HomeMy WebLinkAbout2024-10-04 Planning Director Pre-Hearing Brief (PL-BOA-2024-000104 & 105) DeVera, Ashley
From: Watanabe, Kelsey
Sent: Friday, October 4, 2024 4:24 PM
To: Planning Board of Appeals
Cc: Bailey, Elizabeth B.; Kern, Zendo
Subject: 1250 Oceanside LLC - PL-BOA-2024-000104 & PL-BOA-2024-000105
Attachments: 2024-10-04 Final 1250 Pre-Hearing Brief.pdf
Good Afternoon,
Please find attached Pre-Hearing brief for both cases mentioned above.
- Director of the Planning Department, County of Hawaii's Pre-Hearing Brief; Certificate of Service
Please process at your earliest convenience; no hard copy to follow.
Thank you,
Kelsey
Ke l4ey W atcw►.a lrni
Legal Technician Ito
E. Britt Bailey, Deputy Corporation Counsel
Sherilyn K. Tavares, Deputy Corporation Counsel
Inha Kandatsu Kang, Deputy Corporation Counsel and
Corporation Counsel Training Coordinator
Office of Corporation Counsel
101 Aupuni Street, Suite 325
Hilo, HI 96720
Phone (808) 961-8251
Fax (808) 961-8622
1
ELIZABETH A. STRANCE 4715
Corporation Counsel
E. BRITT BAILEY 9814
JEAN K. CAMPBELL 7424
Deputies Corporation Counsel
Office of the Corporation Counsel
County of Hawai`i
101 Aupuni Street, Suite 325
Hilo, Hawai`i 96720
Telephone: (808) 961-8251
Facsimile: (808) 961-8622
E-Mail: ElizabethB.Bailey@hawaiicounty.gov
Attorneys for
COUNTY OF HAWAII PLANNING DIRECTOR
BEFORE THE BOARD OF APPEALS
COUNTY OF HAWAI`I
STATE OF HAWAII
In the Matter of Appeal CASE NOS. PL-BOA-2024-000104 &
PL-BOA-2024-000105
of
DIRECTOR OF THE PLANNING
1250 OCEANSIDE, LLC DEPARTMENT, COUNTY OF HAWAI`I'S
PRE-HEARING BRIEF; CERTIFICATE OF
From the decisions of the Planning Director, SERVICE
dated April 29, 2024 (Docket Nos. 24-0001 &
24-0002)
Hearing
Date: October 11, 2024
DIRECTOR OF THE PLANNING DEPARTMENT,
COUNTY OF HAWAII'S PRE-HEARING BRIEF
I. SUMMARY
The Director of the County of Hawai`i ("County") Planning Department, Zendo Kern
("Director") properly responded to the questions and/or requests posed in the Petitions for
1
Declaratory Rulings in both PL-BOA-2024-000104 and PL-BOA-2024-000105. The resulting
Declaratory Orders, Docket Nos. 24-0001 and 24-0002, should be affirmed.
II. BACKGROUND FACTS
A. Brief Summary of the Project
Hokuli`a is a master-planned community located in Kealakekua, Hawaii ("Project")
originally developed by 1250 Oceanside Partners ("Original Developer"). On January 15, 1996, the
Original Developer obtained two ordinances, County of Hawaii Ordinance Nos. 96-7 and 96-8
(collectively, "Ordinances"), for the rezoning of 1550 acres to allow for the development of the
Project. The Ordinances rezoned the Project property to Agricultural 1-acre, subject to various
conditions, some of which are the focus of these appeals.
Following enactment of the Ordinances on January 15, 1996, the Original Developer
entered into a Development Agreement with the County, dated April 20, 1998 ("Development
Agreement"). It set forth, inter alia,requirements relating to the acquisition of land,the construction
of a bypass road,the development of a shoreline park, and the donation of a permanent right-of-way
to the park. In consideration, the Original Developer was granted the right to develop the Project in
accordance with the Ordinances and other approvals in force as of the date of the Development
Agreement. In other words, the Ordinances and other land use regulations applicable to the Project
were "locked in" as of the date of the Development Agreement for a period of thirty years.
