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HomeMy WebLinkAbout2024-10-04 C&J Coupe Pre-Hearing Brief (PL-BOA-2024-000104 & 105) Of Counsel: DAMON KEY LEONG KUPCHAK HASTERT Attorneys at Law A Law Corporation KENNETH R. KUPCHAK 1085-0 krk@hawaiilawyer.com MARK M. MURAKAMI 7342-0 mmm@hawailawyer.com TOREN K. YAMAMOTO 11520-0 tky@hawaiilawyer.com 1003 Bishop Street, Suite 1600 Honolulu, Hawaii 96813 www.hawaiilawyer.com Telephone: (808) 531-8031 Facsimile: (808) 533-2242 Attorneys for Intervenor C &J COUPE FAMILY LIMITED PARTNERSHIP BEFORE THE BOARD OF APPEALS PLANNING DEPARTMENT COUNTY OF HAWAII In the Matter of Appeal ) CASE. NO. PL-BOA-2024-000104 ) &PL-BOA-2024-000105 of ) 1250 OCEANSIDE, LLC ) INTERVENOR C & J COUPE FAMILY ) LIMITED PARTNERSHIP'S From the decision of the Planning Director, ) PREHEARING BRIEF dated April 29, 2024 (Docket No. 24-0001) ) ) & ) From the decision of the Planning Director, ) ) dated April 29, 2024 (Docket No. 24-0002) ) INTERVENOR C & J COUPE FAMILY LIMITED PARTNERSHIP'S PREHEARING BRIEF Intervenor C & J COUPE FAMILY LIMITED PARTNERSHIP ("Intervenor"), by and through its undersigned attorneys, hereby submits this Prehearing Brief. I. INTRODUCTION 1250 OCEANSIDE, LLC ("Oceanside") brings this appeal before the Board of Appeals to overturn the Planning Director's decision made pursuant to two separate Petitions for Declaratory Ruling: one submitted by Intervenor on February 7, 2024, which was subsequently supplemented on March 27, 2024, (collectively the "Coupe Petition") and one submitted by Oceanside on February 28, 2024 ("Oceanside Petition"). The Planning Director responded to both the Coupe Petition and Oceanside Petition on April 29, 2024, in separate Declaratory Orders (respectively, Docket No. 24-0001 and Docket No 24-0002, and collectively the "Orders"). Oceanside, in turn, appealed both Orders creating two separate matters, PL-BOA-2024-000104, for its appeal of the Director's decision regarding the Coupe Petition, and PL-BOA-2024-000105, for its appeal of the Director's decision regarding the Oceanside Petition. PL-BOA-2024-000105 and PL-BOA-2024-000104 were later consolidated into this appeal upon stipulation by the parties (the "Appeal"). On the surface, Oceanside's Appeal seeks to have the Board of Appeals ("BOA") reevaluate the Director's determinations in his Orders, specifically to address questions that Oceanside claims were erroneously UN-addressed as well as overturn ones that they allege were erroneously addressed. However, in reality they stand for more than just an innocent developer's attempts to understand its twenty-five year old obligation. Rather, what is truly on display is Oceanside's continued efforts to fight tooth and nail, and at every level, against a known and well understood, multiple decade long obligation to provide the public with unfettered access through its residential community known as Hokulia("Hokulia"). Oceanside continues to complicate what is and should be a simple case: over a quarter century ago, Oceanside promised to design, build, and dedicate important public infrastructure to 878079 the County. Instead, Oceanside has ignored this promise and attempted to exculpate themselves from their duties since (essentially) day-one. Since then, Oceanside has marketed Hokulia as a private gated community, pocketed the premium due such developments, and delayed the expense attributable to dedication standard roadways for over twenty-five years. In fact, Oceanside has twice attempted to amend away their admitted obligation to the public by requesting amendments to their dedication responsibilities; yet they now seemingly bolster up a position that they were never required to dedicate in the first place. Oceanside's laundry list of meandering questions to the Director, as well as this Appeal, only serves to distract from what is clear to everyone and anyone who takes the time to look into the storied history of Hokulia: Oceanside promised to dedicate certain public roads, signed a binding agreement to do so, and, since then (and through multiple iterations) has tried to circumvent that responsibility. The Director cuts directly through this subterfuge by reiterating Oceanside's obligations and noting Oceanside's continued failure to comply. Thus, in efforts to finally realize a 25-year overdue promised dedication, Intervenor hereby submits this Prehearing Brief in order to reinforce the Director's well-reasoned decision. II. GENERAL FACTS A. General Background Since 1996, pursuant to conditions set out in Ordinance No. 96-8 and Ordinance 96-7 ("Incorporated Ordinances"), Oceanside has been required to provide unfettered public access through Hokulia to both North and South (via the Connector Road) and East and West (via the Makai Halekii Extension). ROA at 31-56, and ROA at 57-91, respectively.' The Connector Road and Makai Halekii Extensions were to be designed and built to dedicable County standards, and 1 For the purpose of this consolidated appeal,references to the ROA will be to the ROA submitted in PL-BOA- 2024-000104;if,for whatever reason the Record on Appeal for PL-BOA-2024-000105 is necessary it will be noted in the citation as"ROA 105". 878079 unfettered public access was to be guaranteed through the dedication of said roads to the County. Under the Incorporated Ordinances, these conditions were to be met prior to the first final subdivision approval of any portion of Hokulia. The Incorporated Ordinances were later incorporated by reference into a development agreement entered into between Oceanside and County Defendant, recorded in the State of Hawaii Bureau of Conveyances on April 30, 1998 ("Development Agreement"). ROA at 92-298. Specifically, Section 16 of the Development Agreement expressly requires that Oceanside "provide roadway stub-outs . . . to provide future connections between the Property and its adjacent north and south boundaries." ROA at 119. As material consideration incorporated by the Development Agreement, Condition L(5) of Ordinance 96-8, which the Development Agreement incorporated by reference, similarly required that Oceanside "provide roadway stub-outs . . . to provide future connections between the subject property, and the adjacent properties to the north and south[.]" ROA at 82. Condition L(4) of Ordinance 96-8 required Oceanside to "construct the extension of Halekii Street through the [Development]". The provisions of Condition L were to be completed"[p]rior to the issuance of Final subdivision Approval for any portion of the subject property." ROA at 81. Condition M of Ordinance 96-8, further required that "[a]11 roadway improvements stated in Condition L of this ordinance shall be dedicated to the County of Hawaii[.]" ROA at 82. Condition M and Condition L, through interpretation of the Development Agreement in its totality, imposed a timeline for the design, build, and dedication of the Connector Road and Makai Halekii Extension on or before first final subdivision approval, the first of which, Final Subdivision approval for Phase I, occurred On September 18, 1999. See ROA at 81-82. In addition, a catchall time requirement listed under Condition W of Ordinance 96-8, and Condition 878079 S of Ordinance 96-7, states that all conditions in Ordinance 96-8 should "be met or substantially complied with in a timely fashion," thus imposing a general standard to the timeliness for the completion of all of the Ordinance's conditions. ROA at 51 & 86. These exact conditions were incorporated into the Development Agreement as specific consideration promised by Oceanside in exchange for County's agreement to freeze the then existing land use controls on Hokulia. To date, and upon Oceanside's own admission, none of these conditions have been adhered to. In a letter dated January 23, 2020, Oceanside requested to amend the Development Agreement and Incorporated Ordinances in order to exculpate themselves from their duty to dedicate the Connector Road and Makai Halekii Extension to the County ("Amendment Request"). See Intervenor Exhibit "5" at 94-95.2 In the Amendment Request, Oceanside makes a number of admissions as to both the Connector Road and Makai Halekii Extension. Specifically, the amendment request expressly admits and acknowledges that the Connector Road and Makai Halekii Extension were "constructed in 1999, based on a non-dedicable roadway design approved by the Department of Public Works at the time, and these improvements were completed a short time later" and that rather than dedicate the two roadways the county should allow them "to remain in private ownership, based on the current `as-built' construction, without improving the roadways to a County-dedicable standard."3 This same language was echoed in the 2023 Amendment Request as well. See Intervenor Exhibit "5" at 103-04. For the purposes of this Brief, both amendment requests represent an undisputable fact: neither the Connector Road nor the Makai Halekii Extension have been designed, built, or 2 Intervenor's Exhibits for both PL-BOA-2024-000104 and PL-BOA-2024-000105 are identical.For the purposes of this Appeal,reference to Intervenor Exhibits will mean both sets of submitted exhibits. 3 Oceanside also admits that the Mauka Halekii Extension"was not build to County dedicable standards,however, the County accepted this roadway segment for dedication, and now this Mauka segment of Halekii Street is in the County's roadway inventory." 878079 dedicated to the County, in direct contradiction to the Development Agreement and Incorporated Ordinances. Further, the facts here display a pattern of actions (or inaction) that prove that Oceanside has no intention of ever dedicating the Connector Road or the Makai Halekii Extension. For decades, Oceanside has been marketing Hokulia as a "private luxury residential community"4 despite the clear requirements to dedicate the Connector Road and Makai Halekii Extension within its community to the public. To further this interest, Oceanside has even fortified Hokulia against the public by erecting a guard facility at its only entrance. See Intervenor Exhibit "4" at 43-45. Failure to dedicate the Connector Road and Makai Halekii Extension not only impairs Intervenor's access to its property (via the Connector Road), but also restricts and burdens its ability to access the public beach park on the western end of Oceanside's property(via the Makai Halekii Extension). Thus, for twenty-four years, Intervenor and the general public have been deprived of valuable consideration promised under the Development Agreement and Incorporated Ordinances. Oceanside has been allowed to illegally benefit from said deprivation, and such ill gained fortune cannot be allowed to continue; to pursue that end, County should be compelled to enforce the Development Agreement to the fullest extent. B. Declaratory Rulings a. Oceanside's Noncompliance with Ordinances Planning Director determined that "interpretation of the Ordinances' conditions as applied to the Project" is within his authority, including whether Oceanside has complied with such conditions. See ROA at 894-906; ROA 105 at 383-95. Notably, Planning Director concluded that the Ordinances require Oceanside to construct the Makai Halekii Extension and the Connector Road to dedicable standards and to dedicate them to the County. See ROA at 894- 4 See Hokulia,Breathing Room with a View,https://hokulia.com/. 