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HomeMy WebLinkAbout2025-10-29 Notice of Hearing to Surrounding Property Owners AFFIDAVIT OF MAILING Board of Appeals(PL-BOA-2025-000124) Appeal of Planning Director's Denial of Petition for Declaratory Ruling, dated July 18, 2025 Appellant: Mark Kellberg Hearing Time: December 12, 2025 at 9:30 a.m. Hearing Location: West Hawaii Civic Center, Council Chambers, Building A STA I L OF HAWAII ) ) SS. COUNTY OF HAWAII ) MARK KELLBERG, being first duly sworn on oath, deposes and says that: 1. I am the owner of the real property located at TMK No.: (3)3-2-002-034 in Ninole, Hawaii, and I am the appellant in the above-captioned appeal, PL-BOA-2025-000124. 2. Pursuant to Rule 8-11(d) of the Board of Appeals Rules of Practice and Procedures,I compiled a list of names and addresses of affected and/or nearby property owners as reflected by the Hawaii County Real Property Tax Office. A copy of that list is attached hereto as Exhibit"A". 3. On October 21, 2025, I caused the following documents to be mailed to all said property owners at the addresses listed in Exhibit "A": (1) Cover letter drafted by my attorneys, Damon Key Leong Kupchak Hastert, dated October 14, 2025; (2) the General Petition for Appeal of Decisions By Planning Director or Publics Works Director, dated August 14, 2025, which initiated the instant appeal; (3) Attachment "1" to the General Petition; (3) Jeffrey W. Darrow, Planning Director, County of Hawaii's Denial of Petition for Declaratory Ruling, dated July 18, 2025, entered in Docket No. 25-0001; (4)the County of Hawaii Board of Appeals' letter of acknowledgement, dated August 25,2025; and(5)the Order Granting Continuance of Hearing, dated September 8, 2025. A copy of these mailed documents is attached hereto as Exhibit"B". FURTHER AFFIANT SAYETH NAUGHT. DA lED: October 29th, 2025, Cook County, Illinois. d(r MARK KELL BE G Subscribed and sworn to (or affirmed)before me this 29th day of October, 2025. �s�`6 / 10/a,G/m. -T Official Seat ► Notary Signature Date NOEMI ARIELA AYALA Notary Public.State of Illinois Commission No.978069 / Typed or Printed Name: Ft erY1i I�yr,t IG My Commission Expires September 19,2027 ► Notary Public, State of Illinois, Cook County My Commission Expires: cc! / 1 cf/3,ci , i NOTARY PUBLIC CERTIFICATION Doc Description: Affidavit of Mailing; Exhibits "A" and"B" __ 0 Official Seal No. of Pages: 28 Date of Doc: October 29, 2025 NOEMI ARIELA AYALA Notary Public.State of Illinois ' 0 Commission No.978069 I A My Commission Expires September 19,2027 7,(-C2 to/aq /a0a5 Notary Signature Date - 2 - Pursuant To A Certain Petition For Appeal To The Hawaii County Board of Appeals, Dated August 14, 2025, By Appellant Mark C. Kellberg, From the Planning Director of The County of Hawaii's Denial of Petition for Declaratory Ruling, dated July 18, 2025, With Regard To the Application of the County Subdivision and Zoning codes to Lots Subdivided Under SUB 05-00064 PL-BOA-2025-000124 NOTIFICATION MAILING LIST This document contains a listing of all lots of record within the boundaries defined by Hawaii Island TMK Map, Zone 3, Section 2, Plat 02 (TMK 3-2-02-XXX); and the names and addresses of the owners of those parcels, as reflected in the records of the Hawaii County Real Property Tax Office. As per the Rules of Practice and Procedure of the Hawaii County Board of Appeals, Part 8, Section 8-11, (d) Notice to Surrounding Property Owners; and Chapter 25, Article 2, Division 1, Section 25-2-4, (a), (2); and ©; Appellant identifies the following property owners surrounding The Subject Property (TMK 3-2-02-035) as requiring Notice of Hearing of This Appeal, as indicated on the following list by underline of the relevant parcel number, and owner's name and address: 001 Charles R. Trommer Trust; P.O. Box 118,Ninole, Hi. 96773 002 Daniel and Monica