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HomeMy WebLinkAbout2026-02-05 Kellberg's Pre-Hearing Brief (PL-BOA-205-000124) Of Counsel: DAMON KEY LEONG KUPCHAK HASTERT Attorneys at Law A Law Corporation MARK M. MURAKAMI 7342-0 CLINT K. HAMADA 11484-0 1003 Bishop Street, Suite 1600 Honolulu, Hawaii 96813 www.hawaiilawyer.com Telephone: (808) 531-8031 Facsimile: (808) 533-2242 Attorneys for Petitioner MARK KELLBERG BEFORE THE BOARD OF APPEALS COUNTY OF HAWAII PLANNING DEPARTMENT In the Matter of ) Case No.: PL-BOA-2025-000124 MARK KELLBERG, ) APPELLANT MARK KELLBERG'S PRE-HEARING BRIEF Appellant, ) vs. ) HEARING JEFFREY DARROW, PLANNING ) DIRECTOR, COUNTY OF HAWAII, ) Date: February 13, 2026 at 9:30 a.m. Location: West Hawaii Civic Center Appellee, ) GLENN TAKEMOTO; ALLA PRUGLO; ) CHRISTIE GUASTELLA and JOHN ) PAYNE; FRANCES SANTA MARIA ) TRUST; MARY and DANIEL LOCK; ) MATTHEW JACKSON and DEBRA ) BRUNO; NIKOLY PRUGLO, ) Landowners. ) APPELLANT MARK KELLBERG'S PRE-HEARING BRIEF Pursuant to the deadline set by the Scheduling Order, dated December 3, 2025, and Rule 3-14 of the Board of Appeals Rules of Practice and Procedure ("BOA Rules"), Petitioner MARK KELLBERG ("Kellberg" or "Appellant"), by and through his attorneys, Damon Key Leong Kupchak Haster, hereby submits this Pre-Hearing Brief in support of his General Petition for Appeal of Decision of the Planning Director (the "BOA Petition"), filed August 14, 2025, and ahead of the hearing before the County of Hawaii Board of Appeals currently set for February 13, 2026. The Petition appeals the Denial of Petition for Declaratory Ruling ("Denial")issued by the County of Hawai'i ("County"), Planning Director Jeffrey W. Darrow ("Planning Director") in Docket No. 25-0001 on July 18, 2025. I. INTRODUCTION Following seventeen years of extensive litigation, Kellberg filed a Petition for Declaratory Ruling (the "Petition") on May 23, 2025, to obtain clarity on how certain zoning and subdivision codes apply or will apply to what the then-Planning Director stated was an erroneously approved subdivision. Misconstruing Kellberg's Petition as identical to his previous litigation, the Planning Director denied the Petition, citing "Petitioner's various attempts to invalidate the subdivision for nearly 20 years at the County Board of Appeals, the Third Circuit Court, the ICA and the HISC." While the Planning Director is correct that invalidation of the subdivision was the subject matter of Kellberg's previous litigation, it is not the subject matter of the instant case. Instead, this appeal asks how Chapters 23 and 25 of the Hawaii County Code ("HCC" or the "County Code")prospectively apply to SUB-05-00064 in light of its mistaken approval— a question that remains novel and unaddressed by the Planning Department, this Board, or any state court. Simply put, this petition asks what the Pruglo Lot Owners can or cannot do with their 2 purported lots moving forward. It is indisputable that the subdivided lots presently do not conform to several sections of the zoning and subdivision codes(e.g.,HCC §25-5-74 states,"The minimum building site area in the A district shall be five acres." Three lots are smaller than three acres). Regardless of the finality of the subdivision's approval, how and to what extent do such non- conformities affect the lots' future uses, and to what extent must the lots be brought into compliance? 1 The approval implies one answer, while the County Code mandates the opposite. Pursuant to the County Code and Planning Department Rules, only the Planning Director can reconcile the two. II. FACTUAL BACKGROUND SUB 05-00064 (the "Subdivision") concerned a 48.47 acre parcel and a non-contiguous .699 acre parcel identified prior to SUB 05-00064 as TMK 3-2-002-035, all of which is in the agricultural district and zoned A-20a. On June 2, 2004, the Planning Director issued a determination of pre-existing lots on the 48.47 acre parcel and stated that there were only two legal 1 "Duties of county officers. (a) The building official shall enforce any provisions of this chapter relative to building construction and occupancy. (b) The director shall enforce all other provisions of this chapter pertaining to land use. (c) All law enforcement officers of the County shall enforce all the provisions of this chapter." HCC § 25-2-1 (emphasis added). "Issuance of permits or licenses in conformance with chapter. All departments, officials, and public employees authorized to issue permits or licenses shall conform to the provisions of this chapter and no permit or license for any use, building, or other purpose shall be issued where the license or permit would be in conflict with the provisions of this chapter. Any permit or license, if issued in conflict with the provisions of this chapter, shall be void."Id. § 25-2-2 (emphasis added). "Violations. Any approval or permit issued pursuant to the provisions of this chapter shall comply with all applicable requirements of this chapter. Failure to comply with conditions imposed as part of any approval or permit, including variances from the provisions of this chapter, shall constitute a violation of this chapter."Id. § 25-2-30 (emphasis added). 