878079 906; ROA 105 at 383-95. To that end, Planning Director found that Oceanside has not complied with the conditions. See ROA at 904-905; ROA 105 at 392-93. Specifically, Oceanside "has not fully satisfied the Ordinances' roadway improvement and dedication requirements because the Makai Halekii Extension and Connector Road have not been dedicated to the County."See ROA at 906; ROA 105 at 393. As such, Planning Director concluded that Oceanside "must construct the Makai Halekii Extension and Connector Road to a condition approved by the [Department of Public Works] and dedicate the Makai Halekii Extension and Connector Road to the County" in order to satisfy the Ordinances' conditions. Id. b. Ordinances Cannot Be Amended By Variance Planning Director issued a declaratory order that variances may provide relief only from the requirements of Chapter 23 of the Hawaii County Code. See ROA at 904; ROA 105 at 394. Variances cannot amend existing ordinances, such as the Ordinances incorporated into the Development Agreement at issue. See id. As such, Planning Director concluded that Variance 10-027 "cannot and does not" amend the Ordinances. See id. c. Issues Beyond Planning Director's Authority In his Declaratory Order on Coupe Petition ("Coupe Declaratory Order"), Planning Director determined that he and Planning Department had no authority over the following issues. d. Interpretation of the Development Agreement Planning Director confirmed that he has no authority to interpret the Development Agreement because the Development Agreement is not a Planning Department order See ROA at 901-02; ROA 105 at 390. Accordingly, Planning Director also concluded that he lacks authority to determine breaches of the Development Agreement to the extent that interpretation of the 878079 Development Agreement is required to determine whether it has been breached. See ROA at 901-02; ROA 105 at 390. Specifically, Planning Director determined that he and Planning Department lack authority to interpret the roadways' dedication requirements and construction standards as set forth in the Development Agreement. See ROA at 901-02; ROA 105 at 390. e. Validity of Variance 10-027 Planning Director declined to review the validity of Variance 10-027, specifically regarding whether Oceanside's application for Variance 10-027 complied with the applicable rules and laws. See ROA at 901-02; ROA 105 at 390. He also declined to analyze and issue a decision on the due process requirements for the application for a variance, and whether Intervenor's constitutional due process rights were violated in connection with Oceanside's application for Variance 10-027. See ROA at 901-02; ROA 105 at 390. f. Lawfulness of Resolution No. 317-12 Planning Director acknowledges that he lacks authority to review the lawfulness of Resolution No. 317-12, which "effectively dedicated" the Mauka Halekii Extension, because it is a legislative act and not a Department order. See ROA at 905. C. Conclusion of Declaratory Ruling Process With the issuance of Planning Director's Declaratory Orders, the declaratory ruling process has concluded as to the issues over which Planning Director determined that he and Planning Department do not have authority to decide. D. Oceanside's Appeals to BOA Oceanside filed two separate appeals to the BOA: one for the declaratory ruling issued on the Coupe Petition and one for the declaratory ruling issued on the Oceanside Petition. In its appeal of Coupe Declaratory Order, Oceanside argues that Planning Director erred: (1) in 878079 ruling that the Ordinances require the dedication of the Mauka Halekii Extension, Makai Halekii Extension, and Connector Road; (2) to the extent that he qualified the dedication of the Mauka Halekii Extension through Resolution No. 317-12; (3) in ruling that the subdivision agreements between County and 1250 Partners have not been satisfied; and (4) to the extent that he ruled that the Makai Halekii Extension and Connector Road have not been constructed as required under the Ordinances. See ROA at 975-2259. In its appeal of Oceanside Declaratory Order, Oceanside argues that Planning Director erred: (1) by not issuing a ruling on the Ordinances' requirements regarding the dedication and construction standards of the Mauka Halekii Extension, Makai Halekii Extension, and Connector Road; (2) by not ruling on whether a roadway subject to a variance may be in compliance with the County Code's requirements; (3) by not issuing his interpretations of provisions of the County Code as of a specific date as Oceanside requested; (4)by not issuing his interpretation of the Development Agreement; (5) in ruling that the Ordinances require the dedication of the Mauka Halekii Extension, Makai Halekii Extension, and Connector Road; (6) to the extent that Planning Director qualified the dedication of the Mauka Halekii Extension; (7) in ruling that the subdivision agreements between the County and 1250 Partners have not been satisfied; (8) to the extent that he rule that the Makai Halekii Extension and Connector Road have not been constructed as required under the Ordinances; and (9) by sua sponte issuing declaratory rulings that were not requested by Oceanside. See ROA 105 at 383-395. E. Interest of Intervenor. For decades, Intervenor and their family members have owned the property described as TMK (3)8-1-7:045 (the "Property"), which is directly adjacent to Hokulia's southern boundary. In 2000, Oceanside directed county to condemn land from Intervenor for Hokulia's roadway 878079 requirements. County followed suit and sued Intervenor. After seven years, and a six-week trial, Judge Ibarra found that County's condemnation, at the direction of Oceanside, was unconstitutional. County did not appeal that decision, but relied on a clean-up condemnation lawsuit to acquire the lands for Hokulia's road. In that case, Judge Ibarra ordered just compensation and damages and attorneys' fees to Intervenor well in excess of Oceanside's earlier offer. And, the cost of that trial, just compensation, and damages was borne by the County, not Oceanside. Intervenor, not Oceanside nor any of their witnesses, has been involved with these lands before Oceanside's failed promises, bankruptcy, and loan defaults. In that, Intervenor is uniquely in a position to supplement the County's position, and submits this Prehearing Brief in order to further substantiate County's position against Oceanside's appeal. This Board of Appeals should ultimately determine that Oceanside's arguments, in both PL-BOA-2024-104 and PL-BOA-2024-105, are unpersuasive. III. APPEAL STANDARD OF REVIEW An appeal to the BOA may only be sustained if the board finds that: (1) the director erred in its decision or is clearly erroneous in view of the reliable probative, and substantial evidence on the whole record; or (2) the decision violated the Code or other applicable law; or (3) the decision was arbitrary or capricious or characterized by an abuse of discretion or clearly unwarranted exercise of