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HomeMy WebLinkAboutCOM 0091.019 2016-2018 • ••ooatv os N ' 7:. .',rye VALERIE T. POINDEXTER 44: Phone: (808) 961-8828 Council Chairwoman &Presiding Officer ;*ice..'+�. ;t;} Fax: (808) 961-8912 Council District 1 --=3-"'e'er. Email: Valerie.Poindexter@hawaiicounty.gov �rEOFNy�: HAWAII COUNTY COUNCIL County of Hawai`i Hawai`i County Building 25 Aupuni Street, Suite 1402 o n' air) Hilo, Hawaii 96720 CQ. ZC _ Z N O'< DATE: April 20, 2017 =1 � =r 171 w TO: Members of the Hawai`i County Council FROM: Valerie T. Poindexter, Council Chairwoman RE: Community Development Plan Ordinances Attached for informational purposes is a letter from Michael Matsukawa regarding community development plan ordinances that were discussed during the Special Meeting of the Finance Committee on April 11, 2017. Thank you. Attachment /kt Comm. No. q f • ( 9 Ref. To: Ref. Date APR 2 7t117 Hawai`i County is an Equal Opportunity Provider and Employer • MICHAEL J. MATSUKAWA ATTORNEY AT LAW TERRITORIAL CENTRE, SUITE 201 75-5751 KUAKINI HIGHWAY KAILUA-KONA,HI 96740 TELEPHONE NO. (8081 329-1385 FAX NO. (808)329-0512 E-MAIL kapulu©msn.com April 14, 2017. Honorable Valerie Poindexter Chair, County Council - County of Hawaii 25 Aupuni Street Hilo, HI 9672 RE: COMMUNITY DEVELOPMENT PLAN "ORDISIIA1NCES (TUESDAY APRIL 11, 2017 COTJNCIL MEETING) Dear Chair Poindexter: On Tuesday, April 11, 2017., the Planning Director informed the County Council that planning officials c:cnsi cher community development plan ordinances, which the County Council enacts into law pursuant to, its legislative powers under, Section 46-4, HRS, as being mere "guidelines, " i . e. , that such ordinances reflect only aspirational objectives and have no force to compel planning officials to act in accordance with the County Council' s legislative directives in any given instance . Planning officials appareTtlybelieve that they may choose .which legislative direc- tives they should execute and at their sole, . unreviewable admini- strative discretion. The State Legislature gave the ounty Council , specific legislative powers under. Section 46-4, HRS,to establish comprehen- sive plans and zoning ordinances :. . MICHAEL J. MATSUKAWA ATTORNEY AT LAW Honorable Valerie Poindexter April 14, 2017 Page 2 "The council of any county shall prescribe rules, regulations, and administrative procedures . . . it finds necessary to enforce this section [relating to the council' s zoning powers] . " Section 226-58, HRS further authorizes the County Council to make "implementation priorities and actions" by way of land use maps, regulatory standards and other measures . As you know, community development plans vary and each enacting ordinance has its own terms that the County Council determines to be appropriate for each community, based on the input received from the residents of each community. Characterizing all community development plan ordinances as being mere "guidelines" is nothing more than a statement that planning officials feel they have no obligation to execute the County Council' s directives that are set forth in community development ordinances . ' A case in point . The Kona Community Development Plan ordinance, which was enacted in September..2008 , contains several 1 This attitude to some degree is._based onthe assumption that if.. a land use ordinance is not embodied in the zoning and subdivision codes, the ordinance lacksthe forceand. effect of a zoning or subdivision regulation. The Hawaii County "revisor" places the community development plan- ord• nances in Chapter 16 of the Hawaii County Code without cross-references to other chapters of the county code, such as the subdivision code or the zoning code . The subdivision and zoning codes themselves contain cross- references to the General Plan ordinance, but not to specifically community development plan ordinances . See Section 23-6 (subdivision code) and Section 25-2-40 (zoning code) , but see Section 2.5-6-10 (b) (community development plan compliance is criterion for planned unit development) . MICHAEL J. MATSUKAWA ATTORNEY AT LAW Honorable Valerie Poindexter April 14, 2017 Page 3 stand-alone provisions that supplement the subdivision and zoning codes . These supplemental stand-alone provisions have been com- piled in Chapter 16 of the Hawaii County Code and planning officials make little or no effort to integrate and enforce. these supplemental stand-alone provisions, believing these provisions to be separate from the zoning and subdivision codes or just hortatory