As permitted by Hawaii County Code ("HCC") § 23-81 (1983), the Ordinances allowed
the Original Developer to enter into an agreement with the County assuring the County the
improvements would be constructed, provided the Original Developer post an appropriate bond,
surety or other security deemed acceptable to the County. Upon the execution of such agreement
and the deposit of the security with the County, final subdivision approval would be granted prior to
2
the actual construction of improvements. Furthermore, the Development Agreement required the
Original Developer to post a bond in favor of the County to assure that the improvements relating to
various roadway requirements, found in the Ordinances, would be constructed prior to the issuance
of the first final small-lot subdivision approval for any portion of the Project. Development
Agreement § 13(b).
The Original Developer entered into a series of agreements and posted bonds for various
portions of the required improvements. These included, inter alia, agreements for regional traffic
improvements, subdivision improvements, and road maintenance. Based on these agreements and
the bonds, the County issued final subdivision approval for Phase I of the Project on September 18,
1999, and Phase II on December 1, 2000. Portions of the covered improvements were constructed
by the Original Developer, but many were not completed within the deadlines set in the agreements.
On April 29, 2010, Corporation Counsel Lincoln Ashida wrote to the Original Developer
detailing the material breach of the Development Agreement and subdivision agreements due to the
failure to timely construct the required improvements and the invalidity of the bonds provided to the
County.
In 2012, 1250 Oceanside, LLC ("Appellant") acquired the Original Developer's
outstanding loans and took over the Project. Over the years, the Mamalahoa Bypass Road
("Bypass"), Haleki`i Street and portions of the subdivision improvements were constructed. The
property underlying the Bypass was conveyed to the County and the extension of Haleki'i Street to
the mauka side of the Bypass ("Mauka Haleki`i Extension") was accepted by the Hawai`i County
Council ("Council")through dedication. County Resolution No. 317-12, adopted November 9, 2012
("Resolution 317-12").
3
To date the extension of Haleki`i Street through the Property ("Makai Haleki`i Extension")
and the roadway stub-outs running north-south from the Makai Haleki`i Extension to the adjacent
north and south properties ("Connector Road") have not been dedicated to the County. The
dedications of the Makai Haleki`i Extension and the Connector Road as well as the standards to
which these roadways are built are the primary subject of the Director's Declaratory Orders and the
resulting appeals herein.
B. Brief Summary of Civil Action in Circuit Court
On March 31, 2023, C & J Coupe Family Limited Partnership ("Coupe" or"Intervenor"),
an adjacent landowner, filed suit in the Third Circuit Court, 3CCV-23-0000123, alleging that 1250
failed to comply with, and the County failed to enforce,the Ordinances,which require dedication of
the Makai Haleki`i Extension and the Connector Road. On September 15, 2023, the Circuit Court
ruled that Coupe was required to seek a formal determination,via declaratory order,from the County
Planning Director regarding 1250's compliance with the Ordinances and Development Agreement.
The parties agreed to stay the lawsuit pending the outcome of the administrative proceedings at the
County.
C. Declaratory Rulings; BOA Appeals
On February 7, 2024, Coupe submitted to the Director its Petition for Declaratory
Ruling and on March 27, 2024, filed its Supplement to Petition for Declaratory Ruling
(collectively, "Coupe Petition"). The Coupe Petition contains twenty-nine (29) separate requests
for declaratory rulings.
On February 27, 2024, 1250 submitted to the Director its Petition for Declaratory
Ruling ("1250 Petition"). The 1250 Petition contains twenty-four (24) separate requests for
declaratory rulings.
4
On April 29,2029,the Planning Director issued separate but similar Declaratory Orders
in response to the Coupe Petitions and the 1250 Petition (collectively "Declaratory Orders").
On May 28, 2024, 1250 filed the appeals herein of the Declaratory Orders. Coupe filed
petitions to intervene in each of the appeals,which were granted by this Board on August 9, 2024.
III. STANDARD OF REVIEW
Pursuant to Rule 8-4(4) of the Board of Appeals Rules of Practice and Procedure, in
order to modify or overturn the Director's final decision,this Board must find one of the following:
(1)the decision appealed from violates the law;
(2)the decision appealed from is clearly erroneous; or
(3) the decision appealed from is arbitrary or capricious, characterized by an abuse of
discretion or a clearly unwarranted exercise of discretion.
Without a finding of one of these three requirements, the Board must uphold the Director's
decision.