Oscarson Trust, P.O. Box 115,Ninole, Hi. 96773 003 Felipe and Almada Medeiros, 2114 Kaiwiki Rd. Unit D, Hilo,Hi. 96720-7715 004 Bettie B. Wagstaff,P.O. Box 123, Paauilo, Hi. 96776-0123 005 Mary K. Albin Trust; P.O. Box 42,Ninole, Hi. 96773 006 Yang Lo Darling, P.O. Box 831220, Pepeekeo, Hi. 96783-1074 007 same as 006 008 Alexandra Toth, 383 Fairmont Blvd. S. Lethbridge, Alberta, T1K 7J4, Canada 009 Christian M. Marinello, 601 W. Meadowdale Cir., Hampshire, II. 60140-6715 010 Peptop Natural Resources Inc., 637 Hartwell Ct.,Altadena, Ca. 91001-3853 Page 1 of 6 (t) EXHIBIT "A" 011 Richard E. Hensel, 19805 18'th Ave. NW, Shoreline, Wa. 98177 012 Miriam Aguiar; 4410 Vista Creek Dr., Rowlett, Tx. 75088-1818 013 same as 012 014 same as 012 015 Sandra G. Kaleikini, 1134 Ainalako Rd., Hilo, Hi. 96720-3723 016 Marion R. Tavares Jr., 1112 Pohu St., Hilo, Hi. 96720-1652 017 PNR HWI Properties LLC, P.O. Box 14517, San Francisco, 94114-0517 018 State of Hawaii/DLNR; Land Division, P.O. Box 621, Honolulu, Hi. 96809 027 same as 018 029 same as 018 030 same as 018 059 same as 018 062 same as 018 019 Ninole Botanical Garden Trust; P.O. Box 254, Honomu, Hi. 96728 020 Kyle Steven Slifka, P.O. Box 162,Ninole, Hi. 96773-0162 021 Richard Nolan Bradwell Trust, P.O. Box 73,Ninole, Hi. 96773-0073 022 Eric Ochberg, P.O. Box 57,Ninole, Hi. 96773-0057 024 same as 022 023 Ryan London Porter, P.O. Box 160, Hilo, Hi. 96721-0160 025 Kiyoshi K. and Ellen A. Fujimoto Trust; P.O. Box 637, Pepeekeo, Hi. 96783 026 same as 025 028 Janet R. Garcia; P.O. Box 279. Kamuela, Hi. 96743-0279 067 same as 028 086 same as 028 Page 2 of 6 029 State of Hawaii/DLNR; Land Division. P.O. Box 621. Honolulu. Hi. 96809 030 State of Hawaii/DLNR; Land Division, P.O. Box 621, Honolulu, Hi. 96809 032 Antoine Debarge, P.O. Box 800267, Papaaloa, Hi. 96780-0250 033 Glenn Takemoto: P.O. Box 107.Ninole. Hi. 96773 034 Appellant 035 Nikoly Pruglo, 7515 Mariposa Ave., Citrus Heights, Ca. 95610-2315 111 Alla Pruglo. 7515 Mariposa Ave., Citrus Heights, Ca. 95610-2315 113 Frances Santa Maria Trust, 1911 Kalaniana Ave.,Unit 205, Hilo, Hi. 96720-4958 114 Michael Daniel Lock, 913 Hog Back Rd., Haiku, Hi. 96708-5620 116 Home Tech Construction, 7515 Mariposa Ave., Citrus Heights, Ca. 95610-2315 036 David J. Kehrl; 130 Touchdown Dr., Telluride, Co. 81435 9429 108 same as 036 038 Juliet M. Perreira Trust, P.O. Box 6,Ninole, Hi. 96773 039 Gene and Phyllis I. Aguiar Trust; P.O. Box 111,Ninole, Hi. 96773 040 George M. Hirowatari; P.O. Box 78,Ninole, Hi. 96773-0078 041 Dana M. Dafnis Trust; P.O. Box 101,Ninole, Hi. 96773 053 same as 041 042 Yukio/Sakae Nishimoto Trust; P.O. Box 8,Ninole, Hi. 96773-0008 043 Robert T.Nishimoto, P.O. Box 90,Ninole, Hi. 96773-0090 045 Richard B. Toledo Jr. Trust, 65 Makani Circle, Hilo, Hi. 96720-3435 046 same as 045 047 owner unknown; name withheld by request of owner 048 Ron D. And Valerie T. Sewell Trust, P.O. Box 157, Circleville, Utah 84723-0157 049 Reach America LLC, 14134 Dorene Ct., Saratoga, Ca. 95070-9727 Page 3 of 6 // r'6t` 051 Juliet M. and Jonathan Perreira; P.O. Box 759, Honokaa,Hi. 96727 081 same as 051 052 no listing 054 Mchael R. and Gerry Allen; P.O. Box 49,Ninole, Hi. 96773 055 George M. and Dorothy S. Hirowatari; P.O. Box 87,Ninole, Hi. 96773 056 Sakae Nishimoto; P.O. Box 8,Ninole, Hi. 96773 057 Dorothy S. Hirowatari, etal; 600 Kinoole St., Hilo,Hi. 96720 058 Harold H. Gross Jr.; 28455 Meadow Mesa Ln., Escondido, Ca. 92026 072 same as 058 060 no listing 061 Don Aanavi Trust; P.O. Box 165,Ninole,Hi. 96773 063 Robert Eugene Drury, P.O. Box 139,Ninole, Hi. 96773-0139 064 Kenneth and Kinue Steinhardt; 711 N. Zeyn St.,Anaheim, Ca. 92805 065 no listing 066 no listing 068 Glenn I. Takemoto;P.O. Box 107,Ninole, Hi. 96773 069 Shropshire Group/Honohina Hongwanji Kyodan; P.O. Box 1146, Hilo, Hi. 96721 070 no listing 071 Calvin T. and Kikue Sueda