HomeMy WebLinkAbout2025-11-07 DPW Prehearing Statement (PL-BOA-2025-000123) 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
WILLIAM FRAZIER, CASE NO.: PL-BOA-2025-0000123
Appellant,
APPELLEE DEPARTMENT OF PUBLIC
vs. WORKS, COUNTY OF HAWAI`I'S
PREHEARING STATEMENT;
DEPARTMENT OF PUBLIC WORKS, CERTIFICATE OF SERVICE
COUNTY OF HAWAI`I,
Appellee.
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. Appellant William Frazier Has an Unpermitted Driveway Approach.
Hawaii County Code ("HCC"), Section 22-4.8(a) states that"no County street shall be
used for ingress or egress to a property without a properly located and constructed driveway
approach." HCC, Section 22-4.1 states that"no person shall, in any manner or for any purpose,
alter, break up, dig up, disturb, undermine or dig under or cause to be altered, broken up, dug up,
disturbed, undermined or dug under any County street without having first obtained a written
permit to do so from the [Director of Public Works]." HCC, Section 22-4.4(1) states that
driveway approaches "shall be constructed . . . according to the provisions of this chapter [22]
and applicable specifications and plans on file in the department of public works." In summary,
Frazier was required to obtain a permit before installing his driveway approach, which would
have required the driveway approach to meet the requirements of Chapter 22 and Public Works'
driveway approach specifications and plans.
Appellant William Frazier("Frazier") admits in his Petition that he uses the County right-
of-way for ingress and egress to his property and that he added red cinder to his driveway
approach "to raise the ground in this location, and prevent street runoff from entering the
property . . ." See Frazier's Petition, pg. 3. Frazier did not obtain a permit for his driveway
approach and is challenging the requirement to do so.
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B. Public Works Received a Complaint,Investigated, and Issued a Notice of
Violation.
On or about March 4, 2025, Public Works received a complaint that Frazier, had"done
work in the County right-of way for the installation of a driveway (eg. laying gravel)." See DPW
Document#1. On or about June 24, 2025, Public Works investigated and concluded that Frazier
had an unpermitted driveway approach. See DPW Document#2. On or about July 23, 2025,
Public Works issued a notice to Frazier informing him that his driveway approach is
unpermitted. See DPW Document#3. The notice ordered Frazier to correct the violation by
applying for a permit. Id. On or about August 8, 2025, Frazier filed a Petition for Appeal, where
he argues that he should not be required to install a paved driveway approach until his property
"is used for something other than agricultural purposes, such as a residential dwelling . . ." See
Frazier's Petition, page 2.
II. ARGUMENT
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) 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.
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HCC, Chapter 22, "Article 4. Construction in County Streets" prohibits installation of a
driveway approach in the County right-of-way without a permit. The evidence shows that
Frazier has an unpermitted driveway approach and that he uses the County right-of-way for
ingress and egress to his property. Based on the above, Frazier cannot present any evidence that
Public Works' notice violated the law, was clearly erroneous, arbitrary, capricious, or abused its
discretion when it issued a notice of violation, informing Frazier of his unpermitted driveway
approach and ordering him to correct the violation.
III. CONCLUSION
Public Works respectfully asks the BOA to dismiss Frazier's appeal because its notice of
violation was not unlawful, clearly erroneous, arbitrary, capricious, or an abuse of discretion.
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
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BEFORE THE BOARD OF APPEALS
COUNTY OF HAWAI`I
STATE OF HAWAI`I
WILLIAM FRAZIER, CASE NO.: PL-BOA-2025-000123
Appellant,
CERTIFICATE OF SERVICE
vs.
DEPARTMENT OF PUBLIC WORKS,
COUNTY OF HAWAI`I,
Appellee.
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. William Frazier, Appellant Lil_pete 78@hotmail.com
2. 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
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