2026-02-05 Kellberg's Pre-Hearing Brief (PL-BOA-205-000124)

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public policy; 3) determine that Kellberg should be provided with notice and an opportunity to be heard on the merits of the subdivision approval; 4) find that the Planning Director's refusal to correct mistakes in the subdivision approval constitutes an abuse of discretion and direct the Planning Director to take necessary action to bring the subdivision approval in compliance with the County Code; 5) issue a mandatory injunction requiring the Planning Director to correct the subdivision and enjoining the County from approving further subdivision of the Subject Property until it is brought into compliance with the County Code; 6) award Kellberg monetary damages as proven at trial; 7) award Kellberg attorneys' fees and costs; and 8) grant Kellberg such other relief as is just and proper. Kellberg v. Yuen, 131 Haw. 513, 520, n.7, 319 P.3d 432, 439, n.7 (2014) (hereinafter, "Kellberg F). Each of these remedies concerned voiding and revoking the Subdivision's approval and requiring the developer to restart the subdivision process. In other words, Kellberg previously argued that the Planning Department's mistaken and erroneous approval required the Planning Department to void the Subdivision. The Hawaii Supreme Court's exhaustive summary of Kellberg's previous litigation echoes the same characterization. In 2009, Kellberg filed his first Motion for Partial Summary Judgment, which "claimed that the Planning Director, who acknowledged the `mistake' in his subdivision approval, was required to correct the mistake." Kellberg I, 131 Haw. at 521 (emphases added). The circuit court granted Kellberg's motion and remanded the case back to the BOA to determine proper remedies. Id. at 523 ("The [circuit] court clarified that it had remanded the case to the BOA to `see what kind of remedies they had if they were, in fact, convinced that the subdivision laws, as I was convinced, was not complied with."'). On remand back to the BOA, Kellberg filed his 2009 General Petition for Appeal seeking review of the Planning Department's decision to honor the six-lot determination, the decision to grant final approval, and the October 23, 2006 letter 10