HomeMy WebLinkAboutCommunication No. 2021-14- Flaherty Testimony Communication Number 2021-14
Subject: FW: Documentation for the KCDP AC
Attachments: Third Circuit Court 3-14-21 ruling - Kelly v 1250 Oceanside Partners.pdf
From: Chuck Flaherty
Sent:Wednesday, November 10, 20213:55 PM
To: Mercado, Keiko<Keiko.Mercado @hawaiicounty.gov>
Subject: Documentation for the KCDP AC
Aloha members of the Kona Community Development Plan Action Committee,
The definition of review in Black's Law Dictionary is "A reconsideration; second view or examination;
revision ; consideration for purposes of correction and "revise" is "To review, re-examine for correction; to
go over a thing for the purpose of amending, correcting, rearranging, or otherwise improving it; as, to
revise statutes, or a judgment."
The 2005 General Plan was a revision of the 1989 General Plan which was a revision of the original 1971
General Plan. When you compare these three plans which cover a span of years, you can see the same
format and organization. Because the same format was used in each subsequent plan, Ramseyer
formatting made it easy for anyone to see the amendment that were being proposed.
The draft 2040 General Plan is not a review or revision of the 2005 General Plan. It is a complete "gut-
and-replace" of the existing General Plan with one that makes it impossible to determine the practical and
legal implications to planning in our county.
Can anyone in the county administration what legal precedents are being undermined or enhanced? Can
anyone in the county administration explain what will be the impact on rules, policies, and procedures in
each department and dvision within the county government? Can the county administration tell the Kona
CDP Action Committee what impacts the proposed draft 2040 General Plan will have on the
implementation of the Kona CDP?
I question the legality of the current proposed draft 2040 General Plan because it is not a review, revision,
or amending of the 2005 General Plan. It effective tosses the existing General Plan in the garbage and is
as if we have travelled back in time to 1971 with all experience, history, knowledge, and wisdom
contained within the 2005 General Plan never occurred.
The Planning Department should withdraw the draft 2040 General Plan and work on truly revising and
amending the 2005 General Plan in order to be in compliance with the comprehensive review
requirement.
It should also consider revising all CDPs to conform to the General Plan format similar to what occurred
with Kona Community Development Plan, especially since the Planning Department is attempting to bring
all CDP Action Committee members together to enhance the implementation of all CDPs. Because the
format the 2005 General Plan was not considered in subsequent CDPs, these joing AC meetings find
themselves comparing apples and oranges.
With regard to the General Plan LUPAG map, I'm attaching a March 14, 2006 ruling by the state Third
Circuit Court. The ruling by found that:
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1) the resort node for the Hokuli'a members' lodge is spot zoning and the enabling ordinance was invalid,
and
2) the Hokuli'a development should have applied to the state Land Use Commission to have the
development designated as Rural.
Because the ordinances designating the members' lodge as a resort have been ruled invalid and Hokuli'a
should have applied to the state Land Use Commission to have the development designated as being the
Rural Land Use District, the area containing the development in the General Plan Land Use Planning and
Allocation Guide should be revised to Rural and comply with the Hokuli'a settlement agreement and the
Third Circuit Court's March 14, 2006 ruling.
Mahalo,
Chuck Flaherty
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cc: S.V. (Bud) Quitiquit, Esq.
Robert Triantos, Esq.
Robert D.S. Kim, Esq.
Heidi M. Rian, Esq.
Ivan Torigoe, Esq.
James Paige, Esq.
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAII
WALTER JOHN KELLY, et al., ) CIVIL NO. 00-1-192K
(Other Civil Action)
Plaintiff, )
vs. ) FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND
1250 OCEANSIDE PARTNERS, a Hawai'i ) ORDER GRANTING JOINT RULE
limited partnership, et al., ) 60(b) MOTION TO PARTIALLY
VACATE THIRD AMENDED FINAL
Defendants. ) JUDGMENT DATED AUGUST 27,
2004
This matter was heard before the Court on March 14, 2006 pursuant to Plaintiffs
Protect Keopuka Ohana, Walter John Kelly, Charles Ross Flaherty, Jr., Patrick M.