IV. ISSUES ON REVIEW BEFORE THIS BOARD
A. Whether the Director's Declaratory Rulings to Coupe's Requests Violate the Law,
Were Clearly Erroneous, Arbitrary or Capricious, and/or Constitute an Abuse of
Discretion (PL-BOA-2024-000104)
The Director's Declaratory Rulings responding to Coupe's Petition do not violate the law.
are not clearly erroneous, and do not constitute an abuse of discretion.
As stated above, Coupe petitioned the Director to provide declaratory rulings to twenty-
nine (29) requests. In the Appeal of the Director's Declaratory Order, 1250 alleges that the
Director, in issuing three of the declaratory rulings: 1) erred to the extent [the Director] ruled that
Ordinance 96-7 contains a dedication obligation, 2) abused his discretion and acted in arbitrarily
in qualifying the dedication of Mauka Haleki`i Extension, 3) violated the law and erred in
5
determining that the subdivision agreements for Phase I and Phase II have not been satisfied; and,
4) erred in declaring the Makai Haleki`i Extension and Connector Road are to be constructed to a
condition approved by the County's Department of Public Works ("DPW").1 1250, however,
provides little, if any, basis for its allegations on appeal.
The Director properly responded to the three declaratory requests, which pertain to the
design, construction, and dedication of Mauka Haleki`i Extension, Makai Haleki`i Extension and
the Connector Road as set forth in Ordinances 96-7 and 96-8.2 Specifically, the Director stated:
To the extent Initial Petition Question 4 and Supplemental Petition Questions 6 and 10
request an interpretation of the Ordinances' conditions as applied to the Project, those
questions are within the Director's authority.
Ordinance 96-7, Conditions M(4) and M( 5), require that"[p]rior to the issuance of Final
Subdivision Approval for any portion of subject property", the applicant shall "construct"
the Mauka Halekii Extension and Makai Halekii Extension and"provide" the Connector
Road, and the phasing of the same shall be approved by DPW.
Ordinance 96-7, Condition K, requires that, "prior to final subdivision approval, or any
land alteration activity,"a"final comprehensive public access plan shall be developed"and
include, inter alia, "public mauka- makai and lateral shoreline accesses."
Ordinance 96-7, Condition L,requires the right to public access and recreational use of the
Project's privately owned coastline park and trails be conveyed to the County by way of a
perpetual easement. Condition L specifically requires the applicant to retain fee simple
ownership of the shoreline park and,to the extent any roadway,trail or other rights-of-way
become deemed a public highway or trail under HRS Ch. 264, Condition L shall no longer
be applicable.
Ordinance 96-8, Conditions L(4)and L(5), also require the construction of certain roadway
improvements prior to the issuance of final subdivision approval for any portion of the
Project,including construction of the Mauka Haleki`i Extension,Makai Haleki`i Extension
1 As to the remaining twenty-six (26)requests within Coupe's Petition, these Declaratory
Rulings of the Director were not raised in this Appeal and are therefore deemed waived. Pele
Defense Fund v. Paty, 73 Haw. 578, 613 (1993).
2 Ordinances 96-7 and 96-8 established the zoning for the Project's approximate 1500-acre
master planned community. The Ordinances, in large respect, contain similar if not identical
conditions for the rezoning of the Project, and have been read together as applicable to the
entirety of the Project. See, e.g. County of Hawai`i v. C.&J. Coupe Family Ltd. P'ship, 124
Hawai`i 281, 302 (2010).
6
and the Connector Road. Ordinance 96-8, Condition M, requires all roadway
improvements stated in Ordinance 96-8, Condition L, be dedicated to the County.
Taken 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. Council accepted the dedication of the Mauka Haleki`i Extension
on November 9, 2012.
Council's acceptance of the Mauka Halekii Extension under Resolution 317-12 was a
legislative act which received input from DPW. The Director neither had nor has authority
over Resolution 317-12. To the extent the Mauka Halekii Extension was effectively
dedicated, such dedication adequately satisfied those portions of Ordinance 96-7,
Condition M(4), and Ordinance 96-8, Condition L(4), applicable to the Mauka Haleki`i
Extension.
As noted above, 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. The agreements have not
been satisfied and the bonds are no longer valid or enforceable. Thus, 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.