Trust; P.O. Box 147,Ninole, Hi. 96773 073 no listing 074 no listing 076 Takeyoshi Maesoto Family Trust; P.O. Box 25,Ninole, Hi. 96773 077 Allan J. Pacheco; P.O. Box 64,Ninole, Hi. 96773 078 Cary Takemoto, P.O. Box 167,Ninole, Hi. 96773-0167 Page 4 of 6 079 Delton Cacabelos, P.O. Box 117, Ookala, Hi. 96774-0117 080 Lavant.Bridgette Wooten Trust, 9809 S. 2'nd Ave., Inglewood, Ca. 90305-3226082 081 Johnalyn M. Margheim Trust, P.O. Box 6,Ninole, Hi. 96773-0006 082 Kelvin Cardoza: P.O. Box 277, Laupahoehoe, Hi. 96764 083 same as 082 084 Sharon Blank Hawaii Trust, P.O. Box 85,Ninole, Hi. 96773-0085 085 Victor B. Souza Jr.. 15-2686 Maikoiko St., Pahoa, Hi. 96778-9137 087 Suzanne Gray, P.O. Box 108,Ninole, Hi. 96773-0108 088 Juliet Perreira; P.O. Box 759, Honokaa, Hi. 96727-0759 089 Samuelson Residuary Trust, 59-732 Kaala Road, Kameula, Hi. 96743-8553 090 County of Hawaii Water Commission; 345 Kekuanaoa, Suite 20, Hilo, Hi. 96720 091 same as 090 092 John C. and Raynell P. Cadabona; P.O. Box 119, Ninole, Hi. 96773-0119 093 Same as -092 094 Cameron D. Ansari, P.O. Box 46, Ninole, Hi. 96773-0046 095 David R. and Michelle A. Hryniuk: P.O. Box 40. Honomu,Hi. 96728-0040 096 Susan A. Fortney,P.O. Box 110,Ninole,Hi. 96773-0110 097 Charlotte D. Chang Trust, P.O. Box 983, Pepeekeo, Hi. 96783-0983 098 Sushant Dhal, P.O. Box 102,Ninole,Hi. 96773-0102 099 Emi Soga, P.O. Box 41,Ninole, Hi. 96773-0041 100 Jeffrey Ward, P.O. Box 79,Ninole, Hi. 96773-0079 101 Malury/Tokiko Silberman Family Trust, 1911 Kalanianaole Ave. PH5, Hilo,Hi. 96720 102 Bryan P. McCormick, P.O. Box 141,Ninole, Hi. 96773-0141 103 Irving and Donna Pifer; P.O. Box 29,Ninole, Hi. 96773-0029 Page 5 of 6 rr,� 104 Tomie Sasaki and Reinier Hesseling; 2129 California St., Cedar Falls, Ia. 50613 105 Brandon C. Tan Trust, 1105 Regal Canyon Dr., Walnut, Ca. 91789-5025 106 Marion Sims; P.O. Box 30,Ninole, Hi. 96773 107 Skinner Family Trust, P.O. Box 77,Ninole, Hi. 96773-0077 112 Christie D. Guastella and John H. Payne II, 11232 River Highlands Dr., Saint Amant, La. 7074-5015 115 Matthew W. Jackson, 17835 Beard Ln., Huntington Beach, Ca. 92647-7001 117 Nematollah and Tina M. Najibi; 1950 Dorrance Ct., San Jose, Ca. 95125 Page e 6 of 6 /`-' w l� hawaiilawyer.com DAMON KEY LEONG KUPCHAK HASTERT A LAW CORPORATION Mark M. Murakami Clint K. Hamada October 14, 2025 1003 Bishop Street, Suite 1600 Honolulu, Hawaii 96813-6452 Telephone(808) 531-8031 E-Mail: mmm@hawaiilawyer.com ckh@hawaiilawyer.com Re: Petition for Appeal of Planning Director's Denial, filed August 14, 2025 PL-BOA-2025-000124 Dear Neighboring Landowner, Our office represents Mark C. Kellberg in his appeal from the Planning Director, County of Hawaii's Denial of Petition for Declaratory Ruling,Docket No. 25-0001 dated July 18, 2025, which was filed on August 14, 2025 in the County of Hawai`i Board of Appeals. Mr. Kellberg's appeal is docketed as PL-BOA-2025-000124. You are receiving this letter and its enclosures because you are either the owner of property which is the subject of Mr. Kellberg's appeal (the "affected property") or the owner of property located within 500 feet of the affected property. Enclosed with this letter are: (1)Mr. Kellberg's General Petition for Appeal filed with the County of Hawaii Board of Appeals as PL-BOA-2025-000124; (2) Attachment "1" to Mark Kellberg's General Petition for Appeal of Decision of the Planning Director; (3) Jeffrey W. Darrow, Planning Director, County of Hawaii's Denial of Petition for Declaratory Ruling, dated July 18,2025; (4)the County of Hawaii's letter of acknowledgement, dated August 25, 2025; and (5) the Order Granting Continuance of Hearing, dated September 8, 2025. Please review these documents carefully, as they may contain deadlines applicable to you if you wish to participate in the hearing. The pre-hearing conference for the appeal is currently set for October 30,2025 at 9:30 a.m. via Zoom videoconference. The contested case hearing is currently set for December 12, 2025 at 9:30 a.m. for in-person hearing at West Hawai`i Civic Center Council Chambers, Building A, 74- 5044 Ane Keohokalole Highway, Kailua-Kona, Hawaii 96740. If you have retained counsel to represent you in this matter,we kindly ask that you have them contact us at the phone number or email addresses listed above. Very truly yours, DAMON KEY LEONG KUPCHAK HASTERT Mark M. Murakami Clint K. Hamada 929907 TIT MERITAS EXHIBIT "B" .