HomeMy WebLinkAbout2024-05-28 PL-BOA-2024-000105 Petition (1250)_v1 !' •
1T�O�•MI�
County of Hawai`i
BOARD OF APPEALS
Aupuni Center • 101 Pauahi, Suite 3 • Hilo,Hawai'i 96720
(808)961-8288 • Fax(808)961-8742
GENERAL PETITION FOR APPEAL OF
DECISIONS BY PLANNING DIRECTOR OR PUBLIC WORKS DIRECTOR
(Type or legibly print the requested information. See instructions attached.)
TYPE OF PETITION (check one):
Appeal Decision of the Planning Director ❑ Appeal Decision of Director of Public Works
SUBJECT PROPERTY (land in question):
Tax Map Key (TMK): Numerous,incl.8-1.004070881-030055 Area of Property: Approx. 1,260 acres
State Land Use
Designation: Agricultural County Zoning: A-1 a
Street Address: Numerous
APPELLANT INFORMATION:
Name(s): 1250 Oceanside, LLC
Signature(s): Date:
Mailing Address: do Carlsmith Ball LLP(attention Derek B. Simon),1001 Bishop Street, Suite 2100, Honolulu, HI 96813
Telephone: 808-523-2589 Email: dsimon@carlsmith.com
Interest in Subject 1250 Oceanside, LLC is the developer of Hokuli'a, which is the subject of
Property: the Declaratory Order being appeal.
LANDOWNER INFORMATION:
Name(s): Same as above.
Signature(s)1: Date:
Mailing Address:
Telephone: Email:
APPELLANT REPRESENTATIVE INFORMATION (leave blank if not applicable):
Name(s)/Title(s): Derek B. imQn
Signature(s): � Date: May 28, 2024
Mailing Address: 1001 Bishop Street, Suite 2100, Honolulu, HI 96813
Telephone: (808) 523-2589 Email: dsimon@carlsmith.com
Not required if the Landowner is not the Appellant.
\\COH01\planning\public\BOA\Forms and Labels\Application Forms\APPEAL 2021-07-PL or PW Dir.docx Revised April 2021
Statement of the nature of Appeal and the Relief Requested. Include Director's decision and decision
date:
1250 Oceanside, LLC appeals the Declaratory Order issued by the Planning Direcetor on 29, 2024
in Planning Department Docket No. 24-00002. A copy of the Declaratory Order is included as
Exhibit 1 in the attached General Petition for Appeal of Decision of the Planning Director dated
May 28, 2024.
Statement of how the Director's decision violates the law; or is clearly erroneous; or is arbitrary or
capricious, or characterized by an abuse of discretion or clearly unwarranted exercise of discretion:
See attached General Petition for Appeal of Decision of the Planning Director dated May 28, 2024.
Statement of any other relevant facts:
See attached General Petition for Appeal of Decision of the Planning Director dated May 28, 2024.
If there is insufficient space on this form to provide the information, then please include supplemental documents.
\\COH01\planning\public\BOA\Forms and Labels\Application Forms\APPEAL 2021-07-PL or PW Dir.docx Revised April 2021
CARLSMITH BALL LLP
PATRICK K. WONG 5878
75-5722 Kuakini Highway, Suite 208
Kailua Kona, Hawai`i 96740
Tel. No. (808) 329-6464
Facsimile No. (808) 329-9450
pwong@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
dsimon@carlsmith.com
IAN R. WESLEY-SMITH 10626
121 Waianuenue Avenue
P.O. Box 686
Hilo, Hawai`i 96721-0686
Tel. No. (808) 969-8416
Facsimile No. (808) 935-7975
iwesley-smith@carlsmith.com
Attorneys for
1250 OCEANSIDE, LLC
BEFORE THE BOARD OF APPEALS
PLANNING DEPARTMENT
COUNTY OF HAWAII
In the Matter of Appeal Case No.
of GENERAL PETITION FOR APPEAL OF
DECISION OF THE PLANNING
1250 OCEANSIDE, LLC DIRECTOR; EXHIBITS 1 - 10;
CERTIFICATE OF SERVICE
From the decision of the Planning Director,
dated April 29, 2024 (Docket No. 24-0002)
4860-3160-4157.3.051730-00058
GENERAL PETITION FOR APPEAL OF DECISION OF THE PLANNING DIRECTOR
Pursuant to Rule 2-4 and Part 8 of the Rules of Practice and Procedure ("BOA Rules")
for the Hawai`i County Board of Appeals ("BOA"), 1250 Oceanside, LLC ("Oceanside"), by
and through its counsel, Carlsmith Ball LLP,hereby appeals the Declaratory Order issued by
County of Hawai`i ("County") Planning Director Zendo Kern ("Planning Director") in Docket
No. 24-0002 on April 29, 2024 (the "Declaratory Order"). Exhibit 1. The Declaratory Order
relates to a Petition for Declaratory Ruling filed by Oceanside on February 28, 2024
("Petition"),pursuant to Haw. Rev. Stat. ("HRS") § 91-8 and Rule 3 of the County of Hawai`i
Planning Department Rules of Practice and Procedure ("PD Rules"). Exhibit 2.
I. INTRODUCTION
Oceanside is the current developer of the master-planned residential community known
as Hokuli`a("Hokuli`a") located on the Kona Coast in Kealakekua, Hawai`i. Hokuli`a is being
developed pursuant to a number entitlements issued by the County, including rezoning
Ordinance No. 96-7 ("Ordinance No. 96-7") and rezoning Ordinance No. 96-8 ("Ordinance
No. 96-8"; together, the "Ordinances"). Exhibit 3; Exhibit 4. The Ordinances, as well as other
entitlements, were later incorporated into a Development Agreement, dated April 20, 1998 (the
"Development Agreement"),between the County and Oceanside's predecessor-in-interest.
Exhibit 5.
In connection with the development of Hokuli`a, Oceanside (and its predecessor)has
responsibly partnered with the County to contribute acres of land and tens of millions of dollars
to the development of a major highway, roadways, and infrastructure, and to restore, conserve,
and provide public access to culturally important shoreline areas. In doing so, Oceanside has at
every step proceeded in good faith and secured the necessary governmental approvals.
