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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i 56. The comments from both Virginia Goldstein(County Planning Department) informing Oceanside of the need to view Hokuli'a"in its entirety,"and Esther Ueda's(LUC) "parcelling"caution,put Oceanside on reasonable notice that it took a substantial risk of proceeding without review by the LUC. Oceanside cannot claim it acted in good faith on the affirmative acts of the County of Hawai'i,while ignoring the LUC and these notices. Despite knowledge of the risk of doing so, Oceanside,presumed the Ag-la zoning was consistent, and parceled out only a 14.854- acre lot for the members' lodge for county reclassification to"urban"under HRS § 205-3.1. October 1,2002 Order, Finding of Fact No. 3. Failure to Obtain Required Discretionary Permit. 57. In County of Kauai v Pacific Standard Life Insurance, Co 65 Haw. 318, 653 P.2d 766 (1982) ("Nuk li"' ,the Hawaii Supreme Court, interpreting its earlier decision in Lffie of e Land v. City Council. 61 Haw. 390,606 P.2d 866(1980),stated: "Life of the Land therefore teaches that final discretionary action constitutes official assurance for zoning estoppel purposes . . . It preserves government control of development until the government's own process for making land use decisions leaves nothing to discretion." Nukoli'i. 65 Haw. at 328, 653 P.2d at 774. There is no single permit that constitutes final discretionary approval of a development. Rather, in each case, the focus should be on the existing legal process. Id at 329, 774-775. 58. In the instant case,the existing law required Oceanside to seek reclassification of the lands from Agricultural to Urban by the LUC. Unlike Nukoli'i,the instant case does not involve a change in existing law. 59. Vested rights and equitable estoppel protect development only after issuance of required discretionary permits. The Development Agreement was not that discretionary permit. 27