legislative aspirational expressions . In a recent civil action, Judge Ibarra of the Third Circuit Court held that the supplemental stand-alone provisions of the Kona Community Development Plan ordinance are valid and must be enforced. The Planning Director elected to appeal the ruling, but neither Judge Ibarra nor the Intermediate Court of Appeals stayed or suspended this ruling (except for the judge' s award of costs and fees to the prevailing parties) . The Planning Director, however, feels no compulsion to comply with the Court' s judgment while his appeal is pending (because no one has sought an injunction to enforce compliance) . The petitioners who prevailed in that case have contem- plated asking Judge Ibarra for an injunction to force recalcitrant planning officials to comply with the Court' s ruling. Of course, the question is, "Why must citizens have to do this, and at their MICHAEL J. MATSUKAWA ATTORNEY AT LAW Honorable Valerie Poindexter April 14 , 2017 Page 4 expense, and why does the County Council refuse to compel compli- ance with the Council' s own ordinance and with the judge' s ruling?" This is not a separation-of-powers issue . This is an issue of good governance, Again, one must ask, "To what degree may planning officials determine what ordinances, or parts thereof, they should or should not enforce? "2 The County Council should pursue this matter further. Do community development plan ordinance invite too much public parti- cipation or "threaten" the authority of planning officials? Is it more "convenient, " rather than lawful, to disregard the County Council' s legislative directives? If I were a councilor, I would wonder why the council should enact a community development plan ordinance in the first place if there is no expectation that planning officials will execute the same as published. I have enclosed portion of Judge Ibarra' s ruling (highlighted) and a copy of Resolution 114-13 . If you or other members of the County Council wish to address this matter further, I will be available to do so. My desire is to see People Partici- pating in Planning ( "PPP" ) and the community development planning 2 As you may recall, planning officials recently proposed to eliminate certain notice and public participation requirements for contested, trial-type hearings that the Planning Commissions hold on designated permit applications . The only reason offered for this proposal was "convenience . " But for the response of citizens and two County Council members who testified against the proposal, planning officials might have succeeded in their effort . MICHAEL J. MATSUKAWA • ATTORNEY AT LAW Honorable Valerie Poindexter April 14, 2017 Page 5 must be encouraged. Those who are opposed to this idea should not be allowed to exercise municipal powers . I will send a "hard copy" of this letter separately and I hope that you will share my concerns with your colleagues on the County Council . Respectfully s„„.mitted, i 4 Michael J. Matsukawa MJM:j f f\misc\poindext.It 1 Encs . xc : Maile P. David, Council District 6 (w/o encs . ) Dru Kanuha, Council District 7 (w/o encs . ) Karen Eoff, Council District 8 (w/o encs . ) Michael Yee, Planning Director (w/o encs . ) Roy Takemoto, Mayor' s Assistant (w/encs . ) COUNTY OF HAWAIEI STATE OFHAW/WI 1 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 ILL 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 e WHEREAS, Corporation the Co oration 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, Ma'am Investments LCC, Loren and Mary Saxton,and B.J. Leithead-Todd, Planning Director,Department of Planning, County of Hawaii (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 �r... .APPENDIX 4 � �.n 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 '(1' ordinances and regulations,including the Hawai`i County General Plan nd 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, 2 BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII that it is advising the Corporation Counsel to accept the Circ it 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: CO C ME, BER, COUNIIY 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 the vote indicated to the right hereof adopted by the COUNCIL of the x County of Hawai'i on May 15, 2013 KA1 UHA X KERN X ONISH] 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 1 3 cc: Michael Matsukawa, Esq. Amy Self, Esq. Renee N.C. Schoen, Esq. Steven Lim, Esq. IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII RICHARD MISSLER and PATRICIA Civil No. 12-1-449K MISSLER, (Kona) (Agency Appeal) Appellants, FINDINGS