2005-04-01_Defendant-Appellant-Cross_Appellees_County_of_Hawaiis_Amended_Opening_Brief

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DEFENDANT-APPELLANTS/CROSS-APPELLEES COUNTY OF HAWAII, CHRISTOPHER YUEN IN HIS CAPACITY AS THE PLANNING DIRECTOR FOR THE COUNTY OF HAWAII, AND DENNIS LEE, IN HIS OFFICIAL CAPACITY AS THE CHIEF ENGINEER, COUNTY OF HAWAII'S AMENDED OPENING BRIEF I. Statement of the Case A. Executive Summary. This is an appeal from the Third Amended Judgment in Walter John Kelly, et.al. v. 1250 Oceanside Partners, et. al., Civil No. 00-01-0192K("Kelly v. Oceanside"). Plaintiff-Appellees Walter John Kelly, Charles Ross Flaherty, Jr., Patrick M. Cunningham, and Michele Constans Wilkins("Kelly Plaintiff-Appellees") settled and released their claims against County Defendant-Appellants under Counts II (Public Trust) and IV (Land Use Law)below, (Record on Appeal at Vol. 35,pp. 12122-12128), and have no other surviving claims or judgments against County Defendant-Appellants. Therefore,this Opening Brief does not address any claims of Kelly Plaintiff-Appellees. Hokuli'a is a development containing 730 individual lots with a minimum size of one acre, and a golf course. The project is primarily located in the state land use agricultural district. A 15-acre portion was reclassified to the urban district and zoned for a 100 unit lodge. After a long process of public hearings and meetings beginning in 1993,the project received county zoning approvals in 1994, 1996, and 1997, and various administrative approvals, including subdivision approvals. In April, 1998, Hawaii County entered into a Development Agreement with Hokuli'a, under H.R.S. § 46-123, ensuring the developer's right to proceed and requiring certain public benefits, including a five-mile highway and a 140-acre shoreline park. The developer began actual construction in January 1999 pursuant to these final discretionary approvals. In December 2000, after the developer had spent$45 million on roads,water systems, and other necessary infrastructure, the plaintiffs (several individuals and an advocacy group) filed an amended complaint, arguing that the project was illegal in the state land use agricultural district, and that it should have been taken to the State Land Use Commission for reclassification to the urban district. The trial court agreed and on Sept. 9, 2003, issued an order(amended October 22, 2003) enjoining further construction and requiring the developer to go to the LUC for reclassification. The court added many new requirements for proof of agricultural economic 1