2024-10-04 Planning Director Pre-Hearing Brief (PL-BOA-2024-000104 & 105)

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Extension was effectively dedicated, such dedication adequately satisfied those portions of Ordinance 96-7, Condition M(4), and Ordinance 96-8, Condition L(4), applicable to the Mauka Haleki`i Extension. As noted above, the Ordinances' roadway improvement conditions were initially satisfied by the Original Developer's agreements and bonds pursuant to HCC§§ 23-81, 23-82, and 23-83, which allowed the issuance of final subdivision approval based on the construction assurances provided in the agreements and secured by the bonds. The agreements have not been satisfied and the bonds are no longer valid or enforceable. Thus, Oceanside has not fully satisfied the Ordinances' roadway improvement and dedication requirements because the Makai Halekii Extension and Connector Road have not been dedicated to the County. In order to comply with the Ordinances, Oceanside must construct the Makai Halekii Extension and Connector Road to a condition approved by DPW and dedicate the Makai Halekii Extension and Connector Road to the County. Neither Ordinance addresses any variance process. In accordance with HCC § 23-14, the Director may approve a variance from the Subdivision Code's requirements. Because such a variance only excuses performance under Chapter 23, Variance 10-027 cannot and does not effect an amendment of an existing ordinance. See Leone v. Cty. of Maui, 128 Hawaii 183, 193-96, 284 P.3d 956, 966- 969 (Haw. Ct. App. 2012)(explaining a variance cannot amend a community plan); see also Earley v. Bd. of Adjustment of Cerro Gordo Cty., 955 N.W.2d 812, 817 (Iowa 2021) ("The board cannot amend or set aside the zoning ordinance under the guise of a variance."); Ivancovich v. City of Tucson Bd. of Adjustment, 22 Ariz. App. 530, 535 (Ariz. Ct. App. 1974) ("The Board cannot amend or repeal any zoning ordinance [through a variance] for this power belongs to the City Council."). Furthermore, a Chapter 23-variance cannot and does not: (a) extinguish the authority of the DPW to set standards for or make determinations regarding street construction standards; or (b) usurp Council's authority to accept or reject the dedication of public infrastructure subject to the DPW Director's approval. While the Director has the authority to issue variances from Chapter 23's requirements, those variances provide relief only from Chapter 23's requirements: they do not relieve Petitioner from the Ordinance's conditions. The DPW's Director has the authority to set standards for and make determinations regarding street construction, See HCC § 2-40, and the Council has authority over dedication of public infrastructure, including streets. See HCC§ 2-162.1(b). To the extent that the Ordinances require the dedication of the Makai Haleki i Extension and the Connector Road to the County, subject to the DPW Director's approval, and said roadways remain privately held, such obligations remain unsatisfied and the Petitioner has not met its obligations under the Ordinances. ROA#105 at 392-394. 11