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HomeMy WebLinkAbout2026-03-03 Dec. Ruling Eric S. Robinson, Attorney Opposition TestimonyFrom:Eric Robinson To:Planning WPC Testimony Cc:Maile Miller; Tess Tynan Subject:Windward Planning Commission March 5, 2026, Meeting - Testimony of Horizon Tower in Opposition to AgendaItem No. 2 Date:Tuesday, March 3, 2026 8:47:37 AM Attachments:image001.pngTestimony for 3.5.2026 Windward Planning Commission Meeting(3415066) (Reduced).pdf Aloha: Attached for the Windward Planning Commission’s consideration, please find testimony in opposition to Agenda Item No. 2 (Petition for Declaratory Ruling Regarding Use Permit No.15-000056), submitted on behalf of Horizon Tower Limited Partnership III, by Horizon Tower III, LLC. A higher quality version is also available at the below link. Testimony for 3.5.2026 Windward Planning Commission Meeting(3415066).pdf Eric S. RobinsonAttorney at Law Starn O'Toole Marcus & FisherA Law CorporationPacific Guardian Center, Makai Tower733 Bishop Street, Suite 1900Honolulu, HI 96813Email: Telephone: (808) 537-6100Facsimile: (808) 537-5434Website: www.starnlaw.com NOTICE TO RECIPIENT: THIS E-MAIL IS MEANT FOR ONLY THE INTENDEDRECIPIENT(S) OF THE TRANSMISSION, AND MAY BE A CONFIDENTIAL COMMUNICATION PRIVILEGED AND/OR OTHERWISE PROTECTED BY LAW.UNLESS AN ENGAGEMENT AGREEMENT IS SIGNED BY OUR FIRM AND THE RECIPIENT, THIS E-MAIL SHALL NOT CREATE AN ATTORNEY CLIENTRELATIONSHIP BETWEEN OUR FIRM AND THE RECIPIENT. IF YOU RECEIVED THIS E-MAIL IN ERROR, ANY REVIEW, USE, DISTRIBUTION, OR COPYING OFTHIS E-MAIL IS STRICTLY PROHIBITED. PLEASE NOTIFY US IMMEDIATELY OF THE ERROR BY RETURN E-MAIL AND PLEASE DELETE THIS MESSAGE AND ANYCOPIES THEREOF. THANK YOU IN ADVANCE FOR YOUR COOPERATION. Pacific Guardian Center, Makai Tower – 733 Bishop Street, Suite 1900 – Honolulu, HI 96813 Telephone: (808) 537-6100 – Fax: (808) 537-5434 – Website: www.starnlaw.com 3415066 March 3, 2026 VIA E-MAIL Windward Planning Commission 101 Pauahi Street, Suite 3 Hilo, Hawai‘i 96720 WPCtestimony@hawaiicounty.gov Re: Testimony of Horizon Tower Limited Partnership III, by Horizon Tower III, LLC in Opposition to Agenda Item No. 2 of the March 5, 2026, Agenda of the Windward Planning Commission Dear Chair Daniele III, Vice Chair Perrin, and Commissioners: I. Introduction This firm represents Horizon Tower Limited Partnership III, by Horizon Tower III, LLC (collectively, “Horizon”). Horizon holds the right to construct the telecommunications tower that was authorized under Use Permit No. 15-000056 (the “Permit”). We respectfully submit this testimony1 on behalf Horizon regarding Petitioner Brandy Camacho’s (“Petitioner”) Petition for Declaratory Ruling Regarding Use Permit No. 15-000056 (the “Petition”), agenda item 2 on the Windward Planning Commission’s (“Commission”) March 5, 2026, Agenda. The Petition should be denied because Petitioner does not have standing to obtain the relief she is seeking, and revocation proceedings have neither been initiated nor noticed. To the extent the Commission intends to consider the Petition on the merits,2 the Petition should be denied because: 1) the Petition is untimely; and 2) Condition No. 3 of the Permit was satisfied and the Permit remains valid and in full force and effect. II. Additional Background Facts Regarding Horizon’s Interest in the Permit and in Parcels 84 and 118 On December 3, 2018, Cellco Partnership d/b/a Verizon Wireless (“Cellco”) and Hawaii Pacific District Church of the Nazarene (the “Church”) executed a Land License Agreement (“License”) concerning the properties identified as TMK Nos. (3) 1-5-017:084 (“Parcel 84”) and 1 For the purposes of this testimony, Horizon incorporates by reference the timeline set forth in the “Permit History” section of the Planning Department’s Background Report. 