OF FACT, CONCLUSIONS vs. OF LAW AND DECISION AND ORDER BOARD OF APPEALS OF THE COUNTY OF HAWAII, • cn ' Appellee, N ' c) (11 and _� MALAMA INVESTMENTS LLC, a Hawaii _ limited liability company; LOREN SAXTON AND MARY SAXTON, Co- Trustees of the Saxton Trust dated March 17, 2005; and B.J. LEITHEAD-TODD, Planning Director, Department of Planning, County of Hawai'i, Appellees. FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION AND ORDER This matter came on for Oral Argument on January 17, 2013 at 8:00 a.m. before the Honorable Ronald Ibarra, Judge of the above-entitled Court. Appellants Richard Missler and Patricia Missler (hereinafter collectively referred to as "Appellants") were represented by Michael J. Matsukawa, Esq.; Appellee Board of Appeals of the County (f of Hawaii (hereinafter the "BOA") was represented by Renee N.C. Schoen, Esq. of the Office of the Corporation Counsel of the County of Hawaii; Appellees Malama °-- Investments LLC, Loren Saxton and Mary Saxton (hereinafter collectively referred to as .:� "Saxtons") were represented by Jacob Laurence Matson, Esq.; and Appellee B.J. 1,.. t`s APPENDIX 2 59. Before the Director issued her September 14, 2011 decision-letter, Robert Chang had submitted a comment letter to the Director stating that family burials exist on the Property. ROA File 2, Item 19, Department Record Page 281. Appellant Richard Missler also informed the Director during the public participation process of observable archaeological sites and historic features on the Property. Id., Department Record Page 361. 60. The Director did not make a finding on the Property's watershed and habitat characteristics or the endangered and endemic species on the Property and clearly erred when she described the Property as a "kiawe wasteland," devoid of any resources of value, not covered by an old 'ohia forest and habitat and not occupied by endangered and endemic species. Id., Decision Page 2, Department Record Page 366. Kona Community Development Plan 61. Appellants ask: (1) Can the Director and BOA nullify or invalidate a duly enacted ordinance that they are directed to administer?; and (2) Can the Director issue a permit for a planned unit development without following all applicable legislative requirements governing such development? 62. Appellants argue that the Director and BOA have nullified or invalidated the Kona Community Development Plan ("KCDP") in, respectively, approving and upholding approval of the PUD application. 63. Appellees argue that the Director's decision to approve the PUD and refrain from requiring compliance with the KCDP provisions raised by Appellants was not erroneous, was not a violation of the Zoning Code, and was not arbitrary, capricious, characterized by an abuse of discretion, or clearly unwarranted exercise of discretion. 27 Further, they argue that even if the PUD is required to comply with the regulatory actions set forth by the KCDP, it is consistent with the General Plan and KCDP. 64. The Director must interpret, apply and enforce all ordinances, statutes, rules and other laws pertaining to planning and land use matters in the County, including the General Plan and KCDP, to fulfill the responsibilities as the Chief Planning Officer of the County. Hawai'i County Charter §6-7.2(b). 65. The General Plan was adopted as an ordinance by the Hawaii County Council on February 2, 2005. Ordinance No. 05 25. See also, County of Hawaii Charter § 3-15. 66. The KCDP was adopted as an ordinance by the Hawaii County Council on September 25, 2008. ROA at 00641. 26. 67. A community development plan is a part of the general plan and implements the general plan. GATRI v. Blane, 88 Hawaii 108, 114, 962 P.2d 367, 373 (1998). 68. Conformance to the 2005 General Plan, of which the KCDP is a part, is a decision criterion under Section 25-6-10(b) of the County Zoning Code and 7-7(a)(2). An application must contain an "analysis" of the general plan and community development plan as required by Section 25-6-3(2)(E) of the County Zoning Code. The petition must also include how the proposed development substantially conforms to the General Plan. Department Rule 7-4(b)(2)(D). 69. The Court reviews the KCDP Ordinance in accordance with established rules of statutory construction. 70. First, the County Council's enactments are entitled to a presumption of validity. Lum Yip Kee, Ltd. v. City and County of Honolulu, 70 Haw. 179, 189, 191, 767 28 P.2d 815, 822, 823 (1989); see also Save Sunset Beach Coalition v. City and County of Honolulu, 102 Haw. 465, 474, 78 P.3d 1, 10 (2003). 