HomeMy WebLinkAbout2026-02-09 1250 Oceanside LLC Objection to Proposed Amended FOF, COL, D&O (PL-BOA-2024-000104) CARLSMITH BALL LLP
PATRICK K. WONG 5878
75-5722 Kuakini Highway, Suite 208
Kailua-Kona, Hawaii 96740
Tel No. (808) 329-6464
Facsimile No. (808) 329-9450
pwong�ic,,carlsmith.com
DEREK B. SIMON 10612
1001 Bishop Street, Suite 2100
Honolulu, Hawai`i 96813
Tel. No. (808) 523-2500
Facsimile No. (808) 523-0842
dsimonkcarlsmith.com
IAN R. WESLEY-SMITH 10626
121 Waianuenue Avenue
P.O. Box 686
Hilo, Hawaii 96721-0686
Honolulu, Hawai`i 96813
Tel. No. (808) 969-8416
Facsimile No. (808) 935-7975
iwesley-smith(a�carlsmith.com
Attorneys for Appellant
1250 OCEANSIDE, LLC
BEFORE THE BOARD OF APPEALS
COUNTY OF HAWAI`I
STATE OF HAWAPT
In the Matter of Appeal AGENCY DOCKET NO. PL-BOA-2024-
000104
of
APPELLANT 1250 OCEANSIDE,
1250 OCEANSIDE, LLC LLC'S OBJECTIONS TO COUNTY OF
HAWAI`I BOARD OF APPEALS'
From the Decisions of the Planning Director, PROPOSED AMENDED FINDINGS OF
dated April 29, 2024 (Docket No. 24-0001) FACT, CONCLUSIONS OF LAW,
DECISION AND ORDER, SERVED
JANUARY 23, 2026; EXHIBIT A;
CERTIFICATE OF SERVICE
1250 OCEANSIDE, LLC'S OBJECTIONS TO COUNTY OF HAWAPI BOARD
OF APPEALS' PROPOSED AMENDED FINDINGS OF FACT, CONCLUSIONS
OF LAW, DECISION AND ORDER, SERVED JANUARY 23, 2026
4906-3356-8652.1.051730-00058
I. INTRODUCTION
Pursuant to Rules 3-20 and 8-14 of the County of Hawaii Board of Appeals ("BOA")
Rules of Practice and Procedures ("BOA Rules"), Appellant 1250 Oceanside, LLC
("Oceanside"), by and through its attorneys, Carlsmith Ball LLP, hereby submits its Objections
to the County of Hawaii Board of Appeals' Proposed Amended Findings of Fact, Conclusions
of Law, Decision and Order, served January 23, 2026 ("Proposed Decision and Order").
By submitting these Objections, Oceanside does not waive any arguments that the
Findings of Fact, Conclusions of Law, Decision and Order ultimately adopted by the BOA fails
to satisfy any and all applicable legal requirements, including those under Haw. Rev. Stat.
("HRS") § 91-12, or that the County ofHawai`i Planning Director ("Planning Director") and/or
BOA otherwise erred in rendering their respective decisions.
iI. GENERAL OBJECTIONS
A. THE PROPOSED DECISION AND ORDER CONTAINS NUMEROUS
FINDINGS AND CONCLUSIONS THAT ARE COMPLETELY UNRELATED
TO THIS APPEAL.
The Proposed Decision and Order contains numerous proposed FOFs and COLS that are
completely unrelated to this appeal, which concerns Oceanside's appeal of the Declaratory Order
issued in response to Tntervenor- C& J Coupe Family Limited Partnership's ("Coupe") Petition
for Declaratory Ruling filed on February 7, 2024, and its Supplement to Petition for Declaratory
Ruling filed on March 27, 2024 (together, "Coupe's Petitions for Declaratory Ruling"). See,
e.g., Proposed FOFs 11, 12, 14 & 15; Proposed COLS 5, 6, 9 & 11. As explained further below,
these proposed FOFs and COLS appear to relate to the issues raised in Oceanside's separate
appeal in Case No. PL-BOA-2024-000105, which concerns the Declaratory Order issued in
response to Oceanside's Petition for Declaratory Ruling. These proposed FOFs and COLS are
irrelevant to the BOA's decision to affirm the Declaratory Order at issue in this appeal, and
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would only serve to confuse and complicate the issues the Circuit Court will need to resolve on
further appeal.
B. THE PROPOSED DECISION AND ORDER DOES NOT COMPLY WITH HRS
9 1-12.
On August 18, 2025, the Circuit Court entered its Findings of Fact, Conclusions of Law,
and Order Vacating and Remanding the Board of Appeals Findings of Fact, Conclusions of Law,
Order in Civil No. 3CCV-25-0000025 ("Remand Order"). Exhibit A. In its Remand Order,
the Circuit Court ruled that Oceanside's appeal of the Declaratory Order was a contested case
hearing such that the BOA was required to comply with HRS § 91-12. Id. at 23, ¶15.
The Circuit Court further ruled that the BOA's prior Findings of Fact, Conclusions of
Law, Decision and Order dated December 16, 2024 ("Prior Decision and Order"), failed to
comply HRS § 91-12 because, inter alia: (a) "the BOA did not make reasonably clear findings
of fact sufficient to support its decision to affirm the Declaratory Order;" and (b) "the BOA did
not make sufficient conclusions of law to support its decision to affirm the Declaratory Order,
including in that it does not set forth the authorities relied upon to affirm the Declaratory Order
other than simply quoting HRS § 91-8, PD Rule 3, and the BOA's standard of review." Id. at 25,
¶26; id. at 26, ¶32. As a result, the Circuit Court vacated the BOA's Prior Decision and Order
and remanded Oceanside's appeal to the BOA to adopt a new decision and order that complies
with HRS § 91-12. Id. at 27.
HRS § 91-12 requires, in pertinent part, that "[e]very decision and order adverse to a
party to the proceeding, rendered by an agency in a contested case, shall be in writing or stated in
the record and shall be accompanied by separate findings of fact and conclusions of law."
(Emphasis added). The Hawaii Supreme Court has explained that "[t]he requirement that the
[agency] set out findings of fact and conclusions of law is no mere technical or perfunctory
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matter." Application of Hawaii Elec. Light Co., Inc., 60 Haw. 625, 641, 594 P.2d 612, 623
(1979) (emphasis added). Rather, "[t]he purpose of the statutory requirement that the agency set
forth separately its findings of fact and conclusions of law is to assure reasoned decision
making by the agency and enable judicial review of agency decisions. Id. at 641-42, 594 P.2d
at 623 (emphases added).
In order for the parties and courts to "be informed of the factual basis upon which the
[agency] relies, the [agency]'s findings of Ultimate facts must be supported by findings of
Basic facts which in turn are required to be supported by the evidence in the record." Id. at
642, 594 P.2d at 623 (emphasis added). Simply put, "[t]he parties and the court should not be
left to guess, with respect to any material question of fact, or to any group of minor matters
that may have cumulative significance, the precise finding of the agency." Application of
Hawaiian Tel. Co., 54 Haw. 663, 668, 513 P.2d 1376, 1379 (1973) (emphases added).
Unfortunately, the Proposed Decision and Order still does not satisfy HRS § 91-12.
While the Proposed Decision and Order includes some additional FOFs and COLS, it still fails to
provide the necessary insight into the BOA'S decision to affirm the Declaratory Order that the
Circuit Court found to be lacking in the BOA'S Prior Decision and Order. For example, the
inclusion of the FOFs and COLS that relate to Oceanside's separate appeal in Case No. PL-BOA-
2024-000105 does not provide any additional insight into the BOA'S decision-making in this
appeal. They therefore cannot serve as a basis to cure the deficiencies that led the Circuit Court
to vacate BOA'S Prior Decision and Order and remand Oceanside's appeal.
Setting aside those irrelevant FOFs and COLS, the remainder of the Proposed Decision
and Order still does not comply with HRS § 91-12 or sufficiently address the Circuit Court's
conclusions that the Prior Decision and Order did not include "reasonably clear findings of fact
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sufficient to support its decision to affirm the Declaratory Order" or "sufficient conclusions of
law to support its decision to affirm the Declaratory Order." Exhibit A at 25, ¶26; id. at 26, ¶32.
For example, the Proposed Decision and Order's new FOFs vaguely describe that testimony and
exhibits were received, but generally dismisses both without providing what the Circuit Court
deemed "the necessary insight into how the BOA reconciled the evidence received as part of the
contested case hearing." ' See, e.g., Proposed FOF 12 ("The testimony [of Oceanside's
representative and the Planning Director] was irrelevant to the determination as to whether the
Planning Director abused his authority and/or discretion."); Proposed FOF 13 ("The exhibits did
not show the [Declaratory] Order was issued in error or an abuse of discretion.").