2 Because the Petition seeks revocation of the Permit (which will directly impact Horizon’s rights), Horizon has petitioned to intervene by contested case out of an abundance of caution. See Exhibit 1 (PL-CCH-2026-000029). Windward Planning Commission Testimony of Horizon Tower Limited Partnership III, by Horizon Tower III, LLC Page 2 (3) 1-5-017:118 (“Parcel 118”).3 See Exhibit 2. The purpose of the License was to facilitate the construction, maintenance, repair, and operation of, and access to a telecommunication tower and related improvements located on a portion of Parcel 118 (the “Tower Site”). See id. at § 8. A Memorandum concerning the License was recorded on or about April 27, 2021. On September 2, 2024, Cellco assigned and Horizon assumed, the License with the Church. See Exhibit 3. The Church had previously consented to the assignment on or about July 24, 2024. See Exhibit 4. Thus, as a result of the License and assignment thereof, Horizon has an interest in the Permit that is concrete and distinguishable from the general public, and Horizon will suffer actual injury in fact if the Petition is granted. III. Petitioner Does Not Have Standing to Obtain the Relief Sought by the Petition As an initial point, the Commission’s decision regarding a Use Permit falls outside the scope of allowable petitions for declaratory ruling. County of Hawai‘i Planning Commission Rules of Practice and Procedure (“PCRPP”) Rule 3-1(a) provides that the Commission “may issue a declaratory order as to the applicability of any statutory provision, ordinance, or of any rule or order of the Commission.” Pursuant to PCRPP Rule 7-7, the Commission makes a decision (not an order) to grant or deny a Use Permit application. Cf., e.g., PCRPP Rule 4-29 (providing for a decision and order in contested cases). There is no statute or ordinance, or rule or order of the Commission raised by the Petition. Accordingly, the Petition should be denied. The Petition expressly states that “Petitioner requests the Commission declare USE Permit 15-000056 void and issue an immediate Stay of Construction[.]” Petition at 2. Petitioner is requesting that the Permit be revoked. Cf. PCRPP Rule 7-11.4 Pursuant to Rule 7-11, the Planning Director is given the authority to revoke a Use Permit or request that the Commission revoke a Use Permit. No such right or privilege exists for a private citizen such as Petitioner without the express written consent of the property owner under the permit. See PCRPP Rule 7-11(a). No such written consent has been provided. With respect to revocations pursuant to Rule 7-11(b), written notice of revocation proceedings must be provided to the property owner and permitholder. To Horizon’s knowledge, no revocation proceedings have been initiated, and no written notice has been provided. Accordingly, the Petition’s request to revoke the Permit should be denied. Petitioner cites no authority (and none exists) in support of her request that the Commission “issue an immediate Stay of Construction[.]” See Petition at 2; see generally PCRPP (the word “stay” appears only in Rule 9-16(d), which provides that an appeal to court of the revocation of a Special Management Area Use Permit stays the provisions of the Commission’s revocation order). Petitioner is essentially seeking a preliminary injunction, which the Commission is not empowered to grant. See generally [Rules]; County of Hawai‘i Charter (2010) § 6-7.5 (Duties and Functions 3 At all times relevant, Parcel 84 and Parcel 118 have been owned by the Church. 4 See also Hawai‘i County Code §§ 25-2-67(a) (Use permit may be revoked “by the director” where the development is not established or has been abandoned), 25-2-67(b) (Use permit may be revoked by the Commission upon the request of the director). Windward Planning Commission Testimony of Horizon Tower Limited Partnership III, by Horizon Tower III, LLC Page 3 of the Windward and Leeward Planning Commissions). The Petition’s request for a stay should be denied. IV. Notwithstanding Petitioner’s Lack of Standing, the Petition’s Challenge of the Permit is Untimely Challenges of the Commission’s decision on a Use Permit must be made to the Third Circuit Court within 30 days. See PCRPP Rule 7-10(a). Here, the Commission’s decision to grant the Permit was first made on November 5, 2015.5 The time to appeal the Commission’s decision expired thirty days thereafter, i.e., December 5, 2015. See PCRPP Rule 7-10(a). The Commission’s decision to amend the Permit and grant a five-year extension was made on January 8, 2020. See PD Exhs. 7, 8.6 The time to appeal the Commission’s January 8, 2020, decision expired thirty days thereafter, i.e., February 7, 2020. See PCRPP Rule 7-10(a). Thus, the latest any interested party, including Petitioner, could challenge the Commission’s decisions was on February 7, 2020.7 See id. Because the Petition was not filed by February 7, 2020, it should be denied. V. Condition No. 3 Was Satisfied—Access “For the Duration of the life of the Telecommunication Facility” was Provided by the License When the Commission considered the request to amend and extend the Permit on January 8, 2020, the Planning Director “recommend[ed] a condition be added to the permit to ensure access is provided during the life of the telecommunication facility over Parcel 84 [(a second parcel)], even if the parcel is sold to another owner by the landowner.” See PD Exh. 8 at Commission Findings, p. 2; see also PD Exh. 5; PD Exh. 7, at Transcript pp. 19-20 (discussing the reason for Condition No. 3 and confirming that a license for access was already in place for Parcel 84). 