HomeMy WebLinkAbout2025-08-26 PL-BOA-2025-000124 COMPLETE RECORD ON APPEAL (M. KELLBERG VS. PLANNING DIRECTOR) JEFFREY W. DARROW
PLANNING DIRECTOR
COUNTY OF HAWAI`I
101 Pauahi Street, Suite 3
Hilo, Hawai`i 96720
Telephone No. (808) 961-8288
IN THE BOARD OF APPEALS
COUNTY OF HAWAI`I
STATE OF HAWAI`I
MARK KELLBERG )
PL-BOA-2025-000124
Appellant, )
Appeal of the Planning Director Denial of
Petition for Declaratory Ruling Docket No.
25-0001 Dated July 18, 2025, in Response to
Mark Kellberg's Petition for Declaratory Ruling
(PL-INT-2025-010598) Dated May 23, 2025
vs. )
JEFFREY W. DARROW )
PLANNING DIRECTOR )
COUNTY OF HAWAI`I )
Appellee. )
INDEX TO RECORD ON APPEAL
1
INDEX TO RECORD ON APPEAL
Appeal of Planning Director Denial of Petition for Declaratory Ruling Docket No. 25-0001
Dated July 18,2025,in Response to Mark Kellberg's Petition for Declaratory Ruling (PL-
INT-2025-010598).
Document
Number Date Description Pages
1 5/23/2025 Petition for Declaratory Ruling, and 1-26
Payment / Check 986815 for $100.00 for
Mark Kellberg from Mark M. Murakami
(Damon Key Leong Kupchak Hastert
Attorneys for Mark Kellberg)
2 7/18/2025 PD Denial of Petition for Declaratory 27-34
Ruling for Docket No. 25-0001
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DAMON KEY LEONG KUPCHAK HASTERT MERRILL LYNCH 86815
ATTORNEYS AT LAW BANK OF AMERICA
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1003 BISHOP STREET, SUITE 1600 87-176/843
HONOLULU,HAWAII 96813 CHECK NO. CHECK DATE VENDOR NO.
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184110 5/23/2025 100.00 100.00
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Attorneys at Law
Damon Key Leong Kupchak Hastert
1003 Bishop Street,Suite 1600
Honolulu,HI 96813
Telephone:(808)531-8031
Facsimile:(808)533-2242
hawaiiiawyer.com Internet:www.hawaiilawyer.com
DAMON KEY LEONG KUPCHAK HASTERT A LAW CORPORATION
Letter of Transmittal
Return Receipt No. 9589 0710 5270 0625 1412 77
To: Jeffrey Darrow, Planning Director Date: May 23, 2025
County of Hawaii, Planning Department
101 Pauahi Street, Suite 3
Hilo, Hawaii 96720 G 0 H PLANIMYN a DEPT
M9-Y 20 2025 F;42;53-
From: Tobie Laimana
Legal Assistant to Mark M. Murakami, Esq.
Re: In the Matter of Mark Kellberg PEC'0 -;-y MAIL
Copies Date Description
1 5/23/25 Petition for Declaratory Ruling; Exhibits "A"-"C"
DK Check 86815 in the amount of $100.00 payable to the County
1 Original 5/23/25 Director of Finance re the filing fee for Petition for Declaratory Ruling;
Exhibits °A" — "C"
Is (Are) transmitted herewith:
( ) For your information and files ( ) For your approval ( ) Approved as noted
( ) For signature in BLACK INK ( ) For review and comment ( ) Disapproved
( ) For signature in BLACK INK ( ) For correction ( ) Per our agreement
BEFORE A NOTARY PUBLIC ( ) For distribution ( ) Per our conversation
( ) Return to us as indicated below ( ) For filing and return ( ) Per your request
( ) Forward as indicated below ( ) For payment ( ) Returned to you
( XX) For necessary action ( ) See remarks below
Remarks:
Please find the enclosed Petition for Declaratory Ruling; Exhibits "A"-"C" and filing fee for
processing. Should you have any questions, please contact Tobie Laimana at 808-531-8031
Method of Delivery:
( X ) Certified Mail
( ) Hand deliver
915642 ( ) Other:
3
Of Counsel:
DAMON KEY LEONG KUPCHAK HASTERT
Attorneys at Law
A Law Corporation
MARK M. MURAKAMI 7342-0
CLINT K. HAMADA 11484-0
1003 Bishop Street, Suite 1600
Honolulu,Hawaii 96813
www.hawaiilgMer.com
Telephone: (808) 531-8031
Facsimile: (808) 533-2242
Attorneys for Petitioner
MARK KELLBERG
COUNTY OF HAWAII
PLANNING DEPARTMENT
In the Matter of ) DOCKET NO.
MARK KELLBERG ) PETITION FOR DECLARATORY
RULING; EXHIBITS "A"—"C"
PETITION FOR DECLARATORY RULING
TO THE COUNTY OF HAWAII PLANNING DEPARTMENT("Department"):
MARK KELLBERG ("Petitioner") owns agriculturally zoned property in Ninole. His
property is TMK No.: (3) 3-2-002-034. His property abuts a parcel of land that was the subject of
SUB-05-00064. Since the Planning Department's consideration of SUB-05-00064,Petitioner and
County have been in litigation over the validity of SUB 05-00064. Recently, and ultimately, the
Intermediate Court of Appeals ruled that the matter was moot. Under Hawaii law,mootness means
that the courts do not have jurisdiction to hear a claim, therefore the dismissal of Petitioner's
lawsuit is not precedential nor binding on the parties. As such, there remain questions about the
subdivision code applicability to the neighboring parcel of land, specifically Hawaii County Code
§23-7, as well as the several other zoning, subdivision, and other code sections implicated by
SUB05-00064.
915009
4
This petition is filed pursuant to Department's Rules of Practice and Procedure § 3-1, et
seq., and Hawaii Revised Statutes ("HRS") 91-8.
I. PETITIONER'S NAME,ADDRESS,AND TELEPHONE NUMBER
Name: Mark Kellberg
Address: c/o Damon Key Leong Kupchak Hastert(MMM)
1003 Bishop Street, Suite 1600
Honolulu,Hawaii 96813
Telephone Numbers: Damon Key Leong Kupchak Hastert: (808) 531-8031
II. STATEMENT OF PETITIONER'S INTEREST
Petitioner is the landowner of the property abutting the lands referenced in SUB 05-00064,
TMK No.: (3) 3-2-002-034. The neighboring lands ("Pruglo Lots"), as of February 19, 2025, are
owned, as follows:
Tax Map Number Owner Address
TMK 3-2-002-068 or 1101 Glenn Takemoto P.O. Box 107
Ninole, HI 96773
TMK 3-2-002-111 Alla Pruglo 7515 Mariposa Ave.
Citrus Heights, CA 95610
TMK 3-2-002-112 Christie Guastella&John 11232 River Highlands Dr.
Payne Saint Amant, LA 70774
TMK 3-2-002-113 Frances Santa Maria Trust 1911 Kalanianole Ave.,Unit 205
Hilo, HI, 96720
TMK 3-2-002-114 Mary and Daniel Lock 913 Hog Back Rd.
Haiku,HI, 96708
TMK 3-2-002-115 Mathew Jackson and Debra 17835 Beard Ln.
