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County of Hawaii
BOARD OF APPEALS
Aupuni Center • 101 Pauahi, Suite 3 • Hilo,Hawai`i 96720
(808)961-8288 • Fax(808)961-8742
GENERAL PETITION FOR APPEAL OF
DECISIONS BY PLANNING DIRECTOR OR PUBLIC WORKS DIRECTOR
(Type or legibly print the requested information. See instructions attached.)
TYPE OF PETITION (check one):
ElAppeal Decision of the Planning Director ❑ Appeal Decision of Director of Public Works
SUBJECT PROPERTY (land in question):
Tax Map Key (TMK): Numerous,incl.8-1-004:07088-1-030:055 Area of Property: Approx. 1,260 acres
State Land Use
Designation: Agricultural County Zoning: A-1a
Street Address: Numerous
APPELLANT INFORMATION:
Name(s): 1250 Oceanside, LLC
Signature(s): Date:
Mailing Address: do Carlsmith Ball LLP(attention Derek B.Simon), 1001 Bishop Street, Suite 2100, Honolulu, HI 96813
Telephone: 808-523-2589 Email: dsimon@carlsmith.com
Interest in Subject 1250 Oceanside, LLC is the developer of Hokuli'a, which is the subject of
Property: the Declaratory Order being appeal.
LANDOWNER INFORMATION:
Name(s): Same as above.
Signature(s)1: Date:
Mailing Address:
Telephone: Email:
APPELLANT REPRESENTATIVE INFORMATION (leave blank if not applicable):
Name(s)/Title(s): Derek B. Simon
Signature(s): Date: May 28, 2024
Mailing Address: 1 01 Bishop Street, Suite 2100, Honolulu, HI 96813
Telephone: (808) 523-2589 Email: dsimon@carlsmith.com
Not required if the Landowner is not the Appellant.
\\COH01\planning\public\BOA\Forms and Labels\Application Forms\APPEAL 2021-07-PL or PW Dir.docx Revised April 2021
Statement of the nature of Appeal and the Relief Requested. Include Director's decision and decision
date:
1250 Oceanside, LLC appeals the Declaratory Order issued by the Planning Direcetor on 29, 2024
in Planning Department Docket No. 24-00001. A copy of the Declaratory Order is included as
Exhibit 1 in the attached General Petition for Appeal of Decision of the Planning Director dated
May 28, 2024.
Statement of how the Director's decision violates the law; or is clearly erroneous; or is arbitrary or
capricious, or characterized by an abuse of discretion or clearly unwarranted exercise of discretion:
See attached General Petition for Appeal of Decision of the Planning Director dated May 28, 2024.
Statement of any other relevant facts:
See attached General Petition for Appeal of Decision of the Planning Director dated May 28, 2024.
If there is insufficient space on this form to provide the information, then please include supplemental documents.
\\COH01\planning\public\BOA\Forms and Labels\Application Forms\APPEAL 2021-07- PL or PW Dir.docx Revised April 2021
CARLSMITH BALL LLP
PATRICK K. WONG 5878
75-5722 Kauakini Highway, Suite 208
Kailua Kona, Hawai`i 96740
Tel. No. (808) 329-6464
Facsimile No. (808) 329-9450
pwong(a,carlsmith.com
DEREK B. SIMON 10612
1001 Bishop Street, Suite 2100
Honolulu, Hawai`i 96813
Tel. No. (808) 523-2500
Facsimile No. (808) 523-0842
dsimon@carlsmith.com
IAN R. WESLEY-SMITH 10626
121 Waianuenue Avenue
P.O. Box 686
Hilo, Hawai`i 96721-0686
Tel. No. (808) 969-8416
Facsimile No. (808) 935-7975
iwesley-smith@carlsmith.com
Attorneys for
1250 OCEANSIDE, LLC
BEFORE THE BOARD OF APPEALS
PLANNING DEPARTMENT
COUNTY OF HAWAII
In the Matter of Appeal Case No.
