporary erosion and silt barriers;
and, show locations and volumes of all crushed stone that has been reused on site.
2. Submit a copy of the NPDES stormwater permit along with monitoring reports submitted
to the Department of Health.
Countv of Hawaii is an Fnnal n............:s..o.....:a.___...-m.
Daniel B. Bolton
Janet T. Bolton
June 3, 2022
Page 4
3. Submit documentation to certify that all grading, grubbing, and stockpiling permits and
operations conform to the erosion and sedimentation control standards and guidelines
established by the department of public works in conformity with Chapter 180C, HRS
(1983 CC, c 10, art 3, sec 10-26).
4. Provide a detailed schedule, in Gannt chart form, that clearly identifies tasks completed
to date, tasks remaining, durations for each task, critical project milestones, and a
calendar indicating the timescale with a clear end date for completion.
You are reminded that all efforts to manage soil erosion and sedimentation/site runoff must be
continued while the re-application process is being carried out. Failure to do so is a violation of
HCC Chapter 10-26.
Should you have any questions concerning this matter, please contact DPW at 808-961-8321 or
Steve Pause at steve.Pause(a)-hawaiicounty.aov
Very-truly yours,
Ste n Ikaika Rodenhurst, P.E.
Director
Department of Public Works
CC. (via email)
S. Pause, Deputy Director, DPW
R. Matsumoto, Engineering, DPW
R. Villegas, Council Member
C. Alnas, Council Aid to Ms. Villegas
J. Darrow, Deputy Director, Planning
H. Yanagi, Planning Inspector
S. Salas-Ferguson, Deputy Corporation Counsel (DPW)
J. Campbell, Deputy Corporation Counsel (Planning)
County of Hawaii is an Equal Opportunity Provider and Employer.
EXHIBIT 5
Cootey v.Sun Inv., Inc.,68 Haw.480(1986)
718 R2d 1086
employees in same manner and to same extent as
68 Haw.480 private individual under like circumstances.HRS
Supreme Court of Hawai'i. §662-2.
Patrick F. COOTEY and Yvonne 1 Cases that cite this headnote
M.Cootey,Respondents-Appellants,
V. [21 Municipal Corporations '- Nature and
SUN INVESTMENT.INC.,Respondent-Appellee, grounds of liability
and State Tort Liability Act did not create any cause
COUNTY OF HAWAII.a municipal corporation, of action where none existed before; effect of
Petitioner-Appellee,Third-Party Plaintiff-Appellee, Act is to waive immunity from traditionally
V. recognized common-law causes of action in tort,
JHK TANAKA,INC.,Respondent- other than those expressly excluded.HRS§662
Third-Party Defendant-Appellee.
1 et seq.
No. 9168.
1 Cases that cite this headnote
I
May 15, 1986. 131 Counties Nature and grounds of liability
Synopsis
Without reasonable and proper limitation of Homeowners whose house and lot were flooded five times scope of duty of care owed by county,county ,would be confronted with unmanageable,
in less than two years brought action for damages against unbearable,and totally unpredictable liability.
developer, engineering firm,and county which granted final
approval of subdivision. The Third Circuit Court, Hawaii 2 Cases that cite this headnote
County, Ernest Kubota, J., sustained motions of developer
and county for directed verdict, and homeowners appealed.
The Intermediate Court of Appeals,690 P.2d 1324,reversed l41 Negligence ;; Necessity and Existence of
Duty
and remanded, and county petitioned for certiorari. The
Supreme Court, Wakatsuki, J., held that county owed no "Duty" is not sacrosanct in itself, but only an
duty to homeowners to ensure that development of adjoining expression of sum total of those considerations
subdivision, approved by the county, would not create any of policy which lead the law to say that the
risk of flooding of homeowners'property. particular plaintiff is entitled to protection.
Reversed in part.
7 Cases that cite this headnote
Procedural Posture(s): On Appeal;Motion for Judgment as 151 Counties Nature and grounds of liability
a Matter of Law(JMOL)/Directed Verdict. In determining whether county owed duty to
parties who suffered injury, task is to balance
West Headnotes(14) policy considerations supporting recovery by
injured party against those favoring limitation of
county's liability.
[ll Municipal Corporations = Application of
principle of agency to municipalities 3 Cases that cite this headnote
States Acts or Omissions of Officers,
Agents,or Employees 161 Municipal Corporations Nature and
Basic principle of governmental tort liability grounds of liability
is that state and its political subdivisions shall
be held accountable for torts of governmental
WIESTLAW
Cootey v.Sun Inv.,Inc.,68 Haw.480(1986)
718 R2d 1086
Government is not intended to be an insurer owner or developer to assess compliance with
of all dangers of modern life, despite its ever- the law; they are not required to conduct their
increasing effort to protect its citizens from peril. own engineering studies to ensure validity and
correctness of developer's plan.