Cunningham and Michele Constans Wilkins and Defendants 1250 Oceanside Partners,
County of Hawai'i, Christopher Yuen, Dennis Lee, State of Hawai'i Department of
Health, Dr. Chiyone Fukino, State of Hawai'i Department of Land and Natural
Resources and Peter Young's Joint Rule 60(b) Motion Re Third Amended Final
Judgment Entered August 27, 2004. Present at the hearing were Plaintiffs Jim
Medeiros, Michele Constans Wilkins and Pat Cunningham with Walter John (Jack)
Kelly, and Charles Ross Flaherty, Jr. appearing by telephone represented by Robert
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D.S. Kim, Esq., Defendants 1250 Oceanside Partners by Lyle Anderson represented by
Robert D. Triantos, Esq., County of Hawaii, Planning Director and Director of Public
Works by Mayor Harry Kim represented by Ivan Torigoe, Esq., Department of Health
and Dr. Chiyone Fukino represented by Heidi Rian, Esq. and Department of Land and
Natural Resources represented by James Paige, Esq.
The Court, having heard the arguments in support of the motion and having
reviewed the exhibits received in evidence, hereby makes and enters the following
Findings of Fact and Conclusions of Law:
FINDINGS OF FACT
If it should be determined that any of these Findings of Fact should have been
set forth as Conclusions of law, then they shall be deemed as such.
1. The parties have entered into a Settlement Agreement that addresses
the concerns and issues between the parties as well as the many concerns raised by
this Court's prior orders. The Court has received the Settlement Agreement into
evidence.
2. Under the terms of the Settlement Agreement, the Parties have agreed to
a number of provisions consistent with this Court's prior Orders. In particular:
(A) Oceanside will apply to the State Land Use Commission (LUC),
under the terms and conditions of the Settlement Agreement, to
move the development site generally from the Agricultural District
into the Rural District;
(B) Oceanside will accept the Court determination that the stepping
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stone trail crossing the Hokuli'a site is owned by the State of
Hawai'i.
(C) Oceanside will not pursue development of the Members' Lodge, the
approvals for which the Court determined were invalid as spot
zoning;
(D) Oceanside, and its successors, will continue an enhanced water
monitoring program and has agreed to a Permanent Injunction to
be issued against it; and
(E) All "inadvertent discoveries" of human remains pursuant to
"sweeps" shall immediately be treated as previously identified
under Haw. Rev. Stat. Sec. 6E.
3. The parties have agreed that the Chief Judge (presiding judge of the Third
Circuit) shall resolve all disputes pertaining to any provision within the Settlement
Agreement, and that the decision is binding and non-appealable.
4. The Plaintiffs have now submitted a Stipulation of Fact, that the Court has
received into evidence, making it appropriate for the Court to determine independently
the impact of these facts on the claims and affirmative defenses advanced.
CONCLUSIONS OF LAW
If it should be determined that any of these Conclusions of Law should have
been set forth as Findings of Fact, then they shall be deemed as such.
1. On March 7, 2006, the Hawaii Supreme Court filed its order of remand to
this Court for the purposes of formally considering this motion. The Court has
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reacquired jurisdiction over the entire case and may now decide the issue raised by the
present motion.
2. Hawai'i Rules of Civil Procedure Rule 60(b) provides in pertinent part:
On motion and upon such terms that are just, the court
may relieve a party......from a final; judgment, order,
or proceeding for the following reasons: .....(5) ...It is no
longer equitable that the judgment should have prospective
application; or (6) any other reason justifying relief from the
operation of judgment.
3. Rule 60(b) "may be utilized to seek the vacation of a judgment on the
grounds that the case has been settled so that it would not be equitable to have it
remain in effect....." Wright, Miller & Kane, Federal Practice and Procedure, Civil§
2863.
4. The Court concludes it is no longer equitable that portions of the Third
Amended Final Judgment, and the Orders which it incorporates, have prospective
application. The parties have settled their differences regarding the Project, and the
Plaintiffs have withdrawn their objections to completion of the Project given the
significant changes to the Project and the benefits to the community, the culture, and
the environment through the Settlement Agreement.