�-t_-Yoh',, 4OF N'� County of Hawaii BOARD OF APPEALS Aupuni Center • 101 Pauahi, Suite 3 • Hilo,Hawai`i 96720 (808)961-8288 • Fax(808)961-8742 GENERAL PETITION FOR APPEAL OF DECISIONS BY PLANNING DIRECTOR OR PUBLIC WORKS DIRECTOR (Type or legibly print the requested information. See instructions attached.) TYPE OF PETITION (check one): QX Appeal Decision of the Planning Director ❑ Appeal Decision of Director of Public Works SUBJECT PROPERTY(land in question): Tax Map Key (TMK): 3-2-002-110 to 115 & 035 Area of Property: 49.169 acres State Land Use Designation: Agricultural County Zoning: A-20a Street Address: Multiple APPELLANT INFORMATION: Name(s): Mark Kellberg Signature(s): Date: Mailing Address: c/o Damon Key Leong Kupchak Hastert, 1003 Bishop St., 1600 Honolulu, HI 96813 Telephone: (808) 531-8031 Email: mmm@hawaiilawyer.com/ckh@hawaiilawyer.com Interest in Subject Appellant owns property abutting the Subject Property Property: LANDOWNER INFORMATION: Name(s): See Attachment "1" Signature(s)1: Date: Mailing Address: Telephone: APPELLANT REPRESENTATIVE INFORMATION (leave blank if not applicable): Name(s)/Title(s): Mark M. Murakami, Esq. and Clint K. Hamada, Esq. Signature(s): 4 Date: 1crt - 1% aaa_S! Mailing Address: 1 03 Bishop Street, Ste. 1600, Honolulu. Hawaii 96813 (� Telephone: (808) 531-8031 Email: mmm@hawaiilawyer.com/ckh@hawaiilawyer.com Not required if the Landowner is not the Apoell?nt_ \\COH01\planning\public\BOA\Forms and Labels\Application Forms\APPEAL 2021-07-PL or PW Dir.docx Revised April 2021 Statement of the nature of Appeal and the Relief Requested. Include Director's decision and decision date: Appellant appeals the Planning Director's Denial of Petition for Declaratory Ruling, dated July 18, 2025, in Planning Department Docket No. 25-0001 and attached hereto. Please see Attachment "1" Statement of how the Director's decision violates the law; or is clearly erroneous; or is arbitrary or capricious. or characterized by an abuse of discretion or clearly unwarranted exercise of discretion: The Planning Director's Denial satisfies all three prongs of BOA Rule 8-15 and should be reversed because: (1) Kellberg's Petition presents entirely different legal questions than his previous litigation and therefore is not precluded; (2) Kellberg's Petition squarely complies with the purpose and requirements of petitions for declaratory rulings; and (3)the PD Rules do not require Kellberg to make the Pruglo Lot owners "parties"to a petition for declaratory ruling, and, in any case, they were notified of the Petition. First,whereas Kellberg's previous litigation sought to invalidate SUB 05-00064, Kellberg's Petition and instant appeal now seek guidance on how County Subdivision and Zoning codes apply to the Pruglo Lots' future use and development in light of SUB 05-00064 movin forward. In other words, how do the subdivision and zoning codes reconcile with an erroneous, albeit approved, subdivision? For example, do the drainage easement requirements of section 23-30 apply to the Pruglo Lots under section 23-7? This is but one of the many novel questions presented in the Petition and entirely ignored by the Planning Director. The Denial therefore violated the law by erroneously precluding the Petition. Second, the legal issues presented in the Petition are exactly the type intended