Relevant here, the Ordinances required the construction of the following roadways:
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• An extension of the Mamalahoa By-Pass/Alii Drive ("Bypass Extension"),
increasing connectivity between Kailua-Kona and Captain Cook;
• An extension of Haleki`i Street to the mauka side of the Bypass Extension
("Mauka Haleki`i Extension");
• A continuation of Haleki`i Street makai of the Bypass Extension ("Makai
Haleki`i Extension"); and
• A"stub"road running north-south laterally from the Makai Haleki`i Extension to
the boundaries with the adjoining properties ("Connector Road").
Oceanside contributed approximately$20 million dollars towards the completion of the Bypass
Extension,' which was dedicated to the County in 2012 and subsequently opened to the public in
2016. Oceanside constructed the Makai Haleki`i Extension and Connector Road in 1999, and the
Mauka Haleki`i Extension in 2012,pursuant to construction plans approved by the County,
including the Department of Public Works ("DPW"). Oceanside dedicated the Mauka Haleki`i
Extension to the County over a decade ago and it has remained open to the public ever since. By
any measure, Oceanside has complied,robustly, with the conditions of approval imposed on
Hokuli`a and provided significant benefits to the public.
Coupe, on the other hand, has a long and litigious history with the County and Hokuli`a,
having fought bitterly— and unsuccessfully—to block the construction of the Bypass Extension,
but not before delaying completion of the critical thoroughfare for more than a decade and
costing the County and its taxpayers significant tax dollars and resources. In recent years,
Oceanside has worked in good faith to find an amicable resolution of Coupe's current concerns
with Hokuli`a, but its efforts have fallen on deaf ears, with Coupe taking a litigation first
approach.
On March 31, 2023, Coupe filed a Complaint in the Circuit Court of the Third Circuit,
1 The $20 million contributed by Oceanside was spent on the portion of the Bypass Extension
south of the entrance of Hokulia at Haleki`i Street. Oceanside's predecessor spent approximately
$36 million on the Bypass Extension north of the entrance of Hokuli`a.
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State of Hawai`i, against the County and Oceanside. Exhibit 6. Coupe's Complaint alleges that
Oceanside has failed to comply with, and the County has failed to enforce, the Ordinances and
Development Agreement, and seeks declaratory and injunctive relief. At bottom, Coupe's
lawsuit is fundamentally premised on attacking actions taken and approvals granted more than a
decade ago, by County officials serving under prior administrations.
On September 15, 2023, the Circuit Court ruled— over Coupe's strong protest—that
Coupe was required to seek formal determinations from the County on certain issues raised in its
Complaint. In doing so, the Circuit Court explained that it"is not the best-suited decision-maker
for determining whether the Development Agreement and Ordinances were actually complied
with" and that it "may not substitute its judgment for the expertise of the Planning Department
and County of Hawai`i Board of Appeals." Exhibit 7a at 5, ¶15(a)(d) & (e); see also Exhibit 7b
at 5, ¶4(d) & (e).
Pursuant to the Circuit Court's ruling, Coupe filed its own Petition for Declaratory Ruling
dated February 7, 2024 ("Initial Petition"), and Supplement to Petition for Declaratory Ruling
dated March 27, 2024 ("Supplemental Petition"; together, "Coupe's Petitions"). In the
interim, Oceanside filed its Petition on February 28, 2024, in order to fill obvious gaps in the
issues referred by the Circuit Court that were left by Coupe's Initial Petition, avoid piecemeal
challenges by Coupe in the future, and ensure Oceanside has certainty as it continues to develop
Hokuli`a. On April 29, 2024, the Planning Director issued the Declaratory Order on Oceanside's
Petition, Exhibit 1, and a separate Declaratory Order on Coupe's Petitions, which is the subject
of a separate appeal filed concurrently with this appeal.
As explained in detail below,portions of the Declaratory Order are in violation of law,
clearly erroneous, arbitrary and capricious, and constitute an abuse of discretion. Oceanside
4860-3160-4157.3.051730- 00058 3
requests that the BOA either modify the Declaratory Order as set forth below, or remand the
matter back to the Planning Director to do the same.
II. NAME, ADDRESS,AND TELEPHONE NUMBER
Name: 1250 Oceanside, LLC
Address: P.O. Box 2059
Kealakekua, Hawai`i 96750
c/o Carlsmith Ball LLP
Attention: Derek B. Simon
1001 Bishop Street, Suite 2100
Honolulu, Hawai`i 96813
Telephone numbers: c/o Carlsmith Ball LLP
Derek B. Simon: 808-523-2589
III. PARTIES AND AFFECTED PROPERTY
The parties to this appeal are the Planning Director and Oceanside. Oceanside is the
developer of Hokuli`a, which covers approximately 1,260 acres on the Kona Coast in
Kealakekua, Hawai`i and is identified by numerous Tax Map Keys ("TMK"). Most relevant
here, the Makai Haleki`i Extension and Connector Road are identified by TMK Nos. (3) 8-1-
004:070 and(3) 8-1-030:055. Oceanside is developing Hokuli`a pursuant to the Ordinances and
Development Agreement, which are the subject of the Declaratory Order.
IV. BACKGROUND
A. Early Development of Hokuli`a by Oceanside's Predecessor-in-Interest.
Oceanside's predecessor-in-interest, 1250 Oceanside Partners, L.P. ("1250 Partners"),
first conceived Hokuli`a in the early 1990s, as a higher-density, master-planned residential
community consisting of approximately 1,540 lots, a 27-hole golf course, and a 100-unit
members' lodge. However, 1250 Partners subsequently faced legal challenges to the merits of its
proposed master plan. Following several years of litigation, 1250 Partners revised its master
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plan to address concerns expressed by the community, ultimately proposing a lower-density,
agriculturally-focused development that eliminated the members' lodge.
As part of its revised master plan, 1250 Partners committed to providing significant
public improvements and community benefits. These community benefits included, inter alia,
the development of an approximately 140-acre shoreline park(the "Shoreline Park"), the
expansion of the County's Kona Scenic Park, and the construction and dedication of an
approximately five-mile segment of the Bypass Extension.
