HomeMy WebLinkAbout2024-10-04 1250 Oceanside LLC Consolidated Hearing Brief (PL-BOA-2024-000104 & 105) 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(a,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 HAWAI`I
In the Matter of Appeal Case No. PL-BOA-2024-000104 &000105
of 1250 OCEANSIDE, LLC'S
CONSOLIDATED HEARING BRIEF;
1250 OCEANSIDE, LLC CERTIFICATE OF SERVICE
From the decision of the Planning Director, Hearing:
dated April 29, 2024 (Docket Nos. 24-0001 & Date: October 11 2024
24-0002) Time: 9:30 a.m. in Kona
1250 OCEANSIDE, LLC'S CONSOLIDATED HEARING BRIEF
4881-6366-3335.6.051730-00058 1
TABLE OF CONTENTS
Page
I. INTRODUCTION 1
II. EXECUTIVE SUMMARY AND RELIEF REQUESTED 3
A. Summary of Errors Specific to the Oceanside Order(Appeal No. 105):
The Planning Director's Failure to Answer Oceanside's Requests 3
B. Summary of Errors Common to both Orders and Appeals: Incorrect
Rulings By the Planning Director 8
III. BACKGROUND FACTS 10
A. Early Development of Hokuli`a by Oceanside's Predecessor-in-Interest 10
B. Oceanside Takes Over Development of Hokuli`a 11
C. Coupe's Lawsuit 12
IV. LEGAL STANDARD 12
V. ARGUMENTS SPECIFIC TO THE OCEANSIDE ORDER: THE PLANNING
DIRECTOR'S FAILURE TO ANSWER OCEANSIDE'S REQUESTS 13
A. The Planning Director Erred by not Ruling Upon Requests he Determined
were Properly Before Him, and not Issuing Oceanside's Requested
Rulings 13
1. Dedication Requirements, Request 1 15
2. Dedication Requirements, Request 2 15
3. Construction Standards, Request 1 16
4. Construction Standards, Request 2 17
5. Construction Standards, Request 5 17
6. Variances Under Chapter 23, Request 3 18
7. Variances Under Chapter 23, Request 4 19
8. Variances Under Chapter 23, Request 5 19
B. Declaratory Rulings on Interpretation of the Development Agreement 20
C. Planning Director's Ruling that Requests Sought Review of Prior Action 21
D. The Planning Director Erred by Sua Sponte Issuing Declaratory Rulings
that were not Requested by Oceanside 22
VI. ARGUMENTS COMMON TO BOTH ORDERS (APPEAL NOS. 104 & 105):
INCORRECT RULINGS BY THE PLANNING DIRECTOR 23
A. The Planning Director Erred in Ruling that Ordinance No. 96-7 Requires
the Dedication of the Roadways at Issue 23
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TABLE OF CONTENTS
(continued)
Page
B. The Planning Director Erred to the Extent he Qualified the Dedication of
the Mauka Haleki`i Extension 24
C. The Planning Director Erred to the Extent he Ruled that the Makai
Haleki`i Extension and Connector Road Have Not Been Constructed as
Required 25
VII. CONCLUSION 26
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TABLE OF AUTHORITIES
Page(s)
Cases
Adams v. CDM Media USA, Inc.,
135 Hawai`i 1, 346 P.3d 70 (2015) 18
Citizens Against Reckless Dev. v. Zoning Bd. of Appeals of City & Cnty. of
Honolulu,
114 Haw. 184, 159 P.3d 143 (2007) 13, 21
Lana`fans for Sensible Growth v. Land Use Comm'n,
146 Hawai`i 496, 463 P.3d 1153 (2020) 16
RGIS Inventory Specialist v. Hawaii C.R. Comm'n,
104 Haw. 158, 86 P.3d 449 (2004) 23
State v. 0'Brien,
5 Haw.App. 491, 704 P.2d 905 (1985) 19
Wells Fargo Bank, N.A. v. Omiya,
142 Hawai`i 439, 420 P.3d 370 (2018) 15, 16, 17, 24
Statutes
Hawai`i County Code (HCC) § 23-10 5, 14, 19
HCC § 23-14 18, 19
HCC § 23-17(a) 8
HCC § 23-86 17, 18, 19, 25
HCC § 23-95 18, 19, 25
HCC § 30-4(c) 20
HCC §§ 23-86 and 23-95 passim
HCC Chapter 30 20
HRS § 91-8 13, 14, 23
Ordinance No. 94-73 16
Ordinance No. 96-7 passim
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Ordinance No. 96-8 passim
Other Authorities
Mayor Rule 1 5, 20
Mayor Rule 1-8 20
Planning Director Rule 3 13, 14, 23
Planning Director Rule 3-1(a) 20
Planning Director Rule 3-1(b)(3) 20
Planning Director Rule 3-1(c) 14
Planning Director Rule 3-14 1
Board of Appeals Rule 3-14 1
Board of Appeals Rule 8-13 13
Board of Appeals Rule 8-15 13
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I. INTRODUCTION
Appellant 1250 Oceanside, LLC ("Oceanside")1 is the current developer of the master-
planned 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 of
Hawaii ("County"), including rezoning Ordinances No. 96-7 ("Ordinance No. 96-7") and No.