of GENERAL PETITION FOR APPEAL OF
DECISION OF THE PLANNING
1250 OCEANSIDE, LLC DIRECTOR; EXHIBITS 1 - 11;
CERTIFICATE OF SERVICE
From the decision of the Planning Director,
dated April 29, 2024 (Docket No. 24-0001)
4896-1786-4893.1.051730-00058
GENERAL PETITION FOR APPEAL OF DECISION OF THE PLANNING DIRECTOR
Pursuant to Rule 2-4 and Part 8 of the Rules of Practice and Procedure ("BOA Rules")
for the Hawai`i County Board of Appeals ("BOA"), 1250 Oceanside, LLC ("Oceanside"), by
and through its counsel, Carlsmith Ball LLP,hereby appeals the Declaratory Order issued by
County of Hawai`i ("County") Planning Director Zendo Kern ("Planning Director") in Docket
No. 24-0001 on April 29, 2024 (the "Declaratory Order"). Exhibit 1. The Declaratory Order
relates to a Petition for Declaratory Ruling dated February 7, 2024 ("Initial Petition"), and
Supplement to Petition for Declaratory Ruling dated March 27, 2024 ("Supplemental Petition";
together, "Coupe's Petitions"), both filed by C &J Coupe Family Limited Partnership
("Coupe") pursuant to Haw. Rev. Stat. § 91-8 and Rule 3 of the County of Hawai`i Planning
Department Rules of Practice and Procedure ("PD Rules"). Exhibit 2; Exhibit 3.
I. INTRODUCTION
Oceanside is the current developer of the master-planned residential community known
as Hokuli`a("Hokuli`a") located on the Kona Coast in Kealakekua, Hawai`i. Hokuli`a is being
developed pursuant to a number entitlements issued by the County, including rezoning
Ordinance No. 96-7 ("Ordinance No. 96-7") and rezoning Ordinance No. 96-8 ("Ordinance
No. 96-8"; together, the "Ordinances"). Exhibit 4; Exhibit 5. The Ordinances, as well as other
entitlements, were later incorporated into a Development Agreement, dated April 20, 1998 (the
"Development Agreement"), between the County and Oceanside's predecessor-in-interest.
Exhibit 6.
In connection with the development of Hokuli`a, Oceanside (and its predecessor)has
responsibly partnered with the County to contribute acres of land and tens of millions of dollars
to the development of a major highway, roadways, and infrastructure, and to restore, conserve,
and provide public access to culturally important shoreline areas. In doing so, Oceanside has at
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every step proceeded in good faith and secured the necessary governmental approvals.
Relevant here, the Ordinances required the construction of the following roadways:
• An extension of the Mamalahoa By-Pass/Ali`i Drive ("Bypass Extension"),
increasing connectivity between Kailua-Kona and Captain Cook;
• An extension of Haleki`i Street to the mauka side of the Bypass Extension
("Mauka Haleki`i Extension");
• A continuation of Haleki`i Street makai of the Bypass Extension("Makai
Haleki`i Extension"); and
• A"stub"road running north-south laterally from the Makai Haleki`i Extension to
the boundaries with the adjoining properties ("Connector Road").
Oceanside contributed approximately$20 million dollars towards the completion of the Bypass
Extension,' which was dedicated to the County in 2012 and subsequently opened to the public in
2016. Oceanside constructed the Makai Haleki`i Extension and Connector Road in 1999, and the
Mauka Haleki`i Extension in 2012, pursuant to construction plans approved by the County.
Oceanside dedicated the Mauka Haleki`i Extension to the County over a decade ago and it has
remained open to the public ever since. By any measure, Oceanside has complied, robustly, with
the conditions of approval imposed on Hokuli`a and provided significant benefits to the public.
Coupe, on the other hand, has a long and litigious history with the County and Hokuli`a,
having fought bitterly— and unsuccessfully—to block the construction of the Bypass Extension,
but not before delaying completion of the critical thoroughfare for more than a decade and
costing the County and its taxpayers significant tax dollars and resources. In recent years,
Oceanside has attempted to work in good faith to find an amicable resolution of Coupe's current
concerns with Hokuli`a, but its efforts have fallen on deaf ears, with Coupe taking litigation first
approach.