Likewise, the Proposed Decision and Order's COLS do not cite a single legal authority
outside of general statutory provisions and rules related to petitions for declaratory ruling and
standards of review, including any citations to the relevant case law, which the Circuit Court
specifically found to be missing from the Prior Decision and Order. See Exhibit A at 26, ¶32
("[T]he BOA did not make sufficient conclusions of law to support its decision to affirm the
Declaratory Order, including in that it does not set forth the authorities relied upon to affirm the
Declaratory Order other than simply quoting HRS § 91-8, PD Rule 3, and the BOA's standard of
review."). At bottom, the Proposed Decision and Order fails to cure the deficiencies that caused
the Circuit Court to vacate the Prior Decision and Order and remand Oceanside's appeal.
III. SPECIFIC OBJECTIONS
A. PROPOSED FINDINGS OF FACT
Oceanside submits the following specific objections to the BOA's proposed findings of
fact:
1 See Exhibit A at 26,¶30 ("None of the FOFs provide the Court with the necessary insight into
how the BOA reconciled the evidence received as part of the contested case hearing.").
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4906-3356-8652.1.051730-00058
Proposed Finding of Fact Objections
1. On February 7, 2024, C&J Coupe Family n/a
Limited Partnership ("Intervenor") filed
its Petition for Declaratory Ruling, and on
March 27, 2024, filed its Supplement to
Petition for Declaratory Ruling,
(collectively, "Petition")requesting
declaratory rulings from the Director-of
the Planning Department of the County of
Hawaii ("Planning Director").
2. On April 29, 2024, the Planning Director n/a
issued Zenda Kern, Planning Director,
Countv of Hawai`i's Declaratory Order in
the Matter of C&J Coupe Family Limited
Partnership, Petitioner, Docket No. 24-
0001 ("Order") in response to the Petition.
3. On May 28, 2024, 1250 Oceanside, LLC Oceanside objects to Proposed FOF 3 on the
("Appellant") filed its General Petition for grounds that it mischaracterizes and misstates
Appeal of Decisions by Planning Director the grounds for Oceanside's appeal of the
or Public Works Director ("Appeal") with Declaratory Order.
the Board of Appeals, County of Hawaii As reflected in its General Petition for Appeal
("Board") appealing the Planning of Decisions by Planning Director or Public
Director's issuance of the Order. Works Director filed on May 28, 2024
Appellant argued the following points of ("petition for Appeal"), Oceanside appealed
error: the Declaratory Order on the grounds that:
a. Planning Director-erred by not a. The Director erred by ruling that
interpreting Ord. 96-7, standing Ordinance No. 96-7 requires the
alone, because no dedication dedication of three roadways because no
requirement is contained within Ord. such requirement is contained within
96-7; Ordinance No. 96-7;
b. Planning Director erred by seemingly b. The Director erred by seemingly
qualifying the 2010 dedication of the qualifying the 2010 dedication of the
Mauka Haleki`i Extension and Mauka Haleki`i Extension and
corresponding satisfaction of the corresponding satisfaction of the
Ordinances' conditions related to the Ordinances' conditions related to the
roadway; and roadway; and
c. Planning Director erred by ruling that C. The Director erred by ruling that the
the Makai Haleki`i Extension and Makai Haleki`i Extension and
Connector Road have not been Connector Road have not been
constructed as required under the constructed as required under-the
Ordinances because (1)both Ordinances because 1 both roadways
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roadways were constructed pursuant were constructed pursuant to plans
to plans approved by DPW and are approved by DPW and are covered by
covered by the Variance, and(2) the the Variance, and(2) the Director lacks
Planning Director lacks authority to authority to rule upon the sufficiency of
rule upon the sufficiency of the the roadways for dedication.
roadway for dedication.
The grounds for Oceanside's appeal of the
Declaratory Order to the BOA are also set forth
in the Circuit Court's Remand Order. See
Exhibit A at 14,¶29.
4. Appellant's Appeal sought to modify the n/a
Order or have the Order remanded to the
Planning Director to correct alleged
errors.
5. On July 3, 2024, Intervenor filed its n/a
Petition to Intervene in General Petition
for Appeal of'Decision by the Planning
Director("Petition to Intervene").
6. On July 15, 2024, Appellant filed its n/a
Position Statement on Petition to
Intervene in General Petition for Appeal
of Decision by Planning Director, dated
July 3, 2024
7. On July 17, 2024, the County filed its n/a
County of Hawai`i Planning Director's
Statement of No Position to Petition to
Intervene in General Petition for Appeal
of Decision of Planning Director, dated
July 3, 2024.
8. A hearing on the Petition to Intervene n/a
was held on August 9, 2024, at which
the Board approved the Petition to
Intervene.
9. On October 11, 2024, the Board heard Oceanside objects to Proposed FOF 9 on the
oral arguments and presentation of grounds that it does not specify that the BOA's
evidence, including exhibits, and hearing on October 11, 2024, was a contested
testimony on the Appeal at the West case hearing pursuant to BOA Rule 8-11, Part 3
Hawai`i Civic Center with all Board of the BOA Rules, and HRS ch. 91. This was
Members present in person. Michael confirmed by the Circuit Court in its Remand
Kaleihoku Vitousek, Manager of Land Order, which rejected the County's argument
and Development of 1250 Oceanside, that Oceanside's appeal to, and subsequent
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LLC, Derek B. Simon, Esq., and Ian R. hearing before, the BOA was not a contested
Wesley-Smith, Esq. appeared on behalf case. See Exhibit A at 22-23, ¶¶]0-15.
of Appellant. Zendo Kem, Hawaii
County Planning Director and E. Britt Oceanside further objects to Proposed FOF 9 on
Bailey, Deputy Corporation Counsel, the grounds that it fails to reflect that Deputy
appeared on behalf of the Planning Corporation Counsel Jean K. Campbell, Esq.
Department. Charles Coupe of C&J also appeared on behalf of the Planning
Coupe Family Limited Partnership, Director. Among other things, Ms. Campbell
Kenneth R. Kupchak, Esq., and Mark M. sat at the counsel table with Ms. Bailey during
Murakami, Esq. appeared on behalf of the hearing.
Intervenor.
Oceanside also objects to Proposed FOF 9 on
the grounds that Charles Coupe did not appear
on behalf of Coupe, although he may have been
in attendance in the audience.
10. Appellant's witness, Michael Kaleihoku Oceanside objects to Proposed FOF 10 on the
Vitousek, testified that Planning grounds that it misstates and mischaracterizes
Director's declaratory order did not Mr. Vitousek's testimony and the basis for
provide enough or specific information Oceanside's appeal of the Declaratory Order.
for Appellant to understand how to
comply with its compliance obligations As the Circuit Court found in its Remand
under Ord. 96-7 and Ord. 96-8. Order, Oceanside's appeal to the BOA"did not
only concern the Declaratory Order lacking `the
level of clarity desired by' Oceanside." See
Exhibit A at 25-26, ¶29.
11. Planning Director testified, and his Oceanside objects to Proposed FOF 11 to the
testimony was consistent with the extent that it finds that"Planning Director
contents of his Order. Planning Director testified he exercised discretion in not
testified he exercised discretion in not answering some questions posed by the
answering some questions posed by the petition" as this proposed finding appears
petitions. Planning Director's order and completely unrelated to this appeal. The
testimony did not"qualify" the Planning Director's refusal to issue declaratory
dedication of the Mauka Haleki`i rulings on certain questions is at issue in the
Extension in relation to the satisfaction separate appeal under Case No. PL-BOA-2024-
of the Ord. 96-7 and 96-8 requirements 000105, which concerns Oceanside's Petition
as argued by Appellant. Planning for Declaratory Ruling and a different
Director acknowledged in his Order that Declaratory Order.
the Mauka Haleki`i Extension was
accepted by County Council Resolution Oceanside further objects to Proposed FOF 11
317-12 after input from Department of on the grounds that it is contrary to the
Public Works. Planning Director substantial evidence in the record, which
correctly identified that he had no establishes that the Planning Director
authority to interpret the acceptance of improperly qualified the dedication of the
the dedication of the road by County Mauka Haleki`i Extension and Oceanside's
corresponding satisfaction of the Ordinances
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Council or Department of Public Works. through his use of the phrases "to the extent"
and"effectively dedicated" in the Declaratory
Order.
This is not some fictional issue that Oceanside
has appealed. In its briefing before the BOA,
Coupe sought to exploit the language in the
Planning Director's ruling, arguing that"[t]he
Director wisely qualified his ruling regarding
the Mauka Haleki`i Extension"because the
"qualification is due to the fact that the Mauka
Haleki`i Extension was not effectively
dedicated." (Emphasis added).
Oceanside further objects to Proposed FOF 14
on the grounds that it is vague and ambiguous
as to what is meant by "correctly identified"
and"authority to interpret the acceptance of the
dedication . . . ."
12. Neither the testimony of Mr. Vitousek Oceanside objects to Proposed FOF 12 to the
nor the Planning Director needed extent that it finds that"eliciting testimony
reconciliation with the content of the showing Planning Director did not answer
Order. The testimony was irrelevant to specific questions or provided additional
the determination as to whether the information that was not requested did not show
Planning Director abused his authority the Planning Director abused his authority
and/or discretion. Nothing in Planning and/or discretion," as these purported findings
Department's Rules of Practice and appears completely unrelated to this appeal.
