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HomeMy WebLinkAbout2026-02-27 PL-BOA-2024-000105 Coupe Family's Response to 1250 Oceanside's Objections - Proposed Amended FOF-COL Of Counsel: DAMON KEY LEONG KUPCHAK HASTERT Attorneys at Law A Law Corporation KENNETH R. KUPCHAK 1085-0 krk(a,hawaiilawyer.c om MARK M. MURAKAMT 7342-0 mmm(a ,ha waiilawyer.com KATIE T. PHAM 1 1529-0 ktc,,hawaiilawyer.com 1003 Bishop Street, Suite 1600 Honolulu, Hawaii 96813 www.hawaiilgwyer.com Telephone: (808) 531-8031 Attorneys for Intervenor C & J Coupe Family Limited Partnership BEFORE THE BOARD OF APPEALS COUNTY OF HAWAII STATE OF HAWAII In the Matter of Appeal ) CASE NO.: PL-BOA-2024-000105 of ) COUPE FAMILY'S RESPONSE TO 1250 OCEANSIDE, LLC'S OBJECTIONS TO 1250 OCEANSIDE, LLC ) COUNTY OF HAWAII BOARD OF From the Decisions of the Planning Director, ) APPEALS' PROPOSED AMENDED dated April 29, 2024 (Docket No. 24-0002) j FINDINGS OF FACT, CONCLUSIONS OF LAW, DECISION AND ORDER, AND COUPE FAMILY'S PROPOSED SUPPLEMENTAL EDITS TO THE BOARD OF APPEALS; EXHIBIT "A" COUPE FAMILY'S RESPONSE TO 1250 OCEANSIDE, LLC'S OBJECTIONS TO COUNTY OF HAWAII BOARD OF APPEALS' PROPOSED AMENDED FINDINGS OF FACT, CONCLUSIONS OF LAW,DECISION AND ORDER, AND COUPE FAMILY'S PROPOSED SUPPLEMENTAL EDITS TO THE BOARD OF APPEALS Pursuant to Rules 3-20 and 8-14 of the County of Hawaii Board of Appeals ("Board" or "BOA") Rules of Practice and Procedures ("BOA Rules"), Intervenor C & J Coupe Family 956329 Limited Partnership("Coupe Family"),by and through its attorneys,Damon Key Leong Kupchak Hastert,respectfully submits its Response to 1250 Oceanside,LLC's ("Oceanside")Objections to the BOA'S Proposed Amended Findings of Fact, Conclusions of Law,Decision and Order, served January 23, 2026 ("Proposed Decision and Order"), and its Proposed Supplemental Edits to the Board for consideration to incorporate into the Board's Proposed Decision and Order. A copy of the Board's Proposed Decision and Order with Coupe Family's suggested edits is attached as Exhibit"A". I. RESPONSE TO OCEANSIDE A. Proposed Findings of Fact Proposed Finding of Fact Objections 3. On May 28, 2024, Appellant filed its Oceanside objects to Proposed FOF 3 on the General Petition for Appeal of grounds that it mischaracterizes and misstates Decisions by Planning Director or the grounds for Oceanside's appeal of the Public Works Director("Appeal") with Declaratory Order. the Board of Appeals, County of Hawaii ("Board") appealing the Planning As reflected in its General Petition for Appeal Director's issuance of the Order. 1250 of Decisions by Planning Director or Public Oceanside argued the following points Works Director filed on May 28, 2024 of error: ("Petition for Appeal"), Oceanside appealed the Declaratory Order on the grounds that: a. Planning Director failed to address eight of Appellant' s requests a. The Planning Director erred by failing relating to dedication requirements to issue declaratory rulings on eight of and construction standards in light Oceanside's requested declaratory of Ord. 96- 7 and Ord. 96- 8, and rulings ("Requests") despite variances under Hawaii County determining they were within his Code Chapter 23. authority and jurisdiction and would be answered in the Declaratory Order; b. Planning Director erred by stating that he could not render declaratory b. The Planning Director erred by rulings on seven requests that would refusing to issue declaratory rulings require the review or affirmation of on the four Requests concerning the a variance granted by a prior Development Agreement because the Planning Director. Planning Department has been delegated the responsibility to administer development agreements 2 Proposed Finding of Fact Objections c. Planning Director failed to answer for the County, which provides the four questions relating to the review Planning Director with authority and and interpretation of a development jurisdiction to answer the Requests; agreement. c. The Planning Director erred by d. Planning Director erred by not refusing to issue declaratory rulings interpreting Ord. 96- 7, standing on the seven Requests because he alone, because no dedication incorrectly determined that they requirement is contained within sought to review or affirm the validity Ord. 96-7; of Variance No. 10-027 (the "Variance"); e. Planning Director erred by seemingly qualifying the 2010 d. The Planning Director erred by dedication of the Mauka Halekii issuing several declaratory rulings sua Extension and corresponding sponte and not in response to any of satisfaction of the Ordinances' the Requests submitted by Oceanside, conditions related to the roadway; which he lacks authority to do; and e. The Planning Director erred by ruling f. Planning Director erred by ruling that Ordinance No. 96-7 requires the that the Makai Haleki i Extension dedication of three roadways because and Connector Road have not been no such requirement is contained constructed as required under the within Ordinance No. 96-7; Ordinances because (1) both roadways were constructed pursuant £ The Planning Director erred by to plans approved by the seemingly qualifying the 2010 Department of Public Works of the dedication of the Mauka Haleki`i County of Hawaii ("DPW") and are Extension and corresponding covered by the Variance, and(2) the satisfaction of the Ordinances' Director lacks authority to rule upon conditions related to the roadway; and the sufficiency of the roadway for dedication. g. The Planning Director erred by ruling that the Makai Haleki`i Extension and g. Planning Director erred by issuing Connector Road have not been several declaratory rulings constructed as required under the Appellant claims are sua sponte Ordinances because (1) both roadways rulings; were constructed pursuant to plans approved by DPW and are covered by the Variance, and (2) the Planning Director lacks authority to rule upon the sufficiency of the roadways for dedication. Proposed Finding of Fact Objections The grounds for Oceanside's appeal of the Declaratory Order to the BOA are also set forth in the Circuit Court's Remand Order. See Exhibit A at 12-13, ¶28. Coupe Family's Response: The difference between the Board's proposed language and Oceanside's is only that the wording is different, both versions of the proposed language essentially state the same thing. The Board's version references the substance of the appeal and arguments advanced by Oceanside, whereas Oceanside's language merely recites the Circuit Court's Remand Order. From Coupe Family's perspective, this is a distinction without difference. We defer to the sound judgment of the Board in determining the appropriate language to use. While using the Court's Remand Order language would make things consistent, it would not serve any purpose. 9. On October 11, 2024, the Board heard oral Oceanside objects to Proposed FOF 9 on arguments and presentation of evidence, the grounds that it does not specify that including exhibits, and testimony on the the BOA's hearing on October 11, 2024, Appeal at the West Hawaii Civic Center was a contested case hearing pursuant to with all Board Members present in person. BOA Rule 8-11, Part 3 of the BOA Michael Kaleihoku Vitousek, Manager of Rules, and HRS ch. 91. This was Land and Development of 1250 Oceanside, confirmed by the Circuit Court in its LLC, Derek B. Simon, Esq., and Ian R. Remand Order, which rejected the Wesley-Smith, Esq. appeared on behalf of County's argument that Oceanside's Appellant. Zendo Kem, Hawaii County appeal to, and subsequent hearing Planning Director and E. Britt Bailey, before, the BOA was not a contested Deputy Corporation Counsel, appeared on case. See Exhibit A at 21-22,¶¶12-15. behalf of the Planning Department. Charles Coupe of C&J Coupe Family Limited Oceanside further objects to Proposed FOF Partnership, Kenneth R. Kupchak, Esq., 9 on the grounds that it fails to reflect that and Mark M. Murakami, Esq. appeared on Deputy Corporation Counsel Jean K. behalf of Intervenor. Campbell, Esq. also appeared on behalf of the Planning Director. Among other things, Ms. Campbell sat at the counsel table with Ms. Bailey during the hearing. Oceanside also objects to Proposed FOF 9 on the grounds that Charles Coupe did not appear on behalf of intervenor C & J Coupe Family Limited Partnership ("Coupe"), although he may have been in attendance in the audience. Coupe Family's Response: Coupe Family respectfully submits that its proposed edits would remedy any perceived issues with this FOF. 4 Proposed Finding of Fact Objections 10. Appellant's witness, Michael Kaleihoku Oceanside objects to Proposed FOF 10 on Vitousek,testified that Planning Director's the grounds that it misstates and declaratory order did not provide enough or mischaracterizes Mr. Vitousek's specific information for Appellant to testimony and the basis for Oceanside's understand how to comply with its appeal of the Declaratory Order. compliance obligations under Ord. 96-7 and Ord. 96-8. As the Circuit Court found in its Remand Order, Oceanside's appeal to the BOA "did not only concern the Declaratory Order lacking `the level of clarity desired by' Oceanside." See Exhibit A at 24,¶28. Coupe Family's Response: This FOF does not misstate or mischaracterize Mr. Vitousek's testimony. See Transcript of October- 11, 2024 Hearing at 20. Further, this FOF does not attempt to frame Oceanside's appeal as centering entirely on the Declaratory Order's "lacking the level of clarity desired by Oceanside." Such a reading ignores the previous FOF no. 3 where the basis for Oceanside's appeal is clearly spelled out. This FOF merely notes another of Oceanside's grievances in its appeal. 