In order to comply with the Ordinances, Oceanside must construct the Makai Haleki`i
Extension and Connector Road to a condition approved by DPW and dedicate the Makai
Halekii Extension and Connector Road to the County.
PL-BOA-2024-000104, Record on Appeal ("ROA #104) at 903-905.
Although 1250 may disagree with the Director's Declaratory Rulings of Coupe's requests,
the Director's rulings are not in error, arbitrary, capricious, or in violation of the law. The Director
interpreted the conditions of Ordinances 96-7 and 96-8 as applied to the Project and properly and
accurately responded to the requests.
1250 asserts the Director erred in using qualifying language in ruling that the Mauka
Haleki`i Extension had effectively been dedicated. The Director's language does not constitute
error. Rather than qualifying the dedication of the Mauka Haleki`i Extension, the Director's
language recognized that the Council effected this action not the Planning Department. See
Planning Department, County of Hawai`i Rules of Practice and Procedure ("PRPP"), Rule 3.1
7
(stating the Director may issue a declaratory order as to the applicability of any statutory provision,
ordinance, or of any rule or order of the Director of the Department). In addition, the Director did
not err in ruling the Ordinances, taken together, require the Makai Haleki`i Extension and
Connector Road be constructed to a condition approved by the County's Department of Public
Works ("DPW"), and dedicated to the County. To the extent 1250 appeals the Director's
examination of the Ordinances "in their entirety,"any error would be harmless because 1250 must
comply with both Ordinances. Together, Ordinance 96-7 and Ordinance 96-8 directly state that the
Haleki`i Extension and the Connector Road must be constructed to a condition approved by DPW
and the roadways shall be dedicated to the appropriate government entity. To date,these roadways
have not received approval by DPW for dedication purposes nor have they been dedicated the
appropriate government entity. The declaratory rulings of the Director resulting from Coupe's
Petition should be affirmed.
B. Whether the Director's Declaratory Rulings to 1250's Requests Violate the Law,
Were Clearly Erroneous,Arbitrary or Capricious, and/or Constitute an Abuse
of Discretion (PL-BOA-2024-000105)
1250 petitioned the Director to provide declaratory rulings for twenty-four(24)requests
under five (5) separate topic headings (Dedication Requirements, Construction Standards,
Variances Under Chapter 23, Variance Applications, Dedication of Haleki`i Extension). 1250
alleges that several of the rulings of the Director are in error. However, as demonstrated below,
the Director's Declaratory Rulings to 1250's requests do not violate the law, are not clearly
erroneous, and do not constitute an abuse of discretion.
8
1. The Director Properly Provided Declaratory Rulings on the Requests Within His
Jurisdiction
The Director determined that the following requests were within his jurisdiction pursuant
to the PRPP Rule 3 because the requests cited to a specific ordinance and applied to the facts of
the case:
Dedication Requirements:
Request 1: Whether the express terms of Ordinance 96-7 require the
dedication of the Mauka Halekii Extension, Makai Haleki`i Extension, or
Connector Road?
Request 2: Whether the express terms of Ordinance 96-8 require the
dedication of the Mauka Halekii Extension, Makai Haleki`i Extension, or
Connector Road by a date certain or any milestone in the development of
Hokuli`a?
Construction Standards:
Request 1: Whether the express terms of the Ordinances set specific
construction standards to which the Mauka Haleki`i Extension, Makai
Haleki`i Extension, and Connector Road must be built to?
Request 2: Whether the express terms of the Ordinances require
compliance with Sections 23-86 and 23-95 of the Hawaii County Code
for the Halekii Extension, Makai Halekii Extension, and Connector
Road?
Request 5: Whether the express terms of the Ordinances prohibit
variances under Chapter 23 for the Haleki`i Extension, Makai Haleki`i
Extension, and Connector Road?
Variances Under Chapter 23:
Request 3: Can a roadway subject to a properly granted variance from
Sections 23-86 and 23-95 of the Hawaii County Code be in full
compliance with Chapter 23?
Request 4: 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 Hawai`i County Code?
Request 5: Can a roadway subject to a variance from Sections 23-86 and
9
23-95 of the Hawaii County Code be dedicated under Section 23-10 of
the Hawaii County Code?
PL-BOA-2024-000105, Record on Appeal ("ROA #105") at 391-392.
