Laserfiche WebLink
VI. STATEMENT OF PETITIONER'S POSITION OR OPINION <br /> A. Planning Director has the authority to determine—under the HRS,Hawaii Charter, <br /> County Code, and the Development Agreement—whether Oceanside is currently in <br /> compliance with the terms of the Development Agreement. <br /> To a limited extent, the Planning Department and by extension the Planning Director may <br /> be able to determine compliance with the Development Agreement. Yet, no compliance of the <br /> Development Agreement was ensured. <br /> B. Planning Director does not have the authority—under the HRS, Hawaii Charter, <br /> County Code and Development Agreement—to determine material breaches of the <br /> Development Agreement. <br /> Under Hawaii County Code 30-6, the mayor, whose actions may not be reviewed by the <br /> Board of Appeals, and not the Planning Director, is charged with determining material breaches. <br /> Because this clear delineation of power, this administrative agency lacks the power to resolve the <br /> claims at issue and neither Exhaustion nor Primary Jurisdiction should have been applied in the <br /> Circuit Court Case. <br /> C. No County official has the power to excuse a breach of the Development Agreement. <br /> Nothing in the HRS, Hawaii Charter, County Code, or Development Agreement,provides <br /> either party the authority to unilaterally exculpate the other from non-compliance or material <br /> breach of the express terms of the Development Agreement or Incorporated Ordinances. <br /> D. Oceanside has NOT, in the timeframe prescribed, completed the following: <br /> (1) designed or constructed/built the roads required under the Development <br /> Agreement and Incorporated Ordinances; and (2) dedicated the roads required <br /> under the Development Agreement and Incorporated Ordinances. <br /> The Required Public Roads were not designed or constructed to dedicable county <br /> standards, nor have any of them been lawfully dedicated. The County knows this, as in its material <br /> breach letter of April 29, 2010, under the authority of the Mayor, Oceanside was notified in item <br /> 3 on page 6 that it had failed to complete the subdivision improvements for Phase I as required by <br /> 10 <br /> 843682 <br /> 12 <br />