1250 Partners submitted the necessary entitlement applications to the County to
implement the revised master plan consisting of 730 agricultural lots, which culminated with the
adoption of the Ordinances — Ordinance No. 96-7 covers Hokulia's western/makai lands, and
Ordinance No. 96-8 covers Hokulia's eastern/mauka lands. Following adoption of the
Ordinances, 1250 Partners secured numerous other entitlement for Hokuli`a and entered into the
Development Agreement.
The development of Hokuli`a is divided into three general phases—Phase I, Phase II, and
Phase III, with Phase III further divided into three sub-phases —Phase III North, Phase III South,
and Phase III East. Shortly after the Ordinances were adopted, 1250 Partners submitted
construction plans to the County for subdivision infrastructure improvements for Phase I,
including the Makai Haleki`i Extension and Connector Roadway. The Makai Haleki`i Extension
and Connector Roadway were constructed in 1999, pursuant to construction plans approved by
the County, including DPW.
B. Oceanside Takes Over Development of Hokuli`a.
In late 2007, 1250 Partners defaulted on its loan and control over Hokuli`a reverted to its
lender. During this time, development activities were halted and could only proceed with lender
authorization and funding.
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In January 2011, 1250 Partners obtained Variance No. VAR 10-027 (the "Variance"),
which covers, inter alia, the Makai Haleki`i Extension, Mauka Haleki`i Extension, and
Connector Road. Exhibit 8. 1250 Partners sought the Variance to allow for the retention of
existing and construction of new twenty-foot wide paved roadways within fifty- and sixty-foot
wide rights-of-way, without having to pave the shoulders of the roadways. The purpose of the
Variance was to minimize excessive grading in order to mitigate potential environmental
hazards, and to address concerns that the grading of the steeply sloping lands within Hokuli`a,
coupled with a full pavement of the right-of-way, would increase the potential for storm water
runoff. The potential for storm water runoff was demonstrated when Hokuli`a was put on hold
in late 2000, to allow for remediation of sediment runoff into the nearshore waters fronting
Hokuli`a caused by severe storm events.
Oceanside acquired 1250 Partners' loan in late 2012, but before development of Hokuli`a
could be fully resumed, 1250 Partners needed to proceed with a petition under Chapter 11 of the
U.S. Bankruptcy Code to restructure its debt. During this time, however, the Mauka Haleki`i
Extension was completed, which, like the Mauka Haleki`i Extension and Connector Road, was
constructed pursuant to plans approved by the County, including DPW. The Mauka Haleki'i
Extension was dedicated to the County in 2012 and has been open to the public ever since.
Exhibit 9 (Resolution No. 317-12).
Oceanside emerged from the bankruptcy on July 1, 2014, in control of Hokuli`a. Since
then, Oceanside has made significant strides towards revitalizing the once dormant Hokuli`a.
Among other things, Oceanside contributed$20 million dollars towards the completion of the
Bypass Extension and completed necessary project elements and infrastructure, including the
Phase 1 Wastewater Treatment Plant, additional infrastructure improvements in subdivision
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Phases 1 and 2, various golf course related amenities, and all archaeological mitigation. The
archaeological and cultural sites within Hokuli`a are actively monitored and maintained by the
Hokuli`a Parks and Cultural Sites Association, which is funded out of Hokulia's membership
dues.
The Shoreline Park(which is being developed in five phases) has been opened to the
public since 2002 and is also maintained by the Hokuli`a Parks and Cultural Sites Association.
Oceanside has completed the improvements required for the Shoreline Park by the
Comprehensive Public Access Plan for Phases 1 through 4, and improvements for Phase 5 are
currently underway. The completed park improvements include planting naturally occurring
native trees, shrubs, and ground covering vines; improving the shoreline trail system with wood
chips generated from the debris from clearing of non-native invasive vegetation; creating public
rest areas along the trail system complete with picnic tables and waste receptacles; and installing
appropriate directional, hazard, and cultural protocol signage. Oceanside has also obtained
permitting for a new public restroom facility with twenty-eight parking stalls.
On December 12, 2016, Oceanside dedicated a 2.273-acre parcel abutting the north side
of the Kona Scenic Park to the County. That land is now being used to provide much needed
off-street parking for the public. As of August 23, 2012, the Planning Department confirmed
that the total balance of fair share credits for Hokuli`a was $8,641,127.12. Oceanside is
currently in the process of obtaining an updated total balance of fair share credits from the
County.
C. Coupe's Lawsuit.
On March 31, 2023, Coupe filed its Complaint. Exhibit 6. Coupe's Complaint alleges
that Oceanside has failed to comply with, and the County has failed to enforce, the Ordinances
and Development Agreement. Specifically, Coupe alleges, inter alia, that: (a) the Makai
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Haleki`i Extension, Mauka Haleki`i Extension, and Connector Road were not built to express
standards required by the Ordinances and Development Agreement; (b) Oceanside has failed to
comply with its dedication obligations for these roadways; (c) the County improperly granted the
Variance because Coupe was not provided notice, the standard for granting a variance was not
met, and the Variance functioned as an improper amendment of the Ordinances and
Development Agreement; and (d) the County improperly accepted the dedication of the Mauka
Haleki`i Extension. Based on these allegations, Coupe seeks declaratory and injunctive relief.
On September 15, 2023, the Circuit Court ruled that Coupe was required to first seek a
formal determination from the County on Oceanside's compliance with the Ordinances and, by
extension, the Development Agreement. Exhibit 7a; Exhibit 7b. The Circuit Court explained that
it "is not the best-suited decision-maker for determining whether the Development Agreement
and Ordinances were actually complied with" and that it"may not substitute its judgment for the
expertise of the Planning Department and County of Hawai`i Board of Appeals." Exhibit 7a at 5,
¶¶5(a)(d) & (e); see also Exhibit 7b at 5, ¶4(d) & (e). As a result, the Circuit Court stayed
Coupe's lawsuit and ordered Coupe to complete the County's declaratory ruling process prior to
returning to court.