Procedure ("PRPP") Rule 3-1 or Chapter The Planning Director's (a) failure and/or
91, Hawai`i Revised Statutes,requires refusal to issue declaratory rulings on certain
Planning Director to issue a declaratory questions and(b) his sua sponte issuance and/or-
ruling to the satisfaction of the petitioner erroneous inclusion of declaratory rulings in a
for said declaratory ruling. Planning different Declaratory Order are at issue in the
Director was not required to inform separate appeal under Case No. PL-BOA-2024-
Appellant of their [sic] legal obligations 000105, which concerns Oceanside's Petition
with respect to the issues raised in the for Declaratory Ruling.
Petition for a Declaratory Ruling.
Likewise, eliciting testimony showing Oceanside further objects to Proposed FOF 12
Planning Director did not answer- to the extent that it finds that the "Planning
specific questions or provided additional Director was not required to inform Appellant
information that was not requested did of their [sic] legal obligations with respect to
not show the Planning Director abused the issues raised in the Petition for a
his authority and/or discretion. Declaratory Ruling." It is unclear what exactly
is meant by this proposed finding, but
"Appellant" (i.e., Oceanside)was not the
etitioner for the Declaratory Order at issue in
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this appeal — that was Coupe.
Oceanside also objects to Proposed FOF 12 to
the extent it finds that"[n]othing in Planning
Department's Rules of Practice and Procedure
("PRPP") Rule 3-1 or Chapter 91, Hawaii
Revised Statutes, requires Planning Director to
issue a declaratory ruling to the satisfaction of
the petitioner for said declaratory ruling."
Although it is not clear what is meant by"to the
satisfaction of the petitioner," Oceanside was
not the "petitioner"for the Declaratory Order at
issue in this appeal. in any event, the
Declaratory Order is an appealable order
subject to review by both the BOA and the
courts pursuant to the BOA Rules and HRS §
91-14.
Oceanside further objects to Proposed FOF 12
to the extent that it finds that"[n]either the
testimony of Mr. Vitousek nor the Planning
Director needed reconciliation with the content
of the Order," as it is contrary to the Circuit
Court's Remand Order, which recognized that
the BOA was required to reconcile the evidence
received at the contested case hearing. See
Exhibit A at 26,¶30 ("None of the FOFs
provide the Court with the necessary insight
into how the BOA reconciled the evidence
received as part of the contested case
hearing.").
13. The exhibits did not show the Order was Oceanside objects to Proposed FOF 13 on the
issued in error or an abuse of discretion. grounds that it is contrary to the substantial
evidence in the record, including the exhibits,
which demonstrates that the Planning Director
committed numerous errors and abused his
discretion.
Because Proposed FOF 16 fails identify any
specific exhibits or specify how the exhibits
purportedly did not show that the Planning
Director erred or abused his discretion,
Oceanside incorporates by reference its Petition
for Appeal, its Consolidated Hearing Brief filed
October-4, 2024 ("Hearing Brief'), the
evidence in the record (including exhibits and
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testimony), and argument adduced at the
contested case hearing.
14. Planning Director did not err, and acted Oceanside objects to Proposed FOF 14 on the
within his discretion in refusing to grounds that it appears completely unrelated to
answer on the effect of Ord. 96-7 alone, this appeal. The Planning Director's failure
as requested by Appellant, when Ord. and/or refusal to answer Oceanside's request for
96-8 was also applicable to the Hokulea him to determine whether Ordinance No. 96-7
development and enacted at the same requires the dedication of certain roadways is at
time. issue in the separate appeal under Case No. PL-
BOA-2024-000105, which concerns
Oceanside's Petition for Declaratory Ruling.
This appeal concerns the Planning Director's
erroneous declaratory ruling that dedications
are required under Ordinance No. 96-7.
15. The Planning Director correctly Oceanside objects to Proposed FOF 15 on the
identified questions that sought a review grounds that it appears completely unrelated to
of actions of the Hawaii County this appeal. The Planning Director's
Council, and matters under the determinations that certain requested
jurisdiction of a different department, declaratory rulings "sought a review of actions
Department of Public Works. of the Hawaii County Council, and matters
under the jurisdiction of a different department,
Department of Public Works" are at issue in the
separate appeal under Case No. PL-BOA-2024-
000105, which concerns Oceanside's Petition
for Declaratory Ruling. The Planning
Director's determination that he cannot answer
certain requested declaratory rulings on the
grounds set forth in Proposed FOF 15 is not at
issue in this appeal.
16. The Planning Director did not rule that Oceanside objects to Proposed FOF 16 on the
any roadway is not constructed as grounds that it is contrary to the substantial
required. The Planning Director ruled evidence. in the Declaratory Order, the
the roadways in question must be Planning Director ruled that"[i]n order to
constructed to a condition approved by comply with the Ordinances, Oceanside must
DPW, which does not take a position on construct the Makai Haleki`i Extension and
whether or not any roadway is or was Connector Road to a condition approved by
currently approved by DPW, and instead DPW — ." (Emphasis added). The Planning
leaves those determinations to DPW and Director did so despite the fact that: (a) both
the Hawai'i County Council. roads were constructed as part of Phase I of
Hokuli`a, which received final subdivision
approval in 1999 based on construction plans
reviewed and approved by DPW; (b) both roads
are subject to the Variance, which was granted
b the Planning Department; and c the
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Planning Director testified that both roads are
already constructed and exist today.
The Planning Director's ruling in the
Declaratory Order that Oceanside "must
construct"both roadways "to a condition
approved by DPW" directly contradicts the
purported finding in Proposed FOF 16 that the
Planning Director did"not take a position on
whether or not any roadway is or was currently
approved by DPW."
17. The Board finds that the Order Oceanside objects to Proposed FOF 17 on the
addressed the questions raised by the grounds that it is vague and ambiguous as to
Appellant in its appeal, even if the what is meant by "the Order addressed the
Planning Director did not provide the questions raised by [Oceanside] in its appeal."
level of clarity or specifics desired by Oceanside's appeal did not"raise" questions
the Appellant. that were purportedly addressed by the
Declaratory Order. The questions "addressed"
in the Declaratory Order-at issue in this appeal
were raised in Coupe's Petitions for Declaratory
Ruling. Oceanside appealed the Declaratory
Order because the Planning Director made
several errors in the Declaratory Order.
Oceanside further objects to Proposed FOF 17
on the grounds that it misstates and
mischaracterizes the grounds for Oceanside's
appeal, which did not simply concern a lack
"clarity or specifics desired by the
[Oceanside]." This was confirmed by the
Circuit Court in its Remand Order. See Exhibit
A at 25-26,¶29.
B. PROPOSED CONCLUSIONS OF LAW
Oceanside submits the following specific objections to the BOA'S proposed conclusions
of law:
Proposed Finding of Fact Objections
1. Hawai`i Revised Statues Section 91-8 n/a
allows that:
Any interested person may etition an
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agency for a declaratory order as to the
applicability of any statutory provision
or of any rule or order of the agency.
Each agency shall adopt rules
prescribing the form of the petitions and
the procedure for their submission,
consideration, and prompt disposition.
Orders disposing of petitions in such
cases shall have the same status as other
agency orders.
2. Planning Department's Rules of Practice n/a
and Procedure ("PRPP") Rule 3-1(a)
states:
(a) On petition of an interested person,
the Director may issue a declaratory
order as to the applicability of any
statutory provision, ordinance, or of any
rule or order of the Director or the
Department.
3. PRPP Rule 3-1(c) states: n/a
(c)Within sixty days after the
submission of a petition for declaratory
ruling, the Director shall either deny the
petition in writing, stating the reasons
for such denial or issue a declaratory
order on the matters contained in the
petition, or set the matter for a public
hearing, as provided in Sections 3-2, 3-3
and 3-4 of these rules.
4. PRPP Rule 3-1(a) gives the Planning Oceanside objects to Proposed COL 4 on the
Director the discretion to "issue a grounds that it mischaracterizes the nature and
declaratory order as to the applicability extent of the Planning Director's authority and
of any statutory provision, ordinance, or discretion when responding to petitions for
any rule or order of the Director or the declaratory rulings pursuant to Rule 3-1 of the
Department." Planning Department Rules of Practice and
Procedure ("PD Rules").
The Hawaii Supreme Court has explained that,
"[b]y empowering agencies generally with the
authority to adopt rules regarding the
manner in which declaratory ruling petitions
shall be considered and disposed of, the
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4906-3356-8652.1.051730-00058
legislature has granted agencies discretion with
regard to the consideration of declaratory
rulings. The boundaries of that discretion,
which normally are defined by the legislature,
may in such cases be established with
reference to the agency rules themselves, or
by reading the statute and the agency rules
in tandem." Citizens Against Reckless Dev. v.