In responding to the above requests, the Director exercised the discretion granted to him
under PRPP Rule 3-1(a) and provided the following collective Declaratory Rulings:
Ordinance 96-7, Conditions M(4) and M(5), require that "[p]rior to the
issuance of Final Subdivision Approval for any portion of subject property", the
applicant shall "construct" the Mauka Halekii Extension and Makai Halekii
Extension and "provide" the Connector Road and the phasing of the same shall be
approved by the County's Department of Public Works ("DPW"). See Ordinance
96-7, at 15-16, attached hereto as Exhibit "B".
Ordinance 96-7, Condition K, requires that, "prior to final subdivision
approval, or any land alteration activity," a "final comprehensive public access plan
shall be developed" and include, inter alfa, public "mauka-makai and lateral
shoreline accesses". Ordinance 96-7, at 12-13 (Exhibit "B").
Ordinance 96-7, Condition L, requires the "right to public access and
recreational use of [the Project's] privately owned coastline park and trails" be
conveyed to the County "by way of a perpetual easement". Id., at 14. Condition L
specifically requires the applicant to retain fee simple ownership of the shoreline
park and, to the extent any roadway, trail or other rights-of-way become deemed a
public highway or trail under Haw. Rev. Stat. Ch. 264, Condition L shall no longer
be applicable. See id.
Ordinance 96-8, Conditions L(4) and L(5), also require the construction of
certain roadway improvements prior to the issuance of final subdivision approval
for any portion of the Project, including construction of the Mauka Halekii
Extension, Makai Halekii Extension and the Connector Road. See Ordinance 96-
8, at 24, attached hereto as Exhibit "C". Ordinance 96-8, Condition M, requires all
roadway improvements stated in Ordinance 96-8, Condition L, be dedicated to the
County. See id, at 26.
Taken in their entirety, the Ordinances' roadway and public access
requirements expressly require the Mauka Haleki i Extension, Makai Haleki i
Extension and Connector Road be dedicated to the County. Council accepted the
dedication of the Mauka Halekii Extension on November 9, 2012. See Resolution
317-12.
Council's acceptance of the Mauka Halekii Extension under Resolution
317-12 was a legislative act which received input from DPW. The Director neither
had nor has authority over Resolution 317-12. To the extent the Mauka Halekii
10
Extension was effectively dedicated, such dedication adequately satisfied those
portions of Ordinance 96-7, Condition M(4), and Ordinance 96-8, Condition L(4),
applicable to the Mauka Haleki`i Extension.
As noted above, 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. The agreements have not been satisfied and the bonds are no
longer valid or enforceable. Thus, 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. In 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.
Neither Ordinance addresses any variance process. In accordance with HCC
§ 23-14, the Director may approve a variance from the Subdivision Code's
requirements. Because such a variance only excuses performance under Chapter
23, Variance 10-027 cannot and does not effect an amendment of an existing
ordinance. See Leone v. Cty. of Maui, 128 Hawaii 183, 193-96, 284 P.3d 956, 966-
969 (Haw. Ct. App. 2012)(explaining a variance cannot amend a community plan);
see also Earley v. Bd. of Adjustment of Cerro Gordo Cty., 955 N.W.2d 812, 817
(Iowa 2021) ("The board cannot amend or set aside the zoning ordinance under the
guise of a variance."); Ivancovich v. City of Tucson Bd. of Adjustment, 22 Ariz.
App. 530, 535 (Ariz. Ct. App. 1974) ("The Board cannot amend or repeal any
zoning ordinance [through a variance] for this power belongs to the City Council.").
Furthermore, a Chapter 23-variance cannot and does not: (a) extinguish the
authority of the DPW to set standards for or make determinations 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. While
the Director has the authority to issue variances from Chapter 23's requirements,
those variances provide relief only from Chapter 23's requirements: they do not
relieve Petitioner from the Ordinance's conditions. The DPW's Director has the
authority to set standards for and make determinations regarding street
construction, See HCC § 2-40, and the Council has authority over dedication of
public infrastructure, including streets. See HCC§ 2-162.1(b).
To the extent that the Ordinances require the dedication of the Makai
Haleki i Extension and the Connector Road to the County, subject to the DPW
Director's approval, and said roadways remain privately held, such obligations
remain unsatisfied and the Petitioner has not met its obligations under the
Ordinances.
ROA#105 at 392-394.