96-8 ("Ordinance No. 96-8"; together, the "Ordinances"). 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.
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
to the present appeals, the Ordinances required the construction of the following roadways:
• An extension of Ali`i Drive/the Mamalahoa By-Pass ("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
Oceanside is mindful that Rule 3-14 of the Board of Appeals ("BOA") Rules of Practice and
Procedures ("BOA Rules") limits briefs to 20 pages. However, because the case presentations in
these appeals have been consolidated, Oceanside files this single Consolidated Hearing Brief that
slightly exceeds the page limitation, rather than filing two separate briefs of up to 20 pages each.
4881-6366-3335.6.051730-00058 1
Extension,which was dedicated to the County in 2012 and 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.
These are not standard appeals involving a landowner contesting a notice of violation or a
developer seeking land use entitlements in the face of public opposition. In March 2023,
Intervenor C &J Coupe Family Limited Partnership ("Coupe") filed a lawsuit alleging that
Oceanside has failed to comply with, and the County has failed to enforce, certain conditions of
approval related to these roadways. Coupe 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.
Because Coupe's lawsuit is premised on the interpretation of various provisions of the
Ordinances, Development Agreement, and Hawai`i County Code ("HCC"), the court stayed the
lawsuit pending Coupe completing Appellee Planning Director's declaratory ruling process and
any appeals to the BOA. The court directed the parties to obtain declaratory rulings so that they
could get the Planning Director's official positions on certain issues raised in the lawsuit, with
the hope that doing so would help resolve (or at least narrow) these issues.
Both Coupe and Oceanside filed Petitions for Declaratory Ruling with the Planning
Director. Ex. 104-2; Ex. 104-3; Ex. 105-2. The requested declaratory rulings focused on the
construction standards and dedication requirements for the Makai Haleki`i Extension, Mauka
2
Oceanside's predecessor also spent approximately $36 million on the Bypass Extension.
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Haleki 'i Extension, and Connector Road. The Planning Director subsequently issued two
Declaratory Orders on April 29, 2024— one addressing Coupe's Petitions ("Coupe Order") and
the other addressing Oceanside's Petition ("Oceanside Order"; together, "Orders"). Ex. 104-1;
Ex. 105-1. Oceanside thereafter appealed certain portions of both Orders to the BOA.
IL EXECUTIVE SUMMARY AND RELIEF REQUESTED.
The following sections summarize the errors Oceanside has appealed and the relief it is
seeking. Because there is overlap in the Orders, the first section below addresses errors specific
to the Oceanside Order, while the following section addresses errors common to both Orders.
A. Summary of Errors Specific to the Oceanside Order (Appeal No. 105): The
Planning Director's Failure to Answer Oceanside's Requests.
Oceanside's Petition included a total of twenty-four(24) discrete requests for declaratory
rulings ("Requests") from the Planning Director that should have been capable of being
answered with a simple "yes" or"no." However, the Planning Director erred by failing or
refusing to issue rulings on the majority of Oceanside's Requests, for the following three
reasons. The BOA should remand this matter back to the Planning Director with instructions to
respond to the Oceanside's Requests as set forth below, or modify the Oceanside Order itself
First, although the Planning Director correctly ruled that he could render declaratory
rulings on eight of Oceanside's Requests, he erred by failing to actually do so in the Oceanside
Order. Compare Ex. 105-1 at 9-10, with id. at 11-12. The following table summarizes the
Requests falling in this first category of error(none of which were answered by the Planning
Director) and the relief Oceanside seeks:
No. Request Argument and Relief
Dedication Requirements
1. Whether the express terms of Ordinance The answer to this Request is No.
No. 96-7 require the dedication of the The BOA should remand this matter back to the
Mauka Haleki`i Extension, Makai Planning Director to issue the following ruling:
Haleki`i Extension, or Connector Road?
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No. Request Argument and Relief
The express terms of Ordinance No. 96-7 do
not require the dedication of the Mauka
Haleki`i Extension, Makai Haleki`i
Extension, or Connector Road.
2. Whether the express terms of Ordinance The answer to this Request is No.
No. 96-8 require the dedication of the The BOA should remand this matter back to the
Mauka Haleki`i Extension, Makai Planning Director to issue the following ruling:
Haleki`i Extension, or Connector Road The express terms of Ordinance No. 96-8 do
by a date certain or any milestone in the not require the dedication of the Mauka
development of Hokuli`a?
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
1. Whether the express terms of the The answer to this Request is No.
Ordinances set specific construction The BOA should remand this matter back to the
standards to which the Mauka Haleki`i
Planning Director to issue the following ruling:
Extension, Makai Haleki`i Extension, The express terms of the Ordinances do not
and Connector Road must be built to? set specific construction standards to which
the Mauka Haleki`i Extension, Makai
Haleki`i Extension, and Connector Road
must be built to.