to be answered through the declaratory ruling procedure, which is derived from HRS § 91-8. The purpose of HRS § 91-8 is to determine whether and in what way some statute, agency rule, or order, applies to the factual situation raised by an interested person. This is exactly what the Petition seeks—a declaration of how and in what way Ch. 23 and 25 apply to the Pruglo Lots in light of SUB 05-00064. The Denial therefore clearly erred by finding that the Petition contradicted the purpose of declaratory rulings. Last, the Denial arbitrarily determined that Kellberg needed to make the Pruglo Lot owners "parties"to the Petition. Declaratory rulings are not adversarial proceedings, and nothing in the PD Rules requires petitions for declaratory rulings join parties. Regardless,the Pruglo Lot owners were provided actual notice of the Petition, as evidenced by Mr. Charles Price's email opposing the Petition on behalf of Mary and Daniel Lock.The County has a continuing duty to enforce the aforementioned codes, making a declaratory ruling all the more imperative. Statement of any other relevant facts: If there is insufficient space on this form to provide the information, then please include supplemental documents. \\COH01\planning\public\BOA\Forms and labels\Application Forms\APPEAL 2021-07 -PL or PW Dir.docx Revised April 2021 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.bawaiilawyer.com Telephone: (808) 531-8031 Facsimile: (808) 533-2242 Attorneys for Petitioner-Appellant MARK KELLBERG BEFORE THE BOARD OF APPEALS COUNTY OF HAWAII PLANNING DEPARTMENT In the Matter of ) DOCKET NO. MARK KELLBERG ) ATTACHMENT "1" TO MARK ) KELLBERG'S GENERAL PETITION ) FOR APPEAL OF DECISION OF THE ) PLANNING DIRECTOR; ) EXHIBIT "1" ATTACHMENT "1" TO MARK KELLBERG'S GENERAL PETITION FOR APPEAL OF DECISION OF THE PLANNING DIRECTOR Pursuant to Rule 2-4 and Part 8 of the Rule of Practice and Procedure ("BOA Rules") for the Hawai'i County Board of Appeal ("BOA"), Petitioner-Appellant MARK KELLBERG ("Kellberg"), by and through his counsel, Damon Key Leong Kupchak Hastert, hereby appeals the Denial of Petition for Declaratory Ruling ("Denial") issued by the County of Hawai'i ("County"),Planning Director Jeffrey W. Darrow ("Planning Director")in Docket No. 25-0001 on July 18,2025. A copy of the Denial is attached as Exhibit"1". The Denial relates to the Petition for Declaratory Ruling filed by Kellberg on May 23. 2025 ("Petition"), pursuant to Hawaii 915009 0 N ( Revised Statutes section 91-8 and Rule 3 of the County of Hawaii Planning Department Rules of Practice and Procedure ("PD Rules"). I. INTRODUCTION Kellberg brought his Petition,and now this appeal,to clarify the effects that an erroneously approved subdivision, SUB 05-00064, has on future development and construction on the subject subdivided property. Specifically, Kellberg, as the landowner of adjacent property, seeks clarity on whether and to what degree the County's zoning and subdivision codes limit the subdivided property's future development, given that SUB 05-00064, itself, does not comport to said codes. Contrary to the Planning Director's Denial, the instant matter is entirely distinct from Kellberg's previous litigation and does not seek to rescind SUB 05-00064, even though it is warranted. Kellberg merely seeks an interpretation of how the County's codes are to apply to the subdivided property moving forward, in light of the novel factual backdrop of an erroneous subdivision. This is the exact purpose of declaratory rulings under HRS section 91-8 and PD Rules Part 6, and the Planning Director erred by denying the Petition. II. PARTIES AND AFFECTED PROPERTY Petitioner-Appellant: 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 Petitioner-Appellant 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 In 2010, SUB 05-00064 lot-110 was consolidated with TMK 3-2-0D2-068. 