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Home My WebLink About2025-11-07 DPW Prehearing Statement (PL-BOA-2025-000121) RENEE N.C. SCHOEN 5936 Corporation Counsel SINCLAIR SALAS-FERGUSON 9398 Deputy Corporation Counsel Office of the Corporation Counsel County of Hawai`i 101 Aupuni Street, Suite 325 Hilo, Hawai`i 96720 Telephone: (808) 961-8251 Facsimile: (808) 961-8622 E-mail: sinclair.salasferguson@hawaiicounty.gov Attorneys for Appellee, DEPARTMENT OF PUBLIC WORKS, COUNTY OF HAWAI`I BEFORE THE BOARD OF APPEALS COUNTY OF HAWAI`I STATE OF HAWAI`I CLAUDIA ROHR, CASE NO.: PL-BOA-2025-0000121 Appellant, vs. APPELLEE DEPARTMENT OF PUBLIC WORKS, COUNTY OF HAWAI`I'S DEPARTMENT OF PUBLIC WORKS, PREHEARING STATEMENT; COUNTY OF HAWAI`I, CERTIFICATE OF SERVICE Appellee, and RICHARD STANDKE, DEBORAH STANDKE, Landowners. APPELLEE DEPARTMENT OF PUBLIC WORKS, COUNTY OF HAWAI`I'S PREHEARING STATEMENT Appellee DEPARTMENT OF PUBLIC WORKS, COUNTY OF HAWAI'I("Public Works"), by and through its attorney, Sinclair Salas-Ferguson, Deputy Corporation Counsel, hereby submits its Prehearing Statement for the above-captioned matter. PREHEARING STATEMENT I. INTRODUCTION A. Claudia Rohr's Complaint. On or About May 1, 2025, Claudia Rohr("Rohr") filed a Petition with Board of Appeals, where she alleged the following: (1)Public Works erred when it issued an owner-builder building permit to Richard and Deborah Stanke("Stanke")because their property is a short term vacation rental ("STVR"); and(2)Public Works erroneously issued a building permit to Stanke before the Planning Depaitinent gave them approval to conduct work in the Special Management Area ("SMA"). B. Public Works' Response to Rohr's Petition. Regarding Rohr's first allegation that Stanke does not qualify to receive the owner- builder exemption because their property is a STVR: Public Works agrees with Rohr that Stanke's STVR is not allowed to receive an owner-builder exemption under Hawaii Revised Statutes, § 444-2.5 because the property is not solely for Stanke's use and it is open to the public for rental.' Regarding Rohr's second allegation that the permit was issued before Stanke i HRS § 444-2.5(a) states, in pertinent part, that HRS Chapter 444's contractor requirements "shall not apply to owners or lessees of property who build or improve residential or farm buildings or structures on property for their own use, or for use by their grandparents, parents, siblings, or children, and who do not offer the buildings or structures for sale or lease . . ." (emphasis added). 2 received SMA approval, the record shows that: (1) on January 13, 2025, the Planning Department determined that the Stanke project is exempt from SMA requirements; and(2) the building permit was issued on April 1, 2025, almost three months after SMA approval was granted. See DPW Documents 2, 3, 5. II. ARGUMENT Rohr's first issue on appeal - that Stanke doesn't qualify to receive the owner-builder exemption - should be dismissed because it is moot. On or about October 27, 2025, Public Works rescinded Stanke's owner-builder exemption; therefore, Rohr's first issue on appeal is moot. Rohr's second issue on appeal -that Public Works issued Stanke's building permit before SMA approval - should be dismissed because the record clearly shows that on January 13, 2025, the Planning Depaitnuent determined that the Stanke project is exempt from SMA requirements, and Public Works issued the permit almost three months later, on April 1, 2025. See DPW Documents 2, 3, 5. For these reasons, Rohr cannot meet the evidentiary burden necessary for the Board of Appeals to reverse, modify, or remand any decision made by Public Works in this matte Board of Appeals "BOA" Rules of Practice and Procedure, Rule 8-15 explains when the BOA can reverse, modify, or remand a decision made by Public Works: In appeals of Director's decisions, the Board of Appeals may affirm the decision of the director; or it may reverse or modify the decision; or remand the decision with appropriate instructions if, based upon the preponderance of evidence, the board finds that: (1) The director erred in its decision or is clearly erroneous in view of the reliable,probative, and substantial evidence on the whole record; or (2) The decision violated the Code or other applicable law; or 3 (3) The decision was arbitrary or capricious or characterized by an abuse of discretion or clearly unwarranted exercise of discretion. If the Appellant fails to establish the above, the Board shall affirm/uphold the Director's decision. Rohr's first issue is moot, and her second is disproven by the record. Accordingly, she cannot meet her burden to establish that Public Works violated the law or acted in a clearly erroneous, arbitrary, capricious, or abusive manner. III. CONCLUSION Public Works respectfully asks the BOA to dismiss this appeal because: (1) Rohr's first issue on appeal -the erroneous issuance of an owner-builder exemption - is moot because Public Works rescinded the owner-builder exemption on October 27, 2025; and (2) Rohr's second issue on appeal, where she alleges that the building permit was issued before the Planning Department granted SMA approval, is not accurate because the record shows that SMA approval was granted almost three months before the building permit was issued. Dated: Hilo, Hawai`i, November 7, 2025. NEIL AZEVEDO, Acting Director, Department of Public Works, County of Hawai`i, Appellee By: /s/ Sinclair Salas-Ferguson SINCLAIR SALAS-FERGUSON Deputy Corporation Counsel Attorney for Public Works 4 BEFORE THE BOARD OF APPEALS COUNTY OF HAWAI`I STATE OF HAWAI`I CLAUDIA ROHR, CASE NO.: PL-BOA-2025-000121 Appellant, vs. CERTIFICATE OF SERVICE DEPARTMENT OF PUBLIC WORKS, COUNTY OF HAWAII, Appellee, and RICHARD STANDKE, DEBORAH STANDKE, Landowners. CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing document was served upon the parties below by electronic mail service on November 7, 2025: 1. Claudia Rohr, Appellant CROHR4@gmail.com 2. Richard Standke, Landowner richard.standke@gmail.com Deborah Standke, Landowner fraukepi5@gmail.com 3. Sylvia Wan, Deputy Corporation Counsel SylviaA.Wan@hawaiicounty.gov Attorney for the Board of Appeals Dated: Hilo, Hawai`i, November 7, 2025. NEIL AZEVEDO, Acting Director, Department of Public Works, County of Hawai`i, Appellee By: /s/ Sinclair Salas-Ferguson SINCLAIR SALAS-FERGUSON Deputy Corporation Counsel Attorney for Public Works 5