2. Whether the express terms of the The answer to this Request is No.
Ordinances require compliance with The BOA should remand this matter back to the
Sections 23-86 and 23-95 of the Hawaii
Planning Director to issue the following ruling:
County Code for the Haleki`i Extension, The express terms of the Ordinances do not
Makai Haleki`i Extension, and require compliance with Sections 23-86 and
Connector Road? 23-95 of the Hawaii County Code for the
Haleki`i Extension, Makai Haleki`i
Extension, and Connector Road.
5. Whether the express terms of the The answer to this Request is No.
Ordinances prohibit variances under The BOA should remand this matter back to the
Chapter 23 for the Haleki`i Extension,
Planning Director to issue the following ruling:
Makai Haleki`i Extension, and The express terms of the Ordinances do not
Connector Road? prohibit variances under Chapter 23 for the
Haleki`i Extension, Makai Haleki`i
Extension, and Connector Road.
Variances Under Chapter 23
3. Can a roadway subject to a properly The answer to this Request is Yes.
granted variance from Sections 23-86 The BOA should remand this matter back to the
and 23-95 of the Hawaii County Code Planning Director to issue the following ruling:
be in full compliance with Chapter 23? A roadway subject to a properly granted
variance from Sections 23-86 and 23-95 of
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No. Request Argument and Relief
the Hawaii County Code can be in full
compliance with Chapter 23.
4. If a roadway subject to a variance is The answer to this Request is Yes.
otherwise in full compliance with The BOA should remand this matter back to the
Chapter 23, can the County accept Planning Director to issue the following ruling:
dedication of the roadway under Section A roadway that is subject to a variance and
23-10 of the Hawaii County Code? is otherwise in full compliance with Chapter
23 can be accepted for dedication by the
County under Section 23-10 of the Hawaii
County Code.
5. Can a roadway subject to a variance The answer to this Request is Yes.
from Sections 23-86 and 23-95 of the The BOA should remand this matter back to the
Hawaii County Code be dedicated Planning Director to issue the following ruling:
under Section 23-10 of the Hawaii A roadway subject to a variance from
County Code? Sections 23-86 and 23-95 of the Hawaii
County Code can be dedicated under Section
23-10 of the Hawaii County Code.
Second, the Planning Director erred by ruling that he could not render declaratory rulings
on four Requests related to the Development Agreement. The Hawai`i County Mayor
promulgated Mayor Rule 1, under which authority"for the overall administration" of
development agreements was delegated to the Planning Department. This necessarily includes
interpreting the provisions of the Development Agreement and provides a clear basis for the
Planning Director to issue declaratory rulings. The following table summarizes the Requests
falling in this second category of error(none of which were answered by the Planning Director)
and the relief Oceanside seeks:
No. Request Argument and Relief
Dedication Requirements
3. Whether the express terms of the The answer to this Request is No.
Development Agreement impose any The BOA should remand this matter back to the
dedication obligations for the Mauka Planning Director to issue the following ruling:
Haleki`i Extension, Makai Haleki`i The express terms of the Development
Extension, or Connector Road separate Agreement do not impose any dedication
and apart from Ordinance No. 96-8? obligations for the Mauka Haleki`i
Extension, Makai Haleki`i Extension, or
Connector Road separate and apart from
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No. Request Argument and Relief
Ordinance No. 96-8.
Construction Standards
3. Whether the express terms of the The answer to this Request is No.
Development Agreement set specific The BOA should remand this matter back to the
construction standards to which the Planning Director to issue the following ruling:
Mauka Haleki`i Extension, Makai The express terms of the Development
Haleki`i Extension, and Connector Road Agreement do not set specific construction
must be built to? standards to which the Mauka Haleki`i
Extension, Makai Haleki`i Extension, and
Connector Road must be built to.
4. Whether the express terms of the The answer to this Request is No.
Development Agreement require The BOA should remand this matter back to the
compliance with Sections 23-86 and 23- planning Director to issue the following ruling:
95 of the Hawaii County Code for the The express terms of the Development
Haleki`i Extension, Makai Haleki`i Agreement do not require compliance with
Extension, and Connector Road? Sections 23-86 and 23-95 of the Hawaii
County Code for the Haleki`i Extension,
Makai Haleki`i Extension, and Connector
Road.
6. Whether the express terms of the The answer to this Request is No.
Development Agreement prohibit The BOA should remand this matter back to the
variances under Chapter 23 for the Planning Director to issue the following ruling:
Haleki`i Extension, Makai Haleki`i The express terms of the Development
Extension, and Connector Road? Agreement do not prohibit variances under
Chapter 23 for the Haleki`i Extension,
Makai Haleki`i Extension, and Connector
Road.
Third, the Planning Director erred by ruling that he could not render declaratory rulings
on seven Requests because they purportedly sought to review or affirm prior actions taken by the
Planning Director. None of these Requests mention, much less ask the Planning Director to
review or affirm, prior Planning Director actions. Instead, each simply sought the Planning
Director's official interpretation of the County Code as of a specific date. The following table
summarizes the Requests falling in this third category of error (none of which were answered by
the Planning Director) and the relief Oceanside seeks:
//
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No. Request Argument and Relief
Variances Under Chapter 23
1. As of January 31, 2011, did Chapter 23 The answer to this Request is Yes.
have provisions for granting variances? The BOA should remand this matter back to the
Planning Director to issue the following ruling:
As of January 31, 2011, Chapter 23 had
provisions for granting variances.