11
Even as the Director provided the above collective response, 1250 contends the Director
abused his discretion by failing to rule upon"each of these Requests."ROA#105, at 478. Nothing
in the law dictates the format the Director must employ to issue his declaratory rulings.PRPP Rule
3-1(a) allows that "the Director may issue a declaratory order as to the applicability of any
statutory provision, ordinance, or of any rule or order of the Director or the Department." PRPP
Rule 3-1(c) further provides that"the Director shall either deny the petition in writing, stating the
reasons for such denial or issue a declaratory order on the matters contained in the petition..." As
evidenced in the Director's above-quoted response, the Director did provide a collective
Declaratory Ruling on the matters contained in the petition. The Director denied certain of 1250's
requests and explained the reasons for denial, namely jurisdictional and scope of authority. The
Director answered the remainder of 1250's requests, albeit in a format differing from the format
the requests were posed. Addressing requests in a format chosen for purposes of clarity,
consistency and efficiency is squarely within the discretion of the Director and compliant with
law.
Even as 1250 argues the Director refused to answer its requests, it contends the Director's
responses to the above requests were in error because the Director did not provide specific
responses to matters including but not limited to whether the Ordinances contain certain express
language regarding dedication of the roadways in question, construction standards for the
roadways, and how the Ordinances correspond to the variance process.
As demonstrated above, the Director provided thorough Declaratory Rulings explaining
each of these issues. Although the Director may not have responded to the exact level of detail
1250 wanted, the Director's Declaratory Rulings provide a suitable and complete response to the
12
applicability of the Ordinances to 1250's requests within his jurisdiction: that the Project roadways
must be constructed to a standard meeting the approval of DPW and dedicated to the County.
2. The Director's Declaratory Rulings Refusing to Review or Affirm Variance 10-027 Are
Not in Error
1250 argues that its declaratory requests related to Variance 10-027, numbers 1 and 2
under"Variances Under Chapter 23" and numbers 1-5 under"Variance Applications" are in
error because the Director responded to them by stating the following:
This question seeks a determination of how the Department's subdivision code applied to the
relevant factual situation on January 31, 2011. This question improperly seeks review or
affirmance of a past Department action,the issuance of the Variance 10-027, dated January 31,
2011, which is no longer appealable.
ROA#105 at 390-391.
Phrasing these questions as requests concerning the applicability of the Hawaii County
Code as of a past date is a thinly veiled attempt to force the Director to opine on the validity of
Variance 10-027 which was issued in 2011. PRPP Rule 3-1's allowance for the Director to issue a
declaratory order as to the applicability of an ordinance does not re-open a long-closed appeal
period. 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 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) [emphasis
added]. While unable to opine on the validity of Variance 10-027, the Director did clearly
determine in the Director's Declaratory Ruling that:
"[A] Chapter 23-variance cannot and does not: (a) extinguish the authority of the
DPW to set standards for or make determinations regarding street construction
standards; or(b)usurp Council's authority to accept or reject the dedication of
public infrastructure subject to DPW's approval. While the Director has the
authority to issue variances from Chapter 23's requirements, those variances
provide relief only from Chapter 23's requirements; they do not relieve [1250]
13
from the Ordinance's conditions."
1250 inquired about the applicability of Chapter 23 to the specific facts of this case. In
compliance with the CARD case which allows consideration of "the applicability of some
provisions of law [which] have not been brought into consideration," the Director addressed the
applicability of a Chapter 23-variance to the dedication process while appropriately refusing to
opine on the validity of Variance 10-027 and recognizing both the limited scope of his authority
and also the jurisdictions of the DPW and the Council. See CARD, 114 Hawai`i at 194-95, 159
P.3d at 153-54.
3. The Director's Declaratory Rulings Related to the Review or Affirmance of the
Development Agreement Are Not in Error
1250 argues that a number of its declaratory requests related to the Development
Agreement, specifically request number 3 under"Dedication Requirements"and requests 3,4, and
6 under "Construction Standards" are in error because the Director responded to them by stating
the following:
This question seeks an interpretation of the Development Agreement but the Development
Agreement is not a Department order.