Zoning Bd. of Appeals of City & Cnty. of
Honolulu, 114 Haw. 184, 194-95, 159 P.3d 143,
153-54 (2007). In other words, the Planning
Director's discretion in considering and
disposing of petitions for declaratory rulings is
circumscribed by PD Rule 3, and when the
Planning Director acts outside of the boundaries
of PD Rule 3, he commits cleat-error and acts
without discretion, arbitrarily and capriciously,
and in violation of the law.
5. PRPP Rule 3-1(a) does not require the Oceanside objects to Proposed COL 5 on the
Planning Director to answer all grounds that it appears completely unrelated to
questions posed in a petition once the this appeal. The Planning Director's failure
Planning Director decides to issue a and/or refusal to issue declaratory rulings on
declaratory ruling on a petition. The certain questions is at issue in the separate
Planning Director has discretion in the appeal under Case No. PL-BOA-2024-000105,
manner and method in addressing which concerns Oceanside's Petition for
questions posed for a declaratory ruling. Declaratory Ruling. It is therefore unclear what
relevance, if any, the proposed finding that
"PRPP Rule 3-1(a) does not require the
Planning Director to answer all questions posed
in a petition" has in this appeal.
This appeal likewise does not concern "the
manner and method" in which the Planning
Director answered the questions posed in
Coupe's Petitions for Declaratory Ruling; this
appeal concerns numerous errors the Planning
Director made in the Declaratory Order.
6. PRPP Rule 3-1(c)provides when the Like other Proposed FOFs and COLS discussed
Planning Director shall respond to the supra, Proposed COL 6 appears completely
request for a declaratory order. unrelated to this appeal, and is instead related to
the issues raised by Oceanside in its separate
appeal under Case No. PL-BOA-2024-000105,
which concerns Oceanside's Petition for
Declaratory Ruling.
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That said, Oceanside objects to Proposed COL
6 on the grounds that PD Rule 3-1(c) is not
simply a"timing"rule. Although PD Rule 3-
1(c) does set a deadline for the Planning
Director to respond to petitions for declaratory
ruling, it also constrains the Planning Director's
discretion by limiting the ways in which the
Planning Director can respond. By its plain
terms, PD Rule 3-1(c)mandates that the
Planning Director respond in one of three ways:
(a) "deny the petition in writing, stating the
reasons for such denial;" (b)"issue a declaratory
order on the matters contained in the petitions;"
or (c) "set the matter for a public hearing, as
provided in Sections 3-2, 1 and 1 of the
PD Rules. Presumably, the Planning Director
can also respond through some combination of
the three.
7. Hawai`i County Code ("HCC") Section n/a
25-2-23 [Standard of Review],provides
that:
The board of appeals may affirm the
decision of the director, or it may
reverse or modify the decision or
remand the decision with appropriate
instructions if based upon the
preponderance of evidence the board
finds that:
(1) The director erred in its decision; or
(2) The decision violated this chapter-or
other applicable law; or
(3) The decision was arbitrary or
capricious or characterized by an abuse
of discretion or clearly unwarranted
exercise of discretion.
8. Board of Appeals Rules of Practice and n/a
Procedures, Rule 8-4(4)requires that a
general petition for an appeal must
include:
15
4906-3356-8652.1.051730-00058
A statement explaining:
(A)How the decision appealed from
violates the law; or
(B) How the decision appealed from is
clearly erroneous; or
(C) How the decision appealed from was
arbitrary and capricious, or characterized
by an abuse of discretion or clearly
unwarranted exercise of discretion.
9. The Planning Director acted within his Like other Proposed FOFs and COLS discussed
jurisdiction and discretion in the manner supra, Proposed COL 9 appears completely
in which the Planning Director unrelated to this appeal, and instead is related to
addressed the Appellant's posed issues raised by Oceanside in its separate appeal
questions. The Planning Director was under Case No. PL-BOA-2024-000105, which
not required to respond to the questions concerns Oceanside's Petition for Declaratory
in the form or format posed by the Ruling.
Appellant.
Specifically, the Planning Director did not
address "Appellant's" (or Oceanside's) "posed
questions" in the Declaratory Order at issue in
this appeal —those questions were posed by
Coupe in its Petitions for Declaratory Ruling.
The issue of whether the Planning Director was
"required to respond to the questions in the
form or format posed by the Appellant" is
likewise not at issue in this appeal because the
questions addressed in the Declaratory Order at
issue in this appeal were posed by Coupe, not
Oceanside.
10. The Planning Director correctly Oceanside objects to Proposed COL 10 on the
identified issues and questions outside grounds that it is contrary to the substantial
the Planning Director's jurisdiction and evidence in the record and the law. In the
discretion. Declaratory Order, the Planning Director
exceeded his authority and jurisdiction by, inter
alia, ruling that the Makai Haleki`i Extension
and Connector Road have not been constructed
as required under Ordinance No. 96-7 and
Ordinance No. 96-8.
11. The Order sufficiently addressed the Like other Proposed FOFs and COLS discussed
questions raised by the Appellant even supra, Proposed COL 11 appears completely
though the Order did not reflect the unrelated to this appeal, and instead is related to
16
4906-3356-8652.1.051730-00058
specifics desired by the Appellant. issues raised by Oceanside in its separate appeal
under Case No. PL-BOA-2024-000105, which
concerns Oceanside's Petition for Declaratory
Ruling. Specifically, the Declaratory Order at
issue in this appeal did not address "the
questions raised by the Appellant" (i.e.,
Oceanside). Those "questions"were raised by
Coupe, not Oceanside.
Oceanside further objects to Proposed COL 11
on the grounds that it misstates the grounds for
Oceanside's appeal of the Declaratory Order.
As the Circuit Court found in its Remand
Order, Oceanside's appeal to the BOA"did not
only concern the Declaratory Order lacking `the
level of clarity desired by' Oceanside." See
Exhibit A at 25-26, ¶29.
12. Having considered the testimony and For the reasons set forth in Oceanside's Petition
evidence provided, including the for Appeal and its Hearing Brief, as well as the
submitted exhibits, the Board evidence, testimony, and argument adduced at
unanimously concluded that in issuing the hearing, all of which is hereby incorporated
his Order, the Planning Director in by reference, Oceanside objects to Proposed
issuing the order did not clearly err, was COL 12 on the grounds that the BOA's decision
not arbitrary or capricious, nor did he to affirm the Declaratory Order goes against the
abuse his discretion. Therefore, the weight of the evidence and applicable law, and
Board affirmed Zen do Kern, Planning constitutes reversible error.
Director, County of Hawai`i's
Declaratory Order in the Matter of C & J
Coupe Family Limited Partnership,
Petitioner, Docket No. 24-0001.
DATED: Honolulu, Hawaii, February 9, 2026.
ls/Derek B. Simon
PATRICK K. WONG
DEREK B. SIMON
IAN R. WESLEY-SMITH
Attorneys for
1250 OCEANSIDE, LLC
17
4906-3356-8652.1.051730-00058
Electronically Filed
THIRD CIRCUIT
3CCV-25-0000025
18-AUG-2025
09:56 AM
Dkt. 175 FOF
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAI'I
1250 OCEANSIDE, LLC, CIVIL NO. 3CCV-25-0000025
Appellant, AGENCY DOCKET NO. PL-BOA-
2024-000104
vs.
FINDINGS OF FACT,
BOARD OF APPEALS, COUNTY OF CONCLUSIONS OF LAW, AND
HAWAII; ET AL., ORDER VACATING AND
REMANDING THE BOARD OF
Appellees, APPEALS FINDINGS OF FACT,
CONCLUSIONS OF LAW AND
ORDER
Judge: Hon. Kauanoe A. D. Jackson
Oral Argument Date: June 10, 2025
Oral Argument Time: 2:30 p.m.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER VACATING AND
REMANDING THE BOARD OF APPEALS FINDINGS OF FACT CONCLUSIONS OF
LAW, AND ORDER
This appeal is taken from the Findings of Fact, Conclusions of Law, and Decision
and Order("Decision and Order"that the Appellee County of Hawai'i Board of Appeals
(the "BOA") entered on December 16, 2024, pursuant to Section 91-14, Hawai'i Revised
EXHIBIT A
Statutes ("HRS"). This appeal came for oral argument on June 10, 2025, at 2:30 p.m.
before the Honorable Kauanoe A. D. Jackson, Judge of the above-entitled Court.
Michael Kaleihoku Vitousek, Manager of Land and Development of 1250 Oceanside
LLC, Patrick K. Wong, Esq., and Derek B. Simon, Esq. (via Zoom) appeared for
Appellant 1250 OCEANSIDE, LLC ("Oceanside"). Deputy Corporation Counsel ❑emetri
G. Lametti appeared for Appellee BOARD OF APPEALS OF THE COUNTY OF
HAWAI'I ("BOA") and Appellee-Appellee JEFFREY DARROW, PLANNING DIRECTOR,
COUNTY OF HAWAH ("Director", and collectively with the Board "County Appellees").
