2005-04-01_Defendant-Appellant-Cross_Appellees_County_of_Hawaiis_Amended_Opening_Brief

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Point of Error No. 4: The Circuit Court erred in focusing upon the alleged lack of County enforcement of HRS Chapter 205, allegedly due to the Development Agreement, as an excuse for the prejudicial delay in filing the Chapter 205 claims: "18. Given the concerns that Defendant Oceanside' development violated HRS Chapter 205, the County has a duty at a minimum to objectively investigate and enforce compliance with Chapter 205. The County did not investigate, cite, nor report any violations to the LUC or to any other state agency. HRS § 205-12 provides, "[t]he appropriate officer or agency charged with the administration of county zoning laws shall enforce within each county the use classification districts adopted by the land use commission and the restriction on use and the condition relating to agricultural districts under section 205-4.5 and shall report the commission all violations." Certain language and content in the Development Agreement placed the County in a position of conflict regarding enforcement of Chap.205,HRS. The County is faced with a breach of the Development Agreement had they"held up"or"stalled"the development through any investigation or reporting to the LUC. The County did not disapprove,but approved, all requested permits involving the development." 24. Despite the contrary advice and information available to both Oceanside and the County of Hawaii, the County appeared to be accommodating Oceanside's desire to avoid LUC involvement by privately assuring Oceanside that LUC involvement was not needed, in dereliction of the County's explicit duty to enforce"the restriction on use and conditions relating to agricultural districts[.]"HRS §205-12. In view of HRS §§ 205-3.1 and 205.12, this Court concludes that the County of Hawaii and Oceanside deliberately collaborated to avoid LUC involvement in exchange for the conditions imposed in the Development Agreement. 25. Any delay in bringing Plaintiffs' claims was caused by County of Hawai`i's failure to enforce HRS Chapter 205, which failure to act this Court concludes is the result of the Development Agreement. Any financial prejudice to Defendant Oceanside was caused by the County of Hawai`i's failure to enforce HRS Chapter 205, and Oceanside continuously and consciously did not comply with the spirit and intent of Chap.205." Count IV Order,pp. 18, 20, COL Nos. 18, 24-25,R at 66: 21413A254-256. This error was brought to the attention of the Circuit Court in the Memorandum in Support of the County's Motion to Amend 2d Amended Judgment,p. 17,R at 86:27821. Point of Error No. 5: The Circuit Court erred and abused its equitable discretion in ignoring the lapse of time, the construction expenditures, and balance of equities, holding that the Chapter 205 claims were diligently brought: 12