2005-04-01_Defendant-Appellant-Cross_Appellees_County_of_Hawaiis_Amended_Opening_Brief

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"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. 44. Oceanside is presumed to know the governing laws and cannot rely on permission obtained from the County contrary to law. Oceanside disregarded advice from several of its own counsel to be more careful,as evidenced when Mr. Frye proceeded with the Hokuli'a development under his erroneous presumption that: (a)Ag-la zoning by the County of Hawaii alone was sufficient to assure compliance with HRS chapter 205; (2)the"farm dwelling"requirement only applied to lands rated A and B under the ALISH rating system; and(3)all parts of the 1450 acre development did not need to be evaluated"in its entirety" for purposes of evaluating its proper land use evaluation. Test. R. Frye (719103). 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. 48. Given the advice Oceanside received from its counsel and the comments of the County of Hawaii Planning Director, the Executive Director of the State LUC, the director of the State OSP; and the director of the State DOA, it was unreasonable for Oceanside to proceed with the development of Hokuli'a without seeking state LUC approval or a declaratory ruling. Oceanside's insistence on proceeding with only County approval for its rezoning of the agricultural lot area to Ag-1a in its residential subdivision,without regard for the additional requirement of HRS §205-4.5 is a disregard for known risks that does not constitute"acting in good faith." 49. Oceanside's decision to nearly triple its alleged$55 million spending prior to the filing of this action establishes that it knowingly risked the additional $136 million it allegedly expended since the filing of the complaint. Test. R. Stuit (7/23/03). 52. Given Oceanside's substantial resources and the exclusive nature and costs of its development, and balancing this with the risks raised by Oceanside's advisors, Oceanside acted unreasonably in not seeking declaratory relief or review and approval of the Hokuli'a development from the LUC prior to expending substantial amounts of money. Oceanside has the financial assets to secure land use approvals. It hired multiple attorneys and land use planners to advise it of applicable land use requirements. 55. Oceanside"took a chance"when it disregarded its own counsel's July 30, 1989 advice to seek review by"the appropriate state and county agencies 20