2 Cases that cite this headnote
1 Cases that cite this headnote
[7] Municipal Corporations -:= Nature and
grounds of liability [11] Water Law Persons liable
In deciding whether government has duty of care County owed no duty to homeowners, whose
to third party, court must determine how far house and lot was flooded, to ensure that
it is desirable and socially expedient to permit development of adjoining subdivision,approved
loss distributing function of tort law to apply to by the county, would not create any risk of
governmental agencies, without thereby unduly flooding of their property.
interfering with effective functioning of such
agencies for their socially approved ends. 3 Cases that cite this headnote
1 Cases that cite this headnote
[12] States Torts
In determining whether there was a duty
[8] Municipal Corporations =. Nature and owed by the government to the plaintiff who
grounds of liability suffered injury, the task is to balance the
Whether there is duty of care owed by policy considerations supporting recovery by the
government tort-feasor to injured party should injured party against those favoring a limitation
be determined by analysis of legislative intent of of the government's liability.
applicable statute or ordinance.
4 Cases that cite this headnote
1 Cases that cite this headnote
[13] States --- Torts
[9] Zoning and Planning s-M Maps,plats,and Without a reasonable and proper limitation
plans; subdivision regulations of the scope of duty of care owed by
To protect health, welfare, and safety the government, the government would be
of public at large, developers of private confronted with an unmanageable, unbearable,
subdivisions are required to include certain and totally unpredictable liability.
improvements and meet certain standards
pertaining to subdivisions; permit process
by which county approves or disapproves [14] States �-=-, Statutory provisions; waiver of
development of proposed subdivision reflects immunity
effort by government to require developer to The State Tort Liability Act did not create any
meet his responsibilities under subdivision rules, cause of action where none existed before. The
regulations,and laws,but primary responsibility effect of the Act is to waive immunity from
of providing adequate and safe development traditionally recognized common law causes
rests with developer and not county. of action in tort, other than those expressly
1 Cases that cite this headnote excluded. It was not intended to visit the
sovereign with novel liabilities.
[10] Zoning and Planning ;1 Grounds for Grant 1 Cases that cite this headnote
or Denial; Conformity to Regulations
Task of governmental employees is to review
subdivision development plans submitted by
WESTLAW
Cootey v.Sun Inv.,Inc.,68 Haw.480(1986)
718 R2d 1086
**1087 *481 Syllabus by the Court 10. To protect the health, welfare, and safety of the public
at large, developers of private subdivisions are required to
*480 1.The basic principle of governmental tort liability in include certain improvements and meet certain standards
Hawaii now is that the state and its political subdivisions shall pertaining to subdivisions. The permit process by which
be held accountable for the torts of governmental **1088 the county approves or disapproves the development of the
employees in the same manner and to the same extent as a proposed subdivision reflects an effort by government to
private individual under like circumstances. require the developer to meet his responsibilities under the
subdivision rules, regulations, and laws, but the primary
2. The State Tort Liability Act did not create any cause of responsibility of providing an adequate and safe development
action where none existed before.The effect of the Act is to rests with the developer and not the county.
waive immunity from traditionally recognized common law
causes of action in tort,other than those expressly excluded.It 11. The tasks of government employees is to review the
was not intended to visit the sovereign with novel liabilities. subdivision development plans submitted by the owner or
developer to assess compliance with the law. They are not
3. Fundamental in any determination of liability for required to conduct their own engineering studies to ensure
negligence is the existence of duty owed by the putative the validity and correctness of the developer's plans.
tortfeasor to the injured person.
12. County owed no duty to plaintiffs, whose house and lot
4.Without a reasonable and proper limitation of the scope of was flooded, to ensure that the development of an adjoining
duty of care owed by the government,the government would subdivision,approved by the county,would not *482 create
be confronted with an unmanageable,unbearable,and totally any risk of flooding of plaintiffs'property.
unpredictable liability.
5."Duty"is not sacrosanct in itself,but only an expression of Attorneys and Law Firms
the sum total of those considerations of policy which lead the Steven S.C. Lim, Deputy Corp. Counsel, Honolulu, for
law to say that the particular plaintiff is entitled to protection. petitioner-appellee,third-party plaintiff-appellee.