Coupe filed its Initial Petition on February 7, 2024, and its Supplemental Petition on
March 27, 2024 (together, "Coupe's Petitions"). In the interim, Oceanside's Petition was filed
on February 28, 2024. On April 29, 2024, the Planning Director issued separate Declaratory
Orders on both Coupe's Petitions and Oceanside's Petition. The Declaratory Order on Coupe's
Petitions is the subject of a separate appeal filed concurrently with this appeal.
V. LEGAL STANDARD
The BOA has the power to reverse, modify, or remand a decision by the Planning
Director if the BOA finds that the decision is:
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(1) In violation of the Code or other applicable law; or
(2) Clearly erroneous in view of the reliable,probative, and substantial evidence on the
whole record; or
(3) Arbitrary, or capricious, or characterized by an abuse of discretion or clearly
unwarranted exercise of discretion.
BOA Rule 8-15; see also BOA Rule 8-13 (BOA "shall render its decision in an appeal
proceeding,by either affirming the decision appealed from, or reversing or modifying the
decision, or remanding the case to the Director for further proceedings and action.").
VI. ANALYSIS
A. The Planning Director Erred in not Ruling Upon Requests that He
Determined were within his Jurisdiction Under PD Rule 3, and Further
Erred by Not Issuing the Declaratory Rulings on the Requests Set Forth in
Oceanside's Petition.
1. The Planning Director Erred in not Ruling Upon Requests that He
Determined were within His Jurisdiction Under PD Rule 3.
The Hawai`i 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 legislature has granted agencies discretion with regard to the
consideration of declaratory rulings." 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) ("CARD"). "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." Id. at 195, 159 P.3d at 154. Thus, an agency's "decisions to refuse to
issue a declaratory ruling [are] reviewed under the `abuse of discretion' standard, with reference
to the language of HRS§91-8 and the bases for refusal enumerated in the [agency's] rule."
Id. (emphasis added).
In the Declaratory Order, the Planning Director ruled that the following Requests were
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within his jurisdiction under PD Rule 3:
• Dedication Requirements:
o Request 1: Whether the express terms of Ordinance No. 96-7 require the
dedication of the Mauka Haleki`i Extension, Makai Haleki`i Extension, or
Connector Road?
o Request 2: Whether the express terms of Ordinance No. 96-8 require the
dedication of the Mauka Haleki`i Extension, Makai Haleki`i Extension, or
Connector Road by a date certain or any milestone in the development of
Hokuli`a?
• Construction Standards:
o Request 1: Whether the express terms of the Ordinances set specific
construction standards to which the Mauka Haleki`i Extension, Makai
Haleki`i Extension, and Connector Road must be built to?
o Request 2: Whether the express terms of the Ordinances require
compliance with Sections 23-86 and 23-95 of the Hawaii County Code
for the Haleki`i Extension, Makai Haleki`i Extension, and Connector
Road?
o Request 5: Whether the express terms of the Ordinances prohibit
variances under Chapter 23 for the Haleki`i Extension, Makai Haleki`i
Extension, and Connector Road?
• Variances Under Chapter 23:
o Request 3: Can a roadway subject to a properly granted variance from
Sections 23-86 and 23-95 of the Hawai`i County Code be in full
compliance with Chapter 23?
o Request 4: If a roadway subject to a variance is otherwise in full
compliance with Chapter 23, can the County accept dedication of the
roadway under Section 23-10 of the Hawai`i County Code?
o Request 5: Can a roadway subject to a variance from Sections 23-86 and
23-95 of the Hawai`i County Code be dedicated under Section 23-10 of
the Hawai`i County Code?
Declaratory Order at 9-10.
However, the Planning Director failed to render declaratory rulings on each of these
Requests. For example, the Declaratory Order does not rule on, inter alia, whether Ordinance
No. 96-8 requires the dedication of the Mauka Haleki`i Extension, Makai Haleki`i Extension, or
Connector Road by a date certain or a development milestone; whether the Ordinances set
4860-3160-4157.3.051730- 00058 10
express construction standards for these roadways; or whether a roadway subject to a properly
granted variance from Hawaii County Code ("HCC") §§ 23-86 and 23-95 can be in full
compliance with HCC Chapter 23. The Planning Director's failure to rule upon these Requests —
after acknowledging that they were within his jurisdiction under PD Rule 3 —was not grounded
in HRS § 91-8 or any provision of PD Rule 3, and was therefore an abuse of discretion.
2. The Planning Director Erred by Not Issuing the Declaratory Rulings on
these Requests Set Forth in Oceanside's Petition.
The Planning Director further erred by not issuing the declaratory rulings on the above
Requests set forth in Oceanside's Petition. Oceanside requests that the BOA either modify the
Declaratory Order to issue the declaratory rulings on these Requests set forth in Oceanside's
Petition, or remand the matter back to the Planning Director to do the same.
a. Dedication Requirements, Request 1.
Dedication Requirements, Request 1 asked the Planning Director to issue a declaratory
ruling on "[w]hether the express terms of Ordinance No. 96-7 require the dedication of the
Mauka Haleki`i Extension, Makai Haleki`i Extension, or Connector Road[.]" See Exhibit 2 at
13. As explained in Oceanside's Petition, the answer to this Request is no. Id. at 16-17.
The word"dedicate" (or any variation thereof) appears nowhere in Ordinance No. 96-7.
See Wells Fargo Bank, N.A. v. Omiya, 142 Hawai`i 439, 449, 420 P.3d 370, 380 (2018) (internal
citations omitted) ("The fundamental starting point of statutory interpretation is the language of
the statute itself,' and `where the statutory language is unambiguous, our duty is to give effect to
its plain and obvious meaning.'). Nor does Ordinance No. 96-7 incorporate by reference any of
the requirements of Ordinance No. 96-8. See Exhibit 3,passim. Simply put, there is no
requirement under the express terms of Ordinance No. 96-7 that the roadways required under
Conditions M(4) and M(5)be dedicated to the County.
4860-3160-4157.3.051730- 00058 11
b. Dedication Requirements, Request 2.