2. As of January 31, 2011, did the The answer to this Request is Yes.
provisions for granting variances under The BOA should remand this matter back to the
Chapter 23 allow for variances from Planning Director to issue the following ruling:
Sections 23-86 and 23-95 of the Hawaii As of January 31, 2011, the provisions for
County Code? granting variances under Chapter 23
allowed for variances from Sections 23-86
and 23-95 of the Hawaii County Code.
Variance Applications
1. As of January 31, 2011, did Section 23- The answer to this Request is Yes.
17(a) of the Hawaii County Code allow The BOA should remand this matter back to the
for notice of a variance application to be Planning Director to issue the following ruling:
served by mail on owners of interests in As of January 31, 2011, Section 23-17(a) of
properties within 300 feet of the the Hawaii County Code allowed for notice
perimeter boundary of the applicant's of a variance application to be served by mail
property? on owners of interests in properties within
300 feet of the perimeter boundary of the
applicant's property.
2. As of January 31, 2011, did Section 23- The answer to this Request is Yes.
17(a) of the Hawaii County Code allow The BOA should remand this matter back to the
for proof of an applicant's service or Planning Director to issue the following ruling:
good faith efforts to serve notice of a As of January 31, 2011, Section 23-17(a) of
variance application on neighboring the Hawaii County Code allowed for proof
property owners to be provided in the of an applicant's service or good faith efforts
form of an to serve notice of a variance application on
neighboring property owners to be provided
in the form of an affidavit.
3. As of January 31, 2011, did Chapter 23 The answer to this Request is No.
or any other statute, ordinance, rule, or The BOA should remand this matter back to the
order within the Planning Director's Planning Director to issue the following ruling:
jurisdiction require notice of a variance As of January 31, 2011, neither Chapter 23
application to be served on neighboring nor any other statute, ordinance, rule, or
property owners other than as provided order within the Planning Director's
in Section 23-17(a) of the Hawaii
County Code? jurisdiction required notice of a variance
application to be served on neighboring
property owners other than as provided in
Section 23-17(a) of the Hawaii County Code.
4881-6366-3335.6.051730-00058 7
No. Request Argument and Relief
4. As of January 31, 2011, did Chapter 23 The answer to this Request is Yes.
allow for any person aggrieved by the The BOA should remand this matter back to the
decision of the Planning Director in the Planning Director to issue the following ruling:
administration of Chapter 23 to file an As of January 31, 2011, Chapter 23 allowed
appeal with the Hawaii County Board for any person aggrieved by the decision of
of Appeals within thirty days of the the Planning Director in the administration
Planning Director's written decision? of Chapter 23 to file an appeal with the
Hawaii County Board of Appeals within
thirty days of the Planning Director's written
decision.
5. As of January 31, 2011, did Chapter 23 The answer to this Request is No.
or any other statute, ordinance, rule, or The BOA should remand this matter back to the
order within the Planning Director's Planning Director to issue the following ruling:
jurisdiction authorize an appeal of the As of January 31, 2011, neither Chapter 23
Planning Director's decision on a nor any other statute, ordinance, rule, or
variance application other than by filing order within the Planning Director's
an appeal with the Board of Appeals jurisdiction authorized an appeal of the
within thirty days of the Planning Planning Director's decision on a variance
Director's written decision on the application other than by filing an appeal
variance application? with the Board of Appeals within thirty days
of the Planning Director's written decision
on the variance application.
Finally, the Planning Director erred by sua sponte issuing certain rulings in Section
III(B)(3)(c) of the Oceanside Order related to variances under HCC Chapter 23 that were neither
requested nor argued by Oceanside, which he lacks authority to do. Ex. 105-1 at 12. The BOA
should remand this matter to the Planning Director to rescind Section III(B)(3)(c) in its entirety.
B. Summary of Errors Common to both Orders and Appeals: Incorrect
Rulings By the Planning Director.
The following summarizes the errors common to both the Oceanside Order and Coupe
Order that Oceanside has appealed, which concern erroneous rulings issued by the Planning
Director. Oceanside requests that the BOA either remand these rulings back to the Planning
Director to correct his errors, or modify the Orders to do the same.
First, in both Orders, the Planning Director ruled that "[t]aken in their entirety, the
Ordinances' roadway and public access requirements expressly require the Mauka Halekii
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Extension, Makai Halekii Extension and Connector Road to be dedicated to the County." Ex.
104-1 at 11-12; Ex. 105-1 at 11-12. Because the Planning Director's ruling appears to at least
imply that Ordinance No. 96-7 requires the dedication of these roadways, his ruling was in error.
The word "dedicate" (or any variation thereof) appears nowhere in Ordinance No. 96-7.
Second, in both Orders, 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 . . . and Ordinance 96-8 . . . applicable to the Mauka Haleki`i Extension." Ex.