ROA #105 at 390. 1250 asserts that according to Mayor's Rule 1-8, the Development Agreement
is the responsibility of the Planning Department and, therefore, the Director should have
specifically responded to its declaratory requests pertaining to it. PRPP Rule 3-1(a) limits the
Director's authority to"issue a declaratory order as to the applicability of any statutory provision,
ordinance, or of any nile or order of the Director or the Department." The Development
Agreement is an individual agreement negotiated between the County and the Original Developer
pursuant to Hawai`i Revised Statutes §46-124. It is neither a "statutory provision, ordinance, or
rule or order of the Director or the Department." HRS §46-124 provides:
14
1§46-1241 Negotiating development agreements. The mayor or the designated
agency appointed to administer development agreements may make such
arrangements as may be necessary or proper to enter into development
agreements, including negotiating and drafting individual development
agreements;provided that the county has adopted an ordinance pursuant to
section 46-123.
The final draft of each individual development agreement shall be presented to the
county legislative body for approval or modification prior to execution. To be
binding on the county, a development agreement must be approved by the county
legislative body and executed by the mayor on behalf of the county. County
legislative approval shall be by resolution adopted by a majority of the
membership of the county legislative body.
A development agreement is not a statute or ordinance, although a resolution by the County
Council is required to bind the County. A development agreement cannot be construed as an order
or rule of the Director or Department because the Director alone does not have the authority to
bind the County in a development agreement. The Mayor's Rule authorizing the Director to
administer a development agreement does not alter the nature of the agreement itself. The
Development Agreement remains a contract between two (or more)parties and outside the scope
of PRPP Rule 3-1 review.
4. The Director's Declaratory Rulings Related to Dedication of Mauka Haleki`i Extension,
Makai Haleki`i Extension and the Connector Road Are Not in Error
The Director properly responded to the declaratory requests pertaining to the dedication of
Mauka Haleki`i Extension, Makai Haleki`i Extension and the Connector Road as set forth in
Ordinances 96-7 and 96-8.3 Specifically, the Director stated:
To the extent Initial Petition Question 4 and Supplemental Petition Questions 6 and 10
request an interpretation of the Ordinances' conditions as applied to the Project, those
questions are within the Director's authority.
3 Ordinances 96-7 and 96-8 established the zoning for the Project's approximate 1500-acre
master planned community. The Ordinances, in large respect, contain similar if not identical
conditions for the rezoning of the Project, and have been read together as applicable to the
entirety of the Project. See, e.g. County of Hawai`i v. C.&J. Coupe Family Ltd. P'ship, 124
Hawai`i 281, 302 (2010).
15
Ordinance 96-7, Conditions M(4) and M( 5), require that"[p]rior to the issuance of Final
Subdivision Approval for any portion of subject property", the applicant shall "construct"
the Mauka Halekii Extension and Makai Halekii Extension and "provide"the Connector
Road, and the phasing of the same shall be approved by DPW.
Ordinance 96-7, Condition K, requires that, "prior to final subdivision approval, or any
land alteration activity,"a"final comprehensive public access plan shall be developed"and
include, inter alia, "public mauka-makai and lateral shoreline accesses."
Ordinance 96-7, Condition L,requires the right to public access and recreational use of the
Project's privately owned coastline park and trails be conveyed to the County by way of a
perpetual easement. Condition L specifically requires the applicant to retain fee simple
ownership of the shoreline park and,to the extent any roadway,trail or other rights-of-way
become deemed a public highway or trail under HRS Ch. 264, Condition L shall no longer
be applicable.
Ordinance 96-8, Conditions L(4)and L(5), also require the construction of certain roadway
improvements prior to the issuance of final subdivision approval for any portion of the
Project,including construction of the Mauka Haleki`i Extension,Makai Haleki`i Extension
and the Connector Road. Ordinance 96-8, Condition M, requires all roadway
improvements stated in Ordinance 96-8, Condition L, be dedicated to the County.
Taken in their entirety, the Ordinances' roadway and public access requirements expressly
require the Mauka Haleki`i Extension, Makai Haleki`i Extension and Connector Road be
dedicated to the County. Council accepted the dedication of the Mauka Haleki`i Extension
on November 9, 2012.
Council's acceptance of the Mauka Haleki`i Extension under Resolution 317-12 was a
legislative act which received input from DPW. The Director neither had nor has authority
over Resolution 317-12. To the extent the Mauka Halekii Extension was effectively
dedicated, such dedication adequately satisfied those portions of ordinance 96-7,Condition
M(4), and Ordinance 96-8, Condition L(4), applicable to the Mauka Haleki i Extension.