Dedication Requirements, Request 2 asked the Planning Director to issue a declaratory
ruling on "[w]hether the express terms of Ordinance No. 96-8 require the dedication of the
Mauka Haleki`i Extension, Makai Haleki`i Extension, or Connector Road by a date certain or
any milestone in the development of Hokuli`a[.]" See Exhibit 2 at 13. As explained in
Oceanside's Petition, the answer to this Request is no. Id. at 17.
Ordinance No. 96-8 does not contain any deadline or development milestone for the
dedication of the Makai Haleki`i Extension, Mauka Haleki`i Extension, or Connector Road. See
Wells Fargo Bank, N.A., 142 Hawai`i at 449, 420 P.3d at 380 ("`The fundamental starting point
of statutory interpretation is the language of the statute itself,' and `where the statutory language
is unambiguous, our duty is to give effect to its plain and obvious meaning."). Ordinance No.
96-8 provides only that the "roadway improvements stated in Condition L of this ordinance shall
be dedicated to the County of Hawaii." Exhibit 4 at 26.
c. Construction Standards, Request 1.
Construction Standards, Request 1 asked the Planning Director to issue a declaratory
ruling on "[w]hether the express terms of the Ordinances set specific construction standards to
which the Mauka Haleki`i Extension, Makai Haleki`i Extension, and Connector Road must be
built to[.]" See Exhibit 2 at 13. As explained in Oceanside's Petition, the answer to this Request
is no. Id. at 18.
Neither Ordinance No. 96-7 nor Ordinance No. 96-8 set forth specific construction
standards for the Mauka Haleki`i Extension, Makai Haleki`i Extension, and Connector Road.
See Wells Fargo Bank, N.A., 142 Hawai`i at 449, 420 P.3d at 380 ("The fundamental starting
point of statutory interpretation is the language of the statute itself,' and `where the statutory
language is unambiguous, our duty is to give effect to its plain and obvious meaning."). Nor do
4860-3160-4157.3.051730- 00058 12
they reference any provision in Chapter 23.2 Instead, the Ordinances provide only that:
Roadway improvements and access(es) to the subject property, including all plans
and construction, shall meet with the approval of the Department of Public
Works.
Exhibit 3 at 14 (emphasis added); see also Exhibit 4 at 23 (same).3
The Hawai`i Supreme Court has rejected past attempts to interpret conditions of approval
as "carry[ing] a `special interpretation' other than [their] common sense meaning." Lana`ians
for Sensible Growth v. Land Use Com m'n, 146 Hawai`i 496, 503, 463 P.3d 1153, 1160 (2020).
The Ordinances mean exactly what they say—both left it to the discretion of the County to
determine the standards to which the roadways were to be built, requiring, by their express terms,
only that they"meet with the approval of the Department of Public Works."
d. Construction Standards, Request 2.
Construction Standards, Request 2 asked the Planning Director to issue a declaratory
ruling on "[w]hether the express terms of the Ordinances require compliance with Sections 23-86
and 23-95 of the Hawai`i County Code for the Haleki`i Extension, Makai Haleki`i Extension,
and Connector Road[.]" See Exhibit 2 at 13. As explained in Oceanside's Petition, the answer
to this Request is no. Id. at 19. Neither Ordinance No. 96-7 nor Ordinance No. 96-8 contain any
reference to HCC § 23-86 and HCC § 23-86, or even a single reference to Chapter 23. See Wells
Fargo Bank, N.A., 142 Hawai`i at 449, 420 P.3d at 380 ("The fundamental starting point of
statutory interpretation is the language of the statute itself,' and `where the statutory language is
unambiguous, our duty is to give effect to its plain and obvious meaning.").
2 Ordinance No. 96-8 amended and superseded Ordinance No. 94-73. See Exhibit 4 at 1. While
Ordinance No. 94-73 contained a single reference to Chapter 23 in connection with the Bypass
Extension, that reference was deleted with the adoption of Ordinance No. 96-8. See id. at 25
(deleted language shown in brackets).
3 Both Ordinances required the "phasing of improvements" for the Mauka Haleki`i Extension
and Makai Haleki`i Extension to "be approved by the Department of Public Works." See Exhibit
3 at 15; Exhibit 4 at 24.
4860-3160-4157.3.051730- 00058 13
e. Construction Standards, Request 5.
Construction Standards, Request 5 asked the Planning Director to issue a declaratory
ruling on "[w]hether the express terms of the Ordinances prohibit variances under Chapter 23 for
the Haleki`i Extension, Makai Haleki`i Extension, and Connector Road[.]" See Exhibit 2 at 13.
As explained in Oceanside's Petition, the answer to this Request is no. Id. at 20. The express
terms of Ordinance No. 96-7 and Ordinance 96-8 do not prohibit variances under Chapter 23 for
the Mauka Haleki`i Extension, Makai Haleki`i Extension, and Connector Road. See Wells Fargo
Bank, N.A., 142 Hawai`i at 449, 420 P.3d at 380 ("`The fundamental starting point of statutory
interpretation is the language of the statute itself,' and `where the statutory language is
unambiguous, our duty is to give effect to its plain and obvious meaning.").
f. Variances Under Chapter 23, Request 3.
Variances Under Chapter 23, Request 3 asked"can a roadway subject to a properly
granted variance from Sections 23-86 and 23-95 of the Hawai`i County Code be in full
compliance with Chapter 23?" See Exhibit 2 at 14. As explained in Oceanside's Petition, the
answer to this Request is Yes. Id. at 22. A roadway that has been properly granted a variance
under HCC § 23-14, including a variance from HCC §§ 23-86 and 23-95, can still be in full
compliance with Chapter 23 because: (a) variances themselves are granted pursuant to Chapter
23; and(b) Chapter 23 does not prohibit or limit variances from HCC §§ 23-86 and 23-95.
g. Variances Under Chapter 23, Request 4.
Variances Under Chapter 23, Request 4 asked"if a roadway subject to a variance is
otherwise in full compliance with Chapter 23, can the County accept dedication of the roadway
under Section 23-10 of the Hawai`i County Code?" See Exhibit 2 at 14. As explained in
Oceanside's Petition, the answer to this Request is Yes. Id. at 22.
HCC § 23-10 provides that the County Council "shall not . . . receive by dedication . . .
