2003-10-22 Amended Findings of Fact Conclusions of Law Order Regarding Trial on Count IV of the Fifth Amended Complaint

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persuasive weight to administrative construction and follow the same, unless the construction is palpably erroneous." Ka Pa'akai O Ka'Aina v. Land Use Comm!m 94 Haw. 31, 42 (2000) 46. Both the LUC Executive Director and the County Planning Director expressed concerns about the failure to view the Hokuli'a project"in its entirety"to determine the appropriate land use designation for the project under FM chapter 205. These opinions lend persuasive weight to the conclusion that when viewed"in its entirety,"the Hokuli'a project is essentially an urban, not agricultural, use of lands. 47. Pursuant to Hawaii Revised Statutes § 91-8,any interested person may petition an agency for declaratory order as to the applicability of any rule or order of the agency. 48. .Given the advice Oceanside received from its counsel and the comments of the County of Hawaii Planning Director,the Executive Director of the State LUC,the director of the State OSP;and the director of the State DOA,it was unreasonable for Oceanside to proceed with the development of Hokuli'a without seeking state LUC approval or a declaratory ruling. Oceanside's insistence on proceeding with only County approval for its rezoning of the agricultural lot area to Ag-1 a in its residential subdivision,without regard for the additional requirement of HRS §205-4.5 is a disregard for known risks that does not constitute"acting in good faith." 49. Oceanside's decision to nearly triple its alleged$55 million spending prior to the filing of this action establishes that it knowingly risked the additional $136 million it allegedly expended since the filing of the complaint. Test. R Stuit(7 123103). 50. Oceanside's April 20, 1998 Development Agreement with the County was explicitly conditioned on compliance with HRS Chapter 205: 5. PERMITTED USES OF THE PROPERTY. Permitted uses of the Property shall be all uses permitted under the Land Use Regulations"and Approvals, The Development Agreement defines land use regulations as follows: v. LAND USE REGULATIONS."Land Use Regulations"shall mean any and all State and County laws,ordinances,resolutions,rules and policies governing the permitted uses of the Property, 25