' The $20 million contributed by Oceanside was spent on the portion of the Bypass Extension
south of the entrance of Hokulia at Haleki`i Street. Oceanside's predecessor spent approximately
$36 million on the Bypass Extension north of the entrance of Hokuli`a.
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On March 31, 2023, Coupe filed a Complaint in the Circuit Court of the Third Circuit,
State of Hawai`i, against the County and Oceanside. Exhibit 7. Coupe's Complaint alleges that
Oceanside has failed to comply with, and the County has failed to enforce, the Ordinances and
Development Agreement, and seeks declaratory and injunctive relief. At bottom, Coupe's
lawsuit is fundamentally premised on attacking actions taken and approvals granted more than a
decade ago, by County officials serving under prior administrations.
On September 15, 2023, the Circuit Court ruled— over Coupe's strong protest—that
Coupe was required to seek formal determinations from the County on certain issues raised in its
Complaint. In doing so, the Circuit Court explained that it"is not the best-suited decision-maker
for determining whether the Development Agreement and Ordinances were actually complied
with" and that it"may not substitute its judgment for the expertise of the Planning Department
and County of Hawai`i Board of Appeals." Exhibit 8a at 5, ¶15(a)(d) & (e); see also Exhibit 8b
at 5, ¶4(d) & (e).
Pursuant to the Circuit Court's ruling, Coupe filed the Initial Petition on February 7,
2024, and the Supplemental Petition on March 27, 2024, which together submitted a total of
twenty-nine requests for declaratory rulings (the "Requests") to the Planning Director. In the
interim, Oceanside filed its own Petition for Declaratory Ruling on February 28, 2024
("Oceanside's Petition"), in order to fill obvious gaps in the issues referred by the Circuit Court
that were left by Coupe's Initial Petition, avoid piecemeal challenges by Coupe in the future, and
ensure Oceanside has certainty as it continues to develop Hokuli`a.
On April 29, 2024, the Planning Director issued the Declaratory Order on Coupe's
Petitions, Exhibit 1, and a separate Declaratory Order on Oceanside's Petition, which is the
subject of a separate appeal filed concurrently with this appeal. Under the Declaratory Order on
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Coupe's Petitions, the Planning Director issued declaratory rulings on only one Request from the
Initial Petition and two Requests from the Supplemental Petition, finding that the remaining
Requests were outside of the scope of his jurisdiction under PD Rule 3 and/or improperly sought
review of past agency decisions that are no longer appealable. Id.,passim.
As explained in detail below,portions of the Declaratory Order are in violation of law,
clearly erroneous, arbitrary and capricious, and constitute an abuse of discretion. Oceanside
requests that the BOA either modify the Declaratory Order as set forth below, or remand the
matter back to the Planning Director to do the same.
II. NAME, ADDRESS,AND TELEPHONE NUMBER.
Name: 1250 Oceanside, LLC
Address: P.O. Box 2059
Kealakekua, Hawai`i 96750
c/o Carlsmith Ball LLP
Attention: Derek B. Simon
1001 Bishop Street, Suite 2100
Honolulu, Hawai`i 96813
Telephone numbers: c/o Carlsmith Ball LLP
Derek B. Simon: 808-523-2589
III. PARTIES AND AFFECTED PROPERTY.
The parties to this appeal are the Planning Director and Oceanside. Oceanside is the
developer of Hokuli`a, which covers approximately 1,260 acres on the Kona Coast in
Kealakekua, Hawai`i and is identified by numerous Tax Map Keys ("TMK"). Most relevant
here, the Makai Haleki`i Extension and Connector Road are identified by TMK Nos. (3) 8-1-
004:070 and(3) 8-1-030:055. Oceanside is developing Hokuli`a pursuant to the Ordinances and
Development Agreement, which are the subject of the Declaratory Order.