5. In addition, the Court concludes that vacating portions of the Third
Amended Final Judgment, and the Orders which it incorporates, is in the interest of
justice as the parties have agreed to follow the Court's orders as described in
Paragraph 2 of the Findings of Fact. The Settlement Agreement resolves all issues
pending on appeal between the Plaintiffs and Defendants 1250 Oceanside, a Hawai'i
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limited partnership. The issues that will remain on appeal involve the Plaintiffs and the
State Department of Health and County of Hawai'i.
6. The Court also finds that vacating portions of the Third Amended Final
Judgment, and the Orders which it incorporates, is appropriate given the new evidence
on stipulated facts submitted by the Plaintiffs. The Court has independently determined
from the new evidence that the affirmative defense of laches prevents Plaintiffs from
pursuing portions of Count IV of their Fifth Amended Complaint.
7. The components of laches are well established, see Adair, 64 Haw. at
320, 640 P.2d at 300 (1982), citing W. McClintock, EQUITY § 528 at 71 (2ed. 1948).
8. Plaintiffs have now acknowledged, in the form of a judicial admission,
imputed knowledge of the planned dwelling/agricultural lot use of the property no later
than 1995.
9. The validity and sufficiency of Oceanside's entitlements was first
challenged in these proceedings in the Second Amended Complaint, filed in December
of 2000.
10. Whether a claim is barred by the doctrine of laches is determined by the
particular circumstances of each case. Small v. Badenhop, 67 Haw. at 640.
11. In light of the new Stipulated Facts provided to the Court, the Court
concludes that the elements of laches are now present in this case, barring the
challenge to Hokuli'a based upon its alleged failure to comply with the provisions of
Hawai'i Rev. Stat. Chapter 205.
12. This Court does not vacate its Judgment lightly. A court may vacate a
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judgment "whenever that action is appropriate to accomplish justice." In Re Hana
Ranch Co., 3 Haw.App. 141 , 642 P.2d 938 (1982). However, based on the findings of
facts and conclusion of law set forth above, the Court finds that justice will best be
served by vacating portions of the Third Amended Final Judgment entered August 27,
2004.
ORDER
1. IT IS HEREBY ORDERED that the Joint Rule 60(b) Motion to Partially
Vacate Third Amended Final Judgment Dated August 27, 2004 is GRANTED.
2. IT IS FURTHER ORDERED that, pursuant to Rules 60(b)(5) and (6) of the
Hawai'i Rules of Civil Procedure, portions of the Court's Third Amended Final Judgment
dated August 27, 2004, and portions of the Orders incorporated therein, are hereby
vacated, insofar as they relate to Count IV of the Fifth Amended Complaint_' In
The Court hereby vacates the following Orders(including findings of fact,conclusions of law and orders)
all of which deal with land use issues,except that the Court does not vacate these portions of the following Orders
which address whether the County approval of the Members Lodge constituted"spot zoning"(the spot zoning
findings,conclusions and orders are to remain unchanged):
a. "Order Granting in Part and Denying in Part Plaintiffs Motion for Partial Summary Judgment Re:HRS
Chapter 205 [Count IV in the Fifth Amended Complaint]Filed October 12, 2001," filed April 5, 2002, (as
supplemented by "Order Denying Defendant 1250 Oceanside Partners' Motion for Reconsideration of Order
Granting in Part and Denying in Part Plaintiffs' Motion for Partial Summary Judgment Re: HRS Chapter 205 [Count
IV in the Fifth Amended Complaint] Filed October 12, 2001"and"Order Denying Defendant 1250 Oceanside
Partners' Motion to Dismiss or in the Alternative for Partial Summary Judgment on Count IV of the Third Amended
Complaint[Count IV of the Fifth Amended Complaint']" filed October 1,2002,
b. "Order Denying Defendant 1250 Oceanside Partners'Motion to Dismiss or in the Alternative for Partial
Summary Judgment on Count IV of the Third Amended Complaint [Count IV of the Fifth Amended Complaint]
Filed October 12,2401," filed April 5,2002.