Bruno Huntin on Beach, CA 92647
TMK 3-2-002-035 Nikoly Pruglo2 7515 Mariposa Ave.
Citrus Heights, CA 95610
1 In 2010, SUB 05-00064 lot-110 was consolidated with TMK 3-2-002-068.
2 There is a roadway lot,TMK No. 3-2-002-116 owned by Home Tech Construction, 7515
Mariposa Ave, Citrus Heights, CA 95610.
2
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III. STATEMENT OF FACTS
SUB 05-00064 concerned a 48.47 acre parcel and a non-contiguous .699 acre parcel
identified prior to SUB 05-00064 as TMK 3-2-002-035. The property is located in the agricultural
district and has A-20a zoning.
On June 2, 2004, the Planning Director issued a determination of pre-existing lots on the
48.47 acre parcel and stated that there were only two legal lots of 26.37 and 22.7 acres each. He
said, "Old plantation houses [sic] locations do not create legal lots of record." Exhibit "A". The
property was sold.
On April 7, 2005, a Consolidation and Resubdivision Application, SUB 05-00064, was
submitted to the Planning Department.3 Changing positions from the June 2, 2004 preexisting lot
determination,on June 1,2005,the Planning Director granted tentative approval of the preliminary
plat map.4 On July 1, 2005, a final plat map was submitted dividing the larger, 48.7 acre, parcel
into six new lots with the detached, .6 acre parcel representing a seventh legal lot of record,in and
of itself
On July 11, 2005,the Planning Director issued final subdivision approval of
SUB 05-00064. The approval noted that"all requirements of the Subdivision Code, Chapter, 23,
as modified have been met."Petitioner received no notice of the subdivision application nor of its
approval until accidentally revealed by a realtor, thirty-one days after SUB 05-00064's erroneous
approval.
3 The documents use SUB 05-000064, SUB 05-00064, and Sub. 05-0064. They are the
same permit.
4 Apparently,the Director was convinced of the eligibility of the parcels for preexisting lot
status based on a Planning Director letter in 2000. This letter was missing from County files until
mysteriously rediscovered after the SUB 05-00064 applicant purchased the property. See Mol lino
v. Yuen, 134 Haw. 181, 339 P.3d 679 (Haw. 2014).
3
6
In his response to Petitioner's multiple inquiries, on October 23, 2006, the Planning
Director sent a letter to Petitioner, see Exhibit `B", where he said that the Planning Department
purportedly recognized five lots on the 48.47 acre parcel on May 22, 2000, but only recognized
two lots there on June 2, 2004. The Planning Director called the June 2, 2004 letter "a mistake,
because the Department should have respected the previous determination."
Moving to the subdivided parcels,the Planning Director further explained that"there was
a mistake in the approval of that subdivision [SUB 05-00064]" because of the failure to account
for the noncontiguous lot:
As Mr. Kellberg correctly points out, there was a mistake in the approval of that
subdivision. One of the six recognized lots was a 0.699 acre portion of Grant 11,070. For
some reason, it was not contiguous with the remainder of TMK No. 3-2-2-35. In the
consolidation/resubdivision, the Planning Department did not notice that this
noncontiguous portion had[not]been included in the lot count. Thus,it remained separate,
and is now TMK No. 3-2-2-110. Thus, with the six lots in Sub. 05-00064 and parcel 110,
there are now seven lots instead of six.
Exhibit"B".
The Planning Director continued:
I am not going to do anything to undo this situation at this time. Sub.05-00064 has received
final subdivision approval and at least some of the lots have been sold. Given that parcel
110 is physically separated from the remainder of Sub. 05-00064, and from any property
owned by the subdivider, I cannot see a way to erase its separate existence.
Exhibit`B".
On February 6, 2007,Petitioner asked the Planning Director to apply Hawaii County Code
23-74(c)to SUB 05-00064 to correct the mistake. The Planning Director did not respond.
Later, in a litigation interrogatory response,the Planning Director stated that
SUB 05-00064 did not satisfy the requirements and standards of the Subdivision Control Code.
Exhibit"C".
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7
Petitioner further asked what additional requirements or standards would have been
required had SUB 05-00064 not been a consolidation and resubdivision.The Director stated,"[t]he
additional requirements would have been determined in the subdivision process and cannot be
definitively stated because this subdivision did not go through the full normal process under
Section 23-7. Generally,it would have required a county water system and an agricultural standard
road,unless variances were obtained." Exhibit"C".
SUB 05-00064 divided the 48.47 parcel into six lots while retaining the non-contiguous
.699 acre portion of TMK 3-2-002-035 as an independent lot of record, in and of itself.
The current tax map shows:
-71 per;
OW
35.�
Its
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7
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Lots 111, 112, 113, 114, 115, and 35 all exist within the 48.47 acre parcel. This is more
lots than existed before SUB 05-00064.
5
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On May 11, 2007, Petitioner filed suit against the County of Hawaii challenging
SUB 05-00064. On July 29,2024,the Intermediate Court of Appeals issued a judgment on appeal
which terminated the litigation between Petitioner County, and the neighboring owners. As to
g tY, g g
Petitioner's claims against the County,the Intermediate Court of Appeals found Petitioner's claims
moot.
There has been no court ruling or decision as to whether HCC § 23-7 applies to exempt
these lots from the zoning and subdivision codes going forward. There is also no court ruling,
ordinance, or agency decision that outlines what the development, construction, and other code
requirements or conditions apply to the contested lots.
IV. DESIGNATION OF THE SPECIFIC PROVISION, RULE, OR ORDER IN
QUESTION TOGETHER WITH A STATEMENT OF THE CONTROVERSY
INVOLVED
A. Specific Provision, Rule, or Order in Question
1. Section 23-7. Applicability to consolidation or resubdivision action. The
requirements and standards of this chapter shall not apply to consolidation and
resubdivision action resulting in the creation of the same or fewer number of lots
than that which existed prior to the consolidation/resubdivision action; provided
that the director, upon conferring with the director of public works and manager-
chief engineer of the department of water supply, may require necessary
improvements to further the public welfare and safety.
2. Section 23-30. Drainage easements. Where a subdivision is traversed by a
natural water course, drainage way, channel, or stream, there shall be provided a
drainage easement or drainage right-of-way conforming substantially with the lines
of such water course,and of such further width as will be adequate for the purpose.
Streets or parkways parallel to water courses may be required.
3. Section 23-62 (c). The director shall disapprove a preliminary plat or a
subdivision map where the subdivider has failed to comply with the provisions of
chapter 25, zoning code.
4. Section 23-74(c): The approval for recordation of the final plat by the
director shall not relieve the subdivider of the responsibility for any error in the
dimensions or other discrepancies. Such errors or discrepancies shall be revised or
corrected, upon request,to the satisfaction of the director.
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5. Section 23-84. Water supply. A subdivision to be laid out after December
21, 1966 shall be provided with water as follows:
(1) A water system meeting the minimum requirements of the County
department of water supply; and
(2)Water mains and fire hydrants installed to and within the subdivision in
accordance with the rules and regulations of the department of water supply,
adopted in conformity with article VIII of the Charter. (1983 CC, c 23, art
6, sec 23-84.)
6. Section 23-85. Sewage disposal systems. (b) In subdivisions where sewer
connections cannot be made to an existing sewer system under the requirements of
this chapter,the subdivider shall meet the minimum requirements of the State health
department relating to sewage disposal. (1983 CC, c 23, art 6, sec 23-85.)