104-1 at 12 (emphasis added); Ex. 105-1 at 11. Oceanside agrees with— and has not appealed—
the Planning Director's ruling that the Ordinances have been satisfied in connection with the
Mauka Haleki`i Extension. However, if the phrase "to the extent the Mauka Halekii Extension
was effectively dedicated," is intended to qualify or otherwise limit the effect of the dedication of
the Mauka Haleki`i Extension, the Planning Director's ruling was partially in error.
Third, in both Orders, 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[.]" Ex. 104-1 at 11; Ex. 105-1 at 12. The Planning Director's
ruling was erroneous because the Makai Haleki`i Extension and Connector Road were
constructed as part of Phase I of Hokuli`a pursuant to plans reviewed and approved by DPW.
Ex. 104-11; Ex. 105-10. The Makai Haleki`i Extension and Connector Road are also subject to
a variance under HCC Chapter 23, which received input from DPW. 104-ROA at 1596-1603;
Ex. 105-8. Just like the Mauka Haleki`i Extension, both the Makai Haleki`i Extension and
Connector Road are fully constructed and capable of being dedicated to the County.
4881-6366-3335.6.051730-00058 9
III. BACKGROUND FACTS
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, and following
several years of litigation, 1250 Partners revised its master plan to address concerns expressed by
the community, ultimately proposing a lower-density, agriculturally-focused development.
As part of its revised master plan, 1250 Partners committed to providing significant
public improvements and community benefits. These included, inter alia, the development of an
approximately 140-acre 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 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 other entitlements 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. Ex. 104-11; Ex. 105-10.
4881-6366-3335.6.051730-00058 10
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. However, 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. 104-ROA at 1596-1603; Ex. 105-8. 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.
Oceanside acquired 1250 Partners' loan in late 2012, but before development could be
fully resumed, 1250 Partners needed to restructure its debt under Chapter 11 of the U.S.
Bankruptcy Code. During this time, however, the Mauka Haleki`i Extension was completed,
which, like the Makai 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. Ex. 104-10; Ex. 105-9.
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 I Wastewater Treatment Plant, additional infrastructure improvements in subdivision
Phases I and II, various golf course related amenities, and all archaeological mitigation. The
4881-6366-3335.6.051730-00058 11
archaeological and cultural sites within Hokuli`a are actively monitored and maintained by the
Hokuli`a Parks and Cultural Sites Association, which is funded by 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.
Public access to the Shoreline Park is guaranteed in perpetuity pursuant to a public access
easement in favor of the County. Ex. 104-14; Ex. 105-13. 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 underway. 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. Ex. 104-17; Ex. 105-16. 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 in the process of obtaining an updated total balance of fair share credits.
C. Coupe's Lawsuit.
On March 31, 2023, Coupe filed its lawsuit against the County and Oceanside. Ex. 104-
7; Ex. 105-6. Coupe's Complaint alleges that Oceanside has failed to comply with, and the
County has failed to enforce, the Ordinances and Development Agreement. 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 the Development Agreement.
Exs. 104-8a & 104-8b; Exs. 105-7a & 105-7b. As a result, the Circuit Court stayed Coupe's
lawsuit and ordered Coupe to complete the County's declaratory ruling process.
IV. LEGAL STANDARD
The BOA has the power to reverse, modify, or remand a decision by the Planning
4881-6366-3335.6.051730-00058 12
Director if the BOA finds that the decision is: (a) in violation of the Code or other applicable
law; (b) clearly erroneous in view of the reliable, probative, and substantial evidence on the
whole record; or(c) arbitrary, or capricious, or characterized by an abuse of discretion or clearly
unwarranted exercise of discretion. BOA Rule 8-15; BOA Rule 8-13.
V. ARGUMENTS SPECIFIC TO THE OCEANSIDE ORDER: THE PLANNING
DIRECTOR'S FAILURE TO ANSWER OCEANSIDE'S REQUESTS.
A. The Planning Director Erred by not Ruling Upon Requests he Determined
were Properly Before Him, and not Issuing Oceanside's Requested Rulings.
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"). 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. at 195, 159 P.3d at 154.
In the Oceanside Order, the Planning Director correctly ruled that the following eight
Requests were within his jurisdiction and properly before him 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
4881-6366-3335.6.051730-00058 13
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 Hawai`i 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?
Ex. 105-1 at 9-10.
However, the Planning Director failed to render declaratory rulings on each of these
Requests. For example, the Oceanside Order does not rule on, inter alia, whether Ordinance No.
96-8 requires 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
express construction standards for these roadways; or whether a roadway subject to a properly
granted variance from HCC §§ 23-86 and 23-95 can be in full compliance with HCC Chapter 23.
Once a petition for declaratory ruling is filed, the Planning Director can respond in only
one of two ways; he can either: (a) "deny the petition in writing, stating the reasons for such
denial;" or(b) "issue a declaratory order on the matters contained in the petition." PD Rule 3-
1(c). The Planning Director's failure to rule upon these Requests — after acknowledging that
they were properly before him under PD Rule 3 —was not grounded in HRS § 91-8 or any
provision of PD Rule 3, and was therefore arbitrary, capricious, and an abuse of his discretion.
4881-6366-3335.6.051730-00058 14
Details on each Request the Planning Director failed to answer or rule upon are set forth
below. The BOA should remand this matter back to the Planning Director to modify the
Oceanside Order and issue the declaratory rulings requested by Oceanside, or do so itself.
