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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t including,without limitation,the permitted uses in Chapter 205, HRS,the Zoning Code section 25-5-72, and all supplemental uses allowed under Zoning Code sections 25-4-1 through 25-4-14. 51. The LUC is not a party to the Development Agreement, and is not bound by the Development Agreement. Exh. PKO-428, Development Agreement between County of Hawaii and Oceanside Exh 10. Oceanside can only develop its lands under the Development Agreement if it complies with state land use laws. 52. Given Oceanside's substantial resources and the exclusive nature and costs of its development,and balancing this with the risks raised by Oceanside's advisors,Oceanside acted unreasonably in not seeking declaratory relief or review and approval of the Hokuli'a development from the LUC prior to expending substantial amounts of money. Oceanside has the financial assets to secure land use approvals. It hired multiple attorneys and land use planners to advise it of applicable land use requirements. 53. Hokuli a has sold approximately 190 lots. These lots range in price from$600,000 to $3 million each. Assuming an average price of$1 million per lot,the project should have$190 million at its disposal from sales revenue alone. As an indication of its fiscal power, Oceanside budgeted$8.874 million for its defense of this trial alone, and actually expended$7.768 million for its defense in trial through May 2003." Exhibit DO-1366. 54. An equitable estoppel claim cannot prevail where Defendant clearly"took a chance."Pelosi v. Wailea Ranch Estates, 91 Hawaii 478,489, 985 P.2d 1045, 1056 (1999). 55. Oceanside "took a chance" when it disregarded its own counsel's July 30, 1989 advice to seek review by"the appropriate state and county agencies involved in the land use permitting process" ... "after a more concrete development proposal is established."DO-1354 at 15. including,without limitation,uses,density,design,height,size and building specifications of proposed buildings;construction standards and specifications for roads and utilities,roadway improvements;affordable housing;community benefit assessments;water utilization and all exaction requirements applicable to the development of the Property;made applicable and in force as of the date of this Agreement. 26