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Home My WebLink About2024-07-15 1250 Oceanside LLC Position Statement on Petition to Intervene PL-BOA-2024-000108 (104) DeVera, Ashley From: Cynthia Y. Arashiro <carashiro@carlsmith.com> Sent: Monday, July 15, 2024 3:57 PM To: Planning Board of Appeals Cc: Derek B. Simon Subject: Case No. PL-BOA-2024-000104 and PL-BOA-2024-000105 In the Matter of Appeal of 1250 Oceanside, LLC Attachments: Position Statement on Petition to Intervene (PL-BOA-2024-000104) 4885-91....pdf; Position Statement on Petition to Intervene (PL-BOA-2024-000105) 4874-11....pdf Attached for uploading to EPIC please find: 1) Position Statement on Petition to Intervene in General Petition for Appeal of Decision by Planning Director, Dated July 3, 2024; Certificate of Service(re PL-BOA-2024-000104; and 2) Position Statement on Petition to Intervene in General Petition for Appeal of Decision by Planning Director, Dated July 3, 2024; Certificate of Service(re PL-BOA-2024-000105). Thank you very much. CYNTHIA Y. ARASHIRO Legal Assistant I Carlsmith Ball LLP Carlsmith Ball L L P A LI FAhTEb LIA1I{T}' .:04 PkN17k E4i HIP 1001 Bishop Street, Suite 2100 Honolulu, HI 96813 Tel: 808.523.2619 Fax: 808.523.0842 Honolulu • Hilo • Kona • Maui www.carlsmitn.corl IMPORTANT/CONFIDENTIAL: This message from the law firm of Carlsmith Ball LLP, A Limited Liability Law Partnership, contains information which may be confidential, privileged, and/or exempt from disclosure under applicable law. If you are not the addressee (or authorized to receive for the addressee), you are hereby notified that the copying, use or distribution of any information or materials transmitted in or with this message is strictly prohibited. If you received this message in error, please immediately notify me(the sender) by replying to this email, then promptly destroy the original message. Thank you. 1 CARLSMITH BALL LLP PATRICK K. WONG 5878 75-5722 Kuakini Highway, Suite 208 Kailua Kona, Hawai`i 96740 Tel. No. (808) 329-6464 Facsimile No. (808) 329-9450 pwong@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 HAWAI`I In the Matter of Appeal Case No. PL-BOA-2024-000104 of POSITION STATEMENT ON PETITION TO INTERVENE IN GENERAL 1250 OCEANSIDE, LLC PETITION FOR APPEAL OF DECISION BY PLANNING DIRECTOR,DATED From the decision of the Planning Director JULY 3,2024; CERTIFICATE OF SERVICE dated April 29, 2024 (Docket No. 24-0001) 4885-9189-8831.1.051730-00058 POSITION STATEMENT ON PETITION TO INTERVENE IN GENERAL PETITION FOR APPEAL OF DECISION BY PLANNING DIRECTOR,DATED JULY 3, 2024 Pursuant to Rule 2-7 of the County of Hawai`i ("County")Board of Appeals ("BOA") Rules of Practice and Procedure, 1250 Oceanside, LLC ("Oceanside"), by and through its attorneys, Carlsmith Ball LLP, files this Position Statement in response to the Petition to Intervene in General Petition for Appeal of Decision by Planning Director("Petition") filed by C & J Coupe Family Limited Partnership ("Coupe") on July 3, 2024. I. INTRODUCTION Given the context and history behind the present appeal, Oceanside does not generally oppose Coupe's request to intervene. However, Oceanside files this Position Statement to object to and correct the many mischaracterizations and misrepresentations in Coupe's Petition. II. BACKGROUND The background and procedural history behind this appeal is set forth in detail in Oceanside's General Petition for Appeal of Decision of the Planning Director, filed May 28, 2024. The following only provides the information necessary to respond to Coupe's Petition. 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"). 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. Relevant to this appeal, the Ordinances required the construction of the following roadways: 4885-9189-8831.1.051730- 000581 • An extension of Haleki`i Street to the mauka side of the Mamalahoa Bypass Extension ("Mauka Haleki`i Extension"); • A continuation of Haleki`i Street makai of the Mamalahoa 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"). While Ordinance No. 96-8 requires the dedication of these roadways, Ordinance No. 96-7 does not. Moreover, Ordinance No. 96-8 does not require the dedication of these roadways by a date certain or a milestone in the development of Hokuli`a. All three roadways were constructed long ago; the Makai Haleki`i Extension and Connector Road were constructed in 1999, and the Mauka Haleki`i Extension was constructed in 2012,pursuant to plans approved by the County Department of Public Works ("DPW"). The Mauka Halekii Extension was dedicated to the County in 2012 and has remained open to the public ever since. All three roadways are subject to Variance No. VAR 10-027, which was granted more than a decade ago, on January 31, 2011 (the "Variance"). The Variance granted relief from Sections 23-86 (requirements for