1. Dedication Requirements, Request 1.
Dedication Requirements, Request 1 asked"[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[.]" Ex. 105-2 at 13. 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) ("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. Ex. 105-3. Simply put, there is no requirement under the unambiguous
terms of Ordinance No. 96-7 that these roadways be dedicated to the County.
2. Dedication Requirements, Request 2.
Dedication Requirements, Request 2 asked"[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[.]" Ex. 105-2
at 13. 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 Hawaii at 449, 420 P.3d at 380 ("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." Ex. 105-4 at 26.
4881-6366-3335.6.051730-00058 15
There are obvious, common-sense reasons why the County Council did not dictate the
timing for the dedication of these roadways. These include, inter alia, the fact that the public
was separately guaranteed perpetual access to the Shoreline Park under the Ordinances by way of
a public access easement,3 and the fact that the purpose of the Connector Road and stub-outs is to
allow for the extension of the Connector Road to potential future developments to the north and
south. To this day, however, no such developments exist and they would likely face significant
community opposition and entitlement hurdles if they are ever proposed. Ex. 105-18 at 1-6.
Simply put, the Connector Road is essentially road to nowhere until future development is
untaken and the Connector Road is extended across the adjacent properties to the north or south.
3. Construction Standards, Request 1.
Construction Standards, Request 1 asked"[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[.]" Ex. 105-2 at 13. 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, or Connector Road. See
Wells Fargo Bank, N.A., 142 Hawai`i at 449, 420 P.3d at 380 ("where the statutory language is
unambiguous, our duty is to give effect to its plain and obvious meaning."). Nor do they
reference any provision of HCC Chapter 23.4 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.
3 Ex. 104-14 (recorded public access easement); Ex. 105-13 (same).
4 Ordinance No. 96-8 amended and superseded Ordinance No. 94-73. See Ex. 105-4 at 1. While
Ordinance No. 94-73 contained a single reference to HCC Chapter 23 in connection with the
Bypass Extension, it was deleted with the adoption of Ordinance No. 96-8. See id. at 25.
4881-6366-3335.6.051730-00058 16
Ex. 105-3 (emphasis added); Ex. 105-4.
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 Comin'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."
4. Construction Standards, Request 2.
Construction Standards, Request 2 asked"[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[.]" Ex. 105-2 at 13.
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 or HCC § 23-86, or even a single reference to
HCC Chapter 23. Wells Fargo Bank, N.A., 142 Hawai`i at 449, 420 P.3d at 380 ("where the
statutory language is unambiguous, our duty is to give effect to its plain and obvious meaning.").
5. Construction Standards, Request 5.
Construction Standards, Request 5 asked"[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[.]" Ex. 105-2 at 13. 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 HCC 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 ("where the
statutory language is unambiguous, our duty is to give effect to its plain and obvious meaning.").
4881-6366-3335.6.051730-00058 17
6. 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?" Ex. 105-2 at 14. The answer to this Request is Yes. Id. at 22.
HCC § 23-14 prescribes the scope of permissible variances from the requirements of
HCC Chapter 23,providing that: "Variances from the provisions of this chapter may be
granted[.]" (Emphasis added). The reference to "the provisions of this chapter"in HCC § 23-14
broadly refers to all of HCC Chapter 23; it does not contain exceptions or exclusions for any
provision of HCC Chapter 23, including HCC § 23-86 and HCC § 23-95.
HCC § 23-14 contains only two general limitations or exceptions—it prohibits variances
that "allow the introduction of a use not otherwise permitted within the district" or"primarily
effectuate relief from applicable density limitations." HCC § 23-14. Under the "principle of
expressio unius est exclusio alterius . . . the express inclusion of certain items in a statutory list
implies the exclusion of others and of alternatives." Adams v. CDM Media USA, Inc., 135
Hawai`i 1, 18, 346 P.3d 70, 87 (2015). Thus, "when the legislature has created certain
exceptions, 'it does not follow that courts have authority to create others.' The `proper
inference' from a list of exceptions to a statute is that the legislature `considered the issue of
exceptions and, in the end, limited the statute to the ones set forth.'" Id. at 18-19, 346 P.3d at 87-
88. When the County Council enacted HCC § 23-14, it necessarily considered what limitations
or exceptions were to be placed on the Planning Director's authority to grant variances under
HCC Chapter 23. The County Council elected to not create any limitations or exceptions for
specific provisions, including HCC § 23-86 and HCC § 23-95.
Thus, 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 HCC Chapter 23
4881-6366-3335.6.051730-00058 18
because: (a) variances themselves are granted pursuant to HCC Chapter 23; and(b) HCC
Chapter 23 does not prohibit or limit variances from HCC §§ 23-86 and 23-95.
7. 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?" Ex. 105-2 at 14. The answer to this Request
is Yes. Id. at 22.
HCC § 23-10 provides that the County Council"shall not . . . receive by dedication . . .