7. Section 23-95. Right-of-way improvement. The subdivider shall be
required to improve the entire street right-of-way.The improvements shall conform
to the standard specifications on file with the department of public works.
8. Section 25-2-2. Issuance of permits or licenses in conformance with
chapter. All departments, officials, and public employees authorized to issue
permits or licenses shall conform to the provisions of this chapter and no permit or
license for any use, building, or other purpose shall be issued where the license or
permit would be in conflict with the provisions of this chapter. Any permit or
license, if issued in conflict with the provisions of this chapter, shall be void.
9. Section 25-2-11. Waiver of requirements in consolidation and
resubdivision. If the director finds that the public welfare and safety will not be
violated, the director may waive portions or all of the requirements and standards
of this chapter for consolidation and resubdivision action resulting in the creation
of the same or less number of lots than that which existed prior to the consolidation
or resubdivision action; provided, that prior to the granting of any waiver, the
director shall confer with the director of public works and the manager-chief
engineer of the department of water supply and other applicable government
agencies.
10. Section 25-2-30.Violations.Any approval or permit issued pursuant to the
provisions of this chapter shall comply with all applicable requirements of this
chapter. Failure to comply with any provision of this chapter, any rule adopted
pursuant to this chapter,or with conditions imposed as part of any approval,permit,
or variance from the provisions of this chapter, shall constitute a violation of this
chapter.
11. Section 25-2-31. Criminal prosecution. (a) Any person whether as
principal, agent, employee, or otherwise, violating or causing or permitting the
violation of any of the provisions of this chapter, shall be guilty of a violation.
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12. Section 25-4-2. Conditions for construction of buildings designed for
human occupancy. (a) On any building site,no building designed or intended for
human occupancy shall be constructed and no permit therefor shall be issued
unless:
(1) The building site is served by a County water system or a privately
owned and operated water system, or other private, individual means of
providing water to the building site is demonstrated; and
(2) A wastewater treatment system for the proposed building has been
approved by the State department of health.
b On an building site in an subdivision approved b the director under
( ) Y g Y pp Y
chapter 23 of this code,no building designed or intended for human occupancy
shall be constructed and no permit be issued therefor until either:
(1) The streets, drainage improvements, water supply system, if any, and
sewage disposal system, if any, have been constructed, inspected and
approved by the appropriate County agencies; or
(2) Final subdivision approval has been secured by the subdivider in
accordance with chapter 23, by posting a surety bond or other security
guaranteeing the construction of all of the subdivision improvements as
shown on approved construction drawings and specifications,provided that
final occupancy of any dwelling unit shall not be granted until the
subdivision improvements for the particular increment in which such
dwelling unit is situated have been constructed, inspected and approved by
the appropriate County agencies.
13. Section 25-5-71. Designation of A districts. Each A (agricultural) district
shall be designated on the zoning map by the symbol "A" followed by a number
together with the lower case letter "a" which indicates the required or minimum
number of acres for each building site. For example, A-l0a means an agricultural
district with a minimum building site area of ten acres.
14. Section 25-5-74. Minimum building site area. The minimum building
site area in the A district shall be five acres.
16. Section 25-2-1. Duties of county officers.
(a)The building official shall enforce any provisions of this chapter relative
to building construction and occupancy.
(b) The director shall enforce all other provisions of this chapter pertaining
to land use.
(c) All law enforcement officers of the County shall enforce all the
provisions of this chapter.
17. Section 23-76.No conveyance of land prior to approval for recordation.
Land shall not be offered for sale, lease or rent in any subdivision,nor shall options
or agreements for the purchase, sale, leasing or rental of the land be made until
approval for recordation of the final plat is granted by the director.
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B. Statement of the Controversy Involved
In light of the factual record including the missing and magically appearing May 2000
preexisting lot determination, the acknowledged mistaken approval of SUB 05-00064, the
existence of more lots than existed before the SUB 05-00064, the developer's and owners'
obligations to conform their property to the zoning and subdivision codes and the County's
continuing obligation to enforce those codes, the Planning Director should issue a declaratory
ruling that determines the applicability of the Zoning and Subdivision Codes on TMK Nos. 3-2-
002-110, 111, 112, 113, 114, 115 and 035.5 The factual record of this subdivision is clear,but the
legal status of these lots is unclear and the Director is empowered to provide his opinion by way
of a declaratory ruling. Specifically, the following code sections and their app
licability Tyto the
Pruglo Lots require clarity that only the Director can provide.
1. Section 23-7. It is unclear to what extent this provision applies to the other
sections of the code governing zoning and subdivisions. It is also unclear to what
necessary improvements are required for the Pruglo Lots. Is a mistakenly approved
subdivision eligible for§23-7 status and if so,does County have enforcement power
to enforce other provisions of the zoning, subdivision and related construction
codes?
2. Section 23-30. Since a seasonal stream bisect the
e Property, it is unclear
what drainage easements apply to the Pruglo Lots and unclear whether streets or
parkways parallel to water courses are required. Does County have the power to
require designation of drainage easements and street and parkways?
3. Section 23-62 (c). It is unclear whether the Zoning Code, Chapter 25,
applies to the Pruglo Lots and how it applies to development on the Pruglo Lots.
Given that three of the SUB 05-00064 lots mistakenly approved by the Planning
Department are smaller than the code mandated 5 acres, what is the minimum lot
size for the Pruglo Lots? What is their legal status?
4. Section 23-74(c): It is unclear whether this section requires the Pruglo Lots
developer to correct or fix any discrepancies in SUB05-00064.
5 The tax map shows a Lot 110, but the County property tax database does not show Lot
110,but does show Lot 068.
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II
5. Section 23-76.No conveyance of land prior to approval for recordation.
Given Director Yuen's concession that SUB 05-00064 was approved by mistake
relative to the resulting subdivision creating more lots than were alleged to have
preexisted, thereby failing to qualify for the purported 23-7 or 25-2-11 exemption
from the provisions of the Subdivision and Zoning Codes, what steps, if any, does
the Director intend to take to prevent the further conveyance of SUB 05-00064 lots?
6. Section 23-84. It is unclear whether this section applies to the Pruglo Lots
and whether a water system, including water mains and fire hydrants, are required
to be built.
7. Section 23-85. It is unclear whether this section requires development of a
sewer system or what minimum requirements are required for sewage disposal on
the Pruglo Lots.
8. Section 23-95. It is unclear whether thePruglo
rug o Lots developer is required
to improve the street rights of way and whether the roadway improvements conform
to the standard specifications on file with the department of public works.
Furthermore, in a letter dated June 1, 2005, from Director Yuen to planning
consultant Sidney Fuke, the Director stated that Access to the subdivision from
the Mamalahoa Highway is via an existing access easement (P-30-A) on private
properties. Confirm rights of access over and across this easement."The subdivider
provided evidence that others have the right to pass through the subdivider's
property, but in seventeen years of litigation, was unable to provide any
documentation of possessing P-30-A easement through
ou petitioner Kellber s
p g g p g
How does property. thi 1 k s lack of recorded access easement impact development
permit approvals?
9. Section 25-2-1. Duties of countyofficers. Given the mandatory "
shall
enforce all other provisions of this chapter pertaining to land use", what steps, if
any, does the Director intend to initiate to bring SUB 05-00064, and/or, the lots
created thereby, into compliance with Chapters 23 and 25 of the HCC?
