2005-04-01_Defendant-Appellant-Cross_Appellees_County_of_Hawaiis_Amended_Opening_Brief

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26. The project is not yet substantially complete. Of the approximately seven hundred houselots, only one house is in the process of being built. Given these circumstances, Plaintiffs were diligent in advancing these claims, and any delay that resulted in Plaintiff's pursuing these claims is not unreasonable; therefore, Oceanside has failed to meet its burden to prove its affirmative defenses under the doctrine of laches. Count IV Order,p. 20-21, COL No. 26, R, 66: 21413A256-257. The Court ignored the uncontradicted evidence of about $45 million spent in infrastructure development and$128 million in contract obligations incurred between start of actual construction in January 1999 and the filing of Count IV claims in December 2000, nearly two years. R, Testimony of Robert A. Stuit, July 23, 2003, a.m.,pp. 62, 64-65, 69. (See Appendix'V'). 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. 6: The Circuit Court clearly erred in inferring that Defendant- Appellee/Cross-Appellant Oceanside and the County had notice from state agencies and attorneys that Hokuli'a uses would violate HRS Chapter 205, and that therefore Oceanside unreasonably failed to seek some undefined LUC consultation or approval: "58. The 1995 plan to rezone all residential lots to AG-la was the final project configuration; Oceanside management ignored Ms. Schutte's advice that they seek review of its planned project by the LUC once it was amended and finalized, even though its Final Environmental Impact Statement("FEIS") provided that Oceanside would seek a boundary amendment from the LUCA (Footnote)4. Specifically,the FEIS, Exh. PKO-679, at p. 114, states: For the project to move forward, a land use district boundary amendment will be submitted to the State Land Use Commission, to redesignate approximately 863 acres of the Agricultural District Lands for Low and Medium Density Urban uses. This will allow development of the proposed members' lodge and a predominantly single family residential development in neighborhoods ranging in density from 2 to 4.7 units per acre. While the FEIS contemplates lot sizes that are smaller than the current project, Oceanside knew that in order to build luxury residences (non-farm dwellings) on Agricultural land, it would need to have the land reclassified as Urban. 60. Given the advice and comments from attorneys and state agencies with expertise in land uses and agriculture, at the very minimum, any reasonable developer reading these letters would have consulted with the LUC between 1989-95. 13