Kenneth R. Kupchak Esq., Mark M. Murakami, Esq., and Katie T. Pham, Esq. (via
Zoom) appeared for Appellee-Appellee C & J COUPE FAMILY LIMITED
PARTNERSHIP ("Coupe").
This Court has reviewed and considered the parties' briefs and filings, the
Record on Appeal ("ROA"), and the parties' oral arguments. Based on the foregoing, the
Court hereby enters the following Findings of Fact and Conclusions of Law VACATING
AND REMANDING the BOA's Decision and Order in PL-BOA-2024-000104 for
noncompliance with HRS § 91-12.
FINDINGS OF FACT
The Court makes the following findings of fact. To the extent that these findings
of fact contain conclusions of law, they shall be so considered.
Factual Background
1. Hokuli'a is a master-planned community located in Kealakekua, Hawai'i
("Project") originally developed by 1250 Oceanside Partners ("Original Developer"). See
2
Dkt. 17, ROA at 0019 (Docket No. 24-0001 Declaratory Order by Zendo Kern, Planning
Director)
2. The Original Developer obtained County of Hawaii ('County") Ordinance
Nos. 96-7 and 96-8 (collectively, "Ordinances"), for the rezoning of 1550 acres to allow
for the Project's development, among other approvals. Id.; ❑kts. 17-19, RDA at 0040-
0099.
3. Following enactment of the Ordinances, the Original Developer entered
into a Development Agreement with the County, dated April 20, 1998 . Dkt. 17, ROA at
0019-0020.
4. The Development Agreement included requirements relating to the
acquisition of land, the construction of a bypass road, the development of a shoreline
park, and the donation of a permanent right of way to the park. The Development
Agreement, set forth, inter alia, that in lieu of actual construction of infrastructure and
roadway improvements, the Original Developer could make assurances under the
Development Agreement such construction would occur and the Original Developer
would post bonds in favor of the County ensuring such construction. Dkt. 17, ROA at
0019-0020; Dkts. 21-22, ROA at 0187-0231.
5. In exchange, the Original Developer would receive final subdivision
approval prior to actual construction of such improvements. Id. The Development
Agreement has not expired as it has a term of thirty years from the date of the resolution
enacting it by the Hawaii County Council. See Dkt. 22, RDA at 203.
6. On April 29, 2010, the County sent notice to the Original Developer
detailing the Original Developer's material breach of the Development Agreement and
subdivision agreements due to its failure to timely construct the required improvements
and the invalidity of the bonds it provided to the County. Dkt. 17, ROA at 0033-0039.
7. On January 31, 2011, the County's Planning Department issued Variance
10-027 at the Original Developer's request, providing, inter alia, variances from Chapter
23 of the Hawai'i County Code ("HCC") related to the construction of the Mauka Haleki'i
Extension, the Makai Haleki'i Extension, and the Connector Road (all defined below)
("Variance 10-027"). Dkt. 32, ROA at 0617-0624. Variance 10-027 has not been the
subject of an appeal or other subsequent legal challenge (except to the extent it is at
issue in the 2023 Lawsuit (defined below)).
8. In 2012, 1250 Oceanside, LLC ("Oceanside," or"Appellant") acquired the
Original Developer's outstanding loans and took over the Project. Dkt. 17, ROA at 0021.
Over the years, the Mamalahoa Bypass Road ("Bypass"), Haleki'i Street and portions of
subdivision improvements were constructed. The property underlying the Bypass was
conveyed to the County and the Hawaii County Council accepted the extension of
Haleki'i Street to the mauka side of the Bypass ("Mauka Haleki'i Extension") through
dedication pursuant to County Resolution No. 317-12, adopted November 9, 2012. Id.
9. To date, the extension of Haleki'i Street through the Project ("Makai
Haleki'i Extension") and the roadway stub-outs running north-south from the Makai
Haleki'i Extension to the adjacent north and south properties ("Connector Road," and
collectively with the Makai Haleki'i Extension, sometimes referred to herein as the
"Roadways") have not been dedicated to the County. Dkt. 17, ROA at 0030; Dkt. 146,
Appellant 1250 Oceanside, LLC's Opening Brief("OB"), at 7.
Coupe's Original Lawsuit
4
10. On March 31, 2023, Coupe filed suit in the Circuit Court of the Third
Circuit, State of Hawai'i, entitled C & J Coupe Family Limited P'Ship v. County of
Hawaii, Civil No. 3CCV-23-0000123 ("2023 Lawsuit"), alleging Oceanside failed to
comply with, and the County failed to enforce, the Ordinances, which require dedication
of the Makai Haleki'i Extension and the Connector Road to the County.
11, On September 15, 2023, the Circuit Court stayed the 2023 Lawsuit, and
required Coupe to seek a declaratory ruling from the County Planning Director
regarding Oceanside's compliance with the Ordinances and the Development
Agreement. Dkt. 49, ROA at 1266 (Order Granting in Part County Defendants' Motion to
Dismiss the Complaint for Declaratory and Injunctive Relief, filed March 31, 2023 [Dkt.l],
Filed March 25, 2023 [Dkt. 21], and Staying Proceedings Pending Referral to County of
Hawai'i Planning Department, filed January 19, 2024].
Coupe's Petition for a Declaratory Ruling
12. Coupe filed a Petition for a Declaratory Ruling ("Initial Petition") with the
Planning Department on February 7, 2024, and supplemented that petition by filing with
the Planning Department a Supplement to Petition for Declaratory Ruling, Submitted on
March 27, 2024 ("Supplemental Petition" and, collectively with the Initial Petition, the
"Petition"). Dkts. 19-20, ROA at 0101-0125; Dkts. 35-37, ROA at 0795-0806,
respectively.
13. In the Initial Petition, Coupe posed ten (10) requests to the Director. Dkts.
19-20, ROA at 0101-0125.
14. The requests in the Initial Petition were:
5
1) Determine whether the Planning Director has the authority to determine
— under the HRS, Hawaii Charter, County Code, and the Development
Agreement—whether Oceanside is currently in compliance with the terms
of the Development Agreement.
2) Determine whether the Planning Director has the authority — under
HRS, Hawaii Charter, County Code, and Development Agreement—to
determine material breaches of the Development Agreement.
• 3) Determine which county official, if any, has the power to excuse a
breach of the Development Agreement.
• 4) Whether Oceanside has, within the timeframe allotted, completed the
following: a) designed and constructed/built the roads required under the
Development Agreement and Incorporated Ordinances; and b) dedicated
the roads required under the Development Agreement and Incorporated
Ordinances.
5) Whether Resolution No. 317-12 ("Resolution") and the Variance 10-027
("Variance") improperly amended the Development Agreement and
Incorporated Ordinances.
6) Whether Variance is unlawful, impermissible, and not authorized under
Hawaii law.
■ 7) Whether Petitioner received notice of the Variance, as required under
the express dictate of County law.
6
8) Whether obligations in a development agreement can be excused by
Variance under the Hawaii Constitution, HRS, Hawaii Charter, County
Code, and Development Agreement.
9) Determine whether the Resolution, as an improper attempt to amend
the Development Agreement and Incorporated Ordinances, required
notice to Petitioner which was not provided.
■ 10) Determine whether the failures to provide notice of the Variance and
Resolution were violations of Petitioner's right to due process of law.
Id.
15. In the Supplemental Petition, Coupe posed nineteen (19) additional
requests to the Director. ❑kts. 36-37, ROA at 0794-0806.
16. The requests in the Supplemental Petition were:
1) Petitioner requests that Planning determine and declare whether
Planning has primary jurisdiction to render decisions on the following
issues: interpretation of Development Agreement; interpretation,
administration, and enforcement of Ordinances and Conditions; (and)
validity/propriety of Variance No. VAR 10 027 ("Variance") and whether
final decision on Variance has been made.
■ 2) If Planning determines that it has authority to render decisions on the
issues listed above, Petitioner requests that Planning identify the source of
its authority.
7
3) Petitioner requests that Planning Director or Planning specifically
identify those elements "well understood" by Planning that determine
whether Oceanside is violating County law.
+ 4) Petitioner requests that Planning identify the codes, rules, and
requirements of Hawaii law applicable to the issues in this matter, and
identify Planning's final decision regarding Oceanside's compliance with or
violation of the same.
5) Petitioner requests that Planning identify its final agency action on the
applicability of Ordinances and Conditions to Oceanside's property."
• 6) "Petitioner requests that Planning state its interpretation of Ordinances
and Conditions as applied to Oceanside's property.
• 7) Petitioner requests that Planning indicate its final agency action
determining Oceanside's obligations under and compliance with,
Ordinances and Conditions.
■ 8) Petitioner requests that Planning identify its final agency action for
Oceanside's alleged violations of Conditions.
9) Petitioner requests that Planning determine whether the construction
standards and deadlines for the roadways are/were within the discretion of
the County.
10) Petitioner requests that Planning identify whether there is any
ambiguity regarding the applicability of the dedication requirements set
forth in the Ordinances and whether this allows County and Oceanside to
8
present extrinsic evidence at the declaratory ruling hearing showing
County Council's intent regarding Ordinances.