2 Y'1t� 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 Huntington Beach, CA 92647 TMK 3-2-002-035 Nikoly Pruglo2 7515 Mariposa Ave. Citrus Heights, CA 95610 III. BACKGROUND 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, all of which is in the agricultural district and zoned A-20a. 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. 2 There is a roadway lot,TMK No. 3-2-002-116 owned by Home Tech Construction, 7515 Mariposa Ave, Citrus Heights, CA 95610. 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 Molfino v. Yuen, 134 Haw. 181, 339 P.3d 679(Haw. 2014). 3 into six new lots with the detached .6 acre parcel representing a seventh legal lot of record. On July 11, 2005, the Planning Director issued final subdivision approval of SUB 05-00064. The approval claimed that "all requirements of the Subdivision Code, Chapter, 23, as modified have been met." Kellberg 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. In response to Kellberg's multiple inquiries,the Planning Director eventually sent a letter,see Exhibit "B"to Petition, stating 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"to Petition. 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. Id. On February 6, 2007, Kellberg 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 4 ( 3 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" to Petition (emphasis added). Kellberg 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." Id. (emphasis added). 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: 4 t � a1o'er. 1 2 g-� c- .. ��s 'f9 ,,, S.4-4-AG AG 4� _ ..,-1 . :::,..,7 �.aoo illf_i �__._�— - .ace .-,-........„___ j \''.."7 ' -E)=e 4y,' '( 1 c---"Tic0 a zai A. - \3\ 55 e -- ,..-%,--:-.-.,,,- .--- --_ 7-1-:4-::::---- :067 ' 2G JO. .-4a O.-isa Ac. \ � ✓'- Jb t- _.,� ' .__ a' T�+ � (fi , A ti 5 11, l 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. On May 11, 2007, Kellberg 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 Kellberg,County, and the neighboring owners. As to Kellberg's claims against the County, the Intermediate Court of Appeals found Kellberg's claims moot and did not rule on the substantive merits. 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. In the absence of such guidance, Kellberg's Petition and instant appeal seek answers as to how Chapters 23 and 25 will govern the Pruglo Lots. IV. RELIEF REQUESTED Kellberg requests that the BOA reverse the Planning Director's Denial and remand the Petition to the Planning Department so that the Planning Director may issue a proper declaratory ruling. A copy of this General Petition for Appeal will be sent to the above Pruglo Lot owners and/or their known representatives via U.S. mail or email. DATED: Honolulu, Hawaii, August 14, 2025. DAMON KEY LEONG KUPCHAK HASTERT /s/Clint K Hamada MARK M. MURAKAMI CLINT K. HAMADA Attorneys for Petitioner MARK KELLBERG BEFORE THE PLANNING DIRECTOR PLANNING DEPARTMENT COUNTY OF HAWAI`I STATE OF HAWAI`I In the Matter of DOCKET NO. 25-0001 MARK KELLBERG, DENIAL OF PETITION FOR DECLARATORY RULING Petitioner JEFFREY W. DARROW,PLANNING DIRECTOR, COUNTY OF HAWAI`I'S 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, Hawaii, 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- EXHIBIT " 1 " VUL IL ( 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 Hawai'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 1i( Count II Petitioner"alleged that he was entitled to a declaratory judgment regarding 'the application of the [County Code] to SUB-05-00064 and [the Planning Director's] 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-110 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 Hawai'i Supreme Court ("RISC"), and in 2014 ("Kellberg I")the HISC opined only on the appealability of the 3 /.. �cL I� 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 HISC 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 HISC, in its April 15, 2015 decision("Kellberg II"),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 HISC 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 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 III"). 