2005-04-01_Defendant-Appellant-Cross_Appellees_County_of_Hawaiis_Amended_Opening_Brief

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Point of Error No. 1: The Circuit Court erred in ignoring the Plaintiff-Appellees/Cross- Appellants' lack of standing to bring HRS Chapter 205 claims. In the Count IV MSJ Order, R at 35: 11884, and Count IV Order, R at 66:21413A237, there are no cognizable findings or conclusions establishing Plaintiffs' standing to bring HRS Chapter 205 claims. This error was brought to the attention of the Circuit Court via the NOTICE OF SUBMISSION OF PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING THE TRIAL ON COUNT IV; EXHIBIT"A" filed July 30, 2003 ("County Proposed Count IV Order"),Proposed COLS 1 through 4,pp. 12-13, R at 62:20280, 20293-94. These proposed findings pointed out the lack of evidence of standing on the part of Plaintiff-Appellees. Point of Error No. 2 : The Circuit Court erred in holding that the Development Agreement placed the County in a conflict of interest as enforcer of grading and grubbing ordinances and HRS Chapter 205, or was an improper delegation of enforcement: 27. The terms of the Development Agreement do not authorize Oceanside to proceed without complying with HRS chapter 205, as long as Oceanside attempts to comply in the future. Hui Alaloa v. County Planning Commission, 68 Haw. 135, 137; 705 P.2d 1042, 1044 (1985)(holding that imposing self-serving conditions on an SMA permit without requiring a compliance hearing was in error). The LUC should have been given the opportunity to make that prior determination with specific findings and conclusions as to the effect of the development on agricultural resources in advance of any land use approvals.Id. 28. The County of Hawaii may not delegate the power and responsibility to determine the means to preserve the uses on agricultural land to a private developer,whose interest is in selling land for recreational and luxury residential uses. Ka Pa'akai 94 Haw. 31, 51; 7 P.3d 1068, 1088 (2000)(holding, as in Hui Alaloa, that the delegation of the protection and preservation of native Hawaiian practices to a developer was inappropriate.). Count IV Order,p. 21, COL Nos. 27,28, R at 66:21413A257. 70. The County's execution of the Development Agreement places it in a conflict of interest as the regulator of Oceanside and compromises its ability to implement the law in guarding against violations of the County's grubbing and grading ordinances and land use restrictions as regulated by Haw. Rev. Stat. Chapter 205. 10