2005-04-01_Defendant-Appellant-Cross_Appellees_County_of_Hawaiis_Amended_Opening_Brief

Home

involved in the land use permitting process... . ...after a more concrete development proposal is established." DO-1354 at 15. 56. The comments from both Virginia Goldstein(County Planning Department)informing Oceanside of the need to view Hokuli'a"in its entirety" and Esther Ueda's (LUC) "parcelling"caution,put Oceanside on reasonable notice that it took a substantial risk of proceeding without review by the LUC. Oceanside cannot claim it acted in good faith on the affirmative acts of the County of Hawaii,while ignoring the LUC and these notices. Despite knowledge of the risk of doing so, Oceanside, presumed the Ag-la zoning was consistent, and parceled out only a 14.854-acre lot for the members' lodge for county reclassification to "urban"under HRS § 205-3.1. October 1, 2002 Order, Finding of Fact No. 3." Count IV Order,pp. 24-27, COL Nos. 43, 44,46,48, 49, 52, 55, 56, R at 66: 21413A260- 263. 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. 17, R at 86:27821. Point of Error No. 16-: The Circuit Court erred in holding that for vested rights or equitable estoppel, the "last discretionary permit" for Hokuli'a was a state land use district amendment from Agricultural to Urban, and therefore rejecting those defenses: 58. In the instant case, the existing law required Oceanside to seek reclassification of the lands from Agricultural to Urban by the LUC. Unlike Nukolii, the instant case does not involve a change in existing law. 59. Vested rights and equitable estoppel protect development only after issuance of required discretionary permits. The Development Agreement was not that discretionary permit. 60. Rather, as advised by state officials, Oceanside needed to assure that the LUC amend the Hokuli'a land use classification from Agricultural to Urban in compliance with state land use laws if it intended to develop a residential-golf course subdivision project. 61. Oceanside's presumption that reduction of lot density(from 5 acres to one-acre Ag) absolved it of the requirement to reclassify its land to"urban"uses. By ignoring contrary advice from its own counsel, its presumption was unreasonable. Proceeding without state land use approval does not confer a vested right upon Oceanside, even though Oceanside may have made substantial expenditures in reliance thereon from county officials. Miller, 521 A.2d at 647. Count IV Order,pp. 27-28, COL Nos. 58-61,R at 66: 21413A263-264. 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. 4-18,R at 86:27808-821. Point of Error No. 17 : The Circuit Court erred in holding that the simultaneous passage of County ordinances for general plan amendment, land use district boundary amendment, and 21