3 lots of 26.37 and 22.7 acres each. He said, "Old plantation houses [sic] locations do not create legal lots of record." Exhibit"A" to BOA Petition. The property was sold. On April 7, 2005, a Consolidation and Resubdivision Application, SUB 05-00064, was submitted to the Planning Department. Changing positions from the June 2, 2004 preexisting lot determination,on June 1,2005, the Planning Director granted tentative approval of the preliminary plat map.3 On July 1, 2005, a final plat map was submitted dividing the larger, 48.7 acre, parcel into six new lots with the detached .6 acre parcel representing a seventh legal lot of record. On July 11, 2005, the Planning Director issued final subdivision approval of SUB 05-00064. The approval claimed that "all requirements of the Subdivision Code, Chapter, 23, as modified have been met." Kellberg received no notice of the subdivision application nor of its approval until accidentally revealed by a realtor, thirty-one days after SUB 05-00064's erroneous approval. In response to Kellberg's multiple inquiries, the Planning Director eventually sent a letter,see Exhibit "B"to Petition, stating that the Planning Department purportedly recognized five lots on the 48.47 acre parcel on May 22, 2000, but only recognized two lots there on June 2, 2004. The Planning Director called the June 2, 2004 letter "a mistake, because the Department should have respected the previous determination." 2 The documents use SUB 05-000064, SUB 05-00064, and Sub. 05-0064. They are the same permit. 3 Apparently, the Director was convinced of the eligibility of the parcels for preexisting lot status based on a Planning Director letter in 2000. This letter was missing from County files until mysteriously rediscovered after the SUB 05-00064 applicant purchased the property. See Molfino v. Yuen, 134 Haw. 181, 339 P.3d 679 (Haw. 2014). 4 Moving to the subdivided parcels, the Planning Director further explained that"there was a mistake in the approval of that subdivision [SUB 05-00064]" because of the failure to account for the noncontiguous lot: As Mr. Kellberg correctly points out, there was a mistake in the approval of that subdivision. One of the six recognized lots was a 0.699 acre portion of Grant 11,070. For some reason, it was not contiguous with the remainder of TMK No. 3- 2-2-35. In the con so]idation/resubdivision,the Planning Department did not notice that this noncontiguous portion had [not] been included in the lot count. Thus, it remained separate, and is now TMK No. 3-2-2-110. Thus, with the six lots in Sub. 05-00064 and parcel 110, there are now seven lots instead of six. Exhibit`B" to BOA Petition. The Planning Director continued: I am not going to do anything to undo this situation at this time. Sub. 05-00064 has received final subdivision approval and at least some of the lots have been sold. Given that parcel 110 is physically separated from the remainder of Sub. 05-00064, and from any property owned by the subdivider, I cannot see a way to erase its separate existence. Id. On February 6, 2007, Kellberg asked the Planning Director to apply Hawaii County Code 23- 74(c) to SUB 05-00064 to correct the mistake. The Planning Director did not respond. Later, in a litigation interrogatory response, the Planning Director stated that SUB 05-00064 did not satisfy the requirements and standards of the Subdivision Control Code. Exhibit"C"to BOA Petition (emphasis added). Kellberg further asked what additional requirements or standards would have been required had SUB 05-00064 not been a consolidation and resubdivision. The Director stated, "[t]he additional requirements would have been determined in the subdivision process and cannot be definitively stated because this subdivision did not go through the full normal process under Section 23-7. Generally, it would have required a county water system and an agricultural standard road, unless variances were obtained." Id. (emphasis added). 