10. Section 25-2-2. It is unclear whether the Pruglo Lots are eligible for other
development permits or licenses in light of the nonconformance of the Pruglo Lots
with Chapter 25.
11. Section 25-2-11. The Director conferred with the director of public works
and the manager-chief engineer of the department of water supply under the
misapprehension that SUB 05-00064 was the consolidation of six lots,resubdivided
into six lots. Absent the proper context, it is unclear whether those agencies have
power to impose conditions on future development permits and licenses for the
Pruglo Lots.
12. Section 25-2-30. Violations. Since the Pruglo Lots do not comply with
Chapter 25, it is unclear whether such failure to comply is a current violation of
Chapter 25.
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13. Section 25-2-31 (a). Given that this section of the zoning code stipulates
that " Any person whether as principal, agent, employee, or otherwise", found to
be "violating or causing or permitting the violation of any of the provisions of this
chapter",shall be guilty of a violation...",which of the aforementioned individuals
1)are guilty of a violation and 2)if guilty of a violation,what does the County plan
to do about it going forward? Additionally,given the statutory obligations set forth
in HRS §205-12 that require the Planning Director to enforce"the use classification
districts adopted by the land use commission"and to "report to the commission all
violations", does SUB 05-00064, as currently configured, satisfy the "restrictions
on use and the conditions relating to agricultural districts"? If the answer is `no',
has the Director reported the violation(s)to the commission?
14. Section 25-4-2.It is unclear whether the Pruglo lots are eligible for building
permits without a County water system or other private, individual means of
providing water to the building sites. It is similarly unclear whether the Pruglo Lot
owners may construct a building designed or intended for human occupancy or
receive a building permit when the streets, drainage improvements, water supply
system, if any, and sewage disposal system, if any, have yet to be constructed,
inspected and approved by the appropriate County agencies. It is also unclear
whether the Pruglo Lots developer has obtained or needs to obtain a surety bond to
guarantee the construction of improvements which may be required.
15. Section 25-5-71. It is unclear what the minimum lot size is for the Pruglo
Lots in light of its zoning.
16. Section 25-5-74. It is unclear what the minimum building site area for the
Pruglo Lots is.
V. STATEMENT OF PETITIONER'S POSITION OR OPINION
The approval of SUB 05-00064 violated the Subdivision and Zoning Codes and is invalid.
Petitioner's attempt to obtain court rulings to clarify these issues was found to be moot. As such,
there is no court decision that establishes the validity of SUB 05-00064. In light of that question,
it is further unclear to what extent Ch. 23 and 25 apply to the properties covered by SUB 05-00064.
It remains unclear how the zoning, subdivision, and other development and construction related
codes should treat these lots.
Petitioner lives next to these properties and is entitled to know what the zoning and
subdivision requirements are and how the Director will address the mistaken approval when it
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receives future permit or license applications. It is Petitioner's position that all development of
the lots created by SUB 05-00064 should be required to fulfill all requirements of Hawaii County
Code Chapters 23 and 25. Petitioner's position is that several regulatory requirements in Chapter
23 and Chapter 25 remain unfulfilled. SUB05-00064 did not,and could not,change the zoning of
the parcels from A-20a. Therefore, all the lots created by SUB05-00064 violate the zoning code.
Based on our review of County's online permit records, it appears that all of the lots
purportedly approved by SUB05-00064 remain undeveloped, so it is an appropriate juncture for
Petitioner to obtain clarity as to what development and construction is allowed. SUB05-00064
and its flawed history raises several ambiguities which should be clarified now to stop the ongoing
nuisance and violation of County Code.
To be sure, all of the harms flowing from the zoning and subdivision code violations
continue to this day. The Pruglo Lots should have numbered TWO and so Petitioner faces
increased density,increased traffic,non-existent drainage easements and roadways. The small lot
sizes virtually guarantee that these lots will not be able to be used for meaningful agriculture but
will be residential in nature. Petitioner owns property that should only have neighboring properties
of twentyor more acres in size. SUB05-00064 now raises the prospect of some n p p umber of houses
close to his property lot line with the potential noise nuisances that are associated with residential
habitation; i.e. barking dogs, roosters, and any and all the other noises typically associated with
residential human activity. Finally, SUB05-000024 did not, and does not, address the issue that
Pruglo did not obtain P-30-a easement rights to access his Property, leaving Petitioner to suffer a
daily trespass by an indeterminate number of pedestrians and vehicles.
12
15
VI. JUSTIFICATION AND LEGAL ARGUMENTS SUPPORTING PETITIONERS'
POSITION
Petitioner has gone around and around with SUB05-00064 with three reviews by the
Hawaii Supreme Court. Resolution of the controversy,unfortunately, could not be had because of
the passage of time which allegedly caused the court system to lose jurisdiction prior to a ruling.
As such, it is unclear what the Director's position is regarding the zoning, subdivision and other
regulatory controls that apply on the lands subject to SUB05-00064.
There are twelve truths here:
1) As a matter of County code, all subdivisions must comply with state law and county
regulations. § 23-23.
2) Subdivisions have minimum lot sizes and must conform to the applicable zoning under
Ch. 25. § 23-33.
3) SUB 05-00064 is located within an agricultural district, zoned A-20a. The minimum
number f e o acres required by designation A-20a is twenty acres per lot. § 25-5-71.
4) SUB 05-00064 divided 48.47 acres into six lots, creating lots less than 20 acres.
5) The requirements of the Subdivision and Zoning Codes do not apply to consolidation
and resubdivision actions that result in the same or fewer number of lots than existed
before the action. § 23-7 and § 25-2-11.
6) The Subject Property consists of a 48.47 parcel and a non-contiguous .699 acre parcel.
7) The May 22, 2000 pre-existing lot determination, honored by the Planning Director,
determined that the 48.47 acre parcel had, at most, five pre-existing lots.
8) The non-contiguous parcel constituted the sixth pre-existing lot.
9) The preliminary and final plat maps submitted by the subdivider and approved by the
Planning Director divided the 48.47 acre parcel into six lots.
13
16
10)In his October 23, 2006 letter to Kellberg,the Planning Director confirmed there were
six total lots on the subject property before the consolidation and resubdivision action,
and due to his department's failure to account for the non-contiguous parcel, seven lots
resulted from the action.
11) Since more lots resulted from the approved action than existed before the action,
SUB 05-00064 was not exempt from the requirements of the Subdivision and Zoning
Codes. § 23-7 and § 25-5-71.
12 ) The ongoing nuisance to Petitioner resulting from the unlawful subdivision of the
Subject Property,manifest in SUB 05-00064, along with the ongoing,wholesale,violation
of both the Subdivision and Zoning Codes continues,unabated, to this day.
None of these facts can be disputed. The prior litigation between Petitioner and County
was dismissed onprocedural ,
grounds, without any determination of the meets of Petitioner's
claims. Therefore, the uncertainty regarding the applicability of all land use and construction
related code sections should be rectified by the Planning Director so that Petitioner and the Pruglo
Lots owners are clear regarding what development is allowed on the Pruglo Lots and what
requirements and conditions may be placed on that development.