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 HCC 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 HCC Chapter 23 under HCC § 23-10, because variances
themselves are granted pursuant to HCC Chapter 23. See Section V(A)(6), supra. HCC § 23-10
does not qualify or limit how "full compliance with the provisions" of HCC Chapter 23 must be
achieved, and it certainly does not provide that a roadway subject to a variance cannot be
dedicated or is otherwise not in full compliance with HCC Chapter 23.
8. 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?" Ex. 105-2 at 14. The answer to this Request is Yes. Id. at 23.
4881-6366-3335.6.051730-00058 19
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 V(A)(6) & (7),supra.
B. Declaratory Rulings on Interpretation of the Development Agreement.
In the Oceanside Order, the Planning Director refused to issue rulings on four Requests
on the grounds that they sought interpretations of the Development Agreement. Ex. 105-1 at 8;
see also Section II(A) (table summarizing Requests). 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 HCC Chapter
30, which directed the Mayor to "make such rules and regulations as necessary to implement
[HCC Chapter 30.]" HCC § 30-4(c). Pursuant to this directive, the Mayor promulgated Mayor
Rule 1, which provides that the Planning Department "shall be responsible for the overall
administration of the [Development] Agreement." Ex. 105-11 (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). Ex. 105-2 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 thus no different than
any statute, ordinance, or provision of the County Code that are enacted by the legislature and
County Council, but carried out and implemented by the Planning Department. This provides
the Planning Director with a clear basis to render declaratory rulings.
In fact, the Planning Director's determination he cannot render declaratory rulings on the
4881-6366-3335.6.051730-00058 20
Development Agreement is directly contradicted by his own statements in the Orders, including:
• "[T]he Ordinances and other land use regulations applicable to the Project were
`locked in" as of the date of the Development Agreement for a period of thirty years."
• "[T]he Development Agreement required the Original Developer to post a bond in
favor of the County to assure that improvements relating to various roadway
requirements would be constructed . . . . Development Agreement § 13(b)."
Ex. 104-1 at 1-2; Ex. 105-1 at 1-2. If the Planning Director has authority to make statements as
to the effect and requirements of the Development Agreement in the Orders, he also has
authority to respond to Oceanside's Requests asking him to do the same.
The Planning Director's interpretation of the Development Agreement is one of the
central issues the court ordered the parties to seek. See Ex. 105-7a at 5, 715(a)(d) & (e); Ex.
105-7b at 5, ¶4(d) & (e). Oceanside requests that the BOA remand the matter back to the
Planning Director with instructions to modify the Oceanside Order to issue the declaratory
rulings on these Requests set forth in Oceanside's Petition, or modify the Oceanside Order itself.
C. Planning Director's Ruling that Requests Sought Review of Prior Action.
In the Oceanside Order, the Planning Director refused to issue declaratory rulings on
seven Requests on the grounds they"improperly seek review or affirmance of a past Department
action, i.e., the issuance of Planning Variance 10-027 . . . , which is no longer appealable." Ex.
105-1 at 8; see also Section II(A) (table summarizing Requests). While Oceanside agrees with—
and has not appealed—the Planning Director's ruling that the Variance is no longer appealable,
these Requests did not seek the "review or affirmance" of the Variance. Rather, each sought the
Planning Director's interpretation of provisions of the County Code as of a specific date.
Petitions for declaratory rulings are intended for situations "where the applicability of
relevant law is 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
4881-6366-3335.6.051730-00058 21
been brought into consideration." CARD, 114 Hawai`i at 194-95, 159 P.3d at 153-54 (emphasis
added). Oceanside's Petition specifically noted that it was being filed"to ensure Oceanside has
certainty as it continues to develop Hokuli`a." Ex. 105-2 at 12. Oceanside's Requests asked 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
"ha[ve] not been brought into consideration." The Requests do not reference the Variance, much
less ask the Planning Director to review or affirm the Variance.
The Planning Director acted arbitrarily and capriciously, and abused his discretion in
refusing to rule on these Requests. Oceanside requests that the BOA remand the matter back to
the Planning Director with instructions to modify the Oceanside Order to issue the declaratory
rulings on these Requests set forth in Oceanside's Petition, or modify the Oceanside Order itself.
D. The Planning Director Erred by Sua Sponte Issuing Declaratory Rulings that
were not Requested by Oceanside.
In Section III(B)(3)(c) of the Oceanside Order, 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 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." Ex. 105-1 at 11-12.
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
4881-6366-3335.6.051730-00058 22
by DPW and the County Council in the dedication process. Ex. 104-2. Nor were any of these
issues argued. Instead, the Planning Director's statements 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 V(A),supra. Those unanswered Requests
asked the Planning Director to provide his position on the interplay between the Ordinances and
provisions in the County Code related variances and dedications, and cannot reasonably be
construed as the basis for the Planning Director's statements in Section III(B)(3)(c).