5 SUB 05-00064 divided the 48.47 parcel into six lots while retaining the non-contiguous .699 acre portion of TMK 3-2-002-035 as an independent lot of record, in and of itself. The current tax map shows: LI—5ZI � 44 35— 1 .if 7:3 -f� il6 x r- o �-SSGf-A�c �� �• �� s� Lots 1 1 1 (10.54 acres), 112(1.98 acres), 113 (7.22 acres), 114(6.85 acres), 115 (2.5 acres), and 35 (15.15 acres) all exist within the 48.47 acre parcel. This is more lots than existed before SUB 05-00064. On May 1 1, 2007, Kellberg filed suit against the County of Hawaii challenging SUB 05- 00064. On July 29, 2024, the Intermediate Court of Appeals issued a judgment on appeal which terminated the litigation between Kellberg, County, and the neighboring owners. As to Kellberg's claims against the County, the Intermediate Court of Appeals found Kellberg's claims moot and did not rule on the substantive merits. There has been no court ruling or decision as to whether HCC §§ 23-7 and 25-2-1 1 apply to exempt these lots from the zoning and subdivision codes og ing 6 forward. There is also no court ruling, ordinance, or agency decision that outlines what the development, construction, and other County Code requirements or conditions are to the contested lots. III. PARTIES AND AFFECTED PROPERTY The neighboring lands ("Pruglo Lots"), as of February 19, 2025, are owned, as follows: Tax Map Number Owner Address TMK 3-2-002-068 or 1104 Glenn Takemoto P.O. Box 107 Ninole, HI 96773 TMK 3-2-002-111 Alla Pruglo 7515 Mariposa Ave. Citrus Heights, CA 95610 TMK 3-2-002-112 Christie Guastella& John 11232 River Highlands Dr. Payne Saint Amant, LA 70774 TMK 3-2-002-113 Frances Santa Maria Trust 1911 Kalanianole Ave., Unit 205 Hilo, HI, 96720 TMK 3-2-002-114 Mary and Daniel Lock 913 Hog Back Rd. Haiku, HI, 96708 TMK 3-2-002-115 Mathew Jackson and Debra 17835 Beard Ln. Bruno Huntington Beach, CA 92647 TMK 3-2-002-035 Nikoly Prugl05 7515 Mariposa Ave. Citrus Heights, CA 95610 IV. LEGAL STANDARD The BOA has the power to reverse, modify, or remand a decision by the Planning Director if the BOA finds that,by a preponderance of evidence, the decision is: (1) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (2) In violation of the Code or other applicable law; or (3) Arbitrary, or capricious, or characterized by an abuse of discretion or clearly unwarranted exercise of discretion. 4 in 2010, SUB 05-00064 lot-1 10 was consolidated with TMK 3-2-002-068. 5 There is a roadway lot, TMK No. 3-2-002-116 owned by Home Tech Construction, 7515 Mariposa Ave, Citrus Heights, CA 95610. 7 County of Hawaii Board of Appeals Rules of Practice and Procedure ("BOA Rules") Rule 8-15. The BOA "shall render its decision in an appeal proceeding, by either affirming the decision appealed from, or reversing or modifying the decision, or remanding the case to the Director for further proceedings and action." BOA Rule 8-13. V. ARGUMENT This is not a re-litigation of the Subdivision's approval. This is about unanswered questions (that would have normally been answered through the ordinary Subdivision process) regarding the application of specific zoning codes to the subdivided lots. Specifically, is the County going to require (and in what permit process) the following subdivision or zoning requirements: 1) Drainage easement or drainage right of way under HCC § 23-30; 2) Adequate water supply under HCC § 23-84; 3) Adequate sewage disposal under HCC § 23-85?; 4) Right-of-way improvement or road under HCC § 23-95; 5) Set the minimum standards required for human occupancy under HCC § 25-4-2; and 6) Set the minimum building site area under HCC § 25-5-74? These questions were never answered by the Subdivision's approval, nor have they ever been answered by the Planning Department or the courts. The Planning Director's Denial should be remanded with instructions to issue a declaratory ruling on the questions raised in the Petition, because: 1) the Planning Director clearly erred in applying issue preclusion; 2) the existing conflict between the Subdivision and the County Code is well-suited for declaratory ruling; and 3) the Pruglo Lot Owners have been made parties to this appeal. The Denial fundamentally misconstrues the purpose of Kellberg's Petition, and a 8 declaratory ruling is imperative to inform both Kellberg and the Pruglo Lot Owners of what property rights flow from the Subdivision. A. The Director Erred in Applying Preclusion to Kellber2's Petition, Because Prospective Application of the County Code to the Subdivision Was Never Adjudicated on the Merits. The Planning Director clearly erred by holding that Kellberg's Petition is precluded by previous litigation, because the Petition does not seek to revoke the Subdivision's approval and the merits