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 I, Kellberg II, or Kellberg III, Petitioner filed the Petition with the Department on May 23,2025. H. 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. III. 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 Board of Appeals of the City and County of Honolulu ("CARD"), 114 Hawai`i 184, 197, 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 HISC. 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 Hawaii-Kona, Inc. v. E.I. Dupont De Nemours & Company, 90 P.3d 250, 256, 104 Hawaii 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 HISC denied Petitioner's application for writ of certiorari. This Petition makes the same claim that the subdivision is invalid. See Petition at Page 11, Section V[Statement of Petitioner's Position or Opinion]. The parties to this Petition are the same as the parties to Petitioner's lawsuit: The County of Hawai'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 (C C. Still Missing Lot Owners In Kellberg II, 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 Hawaii 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 rights of a non-participating party. PURSUANT TO PLANNING RULE 3-1(c),THIS PETITION IS DENIED. So Ordered,July 18,2025 Jeffrej Darrow Jeffrey W.Darrow(Jul 18,2025 10:47 HST_) Jeffrey W.Darrow,Planning Director FFORE THE PLANNING DIRECTOR PLANNING DEPARTMENT COUNTY OF HAWAI`I STATE OF HAWAI`I In the Matter of DOCKET NO. 25-0001 MARK KELLBERG, CERTIFICATE OF SERVICE Ptutioner 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'I By: Y Jean K. Campbell Deputy Corporation Counsel 8 �� Y of 1 • .`'• -weer' , ••. County of Hawaii BOARD OF APPEALS Aupuni Center • 101 Pauahi Street. Suite 3 • Hilo.Hawaii 96720 (808)961-8288 • Fax(808)961-8742 August 25, 2025 Mark M. Murakami, Esq. and Clint K. Hamada, Esq. 1003 Bishop Street, Suite 1600 Honolulu, HI 96813 Dear Mark M. Murakami, Esq. and Clint K. Hamada, Esq.: Request: 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) dated May 23, 2025, Regarding the Applicability of Various Sections of the Hawaii County Subdivision and Zoning Codes (HCC, Chapter 23 and 25) to a Subdivision Approved in 2005 (SUB-05-000064). Reference: PL-BOA-2025-000124 Appellant: Mark Kellberg Location: 32-977 Old MAmalahoa Highway, Ninole, HI 96773 TMK: (3) 3-2-002:034 This is to acknowledge receipt of the above-referenced petition received on August 14, 2025. According to the Board of Appeals Rules of Practice and Procedure Rule 6-1(b), the Board shall either deny the petition for declaratory ruling, issue a declaratory order on the matter, or set the matter for a hearing within one hundred twenty (120) days from the date the petition is properly filed. The Board shall then act on the petition within a period of ninety (90) days after the close of the hearing.The Board will consider your petition at the Board's hearing on Friday,November 14,2025-at 9:30 a.m.in the Hawaii County Council Chambers,25 Aupuni Street, Hilo,Hawaii. Board of Appeals Rules of Practice and Procedure section 8-1 1(d) requires notification of your petition to all property owners within 500 feet of the affected property. You must notify the surrounding properties not less than twenty (20) days prior to the hearing date, and proof of your notification shall be filed with the Board prior to the date of the hearing. Hawaii County is an Equal Opporhrnitt•Provider and Employer I\ (2::)e Mark M. Murakami, Esq. and Clint K. Hamada, Esq. Page 2 of 2 August 25, 2025 Please review the Board's Rule 3-13(g) regarding submission of exhibits to the Board. As an Appellant, additional