discretion." "A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential element of a cause of action or defense asserted by the parties." Nozawa v. Operating Eng'rs Local Union No. 3, 142 Hawaii 331, 342, 418 P.3d 1187, 1198 (2018). Facts determined by the Director are reviewed under the "clearly erroneous" legal standard. Under this standard a fact is only "clearly erroneous" if "either the record lacks substantial evidence to support the finding, or evidence exists to support the finding, but [the Board] is left with the 878079 definite and firm conviction in reviewing the entire evidence that a mistake has been committed." Uyeda v. Schermer, 144 Hawaii 163, 170 439 P.3d 115, 122 (2019). The "arbitrary and capricious" standard is synonymous with the "abuse of discretion" standard. Under these standards, there need only be "rational foundation" for an action of the Director; this means that the actions of the Director must be upheld as long as there is rational connection between the facts found and the conclusions drawn from those facts. Motor Vehicle Mfgrs. Ass'n v. State Farm Mud. Auto. Ins. Co., 463 U.S. 29, 4243 (1983). The party challenging the Director's action bears the burden of proof, including the burden of producing evidence and burden of persuasion. See Hawaii Revised Statutes § 91-10(5); BOA Rules § 8-11(g). IV. ANALYSIS PL-BOA-2024-000104 A. The Planning Director Correctly Determined that the Incorporated Ordinances Require the Dedication of the Mauka Haleki'i Extension, Makai Haleki'i Extension and Connector Road. Oceanside challenges the Director's ruling pertaining to the dedication of the Required Public Roads to the extent that Oceanside believe Ordinance No. 96-7 does not require such dedication. This seems to be a deliberate misreading of the ruling, to an unclear end. The Planning Director wisely states, "[t]aken in their entirety, the Ordinances' roadway and public access requirements expressly required the Mauka Halekii Extension, Makai Halekii Extension and Connector Road be dedicated to the County." Oceanside tries to confuse the issue and muddy the waters by bifurcating the Incorporated Ordinances into two separate obligations: Ordinance 96-7 and Ordinance 96-8. 878079 It is not entirely clear as to what end Oceanside sees to this, because it is abundantly clear that Oceanside understands that the Required Public Roads MUST be dedicated to the County. This obligation has been acknowledged and agreed to on multiple occasions, since as far back as 1999 (e.g. the "subdivision agreements"). See Intervener Exhibit "2"; County Exhibit "E". Oceanside once again acknowledged this requirement (for the Halekii Extension) in a Settlement Agreement dated, March 2006, stemming from Kelly, Et Al. v. 1250 Oceanside Partners, which states that "Oceanside confirms that the Halekii Street Extension is to be dedicated to the County, and Oceanside agrees to grant a public access easement over that portion of F Road which connects the Halekii Street Extension to the Shoreline Park.' Even as recently as 2023, Oceanside has reaffirmed that it is required to dedicate the Required Public Roads in attempting to amend the Incorporated Ordinances to exclude the dedication requirement. See Intervenor Exhibit "5" at 94-111. It is clear that "the Ordinances' roadway and public access requirements expressly required the Mauka Halekii Extension, Makai Halekii Extension and Connector Road be dedicated to the County." What is unclear is why Oceanside now tries to undermine its obligated to do so. B. Planning Director Correctly Qualified the Dedication of the Mauka Haleki`_i Extension. The Planning Director wisely qualified his ruling regarding the Mauka Haleki`i Extension by saying that "filo the extent the Mauka Haleki`i 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." ROA at 905. This Oceanside also expressly agreed in the Kelly Settlement that"there will be no gate on the Halekii Street Extension",which was another obligation that they have not adhered to.See Interventor Exhibit"4"at 43-45. While this issue was not addressed by the Orders,it is just another example of Oceanside's marked lack of adherence to its known obligations. 878079 qualification is due to the fact that the Mauka Haleki`i Extension was not effectively dedicated. This fact was made evident in Intervenor's Circuit Court Complaint. Intervenor's Exhibit"4". Hawaii County Code § 23-86(b) requires that dedicable streets "shall be constructed in accordance with the specifications in this section and those on file with the department of public works." In addition, dedicable streets "shall be installed under the supervision of the director of public works and to permanent grades approved by him." Upon information and belief, the Mauka Haleki`i Extension (1) was not "constructed in accordance" with the specifications "on file with the department of public works," and (2) was not"installed under the supervision of the director of public works[.]" This very fact is confirmed by the Planning Director Leithead Todd's issuance of Variance 10-027 (the "Variance")6 on January 31, 2011, where she states that: "It should be noted that the extension of Haleki`i Street has been completed without full right-of-way improvements per construction plans approved by the Department of Public Works." ROA at 2244-51. Further, and perhaps more damning, upon information and belief, the Mauka Haleki`i Extension was not constructed to the Department of Public Work's standard, nor was it based upon detailed plans and specifications approved by the Chief Engineer of the Department of Public Works, as had been represented and as is expressly required under County Code. Further, it does not seem likely that the director of DPW supervised the construction of the Mauka Haleki`i Extension to ensure that it met County standards, prior to its dedication. All of which are requirements for dedicable streets under Section 23-86 of the County Code. In fact, Ben Ishii, Chief Engineer for DPW wrote in a Memorandum dated January 5, 2011 to the Planning 6 There are additional issues to the legality of the Variance,outside of Director's jurisdiction,that have been raised in the Circuit Court.See Intervenor Exhibit"4". 