of Kellberg's previous lawsuit had no bearing on the ultimate ruling of mootness.6 The elements of issue preclusion, also known as collateral estoppel, are well-established in Hawaii. See Doe v. Doe, 99 Haw. 1, 10, 52 P.3d 255, 264 (2002). First, the issue decided in the prior adjudication must be identical to the one presented in the action in question. Second, there must be a final judgment on the merits. Id. Third, the fact or issue decided in the prior action was actually litigated, finally decided, and essential to the earlier valid and final judgment. Motoyama v. State, 139 Haw. 267, 388 P.3d 55 (App. 2016) (citing Omerod v. Heirs of Kaheananui, 116 Hawai'i 239, 264, (2007)). Fourth, the party against whom issue preclusion is asserted was a party or in privity with a party to the prior adjudication. Id. Kellberg's Petition plainly lacks the first and third elements necessary for issue preclusion to apply. First, at the core of the Planning Director's Denial is the misconception that Kellberg's instant Petition is identical to his prior litigation. Kellberg's original 2007 Complaint sought eight specific items of relief: 1) declare the subdivision violative of the County Code and therefore void; 2) declare the Planning Director's conduct in approving the subdivision illegal and void as against 6 The Denial uses the general term "preclusion," and does not specify "issue" preclusion or "claim"preclusion (also known as res judicata). Based on the Denial's subsequent citation to Exotics Hawaii-Kona, Inc. v. E.J. Dupont De Nemours & Company, 104 Hawaii 358, 364 (2007), this brief interprets the Denial as applying issue preclusion. 9 public policy; 3) determine that Kellberg should be provided with notice and an opportunity to be heard on the merits of the subdivision approval; 4) find that the Planning Director's refusal to correct mistakes in the subdivision approval constitutes an abuse of discretion and direct the Planning Director to take necessary action to bring the subdivision approval in compliance with the County Code; 5) issue a mandatory injunction requiring the Planning Director to correct the subdivision and enjoining the County from approving further subdivision of the Subject Property until it is brought into compliance with the County Code; 6) award Kellberg monetary damages as proven at trial; 7) award Kellberg attorneys' fees and costs; and 8) grant Kellberg such other relief as is just and proper. Kellberg v. Yuen, 131 Haw. 513, 520, n.7, 319 P.3d 432, 439, n.7 (2014) (hereinafter, "Kellberg F). Each of these remedies concerned voiding and revoking the Subdivision's approval and requiring the developer to restart the subdivision process. In other words, Kellberg previously argued that the Planning Department's mistaken and erroneous approval required the Planning Department to void the Subdivision. The Hawaii Supreme Court's exhaustive summary of Kellberg's previous litigation echoes the same characterization. In 2009, Kellberg filed his first Motion for Partial Summary Judgment, which "claimed that the Planning Director, who acknowledged the `mistake' in his subdivision approval, was required to correct the mistake." Kellberg I, 131 Haw. at 521 (emphases added). The circuit court granted Kellberg's motion and remanded the case back to the BOA to determine proper remedies. Id. at 523 ("The [circuit] court clarified that it had remanded the case to the BOA to `see what kind of remedies they had if they were, in fact, convinced that the subdivision laws, as I was convinced, was not complied with."'). On remand back to the BOA, Kellberg filed his 2009 General Petition for Appeal seeking review of the Planning Department's decision to honor the six-lot determination, the decision to grant final approval, and the October 23, 2006 letter 10 stating that the Director would do nothing to bring the subdivision into compliance. Id. at 521. In 2010, again in circuit court on second appeal, Kellberg filed another Motion for Partial Summary Judgment seeking an injunction requiring the Planning Department to alter the subdivision and to enjoin the County from "allowing the further sale, transfer of ownership, or development and improvements" of the lots until compliance is demonstrated. Id. at 522. In 2015, following the Court's ruling that Kellberg must join the lot owners if feasible, Kellberg filed his First Amended Complaint joining the Pruglo Lot Owners and asserting the same claims without seeking damages. Summary Disposition Order,Kellberg v. Kern, CAAP-19-0000833 (hereinafter,"SDO"),Dkt. 144 at 3 (App. 2024) ("He sought a declaration that the