C. "Order Denying Defendants Christopher Yuen,in his official capacity as the Planning Director for the
County of Hawaii,Dennis Lee in his capacity as the Chief Engineer, County of Hawaii,and County of Hawaii's
Motion for Summary Judgment as to Count IV [Count IV of the Fifth Amended Complaint]Filed October 12,2001;
Order Denying Defendant 1250 Oceanside Partners' Joinder in Defendants Christopher Yuen, in his official capacity
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as the Planning Director for the County of Hawaii,Dennis Lee in his capacity as the Chief Engineer, County of
Hawaii, and County of Hawaii's Motion for Summary Judgment as to Count IV [Count IV of the Fifth Amended
Complaint] Filed October 23,2001," filed on April 5, 2002.
d. "Order Denying Defendants Christopher Yuen, in his official capacity as the Planning Director for the
County of Hawaii,Dennis Lee in his capacity as the Chief Engineer, County of Hawaii,and County of Hawaii's
Motion to Reconsider Order Granting in Part and Denying in Part Plaintiff's Motion for Partial Summary Judgment
re: HRS Chapter 205 [Count IV in the Fifth Amended Complaint] Filed October 12, 2001 Filed April 15,2002;
Order Denying Defendant 1250 Oceanside Partners' Joinder in Defendants Christopher Yuen,in his Official
Capacity as the Planning Director for the County of Hawaii,Dennis Lee in his Capacity as the Chief Engineer,
County of Hawaii, and County of Hawaii's Motion To Reconsider Order Granting in Part and Denying in Part
Plaintiffs' Motion for Partial Summary Judgment re;HRS Chapter 20.5 Filed October 12,2001,Filed April 22,
2002," filed on October 1, 2002.
e. "Order Granting in Part and Denying in Part Plaintiff Protect Keopuka Ohana's Motion for Partial
Summary Judgment re Equitable Estoppel Defense and Vested Rights Claim Filed September 12,2002," filed on
April 29, 2003;
f. "Findings of Fact; Conclusions of Law; Order Regarding Trial on Count IV of the Fifth Amended
Complaint," filed on September 9,2003 (amended by"Amended Findings of Fact; Conclusions of Law;Order
Regarding Trial on Count IV of the Fifth Amended Complaint," filed on October 22, 2003).
g. "Order Denying Defendant 1250 Oceanside Partners'Rule 59 Motion Regarding Amended Findings of
Fact, Conclusions of Law,Order Regarding Trial on Count IV of the Fifth Amended Complaint Entered October 22,
2003," filed on December 2, 2003.
h. "Order Denying Defendant 1250 Oceanside Partners'Motion to Modify Amended Findings of Fact,
Conclusions of Law,Order Regarding Trial on Count IV of the Fifth Amended Complaint Filed October 22, 2003",
filed on December 2,2003.
i. "Order Denying Defendant 1250 Oceanside Partners' Second Motion to Clarify,Alter,Amend and/or
Obtain Relief From Amended Findings of Fact, Conclusions of Law, Order Regarding Trial on Count IV of the Fifth
Amended Complaint filed October 22,2003," filed on December 22,2003.
j. "Order Granting in Part Defendants County of Hawaii, Christopher Yuen In His Official Capacity As
Planning Director For the County of Hawaii,and Dennis Lee, In His Official Capacity As the Chief Engineer,
County of Hawaii's Motion to Alter or Amend and/or to Correct or Obtain Relief From the Amended Final Judgment
Filed January 21, 2004," filed April 30, 2004.
k. "Order Granting in Part Defendant 1250 Oceanside Partners' Motion to Modify,Amend or Clarify
Amended Final Judgment Filed January 21,2004,"filed April 30,2004.
1. "Order Granting in Part and Denying in Part Defendant 12.50 Oceanside Partners' Motion for Relief From
Amended Final Judgment Filed January 21,2004,"filed July 26, 2004.
M. "Order Denying Defendants County of Hawaii, Christopher Yuen,In His Official Capacity As the
Planning Director For the County Of Hawaii,Dennis Lee,In His Official Capacity As the Chief Engineer, County of
Hawai'i's Motion To Amend Findings,For New Trial, Or For Relief From Third Amended Judgment Filed August
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place of such Orders and such provisions in the Third Amended Final Judgment, the
Court is entering a Fourth Amended Final Judgment, changing the Third Amended
Final Judgment only as needed for consistency with this order.
DATED: Kealakekua, Hawaii
JUDGE OF THE ABOVE-ENTITLED COURT
27, 2004.
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