• 11) Petitioner requests that Planning state whether Planning has rendered
a final decision on Variance.
• 12) If Planning determines that it has rendered a final decision on
Variance, Petitioner requests that Planning identify the date such decision
was rendered.
• 13) If Planning determines that it has not rendered a final decision on
Variance, Petitioner requests that Planning issue its final decision on
Variance.
• 14) Petitioner requests that Planning declare whether its approval of a
variance application is a "final agency action" that can he appealed.
Conversely, if Planning determines that such decisions are not ripe for
appeal, Petitioner requests that Planning provide an explanation and the
legal basis therefor.
■ 15) Petitioner requests that Planning identify the appropriate appellate
tribunal to review Planning's decisions on variances.
15) Petitioner requests that Planning identify whether Oceanside was
required to 'provide roadway stub-outs...to provide connections between
the [Hokuli'a Development Project] and its adjacent north and south
boundaries.
9
■ 17) Petitioner requests that Planning identify whether these roadway stub-
outs were required so that the future connections could provide access
between properties adjacent to the Hokuli'a Development Project.
• 18) Petitioner requests that Planning identify whether Oceanside's
requirement to build the "roadway stub-outs" is dependent on the
development of Petitioner's property.
r 19) Petitioner requests that Planning state whether it will bring a zoning
enforcement action against Oceanside.
Id.
17. Oceanside filed its own Petition for Declaratory Ruling on February 27,
2024 that is not the subject of this appeal but it a related case.
18. Rule 3-1(a) of the Planning Department's Rules of Practice and Procedure
("PRPP") provides: u(o]n the petition of an interested person, the Director may issue a
declaratory order as to the applicability of any statutory provision, ordinance, or of any
rule or order of the Director or the Department."
The Director's Declaratory Order
19. The Planning Director issued a Declaratory Order ("Declaratory Ruling")
on Coupe's Petition on April 29, 2024. Dkt. 17, ROA at 0019-0032.
20. The Declaratory Order responded to Coupe's requests in its initial petition
as follows:
• Request 1: The Director declined to answer this request because it did not
designate any specific provision, rule, or order of the Director or
Department as is required under PRPP Rule 3-1(b)(3). It also improperly
10
sought an interpretation of the Development Agreement, which is not a
Department order. Id., at 0026.
• Reauest 2: The Director declined to answer this request because it
improperly sought an interpretation of the Development Agreement, which
is not a Department order. Id., at 0027. It also sought review or affirmance
of a past Department action that the Director has no control over and/or is
no longer appealable. Id.
■ Request 3: The Director declined to answer this request because it did not
designate any specific provision, rule, or order of the Director or
Department as is required under PRPP Rule 3-1(b)(3). Id., at 0026.
• Request 4: The Director agreed to respond to this request to the extent
that it requested an interpretation of the Ordinances' conditions as applied
to the Project. Id., at 0028.
• Request 5: The Director declined to answer this request because it
improperly sought an interpretation of the Development Agreement, which
is not a Department order and it also sought review or affirmance of a past
Department action that the Director has no control over and/or is no longer
appealable. Id.
• Request 6:_The Director declined to answer this request because it sought
review of a past Department action which is no longer appealable. Id., at
0028.
■ Request 7: The Director declined to answer this request because it sought
review of a past Department action which is no longer appealable. Id.
11
• Request 8: The Director declined to answer this request because it did not
designate any specific provision, rule, or order of the Director or
Department as is required under P R P P Rule 3-1(b)(3). Id., at 0026.
• Request 9: The Director declined to answer this request because it sought
review or affirmance of Council action over which the Director has no
authority. Id., at 0028.
Is Request 10: The Director declined to answer this request because it did
not designate any specific provision, rule, or order of the Director or
Department as is required under PRPP Rule 3-1(b)(3), Id., at 0026.
21. The Declaratory Order responded to Coupe's requests in its supplemental
petition as follows:
■ The Director declined to answer requests 1, 5, 7, 8, 9, 11, 12, 13, 16, 17,
18, and 19 as they failed to designate any specific provision, rule, or order
of the Director or Department as is required under PRPP Rule 3-1(b)(3).
Id., at 0027.
• The Director declined to answer requests 2, 3, 4, 14, and 15 because they
also did not comply with P R P P Rule 3-1(b)(3) and the requests reversed
the roles of the Petitioner and Director as the Petitioner is the party that is
supposed to supply the law to be applied and interpreted. Id.
• The Director also declined to answer requests 11, 12, and 13 because
they sought review or affirmance of a past Department action (issuance of
Variance), which is no longer appealable. Id., at 0028.
1
• The Director agreed to respond to requests 6 and 14 of the supplemental
petition to the extent that the requests sought an interpretation of the
Ordinances' conditions as applied to the Project. Id.
22. Overall, the Director ruled that he could issue declaratory rulings on
portions of three of Coupe's twenty-nine requested declaratory rulings. Dkt. 17, ROA at
0026-28.
23. In response to Coupe's initial petition request number 4, the Director found
that "taken in their entirety," Ordinances 96-7 and 96-8 require the dedication of the
Mauka Haleki`i Extension, the Makai Haleki'i Extension, and the Connector Road to the
County. Dkt. 17, ROA at 0029-0030.
24. In response to Coupe's supplemental request number 6, the Director
found that, "to the extent the Mauka Haleki`i Extension was effectively dedicated, such
dedication adequately satisfied the relevant portions of the Ordinances applicable to the
Mauka Haleki`i Extension." Id. at 0030.
25. The Mauka Haleki`i Extension dedication was accepted by the County
Council pursuant to Resolution 317-12. Id. The Director has never had any authority
over the Resolution. Id.
26. In response to Coupe's supplemental request number 10, the Director
found that Oceanside has not fully satisfied the Ordinances' roadway improvement and
dedication requirements because the Makai Haleki`i Extension and the Connector Road
have not yet been dedicated to the County. Id.
27. The Director further found that both roads must be constructed to a
condition approved by the Department of Public Works. Id.
13
Oceanside's_Appeal to the BOA
28. On May 28, 2024, Oceanside filed its General Petition for Appeal of
Decisions by Planning Director or Public Works Director ("Board Appeal") with the BOA
appealing the ❑i rector's Declaratory Ruling. Dkt. 17, ROA at 0001-0017.
29. In its appeal, Oceanside argued that the Declaratory Order should be
either modified by the BOA or reversed and remanded because:
a. The Director erred by ruling that Ordinance No. 96-7 requires the
dedication of three roadways because no such requirement is
contained within Ordinance No. 96-7;
b. The Director erred by seemingly qualifying the 2010 dedication of the
Mauka Haleki'i Extension and corresponding satisfaction of the
Ordinances' conditions related to the roadway; and
c. The Director erred by ruling that the Makai Haleki'i Extension and
Connector Road have not been constructed as required under the
Ordinances because (1) both roadways were constructed pursuant to
plans approved by DPW and are covered by the Variance, and (2) the
Director lacks authority to rule upon the sufficiency of the roadways for
dedication.
Dkt. 17, RDA at 0012-0016.
30. On July 3, 2024, Coupe filed a Petition to Intervene in Oceanside's
appeal, which the BOA granted after holding a hearing on August 9, 2024. Dkt. 109,
ROA at 3573-3575.
14
31. The BOA held a hearing on Oceanside's appeal on October 11, 2024. Dkt.
137, ROA at 4656-4661 (minutes); Dkts. 137-138, ROA at 4665-4715 (transcript).
32. At the hearing, the BOA heard oral arguments by counsels, received
exhibits and heard testimony from witnesses. Dkt. 137, ROA at 4658-4660.
33. At the conclusion of the hearing, the BOA voted to affirm the Declaratory
Order and instructed the Director to prepare a proposed "order,"which would be
considered for adoption at the BOA's meeting scheduled for December 13, 2024. Dkt.
137, ROA at 4660 (minutes); Dkt. 138, ROA at 4712-4715 (transcript).
34. On November 22, 2024, Oceanside informed the BOA of its belief that the
Director's Proposed Decision and Order did not comply with HRS § 91-12, and
requested a continuance to the BOA's next scheduled meeting so the parties could
have additional time to review the record and submit their own proposed decisions and
orders, supplemental findings of fact and conclusions of law, and objections. Dkt. 139,
ROA at 4749-4751.
35. The BOA denied Oceanside's request, but provided additional time to
submit objections to the Director's Proposed Decision and Order. Id., RDA at 4751.
36. On December 3, 2024, Oceanside filed its Objections to the Director's
Proposed Findings of Fact, Conclusions of Law, Decision and Order ("Objections to
Proposed Decision and Order"), which included 34 proposed findings of fact and 16
proposed conclusions of law. Dkt. 140, ROA at 4767-4786.
The BOAS' Decision and Order
37. On December 13, 2024, the BOA held a public meeting at which it voted
to adopt the Director's Proposed Decision and Order as its final decision, subject to
1
certain amendments made at the meeting. Dkt. 141, ROA at 4807-4810 (minutes); id.,
ROA at 4815-4823 (transcript).