11. Planning Director testified, and his Oceanside objects to Proposed FOF 1 1 on testimony was consistent with the contents the grounds that it misstates and of his Order. Planning Director testified he mischaracterizes then-Planning Director- exercised discretion in not answering some Zendo Kern's testimony at the contested questions posed by the petitions. case hearing. For example, as set forth in Oceanside's objections to Proposed FOF 15, infNa, the Planning Director's testimony confirmed that he failed to issue declaratory rulings on numerous of Oceanside's Requests despite determining that they were within his jurisdiction and would be answered in the Declaratory Order. Coupe Family's Response: This FOF does not misstate or mischaracterize the then- Planning Director's testimony. See Transcript of October 11, 2024 Hearing at 43-44. The Planning Director, on numerous occasions, confirmed that his testimony was consistent with the contents of his Order and. He further testified that he had been exercising his discretion in choosing not to answer some of the questions posed by the petitions. This FOF has nothing to do with the validity of Planning Director's determinations, as Oceanside attempts to make it out to be, but simply is stating what the Planning Director testified to. 12. Planning Director correctly identified Oceanside objects to Proposed FOF 12 on questions that sought an interpretation of a the grounds that it is irrelevant that the development agreement in his Order. Planning Director's interpretation of the 5 Proposed Finding of Fact Objections Planning Director's discussion of the Development Agreement was purportedly development agreement in the Order was "only background." only background, and was labeled as such. As set forth Oceanside's Petition for Appeal and its Consolidated Hearing Brief filed October 4, 2024 ("Hearing Brief'),pursuant to Rule 1 of the Office of the Mayor ("Mayor Rule l"), the Planning Department is the agency"responsible for the overall administration of the [Development] Agreement."See Mayor Rule 1-8. At the contested case hearing, the Planning Director confirmed during his testimony that, as part of carrying out its delegated responsibilities under Mayor Rule 1, the Planning Department interprets the provisions of development agreements and applies their requirements to facts. The Planning Director demonstrated that he possesses and can exercise this authority by interpreting the requirements of the Development Agreement in the Declaratory Order, while simultaneously and improperly refusing to respond to Oceanside's Requests related to the Development Agreement. The Planning Director erred by doing so. Oceanside further objects to Proposed FOF 12 on the grounds that it is vague and ambiguous as to what is meant by"correctly identified"questions related to the Development Agreement. Coupe Family's Response: This objection again goes beyond the scope of this proceeding because Oceanside is attempting to reargue the decision below whereas the Circuit Court only remanded for more details on the Board's decision. Coupe Family submits that any purported insufficiency would be remedied by incorporating Coupe Family's proposed edits as set forth below and in Exhibit A. 13. Planning Director [sic] discussion as to the Oceanside objects to Proposed FOF 13 on effect of a variance on existing law and the grounds that it is contrary to the authority of other county entities in his substantial evidence in the record and the Order-was not a sua s onte ruling. law. Section III B 3 c of the Declaratory 6 Proposed Finding of Fact Objections Planning Director's discussion pertained Order improperly consisted of declaratory to the applicability of Chapter 23 within rulings that were not issued in response to the larger context provided by Appellant. the Requests submitted in Oceanside's Planning Director did not petition for his Petition for Declaratory Ruling. own declaratory ruling. For example, in Section ITT(B)(3)(c) of the Declaratory Order, the Planning Director ruled that: "Because such a variance only excuses performance under Chapter 23, Variance 10-027 cannot and does not effect an amendment of an existing ordinance." Dkt. 18, ROA at 0041. Oceanside's Petition for Declaratory Ruling did not ask the Planning Director whether a variance can amend an ordinance generally, or whether the Variance amounted to an amendment of Ordinance Nos. 96-7 and/or 96-8 (together, the"Ordinances") specifically. The Planning Director confirmed this in testimony before the BOA,where he was unable to identify a Request from Oceanside asking "whether a variance can amend an ordinance." It therefore appears that the Planning Director issued the declaratory rulings in Section TTI(B)(3)(c) sua sponte, which he lacked authority and jurisdiction to do. See RGIS Inventory Specialist v. Hawaii C.R. Coinrn'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 only other plausible explanation is that Section III(B)(3)(c) was erroneously included in the Declaratory Order, given that the Planning Director admitted during his testimony that it was Coupe's Petitions for- Declaratory Ruling—and not Oceanside's that asked"whether a variance could amend 7 Proposed Finding of Fact Objections an ordinance." Either way, the Planning Director erred in including Section iii(B)(3)(c)in the Declaratory Order. Oceanside further objects to Proposed FOF 13 on the grounds that it is vague and ambiguous as to what is meant by"the effect of a variance on existing law and authority of other county entities." Coupe Family's Response: This objection again goes beyond the scope of this proceeding because Oceanside is attempting to reargue the decision below whereas the Circuit Court only remanded for more details on the Board's decision. it also misconstrues this FOF which explains the Board's review of the Planning Director's Order and states the basis of the Planning Director's decision. Again,this FOF supplements the Board's Decision and Order with the detail that the Circuit Court requested on remand. Oceanside's confusion can be cleared up by reference to the record. Incorporating Coupe Family's suggested edits would remedy any perceived issues on this point. 14. Planning Director's order and testimony Oceanside objects to Proposed FOF 14 on did not"qualify"the dedication of the the grounds that it is contrary to the Mauka Haleki`i Extension in relation to substantial evidence in the record, which the satisfaction of the Ord. 96-7 and 96-8 establishes that the Planning Director requirements as argued by Appellant. improperly qualified the dedication of the Planning Director acknowledged in his Mauka Haleki`i Extension and Order that the Mauka Haleki`i Extension Oceanside's corresponding satisfaction of was accepted by County Counci l the Ordinances through his use of the Resolution 317-12 after input from phrases "to the extent" and"effectively Department of Public Works. Planning dedicated" in the Declaratory Order. Director correctly identified that he had no authority to interpret the acceptance of the This is not some fictional issue that dedication of the road by County Council Oceanside has appealed. In its briefing or Department of Public Works. before the BOA, Coupe sought to exploit the language in the Planning Director's ruling, arguing that"[t]he Director wisely qualified his ruling regarding the Mauka Haleki`i Extension" because the "qualification is due to the fact that the Mauka Haleki`i Extension was not effectively dedicated." (Emphasis added). Oceanside further objects to Proposed FOF 14 on the grounds that it is vague and ambiguous as to what is meant by"correctly identified" and"authority to interpret the acceptance of 8 Proposed Finding of Fact Objections the dedication of the road by County Council or Department of Public Works." Coupe Family's Response: This objection is attempting to litigate issues that are not before the Board on remand and is thus beyond the scope of this proceeding. The Circuit Court only asked the Board to provide more details regarding its decision-making. The Board's proposed language satisfies the Circuit Court's requirement. Likewise, Oceanside's objection that it is vague and ambiguous as to what is meant by "correctly identified" and "authority to interpret the acceptance of the dedication . . . ." goes beyond the scope of this proceeding. The proposed language does exactly what the Circuit Court asks of the Board, which is to provide the Court with more detail regarding the Board's decision. This last point is also not vague or ambiguous because (1) declaratory rulings are forward-looking and by rule and law cannot be used to review past decisions—examinations of the correctness of prior actions have specific appeal procedures which had expired and (2) the Planning Director does not have authority to review a past decision by a different governmental entity such as the County Council or the Department of Public Works. Oceanside's confusion can be cleared up easily by a citation to Haw. Rev. Stat. § 91-8 and Planning Department Rule 3-1. Tncotporating Coupe Family's suggested edits would remedy any perceived issues on this point. 15. Neither the testimony of Mr. Vitousek nor Oceanside objects to Proposed FOF 15 on the Planning Director needed the grounds that it is contrary to the reconciliation with the content of the substantial evidence in the record. The Order. The testimony was irrelevant to the record demonstrates that the Declaratory determination as to whether the Planning Order cannot be reconciled with the Director abused his authority and/or Planning Director's testimony,which discretion. Nothing in Planning revealed, inter alia, that he failed to respond Department's Rules of Practice and to numerous of Oceanside's Requests Procedure ("PRPP") Rule 3-1 or Chapter despite determining that they each of them 91, Hawai`i Revised Statutes, requires was within his jurisdiction and would be Planning Director to issue a declaratory answered in the Declaratory Order. ruling to the satisfaction of the petitioner for said declaratory ruling. Planning For example, in the Declaratory Order, the Director was not required to inform Planning Director determined that he could Appellant of their [sic] legal obligations and would issue a declaratory ruling on with respect to the issues raised in the Oceanside's Request asking whether Petition for a Declaratory Ruling. Ordinance No. 96-8 requires "the dedication Likewise, eliciting testimony showing of the Mauka Haleki`i Extension, Makai Planning Director did not answer specific Haleki`i Extension, or Connector Road by a questions or provided additional date certain or any milestone in the information that was not requested