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IV. BACKGROUND
A. Early Development of Hokuli`a by Oceanside's Predecessor-in-Interest.
Oceanside's predecessor-in-interest, 1250 Oceanside Partners, L.P. ("1250 Partners"),
first conceived Hokuli`a in the early 1990s, as a higher-density, master-planned residential
community consisting of approximately 1,540 lots, a 27-hole golf course, and a 100-unit
members' lodge. However, 1250 Partners subsequently faced legal challenges to the merits of its
proposed master plan. Following several years of litigation, 1250 Partners revised its master
plan to address concerns expressed by the community, ultimately proposing a lower-density,
agriculturally-focused development that eliminated the members' lodge.
As part of its revised master plan, 1250 Partners committed to providing significant
public improvements and community benefits. These community benefits included, inter alia,
the development of an approximately 140-acre shoreline park(the "Shoreline Park"), the
expansion of the County's Kona Scenic Park, and the construction and dedication of an
approximately five-mile segment of the Bypass Extension.
1250 Partners submitted the necessary entitlement applications to the County to
implement the revised master plan consisting of 730 agricultural lots, which culminated with the
adoption of the Ordinances — Ordinance No. 96-7 covers Hokulia's western/makai lands, and
Ordinance No. 96-8 covers Hokulia's eastern/mauka lands. Following adoption of the
Ordinances, 1250 Partners secured numerous other entitlement for Hokuli`a and entered into the
Development Agreement.
The development of Hokuli`a is divided into three general phases—Phase I, Phase II, and
Phase III, with Phase III further divided into three sub-phases —Phase III North, Phase III South,
and Phase III East. Shortly after the Ordinances were adopted, 1250 Partners submitted
construction plans to the County for subdivision infrastructure improvements for Phase I,
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including the Makai Haleki`i Extension and Connector Roadway. The Makai Haleki`i Extension
and Connector Roadway were constructed in 1999, pursuant to construction plans approved by
the Department of Public Works.
B. Oceanside Takes Over Development of Hokuli`a.
In late 2007, 1250 Partners defaulted on its loan and control over Hokuli`a reverted to its
lender. During this time, development activities were halted and could only proceed with lender
authorization and funding.
In January 2011, 1250 Partners obtained Variance No. VAR 10-027 (the "Variance"),
which covers the Makai Haleki`i Extension, Mauka Halekii Extension, and Connector Road.
Exhibit 9. 1250 Partners sought the Variance to allow for the retention of existing and
construction of new twenty-foot wide paved roadways within fifty- and sixty-foot wide rights-of-
way, without having to pave the shoulders of the roadways. The purpose of the Variance was to
minimize excessive grading in order to mitigate potential environmental hazards, and to address
concerns that the grading of the steeply sloping lands within Hokuli`a, coupled with a full
pavement of the right-of-way, would increase the potential for storm water runoff. The potential
for storm water runoff was demonstrated when Hokuli`a was put on hold in late 2000, to allow
for remediation of sediment runoff into the nearshore waters fronting Hokuli`a caused by severe
storm events.
Oceanside acquired 1250 Partners' loan in late 2012, but before development of Hokuli`a
could be fully resumed, 1250 Partners needed to proceed with a petition under Chapter 11 of the
U.S. Bankruptcy Code to restructure its debt. During this time,however, the Mauka Haleki`i
Extension was completed, which, like the Mauka Haleki`i Extension and Connector Road, was
constructed pursuant to plans approved by the Department of Public Works. The Mauka
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Haleki'i Extension was dedicated to the County in 2012 and has been open to the public ever
since. Exhibit 10 (Resolution No. 317-12).
Oceanside emerged from bankruptcy on July 1, 2014, in control of Hokuli`a. Since then,
Oceanside has made significant strides towards revitalizing the once dormant Hokuli`a. Among
other things, Oceanside contributed $20 million dollars towards the completion of the Bypass
Extension and completed necessary project elements and infrastructure, including the Phase 1
Wastewater Treatment Plant, additional infrastructure improvements in subdivision Phases 1 and
2, various golf course related amenities, and all archaeological mitigation. The archaeological
and cultural sites within Hokuli`a are actively monitored and maintained by the Hokuli`a Parks
and Cultural Sites Association, which is funded out of Hokulia's membership dues.