A. Mistaken Approval Cannot Exempt Pruglo Lots from Zoning and Subdivision
Codes
The use of"shall" makes § 23-62 mandatory and provides the Planning Director with no
discretion to accept a subdivision application that, as here, fails to comply with the zoning code.
See Leslie v. Bd. of Appeals of Cnty. Of Hawaii, 109 Hawaii 384, 393-94, 126 P.3d 1071, 1080-81
(2006)(use of"shall"in various Subdivision Code provisions made the provisions mandatory and
left the planning director without discretion to accept a subdivision application absent strict
14
17
compliance with such provisions). § 23-62 provides the planning director "shall disapprove a
preliminary plat or a subdivision map where the subdivider has failed to comply with the
provisions of chapter 25, zoning code."HCC § 23-62(c).
Furthermore, all county officials have non-delegable duties to enforce zoning in
agricultural districts.6
Finally, that some of the lots have been sold by the subdivider does not preclude the
Director from issuing the requested clarification of the status of these lots.?
B. Director Should Issue Ruling so Agencies and Owners Can Comply with Code
This petition will allow the Planning Director to provide critical guidance and
interpretation of a clear factual situation that makes for an uncertain legal situation. By Charter
and Code, the Planning Director has the authority to administer the zoning, subdivision, and
several related codes. Several development and construction related permits or licenses are
dependent on a lot's zoning and subdivision code status. As such, declaratory ruling is critical to
set forth the status of the Pruglo Lots which, despite years of litigation, remain uncertain. To be
sure, Petitioner's position is that the Pruglo Lots violate the zoning and subdivision codes and
'See e, g., HRS §205-12 Enforcement. The appropriate officer or agency charged with
the administration of county zoning laws shall enforce within each county the use classification
districts adopted by the land use commission and the restriction on use and the condition relating
to agricultural districts under section 205-4.5 and shall report to the commission all violations.See
also Att. Gen. Op. 70-22 (counties' responsibility for enforcement includes taking necessary
actions against violators; such enforcement covers all land use district classifications and land use
district regulations, except those relating to conservation districts).
7 Without notice of the subdivision application, approval, or preexisting lot determination,
Petitioner is not bound by them. See Unite Here! Local 5 v. Dept of Planning &
Permitting/Zoning Bd. of Appeals,454 P.3d 394,407 (Haw. 2019)(finding a due process violation
when Planning Director removed zoning condition without notice to interested party); Unite Here!
Loc. 5 v. Pacrep LLC, 2025 Haw. LEXIS 57, *41-42, 2025 LX 13525, 2025 WL 573299, slip op.
available here, (equitable remedy can be fashioned to address violation of environmental statute
despite completion of condominium project and sale of units).
15
18
cannot be developed as if they conform to those codes. Since the Pruglo Lots have not been
developed, there is uncertainty whether the lots are eligible for permits or can even be lawfully
conveyed. See § 25-2-2 (approvals in violation of the zoning code are void); § 25-76 (no
conveyance of lots until lawful final approval); § 23-33 (lot size to conform with zoning code); §
23-8 (no building permits to issue until conformance with zoning code); § 25-230 (any permit
issued not in conformance with the zoning code is a violation). Issuing a Declaratory Ruling is
required to ensure conformity of the Pruglo Lots with the zoning and subdivision codes.
Second, issuing the requested declaratory ruling will assist all agencies reviewing permit
and license applications from Pruglo Lots' owners with certainty regarding the zoning and
subdivision code status of the lots. All agencies have a duty to conform permits and licenses to the
requirements of the County Code. § 25-2-2 ("All departments, officials, and public employees
authorized to issue permits or licenses shall conform to the provisions of this
no d an chapter permit
r
or license for any use,building, or other purpose shall be issued where the license or permit would
be in conflict with the provisions of this chapter. Any permit or license, if issued in conflict with
the provisions of this chapter, shall be void."). In areas of land use, the Planning Director has a
broad duty to enforce all provisions of County land use law. § 25-1-2(b) ("The director shall
enforce all other provisions of this chapter pertaining to land use.").See also Korean Buddhist Dae
Won Sa Temple v. Sullivan, 87 Haw. 217, 231-34, 953 P.2d 1315, 1329-33 (1998) (mandatory
language in a zoning code is viewed strictly and violations must be cured).
A declaratory ruling will identify any errors or discrepancies in existing approvals for the
Pruglo Lots and facilitate the correction of those errors and discrepancies. § 23-74(c)(county and
subdivider have duty to correct errors and discrepancies in subdivision permits). This is critical
since County has an affirmative duty to monitor compliance with permit approvals and especially
16
19
the condition of those approvals. Morgan v. Planning Dept, 86 P.3d 982, 984 (Haw. 2004);
Sheehan v. Cry. of Kauai, 337 P.3d 53 (Haw. App. 2014)(memo. op.).8
VII. CONCLUSION
In light of the foregoing, Petitioners respectfully requests the Director issue a declaratory
ruling that confirms or clarifies the interpretation of Hawaii County Code §§ 23-7, 23-30, 23-62,
23-74, 23-84, 23-85, 23-95, 25-2-2, 25-2-11, 25-2-30, 25-4-2, 25-5-71, 25-5-74.
DATED: Honolulu, Hawaii, May 23, 2025.
DAMON KEY LEONG KUPCHAK HASTERT
/s/Mark M. Murakami
MARK M. MURAKAMI
CLINT K. HAMADA
Attorneys for Petitioner
MARK KELLBERG
$Since the Hawaii Supreme Court recognized that the Kauai County Planning Commission
had the authority to modify a VALIDLY issued permit, it assuredly would recognize County's
authority to revisit and modify one with as flawed an approval history as SUB 05-00064. See
Morgan, 86 P.3d at 984.
17
20
��gY-aF pt4�
Larry Kim :+ Christopher J. aueti
Manor
Director
�r`oF"µpet
Roy R. Takernoto
Deputy Director
PLANNING DEPARTMENT
101 Pauahi Street,Suite 3 - Hilo,Hawaii 96720-3043
June 2, 2004 (808)961-8288 o Fax(808)961-8742
Geoff and Beverly Molfino
PO Box 190
Papaaloa, HI 96780
Dear Mr. and Mrs. Molfino:
DETERMINATION OF PRE-EXISTING LOTS
TMK: 3.2-02:35
This is to acknowledge receipt of your letter of December 24, 2003, and documents regarding the subject
matter.
Please be advised that we have reviewed the documents submitted, our department records, as well as
those of the Real Property Tax Division, and determined that the subject property consist of two (2)
separate legal lots of record:
1) Portion of Land Patent Grant 4964 consisting of approximately 26.370 acres; and
2) Portion of Land Patent Grant 4887 consisting of approximately 22.700 acres,
Old plantation houses locations do not create separate legal lots of record.
A request for separate tax map key parcel numbers should be in writing to this department.
Should you have any questions, please feel free to contact Ed Cheplic of this department.
Sincerely;
CHRfSTOPHER Jr:Y. U' EN
Planning Director
ETC:Inm
P:IWP6aPREXIP rec2OM3-2-2-35MOLFINO.doc
Hawai`i County is an Equal Opportunity Provider and Employer
5431-7
EXHIBIT "A" �� 3 2bU4
V OP
Mirry Kim
Nfayor Christopher J.Yuen
Ma
Director
''•a'M'" Brad Kurokawa,ASLA
LEED®AP
QlaunfLi Of Anfunil Deputy Director
PLANNING DEPARTMENT
101 Pauahi Street, Suite 3 • Hilo,Hawaii 96720-3043
(808)961-8288 • FAX(808)961-8742
October 23,2006
Stephen D. Whittaker,Esq.