did not development of Hokuli`a . . . ."When asked show the Planning Director abused his about his answer to this Request before the authority and/or discretion. BOA, the Planning Director testified twice that Ordinance No. 96-8 does not set a deadline or development milestone for the dedication of these roadways. However, the 9 Proposed Finding of Fact Objections answer the Planning Director gave, or anything of a similar nature, is not found in the Declaratory Order. The Planning Director's testimony is therefore not "irrelevant"to whether the Planning Director committed in any errors in the Declaratory Order; instead; his testimony confirmed he did exactly that. Oceanside further objects to Proposed FOF 15 to the extent that it finds that"[n]either the testimony of Mr. Vitousek not-the Planning Director needed reconciliation with the content of the Order," as it is contrary to the Circuit Court's Remand Order, which recognized that the BOA was required to reconcile the evidence received at the contested case hearing. See Exhibit A at 24, ¶29 ("None of the FOFs provide the Court with the necessary insight into how the BOA reconciled the evidence received as part of the contested case hearing."). Oceanside further objects to Proposed FOF 15 as being contrary to the law to the extent it purports to find that the "Director was not required to inform Appellant of their [sic] legal obligations with respect to the issues raised in the Petition for a Declaratory Ruling."Petitions for declaratory rulings are "meant to provide a means of seeking a determination of whether and in what way some statute, agency rule, or order, applies to the factual situation raised by an interested person." Citizens Against Reckless Dev. v. Zoning Bd. of Appeals of City& Cnty. of Honolulu, 114 Haw. 184, 196-97, 159 P.3d 143, 155-56 (2007) ("CARD"). Tn other words,petitions for declaratory ruling are specifically intended to provide interested persons a means to obtain an agency's official position on their "legal obligations" as it relates to matters within the agency's jurisdiction. 10 Proposed Finding of Fact Objections Oceanside further objects to Proposed FOF 15 as being contrary to the substantial evidence and the law to the extent it purports to find that"eliciting testimony showing Planning Director did not answer specific questions . . . did not show the Planning Director abused his authority and/or discretion."As the Hawaii Supreme Court has explained, "[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." Id. at 194-95, 159 P.3d at 153-54. "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 rules govern its disposition of petitions for declaratory ruling, thus making the decision discretionary"within the parameters of the agency's rules.Id. ("DPP Rule § 3-5 governs DPP refusals to issue a declaratory ruling, making that decision discretionary with the DPP Director, within the parameters of five enumerated reasons."). Unlike rules promulgated by other agencies, no provision of Rule 3 of the Planning Department Rules of Practice and Procedure ("PD Rules")provides a basis or discretion for the Planning Director to refuse or otherwise fail to respond to requests for declaratory ruling that are within his authority and jurisdiction. CARD, 114 Haw. at 195, 159 P.3d at 154 (discussing rule giving planning director discretion to refuse to issue rulings otherwise within his/her jurisdiction, including when a"declaratory ruling may 11 Proposed Finding of Fact Objections adversely affect the interests of the city in any litigation" and"[f]or other good cause"). Therefore, the fact that the substantial evidence shows that the Planning Director failed to answer numerous of Oceanside's Requests—despite acknowledging that the were within his jurisdiction and would be answered demonstrates that"the Planning Director abused his authority and/or discretion." Oceanside further objects to Proposed FOF 15 on the grounds that it is vague and ambiguous as to what is meant by the "eliciting testimony showing Planning Director . . . provided additional information that was not requested." To the extent that relates to or concerns Proposed FOF 13 regarding the Planning Director's sua sponte issuance and/or erroneous inclusion of certain declaratory rulings in the Declaratory Order, Oceanside incorporates by reference its objections to Proposed FOF 13, supra. Oceanside also objects to Proposed FOF 15 to the extent it finds that"[n]othing in Planning Department's Rules of Practice and Procedure ("PRPP")Rule 3-1 or- Chapter 91, Hawaii Revised Statutes, requires Planning Director to issue a declaratory ruling to the satisfaction of the petitioner for said declaratory ruling. Although it is not clear what is meant by"to the satisfaction of the petitioner,"the Declaratory Order is an appealable order subject to review by both the BOA and the courts pursuant to HRS § 91-14. Coupe Family's Response: Oceanside's objection to the first two sentences of this FOF again misconstrues the purpose of this proceeding ("Neither the testimony of Mr. Vitousek not-the Planning Director needed reconciliation with the content of the Order. The testimony was irrelevant to the determination as to whether the Planning Director abused his authority and/or discretion."). It bears repeating that the reason Oceanside and Coupe Family sought 12 Proposed Finding of Fact Objections declaratory rulings was because the Circuit Court ordered Coupe Family to do so, citing primary jurisdiction. The purpose of the declaratory ruling process was to get the Planning Director's opinion, not the Board's or the Circuit Court's opinion. The Planning Director has rendered his opinion, which was then put before the Board for review in Oceanside's two appeals. As the Planning Director's Declaratory Orders turn on his interpretation of rules and laws, these are matters of law and thus the Board's examination of these Orders does not turn on the credibility of witnesses' testimonies. Rather, the question before the Board was whether the Planning Director interpreted the rules and laws correctly in applying them to a certain set of facts submitted by the petitioner. These two sentences simply clarify this point and provide the rationale that the Circuit Court requested on remand. There is nothing objectionable in the following sentence: "Nothing in Planning Department's Rules of Practice and Procedure ("PRPP") Rule 3-1 or Chapter 91, Hawai`i Revised Statutes, requires Planning Director to issue a declaratory ruling to the satisfaction of the petitioner for said declaratory ruling." This sentence adds to the Board's rationale behind its decision, which is what was requested by the Circuit Court on remand. Incorporating Coupe Family's suggested edits would remedy any perceived issues on this point. The next sentence ("Planning Director was not required to inform Appellant of their [sic] legal obligations with respect to the issues raised in the Petition for a Declaratory Ruling") is also unobjectionable. Oceanside's objections to said sentence goes beyond the scope of this proceeding because Oceanside is attempting to reargue the decision below whereas the Circuit Court only remanded for more details on the Board's decision, and also misconstrues this FOF which explains the Planning Director's Order and states the basis of the Planning Director's decision. Again,this FOF supplements the Board's Decision and Order with the detail that the Circuit Court requested on remand. Finally, there is nothing objectionable about the last sentence of this FOF starting with "Likewise, eliciting testimony showing Planning Director did not answer specific questions . . ." Oceanside's objections to said sentence goes beyond the scope of this proceeding because Oceanside is attempting to reargue the decision below whereas the Circuit Court only remanded for more details on the Board's decision. It also misconstrues this FOF which explains the Board's review of the Planning Director's Order and states the basis of the Planning Director's decision. Again, this FOF supplements the Board's Decision and Order with the detail that the Circuit Court requested on remand. In addition, Coupe Family objects to Oceanside's characterization of the Planning Director's Declaratory Order on Oceanside's Petition as containing "sua sponte"rulings—Planning Director did not issue sua sponte rulings. 16. The exhibits did not show the Order was Oceanside objects to Proposed FOF 16 on issued in error or an abuse of discretion. the grounds that it is contrary to the 13 Proposed Finding of Fact Objections substantial evidence in the record, including the exhibits, which demonstrates that the Planning Director committed numerous errors and abused his discretion. Because Proposed FOF 16 fails identify any specific exhibits or specify how the exhibits purportedly did not show that the Planning Director erred or abused his discretion, Oceanside incorporates by reference its General Petition for Appeal, its Hearing Brief, the evidence in the record(including exhibits and testimony), and argument adduced at the contested case hearing. Coupe Family's Response: This objection again goes beyond the scope of this proceeding because Oceanside is attempting to reargue the decision below whereas the Circuit Court only remanded for more details on the Board's decision. Coupe Family submits that any purported insufficiency can be remedied by incorporating Coupe Family's proposed edits as set forth below and in Exhibit A. 17. Planning Director did not err, and acted Oceanside objects to Proposed FOF 17 on the within his discretion in refusing to answer on grounds that it is contrary to the substantial the effect of Ord. 96-7 alone, as requested by evidence in the record and established law. In Appellant,when Ord. 96-8 was also applicable the Declaratory Order, the Planning Director to the Hokulea [sic] development and enacted determined that the following Request was at the same time. within his jurisdiction and would be answered: "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?"As set forth in Oceanside's Petition for Appeal and Hearing Brief, the Planning Director erred and abused his discretion by failing