2005-04-01_Defendant-Appellant-Cross_Appellees_County_of_Hawaiis_Amended_Opening_Brief

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4. Pursuant to Haw. Rev. Stat. Sec. 205-12,the counties must take before-the-fact measures to insure preservation of prime agricultural land, and when investigation shows that a proposed subdivision in an agricultural district will in all likelihood not be used for agricultural purposes and may be an attempted circumvention of the land use district amendment procedure and controls provided in this chapter,the county should disapprove the subdivision application. Op.Att'y Gen. No. 75-8 (September 3, 1975). Conclusion of Law No. 4, April S Order at 8. 20. This Court does not have to wait until Hokuli'a residents obtain building permits for their residences before it can act to enforce HRS Chapter 205 and/or its regulations, given the intended uses. 21. The County must take affirmative preventative action to protect agricultural land and"cannot rely only on after-the-fact measures when a large area of agricultural land is involved." Attorney General Opinion 75-8. Without affirmative action prior to subdivision approval, the Countys' enforcement ability will be impractical when the County must prosecute 750 separate lot owners after a subdivision approval. See Id. "Any doubt as to whether a proposed subdivision will result in a significant change of land use should be resolved in favor of a disapproval." Id. 22. The general public must be able to rely on the County of Hawaii to enforce HRS Chapter 205. The County of Hawaii, as the agency responsible for enforcement of HRS Chapter 205,must"thoroughly investigate any application for subdivision of a large area of agricultural land into lots that appear to be too small for economically feasible agricultural activity." 23. The County of Hawaii approved Defendant Oceanside's applications for subdivision approval of Phases I and II without considering the applicable CCR's and therefore failed to conduct the required thorough"before approved" investigation. The County of Hawai`i's failure to conduct such an investigation left enforcement of HRS Chapter 205 to Plaintiffs. Count IV MSJ Order, p. 8, COL No. 4,R at 35:11891, Count IV Order,pp. 16, 19, COL Nos. 4, 19 through 23, R at 66:21413A252, 255-256. This was especially erroneous as the Court recognized that"the statute does not require profitability,"Count IV Order,p. 16, COL No. 4, R at 66: 21413A252, and because the Court required use of a presumption against allowing subdivision,holding that"any doubt as to whether a proposed subdivision will result in a significant change in land use should be resolved in favor of a disapproval." Count IV Order, COL No. 21, Rat 66:21413A255. This error was brought to the attention of the Circuit Courtin the Memorandum in Support of the County's Motion to Amend 2d Amended Judgment,p. 10, R at 86:27814. 16