subdivision approval was invalid; an injunction against further development of the subdivision; and an injunction against Lot Owners trespassing on his property."). From start to finish, all of Kellberg's previous pleadings,motions, and appeals argued one issue that the mistaken approval voided the Subdivision. While Kellberg still maintains that the Subdivision's erroneous approval should equate to invalidity, Kellberg recognizes that the courts have declined to extend such remedy due to mootness. Kellberg therefore does not now contest the finality of the Subdivision's approval nor does he seek an injunction requiring the Planning Department to revoke the Subdivision. Instead, Kellberg's Petition asks the Planning Director"to what extent Ch. 23 and 25 apply to the properties covered by [the Subdivision and] how the zoning, subdivision, and other development and construction related codes should treat these lots." Petition at 11. In other words, now that the Subdivision will not be undone, what exactly can the Pruglo Lot Owners do with their lots? Whereas the previous litigation was retrospective insofar as it focused on the approval's expo facto consequences on the Subdivision's validity, the instant issue is prospective because it turns to the future application of the County Code moving forward. Kellberg's Petition therefore presents a 11 separate and distinct issue from the one previously litigated and fails the first element of issue preclusion. Notwithstanding the different issues at play, Kellberg also lacks the third element of issue preclusion, because the previous case was never decided on the merits of the Subdivision's compliance, or lack thereof, with the County Code. Every stage of Kellberg's previous litigation was argued,determined, appealed,and adjudicated on procedural,non-substantive grounds.' After years of arguing subject matter jurisdiction, due process,joinder of parties, statutes of limitations, and mootness, the substance of Ch. 23 and 25 of the County Code has never been applied to the Subdivision, let alone adjudicated. This issue, especially in regards to future development and construction, was never actually litigated, and, in the few instances when it was ruled on, was adjudicated in Kellberg's favor. Kellberg I, 131 Haw. at 521; Kellberg ll, 135 Hawaii at 236. There is not a single order,vacated or otherwise,ruling in favor of the County on the Subdivision's compliance with Ch. 23 and 25. At the very least, that issue was plainly not essential to the ICA's In 2008, the circuit court denied the County's motion to dismiss based on lack of subject matter jurisdiction, specifically failure to exhaust administrative remedies. Kellberg I, at 520. In 2009, the circuit court then granted Kellberg's motion for partial summary judgment, holding that the approval violated County Code,that the"mistake"must be corrected, and remanding back to the BOA for proper remedies. Id. at 521. Notably, this is one of two instances throughout the nearly two decades of litigation that the merits of Kellberg's claims were remotely addressed, and they were both ruled in his favor. Subsequently,the BOA dismissed Kellberg's remanded petition, again on lack of jurisdiction. Id. at 522. In 2011, the circuit court reversed course and granted the County's motion for summary judgment on failure to exhaust administrative remedies grounds. Id. at 523. Kellberg's entire first appeal addressed the issue of exhausting administrative remedies and due process. Id. at 52324. On remand, the ICA ruled in favor of Kellberg on Counts I and II(that the Subdivision was void). Kellberg v. Yuen, 135 Hawaii 236, 236, 349 P.3d 343 (2015) (hereinafter, "Kellberg II"). In 2015, the County appealed and the Hawaii Supreme Court ruled in its favor solely on the basis of HRCP Rule 19 (failure to join indispensable parties). Id. at 254. In 2019, after Kellberg joined the lot owners, the circuit court entered final judgment dismissing Kellberg's Amended Complaint based on the statute of limitations. SDO at 34. In 2024, the ICA upheld the final judgment, stating that the circuit court's decision to dismiss the Amended Complaint was not wrong, but rather, incorrectly based. Id. at S. Instead, the ICA corrected the basis for dismissal under mootness, not the statute of limitations. Id. 12 ultimate determination of mootness,and the Petition fails the third element of issue preclusion. As a result, the Planning Director clearly erred in applying the doctrine of issue preclusion, because the issue raised in Kellberg's Petition is not identical to the previous litigation and was neither actually