878079 Director that DPW objected to the issuance of a variance from 23-86 and 23-95. Intervenor Exhibit"4" at 33-34. The Mauka Haleki`i Extension was built in the early 2000's, before Oceanside in its current iteration, far before this current County administration, before Ordinance 08-59 was implemented to allow the opening of the road to the public, and before the importance of Mauka Haleki`i Extension as a secondary arterial road was even considered. Importantly, the Variance sought to "permit[] the retention of existing" roadways within Hokulia which were not built to County dedicable standard. This included, but was not limited to, the Mauka Halekii Extension. The Variance, already lacking in merit as indicated above, also once again highlights the fact that the Mauka Haleki`i Extension was not legally dedicated to the County. The fact that an after-the-fact variance was requested for the Mauka Haleki`i Extension's substandard condition all but proves that the roadway was neither "constructed in accordance with the specifications in [Section 23-86] and those on file with the department of public works" nor was it "installed under the supervision of the director of public works and to permanent grades approved by him." After all, if the Mauka Haleki`i Extension had been constructed and supervised to dedicable standard, it would not have needed a variance in order to be "dedicable". It is therefore unlikely, if not impossible, for the Department of Public Works to have provided specifications before construction as well as supervision during construction of the Mauka Haleki`i Extension in the form in which it was "dedicated" (as a secondary arterial). However, as the Planning Director notes, he lacks jurisdiction to review or affirm past Planning Department actions and to rule on actions by DPW or the County Council. This is precisely the reason why this issue was first raised in the Circuit Court. The fact that the 878079 Planning Director acknowledges and agrees that this issue was outside of his jurisdiction, does much and more about validating Intevernor's initial, Circuit Court action. C. Planning Director Correctly Ruled that the Subdivision Agreements Between the County and 1250 Partners Has Not Been Satisfied. Planning Director wisely notes that the County's "issuance of final subdivision approval based on constructions assurances provided in the agreements and secured by bonds," but the "agreements have not been satisfied and the bonds are no longer valid or enforceable." Oceanside claims this ruling to be "clearly erroneous and in violation of the law" because it is "based upon an inaccurate, incomplete, and misleading factual history regarding the subdivision agreements and bonds," but fails to provide any evidence to support that claim. While we are not privy to many of these "subdivision agreements", an April 29, 2010 letter from Licoln S.T. Ashida, who was then Corporation Counsel of the County of Hawaii ("Ashida Letter"), clearly states that many of the obligations of the "subdivision agreements", entered into between Oceanside and the County, "subdivision improvements are not yet complete, despite the December 31, 2001 deadline for completion." Intervenor was able to attain access to one of the listed"subdivision agreement"mentioned in the Ashida Letter, the Roadway Maintenance Agreement, dated September 16, 1999. Intervenor Exhibit"3". The Roadway Maintenance Agreement, expressly acknowledges that "Oceanside is required to dedicate the roadway improvements [(the Mauka and Makai Haleki`i Extensions and Connector Road "C")] to the County." Intervenor Exhibit "3". This agreement sought to create a maintenance obligation over the Haleki`i Extensions and Connector Road "C" for a period of five (5) years after dedication. not a discharge of Oceanside's requirement to dedicate (if it had been or operated as such. Id. On September 10, 1999, the DPW informed the Planning Department that the construction plans relating to the Required Public Roads "does not include 878079 full width shoulders and swales, it is conditional upon the approval of [the] Maintenance Agreement, accompanied by a separate bond in the amount of $1,635,000." Intervenor Exhibit «1„ The Roadway Maintenance Agreement was crafted "as a prerequisite of dedication of the roadway improvements" and required that "OCEANSIDE shall complete and formally agree to maintain such landscaping and other facilities and to secure such obligation with a good and sufficient surety bond." Id. However, as has been the issue for over twenty-five years, the dedication was not, and has not been, effectuated to this date. This is no mere coincidence. The operative point with respect to Oceanside's position on the dedication of the Mauka Halekii Street, Makai Halekii Street, and Connector Road "C" is that it cannot dedicate these roadways to the County and still maintain the economic viability of the Hokulia project. Simply put, whether the roadway has been constructed to dedicable or non-dedicable standards, Oceanside (contrary to its clear obligations) cannot and will not willingly dedicate these roads to the County of Hawaii. Compounding this fact, the surety bond that was issued as security for this obligation has long since expired. See County Exhibit "E". In addition, Oceanside was to record, in its Declaration of Covenants, Conditions, and Restrictions ("CC&R"), that"the association of lot owners within the Subdivision [] maintain the landscaped areas and facilities within the roadways" and that "[s]aid maintenance shall include, but shall not be limited to, grass cutting, pruning of trees and shrubbery, repair and/or backfilling of any and all rutted or scoured areas, and periodic grading and landscaping of the shoulders to ensure that there is adequate drainage in the event that there is an accumulation of soil runoff within the shoulder and swale areas and within any drainage facilities." Intervenor Exhibit "3". Oceanside objectively failed to adhere to these terms. 