to answer this Request (and others). See Objections to Proposed FOF 15, supra (discussing limitations on discretion to fail or refuse to answer requests for declaratory rulings). Coupe Family's Response: This objection again goes beyond the scope of this proceeding because Oceanside is attempting to reargue the decision below whereas the Circuit Court only remanded for more details on the Board's decision. To the extent that further explanation and analysis of this FOF may be warranted, Coupe Family submits that any such purported 14 Proposed Finding of Fact Objections insufficiency can be remedied by incorporating Coupe Family's proposed edits as set forth below and in Exhibit A. 18. Planning Director correctly identified Oceanside objects to Proposed FOF 18 questions that sought a review of actions of on the grounds that it is contrary to the the Hawaii County Council, a prior Planning substantial evidence in the record and the Director's issuance of a variance, and matters law. As set forth in Oceanside's Petition under the jurisdiction of a different for Appeal and Hearing Brief, none of its department, the Department of Public Works. Requests asked the Planning Director to: (a)review the actions of the Hawaii County Council; (b)review or affirm the Variance; or(c)review or opine on matters under the jurisdiction of the Department of Public Works. With respect to the Variance, Oceanside's Requests did not seek the "review or affirmance" of the Variance—they sought the Planning Director's interpretation of specific provisions of the County Code. 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 been brought into consideration." CARD, 114 Hawaii at 194-95, 159 P.3d at 153-54 (emphasis added). Oceanside further objects to Proposed FOF 18 on the grounds that it is vague and ambiguous as to what Requests from Oceanside that purportedly "sought a review of actions of the Hawai`i County Council" and"matters under the jurisdiction of a different department, the Department of Public Works" are being referenced or alluded to. 15 Proposed Finding of Fact Objections Coupe Family's Response: This objection again goes beyond the scope of this proceeding because Oceanside is attempting to reargue the decision below whereas the Circuit Court only remanded for more details on the Board's decision. To the extent that further explanation and analysis of this FOF may be warranted, Coupe Family submits that any such purported insufficiency can be remedied by incorporating Coupe Family's proposed edits as set forth below and in Exhibit A. 19. The Planning Director did not rule that any Oceanside objects to Proposed FOF 19 on the roadway is not constructed as required. The grounds that it is contrary to the substantial Planning Director ruled the roadways in evidence. In the Declaratory Order, the question must be constructed to a condition Planning Director ruled that"[i]n order to approved by DPW, which does not take a comply with the Ordinances, Oceanside must position on whether-or not any roadway is or construct the Makai Haleki`i Extension and was currently approved by DPW, and instead Connector Road to a condition approved by leaves those determinations to DPW and the DPW — ." (Emphasis added). The Planning Hawaii County Council. Director did so despite the fact that: (a) both roads were constructed as part of Phase I of Hokuli`a, which received final subdivision approval in 1999 based on construction plans reviewed and approved by DPW; (b)both roads are subject to the Variance, which was granted by the Planning Department; and(c) the Planning Director testified that both roads are already constructed and exist today. The Planning Director's ruling in the Declaratory Order that Oceanside "must construct"both roadways "to a condition approved by DPW" directly contradicts the purported finding in Proposed FOF 19 that the Planning Director did"not take a position on whether or not any roadway is or was currently approved by DPW." Coupe Family's Response: This objection again attempts to reargue the decision below, which goes beyond the scope of this proceeding. it also misconstrues this FOF which explains the Board's review of the Planning Director's Order and states the basis of the Planning Director's decision. Again, this FOF supplements the Board's Decision and Order with the detail that the Circuit Court requested on remand. 20. The Board finds that the Order addressed Oceanside objects to Proposed FOF 20 to the questions raised by the Appellant in its the extent that it finds that"the appeal, even if the Planning Director did not [Declaratory] Order addressed the provide the level of clarity or specifics desired questions appropriately raised by the by the Appellant. Appellant in its General Petition." The 16 Proposed Finding of Fact Objections "questions" that Oceanside sought to have the Planning Director address were submitted through its Petition for Declaratory Ruling, not its Petition for Appeal (or"General Petition") filed with the BOA. Oceanside further objects to Proposed FOF 20 on the grounds that it is contrary to the substantial evidence in the record and the law. As set forth in its Petition for Appeal and Hearing Brief, the Planning Director erred by, inter alia: (a)failing to rule of on eight of Oceanside's Requests despite determining they were within his authority and jurisdiction and would be answered in the Declaratory Order; (b) refusing to issue declaratory rulings on four Requests on the grounds that they concerned the Development Agreement; and (c)refusing to issue declaratory rulings on seven Requests on the grounds that they sought to review or affirm the Variance. Oceanside further objects to Proposed FOF 20 on the grounds that it misstates and mischaracterizes the grounds for Oceanside's appeal, which did not simply concern a lack"clarity or specifics desired by the [Oceanside]." This was confirmed by the Circuit Court in its Remand Order. See Exhibit A at 24, ¶28. Oceanside also objects to Proposed FOF 20 on the grounds that it is vague and ambiguous as to what is mean by "appropriately raised." Coupe Family's Response: This objection again goes beyond the scope of this proceeding because Oceanside is attempting to reargue the decision below whereas the Circuit Court only remanded for more details on the Board's decision. 17 B. Proposed Conclusions of Law Proposed Conclusions of Law Objections 4. PRPP Rule 3-1(a) gives the Planning Oceanside objects to Proposed COL 4 on Director the discretion to "issue a the grounds that it mischaracterizes the declaratory order as to the applicability nature and extent of the Planning Director's of any statutory provision, ordinance, or authority and discretion when responding to any rule or order of the Director or the petitions for declaratory rulings pursuant to Department." PD Rule 3-1. The Hawaii Supreme Court has explained that, "[b]y empowering agencies generally with the authority to adopt rules regarding the manner in which declaratory ruling petitions shall be considered and disposed of, the legislature has granted agencies discretion with regard to the consideration of declaratory rulings. The boundaries of that discretion, which normally are defined by the legislature, may in such cases be established with reference to the agency rules themselves, or by reading the statute and the agency rules in tandem." CARD, 1 14 at 194-95, 159 P.3d at 153-54 (emphases added). An agency's decision"to refuse to issue a declaratory ruling [is] . . . 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 (emphases added). In other words, the Planning Director's discretion in considering and disposing of petitions for declaratory rulings is circumscribed by PD Rule 3, and when the Planning Director acts outside of the boundaries of PD Rule 3, he commits clear error and acts without discretion, arbitrarily and capriciously, and in violation of the law. See id. ("In this case, DPP Rule § 3-5 governs DPP refusals to issue a declaratory ruling, making that decision discretionary with the DPP Director, within the parameters of five enumerated reasons.") (emphasis added). 18 Proposed Conclusions of Law Objections Pursuant to PD Rule 3-1(c), once a petition for declaratory ruling has been filed, the Planning Director"shall" respond in one of three ways: (a) "deny the petition in writing, stating the reasons for such denial;" (b)"issue a declaratory order on the matters contained in the petitions;" or(c) "set the matter for a public hearing, as provided in Sections 3-2, 3- 3 and 3-4 of" the the PD Rules. Presumably, the Planning Director can also respond through some combination of the three. However, unlike administrative rules promulgated by other agencies, PD Rule 3 does not provide any basis or discretion for the Planning Director to refuse or fail to respond to requests for declaratory ruling that are within his jurisdiction and otherwise satisfy PD Rule 3. See, e.g., CARD, 114 Haw. at 195, 159 P.3d at 154 (discussing administrative rule allowing the Honolulu Planning Director to refuse to issue declaratory rulings on matters within his/her jurisdiction on a number of grounds, including that the "issuance of the declaratory ruling may adversely affect the interests of the city in any litigation which is pending or may reasonably be expected to arise" and"[fJor- other good cause"). An agency commits clear errors, abuses its discretion, and acts arbitrarily, capriciously, and in violation of the law, when its failure or refusal to issue a declaratory ruling is not grounded in HRS § 91-8 or its administrative rules governing petitions for declaratory rulings.Id., 114 Haw. 184, 195, 159 P.3d 143, 154 (2007). Nothing in HRS § 91-8 or PD Rule 3 grants the Planning Director discretion to either fail to respond to requests that are within the Planning Director's authority and jurisdiction, or reform requests for declaratory rulings in a manner that avoids addressing the substance of the request. 