38. The BOA did not include or rule on any of the proposed findings of fact
and conclusions of law submitted in Oceanside's Objections to Proposed Decision and
Order. Id.
39. The BOA served Oceanside with the Decision and Order on December
18, 2024. Id., ROA at 4824-4829 (Findings of Fact, Conclusions of Law, Decision and
order on Coupe's Petition for Declaratory Order).
40. In the Decision and Order, the BOA made the following ten findings of fact
("FOF"):
• 1) On February 7, 2024, C & J Coupe Family Limited Partnership
("Intervenor ) filed its Petition for Declaratory Ruling, and on March 27,
2024, filed its Supplement to Petition for Declaratory Ruling, (collectively,
"Petition") requesting declaratory rulings from the Planning Director.
2) On April 29, 2024, the Planning Director issued Zendo Kern, Planning
Director, County of Hawai'i's Declaratory Order in the Matter of C& J
Coupe Family Limited Partnership, Petitioner, Docket No. 24- 0001
("Order") in response to the Petitions.
* 3) On May 28, 2024, 1250 Oceanside LLC ("Appellant") filed its General
Petition for Appeal of Decisions by Planning Director or Public Works
Director ("Appeal") with the Board of Appeals, County of Hawaii ("Board")
appealing the Planning Director's issuance of the Order.
1
■ 4) Appellant's Appeal sought to modify the Order or have the Order
remanded to the Planning Director to correct alleged errors.
• 5) On July 3, 2024, C& J Coupe Family Limited Partnership ("Intervenor")
filed its Petition to Intervene in General Petition for Appeal of Decision by
the Planning Director ('Petition to Intervene").
6) On July 15, 2024, Appellant filed its Position Statement on Petition to
Intervene in General Petition for Appeal of Decision by Planning Director,
dated July 3, 2024.
• 7) On July 17, 2024, the County filed its County of Hawai'i Planning
Director's Statement of No Position to Petition to Intervene in General
Petition for Appeal of Decision of Planning Director, dated July 3, 2024.
$} A hearing on the Petition to Intervene was held on August 9, 2024, at
which the Board approved the Petition to Intervene.
• 9) On October 11, 2024, the Board heard oral arguments and presentation
of evidence, including exhibits, and testimony on the Appeal at the West
Hawai'i Civic Center with all Board Members present in person. Michael
Kaleihoku Vitousek, Manager of Land and Development of 1250
Oceanside LLC, Derek B. Simon, Esq., and Ian R. Wesley-Smith, Esq.
appeared on behalf of Appellant. Zendo Kern, Hawaii County Planning
Director and E. Britt Bailey, Deputy Corporation Counsel, appeared on
behalf of the Planning Department. Charles Coupe of C&J Coupe Family
Limited Partnership, Kenneth R. Kupchak, Esq., and Mark M. Murakami,
Esq. appeared on behalf of Intervenor.
17
• 1 p) The BOA found that the Order addressed the questions raised by the
Appellant in its appeal, even if the Director did not provide the level of
clarity or specifics desired by the Appellant.
Id., ROA at 4824-4826.
41. The BOA also made the following nine conclusions of law ("COL"):
1) Hawaii Revised Statues Section 91- 8 allows that:
Any interested person may petition an agency for a declaratory order as to
the applicability of any statutory provision or of any rule or order of the
agency. Each agency shall adopt rules prescribing the form of the
petitions and the procedure for their submission, consideration, and
prompt disposition. Orders disposing of petitions in such cases shall have
the same status as other agency orders.
2) Planning Department Rule 3-1(a) gives the Planning Director the
discretion to "issue a declaratory order as to the applicability of any
statutory provision, ordinance, or any rule or order of the Director or the
Department."
• 3) Hawaii County Code ("HCC") Section 25- 2- 23 [Standard of Review],
provides that:
The board of appeals may affirm the decision of the director, or it may
reverse or modify the decision or remand the decision with appropriate
instructions if based upon the preponderance of evidence the board finds
that:
(1) The director erred in its decision; or
18
(2) The decision violated this chapter or other applicable law; or
(3) The decision was arbitrary or capricious or characterized by an abuse
of discretion or clearly unwarranted exercise of discretion.
■ 4) Board of Appeals Rules of Practice and Procedures, Rule 8-4(4)
requires that a general petition for an appeal must include:
A statement explaining:
(A) How the decision appealed from violates the law; or
(B) How the decision appealed from is clearly erroneous; or
(C) How the decision appealed from was arbitrary and capricious, or
characterized by an abuse of discretion or clearly unwarranted exercise of
discretion.
5) The Director acted within his jurisdiction when the Director addressed
the posed questions in the Order.
• 6) The Order correctly identified issues outside the Director's jurisdiction
and discretion.
7) The Order Sufficiently addressed the questions raised by the Appellant
even though the Order did not reflect the specifics desired by the
Appellant.
■ 8) Appellant's [sic] argued lack of clarity and/or specifics in the Director's
responses, but that did not meet the burden required for modifying or
remanding the Planning Director's decision.
■ 9) Having considered the testimony and evidence provided, the Board
unanimously concluded that in issuing his Order, the Planning Director
19
Zendo Kern did not clearly err, was not arbitrary or capricious, nor did he
abuse his discretion. Therefore, the Board affirmed Zendo Kern, Planning
Director, County of Hawai`i's Declaratory Order in the Matter of C& J
Coupe Family Limited Partnership, Petitioner, Docket No. 24- 0901.
Id., ROA at 4826-4827.
42. On January 17, 2425, Oceanside timely appealed the Decision and Order
to this Court pursuant to HRS § 91-14. Dkt. 1.
43. Oceanside's appeal contains two main arguments: 1) the Decision and
Order of the BOA did not comply with HRS § 91-12; and 2) the BOA erred when it
affirmed rulings by the Director. Id.
CONCLUSIONS OF LAW
This Court makes the following Conclusions of Law, and to the extent that any of
the following shall be determined to be Findings of Fact, they shall be deemed as such.
Jurisdiction
1. The Court has personal jurisdiction over the parties.
2. Appellant is an interested person pursuant to HRS § 91-8 and therefore
had standing to bring their Petitions before the Commission and to bring this appeal.
3. This Court has subject matter jurisdiction over this appeal and the appeal
is properly before the Court pursuant to HRS § 91-14.
4. Appellant's appeal is timely. HRS § 91-14(b). Dkt. 1.
5. Venue is proper in this Court.
Standard of Review
20
6. The Court's review of the Decision and Order is governed by HRS § 91-
14(g), which provides that:
Upon review of the record, the court may affirm the decision of the agency
or remand the case with instructions for further proceedings; or it may
reverse or modify the decision and order if the substantial rights of the
petitioners may have been prejudiced because the administrative findings,
conclusions, decisions, or orders are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable, probative, and substantial
evidence on the whole record; or
(6) Arbitrary, or capricious, or characterized by abuse of discretion or
clearly unwarranted exercise of discretion.
HRS § 91-14(g).
7. "Under HRS § 91-14(g), conclusions of law are reviewable under
subsections (1), (2), and (4); questions regarding procedural defects are reviewable
under subsection (3); findings of fact are reviewable under subsection (5); and an
agency's exercise of discretion is reviewable under subsection (6)." Matter of
Conservation Dist. Use Application HA-3568, 143 Haw. 379, 389, 431 P.3d 752, 762
(2018) (citation omitted).
1
8. A court's review of a final agency decision and order for compliance with
HRS § 91-12 is de novo. See Rife v. Akiba, 81 Haw. 84, 86, 912 P.2d 581, 583 (Ct.
App. 1996) ("We do not reach the HRS § 91-14(g)(5) issue. ("We vacate and remand
pursuant to HRS § 91-14(g)(1) because the BOA failed to satisfy HRS § 91-12.°) in their
Decision and Order.
9. Failure to comply with HRS § 91-12 results in the application of HRS §
91-14(g)(1). Id., 81 Haw. at 91, 912 P.2d at 588.
Oceanside's Appeal is a Contested_Case
10. "A contested case hearing is one that is (1) required by law and (2)
determines the rights, duties, and privileges of specific parties." Matter of Hawaii Elec.
Li g ht Co. Inc., 145 Haw. 1, 13, 445 P.3d 673, 685 (2019) ("HELCO").
11. "In order for an administrative agency hearing to be required by law, it may
be required by (1) agency rule, (2) statute, or (3) constitutional due process." Id.
12. Although the director has discretion as to whether or not to respond to
requests for declaratory rulings under PRPP Rule 3-1, and a hearing was not required
at the declaratory ruling stage, one was required at the BOA pursuant to agency rule
and constitutional due process. BOA Rule 8-11(b) ("The Board shall hold a full hearing
on the appeal in accordance with Chapter 91, Hawaii Revised Statutes[.]"); See Id.
13. The hearing before the BOA concerned Oceanside's "rights, duties, and
privileges" under the Ordinances in connection with the roadways at issue. See Id.