6. In determining whether there was a duty owed by the *488 Greg K. Nakamura, Rosdil & Nakamura, Hilo, for
government to the plaintiff who suffered injury, the task is respondents-appellants.
to balance the policy considerations supporting recovery by
the injured party against those favoring a limitation of the Before LUM, C.J., and NAKAMURA, PADGETT,
government's liability. HAYASHI and WAKATSUKI,JJ.
7. Government is not intended to be an insurer of all the Opinion
dangers of modern life, despite its ever-increasing effort to WAKATSUKI,Justice.
protect its citizens from peril.
This case comes before this court on petition for certiorari by
8. In deciding whether a duty exists or not, the court must the County of Hawaii from the Intermediate Court of Appeals
determine how far it is desirable and socially expedient to (ICA).
permit the loss distributing function of tort law to apply to
governmental agencies, without thereby unduly interfering The Appellants, Patrick and Yvonne Cootey, suffered
with the effective functioning of such agencies for their own damages when their house and lot were flooded five times
socially approved ends. between December 1978 and March 1980. The Cooteys
believed that these floodings occurred as a result of the
9. Whether there is a duty of care owed by the government development of Unit I of the Puukapu Acres subdivision,
tortfeasor to the injured party should be determined by an mauka of **1089 their property. They brought suit for
analysis of legislative intent of the applicable statute or damages against Sun Investment,Inc.,the developer of Unit
ordinance. I, JHK Tanaka, Inc. (Tanaka), the engineering firm which
ES7LA
Cootey v.Sun Inv.,Inc.,68 Haw.480(1986)
718 P.2d 1086
designed and prepared the plans for the subdivision,and the Cootey's property,"and therefore,the"County was required
County of Hawaii (County)which granted final approval of to ensure that the subdivision and its facilities did not create
the subdivision. an unreasonable risk of foreseeable harm to the Cooteys."
Under the facts of this case,we disagree that the County had
The Cooteys alleged:that Sun Investment owed them a duty a special relationship with the developer such as would create
to design and improve Puukapu Acres in compliance with the a duty of care to the Cooteys. We further hold that under the
applicable County of Hawaii and State of Hawaii laws,rules facts of this case,the ICA's imposition upon the County of its
and regulations; that Sun Investment breached that duty by duty of care owed to the Cooteys, is too expansive in light
negligently designing,constructing and maintaining the water of public policy considerations versus liability and remedial
drainage system; that Sun Investment owed a duty to them considerations.We,therefore,affirm the trial court's judgment
not to interfere with the natural flow of surface water over in favor of the County.
Unit I but breached that duty by negligently interfering with
the natural flow of the surface water;that Tanaka owed them
a duty to design and prepare the plans for the subdivision
I.
of Unit I in compliance with the laws, rules, regulations
and directives of the County of Hawaii and of the State "The basic ... [principle] of governmental tort liability in
of Hawaii; that Tanaka breached that duty by negligently Hawaii[now]is that the State and its political subdivisions
designing and preparing plans for the water drainage system shall be held accountable for the torts of governmental
of Unit I; that the County of Hawaii owed them a duty employees '... in the same manner and to the same extent
to administer and enforce the applicable laws, rules and as a private individual under like circumstances...' HRS §
regulations and directives of the County and the State of 662-2."Salavea a Cir) and Counti; 55 Haw.216,220,517
Hawaii; that the County breached that duty by negligently P.2d 51,54(1973).
granting final approval of Unit I; that the County assumed First Insurance Co. of Hawaii v International Harvester
control of management of the water drainage system of Unit Co., 66 Haw. 185, 189,659 P.2d 64,67(1983).
1 and therefore owed a duty to them to improve, repair and **1090 [21 This principle, however, does not result in
maintain the water drainage system for the protection of the governmental liability for all negligent acts of government
Cooteys. The Cooteys prayed for damages to property and employees.
for emotional distress from each of the defendants.
The trial court directed verdicts in favor of all defendants The State Tort Liability Act ... did
and denied the Cooteys' motion for directed verdict at the not create any cause of action where
conclusion of the trial. Upon appeal, the ICA reversed and none existed before. The effect of
remanded the case for jury determination. the Act is to waive immunity from
traditionally recognized common law
*483 The ICA agreed with the trial court that none of the causes of action in tort, *484 other
defendants breached any statutory duty owed to the Cooteys, than those expressly excluded. It was
but held that all defendants owed the Cooteys a common not intended to visit the sovereign with
law duty to have a drainage facility within Unit I which novel liabilities. (Citations omitted.)