19 Proposed Conclusions of Law Objections Coupe Family's Response: This COL is quoting PRPP Rule 3-1(a) directly. There is nothing in this COL that is mischaracterizing the nature and extent of the Planning Director's authority. it is unobjectionable. In response to Proposed COL 5, Oceanside 5. PRPP Rule 3-1(a) does not require the incorporates by reference its objections to Planning Director to answer all Proposed COL 4, supra. questions posed in a petition once the Planning Director decides to issue a While the Planning Director may have declaratory ruling on a petition. The some discretion"in the manner and method Planning Director has discretion in the in addressing questions posed for a manner and method in addressing declaratory ruling,"his discretion is questions posed for a declaratory ruling. circumscribed by PD Rule 3, and when the Planning Director acts outside of the boundaries of PD Rule 3 —as he did here— he commits clear error and acts without discretion, arbitrarily and capriciously, and in violation of the law. CARD, 114 Haw. at 194-95, 159 P.3d at 153-54 (`By 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. 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."). Nothing in PD Rule 3 gave the Planning Director discretion to: (a) fail to issue declaratory rulings on eight of Oceanside's Requests after determining that they were within his jurisdiction and would be answered in the Declaratory; (b)refuse to issue declaratory rulings on matters within his authority and jurisdiction; or(c)answer Oceanside's Requests in a manner that avoids addressing the substance of what is being asked. 20 Proposed Conclusions of Law Objections Coupe Family's Response: There is nothing in this COL that misstates the referenced rule. It is unobjectionable. Oceanside objects to Proposed COL 6 on 6. PRPP Rule 3-1(c)provides when the the grounds that PD Rule 3-1(c)is not Planning Director-shall respond to the simply a"timing"rule. Although PD Rule request for a declaratory order. 3-1(c) does set a deadline for the Planning Director to respond to petitions for declaratory ruling, it also constrains the Planning Director's discretion by limiting the ways in which the Planning Director can respond. By its plain terms, PD Rule 3- 1(c)mandates that the Planning Director respond in one of three ways: (a) "deny the petition in writing, stating the reasons for such denial;" (b)"issue a declaratory order on the matters contained in the petitions;" or(c) "set the matter for a public hearing, as provided in Sections 3-2, 3-3 and 3-4 of the PD Rules. Presumably, the Planning Director can also respond through some combination of the three. However,unlike administrative rules promulgated by other agencies, PD Rule 3 does not provide any basis or discretion for the Planning Director to refuse or fail to respond to requests for declaratory ruling that are within his jurisdiction and otherwise satisfy PD Rule 3. See CARD, 114 Haw. at 195, 159 P.3d at 154 (discussing rule granting the Honolulu planning director discretion to refuse to issue a declaratory ruling on a five enumerated grounds, including that "issuance of the declaratory ruling may adversely affect the interests of the city in any litigation which is pending or may reasonably be expected to arise" and"[fJor- other good cause."). Coupe Family's Response: This objection attempts to reargue the matters before the Planning Director and is thus beyond the scope of this proceeding. There is also nothing in this COL that misstates the referenced rule. it is unobjectionable. 21 Proposed Conclusions of Law Objections 7. A development agreement is not a Oceanside objects to Proposed COL 7 on the "statutory provision, ordinance, or any grounds that it is contrary to the law. PD rule or order of the Director or the Rule 3-1(a) authorizes the Planning Director Department." Therefore, Planning "to issue a declaratory order as to the Director does not have the discretion to applicability of any statutory provision, issue a declaratory order regarding a ordinance, or of any rule or order of the development agreement. [Planning] Director or the [Planning] Department." The Development Agreement was authorized pursuant to Chapter 30 of the County Code, which directed the County of Hawaii Mayor to "make such rules and regulations as necessary to implement [Chapter 30.]"Haw. Cnty. Code § 30-4(c). Pursuant to this directive, the Office of the Mayor promulgated Mayor Rule 1,which provides that the Planning Department"shall be responsible for the overall administration of the [Development] Agreement."Mayor Rule 1-8. At the contested case hearing before the BOA, the Planning Director testified that, as part of carrying out its delegated responsibilities under Mayor Rule 1, the Planning Department interprets the provisions of development agreements and applies their requirements to facts. That is all that Oceanside's Requests on the Development Agreement asked the Planning Director to do. Oceanside's Petition for Declaratory Ruling specifically cited Mayor Rule 1-8 as the basis (or"rule") for the Planning Director to issue declaratory rulings on the Development Agreement,which provided the Planning Director with all the authority and jurisdiction he needed to issue declaratory rulings on Oceanside's Requests concerning the Development Agreement. The Planning Director's interpretation of the Development Agreement was also one of the central issues the Court directed the parties to seek out through the declaratory ruling process. Exhibit A at 5,¶12 (noting that Coupe's 22 Proposed Conclusions of Law Objections underlying lawsuit was stayed so that declaratory rulings could be obtained from the Planning Director on "Oceanside's compliance with . . . the development Agreement."). The Planning Director had all the authority and jurisdiction he needed to issue declaratory rulings on the Development Agreement, and he erred in failing to do so in response to Oceanside's Requests. Coupe Family's Response: This objection again attempts to reargue the matters before the Planning Director and is thus beyond the scope of this proceeding. It is unobjectionable. In response to Proposed COL 10, 10. The Planning Director acted within his Oceanside incorporates by reference its jurisdiction and discretion in the manner in objections to Proposed COLS 4-7, supra. which the Planning Director addressed the Appellant's posed questions. The Planning Director was not required to respond to the questions in the form or format posed by the Appellant. Coupe Family's Response: This objection again attempts to reargue the matters before the Planning Director and is thus beyond the scope of this proceeding. It is unobjectionable. 11. Planning Director did not abuse his Oceanside objects to Proposed COL I I on discretion when he relied on case law as the grounds that the Planning Director the basis for declining to review or does not have discretion to misapply case affirm past actions or decisions of law, which he did when he erroneously agencies of the County and the Hawaii concluded that certain of Oceanside's County Council. Requests sought to "review or affirm past actions or decisions of agencies of the County and the Hawai`i County Counci I." Oceanside further objects to Proposed COL I I on the grounds that it fails to identify what case law the Planning Director purportedly relied upon, much less explain how the Planning Director properly relied upon and applied the case law. 23 Proposed Conclusions of Law Objections Coupe Family's Response: This objection again attempts to reargue the matters before the Planning Director and is thus beyond the scope of this proceeding. This COL contains the Board's reasoning for its decision. To that end, it is both relevant and unobjectionable. 12. The Planning Director correctly In response to Proposed COL 12, identified issues and questions outside Oceanside incorporates by reference its the Planning Director's jurisdiction and objections to Proposed COLS 4-7 and 10- discretion. 11, supra. As set forth in Oceanside's Petition for Appeal and Hearing Brief, the Planning Director erred by, inter alia, refusing to: (a) answer four of Oceanside's Requests on the grounds that they concerned the Development Agreement; and (b) answer seven of Oceanside's Requests on the grounds that they purportedly sought to review or affirm prior Planning Department actions. Coupe Family's Response: This objection again attempts to reargue the matters before the Planning Director and is thus beyond the scope of this proceeding. This COL contains the Board's reasoning for its decision. To that end, it is both relevant and unobjectionable. 13.Planning Director was not required to In response to Proposed COL 13, inform the Appellant of their [sic] Oceanside incorporates by reference its compliance obligations under Ord. 96-7 objections to Proposed COLS 4-7 and 10- and Ord. 96-8, or provide the specific 12, supra. information sought by Appellant. Oceanside also objects to Proposed COL 13 as being contrary to the law. Petitions for declaratory rulings are "meant to provide a means of seeking a determination of whether and in what way some statute, agency rule, or order, applies to the factual situation raised by an interested person." CARD, 114 Haw. at 196-97, 159 P.3d at 155-56. In other-words, petitions for declaratory ruling are specifically intended to provide interested persons a means to obtain an agency's official position on the petitioner's "obligations" as it relates to matters within the agency's jurisdiction. 