2005-04-01_Defendant-Appellant-Cross_Appellees_County_of_Hawaiis_Amended_Opening_Brief

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Plaintiffs also alleged that the County of Hawaii Planning Director had failed to enforce HRS chapter 205 regarding Hokuli'a's violations. Plaintiffs asked for an injunction preventing Oceanside and County defendants"from relying on any County permit approvals inconsistent with HRS chapter 205." Fifth Amended Complaint, Paragraphs 125 - 126, R. at 26: 9271. The Court partially granted Plaintiffs' Count IV motions for summary judgment,ruling that: 1. The uses and activities, stated in the Declaration of Covenants, Conditions and Restrictions for Hokulia(CCR's) filed December 20, 1999 pertaining to agricultural lots do not currently meet the language, spirit and intent of the statutory characterization of an agricultural district as defined in Hawaii Revised Statute Chapter 205. 2. Ordinance No. 97-35 regarding TMK:8-104: Por. 3 which reclassified 14.854 acres from agriculture to urban district constitutes "spot zoning" and is invalid. Count IV MSJ Order(R.at 35:11884, 11885, 11894-5). After trial, the Court made additional findings regarding the violation of Chapter 205, HRS and rejecting laches, vested rights and zoning estoppel defenses. The Circuit Court disregarded the County and LUC administrative practice and interpretation of HRS Chapter 205, and created new,previously unknown prerequisites for subdivision in the state agricultural district. While acknowledging that the statute does not require profitability, the Circuit Court held that the County should have done a"thorough, `before approved' investigation"into the economic viability of proposed agricultural uses of the new subdivision,with a presumption against approval. The Court also held that the project should have gotten LUC approval or redistricting to Urban, and broadly enjoined further development in the project until such LUC action. Lot owners who were not party to the suit were effectively enjoined from building, since the County was barred from issuing building, grading and other permits. Construction of the Bypass highway and other public benefits was also halted. Count IV Order, R at 66:21413A237. B. Laches, Zoning Estoppel, Vested Rights Re: Land Use Law Violation Claims. Since 1993,the public had notice that a substantial 1-acre lot subdivision design, with golf course and lodge was proposed on this property within the State Land Use Agricultural District. Such public notice was given as follows: 1. Zoning, Permits, and Public Notice of the Hokuli'a Agricultural Subdivision Concept. 6