would not create an unreasonable risk of foreseeable harm to
a neighboring landowner.Based on the evidence in the record,
the ICA concluded that whether such duty was breached and
whether that breach was the direct and proximate cause of the Figueroa v State, 61 Haw. 369, 384, 604 P.2d 1198, 1207
Cooteys'injuries are for the jury to determine. (1979). See also, Wilson v. Nepstad, 282 N.W.2d 664,
676 (Iowa 1979) (McCormick, J., concurring specially)
[11 The holding of the ICA as applied to the County is based ("[T]he liability of the municipality for the torts of its
on the principle that the County had a"special relationship" officers, employees, and agents during the course of their
with Sun Investment, the developer, in that the County employment...presupposes the commission of an actionable
was required to prevent Sun Investment "from developing tort.It does not expand conduct which is deemed tortious.");
Puukapu Acres in such a manner as to cause damage to Coffey v City of Milwaukee,74 Wis.2d 526,541,247 N.W.2d
132, 140 (1976) ("[N]egligence plus an unbroken sequence
WESTLAW
Cootey v.Sun Inv., Inc.,68 Haw.480(1986)
718 R2d 1086
of events establishing cause-in-fact does not necessarily lead possible base, Van Alstyne, Governmental Tort Liability: A
to a determination that the defendant is liable for plaintiffs Public Policy Prospectus, 10 UCLA L.Rev.463,469 (1963)
injuries."), (hereinafter Van Alstyne).
[3] Fundamental in any determination of liability for [7[ In deciding whether a duty exists or not, we must
negligence is the existence of duty owed by the putative "determine how far it is desirable and socially expedient to
tortfeasor to the injured person. First Insurance Co. of permit the loss distributing function of tort law to apply to
Hawaii a International Harvester Co., 66 Haw. at 189, 659 governmental agencies, without thereby unduly interfering
P.2d at 67. Without a reasonable and proper limitation of the with the effective functioning of such agencies for their own
scope of duty of care owed by the County,the County would socially approved ends." Van Alstyne, 10 UCLA L.Rev. at
be confronted with an unmanageable,unbearable,and totally 469. Government entities are mandated by law to perform
unpredictable liability. See Kelley i. Kokua Sales & Supply, a variety of activities which have no counterpart in the
Ltd., 56 Haw.204,209,532 P.2d 673,676(1975). voluntary activities of private persons. Van Alstyne, 10 UCLA
L.Rev. at 468. Our system of separate but equal branches
of government demands restraint on the part of the courts
II from **1091 reordering priorities and forcing reallocation
of resources upon the other branches which make policy
The question of whether a special relationship exists is decisions in this regard. Comment, A Unified Approach
another way of asking whether a duty of care exists to a third to State and Municipal Tort Liability, in Washington, 59
party. Seibel a City and County of Honolulu, 61 Haw. 253, Wash.L.Rev.533(1984).
602 P.2d 532(1979).
14[ "[I]t should be recognized that `duty' is not sacrosanct
III.
in itself, but only an expression of the sum total of those
considerations of policy which lead the law to say that [8[ Whether there is a duty of care owed by the government
the particular plaintiff is entitled to protection." Waugh v tortfeasor to the injured party should be determined by an
University of Hawaii, 63 Haw. 117, 135, 621 P.2d 957, 970 analysis of legislative intent of the applicable statute or
(1980)(quoting Kelley i�Kokita Sales&Supply,Ltd.,56 Haw. ordinance.
at 207,532 P.2d at 675).
[9[ Here, the acts undertaken by the County were done
[5[ In detennining whether there was a duty owed by pursuant to the subdivision ordinance. In order to protect
the County to the Cooteys who suffered injury, our task the health, welfare, and safety of the public at large,
is to balance the policy considerations supporting recovery developers of private subdivisions are required to include
by the injured party against those favoring a limitation certain improvements and meet certain standards pertaining
of the County's liability. First Insurance Co. of Hawaii v to subdivisions. The permit process by which the County
International Harvester Co., 66 Haw.at 189,659 P.2d at 67— approves or disapproves the development of a proposed
68; Ajirogi v State, 59 Haw. 515, 527, 583 P.2d 980, 988 subdivision reflects an effort by government to require the
(1978);Kelley a Kokita Sales&Stipply,Ltd.,56 Haw.at 207, developer to meet his responsibilities under the subdivision
532 P.2d at 675. rules, regulations, and laws. We hold that the primary
responsibility of providing an adequate and safe development
*485 [6[ "Government is not intended to bean insurer of all rests with Sun Investment, the developer, and not with
the dangers of modern life,despite its ever-increasing effort the County. See, *486 Wilson v Nepstad, 282 N.W.2d at
to protect its citizens from peril." Lorshbough v Township 674 (McCormick, J., concurring specially); Adanis v State
of Bu=zle, 258 N.W2d 96, 102 (Minn.1977). Despite our of Alaska, 555 P.2d 235, 247 (Alaska 1976) (Connor, J.,
expanding expectations of government action, Ajiroji v dissenting).