71. Second, courts defer to the County Council's exercise of the council's legislative powers. Lum Yip Kee, Ltd., supra; Save Sunset Beach, supra. 72. Third, in interpreting an ordinance, courts follow the same principles that are used to interpret statutes and must look at the language of the ordinance as a starting point. Leslie, 109 Hawaii at 393, 126 P.3d at 1080. 73. Fourth, every part of an ordinance must be read together so that all parts of the ordinance are given full force and effect. Deietely v. Kaho'ohalahala, 122 Hawaii 259, 263, 226 P.3d 421, 433 (2010); Leslie, supra; Coon v. City and County of Honolulu, 98 Hawaii 233, 250, 47 P.3d 348, 365 (2002). 74. Fifth, in interpreting a county's general plan, courts defer to the county council's own interpretation of the general plan that it enacted, if reasonable. Protect Ala Wai Skyline v. City and County of Honolulu, 6 Haw. App. 540, 547-548, 735 P.2d 950, 955 (1987), reversed on other grounds in GATRI v. Blane, 88 Haw. at 114, 962 P.2d at 373, and must avoid interpretations that lead to absurd results. Morgan v. Planning Department, 104 Hawaii 173, 185-186 P.3d 982, 994-995 (2004); Keliipuleole v. Wilson, 85 Hawaii 217, 221-222, 941 P.2d 300, 304-305 (1997). 75. Sixth, the BOA may not nullify an ordinance that it is charged to administer. HOH Corp. v. Motor Vehicle Industry Licensing Board, 69 Haw. 135, 141, 736 P.2d 1271, 1275 (1987. 76. When the County Council enacted the 2005 General Plan Ordinance 05- 25, the council stated in Section 15.1 of the 2005 General Plan Ordinance that a community development plan "may contain ... detailed land use and zoning guide maps 29 ... architectural design guidelines, planning for watersheds ... and any other matters relating to the planning area." Section 15.1, Page 1, 2005 General Plan Ordinance. 77. The County Council also stated in Section 15.1 that a community development plan "shall recommend amendments as appropriate to the codes, maps, or administration and enforcement" (Id.), i.e., future legislative action as to described subjects. 78. The County Council did not, by the use of the words "shall recommend," intend to limit or confine the subject matter or measures that the council may insert in the text of a community development plan. 79. The BOA's narrow interpretation of Section 15.1 would limit the County Council's legislative power and would restrict the council to "recommending" to itself that the council (or a future council) enact at some future date amendments or supplements to various land use regulations even though the council already has that present authority and ability to enact such amendments or supplements. (80. The BOA erred when it determined that the County Council is prohibited from inserting Policy ENV-1.5, Policy LU-3.3, Policy 3.4 and Attachment "C" in the KCDP Ordinance. 81. The BPA's ruling on Bill 333's title is wrong. The title of Bill 333 reads "An Ordinance Adopting the County of Hawaii Kona Community Development Plan." 82. Since a community development plan may contain "regulatory measures" such as Policy ENV-1.5, Policy LU-3.3, Policy 3.4 and Attachment "C," Bill 333's title is adequate. In Re Application of Tom Pong, 17 Haw. 566, 570, 572-575 (1906); Schwab v. Ariyoshi, 58 Haw. 25, 33-35, 564 P.2d 135, 140-141 (1977) (bill title sufficient if the 30 bill's subjects are "connected with or related to each other" and are "parts of, or germane to, one general subject"). 83. The BOA's determination that the KCDP Ordinance does not mention Chapters 23 and 25 of the Zoning Code is wrong. The KCDP Ordinance states on its face (at Page 4-48, Policy LU-3.3a), that the County Council "Amends Chapter 25 Zoning Code and Chapter 23 Subdivision Code to establish Clustered Rural Subdivision PUD (Enacted by plan)."7 84. The BOA also erroneously construed the KCDP Ordinance's substantive F provisions in question as being inapplicable to a planned unit development. Board Decision, Finding Nos. 30-31. 85. The BOA did not file an Answering Brief to support its interpretation that the KCDP Ordinance does not apply to a planned unit development. Nor did the Director address this point in her Answering Brief. 86. In reaching its erroneous conclusion, the BOA relied upon the KCDP Ordinance's "grandfather clause" that protects existing entitlements, but that also makes clear that landowners with such pre-existing entitlements must still comply with the substantive provisions of the KCDP Ordinance if the landowners were to apply for "new changes of zone, time extensions on existing zoning requiring County Council action, state land use boundary amendments, and Special Management Area (SMA) permits, when applicable." KCDP Ordinance, Page 4-2, Part 6; Page 4-32. 