5 When the application for the Permit was considered by the Commission on November 5, 2015, it appears that Petitioner’s then predecessors-in-interest, the Donald J & Patricia A. Pirch Trust,5 did not oppose or offer testimony on the Commission’s consideration of the application for the Permit. See Commission Hearing Tr. (Nov. 5, 2015), at 2-4 (denying petitions for contested case submitted by Shun Kwan and Yuk Wah Wong), 5-6 (receiving public testimony from Steve Dalrymple). 6 As with the Commission’s consideration of the application for the original permit, it appears that Petitioner’s then predecessors-in-interest, Lance & Kari Martin, did not oppose or offer testimony on the Commission’s consideration of the amendment and extension request. See Commission Hearing Tr. (Jan. 8, 2020) (PD Exh. 7), at 6-15 (receiving public testimony from Mary Couch, Nancy Young, Ric Wirick, and Jaerick Medeiros); see also PD Exh. 4 (List of Tax Map Keys, addresses, and owners). 7 Horizon further notes for the Commission’s awareness that from November 5, 2015 (at the time the Permit was first granted) until at least May 2018, Petitioner’s parcel was undeveloped and entirely covered by trees. See Exhibit 5 (satellite imagery obtained from Google Earth). On May 14, 2019, building permit BH2019-00416 was issued for the construction of a single-family dwelling on Petitioner’s parcel, and the permit was finalized on March 5, 2021. Thus, the telecommunications tower was permitted and entitled (both of which are matters of public record) before Petitioner’s parcel was even developed. Windward Planning Commission Testimony of Horizon Tower Limited Partnership III, by Horizon Tower III, LLC Page 4 Both during the January 8, 2020, Commission hearing and after, access over Parcel 84 was guaranteed for the life of the telecommunication facility. Contrary to the Petition’s assertion that the License “is revocable and term-limited, failing the ‘life of the facility’ requirement,” the License is not revocable by the Licensor (i.e., the Church) and access is guaranteed for the life of the facility because the telecommunication facility is required to be removed at the expiration of the Term of the License.8 See Exhibit 2, §§ 3.a. (initial term), 4 (extensions), 6 (additional extensions), 14 (removal at end of term). When construing agreements or servitudes in land, courts look at the substance of the agreement over form (e.g., the agreement’s name). Cf. Bremer v. Weeks, 104 Hawai‘i 43, 67-69, 85 P.3d 150, 174-76 (2004) (finding an agreement labeled “easement” was actually a “revocable license”). A license is “permission, usu[ally] revocable, to commit some act that would otherwise be unlawful; esp[ecially], an agreement . . . that it is lawful for the licensee to enter the licensor’s land to do some act that would otherwise be illegal[.]” Black’s Law Dictionary, License (12th ed. 2024). Licenses are “not assignable” and are “revocable at the will of the licensor.” Kiehm v. Adams, 109 Hawai‘i 296, 302, 126 P.3d 339, 345 (2005); see also Matter of Fasi, 63 Haw. 624, 629, n.8, 634 P.2d 98, 102, n.8 (“A license in the law of real property . . . is a personal privilege, is not assignable, ceases upon the death of either party and is revoked by a sale of the land by the licensor.”). In contrast, an easement is: [A]n interest in land in the possession of another which (a) entitles the owner of such interest to a limited use or enjoyment of the land in which the interest exists; (b) entitles him to protection as against third persons from interference in such use or enjoyment; (c) is not subject to the will of the possessor of the land; (d) is not a normal incident of the possession of any land possessed by the owner of the interest[;] and (e) is capable of creation by conveyance. Bremer, 104 Hawai‘i at 67, 85 P.3d at 174 (quoting Restatement of Property § 450 (1944)) (second brackets in original). Here, the substance of the License is akin to an easement.9 For example, the License is not revocable at the will of the Licensor, expressly continues if the land is sold, contains a covenant of 8 Although Condition No. 3 was already satisfied by the License, a Grant of Easement was also filed with the Land Court on January 23, 2026, in response to Petitioner’s lawsuit (which was subsequently dismissed). See PD Exh. 29. 