State, 59 Haw. at 522, n. 3, 583 P.2d at 985, we do not
hold that government is liable for all injuries sustained by 1101 The task of the government employees is to review the
private persons as a result of governmental activity, even development plans submitted by the owner or developer to
though doing so would spread the losses over the largest assess compliance with the law. While we do not condone
STLA
Cootey v.Sun Inv., Inc.,68 Haw.480(1986)
718 P.2d 1086
negligence in the performance of this task, neither do we
believe that the government employees are required to **1092 As to drainage calculations,the public works chief
conduct their own engineering studies to ensure the validity testified that his staff reviews the developer's calculations
and correctness of the developer's plans. To require the to ensure that they conform to various codes and specified
County to do so would place the County as an insurer of the standards.Tr.of October 28, 1982 at 162-164.
adequacy of Sun Investment's plans,designs and installation
of subdivision facilities. Here, the construction drawings of the subdivision included
drainage plans identifying the drainage culvert and ditch
Generally the budget and personnel allocations of a county which were implemented in the actual development of the
government indicate that a county government's planning subdivision. There is no evidence that the county agency
department's function is not intended to conduct in-depth failed to review the submitted plans and the accompanying
engineering studies of its own to guarantee the adequacy calculations.
of a developer's subdivision plans prior to the granting of
an approval. If we hold that the County is liable for failure 1111 In view of the public purpose of the subdivision
to discover an error in Sun Investment's subdivision plans ordinance and the resources allocated by the County
that could only have been discovered by an independent to the agencies having the responsibility of reviewing
engineering study,this court will,in effect,be impermissibly and approving subdivision applications, we hold that the
reallocating the County's resources, reordering its priorities, Procedures used by the County in granting the approval for
and setting policies that more rightly belongs to the legislative the subdivision of Unit I were reasonable.We further hold that
body of the County. See O'Connor v City of New York, 58 there was no breach of any duty of care by the County in the
N.Y.2d 184, 191,460 N.Y.S.2d 485,488,447 N.E.2d 33, 36 application process utilized by the agencies in approving the
(1983); Comment, supra, 59 Wash.L.Rev. at 545. Further, subdivision and that the County was not required to do more
the exposure to such liability would unduly lengthen the to protect the Cooteys against damages from flood waters
permit process,or could very well dissuade the County from running over and through Unit I.
enacting rules, regulations and laws applicable to proposed
Although the record indicates that a large part of the trial was
subdivisions and intended for the protection and welfare of
the public,a result contrary to the public interest.See Dinsk),it devoted to testimony on the issue of whether the subdivision
Town ofFraminghan:,386 Mass.801,810,438 N.E.2d 51,56 of Unit I was responsible for the flooding of the Cooteys'
(1982);Stigler a Citv of Chicago,48111.2d 20,25,268 N.E.2d home, the Cooteys failed to adduce any evidence that the
26,29(1971);Adams it State gfAlaska, 555 P.2d at 247.248 County knew or should have known, based on facts, that
(Connor,J.,dissenting); Van Alstyne, 10 UCLA L.Rev.at 469. the Cooteys'home was subject to flood damages occasioned
by the development of Unit I. The trial court was correct in
directing a verdict in the County's favor.
TV
In this case, the county planning director and the chief of V.
public works for the county outlined the process by which
subdivision application is granted or denied. See generally, The part of the ICA opinion entitled "County's Duty Under
Tr.of October 28, 1982,testimony of Edward Harada;Tr.of `Special Relationship' with Developers," 6 Haw.App. 268,
October 29, 1982, testimony of Sidney Fuke. In reviewing '- .trial:"""•>690 P.2d 1324, 1330-1332(1984), is reversed and the
the initial applications for subdivision *487 approval, the court's decision granting directed verdict in favor of the
Co
various county agencies consider,inter alfa, the effect of the County is affirmed.
proposed subdivision on drainage. If there is any suspicion
that there might be drainage problems, further information,
sometimes in the form of drainage maps and calculations,may All Citations
be required. What specific information would be required
varies from case to case. 68 Haw.480,718 P.2d 1086
End of Docu!narsti ,�� !�; �r.'�� is r�
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