07-08-2022 Letter from Petitioner's Attorney

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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,