14. BOA Rules provide that its hearings are conducted as contested cases.
See BOA Rules, Part 3 (entitled "Contested Case Procedure"). They authorize appeals
of all BOA "appeal proceeding[s]" and "final decision[s]" pursuant to HRS § 91-14, which
22
applies to appeals from contested case hearings. BOA Rule 3-22 ("Any party may
obtain judicial review of the Board's final decision with the Circuit Court pursuant to
Section 91-14 of the Hawaii Revised Statutes[.]'); BOA Rule 8-17 ("Any party to an
appeal proceeding may obtain judicial review by the Circuit Court of the proceeding
pursuant to Section 91- 14, Hawaii Revised Statutes, as amended.").
15. The proceeding at the BOA was a contested case and any decision and
order disposing of the matter was required to comply with HRS § 91-12.
Requirements of HRS & 91-12
16. HRS § 91-12 mandates that:
Every decision and order adverse to a party to the proceeding, rendered
by an agency in a contested case, shall be in writing or stated in the
record and shall be accompanied by separate findings of fact and
conclusions of law. If any party to the proceeding has filed proposed
findings of fact, the agency shall incorporate in its decision a ruling upon
each proposed finding so presented.
17. HRS § 91-12 requires that the Board's findings be reasonably clear. In re
Terminal Trans Inc., 54 Haw. 134, 139, 504 P.2d 1214, 1217 (1972).
18. A separate ruling on each proposed finding of fact is not indispensable.
Mitchell v. BWK Joint Venture, 57 Haw. 535, 560 P.2d 1292 (1977); In re Terminal
Transportation, Inc., 54 Haw. 134, 504 P.2d 1214 (1972); Freitas v. Pacific Contractors
Co., 1 Haw.App. 77, 613 P.2d 927 (1980).
19. However, "[tlhe requirement of findings is far from a technicality and is a
matter of substance. It has been said that it is a fundamental of fair play that an
administrative judgment express a reasoned conclusion. A conclusion requires
evidence to support it and findings of appropriate definiteness to express it.
3
Application of Kauai Elec. Div. of Citizens Utilities Co., 60 Haw. 166, 183--84, 590 P.2d
524, 537 (1978) (citation omitted) ("Kauai Elec.").
20. "The purpose of the statutory requirement that the agency set forth
separately its findings of fact and conclusions of law is to assure reasoned decision
making by the agency and enable judicial review of agency decisions." HELCO, 60
Haw. at 641, 594 P.2d at 623.
21. The parties should not be left to guess, with respect to any material
question of fact, or to any group of minor matters that have a cumulative significance,
the precise finding of the agency. Timothy Freitas v. Pacific Contractors, 1 Haw-App. 77,
84-85, 613 P.2d 927, 932 (1980).
22. °The purpose of the statutory requirement that the agency set forth
separately its findings of fact and conclusions of law is to assure reasoned decision
making by the agency and enable judicial review of agency decisions." HELC0, 60
Haw. at 641, 594 P.2d at 623.
23. In order for courts to "be informed of the factual basis upon which the
[agency] relies, the [agency]'s findings of Ultimate facts must be supported by findings
of Basic facts which in tum are required to be supported by the evidence in the record."
Id., 60 Haw. at 642, 594 P.2d at 623 (citation omitted).
24. "[T]he agency must make its findings reasonably clear. The parties and
the court should not be left to guess, with respect to any material question of fact, or to
any group of minor matters that may have cumulative significance, the precise finding of
the agency." Kauai Elec., 60 Haw. at 183, 590 P.2d at 537 (citation omitted).
24
25. This Court must know what a decision means before the duty becomes
this Court's to say whether it was right or wrong. Rife, 81 Haw. at 87, 912 P.2d at 584.
The Decision and Order of the BOA does not Comply with HRS § 91-12
26. The Decision and Order of the BOA does not comply with HRS § 91-12
because the BOA did not make reasonably clear findings of fact sufficient to support its
decision to affirm the Declaratory Order. See Kauai Elec., 60 Haw. at 183, 590 P.2d at
537.
27, FOF 1-9 summarize the procedural history before the Director and BOA.
While these findings of fact are an important part of a decision and order, they do not
allow the Court to "track the steps by which the [BOA] reached its decision" to affirm the
Declaratory Order. Los Banos v. Hawai`i Lab. Reis. Bd., 145 Haw. 297, 452 P.3d 765
(Ct. App. 2019) ("[A] reviewing court should ensure that the agency's findings and
conclusions are sufficiently clear to allow the reviewing court to track the steps by which
the agency reached its decision.").
28. FOF 10, which is the only other finding of fact in the Decision and Order, is
a finding of"ultimate fact,° but it is not supported by any "basic facts" or references to
evidence in the record. HELLO, 60 Haw. at 642, 594 P.2d at 623 ("[i]n order that
[courts] be informed of the factual basis upon which the [agency] relies, the [agency]'s
findings of Ultimate facts must be supported by findings of Basic facts which in turn are
required to be supported by the evidence in the record.").
29. FOF 14 is also vague, ambiguous, and not"reasonably clear" as to what
the BOA is actually finding in light of the specific issues Oceanside raised in its appeal
to the BOA, which did not only concern the Declaratory Order lacking "the level of clarity
25
desired by" Oceanside. Kauai Elec., 80 Haw. at 183, 590 P.2d at 537 (°[T]he agency
must make its findings reasonably clear.").
30. None of the FOFs provide the Court with the necessary insight into how
the BOA reconciled the evidence received as part of the contested case hearing.
31. The Court "cannot fill the voids" in the Decision and Order because the
Court is "not the fact-finding body." HELLO at 643, 594 P.2d at 624.
32. The Decision and Order also does not comply with HRS § 91-12 because
the BOA did not make sufficient conclusions of law to support its decision to affirm the
Declaratory Order, including in that it does not set forth the authorities relied upon to
affirm the Declaratory Order other than simply quoting HRS § 91-8, P❑ Rule 3, and the
BOA's standard of review.
33. The Decision and Order also fails to comply with the requirement under
HRS § 91-12 that "[i]f any party to the proceeding has filed proposed findings of fact, the
agency shall incorporate in its decision a ruling upon each proposed finding so
presented." HRS § 91-12.
34. Because the Decision and Order violates HRS § 91-12, it is in violation of
a statutory provision. HRS § 91-14(g)(1).
Remand is Appropriate
35. "[R]emand is proper where an agency has made invalid, inadequate or
incomplete findings," Kauai Elec., 80 Haw. at 185, 590 P.2d at 538.
36. Because the Decision and Order did not comply with HRS § 91-12, the
Court is unable to determine whether Oceanside's arguments regarding whether the
26
BOA erred in affirming the Director's rulings have merit. Remand is proper in this
instance. Id.
ORDER
Based on the foregoing Findings of fact and Conclusions of Law:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Appellant 1250
Oceanside LLC's appeal from the Findings of Fact, Conclusions of Law, and Decision
and Order; Certificate of Service, dated December 18, 2024, is VACATED AND
REMANDED.
This case shall be REMANDED to the Board of Appeals to adopt a Decision and
Order that complies with Section 91-12, HRS.
Pursuant to Rule 58 Hawai'i Rules of Civil Procedure, a final judgment shall enter
consistent with this Order.
DATED: Kailua-Kona, Hawaii, � f L-72 .
JUDG ABOVE- TITLED COURT
7
BEFORE THE BOARD OF APPEALS
COUNTY OF HAWAI`I
STATE OF HAWAPT
In the Matter of Appeal AGENCY DOCKET NO. PL-BOA-2024-
000104
of
CERTIFICATE OF SERVICE
1250 OCEANSIDE, LLC
From the Decisions of the Planning Director,
dated April 29, 2024 (Docket No. 24-0001)
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was duly served upon
the following parties via E-Mail on February 12, 2026:
RENEE N.C. SCHOEN, ESQ.
SILVIA A. WAN, ESQ.
Office of Corporation Counsel
101 Aupum Street, Suite 325
Hilo, Hawai`i 96720
Attorneys for the
County of Hawaii Board of Appeals
KENNETH R. KUPCHAK, ESQ.
MARK M. MURAKAMT, ESQ.
KATIE T. PHAM, ESQ.
TOREN K. YAMAMOTO, ESQ.
1003 Bishop Street, Suite 1600
Honolulu, Hawai`i 96813
Attorneys for
Intervenor C&J Coupe Limited Family Partnership
JEAN K. CAMBELL, ESQ.
DEMETRI G. LAMETTT
Deputies Corporation Counsel
Office of the Corporations Counsel
101 Aupum Street, Suite 325
Hilo, Hawai`i 96720
4906-3356-8652.1.051730-00058
Attorneys for
Appellee County of Hawaii Planning Director
DATED: Honolulu, Hawaii, February 9, 2026.
ls/Derek B. Simon
PATRICK K. WONG
DEREK B. SIMON
IAN R. WESLEY-SMITH
Attorneys for
1250 OCEANSIDE, LLC
4906-3356-8652.1.051730-00058