Attorney at Law
PO Box 964
Kailua-Kona,HI 96740
Mr. Mark Kellberg
Unit 603
1516 Hinman Avenue
Evanston, Illinois 60201
Dear Messrs. Whittaker and Kellberg:
SUBJECT: SUB. NO. 05-00064; SUB.NO. 06-000331;TMK NO.3-2-2-35 and 110
I am writing in response to Mr. Kellberg's letters of August 16, 2005,January 17, 2006,
and June 19, 2006, and to Mr. Whittaker's letter of August 25, 2006.
The number of pre-existing lots on TMK No. 3-2-2-35, and their subsequent use in Sub.
05-00064 and the pending Sub. 06-00033a seems to be the most important issue. On May
22, 2000, the Planning Department sent a letter on this subject stating that the department
recognized six pre-existing lots within this tax map key parcel. However, in response to
a December 24, 2004 request to recognize seven lots,based on some old plantation camp
houses,the Planning Department sent a letter stating that only two lots were recognized.
This was a mistake,because the Department should have respected the previous
determination. Later, Mr. Fuke,representing the owner, met with me to discuss the case
for more lots based on the old houses. There is a possibility that more lots could be
recognized for those houses based on sec. 23-118 and 23-119 of the Subdivision Code.
When he brought it to my attention that the Department had previously recognized six
lots, I told Mr. Fuke that we would honor the previous letter, which is our general policy.
I did not re-analyze the number of lots based upon the old houses.
The owner then submitted a consolidation/resubdivision (Sub. 05-00064) based on the six
pre-existing lots. As Mr. Keilberg correctly points out, there was a mistake in the
�� 00002 2
��
EXHIBIT B J
flawai'i County is an Eynal Opportunity Provider and, Finployer 22
Stephen D. Whittaker, Esq.
Mr. Mark Kellberg
Page 2
October 23, 2006
approval of that subdivision. One of the six recognized lots was a 0.699 acre portion of
Grant 11,070. For some reason, it was not contiguous with the remainder of TMK No.
3-2-2-35. In the consolidation/resubdivision, the Planning Department did not notice that
this noncontiguous portion had been included in the lot count. Thus, it remained separate,
and is now TMK No. 3-2-2-110. Thus,with the six lots in Sub. 05-00064 and parcel 110,
there are now seven lots instead of six.
I am not going to do anything to undo this situation at this time. Sub. 05-00064 has
received final subdivision approval and at least some of the lots have been sold. Given
that parcel 110 is physically separated from the remainder of Sub. 05-00064, and from
any property owned by the subdivider, I cannot see a way to erase its separate existence.
There are several other issues in Mr. Kellberg's August 16, 2005 letter, which are
referred to here by their numbering in that letter:
1. Mr. Kellberg is correct that the final plat map for Sub. 05-00064 erroneously
omits existing structures. The subdivider has been instructed to file a revised final
plat map.
2. There is no land in the conservation district in this subdivision.
3. The`offset"in the road easements may be the result of different edges of the road
being defined. If this remains a concern,please let us know.
I am very sorry that the Planning Department did not respond much earlier to
Mr. Kellberg's August 16 letter, and to the further requests for information. I have
discussed this with the staff members primarily responsible for handling subdivision
matters.
In response to Mr. Kellberg's requests for notice,because of our slow responses earlier,
staff have been instructed to send copies of fixture correspondence from our office
concerning Sub. 06-00033,)and any revisions of Sub. 05-00064.
Sincerely,
CHRISTOPHER J. YUEN
F Iann1:ng Director
CJY:pak
Wp•.v1n60/Chrjs2/Stephen Whittaker&Mark Kellbee;response
(1n002- 3
23
Stephen D. Whittaker, Esq.
Mr. Mark Kellberg
Page 3
October 23, 2006
cc: Mr. Daryn Arai
Mr. Ed Cheplic
Mr. Sidney Fuke
Home Tech Construction
Mayor's Office
000024 �
24
LINCOLN S. T. ASHIDA 4478 ld 7
Corporation Counsel
MICHAEL J. UDOVIC 5238
JOSEPH K. KAMELAMELA 2493
Deputies Corporation Counsel
County of Hawaii
Hilo Lagoon Centre
101 Aupuni Street, Suite 325
Hilo, Hawaii 96720
Telephone: 961-8251
Facsimile: 961-8622
E-mail: rnudovic'aco.hawaii.hius
Attorneys for Defendants CHRISTOPHER J. YUEN in his capacity
as Planning Director,County of Hawaii and COUNTY OF HAWAPI
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAPI
MARK C. KELLBERG, Civil No. 07-1-0157
Plaintiff (Declaratory Judgment)
VS. DEFENDANT CHRISTOPHER J. YUEN'S
RESPONSE TO PLAINTIFFS FIRST
CHRISTOPHER J. YUEN in his capacity as REQUEST FOR ANSWERS TO
Planning Director, County of Hawaii, IN AND FIRST REQUEST
COUNTY OF HAWAPI and JOHN DOES FOR PRODUCTION OF DOCUMENTS TO
1-10, JANE DOES 1-10 and DOE DEFENDANT CHRISTOPHER J. YUEN
PARTNERSHIPS, CORPORATIONS, [BATES NO. 000001 —0001571
GOVERNMENTAL UNITS OR OTHER
ENTITIES 1-10,
Defendants.
slitkellberg',doc�coh mp to I I req 7 WU(nvp)jen
DEFENDANT CHRISTOPHER J. YUEN'S RESPONSE TO PLAINTIFF'S FIRST REQUEST
FOR ANSWERS TO INTERROGATORIES AND FIRST REQUEST FOR PRODUCTION OF
DOCUMENTS TO DEFENDANT CHRISTOPHER J. YUEN
I,
Defendant Christopher J. Yuen("Defendant Yuen"), by and through his undersigned
counsel, hereby responds to Plaintiff s First Request for Answers to Interrogatories and First
Request for Production of Documents to Defendant Christopher J. Yuen as follows:
EXHIBIT 11C11 25
communications; and attorney work product. Defendant Yuen objects that no sufficient
foundation has been made for discovery of such material. Investigation of this matter
continues. Defendant Yuen reserves rights to supplement this response as more
information becomes available. Without waiving such objections, Defendant Yuen
provides the response below:
Answer:
7
26. Did SUB 05-00064 satisfy all of the"requirements and standards"of the Subdivision
Control Code during the application and review process leading up to,and subsequent to,your
grant of final approval of said subdivision on July 11,2005,that would otherwise have been
required if the basis for the subdivision had not been"consolidation/re-subdivision", and, if
your answer is no, what additional requirements and standards would have been required of
SUB 05-00064 for you to have granted final approval?
Defendant Yuen objects to Interrogatory 26, in that it is ambiguous, vague and uncertain.