4860-3160-4157.3.051730- 00058 14
any street in any subdivision opened or platted in the County after December 21, 1966, except
upon full compliance with the provisions of this chapter." HCC § 23-10 (emphasis added).
HCC § 23-10 cannot be read in isolation and without regard to the remainder of Chapter 23,
including HCC § 23-14 vesting the Planning Director with authority to grant variances. See
State v. O'Brien, 5 Haw.App. 491, 496, 704 P.2d 905, 909 (1985) ("The statutory language of a
subsection should not be read in isolation.").
As discussed above, a roadway that has been granted a variance can still be in"full
compliance with the provisions" of Chapter 23 under HCC § 23-10,because variances
themselves are granted pursuant to Chapter 23. See Section VI(A)(2)(f),supra. HCC § 23-10
does not qualify or limit how "full compliance with the provisions" of Chapter 23 must be
achieved, and it does not provide that a roadway subject to a variance cannot be dedicated or is
otherwise not in full compliance with Chapter 23.
h. Variances Under Chapter 23, Request 5.
Variances Under Chapter 23, Request 5 asked"can a roadway subject to a variance from
Sections 23-86 and 23-95 of the Hawai`i County Code be dedicated under Section 23-10 of the
Hawai`i County Code?" See Exhibit 2 at 14. As explained in Oceanside's Petition, the answer
to this Request is Yes. Id. at 23. So long as a roadway is otherwise in compliance with Chapter
23, it can be dedicated to the County under HCC § 23-10,notwithstanding that it has been
granted a variance from HCC § 23-86 and HCC § 23-95. See Sections VI(A)(2)(f) & (g), supra.
B. The Planning Director Erred in Ruling that Certain Requests Sought Review
of Prior Agency Action.
In the Declaratory Order, the Planning Director refused to issue declaratory rulings on the
following Requests on the grounds that they"improperly seek review or affirmance of a past
Department action, i.e., the issuance of Planning Variance 10-027, dated January 31, 2011 . . . ,
4860-3160-4157.3.051730- 00058 15
which is no longer appealable":
• Variances Under Chapter 23:
o Request 1: As of January 31, 2011, did Chapter 23 have provisions for granting
variances?
o Request 2: As of January 31, 2011, did the provisions for granting variances
under Chapter 23 allow for variances from Sections 23-86 and 23-95 of the
Hawai`i County Code?
• Variance Applications:
o Request 1: As of January 31, 2011, did Section 23-17(a) of the Hawai`i County
Code allow for notice of a variance application to be served by mail on owners of
interests in properties within 300 feet of the perimeter boundary of the applicant's
property?
o Request 2: As of January 31, 2011, did Section 23-17(a) of the Hawaii County
Code allow for proof of an applicant's service or good faith efforts to serve notice
of a variance application on neighboring property owners to be provided in the
form of an affidavit?
o Request 3: As of January 31, 2011, did Chapter 23 or any other statute,
ordinance, rule, or order within the Planning Director's jurisdiction require notice
of a variance application to be served on neighboring property owners other than
as provided in Section 23-17(a) of the Hawai`i County Code?
o Request 4: As of January 31, 2011, did Chapter 23 allow for any person
aggrieved by the decision of the Planning Director in the administration of
Chapter 23 to file an appeal with the Hawaii County Board of Appeals within
thirty days of the Planning Director's written decision?
o Request 5: As of January 31, 2011, did Chapter 23 or any other statute,
ordinance, rule, or order within the Planning Director's jurisdiction authorize an
appeal of the Planning Director's decision on a variance application other than by
filing an appeal with the Board of Appeals within thirty days of the Planning
Director's written decision on the variance application?
Declaratory Ruling at 8 (citing CARD).
While Oceanside agrees with (and does not appeal) the Planning Director's ruling that the
Variance is no longer appealable, these Requests did not improperly seek the "review or
affirmance" of the Variance. Rather, each of these Requests sought the Planning Director's
official interpretation of specific provisions of the County Code as of a specific date. Petitions
for declaratory rulings are designed for situations "where the applicability of relevant law is
4860-3160-4157.3.051730- 00058 16
unknown, either because the agency has not yet acted upon particular factual circumstances, or
for some other reason the applicability of some provisions of law have not been brought into
consideration." CARD, 114 Hawai`i at 194-95, 159 P.3d at 153-54 (emphasis added). Here,
Oceanside's Requests ask the Planning Director to provide his official interpretation of specific
provisions of the County Code, where those interpretations are at present unknown, subject to
dispute between parties, and"has not been brought into consideration." See id. The Requests do
not reference the Variance, much less ask the Planning Director to review or affirm the Variance.
The Planning Director abused his discretion in failing to issue rulings on these Requests.
Oceanside requests that the BOA either modify the Declaratory Order to issue the declaratory
rulings on these Requests set forth in Oceanside's Petition, or remand the matter back to the
Planning Director to do the same.
C. The Planning Director Erred in Ruling that He Cannot Issue Declaratory
Rulings on Interpretations of the Development Agreement.
In the Declaratory Order, the Planning Director refused to issue rulings on the following
Requests on the grounds that they seek interpretations of the Development Agreement, which the
Planning Director ruled is outside of his jurisdiction under PD Rule 3:
• Dedication Requirements:
o Request 3: Whether the express terms of the Development Agreement impose
any dedication obligations for the Mauka Haleki`i Extension, Makai Haleki`i
Extension, or Connector Road separate and apart from Ordinance No. 96-8?
• Construction Standards:
o Question 3: Whether the express terms of the Development Agreement set
specific construction standards to which the Mauka Haleki`i Extension, Makai
Haleki`i Extension, and Connector Road must be built to?
o Question 4: Whether the express terms of the Development Agreement require
compliance with Sections 23-86 and 23-95 of the Hawai`i County Code for the
Haleki`i Extension, Makai Haleki`i Extension, and Connector Road?
o Question 6: Whether the express terms of the Development Agreement prohibit
variances under Chapter 23 for the Haleki`i Extension, Makai Haleki`i Extension,
4860-3160-4157.3.051730- 00058 17
and Connector Road?
