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

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declaratory ruling is imperative to inform both Kellberg and the Pruglo Lot Owners of what property rights flow from the Subdivision. A. The Director Erred in Applying Preclusion to Kellber2's Petition, Because Prospective Application of the County Code to the Subdivision Was Never Adjudicated on the Merits. The Planning Director clearly erred by holding that Kellberg's Petition is precluded by previous litigation, because the Petition does not seek to revoke the Subdivision's approval and the merits of Kellberg's previous lawsuit had no bearing on the ultimate ruling of mootness.6 The elements of issue preclusion, also known as collateral estoppel, are well-established in Hawaii. See Doe v. Doe, 99 Haw. 1, 10, 52 P.3d 255, 264 (2002). First, the issue decided in the prior adjudication must be identical to the one presented in the action in question. Second, there must be a final judgment on the merits. Id. Third, the fact or issue decided in the prior action was actually litigated, finally decided, and essential to the earlier valid and final judgment. Motoyama v. State, 139 Haw. 267, 388 P.3d 55 (App. 2016) (citing Omerod v. Heirs of Kaheananui, 116 Hawai'i 239, 264, (2007)). Fourth, the party against whom issue preclusion is asserted was a party or in privity with a party to the prior adjudication. Id. Kellberg's Petition plainly lacks the first and third elements necessary for issue preclusion to apply. First, at the core of the Planning Director's Denial is the misconception that Kellberg's instant Petition is identical to his prior litigation. Kellberg's original 2007 Complaint sought eight specific items of relief: 1) declare the subdivision violative of the County Code and therefore void; 2) declare the Planning Director's conduct in approving the subdivision illegal and void as against 6 The Denial uses the general term "preclusion," and does not specify "issue" preclusion or "claim"preclusion (also known as res judicata). Based on the Denial's subsequent citation to Exotics Hawaii-Kona, Inc. v. E.J. Dupont De Nemours & Company, 104 Hawaii 358, 364 (2007), this brief interprets the Denial as applying issue preclusion. 9