2006-12-04_Memorandum_to_Petitioner_Opposition_to_Planning_Director_Motion_to_Dismiss_re_Herron_Whitehead

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B Petitioners' allegations are speculative and should be dismissed Although Petitioners are in agreement with the Tentative Approval requirements for Phase 3 of Parker Ranch's development as currently stated, Petitioners's argument is that the Director may someday change the current Tentative Approval requirements for Phase 3 Based on this,Petitioners are requesting a declaratory ruling that the Director cannot change the current Tentative Approval It is speculative and premature at best to go through a declaratory ruling over what the ordinance requires when there is no current controversy between Petitioners and the Director Therefore,the Petitioners Petition should be dismissed pursuant to Rule 6-4(1) of the County of Hawaii Board of Appeals Rules of Practice and Procedure II THE BOARD DOES NOT HAVE JURISDICTION TO ISSUE A DECLARATORY RULING ON ISSUES RAISED IN PETITIONERS' PETITION FOR DECLARATORY RULING The Board is without authority to issue a declaratory ruling on the issues presented in the Petition, unless they fall within the scope of Section 91-8, Hawaii Revised Statutes(HRS) Section 91-8, HRS, allows an interested party to petition an agency for a declaratory order only as to "the applicability of any statutory provision or of any rule or order of the agency" HRS § 91-8 The Hawaii Supreme Court in Fast v Hawal a Public Employment Relations Board, 60 Haw 436, 443 (1979) held that the words "statutory provision"under Section 91-8, HRS, fairly imply that an administrative agency may issue a declaratory ruling only with respect to a question which is relevant to some action which it might take in the exercise of its powers In that case, the Court determined that the Hawaii Public Employment Relations Board had jurisdiction to issue a declaratory ruling because of the powers granted to it by Chapter 89, HRS In the case at hand,however,the Board of Appeals (hereinafter"Board") does not have jurisdiction to issue a declaratory ruling on the issues presented in Petitioners' Petition for Declaratory Ruling (hereinafter"Petition")because the issues do not relate to the limited powers 3