24 Proposed Conclusions of Law Objections In the context here, those matters include Oceanside's obligations under, and compliance with, the Ordinances. The Planning Director's actions must also be viewed in light of the Court's application of the primary jurisdiction doctrine and its instructions that declaratory rulings be obtained on the issues raised in Coupe's lawsuit. Exhibit A at 5,¶12 (noting that Coupe's underlying lawsuit was stayed that declaratory rulings could be obtained from the Planning Director on "Oceanside's compliance with the Ordinance and the development Agreement."). Coupe Family's Response: This objection again attempts to reargue the matters before the Planning Director and is thus beyond the scope of this proceeding. This COL contains the Board's reasoning for its decision. To that end, it is both relevant and unobjectionable. Oceanside objects to Proposed COL 14 on 14. The Order sufficiently addressed the the grounds that it is contrary to the questions raised by the Appellant even substantial evidence in the record and the though the Order did not reflect the law. As set forth in Oceanside's Petition for specifics desired by the Appellant. Appeal and Hearing Brief, the Planning Director erred by, inter alia: (a) failing to issue declaratory rulings on eight of Oceanside's Requests despite determining that they were within his jurisdiction and would be answered in the Declaratory Order; (b)refusing to issue declaratory rulings on four of Oceanside's Requests on the grounds that they concerned the Development Agreement; and(c)refusing issue declaratory rulings on seven Requests because they purportedly sought to review or affirm the Variance. The Declaratory Order therefore did not"sufficiently address[ ] the questions raised by" Oceanside. Oceanside further objects to Proposed COL 14 on the grounds that it misstates and mischaracterizes the grounds for Oceanside's appeal, which did not simply concern a lack"clarity or specifics desired 25 Proposed Conclusions of Law Objections by the [Oceanside]."This was confirmed by the Circuit Court in its Remand Order. See Exhibit A at 24,¶28. Coupe Family's Response: Coupe Family submits that any confusion or alleged issues presented by the Proposed Decision and Order will be resolved by incorporating Coupe Family's suggested edits. For the reasons set forth in Oceanside's 15. Having considered the testimony and Petition for Appeal and its Hearing Brief, evidence provided, including the as well as the evidence, testimony, and submitted exhibits, the Board argument adduced at the hearing, all of unanimously concluded that in issuing which is hereby incorporated by reference, his Order, the Planning Director in Oceanside objects to Proposed COL 15 on issuing the order did not clearly err, was the grounds that the BOA's decision to not arbitrary or capricious, nor did he affirm the Declaratory Order goes against abuse his discretion. Therefore, the the weight of the evidence and applicable Board affirmed Zen do Kem, Planning law, and constitutes reversible error. Director, County of Hawai`i's Declaratory Order in the Matter of C & J Coupe Family Limited Partnership, Petitioner, Docket No. 24-0002. Coupe Family's Response: This objection again attempts to reargue the matters before the Planning Director and is thus beyond the scope of this proceeding. This COL contains the Board's reasoning for its decision. To that end, it is both relevant and unobjectionable. II. PROPOSED SUPPLEMENTAL EDITS A. Findings of Fact 1. At the end of Paragraph 1: Add "BOA Record on Appeal ("ROA") at 4- 3 82." 2. At the end of Paragraph 2: Add"ROA at 383-96." 3. Paragraph 3: Add "ROA at 464-1299" at the end of the first sentence, and add"ROA at 477-91" at the end of the paragraph. 4. At the end of Paragraph 4: Add"ROA at 49 L" 26 5. Paragraph 8:Add to the end of the paragraph"and issued the Order Granting Petition to Intervene." 6. Paragraph 9 is revised to read as follows: 9. On October 11, 2024, the Board heard oral arguments and presentation of evidence, including exhibits, and testimony on the Appeal in a contested case hearing pursuant to BOA Rule 8-1 1, Part 3 of the BOA Rules, and Haw. Rev. Stat. Chapter 91, at the West Hawaii Civic Center with all Board Members present in person. Michael Kaleihoku Vitousek, Manager of Land and Development of 1250 Oceanside, LLC, Derek B. Simon, Esq., and Tan R. Wesley-Smith, Esq. appeared on behalf of Appellant. Zendo Kern, Hawaii County Planning Director and E. Britt Bailey, Esq. and Jean K. Campbell, Esq., Deputy Corporation Counsel, appeared on behalf of the Planning Department. Kenneth R. Kupchak,Esq., and Mark M. Murakami,Esq. appeared on behalf of Intervenor. Charles Coupe of C&J Coupe Family Limited Partnership was also present. Add to the end of the paragraph "See Board of Appeals Meeting Minutes of October- 1 1, 2024." 7. Paragraph 10: Add to the end of the paragraph "See Transcript of October 1 1, 2024 Hearing at 20." 8. Paragraph 1 1: Add"See Order-(ROA at 38396); Transcript of October 11, 2024 Hearing at 30 45" to the end of the first sentence, and add "See Transcript of October 11, 2024 Hearing at 37, 44" at the end of the paragraph. 9. After paragraph 11, add new paragraph that reads as follows: 12. Haw. Rev. Stat. § 91-8 states that an interested person may petition an agency for "a declaratory order as to the applicability of any statutory provision or of any rule or order of the agency."Pursuant to Planning Department's Rules of Practice and Procedure ("PRPP") Rule 3-1(a), declaratory orders can be issued as to "the applicability of any statutory provision, ordinance, or any rule or order of the Director or the Department."It is established that under both Chapter 91 and PRPP, the Planning Director's discretion to issue declaratory rulings is limited. 27 10. Add a new paragraph after that, as follows: 13. The declaratory ruling procedure is one"whereby an interested party could seek agency advice as to how a statute, agency rule, or order would apply to particular circumstances not yet determined." Citizens Against Reckless Development v. Zoning Board of Appeals of*the City and County of Honolulu ("CARD"), 1 14 Hawaii 184, 197, 159 P.3d 143, 156 (2007). "[T]he declaratory ruling procedure was not intended to be utilized to seek review of agency determinations that have already been made and which have not been timely appealed." Id. at 196, 159 P.3d at 155. Put another way, declaratory rulings are forward-looking whereas appeals of an agency's order or action looks at the past. Id. at 19495, 159 P.3d at 15354 ("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 been brought into consideration."). Further, examinations of the correctness of prior actions have specific appeal procedures which had expired just as the declaring of defaults under the Development Agreement is beyond the scope of the of the Planning Director's authority pursuant to Hawaii County Code § 30-6(a) and because it is not an action of Director, but rather a contract signed by the Mayor. HCC § 30-6(a) ("If, at any time, the office of the mayor finds and determines that the principal has committed a material breach of the terms or conditions of the agreement, the office of the mayor shall serve notice in writing, within thirty days after the finding of a material breach . . ."). Thus, the Planning Director's authority to issue declaratory rulings under Chapter 91 and PR-PP does not include the authority to review the actions or orders of another department or government agency, or things that are not a Planning Department order. 11. Paragraph 12, re-numbered 14: Add "See Order at 8-9 (ROA at 390-91)" after the first sentence. Add "See Order at 8-9 (ROA at 390-91); Transcript of October 11, 2024 Hearing at 38-39" at the end of the paragraph. 12. Paragraph 13, re-numbered 15: Add "See Order at 10, 12 (ROA at 392, 394)" after the first sentence. Add"Id." at the end of the second sentence. At the beginning of the 28 third sentence, add"The record clearly shows that", so this sentence will read"The record clearly shows that Planning Director did not petition for his own declaratory ruling." 13. Paragraph 14, re-numbered 16: Add "See Order at 11 (ROA at 393); Transcript of October 11, 2024 Hearing at 41" at the end of the first sentence. Add "See Order at 9, 11 (ROA at 391, 393)"To the end of the second sentence.Add"Id."to the end of the paragraph. 14. Paragraph 15, re-numbered 17: In the second sentence after the word "discretion", add"because the Planning Director's declaratory rulings are matters of law." The third sentence is revised by deleting "Planning Department's Rules of Practice and Procedure" and adding after the word "or" "Hawaii Revised Statutes". The comma and the words "Hawaii Revised Statutes" that follow the words "Chapter 91"in the third sentence are deleted. Also in the third sentence after the words "requires Planning Director to issue a declaratory ruling", add"as the decision to issue a declaratory ruling is discretionary."New sentence after that will read "Likewise, there is no requirement that Planning Director must issue declaratory rulings to the satisfaction of the petitioner." Add "Further" to the start of the next sentence that starts with "Planning Director was not required to inform..." 15. Paragraph 16, re-numbered 18: At the beginning, replace the words "The exhibits did not show"with "Nothing in the record shows that". 16. Paragraph 17, re-numbered 19: Add to the beginning the following: 19. "Laws in pari materia, or upon the same subject matter, shall be construed with reference to each other." Waikiki Marketplace Inv. Co. v. Chair of Zoning Bd. of Appeals, 86 Hawai`i 343, 949 P.2d 183, 194 (App. 1997). The same applies to the interpretation of municipal ordinances. Id. ("The construction of municipal ordinances is governed by the same rules of statutory construction."). The record clearly shows that Ord. 96-7 and Ord. 96-8 were enacted at the same time, containing the same maps, and both applied to the development of Hokulia. ROA at 404-29; 430- 63. Thus, Ord. 96-7 and Ord. 96-8 are "laws in pari inateria" and 29 must be construed with reference to each other. Further, the interpretation of Ord. 96-7 and Ord 96-8 is a matter of law. Revise the sentence starting with"Planning Director did not err",to read: "Planning Director did not err, and acted within his discretion in not answering on the effect of Ord. 96-7 alone and rather construed the effect of Ord. 96-7 and Ord. 96-8 together." 17. Paragraph 18, re-numbered 20: Add to the end of the paragraph "Order at 59 (ROA at 38791)." 18. Add new paragraph 21 as follows: 21. Where the Director has discretion to issue declaratory rulings under the PRPP, his decision not to issue declaratory rulings on certain questions put to him because they are outside of the bounds of his authority is a valid and proper exercise of said discretion. Planning Director was correct in his determination that these questions were outside of the scope of his discretion as a matter of law and acted properly in declining to issue declaratory rulings on them. 19. Paragraph 18,re-numbered 22: After the first sentence, add"Order at 10— 11 (ROA at 392-93)." Add "Id." at the end of the paragraph. 