878079 First, Oceanside's CC&Rs state that they "shall not be interpreted to require the Association to dedicate the Roadways to the Hawaii County" which was clearly not the intention of the "subdivision agreements", here, the Roadway Maintenance Agreement. Second, the required language as to the specific maintenance requirements was not included in the CC&Rs. Rather than acknowledge its known dedication obligation, the 1999 CC&Rs drafted by Oceanside and recorded with the State of Hawaii, basically dupes the homeowners into believing that the "Association" controls whether the roadways are to be dedicated to the County or remain private, which is contrary to the Incorporated Ordinances and the Road Maintenance Agreement. While this is only one example of Oceanside's failure to adhere to the "subdivision agreements," the Ashida Letter (to be discussed in the following Section), further explains that a multitude of the other "subdivision agreements" were also breached. Thus, it is clear that the Director made a well-reasoned conclusion in determining that the relevant agreements have not been adhered to. D. The Planning Director Correctly Ruled that the Makai Haleki`i Extension and Connector Road Have Not Been Constructed as Required Under the Incorporated Ordinances. The provisions of Condition L of Ordinance 96-7 and Condition M of Ordinance 96-8, expressly state that Oceanside was to "construct the [Haleki`i Extensions] through the subject property . . . which phasing of improvements shall be approved by the Department of Public Works" and to "provide the [Connector Road]. . . to provide future connections between the subject property and the adjacent properties to the north and south . . . provided that such stub- outs shall be constructed in accordance with the construction phasing as approved by the Department of Public Works." In addition, Condition M of Ordinance 96-8 requires that "[a]ll Not only did the Development Agreement incorporate the Incorporated Ordinances by reference,but Section 16 of the Development Agreement expressly requires that Oceanside"provide roadway stub-outs . . .to provide future connections between the Property and its adjacent north and south boundaries." 878079 roadway improvements stated in Condition L of this ordinance shall be dedicated to the County of Hawaii." Oceanside latches on to language within the Incorporated Ordinances, which states that "phasing of improvements shall be approved by the Department of Public Works" in efforts to argue that they have fully complied with the construction obligations under the Incorporated Ordinances. First, the "construction phasing approv[al] of the Department of Public Works" is not the only construction condition set out by the Incorporated Ordinances. Hawai`i County Code § 23- 10 provides that the County"shall not . . . receive by dedication . . . any street in any subdivision . . . except in full compliance with the provisions of this chapter." The Incorporated Ordinances made clear that the Required Public Roads needed to be dedicated to the County. In other words, Oceanside is required to construct the Required Public Roads, AND dedicate those roads to and for the benefit of the County and its citizens (including the Intervenor). In order to properly dedicate these roads, they must be constructed in full compliance with the requirements of the Hawai`i County Code. Oceanside has repeatedly admitted that the Required Public Roads have not and are not built to the County's dedicable standards; this in and of itself is a failure of the Incorporated Ordinance's construction requirements. For example, on January 23, 2020, Oceanside sought amendment to Condition M of Ordinance No. 96-8, stating that the Required Public Roads "were constructed in 1999, based on non-dedicable roadway design." Intervenor Exhibit"5" at 94-95. Oceanside again admits to this deficiency in a letter dated March 3, 2023, and that rather than dedicate the two roadways the county should allow them "to remain in private ownership, based 878079 on the current `as-built' construction, without improving the roadways to a County-dedicable standard." Intervenor Exhibit "5" at 103-104. Because Condition M calls for dedication of the roads, it would be nonsensical for Condition L's requirement to "construct" the Haleki`i Extensions or to "provide" the Connector Road"C"to call for anything but the minimum of dedicable county standards. Though Condition L does give the Department of Public Works ("DPW") limited oversight as to phasing of improvements, it does not give the DPW any leeway (at that time) over the standards to which Haleki`i Street was to be built. The DPW's approval authority was limited to only the phasing of the construction, because the specific standards to which the Required Public Roads were to be built is clear and affords no discretionary leeway: roads that are to be dedicated MUST be constructed to dedicable County standards. Second, the DPW only granted limited and conditional approval to the phasing of the Required Public Roads. Even if the DPW somehow had the ability to waive dedicable construction standards, the Ashida Letter makes clear that the DPW only granted "approval" of the phasing of the Required Public Roads due to auxiliary deals entered into between Oceanside and the County (i.e. the "subdivision agreements"). These auxiliary deals required Oceanside to "complete construction of utilities improvements (such as roads, drainage structures, sewer system, and potable water systems) in accordance with construction plans and specifications approved by the Planning Department" and was secured by bonds to ensure various obligations under such agreements. County Exhibit "E". The agreed upon improvements were not completed despite a "December 31, 2001 deadline for completion" and the bonds are no longer valid or enforceable. Id. 878079 Thus, not only has Oceanside failed to comply with constructing the Required Public Roads to dedicable standards, but they have also failed to comply with the conditional approvals required for phasing of the Required Public Roads. Therefore, it cannot be said that Oceanside has adhered to its construction