Nothing in HRS § 91-8 or PD Rule 3 authorize the Planning Director to sua sponte issue
declaratory rulings that were not requested by Oceanside. In fact, heads of administrative
agencies (such as the Planning Director) cannot seek declaratory rulings from their own
agencies. See RGIS Inventory Specialist v. Hawaii C.R. Comm'n, 104 Haw. 158, 162-63, 86
P.3d 449, 453-54 (2004) ("[W]here an agency employee's only interest in obtaining a
declaratory ruling . . . stems from her or his work as an agency employee, that interest is
insufficient to satisfy HRS § 91-8's standing requirements."). The BOA should remand this
matter to the Planning Director to rescind Section III(B)(3)(c) in its entirety, or do so itself
VI. ARGUMENTS COMMON TO BOTH ORDERS (APPEAL NOS. 104 & 105):
INCORRECT RULINGS BY THE PLANNING DIRECTOR
The following sections address rulings rendered by the Planning Director that are
erroneous. Oceanside requests that the BOA either remand the Orders back to the Planning
Director to correct his errors, or modify the Orders to do the same.
A. The Planning Director Erred in Ruling that Ordinance No. 96-7 Requires the
Dedication of the Roadways at Issue.
In both Orders, 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." Ex.
4881-6366-3335.6.051730-00058 23
104-1 at 11-12 (emphasis added); Ex. 105-1 at 11-12. Because the Planning Director appears to
at least imply that Ordinance No. 96-7 requires the dedication of Mauka Haleki`i Extension,
Makai Haleki`i Extension, and Connector Road, his ruling was in error.
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) ("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. Ex. 104-4; Ex. 105-3. Simply put, there is no dedication obligation under
the express, unambiguous terms of Ordinance No. 96-7. The Planning Director erred to the
extent he ruled otherwise.
B. The Planning Director Erred to the Extent he Qualified the Dedication of the
Mauka Haleki`i Extension.
In both Orders, 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." Ex. 104-1 at 12 (emphasis added); Ex. 105-1 at 11. While Oceanside agrees with—
and has not appealed—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 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. Ex. 104-10; Ex. 105-9. The Orders
acknowledge that the County Council's acceptance of the Mauka Haleki`i Extension was a
4881-6366-3335.6.051730-00058 24
legislative act taken with the input of DPW that satisfies the conditions of the Ordinances. There
is no basis in law or fact(and none is stated in the Orders), and it was arbitrary, capricious, and
an abuse of discretion, to qualify or limit in the dedication of the Mauka Haleki`i Extension or
Oceanside's satisfaction of the Ordinances. Further, as the Planning Director recognizes
elsewhere in the Orders, he lacks jurisdiction to review or affirm past Planning Department
actions and to rule on actions taken 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 do.
C. The Planning Director Erred to the Extent he Ruled that the Makai Haleki`i
Extension and Connector Road Have Not Been Constructed as Required.
In both Orders, 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[.]" Ex. 104-1 at 12; Ex. 105-1 at 11. To the extent that the
Planning Director ruled that the Makai Haleki`i Extension and Connector Road have not been
constructed as 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." Exs. 104-4 &
104-5; Exs. 105-3 & 105-4. As noted above, the Makai Haleki`i Extension and Connector Road
were constructed as part of Phase I, which received final subdivision approval in 1999 based on
plans reviewed and approved by DPW. Ex. 104-11; Ex. 105-10.
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). 104-ROA at 1596-1603; Ex.
105-8. The Variance allowed for the "retention of existing and construction of new private 20-
4881-6366-3335.6.051730-00058 25
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 DPW approved, and just like the Mauka Haleki`i Extension, both
can be dedicated to the County. The Planning Director erred to the extent he ruled otherwise.
VII. CONCLUSION
For the foregoing reasons, the BOA should remand this matter back to the Planning
Director with instructions to modify the Orders as requested herein, or modify the Orders itself.
DATED: Honolulu, Hawai`i, October 4, 2024.
ls/Derek B. Simon
PATRICK K. WONG
DEREK B. SIMON
IAN R. WESLEY-SMITH
Attorneys for
1250 OCEANSIDE, LLC
4881-6366-3335.6.051730-00058 26
BEFORE THE BOARD OF APPEALS
PLANNING DEPARTMENT
COUNTY OF HAWAI`I
In the Matter of Appeal Case No. PL-BOA-2024-000104
of CERTIFICATE OF SERVICE
1250 OCEANSIDE, LLC
From the decision 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 by electronic mail (E-Mail) on October 4, 2024:
ELIZABETH A. STRANCE, ESQ.
JEAN K. CAMPBELL, ESQ.
ELIZABETH B. BAILEY, ESQ.
Corporation Counsel, County of Hawaii
Hilo Lagoon Center
101 Aupuni Street, Suite 325
Hilo Hawaii 96720
Attorneys for Defendant
COUNTY OF HAWAII
KENNETH R. KUPCHAK
MARK M. MURAKAMI
TOREN K. YAMAMOTO
1003 Bishop Street, Suite 1600
Honolulu, Hawaii 96813
Attorneys for Intervenor
C & J COUPE FAMILY LIMITED PARTNERSHIP
DATED: Honolulu, Hawai`i, October 4, 2024.
4881-6366-3335.6.051730-00058 1
Is!Derek B. Simon
PATRICK K. WONG
DEREK B. SIMON
IAN R. WESLEY-SMITH
Attorneys for
1250 OCEANSIDE, LLC
4881-6366-3335.6.051730-00058 2