2005-04-01_Defendant-Appellant-Cross_Appellees_County_of_Hawaiis_Amended_Opening_Brief

Home

Point of Error No. 10 : The Circuit Court erred in judicially amending HRS Chapter 205 to add substantive requirements such that"farm dwelling"uses allow a farmer"complete control"over agricultural activities, and that they allow for"maximum use of agricultural lands" for active agriculture, and that on one-acre lots, "high intensity crops such as hot-house tomatoes, orchids and anthuriums"must be grown: "23. Farming operations must be able to adapt and diversify with changing market conditions Test. G. Teves (7/8/03). If a farmer does not have complete control over his farming activities,he will not be able to adapt to these changing conditions, and his prospects for a successful farming operation would be severely constrained. Id. 29. Oceanside's condition that a lot owner need only place 20%of his/her one- acre lot in active agriculture will lessen the likelihood that there will be maximum use of agricultural lands. Id. 30. In order to run a viable farm on a one-acre lot, one would need to grow high intensity crops like hot-house tomatoes, orchids and anthuriums. The agricultural plan for Hokuli'a does not include these crops. Id." Count IV Order, FOF Nos. 23, 29, 30, R at 66: 21413A242-243. 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. 10, R at 86:27814. Point of Error No. 11 : The Circuit Court erred in prejudging, as a matter of law,before anyone had an opportunity to occupy, that the Hokuli'a subdivisions' uses will not comply with HRS Chapter 205, and by creating a ban on"luxury residences"in connection to properly land use districted golf courses and amenities,when HRS Chapter 205 contains no such prohibition. In so doing, the Circuit Court rejected County and State LUC administrative interpretation and practice: "15. Pursuant to Hawaii Revised Statutes Chapter 421J,Hokulia CCR's are binding upon the Hokulia agriculture lot owners. The Court concludes under the totality of the circumstances that the Hokulia activities and uses as proposed in the CCR's particularly within the agricultural lots violates Hawaii Revised Statute Chapter 205. 16. The activities and uses within the CCR's do not currently meet the spirit and intent of the statutory characterization of agricultural districts as provided for in Hawaii Revised Statute Chapter 205. 17