obligations under the Incorporated Ordinances, and the Director validly concluded just that. PL-BOA-2024-000105 A. Planning Director Correctly Determined that He Lacked Jurisdiction AND Correctly Issued Rulings to Issues that Were Within his Jurisdiction. Oceanside argues that the Planning Director failed to render declaratory rulings on Dedication Requirement Requests 1 & 2, Construction Standards Request 1, 2, & 5, and Variances Under Chapter 23 Request 3, 4, and 5. This is clearly untrue. Planning Director expressly answered Dedication Requirement Requests 1 & 2 by stating 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 be dedicated to the County." ROA 105 at 393. This was a direct response to both Dedication Requirement Requests 1 & 2 as they expressly requested whether or not the Incorporated Ordinances required dedication of the Required Public Roads; the Director responded that the Incorporated Ordinances required dedication, full stop. In addition, the Planning Director answered Construction Standards Request 1, 2, & 5, which generally asked whether the Required Public Roads had been built to standard, by ruling that, while "the Ordinances' roadway improvement conditions were initially satisfied by the Original Developer's agreements and bonds pursuant to HCC § § 23-81, 23-82, and 23-83, which allowed the issuance of final subdivision approval based on the construction assurances provided in the agreements and secured by the bonds[,] [t]he agreements have not been satisfied and the 878079 bonds are no longer valid or enforceable." ROA 105 at 393; see also County Exhibit "E". The Director determined that these "subdivision agreements" generally allowed the roads to be temporarily built in subpar standards on the express condition that certain obligations were met and satisfied; Oceanside failed to meet those obligations. See County Exhibit "E". Now, due to those very failures, "[i]n order to comply with the Ordinances, Oceanside must construct the Makai Halekii Extension and Connector Road to a condition approved by DPW and dedicate the Makai Halekii Extension and Connector Road to the County." ROA 105 at 393. The Planning Director's was clearly responsive to Oceanside's construction related questions. Finally, the Planning Director answered, Variances Under Chapter 23 Request 3, 4, and 5 by stating that "a Chapter 23-variance cannot and does not: (a) extinguish the authority of DPW to set standards for or make determines regarding street construction standards; or (b) usurp Council's authority to accept or reject the dedication of public infrastructure subject to the DPW Director's approval." This will be further addressed below as Oceanside has directly challenged Director's answer regarding these requests, by claiming that they never asked for them. However, disagreeing with the answers you receive does not mean that you did not ask the questions that lead to them. Oceanside seemingly has stuck its head in the sand as to avoid answers that they do not appreciate. This, of course, does not mean that their questions have not been answered. The Planning Director ruled correctly on the requests cited to above. B. Planning Director Correctly Ruled that Certain Request Sought Review of Prior Agency Action Oceanside argues that The Planning Director should have issued rulings as to certain requests made in regard to the Variance. The declaratory ruling procedure is one "whereby an interested party could seek agency advice as to how a statute, agency rule, or order would apply 878079 to particular circumstances not yet determined." Citizens Against Reckless Development v. Zoning Board of Appeals of the City and County of Honolulu ("CARD"), 114 Hawaii 184, 197, 159 P.3d 143, 156 (2007). "[T]he declaratory ruling procedure was not intended to be utilized to seek review of agency determinations that have already been made and which have not been timely appealed." Id., 114 Hawaii at 196, 159 P.3d at 155. Further "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 brought into consideration."Id., 114 Hawaii at 194-95, 159 P.3d at 153-54. Oceanside's variance requests retroactively seeking determinations and applications of laws pertaining to variances in "January of 31, 2011" were irrelevant and untimely. ROA at 975- 2259. These thinly veiled attempts to seek application of laws to prior agency action (i.e. the Variance), fools no one. It is clear that Oceanside is attempting to attain determinations as to the Variance's legality. In any event, efforts to apply laws pertaining to variances in January 31, 2011, seeks determinations and application of outdated and irrelevant law, which is clearly not in line with the spirit and legal authority of the declaratory ruling process. This is not the proper forum to attain such determinations, and is precisely why these issues were raised in Inteivenor's Circuit Court Complaint. See Intervenor Exhibit "4". C. The Planning Director Correctly Ruled that He Cannot Issue Declaratory Rulings on Interpretations of the Development Agreement. Haw. Rev. Stat. § 91-8 states that an interested person may petition an agency for "a declaratory order as to the applicability of any statutory provision or of any rule or order of the agency." Rule 3.1(a) of the Planning Departments Rules of Practice and Procedure ("Planning Rules") is clear that declaratory orders can be issued as to "the applicability of any statutory provision, ordinance, or any rule or order of the Director or the Department." Thus, the HRS 878079 and Planning Rules limit the authority of the Planning Director to issue declaratory orders only for specific applications of law, one of which is "any rule or order of the agency" (under the HRS) or "any rule or order of the Director or the Department" (under the Planning Rules). This is a limited scope of authority. The requests at issue in this Section do not pertain to any rule or order of the Planning Department. Hawaii County Code § 30-3 states that a development agreement "means a written agreement for specified periods of time." In other words, and for all intents and purposes, the Development Agreement itself is