9 Alternatively, the License could also be construed as a license coupled with an interest, which is irrevocable. See Black’s Law Dictionary, License coupled with an interest (defined as “[a]n irrevocable license in real estate that confers the right (not the mere permission) to perform an act or acts on the property; esp[ecially], a license incidental to the ownership of an interest in a chattel located on the land with respect to which the license exists.”); id., Chattel (“Movable or Windward Planning Commission Testimony of Horizon Tower Limited Partnership III, by Horizon Tower III, LLC Page 5 quiet enjoyment; and is assignable by the licensee. See Exhibit 2 §§ 3.a., 4, 6 (conferring no right of revocation to Licensor); 17 (rights upon sale); 18 (quiet enjoyment); and 22 (assignment). Accordingly, Condition No. 3 was satisfied, and the Petition fails on the merits. Very truly yours, Maile S. Miller Eric S. Robinson Exhibits 1 – Petition for Standing in a Contested Case Hearing (Feb. 26, 2026) 2 – Land License Agreement (Dec. 3, 2018) 3 – Assignment and Assumption of Land License Agreement (Sept. 2, 2024) 4 – Consent to Assignment (July 24, 2024) 5 – Google Earth Satellite Imagery transferable property; personal property; esp[ecially], a physical object capable of manual delivery and not the subject matter of real property.”); Exhibit 2 § 14 (providing “that all of the equipment, conduits, fixtures and personal property of LICENSEE shall remain the personal property of LICENSEE). EXHIBIT 1 NAME: PETITION FOR STANDING IN A CONTESTED CASE HEARING (Page 1 of 2) Horizon Tower Limited Partnership III, by Horizon Tower III, EEC ADDRESS: c/o Starn O'Toole Marcus & Fisher (Attn: MSM, ESR) 733 Bishop Street, Suite 1900 Honolulu, Hawaii 96813 PHONE NO.: 808-537 6100 APPLICANT/ DOCKET NO.: Brandy Camacho's Petition for Declaratory Ruling Re: Use Permit No. 15-000056 Is your interest in this matter clearly distinguishable from that of the general public? Yes X No If the answer is "yes", please explain: Horizon holds the right to construct the telecommunications tower that was authorized under Use Permit No. 15-000056. Ms. Camacho's Petition seeks to revoke and invalidate Use Permit No. 15-000056, which will directly impact Horizon's rights and interests. If the answer is "no", please explain how the proposed action will nevertheless cause you actual or threatened injury: B. Are you a government agency whose jurisdiction includes the land involved in the subject request? Yes No X If the answer is "yes", please explain the nature of the agency's jurisdiction: Do you lawfully reside on or have some property interest in the land involved in the subject request? Yes X No if the answer is "yes", please explain: See section A., above. Appendix A 16- Kph o`V.VA PETITION FOR STANDING IN A CONTESTED CASE HEARING (Page 2 of 2) Are you a person or persons descended from native Hawaiians who inhabited the Hawaiian Islands prior to 1778, who practiced those rights which were customarily and traditionally exercised for subsistence, cultural, or religious purposes? Yes No X If the answer is "yes", please submit any genealogical evidence and historical evidence showing the exercise of those rights to support your statement: STATE OF I IAWAII COUNTY OF HAWAII ) SS. On this day of f-c korlitiA , to me known to be the person described in and who executed , 20 2. before me personally appeared the foregoing instrument, and acknowledged that he executed the same as his free act and deed. \leo \fq k/t CnO, Notary Public, State of Hawaii My commission expires: Appendix_ A Ut EXHIBIT 2 EXHIBIT 3 EXHIBIT 4 EXHIBIT 5 15-1839 32nd Ave March 2016 Legend 15-1839 32nd Ave 300 ft N ➤➤ N Image © 2025 Maxar Technologies Image © 2025 Maxar Technologies Image © 2025 Maxar Technologies 15-1839 32nd Ave May 2018 Legend 15-1839 32nd Ave 300 ft N ➤➤ N Image © 2025 Maxar Technologies Image © 2025 Maxar Technologies Image © 2025 Maxar Technologies 15-1839 32nd Ave July 2019 Legend 15-1839 32nd Ave 300 ft N ➤➤ N