Declaratory Order at 8. The Planning Director erred in doing so.
PD Rule 3-1(a) authorizes the Planning Director"to issue a declaratory order as to the
applicability of any statutory provision, ordinance, or of any rule or order of the Director or the
[Planning] Department." The Development Agreement was authorized pursuant to HRS Chapter
46, Part VII and HCC Chapter 30. HCC § 30-4(c) directed the Office of the Mayor to "make
such rules and regulations as necessary to implement [HCC Chapter 30] pursuant to chapter 91,
Hawai`i Revised Statutes." Pursuant to this directive, the Office of the Mayor promulgated Rule
1 ("Mayor Rule 1"), which provides that the Planning Department "shall be responsible for the
overall administration of the [Development] Agreement." Mayor Rule 1-8.
Thus, the Planning Department is the agency charged with the overall administration of
the Development Agreement, which necessarily includes interpreting its provisions. Oceanside's
Petition explicitly referenced Mayor Rule 1 as a specific provision, rule, or order in question, as
required by PD Rule 3-1(b)(3). Exhibit 2 at 9. Although Mayor Rule 1 was not promulgated by
the Planning Department, it vests the Planning Department with authority and jurisdiction to
administer and interpret the Development Agreement. Mayor Rule 1 is no different than any
statute, ordinance, or provision of the County Code within the Planning Director's jurisdiction
and the scope of PD Rule 3, which are enacted by the legislature and County Council.
The Planning Director's interpretation of the Development Agreement is one of the
central issues the Circuit Court ordered Coupe to seek from the County. See Exhibit 7a at 5,
¶115(a)(d) & (e) (ordering Coupe to complete declaratory ruling process because the court"is not
the best-suited decision-maker for determining whether the Development Agreement and
Ordinances were actually complied with" and the court"may not substitute its judgment for the
expertise of the Planning Department and County of Hawaii Board of Appeals."); see also
4860-3160-4157.3.051730- 00058 18
Exhibit 7b at 5, ¶4(d) & (e).
The Planning Director abused his discretion in failing to issue rulings on these Requests.
Oceanside requests that the BOA either modify the Declaratory Order to issue the declaratory
rulings on these Requests set forth in Oceanside's Petition, or remand the matter back to the
Planning Director to do the same.
D. The Planning Director Erred in Ruling that Ordinance No. 96-7 Requires the
Dedication of the Mauka Halekii Extension, Makai Halekii Extension and
Connector Road.
In the Declaratory Order, the Planning Director ruled that"[t]aken in their entirety, the
Ordinances' roadway and public access requirements expressly require the Mauka Halekii
Extension, Makai Halekii Extension and Connector Road to be dedicated to the County."
Exhibit 1 at 11-12 (emphasis added). To the extent that the Planning Director's ruling
interpreted Ordinance No. 96-7 as requiring the dedication of Mauka Haleki`i Extension, Makai
Haleki`i Extension, and Connector Road,his ruling was in error.
'The fundamental starting point of statutory interpretation is the language of the statute
itself,' and `where the statutory language is unambiguous, our duty is to give effect to its plain
and obvious meaning."' See Wells Fargo Bank, N.A. v. Omiva, 142 Hawai`i 439, 449, 420 P.3d
370, 380 (2018) (internal citations omitted). The word"dedicate" (or any variation thereof)
appears nowhere in Ordinance No. 96-7. Nor does Ordinance No. 96-7 incorporate by reference
any of the requirements of Ordinance No. 96-8. See Exhibit 3,passim. Simply put, there is no
dedication obligation under the express, unambiguous terms of Ordinance No. 96-7. The
Planning Director's statement is overbroad and inaccurate for that reason, and the Director erred
to the extent he ruled that Ordinance No. 96-7 contains any dedication obligation.
4860-3160-4157.3.051730- 00058 19
E. The Planning Director Erred to the Extent he Qualified the Dedication of the
Mauka Haleki`i Extension.
In the Declaratory Order, the Planning Director ruled that"[t]o the extent the Mauka
Halekii Extension was effectively dedicated, such dedication satisfied those portions of
Ordinance 96-7, Condition M(4), and Ordinance 96-8, Condition L(4), applicable to the Mauka
Haleki`i Extension." Exhibit 1 at 12 (emphasis added). While Oceanside agrees with(and does
not appeal) the Planning Director's ruling that Oceanside's obligations under the Ordinances
have been satisfied in connection with the Mauka Haleki`i Extension, it is unclear what is meant
by the phrase "to the extent the Mauka Halekii Extension was effectively dedicated" dedicated.
If the phrase is intended to qualify or otherwise limit the validity or effect of the dedication of the
Mauka Haleki`i Extension, the Planning Director's ruling was in error.
As noted above, the Mauka Haleki`i Extension was dedicated to the County in 2012
pursuant to County Council Resolution No. 317-12. Exhibit 9. The Declaratory Order
acknowledges that the County Council's acceptance of the Mauka Haleki`i Extension was a
legislative act taken with the input of DPW that satisfies the conditions of the Ordinances. There
is no basis in law or fact, and it was arbitrary and an abuse of discretion, to qualify or limit in any
way the dedication of the Mauka Haleki`i Extension or Oceanside's satisfaction of the
Ordinances. That is particularly true where no particular legal or factual reason for that
qualification was stated, expressly or by implication, in the Declaratory Order. In addition, as
the Planning Director recognizes elsewhere in Declaratory Order, the Planning Director lacks
jurisdiction to review or affirm past Planning Department actions and to rule on actions by DPW
or the County Council. The Planning Director's apparent qualification could be construed as a
judgment on past actions taken by the Planning Department, DPW, and the County Council,
which the Planning Director lacks jurisdiction to issue.
4860-3160-4157.3.051730- 00058 20
F. The Planning Director Erred in Ruling that the Subdivision Agreements
between the County and 1250 Partners Have Not Been Satisfied.
