2005-04-01_Defendant-Appellant-Cross_Appellees_County_of_Hawaiis_Amended_Opening_Brief

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b. The uses and activities in the agriculture lots in Hokulia Developments' CCR's are in violation of Hawaii Revised Statutes Chapter 205; . . ." Count IV MSJ Order,pp. 10-12, COL Nos. 15, 16, Order, R at 35: 11895. "8. Any dwelling on land classified Agriculture must be a"farm dwelling" as defined by HRS Chapter 205-4.5(a)(4). The Hokuli'a residences are not farm dwellings. They will not be located on or used in connection with a farm, nor provide income to its occupants. Rather,they are luxury residences built around and to be used in connection with recreational activity centered around a golf course,members lodge and beach club and spa. Exhs. PKO-709, PKO-710. 9. Oceanside's omission or deminimus 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. 11. Golf courses and golf clubhouses are a permitted use of agriculturally- zoned lands, if a use permit is first obtained for the use from the Planning Commission. Haw. Cty. Code § 25-2-61. Count IV Order,p. 17, COL Nos 8-11,R at 66: 21413A253. 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,pp. 6-10, 16-17,R at 86:27810-814, 27820-821. Point of Error No. 12-: The Circuit Court erred in ignoring the express differences in permissible uses between different soil classes in the agricultural district under HRS Chapter 205, and finding the Hokuli'a agricultural uses "insubstantial." The Circuit Court held the C,D and E class soils in the instant case to the same(judicially amended)use restrictions as for Class A and B soils under HRS Chapter 205: That the"primary uses"must be agricultural, or that they must be"consistent with an Agriculture classification"or"principally agriculture": "1. This Court previously found: 14. The primary use and activities within the agricultural lots are not agriculture. Furthermore,the agricultural use and activities are insubstantial." 3. HRS § 205-2 permits only land uses consistent with an Agriculture classification. 7. Oceanside's amendment of its CCR's, even if relevant as an attempt to cure this defect,does not alter this Court's conclusion that the use of the agricultural lots are 18