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COUNTY OF HAWAII --(�� / STATE OF HAWAII
RESOLUTION NO. 114 13
A RESOLUTION ADVISING THE CORPORATION COUNSEL TO ACCEPT THE
CIRCUIT COURT DECISION IN THE RICHARD AND PATRICIA MISSLER VERSUS
COUNTY OF HAWAII BOARD OF APPEALS, MALAMA INVESTMENTS LLC,
LOREN AND MARY SAXTON, AND B.J. LEITHEAD-TODD CASE, AND FORGO
APPEAL OF SAID CASE.
WHEREAS, the Hawai`i County Charter, per Section 6-5.1, provides that the
Corporation Counsel is the County's "chief legal advisor and legal representative"; but is not a
policy making body; and
WHEREAS, the Corporation Counsel is responsible to the County Council where
settlement or litigation becomes an issue, such that the Council is the ultimate decision-making
branch of the County when a question concerning an appeal or a settlement versus litigation
arises; and
WHEREAS, on April 25, 2013, Judge Ronald Ibarra issued the Findings of Fact,
Conclusions of Law, and Decision and Order in the case of Richard Missler and Patricia Missler,
Appellants, versus Board of Appeals of the County of Hawai`i, Malama Investments LCC, Loren
and Mary Saxton, and B.J. Leithead-Todd, Planning Director, Department of Planning, County
of Hawai`i (hereafter referred to as the Decision); and
WHEREAS, the Court ruled against the County Appellees and in favor of the Missler
Appellants; and
WHEREAS, the Council believes that the Court correctly concluded that the County has
the affirmative duty to uphold the public resources trust doctrine and that the Planning Director
as an officer of the County therefore has the constitutional duty to enforce this doctrine in her
official decision-making, regardless of whether the property is public or private property; and
WHEREAS, the Council believes that the Court appropriately determined that the
Planning Director and the County of Hawai`i Board of Appeals may not defer the public
resources trust doctrine responsibility to another agency or to a future date; and
WHEREAS, the Council believes that the Court appropriately determined that the
Planning Director and the Board of Appeals are required to apply and enforce all relevant
ordinances and regulations, including the Hawai`i County General Plan and the corresponding
Community Development Plan (here the Kona Community Development Plan), with regard to
the proposed Planned Unit Development at issue in this case; and
WHEREAS, pursuant to Section 3-1 of the Hawai`i County Charter, the primary
function of the Council "...shall be legislation and public policy formulation, as distinct and
separate from the executive administration of county government."; and
WHEREAS, the County Council is therefore the policy making body of the County; and
WHEREAS, the Planning Director in her official role is an officer of the County; and
WHEREAS, the Board of Appeals is an agency of the County; and
WHEREAS, an article appearing in the May 1, 2013, edition of the West Hawai`i Today
states that a deputy corporation counsel said the"county intends to appeal the ruling" in the
above referenced case; and
WHEREAS, the Council believes that the County should accept Circuit Court Judge
Ibarra's decision as an appropriate interpretation of the law in this case; and
WHEREAS, absent the approval of the County Council, the Office of Corporation
Counsel is not authorized to appeal the subject decision of Circuit Court Judge Ibarra; now,
therefore,
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BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII that it is
advising the Corporation Counsel to accept the Circuit Court decision in the Richard and Patricia
Missler versus County of Hawai`i Board of Appeals, Malama Investments LLC, Loren and Mary
Saxton, and B.J. Leithead-Todd case.
BE IT FURTHER RESOLVED that the Corporation Counsel is instructed to refrain
from pursuing an appeal in the above referenced case.
BE IT FINALLY RESOLVED that the County Clerk shall forward copies of this
resolution to the Honorable Mayor William P. Kenoi, the Office of the Corporation Counsel, the
Planning Director, and the Members of the Board of Appeals.
Dated at Hilo , Hawai`i, this 15th day of May , 2013.
INTRODUCED BY:
1-'&3 CO C ME BER, COUN Y OF HAWAII
COUNTY COUNCIL ROLL CALL VOTE
County of Hawai`i AYES NOES ABS EX
Hilo, Hawai`i EOFF X
FORD X
I hereby certify that the foregoing RESOLUTION was by ILAGAN X
the vote indicated to the right hereof adopted by the COUNCIL of the KANUHA X
County of Hawaii on May 15, 2013
KERN X
ONISHI X
ATTEST: POINDEXTER X
WILLE X
YOSHIMOTO X
6 3 0 0
�� `� Reference: C-277/Waived AWESC
COUNTY CLERK CHAIRPERSON & PRESIDING OFFICER RESOLUTION NO. 114 13
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