litigated nor essential to the ICA's holding of mootness. B. The Declaratory Ruling Procedure is Precisely Intended for Factual Scenarios Presented by the Pruglo Lots. The Planning Director erred when he held that a declaratory ruling was improper for Kellberg's Petition,because the Petition is not"another attempt to invalidate the subdivision" and ample uncertainty remains around the Pruglo Lots' property rights. See Denial at 6. For the reasons discussed above, Kellberg's Petition is distinct from his previous litigation. The County's refusal to rescind the Subdivision means that the developer does not need to re-subdivide the property, but such refusal does little to elucidate the rights and obligations of the Pruglo Lots moving forward. if the lots did not have to comply with the zoning and subdivision codes to gain approval, to what extent must they do so moving forward? Contrary to the Planning Director's Denial,the factual scenario created by the Subdivision presents a rare,enigmatic situation perfectly ripe for declaratory ruling. "Any interested person may petition an agency for a declaratory order as to the applicability of any statutory provision or any of rule or order of the agency." HRS § 91-8. The declaratory ruling process "is meant to provide a means of seeking a determination of whether and in what way some statute, agency rule, or order applies to the factual situation raised by an interested person. Citizens Against Reckless Dev. v. Zoning Bd. of Appeals, 114 Haw. 184, 196-97 (2007). Furthermore, the declaratory ruling procedure only makes sense "where the applicability of relevant law is unknown, either because the agency has not yet acted upon particular factual circumstances, or for some other reason the applicability of some provisions of law have not been 13 brought into consideration." Id. at 197. The Hawaii Supreme Court has further emphasized that a declaratory ruling is proper where an agency has failed to make a"definitive ruling or order" on the issue at hand. Acad. Lab. United v. Bd. of Regents of the Univ. of Haw., 153 Haw. 202, 211 (2023). No agency or court has ever provided any guidance as to what extent an erroneously- approved subdivision must comply with Ch.23 and 25 of the Hawaii County Code. It is Kellberg's position (and presumably the Planning Department's) that the Subdivision's approval does not constitute a blank permission slip for the Pruglo Lot Owners to simply build anything they desire. Just like every other landowner, there are undoubtedly parameters by which the Lot Owners must abide, namely the County zoning and subdivision codes. Nonetheless, it is unclear as to what extent the Pruglo Lots must, or even can, comply with the County Code. See Petition at 9-11 (containing a non-exhaustive list of apparent conflicts and ambiguities on several ordinances' applicability to the Pruglo Lots). For example, does the presence of a seasonal stream through the Pruglo Lots require certain drainage easements under HCC § 23-30? Similarly, given that all Pruglo Lots are less than 20 acres, yet zoned A-20a, what are the Pruglo Lots' minimum lot size and building site area under HCC §§25-5-71 and 25-5-74? Do the lots require drainage easements, right of ways, and greater water supply under HCC §§ 23-30, 23-95, and 23-84, respectively? Do the lots somehow have HCC § 23-7 status despite resulting in more lots than previously existed? Does the County even have the power to enforce violations of Ch. 23 and 25 in light of the mistaken approval? On the other end of the spectrum, is the Subdivision nothing more than revised metes and bounds incapable of satisfying the County Codes' building requirements? These are but some of the important, novel questions that necessarily and logically flow from not rescinding the Subdivision. Without a declaratory ruling, the rights and obligations of 14 the Lot Owners continue to be in limbo, and, in turn,Kellberg's rights as a neighboring landowner remain unclear. The sole objective of Kellberg's Petition is to obtain clarity on the exact limitations of the Pruglo Lot's development capabilities, and, if those limitations are wholly or partly Ch. 23 and 25 of the Hawaii County Code, the Planning Department should be instructed to expressly and precisely declare so. Based on the foregoing, the Planning Director clearly erred when he determined that the declaratory ruling procedure was improper, and the BOA should remand the Petition and instruct the Director to issue a declaratory ruling on the questions presented in the Petition. C. The Declaratory Ruling Procedure's Non-Adversarial Nature Does Not