2005-04-01_Defendant-Appellant-Cross_Appellees_County_of_Hawaiis_Amended_Opening_Brief

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9. Oceanside's omission or deminimis reference to any agricultural use of land in its promotional material and its emphasis instead on the exemplary life style surrounded by a golf course, club house,dining facilities,members' lodge, beach club, and private luxury home sites selling for one to three million dollars each collectively indicate a planned and continued urban use of land. 10. Pursuant to HRS § 205-4.5(a)(4), Oceanside must seek a boundary amendment from Agricultural to Urban from the LUC for houses to be built. AG Op. 75-8. 43. Unlike Life of the Land, in the instant case there has been no subsequent change in the law. The State's land use laws are the same now as they were when Oceanside started the permitting process for the Hokuli'a development. Those land use laws required Oceanside to seek a reclassification of the Agricultural lands at that time,just as they do now. 46. Both the LUC Executive Director and the County Planning Director expressed concerns about the failure to view the Hokuli'a project"in its entirety" to determine the appropriate land use designation for the project under HRS chapter 205. These opinions lend persuasive weight to the conclusion that when viewed"in its entirety,"the Hokuli'a project is essentially an urban, not agricultural,use of lands." Count IV Order, p. 17, COL Nos. 9-10,43 R at 66:21413A253,260. 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. 4-16,R at 86:27808-820. Point of Error No. 9: The Circuit Court erred in retroactively requiring the County to do a "before the fact"or "before approved"thorough investigation for economic feasibility of agricultural use, including cost of land and infrastructure,before subdivision approval. This requirement was unauthorized, vague, and contrary to the HRS § 205-5-(b)(1994) allowance of 1-acre subdivisions in the agricultural district: 4. The feasibility or viability of agriculture is a relevant consideration in evaluating whether use of agricultural lands will comply with HRS Chapter 205. AG Op. 75-8. While the statute does not require profitability, any analysis must include the costs of operations, including land and infrastructure costs. Otherwise, any deminimis agriculture activity will be able to satisfy the restrictions of that chapter, an absurd result that the Legislature could not have intended. Kim v. Contractor's License Bd., 88 Haw. 264, 270, 965 P.2d 806, 812 (1998) (holding that the legislature is presumed not to intend an absurd result, and legislation will be construed to avoid, if possible, inconsistency, contradiction and illogicality.). 19. This Court has already ruled: 15