20. Paragraph 22 is re-numbered 23. B. Conclusions of Law 1. Paragraph 7: In the first sentence, after "A development agreement", add "and a county council resolution", change the word"is"after that to "are". In the second sentence, after the words "Therefore, Planning Director does not have the discretion to issue a declaratory order regarding a development agreement", add "or a county council resolution." Add a third sentence that reads, "Planning Director correctly identified requests seeking declaratory rulings pertaining to the Development Agreement and Resolution 317-12 that were outside of his authority and properly declined to exercise his discretion to issue declaratory rulings." 30 DATED: Honolulu, Hawaii, February 27, 2026. DAMON KEY LEONG KUPCHAK HASTERT Is/Katie T. Pham KENNETH R. KUPCHAK MARK M. MURAKAMI KATIE T. PHAM 34 EXHIBIT "A" RENEE N. C. SCHOEN 5936 Corporation Counsel SYLVIA A. WAN 9586 Deputy Corporation Counsel Office of the Corporation Counsel County of Hawai'i 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Telephone: (808) 961-8251 Facsimile: (808) 961-8622 E-mail: sylviaa.wanAhawaii county.gov Attorneys for the BOARD OF APPEALS BEFORE THE BOARD OF APPEALS COUNTY OF HAWAII STATE OF HAWAII In the Matter of Appeal CASE NO.: PL-BOA-2024-000105 of PROPOSED AMENDED FINDINGS OF FACT, CONCLUSIONS OF LAW, 1250 OCEANSIDE, LLC DECISION AND ORDER; BOARD OF APPEALS' CERTIFICATE OF SERVICE From the Decisions of the Planning Director, dated April 29, 2024 (Docket No. 24-0002) PROPOSED AMENDED FINDINGS OF FACT, CONCLUSIONS OF LAW, DECISION AND ORDER RENEE N. C. SCHOEN 5936 Corporation Counsel SYLVIA A. WAN 9586 Deputy Corporation Counsel Office of the Corporation Counsel County of Hawai'i 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Telephone: (808) 961-8251 Facsimile: (808) 961-8622 E-mail: sylvi aa.wan khawai i county.gov Attorneys for the BOARD OF APPEALS BEFORE THE BOARD OF APPEALS COUNTY OF HAWAII STATE OF HAWAII In the Matter of Appeal CASE NO.: PL-BOA-2024-000105 of AMENDED FINDINGS OF FACT, CONCLUSIONS OF LAW,DECISION AND 1250 OCEANSIDE, LLC ORDER; BOARD OF APPEALS' CERTIFICATE OF SERVICE From the Decisions of the Planning Director, dated April 29, 2024 (Docket No. 24-0002) AMENDED FINDINGS OF FACT, CONCLUSIONS OF LAW, DECISION AND ORDER Hawaii County Board of Appeals received and reviewed a PROPOSED FINDINGS OF FACT, CONCLUSIONS OF LAW, DECISION AND ORDER filed by the Appellee on November 13, 2024, and 1250 OCEANSIDE, LLC'S OBJECTIONS TO COUNTY OF HAWAII PLANNING DIRECTOR'S PROPOSED FINDINGS OF FACT, CONCLUSIONS OF LAW, DECISION AND ORDER, filed by the Appellant on December 3, 2024. Those findings of fact and conclusions of law otherwise proposed by the parties that are not incorporated herein, are hereby rejected. The Board of Appeals, having held a hearing on the above-entitled matter on October 11, 2024 finds, concludes and orders as follows: FINDINGS OF FACT 1. On February 27, 2024, 1250 Oceanside, LLC ("Appellant," or "1250 Oceanside") filed its Petition for Declaratory Ruling, ("Petition") requesting declaratory rulings from the Director of the Planning Department of the County of Hawaii ("Planning Director"). BOA Record on Appeal ("ROA") at 4382. 2. On April 29,2024, the Planning Director issued Zendo Kern, Planning Director, County of Hawai'i's Declaratory Order In the Matter of 1250 Oceanside, LLC, Petitioner, Docket No. 24-0002 ("Order") in response to the Petition. ROA at 383-96. 3. On May 28, 2024, Appellant filed its General Petition for Appeal of Decisions by Planning Director or Public Works Director ("Appeal") with the Board of Appeals, County of Hawaii ("Board") appealing the Planning Director's issuance of the Order. ROA at 464-1299. 1250 Oceanside argued the following points of error: a. Planning Director failed to address eight of Appellant's requests relating to dedication requirements and construction standards in light of Ord. 96-7 and Ord. 96-8, and variances under Hawaii County Code Chapter 23. b. Planning Director erred by stating that he could not render declaratory rulings on seven requests that would require the review or affirmation of a variance granted by a prior Planning Director. c. Planning Director failed to answer four questions relating to the review and interpretation of a development agreement. 2 d. Planning Director erred by not interpreting Ord. 96-7, standing alone, because no dedication requirement is contained within Ord. 96-7; e. Planning Director erred by seemingly qualifying the 2010 dedication of the Mauka Haleki'i Extension and corresponding satisfaction of the Ordinances' conditions related to the roadway; and f. Planning Director erred by ruling that the Makai Haleki'i Extension and Connector Road have not been constructed as required under the Ordinances because (1)both roadways were constructed pursuant to plans approved by the Department of Public Works of the County of Hawaii ("DPW") and are covered by the Variance, and(2) the Director lacks authority to rule upon the sufficiency of the roadway for dedication. g. Planning Director erred by issuing several declaratory rulings Appellant claims are sua sponte rulings; ROA at 47791. 4. Appellant's Appeal sought to modify the Order or have the Order remanded to the Planning Director to correct alleged errors. ROA at 491. 5. On July 3, 2024, C&J Coupe Family Limited Partnership ("Intervenor") filed its Petition to Intervene in General Petition for Appeal ofDecision by the Planning Director ("Petition to Intervene"). 6. On July 15, 2024, Appellant filed its Position Statement on Petition to Intervene in General Petition for Appeal of Decision by Planning Director, dated July 3, 2024. 7. On July 17, 2024, the County filed its County of Hawaii Planning Director's Statement of No Position to Petition to Intervene in General Petition for Appeal of Decision of Planning Director, dated July 3, 2024. 8. A hearing on the Petition to Intervene was held on August 9, 2024, at which the Board approved the Petition to Intervene and issued the Order Granting Petition to Intervene. 9. On October 11, 2024, the Board heard oral arguments and presentation of evidence, including exhibits, and testimony on the Appeal in a contested case hearing pursuant to BOA Rule 8-1 1, Part 3 of the BOA Rules, and Haw. Rev. Stat. Chapter 91, at the West Hawaii Civic Center with all Board Members present in person. Michael Kaleihoku Vitousek, Manager of Land and Development of 1250 Oceanside, LLC, Derek B. Simon, Esq., and Ian R. Wesley-Smith, Esq. appeared on behalf of Appellant. Zendo Kern, Hawaii County Planning Director, and E. Britt Bailey, Esq. and Jean K. Campbell, Esq., Deputy Corporation Counsel, appeared on behalf of the Planning Department. Coupe Family Limited , Kenneth R. Kupchak, Esq., and Mark M. Murakami, Esq. appeared on behalf of Intervenor. Charles Coupe of C&J Coupe Family Limited Partnership was also present. See Board of Appeals Meeting Minutes of October 1 1, 2024. 10. Appellant's witness, Michael Kaleihoku Vitousek, testified that the Planning Director's declaratory order did not provide enough or specific information for Appellant to understand how to comply with its compliance obligations under Ord. 96-7 and Ord. 96-8. See Transcript of October 11, 2024 Hearing a 1 J.—Planning Director testified;and his testimony was consistent with the contents of his Order. See Order- (ROA at 383 96); Transcript of October 11, 2024 Hearing at 30 45. 4 Planning Director testified he exercised discretion in not answering some questions posed by the petitions. See Transcript of October 11, 2024 Hearing at 37, 44. 12. Haw. Rev. Stat. § 91-8 states that an interested person may petition an agency for "a declaratory order as to the applicability statutoa provision or of any rule or order of the agency." Pursuant to Planning Department's Rules of Practice and Procedure ("PRPP") Rule 3-1(a), declaratory orders can be issued as to "the applicability of any statutoryprovision, ordinance, or any rule or order of the Director or the Department." It is established that under both Chapter 91 and PRPP, the Planning Director's discretion to issue declaratory rulings is limited. 13. The declaratoa ruling procedure is one "whereby an interested party could seek agency advice as to how a statute, agency rule, or order would apply to particular circumstances not _yet determined." Citizens Against Reckless Development v. Zoning Board of Appeals of the City and County of Honolulu ("CARD"), 114 Hawai`i 184, 197, 159 P.3d 143, 156 (2007). "[The declaratot- ruling procedure was not intended to be utilized to seek review of agency determinations that have already been made and which have not been timely ppealed." Id. at 196, 159 P.3d at 155. Put another way, declaratory rulings are forward-looking whereas appeals of an agency's order or action looks at the past. Id. at 19495, 159 P.3d at 15354 ("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 been brought into consideration."). Further, examinations of the correctness of prior actions have specific appeal procedures which had expired just as the declaring of defaults under the Development Agreement is beyond the scope of the of the Planning Director's authority_pursuant to Hawaii County Code § 30-6(a) and because it is not an action of Director, 5 but rather a contract signed by the Mayor. HCC § 30-6(a) ("if, at any time, the office of the mayor finds and determines that the principal has committed a material breach of the terms or conditions of the agreement, the office of the mayor shall serve notice in writing, within thirty days after the finding of a material breach . . ."). Thus, the Planning Director's authority to issue declaratory rulings under Chapter 91 and PRPP does not include the authority to review the actions or orders of another department or government agency, or things that are not a Planning Department order. 