Require Joinder of the Pru& Lot Owners. The Planning Director erred when he held that the Lot Owners must be made parties to Kellberg's Petition in order to render a declaratory ruling. Contrary to the Denial's characterization, Kellberg's Petition is not "another attempt to impede or impair the lot owners' rights." Denial at 7. As stated above, the Petition seeks to neither invalidate the Subdivision nor enjoin the Lot Owners from exercising whatever property rights flow from the Subdivision. Kellberg only wants to know what those property rights exactly are in relation to the zoning and subdivision codes. As a neighboring landowner, it is Kellberg's prerogative to understand how the surrounding property may be used, and, for the same reasons, such declaratory ruling should stand to also benefit the Lot Owners. The Denial implies that the Planning Director will only opine on the Pruglo Lot Owners' property rights once Kellberg initiates an adversarial proceeding against the Pruglo Lot Owners. Specifically,the Denials states,"The declaratory ruling process has no means to compel the joinder of any party, making it an unconstitutional venue to determine the property rights of a non- participating party." Denial at 7. While the Planning Director is correct that Rule 3 of the Planning 15 Department's Rules of Practice and Procedure does not require joinder of any party, the Planning Director's conclusion fails for two reasons. First, the very purpose of declaratory rulings is to avoid eventual, adversarial litigation. Chapter 632 of the Hawaii Revised Statutes,which analogously establishes declaratory judgments, states, "Its purpose is to afford relief from the uncertainty and insecurity attendant upon controversies over legal rights, without requiring one of the parties interested so to invade the rights asserted by the other as to entitle the party to maintain an ordinary action . . . It is to be liberally interpreted and administered, with a view to making the courts more serviceable tot the people." HRS § 632-6. The Hawaii Supreme Court reinforced this legislative intent, stating that "the intent of the act is to have the courts render declaratory judgments which may guide parties in their future conduct in relation to each other with a view rather to avoid liti a.on than in aid of it." Kaleikau v. Hall, 27 Haw. 420, 428 (1923). Therefore, the Planning Director's rationale that a declaratory ruling is inappropriate absent Kellberg suing the Lot Owners directly contradicts the express purpose of declaratory rulings. Second, the Lot Owners have nonetheless been joined into this BOA appeal, thereby mooting any joinder argument. See Affidavit of Mailing dated January 22, 2026, filed on January 26, 2026. The Planning Director's reluctance to issue a declaratory ruling on the questions presented in Kellberg's Petition invites unnecessary litigation and undermines the purpose of the declaratory ruling process. The Planning Director is empowered to reconcile the effects of the Subdivision's mistaken approval with the requirements of the County Code, and a declaratory ruling is the most appropriate way to do so. VI. COUNTY AND LANDOWNERS' CONTINUING OBLIGATIONS TO COMPLY Several provisions note the County's and Landowners' continuing obligations to comply with the zoning and subdivision codes. See supra n.l. Any and all development permits must 16 similarly comply with the code. HCC §§ 25-2-2, 25-2-30. Notwithstanding the effects of Kellberg's prior litigation on the Subdivision's approval, these continuing obligations remain unaffected by the ICA's SDO or any preceding court order. No conflict exists whatsoever between the ICA's SDO (leaving the Subdivision's approval untouched) and the County declaring which requirements the Lot Owners must now comply with(still leaving approval untouched). Like any other landowner, the Lot Owners are bound by the zoning and subdivision codes when using their properties, and the County must uniformly uphold these codes just like it would against any other landowner. VII. CONCLUSION Based on the foregoing,Appellant respectfully requests the Board of Appeals to vacate the Planning Director's Denial and remand Kellberg's Petition to the Planning Department with instructions to issue a declaratory ruling clarifying and interpreting Hawaii County Code §§ 23-7, 23-30, 23-62, 23-74, 23-84, 23-85, 23-95, 25-2-2, 25-2-11, 25-2-30, 25-4-2, 25-5-71, 25-5-74 to the Pruglo Lots. DATED: Honolulu, Hawaii, February 5, 2026. DAMON KEY LEONG KUPCHAK HASTERT /s/Mark M. Murakami MARK M. MURAKAMI CLINT K. HAMADA Attorneys for Appellant MARK KELLBERG 950846 17