Defendant Yuen objects that request does not appear reasonably calculated to lead to the
discovery of admissible evidence. Defendant Yuen objects that response calls for
attorney mental impressions,conclusions, opinions and/or legal theories; attorney-client
communications; and attorney work product. Defendant Yuen objects that no sufficient
foundation has been made for discovery of such material. Investigation of this matter
continues. Defendant Yuen reserves rights to supplement this response as more
information becomes available. Without waiving such objections,ns Defendant Y
provides the response below:
J � Yuen
Answer:
No. The additional requirements would have been determined in the subdivision process
and cannot be definitely stated because this subdivision did not go through the full
normal process under Section 23-7. Generally, it would have required a county system q �'water
s y m and an agricultural standard road, unless variances were obt
ained.
27. To the best of our knowledge,
y o ledge, were both Ed Cheplic and Daryn Arai in professional
agreement with your decision to honor the May 22, 2000, recognition,
gni by then Planning Director
Virginia Goldstein, of six preexisting lots within TMK 3-2-02-035?
Defendant Yuen objects to Interrogatory J o 27, in that it is g rY ambiguous, vague e and uncertain.
i � n
Defendant Yuen objects that request does not appear reasonably calculated to lead to the
discovery of admissible evidence. Defendant Yuen objects that response calls for
attorney mental impressions, conclusions, opinions and/or
P legal theories;
g , attorney-client
communicate y
ons; and attorney work product.Y P Defendant Yuen objects that no sufficient
foundation has been made for discovery of such material. Defendant Yuen further
objects that such request requires an oppressive and unreasonably burdensome effort to
ascertain what others are thinking such information is more easily available to Plaintiff
from other resources without need to burden Defendant Yuen with such uncertain search
for material. Investigation of this matter continues. Defendant Yuen reserves rights to
17
26
BEFORE THE PLANNING DIRECTOR
PLANNING DEPARTMENT
COUNTY OF HAWAIJ
STATE OF HAWAIJ
In the Matter of DOCKET NO. 25-0001
MARK KELLBERG, DENIAL OF PETITION FOR
DECLARATORY RULING
Petitioner
JEFFREY W. DARROW, PLANNING DIRECTOR,
COUNTY OF HAWAIIIIS DENIAL OF PETITION FOR DECLARATORY RULING
I. BACKGROUND
Petitioner, Mark Kellberg, ("Petitioner")filed his Petition for Declaratory Ruling
("Petition")with the County of Hawai'i, Planning Department("Department") on May
23, 2025, requesting a declaratory ruling from the Director of the Department
("Director")regarding the applicability of various sections of the Hawai'i County
subdivision and zoning codes (Hawai'i County Code, Chapters 23 and 25)to a
subdivision approved in 2005, SUB-05-00064 ("Subdivision").
A. The Subdivision
The property at issue involves land located at Waikaumalo,North Hilo, Hawai'i,
formerly designated as Tax Map Key Parcel No. (3) 3-2-002-035,being 49.070 acres
including a non-contiguous portion being 0.699 acre. On May 22, 2000, the Department
sent a letter to the landowner stating that the Department recognized six pre-existing lots
of record within the property. In response to a December 24, 2003 request to recognize
seven lots, the Department mistakenly stated that only 2 lots existed. When the prior six-
27
lot determination was brought to the attention of the Director, the Director stated that he
would honor the previous six-lot determination in conformance with general Department
policy.
In 2005, the landowner submitted an application for subdivision of the property and,
on July 11,2005,the Director issued final subdivision approval for the division of TMK
(3)3-2-002-035 into six lots. As noted in the Director's letter dated October 23, 2006,
attached to the Petition as Exhibit B, this approval was a mistake as it failed to account
for the non-contiguous 0.699 acre portion, designated at that time as TMK
(3)3-2-002-110, which meant the property had been subdivided into seven lots rather than
six, or one lot in excess of the pre-existing lot determination number. In his 2006 letter,
the Director determined that he was "not going to do anything to undo this situation at
this time."
By consolidation CON-10-000168 recorded in the Bureau of Conveyances of the
State of Flawai`i on November 18,2010, TMK(3)3-2-002-110, the non-contiguous 0.699
acre parcel, was consolidated into TMK(3)3-2-002-068. Thus, as of 2010 the seventh lot
was eliminated and the property consists of six lots.
B. The Lawsuits
Petitioner is the owner of a lot adjacent to the six-lot subdivision. Following the
Director's issuance of final subdivision approval for the six-lot subdivision on July 11,
2005, Petitioner did not file an appeal of the Director's decision to the County Board of
Appeals (`BOA")within the 30-day appeal period.
Instead, on May 11, 2007, Petitioner filed a lawsuit against the County of Hawaii
("County")in the Third Circuit Court alleging six wide-ranging counts. Specifically, in
2
28
Count 11 Petitioner"alleged that he was entitled to a declaratory judgment regarding 'the
application of the [County Code] to SUB-05-00064 and [the Planning Directors]
arbitrary decision to disregard the limitations of Section 23-67 and to create seven (7)
lots out of one in violation of Section 23-7 [(governing pre-existing lots)]."'Kellberg v.
Yuen, 131 Haw. 513, at 519, 319 P.3d 432, at 438. The Third Circuit Court entered an
order in July 2009 granting partial summary judgment and remanding three of
Petitioner's counts to the BOA.
In September 2009, Petitioner filed a petition with the BOA appealing the Director's:
(1)January 12, 2005 decision to honor the Director's May 22, 2000 determination that
the property consisted of six lots; (2)July 11, 2005 final subdivision approval; and(3)
October 23, 2006 letter determining that he would "not do anything." These appeals
were dismissed by the BOA on the basis that it lacked jurisdiction due to Petitioner's
failure to file within the 30-day deadline.
Petitioner did not appeal the BOA's dismissal. Petitioner also did not file a BOA
appeal following the consolidation of TMK (3)3-2-002-068 and -I 10 in 2010.
Following the County's filing of a motion for summary judgment on all claims,the
Third Circuit entered a Final Judgment in favor of the County and against Petitioner in
2012.
Petitioner appealed the Third Circuit Court's decision to the Hawaii Intermediate
Court of Appeals ("ICA"). The ICA vacated the lower court's Final Judgment and
remanded for an order of dismissal. Petitioner applied to the Hawaii Supreme Court
{"DISC"), and in 2014("Kellberg I")the DISC opined only on the appealability of the
3
29
Director's decisions and remanded the case to the ICA for consideration of the remaining
issues.
On remand, the ICA vacated the Third Circuit Court's judgment and remanded to the
Third Circuit Court. Before the Third Circuit Court ruled, the County petitioned to the
FIISC asking the Court: whether it was error to declare the subdivision invalid when it
now consisted of six, not seven, lots; whether the ICA should have considered all the
County's arguments; and whether the owners of the lots in the affected subdivision must
be joined as parties prior to voiding the subdivision.
The DISC, in its April 15, 2015 decision("Kellberg 11"),vacated the ICA's judgment
and the Third Circuit Court's judgment and remanded the case to the Third Circuit once
again. Finding that the lots owners were indispensable parties, the FIISC directed that the
Third Circuit Court order that they be made parties if feasible.
On remand at the Third Circuit Court, Petitioner filed an amended complaint on
December 2, 2015, adding the lot owners as defendants and, among other counts, seeking
a finding that SUB-05-00064 is invalid. On July 23, 2019, the Third Circuit Court issued
its Findings of Fact, Conclusions of Law, and Decision and Order as to Counts I Through
V(Inclusive) of the First Amended Complaint. The Third Circuit Court stated that
because Counts I through V, inclusive, of the First Amended Complaint were all
predicated upon a determination as to whether SUB 05-00064 is invalid and Petitioner
was not entitled to relief on such a determination, all of Counts I through V, inclusive
were dismissed with prejudice. Final Judgment in favor of the County was issued on
November 4, 2019.