The Shoreline Park(which is being developed in five phases) has been opened to the
public since 2002 and is also maintained by the Hokuli`a Parks and Cultural Sites Association.
Oceanside has completed the improvements required for the Shoreline Park by the
Comprehensive Public Access Plan for Phases 1 through 4, and improvements for Phase 5 are
currently underway. The completed park improvements include planting naturally occurring
native trees, shrubs, and ground covering vines; improving the shoreline trail system with wood
chips generated from the debris from clearing of non-native invasive vegetation; creating public
rest areas along the trail system complete with picnic tables and waste receptacles; and installing
appropriate directional, hazard, and cultural protocol signage. Oceanside has also obtained
permitting for a new public restroom facility with twenty-eight parking stalls.
On December 12, 2016, Oceanside dedicated a 2.273-acre parcel abutting the north side
of the Kona Scenic Park to the County. That land is now being used to provide much needed
off-street parking for the public. As of August 23, 2012, the Planning Department confirmed
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that the total balance of fair share credits for Hokuli`a was $8,641,127.12. Oceanside is
currently in the process of obtaining an updated total balance of fair share credits from the
County.
C. Coupe's Lawsuit.
On March 31, 2023, Coupe filed its Complaint. Exhibit 7. In its Complaint, Coupe
alleges that Oceanside has failed to comply with, and the County has failed to enforce, the
Ordinances and Development Agreement. Specifically, Coupe alleges, inter alia, that: (a) the
Makai Haleki`i Extension, Mauka Haleki`i Extension, and Connector Road were not built to
express standards required by the Ordinances and Development Agreement; (b) Oceanside has
failed to comply with its dedication obligations for these roadways; (c) the County improperly
granted the Variance because Coupe was not provided notice, the standard for granting a
variance was not met, and the Variance functioned as an improper amendment of the Ordinances
and Development Agreement; and(d)the County improperly accepted the dedication of the
Mauka Haleki`i Extension. Based on these allegations, Coupe seeks declaratory and injunctive
relief.
On September 15, 2023, the Circuit Court ruled that Coupe was required to first seek a
formal determination from the County on Oceanside's compliance with the Ordinances and, by
extension, the Development Agreement. Exhibit 8a; Exhibit 8b. The Circuit Court explained that
it "is not the best-suited decision-maker for determining whether the Development Agreement
and Ordinances were actually complied with" and that it"may not substitute its judgment for the
expertise of the Planning Department and County of Hawai`i Board of Appeals." Exhibit 8a at 5,
¶115(a)(d) & (e); see also Exhibit 8b at 5, ¶4(d) & (e). As a result, the Circuit Court stayed
Coupe's lawsuit and ordered Coupe to complete the County's declaratory ruling process prior to
returning to court.
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Coupe filed its Initial Petition on February 7, 2024, and its Supplemental Petition on
March 27, 2024. Exhibit 2; Exhibit 3. In the interim, Oceanside's Petition was filed on February
28, 2024 ("Oceanside's Petition"). On April 29, 2024, the Planning Director issued separate
Declaratory Orders on both Coupe's Petitions and Oceanside's Petition. The Declaratory Order
on Oceanside's Petition is the subject of a separate appeal filed concurrently with this appeal.
V. LEGAL STANDARD
The BOA has the power to reverse, modify, or remand a decision by the Planning
Director if the BOA finds that the decision is:
(1) In violation of the Code or other applicable law; or
(2) Clearly erroneous in view of the reliable,probative, and substantial evidence on the
whole record; or
(3) Arbitrary, or capricious, or characterized by an abuse of discretion or clearly
unwarranted exercise of discretion.
BOA Rule 8-15; see also BOA Rule 8-13 (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.").
VI. ANALYSIS
A. The Planning Director Erred in Ruling that Ordinance No. 96-7 Requires the
Dedication of the Mauka Haleki`i Extension, Makai Haleki`i Extension and
Connector Road.