7 In her Answering Brief, the Director advances two additional grounds to support her argument that Bill 333 is defective, stating that in enacting Bill 333, the County Council violated Sections 3-10(c) and 3-10(g) of the Hawaii County Charter relating to notice and incorporation by reference. Answering Brief, Pages 24-25. However, the BOA did not rely on these alleged violations to support its decision and there is no evidence in the record to show that the County Council violated the notice provision of charter Section 3-10(c) or that the County Council violated charter Section 3-10(g) by physically attachingthe KCDP to Bill 333. 31 87. More importantly, the "grandfather clause" does not exempt the Applicants or the Property from the KCDP Ordinance's substantive provisions governing a planned unit development. 88. The KCDP Ordinance plainly states that it applies to "any permit application" (Policy ENV-1.5) and applies to a planned unit development. Policy LU-3.3, Policy LU-3.4 and Attachment "C." 89. Attachment "C" states that the Clustered Rural Subdivision Guidelines "apply to a special type of 'Planned Unit Development' (PUD) for North and South Kona for lands outside the Urban Area" and "supplement the requirements and procedures for PUDs and subdivisions set forth in the zoning Code, Subdivision Code and Planning Department Rules." Attachment "C," Page 1, Part 2. 90. In its August 10, 2012 decision, the BOA erred in statutory interpretation by exempting the PUD application under the "grandfather clause,"and when it concluded that the KCDP Ordinance's substantive provisions in question, viz., Policy ENV-1.5, Policy LU-3.3, Policy 3.4 and Attachment "C," could not be enforced or applied. BOA Decision, Finding Nos. 29-39, Conclusion No. 10. 91. Appellants also argue that the BOA erred when it concluded that the substantive provisions of the KCDP Ordinance in question are directory and not mandatory. See BOA Decision, para. 36. 92. The Court has previously ruled that the word "shall," as it appears in the County of Hawaii's Subdivision Code, must be interpreted as being mandatory and binding. Leslie, 109 Haw. at 393-394, 126 P.3d at 1080-1081. The Leslie decision distinguishes the general rule that the word "shall," when used in statutes, refers to provisions that are mandatory and not discretionary, from the conclusion reached in the 32 Perry case. Id. at 393. Perry carves out a narrow exception to the general rule when the three-pronged test articulated in Perry is met. The BOA,states broadly that " use of the word 'shall,' by the KCDP and in the context of this contested case is directory and not mandatory because the KCDP, as applied to the Saxtons' PUD, lacks a compulsory statutory design, and no advantage is lost, no right destroyed, and no benefit is sacrificed, either to the public or to the individual by giving it a directory construction." The BOA misses the mark in this blanket evaluation of the KCDP and in its relation to this entire matter according to the Perry standard, and its conclusory statement of no harm, without any evaluation, or even enumeration of the particular language it is considering. 93. Moreover, the County Council declared in the KCDP Ordinance that "The policies that use the word 'shall' are mandatory directives legally binding on County agencies." Page 4-2, Item 6, KCDP Ordinance. This clear language indicates the intent of the Council with regard to the use of the word "shall" in the KCDP. 94. The BOA's conclusion that the use of the word "shall" in the KCDP is directory is an error of law. 95. Although the apt made no reference to Policy LU-3.5 of the KCDP Ordinance in its decision, the Director in her testimony before the Board (ROA File 4, Item 102, Transcript May 11, 2012, Page 10) and at oral argument asserted that Policy LU-3.5 indicates that the KCDP Ordinance's substantive provisions need only be applied in a manner so as to "encourage" (but not mandate) compliance. 96. The Director's argument is in error because Policy LU-3.5 does not apply in this instance for two reasons. First, Policy LU-3.3, Policy 3.4 and Attachment "C" on 33 their face apply to a planned unit development. To say that Policy LU-3.5 applies instead would render Policy LU-3.3, Policy LU-3.4 and Attachment "C" meaningless. 