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

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brought into consideration." Id. at 197. The Hawaii Supreme Court has further emphasized that a declaratory ruling is proper where an agency has failed to make a"definitive ruling or order" on the issue at hand. Acad. Lab. United v. Bd. of Regents of the Univ. of Haw., 153 Haw. 202, 211 (2023). No agency or court has ever provided any guidance as to what extent an erroneously- approved subdivision must comply with Ch.23 and 25 of the Hawaii County Code. It is Kellberg's position (and presumably the Planning Department's) that the Subdivision's approval does not constitute a blank permission slip for the Pruglo Lot Owners to simply build anything they desire. Just like every other landowner, there are undoubtedly parameters by which the Lot Owners must abide, namely the County zoning and subdivision codes. Nonetheless, it is unclear as to what extent the Pruglo Lots must, or even can, comply with the County Code. See Petition at 9-11 (containing a non-exhaustive list of apparent conflicts and ambiguities on several ordinances' applicability to the Pruglo Lots). For example, does the presence of a seasonal stream through the Pruglo Lots require certain drainage easements under HCC § 23-30? Similarly, given that all Pruglo Lots are less than 20 acres, yet zoned A-20a, what are the Pruglo Lots' minimum lot size and building site area under HCC §§25-5-71 and 25-5-74? Do the lots require drainage easements, right of ways, and greater water supply under HCC §§ 23-30, 23-95, and 23-84, respectively? Do the lots somehow have HCC § 23-7 status despite resulting in more lots than previously existed? Does the County even have the power to enforce violations of Ch. 23 and 25 in light of the mistaken approval? On the other end of the spectrum, is the Subdivision nothing more than revised metes and bounds incapable of satisfying the County Codes' building requirements? These are but some of the important, novel questions that necessarily and logically flow from not rescinding the Subdivision. Without a declaratory ruling, the rights and obligations of 14