In the Declaratory Order, the Planning Director ruled that"[t]aken in their entirety, the
Ordinances' roadway and public access requirements expressly require the Mauka Halekii
Extension, Makai Halekii Extension and Connector Road to be dedicated to the County."
Exhibit 1 at 11-12 (emphasis added). To the extent that the Planning Director's ruling
interpreted Ordinance No. 96-7 as requiring the dedication of Mauka Haleki`i Extension, Makai
Haleki`i Extension, and Connector Road, his ruling was in error.
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'The fundamental starting point of statutory interpretation is the language of the statute
itself,' and `where the statutory language is unambiguous, our duty is to give effect to its plain
and obvious meaning."' See Wells Fargo Bank, N.A. v. Omiya, 142 Hawai`i 439, 449, 420 P.3d
370, 380 (2018) (internal citations omitted). The word"dedicate" (or any variation thereof)
appears nowhere in Ordinance No. 96-7. Nor does Ordinance No. 96-7 incorporate by reference
any of the requirements of Ordinance No. 96-8. See Exhibit 4,passim. Simply put, there is no
dedication obligation under the express, unambiguous terms of Ordinance No. 96-7. The
Planning Director's statement is overbroad and inaccurate for that reason, and the Director erred
to the extent he ruled that Ordinance No. 96-7 contains any dedication obligation.
B. The Planning Director Erred to the Extent he Qualified the Dedication of the
Mauka Haleki`i Extension.
In the Declaratory Order, the Planning Director ruled that"[t]o the extent the Mauka
Halekii Extension was effectively dedicated, such dedication satisfied those portions of
Ordinance 96-7, Condition M(4), and Ordinance 96-8, Condition L(4), applicable to the Mauka
Haleki`i Extension." Exhibit 1 at 12 (emphasis added). While Oceanside agrees with (and does
not appeal) the Planning Director's ruling that Oceanside's obligations under the Ordinances
have been satisfied in connection with the Mauka Haleki`i Extension, it is unclear what is meant
by the phrase "to the extent the Mauka Halekii Extension was effectively dedicated" dedicated.
If the phrase is intended to qualify or otherwise limit the validity or effect of the dedication of the
Mauka Haleki`i Extension, the Planning Director's ruling was in error.
As noted above, the Mauka Haleki`i Extension was dedicated to the County in 2012
pursuant to County Council Resolution No. 317-12. Exhibit 10. The Declaratory Order
acknowledges that the County Council's acceptance of the Mauka Haleki`i Extension was a
legislative act taken with the input of County Department of Public Works ("DPW") that
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satisfies the conditions of the Ordinances. There is no basis in law or fact, and it was arbitrary
and an abuse of discretion, to qualify or limit in any way the dedication of the Mauka Haleki`i
Extension or Oceanside's satisfaction of the Ordinances. That is particularly true where no
particular legal or factual reason for that qualification was stated, expressly or by implication, in
the Declaratory Order. In addition, as the Planning Director recognizes elsewhere in Declaratory
Order, the Planning Director lacks jurisdiction to review or affirm past Planning Department
actions and to rule on actions by DPW or the County Council. The Planning Director's apparent
qualification could be construed as a judgment on past actions taken by the Planning
Department, DPW, and the County Council, which the Planning Director lacks jurisdiction to
issue.
C. The Planning Director Erred in Ruling that the Subdivision Agreements
between the County and 1250 Partners Have Not Been Satisfied.
The Declaratory Order notes that Oceanside's predecessor, 1250 Partners, obtained final
subdivision approval for Phase I and Phase II of Hokuli`a by entering into subdivision
agreements and posting bonds in lieu of actual construction of certain infrastructure and roadway
improvements, as allowed under HCC § 23-81 and the Ordinances. Exhibit 1 at 2. The
Declaratory Order goes on to assert that"[p]ortions of the covered improvements were
constructed by [1250 Partners] but many were uncompleted within the deadlines set in the
agreements," and that the County's Corporation Counsel sent a letter to 1250 Partners on April
29, 2010, outlining purported breaches of the Development Agreement and subdivision
agreements. Id. at 2-3. The Declaratory Order concludes that the subdivision "agreements have
not been satisfied and the bonds are no longer valid or enforceable." Id. at 12.