97. Second, Policy LU-3.5 applies only to land that is zoned at densities "between Ag-1a and Ag-5a," which necessarily excludes land zoned Ag-1a and land zoned Ag-5a. In other words, Policy LU-3.5 applies only to land that may be zoned at densities of Ag-2a, Ag-3a or Ag-4a, but not to land that is zoned at densities of Ag-la or Ag-5a. The Property in question is zoned A - 5a. 98. The Director's conclusion is in error of law. • 99. The project's conformance to the 2005 General Plan, of which the KCDP is a part, is a decision criterion under Section 25-6-10(b) of the County Zoning Code and an application must contain an "analysis" of the general plan and community development plan as required by Section 25-6-3(2)(E) of the County Zoning Code. 100. The PUD application does not contain such information and the Director and her staff did not request or seek such information or conduct a site inspection to confirm the Applicants' representations or to identify any errors and omissions. 101. The application does not contain the information required by Policy ENV- 1.5 and Attachment "C" of the KCDP Ordinance and the Applicants' representatives did not follow the procedural requirements of Attachment "C" of the KCDP Ordinance when they prepared and filed the application. 102. The Kona Design Center did not prepare the planned unit development report as required by Attachment "C" (Part 3.C, Page 5) of the KCDP Ordinance. 103. The,BOA and Director's failure to apply the standards set forth in the KCDP and yet to conclude that the application met the standards of the KCDP is in f: violation of statutory provisions and an error in law. 34 104. Appellants also argue that the PUD permit is not valid because it does not contain specific measures that require project lots to be used for bona fide agricultural uses. 105. The BOA found that the Project would establish agricultural lots consistent with permitted density allowed by zoning and consistent with agricultural uses that prevail in the surrounding area. BOA Decision, para. 48. 106. According to the application, each of the thirteen 2-acre lots would support a "farm dwelling," the design for which will be "governed by the CC&R's." However, the CC&R's (as well as any drawings of the proposed structures) do not appear in the application as required by Section 25-6-3(3)(A) of the County Zoning Code. Id., Application Page 5-5, Part 5.7.4, Department Record Page 45. 107. The application does not contain an agricultural plan as part of the "comprehensive site plan" and "general development plan covering the entire area" as required by Sections 25-6-1 and 25-6-3(3) of the County Zoning Code. 108. The Director's own September 14, 2011 decision-letter described the project as a "housing" project to be built as a "residential community" and in a manner that is "reminiscent of ... traditional neighborhoods." Id., Decision Pages 11-12, Department Record Pages 375-376. 109. The Director's decision contravenes Sections 25-6-1 and 25-6-3(3)(A) and thus is in violation of statutory provisions. 110. Still, the BOA concluded that the "Saxtons' PUD met all the legal criteria for granting a PUD Permit set forth in I-ICC § 25-6-10...." BOA Conclusion #12. The BOA's conclusion that the decision of the Director is not in violation of the Zoning chapter or other applicable law is in error. 35 I� � DECISI*lf A',13 ABDER Ji Based on the Findings of Fact and Conclusions of Law herein, the BOA and the Director in their decisions violated constitutional andprovisions,statutory p ovisions, made errors in law, and made findings of fact that are clearly erroneous in view of the reliable, probative and substantial evidence on the whole record pursuant to HRS § 91-14(g)(1), (4), and (5) as follows: a. The permit is not valid because the Director 4nd BOA did,not comply with the General Plan and KCDP. The Director.and the BOA violated HRS § 91-14(g)(1) and (4). b. The permit is not valid because the Director and BOA did not review the PUD application pursuant to their constitutional duties and responsibilities with regard to the public natural resources trust. The Director and the BOA violated HRS § 91-14(g)(1), (4) and (5). c. The permit is not valid because it does not contain specific measures that require project lots to be used for bona fide agricultural uses. The Director and the BOA violated HRS § 91-14(g)(1) and (4). IT IS HEREBY ORDERED that the matter be remanded for further proceedings consistent with these Findings of Fact and Conclusions of Law and Decision, pursuant to HRS § 91-14(g). Dated at Kealakekua, Hawai'c APR 2 2013 • Ronald !burro (sea JUDGE OF THE ABOVE-ENTITLED COURT l4� u 36 l