4?14. Planning Director correctly identified questions that sought an interpretation of a development agreement in his Order. See Order at 89 (ROA at 39091). Planning Director's discussion of the development agreement in the Order was only background, and was labeled as such. See Order at 89 (ROA at 39091); Transcript of October 1 1, 2024 Hearing at 3839. 4-3-.15. Planning Director's discussion as to the effect of a variance on existing law and authority of other county entities in his Order was not a sua sponte ruling. See Order at 10, 12 (ROA at 392, 394). Planning Director's discussion pertained to the applicability of Chapter 23 within the larger context provided by Appellant. Id. The record clearly shows that Planning Director did not petition for his own declaratory ruling. 4416. Planning Director's order and testimony did not "qualify" the dedication of the Mauka Halekii Extension in relation to the satisfaction of the Ord. 96-7 and 96-8 requirements as argued by Appellant. See Order at 11 (ROA at 393); Transcript of October 11, 2024 Hearing at 41. Planning Director acknowledged in his Order that the Mauka Haleki'i Extension was accepted by County Council Resolution 317-12 after input from Department of Public Works. See Order at 9, 11 (ROA at 391, 393). Planning Director correctly identified that he had no 6 authority to interpret the acceptance of the dedication of the road by County Council or Department of Public Works. Id. 4-5-.17. Neither the testimony of Mr. Vitousek nor the Planning Director needed reconciliation with the content of the Order. The testimony was irrelevant to the determination as to whether the Planning Director abused his authority and/or discretion because the Planning Director's declaratory rulings are matters of law. Nothing in PRPP Planning Depaftmeiit's Rules of PFaetiee and Weeedafe " " Rule 3-1 or Hawaii Revised Statutes Chapter 91; Hawaii Revised Statute-s-, requires Planning Director to issue a declaratory ruling as the decision to issue a declaratory ruling is discretionary. Likewise, there is no requirement that Planning Director must issue declaratory rulings -to the satisfaction of the petitioner4ef-said Further, Planning Director was not required to inform Appellant of their legal obligations with respect to the issues raised in the Petition for a Declaratory Ruling. Likewise, eliciting testimony showing Planning Director did not answer specific questions or provided additional information that was not requested did not show the Planning Director abused his authority and/or discretion. 4-6-.18 The exhibits did not showNothing in the record shows that the Order was issued in error or an abuse of discretion. 4�7-.19. "Laws in pari materia, or upon the same subject matter, shall be construed with reference to each other." Waikiki Marketplace Inv. Co. v. Chair of Zoning Bd. of Appeals, 86 Hawaii 343, 949 P.2d 183, 194 (App. 1997). The same applies to the interpretation of municipal ordinances. Id. ("The construction of municipal ordinances is governed by the same rules of statutory construction."). The record clearly shows that Ord. 96-7 and Ord. 96-8 were enacted at the same time, containing the same maps, and both applied to the development of Hokulia. ROA at 40429; 43063. Thus, Ord. 96-7 and Ord. 96-8 are "laws in pari materia" and must be 7 construed with reference to each other. Further, the interpretation of Ord. 96-7 and Ord 96-8 is a matter of law. Planning Director did not err, and acted within his discretion in refusing to answer on the effect of Ord. 96-7 alone, as requested by Appellant, whei-rand construed the effect of Ord. 96-7 and Ord. 96-8 to e the same t* 20. Planning Director correctly identified questions that sought a review of actions of the Hawaii County Council, a prior Planning Director's issuance of a variance, and matters under the jurisdiction of a different department, the Department of Public Works. Order at 59 (ROA at 38791). 4.21. Where the Director has discretion to issue declaratoty rulings under the PRPP, his decision not to issue declaratory rulings on certain questions put to him because they are outside of the bounds of his authority is a valid and proper exercise of said discretion. Planning Director was correct in his determination that these questions were outside of the scope of his discretion as a matter of law and acted properly in declining to issue declaratoty rulings on them. 4-9-.22. The Planning Director did not rule that any roadway is not constructed as required. Order at 101 1 (ROA at 39293). The Planning Director ruled the roadways in question must be constructed to a condition approved by DPW, which does not take a position on whether or not any roadway is or was currently approved by DPW, and instead leaves those determinations to DPW and the Hawaii County Council. Id. 2-0.23. The Board finds that the Order addressed the questions appropriately raised by the Appellant in its General Petition, even if Planning Director did not provide the level of clarity or specifics desired by the Appellant. CONCLUSIONS OF LAW 8 1. Hawaii Revised Statues Section 91-8 allows that: Any interested person may petition an agency for a declaratory order as to the applicability of any statutory provision or of any rule or order of the agency. Each agency shall adopt rules prescribing the form of the petitions and the procedure for their submission, consideration, and prompt disposition. Orders disposing of petitions in such cases shall have the same status as other agency orders. 2. Planning Department's Rules of Practice and Procedure ("PRPP") Rule 3-1(a) states: (a) On petition of an interested person, the Director may i�a declaratory order- as to the applicability of any statutory provision, ordinance, or of any rule or order of the Director or the Department. (emphasis added). 3. PRPP Rule 3-1(c) states: (c)Within sixty days after the submission of a petition for declaratory ruling, the Director shall either deny the petition in writing, stating the reasons for such denial or issue a declaratory order on the matters contained in the petition, or set the matter for a public hearing, as provided in Sections 3-2, 3-3 and 3-4 of these rules. 4. PRPP Rule 3-1(a) gives the Planning Director-the discretion to "issue a declaratory order as to the applicability of any statutory provision, ordinance, or any rule or order of the Director or the Department." 5. PRPP Rule 3-1(a) does not require the Planning Director to answer all questions posed in a petition once the Planning Director decides to issue a declaratory ruling on a petition. The Planning Director has discretion in the manner and method in addressing questions posed for a declaratory ruling. 6. PRPP Rule 3-1(c)provides when the Planning Director shall respond to the request for a declaratory order. 9 7. A development agreement and a county council resolution mare not a "statutory provision, ordinance, or any rule or order of the Director or the Department." Therefore, Planning Director does not have the discretion to issue a declaratory order regarding a development agreement or a county council resolution. Planning Director correctly identified requests seeking declarator- tags pertaining to the Development Agreement and Resolution 317-12 that were outside of his authority and properly declined to exercise his discretion to issue declaratory rulings. 8. Hawaii County Code ("HCC") Section 25-2-23 [Standard of Review],provides that: The board of appeals may affirm the decision of the director, or it may reverse or modify the decision or remand the decision with appropriate instructions if based upon the preponderance of evidence the board finds that: (1) The director erred in its decision; or- (2) The decision violated this chapter or other applicable law; or (3) The decision was arbitrary or capricious or characterized by an abuse of discretion or clearly unwarranted exercise of discretion. 9. Board of Appeals Rules of Practice and Procedures, Rule 8-4(4)requires that a general petition for an appeal must include: A statement explaining: (A)How the decision appealed from violates the law; or (B) How the decision appealed from is clearly erroneous; or- (C) How the decision appealed from was arbitrary and capricious, or characterized by an abuse of discretion or clearly unwarranted exercise of discretion. 10. The Planning Director acted within his jurisdiction and discretion in the manner in which the Planning Director addressed the Appellant's posed questions. The Planning Director was not required to respond to the questions in the form or format posed by the Appellant. 10 11. Planning Director did not abuse his discretion when he relied on case law as the basis for declining to review or affirm past actions or decisions of agencies of the County and the Hawaii County Council. 12. The Planning Director correctly identified issues and questions outside the Planning Director's jurisdiction and discretion. 13. Planning Director was not required to inform the Appellant of their compliance obligations under Ord. 96-7 and Ord. 96-8, or provide the specific information sought by Appellant. 14. The Order sufficiently addressed the questions raised by the Appellant even though the Order did not reflect the level of clarity or specifics desired by the Appellant. 15. Having considered the testimony and evidence provided, including the submitted exhibits, the Board unanimously concluded the Planning Director in issuing the Order did not clearly err, was not arbitrary or capricious, nor did he abuse his discretion. Therefore, the Board affirmed Zendo Kern, Planning Director, County of Hawaii's Declaratory Order In the Matter of 1250 Oceanside, LLC, Petitioner, Docket No. 24-0002. DECISION AND ORDER Based on its consideration of the evidence and argument presented at hearing, including the Record on Appeal, the documents on file herein, and applying the reliable probative evidence and law, the Board hereby Orders as follows: The Planning Director's April 29, 2024, Zendo Kern, Planning Director, County of Hawaii's Declaratory Order In the Matter of 1250 Oceanside, LLC, Petitioner, Docket No. 24- 0002 is AFFIRMED. The above-captioned Board of Appeals case is dismissed with prejudice in its entirety. 11 Dated: Hawaii, , 2026. By: Cathy Lewis, Chair Board of Appeals, County of Hawaii State ofHawai`i 12