The Planning Director erred in ruling that the subdivision agreements for Phase I and
Phase II"have not been satisfied." Exhibit 1 at 12. That ruling is both clearly erroneous and in
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violation of law because, inter alia, it based upon an inaccurate, incomplete, and misleading
factual history regarding the subdivision agreements and bonds. The Planning Director's ruling
is also vague and ambiguous, outside of the scope of the Requests submitted, and related to past
agency actions that are no longer appealable.
D. The Planning Director Erred to the Extent he Ruled that the Makai Haleki`i
Extension and Connector Road Have Not Been Constructed as Required
Under the Ordinances.
In the Declaratory Order, the Planning Director ruled that"[i]n order to comply with the
Ordinances, Oceanside must construct the Makai Haleki`i Extension and Connector Road to a
condition approved by DPW . . . ." Exhibit 1 at 12. To the extent that the Planning Director
ruled that the Makai Haleki`i Extension and Connector Road have not been constructed as
required under the Ordinances, his ruling was in error.
The Ordinances provide that"[r]oadway improvements . . . , including all plans and
construction, shall meet with the approval of the Department of Public Works." Exhibit 4 at 15-
16 (Ordinance No. 96-7, Condition (M)); Exhibit 5 at 23-26 (Ordinance 96-8, Condition (L)).
As noted above, the Makai Haleki`i Extension and Connector Road were constructed as part of
Phase I of Hokuli`a. Phase I received final subdivision approval in 1999, based on plans
reviewed and approved by DPW. Exhibit 11.
The Makai Haleki`i Extension and Connector Road are also subject to the Variance,
which received input from DPW and provided relief from HCC § 23-86 (requirements for
dedicable streets) and HCC § 23-95 (right-of-way improvements). Exhibit 9. The Variance
allowed for the "retention of existing and construction of new private 20-foot wide roadways
with 50 and 60-foot wide rights-of-way within" Hokuli`a and for the roadways "to omit the
requirement for grading and paving of the road shoulders and replace with grassed shoulders."
Id. at 1. The Makai Haleki`i Extension and Connector Road are fully constructed pursuant to
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plans approved by DPW and,just like the Mauka Haleki`i Extension, both can be dedicated to
the County. The Planning Director erred to the extent that he ruled otherwise.
VII. CONCLUSION AND REQUEST FOR RELIEF.
Based on the foregoing, as well as the arguments and evidence to be presented at a
hearing on this appeal, the BOA should modify the Declaratory Order to correct the Planning
Director's errors outlined above, or remand the matter back to the Planning Director to do the
same.
Oceanside hereby reserves the right to submit additional briefing and further evidence,
witnesses, and argument to the BOA at the hearing in this matter.
DATED: Honolulu, Hawai`i, May 28, 2024.
ls/Derek B. Simon
PATRICK K. WONG
DEREK B. SIMON
IAN WESLEY-SMITH
Attorneys for
1250 OCEANSIDE, LLC
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was duly served upon
the following parties by electronic mail(E-Mail) on May 28, 2024:
ELIZABETH A. STRANCE, ESQ.
JEAN K. CAMPBELL, ESQ.
LERISA L. HEROLDT, ESQ.
Corporation Counsel, County of Hawaii
Hilo Lagoon Center
101 Aupuni Street, Suite 325
Hilo Hawaii 96720
Attorneys for
COUNTY OF HAWAI`I
PLANNING DIRECTOR
DATED: Honolulu, Hawai`i, May 28, 2024.
ls/Derek B. Simon
PATRICK K. WONG
DEREK B. SIMON
IAN R. WESLEY-SMITH
Attorneys for
1250 OCEANSIDE, LLC
4896-1786-4893.1.051730-00058