simply a"written agreement" and is neither a rule nor an order of the Director or Department that can validly be subject to the declaratory ruling process as limited prescribed under the HRS and the Planning Rules. Oceanside unconvincingly argues that the Planning Director,pursuant to Mayor Rule 1-8, should have made determinations as to Dedication Requirement Question 3 and Construction Standards Questions 3, 4, and 6. Oceanside claims that because Mayor Rule 1-8 states that the Planning Department "shall be responsible for the overall administration of the [Development] Agreement," the Director is empowered to issue declaratory rulings as to interpretations of a development agreement. This is simply unfounded. First, this goes against the limited authority of the Director to issue declaratory rulings, as stated above. Second, while Mayor Rule 1-8 prescribes the Department with the "overall administration of the development agreement", the questions presented by Oceanside in regards to the Development Agreement (Dedication Requirement Request 3, Construction Standards Question 3, 4, and 6)pertain to material breaches of a Development Agreement . Hawaii County Code § 30-6 maintains that the mayor, whose actions may not be reviewed by the Board of 878079 Appeals, and not the Planning Director, is charged with determining material breaches of a development agreement. Again, this express lack of authority is why Intervenor brought these very issues to the proper forum, the Circuit Court.8 Planning Director rightfully determined that certain requests related to the Development Agreement were outside of his jurisdiction pertaining to declaratory rulings. D. The Planning Director Correctly Determined that the Incorporated Ordinances Require the Dedication of the Mauka Haleki'i Extension, Makai Haleki'i Extension and Connector Road. SEE BOA 104, Section A, as analysis there deals with the exact same ruling. E. The Planning Director Correctly Qualified his Ruling Pertaining to the Dedication of the Mauka Halekii Extension. SEE BOA 104, Section B, as analysis there deals with the exact same ruling. F. The Planning Director Correctly Ruled that the Subdivision Agreements between the County and 1250 Partners Have Not Been Satisfied. SEE BOA 104, Section C, as analysis there deals with the exact same ruling. G. The Planning Director Correctly Ruled that the Makai Halekii Extension and Connector Road Have not Been Constructed as Required Under the Ordinances. SEE BOA 104, Section D, as analysis there deals with the exact same ruling. H. The Planning Director Correctly Ruled upon the "Applicability of the Variance." Oceanside claims that their Petition "did not request the Planning Director to issue declaratory ruling on these issues, including whether the Variance excused or amended the 8 This is why the Intervenor initially brought this issue to the Circuit Court, and were initially shocked to find themselves in this administrative process over the primary jurisdiction doctrine,as said doctrine"does not apply where a pure question of law is at issue and technical matters calling for the special competence of the administrative expert are not involved."Aged Hawaiians v.Hawaiian Homes Comm'n,78 Haw. 192,202, 891 P.2d 279,289(1995). 878079 conditions imposed under the Ordinances, or whether the Variance extinguished or usurped the roles played by DPW and the County Council in the dedication process." They then alleged that the Planning Director could not sua sponte issue declaratory rulings that were not requested by Oceanside. However, the Planning Director's Order was clearly responsive. While the Planning Director wisely declined to address any and all questions retroactively seeking determination (i.e. "Variances Under Chapter 23" Request 1 and 2, as well as "Variance Applications" Request 1-5), he directly addressed, and expressly noted, that "Variances Under Chapter 23", Questions 3, 4, and 5 cite a specific ordinance and request application to a specific set of facts." The Planning Director determined that even if "a roadway subject to a variance is otherwise in full compliance with Chapter 23", the County CANNOT "accept dedication of the roadway under Section 23-10 of the Hawaii County Code" if other conditions have been set and not met under ordinances or some other statute/law. This is a direct response to "Variances Under Chapter 23" Request (3) (asking if"a roadway subject to a properly granted variance from Sections 23-86 and 23-95 of the Hawaii County Code [can] be in full compliance with Chapter 23"), Request (4) (seeking determination as to whether or not "if a roadway subject to a variance is otherwise in full compliance with Chapter 23, can the County accept dedication of the roadway under Section 23-10 of the Hawaii County Code"), and Request (5) (asking "[c]an a roadway subject to a variance from Sections 23-86 and 23-95 of the Hawaii County Code be dedicated under Section 23-10 of the Hawaii County Code"). To put in simply, Oceanside requested whether or not a variance can exculpate a developer from any and all responsibilities related to the construction and dedication of a roadway; the Director wisely answered "no". The Planning Director found that while variances 878079 can be granted from the Subdivision Code's requirements, they cannot exculpate all requirements for dedication (i.e. those set by ordinance). Thus, the Planning Director was simply addressing questions presented by Oceanside, and did not issue a declaratory ruling sue sponte. Specifically, Oceanside requested answers as to how variances effect dedication requirements, and the Planning Director kindly provided them an answer. Oceanside cannot now, after an unfavorable answer, attempt to claim that they never asked a question. V. CONCLUSION For the foregoing reason, the BOA should uphold the Declaratory Order issued by the Planning Director in both BOA-2024-000105 and BOA-2024-000104. DATED: Honolulu, Hawaii, October 4, 2024. DAMON KEY LEONG KUPCHAK HASTERT Is/Toren K. Yamamoto KENNETH R. KUPCHAK MARK M. MURAKAMI TOREN K. YAMAMOTO Attorneys for Intervenor C & J FAMILY PARTNERSHIP 878079