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

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APPELLANT MARK KELLBERG'S PRE-HEARING BRIEF Pursuant to the deadline set by the Scheduling Order, dated December 3, 2025, and Rule 3-14 of the Board of Appeals Rules of Practice and Procedure ("BOA Rules"), Petitioner MARK KELLBERG ("Kellberg" or "Appellant"), by and through his attorneys, Damon Key Leong Kupchak Haster, hereby submits this Pre-Hearing Brief in support of his General Petition for Appeal of Decision of the Planning Director (the "BOA Petition"), filed August 14, 2025, and ahead of the hearing before the County of Hawaii Board of Appeals currently set for February 13, 2026. The Petition 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. I. INTRODUCTION Following seventeen years of extensive litigation, Kellberg filed a Petition for Declaratory Ruling (the "Petition") on May 23, 2025, to obtain clarity on how certain zoning and subdivision codes apply or will apply to what the then-Planning Director stated was an erroneously approved subdivision. Misconstruing Kellberg's Petition as identical to his previous litigation, the Planning Director denied the Petition, citing "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 the HISC." While the Planning Director is correct that invalidation of the subdivision was the subject matter of Kellberg's previous litigation, it is not the subject matter of the instant case. Instead, this appeal asks how Chapters 23 and 25 of the Hawaii County Code ("HCC" or the "County Code")prospectively apply to SUB-05-00064 in light of its mistaken approval— a question that remains novel and unaddressed by the Planning Department, this Board, or any state court. Simply put, this petition asks what the Pruglo Lot Owners can or cannot do with their 2