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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r 66. Had the resort area remained as the original 25+-acre parcel affected by Ordinance No. 97-34, Oceanside would have been required to go before the LUC to reclassify the parcel from Agricultural to Urban as required by HRS § 205-4. 67. Oceanside's circumvention of the rules and regulation applying to its application for approval of its lodge is evidence of a bad faith response to an obvious problem Oceanside faced,not an innocent, good faith belief that its project was in compliance with the existing rules and regulations. 68. The County's assent to limit the reclassification for the Members' Lodge to 0.146 acres less than the maximum allowable acreage under HRS § 205-3.1, indicates a lack of good faith in processing land use approvals in the instant case. 69. The County cannot subvert HRS § 205-3.1(e)by refusing to consider all parts of a development to deny the LUC jurisdiction over the larger development. 70. Because the ordinances on which it relies are invalid as a matter of law,Oceanside cannot rely on vested rights or equitable estoppel as defenses to an injunction against construction of its planned Members' Lodge. Need for Injunctive Relief. 71. An injunction is considered prohibitory when the thing complained of results from present and continuing affirmative acts and the injunction merely orders a defendant to refrain from doing those acts. 42 AM JuR. 2d,Injunctions, §4(2000) (citing Arkansas Dept. of Human Servcs v Hudson. 338 Ark. 442, 994 S.W.2d 488 (1999). 72. Although generally exercised as a matter of discretion, the power to grant or deny injunctive relief is not arbitrary or unlimited, but is to be exercised with the guidance of established principles, rules,and practice of equity jurisprudence. 42 AM JuR. 2d,Injunctions, § 12 (2000) (citing Madsen v. Women's Health Center, Inc.. 512 U.S. 753 (1994). 29