exhibits shall be submitted no later than thirty (30) days following the filing of a complete appeal. Your petition to appeal was filed on August 14, 2025. Further, responding parties have ten (10) days after filings to provide exhibits in response. Please note that all correspondence sent to the Board of Appeals should also be sent to all parties, which include the landowners, appellant, and the Director (appellee). Rules 2-6 and 8-8 direct you to the requirements regarding service of documents to all required parties. We recommend that you review these rules to confirm that you have fulfilled their requirements. The Board of Appeal's Rules of Practice and Procedure are available to view online at: https://records.hawaiicounty.gov/weblink/l/doc/34351/Paae l.aspx. Should you have any questions, please feel free to contact the staff to the Board at boardofappealsQhawa i i county.gov. Sincerely, ,e5etiteze7„.7/11-661.4..4,14frt. Cathy Lewis, Chair Board of Appeals cc: Board of Appeals Planning Director BOA Corporation Counsel — Sylvia Wan, Esq. Department Corporation Counsel —Jean Campbell, Esp. AD V:1PLtPLlplanning\public\BOAlApplications Letters,.2025\?025-08-25 PL-BOA-2025-000124 KELLBERG Ack Ltr.docx RENEE N. C. SCHOEN 5936 Corporation Counsel SYLVIA A. WAN 9586 Deputy Corporation Counsel Office of the Corporation Counsel County of Hawaii 101 Aupuni Street, Suite 325 Hilo, Hawai`i 96720 Telephone: (808) 961-8251 Facsimile: (808) 961-8622 E-Mail: svlti iaa.wan 7 hawai icounty.tzov Attorney for the Board of Appeals BEFORE THE BOARD OF APPEALS COUNTY OF HAWAI`I STATE OF HAWAI`I MARK KELLBERG, CASE NO.: PL-BOA-2025-000124 Appellant, ORDER GRANTING CONTINUANCE OF HEARING; BOARD OF APPEALS' vs. CERTIFICATE OF SERVICE JEFFREY DARROW, PLANNING Hearing: DIRECTOR, COUNTY OF HAWAI`I, Date: December 12, 2025 Time: 9:30 a.m. in Kona Appellee. ORDER GRANTING CONTINUANCE OF HEARING On August 29, 2025, Mark M. Murakami, Esq.,Attorney for Appellee MARK KELLBERG, requested a continuance in this matter, currently scheduled for November 14, 2025, at 9:30 a.m. Jean K. Campbell, Deputy Corporation Counsel,Attorney for Appellee JEFFREY DARROW, PLANNING DIRECTOR, COUNTY OF HAWAII, had no objection to the request for a continuance. Chair, Cathy Lewis, granted Appellant's request for a continuance. `nY,(L I zt PURSUANT to Board of Appeals Rule 3-1(c), the chairperson of the Board may postpone or continue any hearing. ACCORDINGLY, this matter shall be continued to Friday, December 12, 2025, at 9:30 a.m., at the West Hawaii Civic Center, Council Chambers,Building A at 75-5044 Ane Keohokalole Highway,Kailua-Kona, Hawaii 96740. A pre-hearing conference has been scheduled for October 30, 2025, at 9:30 a.m, via Zoom_The Zoom link will be e-mailed to all parties closer to the date of the pre-hearing conference. Appellant is further ordered to mail a notice of the new hearing date to all persons required to be notified in accordance with Board of Appeals Rule 8-11(d). Dated: Hilo, Hawai`i, September 8, 2025. (-) CATHY L S, Chair Board of Appeals, County of Hawai`i 2 IIV���- BEFORE THE BOARD OF APPEALS COUNTY OF HAWAI`I STATE OF HAWAI`I MARK KELLBERG, CASE NO.: PL-BOA-2025-000124 Appellant, BOARD OF APPEALS'CERTIFICATE OF SERVICE vs. JEFFREY DARROW, PLANNING DIRECTOR, COUNTY OF HAWAII, Appellee. BOARD OF APPEALS'CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that a true and correct copy of the foregoing document was served upon the parties identified below by electronic mail service pursuant to Board of Appeals Rule 3-19 on September 8,2025 Delivered ria Electronic Mail (E-Mail and/or EPIC): Mark M. Murakami, Esq. Attorney for Appellant Jean K. Campbell Deputy Corporation Counsel Office of the Corporation Counsel Attorney for Appellee Dated: Hilo, Hawaii, September 8, 2025 . ASHLEY DEVERA Staff to the Board of Appeals 1 ,n^ lC o7—g