The Declaratory Order notes that Oceanside's predecessor, 1250 Partners, obtained final
subdivision approval for Phase I and Phase II of Hokuli`a by entering into subdivision
agreements and posting bonds in lieu of actual construction of certain infrastructure and roadway
improvements, as allowed under HCC § 23-81 and the Ordinances. Exhibit 1 at 2. The
Declaratory Order goes on to assert that"[p]ortions of the covered improvements were
constructed by [1250 Partners] but many were uncompleted within the deadlines set in the
agreements," and that the County's Corporation Counsel sent a letter to 1250 Partners on April
29, 2010, outlining purported breaches of the Development Agreement and subdivision
agreements. Id. at 2-3. The Declaratory Order concludes that the subdivision "agreements have
not been satisfied and the bonds are no longer valid or enforceable." Id. at 11.
The Planning Director erred in ruling that the subdivision agreements for Phase I and
Phase II"have not been satisfied." Exhibit 1 at 11. That ruling is both clearly erroneous and in
violation of law because, inter alia, it based upon an inaccurate, incomplete, and misleading
factual history regarding the subdivision agreements and bonds. The Planning Director's ruling
is also vague and ambiguous, outside of the scope of the Requests submitted, and related to past
agency actions that are no longer appealable.
G. The Planning Director Erred to the Extent he Ruled that the Makai Haleki`i
Extension and Connector Road Have Not Been Constructed as Required
Under the Ordinances.
In the Declaratory Order, the Planning Director ruled that"[i]n order to comply with the
Ordinances, Oceanside must construct the Makai Haleki`i Extension and Connector Road to a
condition approved by DPW . . . ." Exhibit 1 at 12. To the extent that the Planning Director
ruled that the Makai Haleki`i Extension and Connector Road have not been constructed as
4860-3160-4157.3.051730- 00058 21
required under the Ordinances, his ruling was in error.
The Ordinances provide that "[r]oadway improvements . . . , including all plans and
construction, shall meet with the approval of the Department of Public Works." Exhibit 3 at 15-
16 (Ordinance No. 96-7, Condition (M)); Exhibit 4 at 23-26 (Ordinance 96-8, Condition (L)).
As noted above, the Makai Haleki`i Extension and Connector Road were constructed as part of
Phase I of Hokuli`a. Phase I received final subdivision approval in 1999, based on plans
reviewed and approved by DPW. Exhibit 10.
The Makai Haleki`i Extension and Connector Road are also subject to the Variance,
which received input from DPW and provided relief from HCC § 23-86 (requirements for
dedicable streets) and HCC § 23-95 (right-of-way improvements). Exhibit 8. The Variance
allowed for the "retention of existing and construction of new private 20-foot wide roadways
with 50 and 60-foot wide rights-of-way within" Hokuli`a and for the roadways "to omit the
requirement for grading and paving of the road shoulders and replace with grassed shoulders."
Id. at 1. The Makai Haleki`i Extension and Connector Road are fully constructed pursuant to
plans approved by DPW and,just like the Mauka Haleki`i Extension,both can be dedicated to
the County. The Planning Director erred to the extent that he ruled otherwise.
H. The Planning Director Erred by Sua Sponte Issuing Declaratory Rulings that
were not Requested by Oceanside.
Section III(B)(3)(c) of the Declaratory Order is titled"Applicability of a Variance." In
that section, the Planning Director states, inter alia, that: (a) "[b]ecause such a variance only
excuses performance under Chapter 23, Variance 10-027 cannot and does not effect an
amendment of an existing ordinance;" (b) "a Chapter 23 variance cannot and does not . . .
extinguish the authority of the DPW to set standards for or make determination regarding street
construction standards . . . or usurp Council's authority to accept or reject the dedication of
4860-3160-4157.3.051730- 00058 22
public infrastructure subject to the DPW Director's approval; and(c) "variances provide relief
only from Chapter 23's requirements: they do not relieve [Oceanside] from the Ordinance's
conditions."
However, Oceanside's Petition did not request the Planning Director to issue declaratory
rulings on these issues, including whether the Variance excused or amended the conditions
imposed under the Ordinances, or whether the Variance extinguished or usurped the roles played
by DPW and the County Council in the dedication process. The Planning Director's statements
in Section III(B)(3)(c) appear to be an end-run around the Requests related to variances that the
Planning Director acknowledged were properly before him under PD Rule 3, but failed to rule
on. See Section VI(A)(1),supra. Those unanswered Requests asked the Planning Director to
provide his official position on the interplay between variance and dedication provisions
contained in the County Code, and cannot reasonably be construed as the basis for the Planning
Director's statements in Section III(B)(3)(c).
Nothing in PD Rule 3 authorizes the Planning Director to sua sponte issue declaratory
rulings that were not requested by Oceanside. Section III(B)(3)(c) of the Declaratory Order
should be rescinded in its entirety.
VII. CONCLUSION AND REQUEST FOR RELIEF.
Based on the foregoing, as well as the arguments and evidence to be presented at a
hearing on this appeal, the BOA should modify the Declaratory Order to issue the declaratory
rulings and correct the Planning Director's other errors outlined above, or remand the matter
back to the Planning Director to do the same.
Oceanside hereby reserves the right to submit additional briefing and further evidence,
witnesses, and argument to the BOA at the hearing in this matter.
4860-3160-4157.3.051730- 00058 23
DATED: Honolulu, Hawai`i, May 28, 2024.
/s/Derek B. Simon
PATRICK K. WONG
DEREK B. SIMON
IAN WESLEY-SMITH
Attorneys for
1250 OCEANSIDE, LLC
4860-3160-4157.3.051730- 00058 24
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was duly served upon
the following parties by electronic mail(E-Mail) on May 28, 2024:
ELIZABETH A. STRANCE, ESQ.
JEAN K. CAMPBELL, ESQ.
LERISA L. HEROLDT, ESQ.
Corporation Counsel, County of Hawaii
Hilo Lagoon Center
101 Aupuni Street, Suite 325
Hilo Hawaii 96720
Attorneys for Defendant
COUNTY OF HAWAII
DATED: Honolulu, Hawai`i, May 28, 2024.
ls/Derek B. Simon
PATRICK K. WONG
DEREK B. SIMON
IAN R. WESLEY-SMITH
Attorneys for
1250 OCEANSIDE, LLC
4860-3160-4157.3.051730-00058