dedicable streets) and 23-95 (right-of-way improvement) of the Hawai`i County Code. Specifically, 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 [Hokulia] . . . . The requested road section would be to omit the requirement for grading and paving of the road shoulders and replace with grassed shoulders." The Variance was sought 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. On March 31, 2023, Coupe filed a lawsuit against the County and Oceanside. Coupe's lawsuit alleges that Oceanside has failed to comply with, and the County has failed to enforce, 4885-9189-8831.1.051730- 000582 the Ordinances and Development Agreement. On September 15, 2023, the Circuit Court ruled that Coupe prematurely filed its lawsuit without first seeking formal determinations from the County on Oceanside's compliance with the Ordinances and, by extension, the Development Agreement. As a result, the Circuit Court stayed the lawsuit and ordered Coupe to complete the County's declaratory ruling and administrative appeals processes prior to returning to court. On or about February 7, 2024, Coupe filed a Petition for Declaratory Ruling ("Initial Petition"). Oceanside subsequently 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. Coupe thereafter filed a Supplement to Petition for Declaratory Ruling dated March 27, 2024 ("Supplemental Petition"; together, "Coupe's Petitions"). On April 29, 2024, the Planning Director issued a Declaratory Order on Coupe's Petitions, as well as a separate Declaratory Order on Oceanside's Petition, which is the subject of a separate appeal. Under the Declaratory Order on Coupe's Petitions, the Planning Director issued declaratory rulings on only one request from the Initial Petition and two requests from the Supplemental Petition, ruling that the remaining requests were outside of the scope of his jurisdiction to issue declaratory rulings and/or improperly sought review of past agency decisions that are no longer appealable. Oceanside's appeal followed. III. DISCUSSION A. Coupe misrepresents the nature and scope of this appeal. Coupe's Petition repeatedly mischaracterizes the nature and scope of this appeal, making baseless arguments like "Oceanside's Appeal seeks to undermine a multiple decade long obligation to provide the public with unfettered access through . . . Hokuli`a[.]" Petition at 2. 4885-9189-8831.1.051730- 000583 Coupe's fatalistic hyperbole is both unnecessary and misleading. In reality, the issues involved in this appeal are far narrower and less sinister than Coupe suggests. For example, Oceanside has appealed only a portion of the Planning Director's ruling 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." Specifically, Oceanside has appealed only the Planning Director's ruling that Ordinance No. 96-7 requires dedications of the roadways, where the word "dedicate" (or any variation thereof) is found nowhere is Ordinance No. 96-7. At no point before the Circuit Court or in this appeal has Oceanside challenged the dedication obligations under Ordinance No. 96-8, as Coupe seemingly suggests. Oceanside also appealed only a portion of the Planning Director's ruling 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." Specifically, while Oceanside agrees with and has not appealed the Planning Director's ruling that the dedication of the Mauka Haleki`i Extension satisfied the requirements of the Ordinances, Oceanside has appealed the qualification the Planning Director seemingly put on the dedication. Oceanside has also appealed the Planning Director's ruling 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. In its appeal, Oceanside points to the fact that the Ordinances do not set explicit construction standards for these roadways; that all three roadways were constructed to plans approved by DPW; and that all three roadways are subject to the Variance, which provided relief from certain requirements under the Hawai`i 4885-9189-8831.1.051730- 000584 County Code. Simply put, Oceanside's position is that, like the Mauka Haleki`i Extension, the Makai Haleki`i Extension and Connector Road are fully constructed and can be dedicated to the County. B. Oceanside has not impeded access for either the public or Coupe, and does not seek to do so through this appeal. The overall tone of Coupe's Petition suggests that Oceanside is somehow impeding access for the public generally and Coupe specifically. Not so. The following provides a brief description of the purpose and use of the three roadways at issue in this appeal. The Mauka Haleki`i Extension provides connectivity between Kealakekua and the Mamalahoa By-Pass. The Mauka Haleki`i Extension was dedicated to the County in 2012 and has remained open to the public ever since. The Makai Haleki`i Extension provides access from the Mamalahoa By-Pass through Hokuli`a and connects to Hawai`i Loa Drive (a privately-owned road within Hokuli`a that is not required to be dedicated), which in turn leads to a 140-acre shoreline park. Public access to the shoreline park from the Mamalahoa By-Pass and through Hokuli`a is guaranteed —in perpetuity —pursuant to a Grant of Access Easement and Covenants dated September 16, 1999 ("Public Access Easement").1 The Public Access Easement was executed and recorded pursuant to and in furtherance of the County-approved Shoreline Park Management and Public Access Plan dated November 1998. In 2023 alone, 9,155 members of the public accessed the shoreline park through Hokuli`a using the Public Access Easement. The Connector Road branches off of the Makai Haleki`i Extension and terminates to the south as a"stub-out" at the boundary between Hokuli`a and Coupe's vacant and undeveloped property. Although the Ordinances state that the stub-out is "to provide future connections 1 The Public Access Easement was recorded in the Bureau of Conveyances on December 29, 1999, as Document No. 99-206268. 4885-9189-8831.1.051730- 000585 between [Hokuli`a] and the adjacent properties to the . . . south" (emphasis added), the Ordinances say nothing about providing"unfettered access"to Coupe's property,particularly where neither Coupe's property nor any other properties to the south have been developed with improvements to connect to the Connector Road. As far as Oceanside is aware, Coupe has never requested access to its property through the Connector Road or to connect a roadway on its property to the Connector Road, although Oceanside regularly grants the rancher leasing Coupe's property access to Hokuli`a lands to retrieve stray cattle and repair fencing. C. Coupe fought to block the construction of the Mamalahoa By-Pass. To provide some context on the present dispute and the parties involved, Oceanside's General Petition for Appeal of Decision of the Planning Director noted that Coupe previously fought for years to block the construction of the Mamalahoa By-Pass. Coupe took issue with that information being disclosed to the BOA,presumably because it is inconsistent with its current posture of purportedly being a defender of public infrastructure and access. According to Coupe's Petition, "Oceanside has already made misrepresentations by painting [Coupe] as the aggressor in an earlier lawsuit pertaining to [sic] condemnation action by the County." Petition at 7. Coupe's Petition claims that Coupe's "intent was not to block any important public infrastructure" and suggests that Coupe was only concerned with the amount of compensation it would receive for the land condemned. Petition at 7-8. That is just not the case. The simple reality is that for nearly a decade Coupe challenged the very public purpose behind the Mamalahoa By-Pass and thus the County's ability to condemn Coupe's land for the Mamalahoa By-Pass. As the Hawaii Supreme Court explained in its second decision addressing Coupe's challenge to the condemnation of its land for the Mamalahoa By-Pass, Coupe argued, among other things, that"the only entity that stood to benefit [from the Mamalohoa By-Pass] . . . was Oceanside because Oceanside could not open the Hokulia project without completing and 4885-9189-8831.1.051730- 000586 conveying the Bypass to the County." County of Hawaii v. C&J Coupe Fam. Limited. Partnership, 124 Haw. 281, 297, 242 P.3d 1136, 1152 (2010). The Hawai`i Supreme Court rightly rejected Coupe's argument, finding that there was sufficient evidence to "support a conclusion that the Bypass satisfied a broad public use of alleviating traffic congestion in the area, rather than to simply confer a wholly private benefit to Oceanside." Id. at 299, 242 P.3d at 1154 (emphasis added). Undoubtedly, the countless residents of the Kona region that regularly use the Mamalohoa By-Pass would agree with that seemingly self-evident conclusion. IV. CONCLUSION Oceanside does not generally oppose Coupe's request to intervene in this appeal. However, Coupe's Petition raises concerns about Coupe's participation in this appeal and whether Coupe will seek to unnecessarily complicate or distract from these proceedings. Oceanside hopes that is not the case. DATED: Honolulu, Hawai`i, July 15, 2024. /s/Derek B. Simon PATRICK K. WONG DEREK B. SIMON IAN WESLEY-SMITH Attorneys for 1250 OCEANSIDE, LLC 4885-9189-8831.1.051730- 000587 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 July 15, 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 Defendant COUNTY OF HAWAII KENNETH R. KUPCHAK MARK M. MURAKAMI TOREN K. YAMAMOTO 1003 Bishop Street, Suite 1600 Honolulu, Hawaii 96813 Attorneys for Intervenor C & J COUPE FAMILY LIMITED PARTNERSHIP DATED: Honolulu, Hawai`i, July 15, 2024. /s/Derek B. Simon PATRICK K. WONG DEREK B. SIMON IAN R. WESLEY-SMITH Attorneys for 1250 OCEANSIDE, LLC 4885-9189-8831.1.051730-00058