4
30
Petitioner appealed once again and the ICA issued a Summary Disposition Order on
June 27, 2024, affirming the Third Circuit Court's Final Judgment for the County
("Kellberg 111"). The HISC rejected Petitioner's application for writ certiorari on
November 27, 2024.
Having failed to get the relief he sought, to invalidate the subdivision approval,
through the BOA or the courts in Kellberg 1, Kellberg 11, or Kellberg 111, Petitioner filed
the Petition with the Department on May 23, 2025.
IL APPLICABLE RULES
Pursuant to Haw. Rev. Stat. § 91-8 (2012):
[a]ny interested person may petition an agency for a declaratory order as to the
applicability of any statutory provision or of any rule or order of the agency.
Each agency shall adopt rules prescribing the form of the petitions and the
procedure for their submission, consideration, and prompt disposition. Orders
disposing of petitions in such cases shall have the same status as other agency
orders.
The Department's Rules of Practice and Procedure ("Planning Rules") govern the
declaratory ruling process. Rule 3.1{c)thereof gives the Director authority to deny the
petition in writing, stating the reasons for such denial.
IIL REASONS FOR DENIAL
This Petition is DENIED for the following reasons:
A. The Purpose of the Declaratory Ruling Procedure
The declaratory ruling procedure is one "whereby an interested party could seek
agency advice as to how a statute, agency rule, or order would apply to particular
circumstances not yet determined." Citizens Against-Reckless Development v. Zoning
BoardofAppeals of the City and County ofHonolulu("CARD"), 114 Hawai'i 184, 197,
5
31
159 P.3d 143, 156(2007). "[The declaratory ruling procedure] was not intended to allow
review of concrete agency decisions for which other means of review are available. Id.,
114 Hawai'i at 197, 159 P.3d at 156.
The Director's determination about this subdivision was made upon the issuance of
final subdivision approval in 2005. This determination has been extensively litigated
through Petitioner's various attempts to invalidate the subdivision for nearly 20 years at
the County Board of Appeals, the Third Circuit Court, the ICA and DISC. The
declaratory ruling procedure is not intended to provide yet another opportunity to appeal
a long-settled determination when all other avenues have been exhausted because
Petitioner is unsatisfied with the previous results.
B. Preclusion
It is well settled that preclusion is a doctrine that limits a litigant to one opportunity to
litigate aspects of a case to prevent inconsistent results and multiplicity of suits and to
promote finality and judicial economy. Exotics Hawai'i-Kona, Inc. v. E.J. Dupont De
Nemours & Company, 90 P.3d 250, 256, 104 Hawai'i 358, 364. The Third Circuit in its
2019 Final Judgment dismissed with prejudice Count I of the First Amended Complaint which
sought a declaratory judgment that SUB-05-00064 was invalid for violating the County Code.
The ICA affirmed this final judgment and the RISC denied Petitioner's application for writ of
certiorari. This Petition makes the same claim that the subdivision is invalid. See Petition at
Page I], Section V[Statement oj'Petitioner's Position or Opinion]. The parties to this Petition
are the same as the parties to Petitioner's lawsuit: The County of Hawal'i and Petitioner,with the
notable absence of any owners of the lots at issue. The declaratory ruling procedure is not
intended as a substitute for the courts when Petitioner is precluded from raising the same claim,
against the same parties following a final judgement in a prior action.
6
32
C. Still Missing Lot Owners
In Kellberg 11,the RISC made clear that the owners of the lots in the affected subdivision
were necessary parties to Petitioner's suit against the County attempting to invalidate the
subdivision. "Because invalidating the subdivision may impair or impede the lot owners'
respective property rights, and there is no indication that it is not feasible to join the lot owners,
the ICA should have vacated the circuit court's.judgment and remanded the case with instructions
to order that the lot owners be Joined." Kellberg v. Yuen, 349 P.3d 343, 361, 135 Hawai'i 236,
254. Petitioner never effectively joined the lot owners in court and the lot owners are not now
parties to this Petition. As this Petition is another attempt to impeded or impair the lot owners'
rights,it is equally imperative that the lot owners be present,which they are not. The declaratory
ruling process has no means to compel the joinder of any party,making it an unconstitutional
venue to determine the property nights of a non-participating party.
PURSUANT TO PLANNING RULE 3-1(c),THIS PETITION IS DENIED.
So Ordered,July 18,2025
je
.ffrey V Darrow
Jeffrey W.Darrow,Planning Director
7
33
BEFORE THE PLANNING DIRECTOR
PLANNING DEPARTMENT
COUNTY OF HAWAPI
STATE OF HAWAPI
In the Matter of DOCKET NO. 25-0001
MARK KELLBERG, CERTIFICATE OF SERVICE
Petitioner
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing document
was served upon the party below by email on the date below:
Delivered by electronic mail:
Mark M.Murakami
Clint K. Hamada
Attorneys for Petitioner
Dated: Hilo, Hawaii July 18, 2025
JEFFREY W. DARROW
PLANNING DIRECTOR
COUNTY OF HAWAI'l
By:
Jean K. Campbell
Deputy Corporation Counsel
8
34
IN THE BOARD OF APPEALS
COUNTY OF HAWAI`I
STATE OF HAWAI`I
MARK KELLBERG )
PL-BOA-2025-000124
Appellant, )
CERTIFICATE OF SERVICE
vs. )
JEFFREY W. DARROW )
PLANNING DIRECTOR )
COUNTY OF HAWAI`I )
Appellee. )
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing document was duly served
on August 26, 2025 ,to the following parties in the manner indicated below:
HAND-
DELIVERED U.S. MAIL E-MAIL
Mark Kellberg ( ) ( ) (X)
c/o Damon Key Leong Kupchak Hastert
1003 Bishop St.
Honolulu, Hawaii 96813
E-mail:mmm e,hawaiilawyer.com
Appellant/Landowner
JEAN CAMPBELL, ESQ. ( ) ( ) (X)
Corporation Counsel
County of Hawaii
101 Aupuni Street, Suite 325
Hilo, Hawai`i 96720
E-mail: Jeank.Campbellghawaiicoun ov
Attorney for Appellee
Mark M. Murakami ( ) ( ) (X)
Clint K. Hamada
1003 Bishop St, Suite 1600
Honolulu, Hawaii 96813
Email: ckhkhawaiilawyer.com
Attorneys for Petitioner-Appellant
SYLVIA WAN, ESQ. ( ) ( ) (X)
Corporation Counsel
County of Hawaii
101 Aupuni Street, Suite 325
Hilo, Hawai`i 96720
E-mail: SylviaA.Wankhawaiicounty.gov
Attorney for Board of Appeals
BOARD OF APPEALS ( ) ( ) (X)
101 Pauahi Street, Suite 3
Hilo, Hawai`i 96720
E-mail: BoardofAppeals(c�r�,hawaiicoun ov
Board of Appeals
DATED: Hilo, Hawaii, Awaust 26, 2025
TARA AKI
Administrative Permits Division Clerk II
for the Planning Department