As noted above, 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. The agreements have not
been satisfied and the bonds are no longer valid or enforceable. Thus, Oceanside has not
fully satisfied the Ordinances'roadway improvement and dedication requirements because
the Makai Haleki`i Extension and Connector Road have not been dedicated to the County.
In 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.
PL-BOA-2024-000104, Record on Appeal ("ROA #104) at 903-905.
16
The Director interpreted the conditions of Ordinances 96-7 and 96-8 as applied to the
Project and properly and accurately responded to the requests. The Ordinances, taken together,
require the Makai Haleki`i Extension and Connector Road be constructed to a condition approved
by the DPW, and dedicated to the County. To the extent 1250 appeals the Director's examination
of the Ordinances "in their entirety," any error would be harmless. Together, Ordinance 96-7 and
Ordinance 96-8 directly state that the Haleki`i Extension and the Connector Road must be
constructed to a condition approved by DPW and the roadways shall be dedicated to the
appropriate government entity and 1250 must comply with both Ordinances. To suggest that,
because no explicit date certain is included for such dedication the dedication is not required is
absurd. The rules of statutory construction require that "first, the fundamental starting point for
statutory interpretation is the language of the statute itself. Second, where the statutory language
is plain and unambiguous, our sole duty is to give effect to the plain and obvious meaning." See
Rosehill Tr. of Linda K. Rosehill Revocable Tr., 2024 WL 4274344 *6 (Sept. 24, 2024) (citing
State v. Castellon, 144 Hawai`i 406, 411, 443 P.3d 98, 103 (2019). The plain meaning of
"dedication" is to dedicate the required Project roadways to the County.
In addition, 1250 asserts the Director erred in using qualifying language in ruling the
Mauka Haleki`i Extension had effectively been dedicated. The Director's language, however, does
not constitute error. The Director did not qualify the dedication of the Mauka Haleki`i Extension
as much as he recognized that Council effected this action,not the Planning Department. See PRPP
Rule 3.1 (stating the Director may issue a declaratory order as to the applicability of any statutory
provision, ordinance, or of any rule or order of the Director of the Department).
17
5. The Director's Declaratory Statements Related to the Subdivision Agreements Between
1250 and the County Are Not in Error Nor Do They Violate the Law
The Director did not err in referring to the subdivision agreements between 1250 and the
County in ruling that the collective conditions of the Ordinances have not been satisfied. The
Director's reference to the subdivision agreements and bonds for Phase I and Phase II of the Project
was included to provide a brief procedural history describing how the Project got to its current
state. The reference simply helps to answer the question: why did the County issue final
subdivision approval for these phases if the roads were not yet fully constructed. See Conditions
to Ordinances cited in ROA #105 at 392-394.
1250's arguments to the contrary are unsubstantiated. 1250 merely states "the ruling is
erroneous and in violation of the law because, inter alia, it based upon an inaccurate, incomplete,
and misleading factual history regarding the subdivision agreements and bonds." ROA #105 at
489. 1250, however, fails to provide any additional factual information to contradict the factual
history in the record. So long as the roadways remain private, the collective requirements of the
Ordinances remain unmet. Thus, the Director's rulings that 1250 has not yet complied with the
collective requirements of the Ordinances should be affirmed.
6. The Director Did Not Err in Ruling Makai Haleki`i Extension and Connector Road Shall
Meet the Approval of DPW
1250 asserts the Director erred in ruling that the improvements, including plans and
construction, to Makai Haleki`i Extension and the Connector Road must be approved by DPW.
ROA #105 at 489-490. This ruling, however, is not in error. The Ordinances specifically state
"Roadway improvements and access(es) to the subject property, including all plans and
construction shall meet with the approval of the Department of Public Works." ROA 105 at 47,
18
84. Variance 10-027 does not affect an amendment to the Ordinances. As aptly stated in the
Director's Declaratory Order,
Neither Ordinance addresses any variance process. In accordance with HCC § 23-14, the
Director may approve a variance from the Subdivision Code's requirements. Because such a
variance only excuses performance under Chapter 23, Variance 10-027 cannot and does not
effect an amendment of an existing ordinance. See Leone v. Cty. of Maui, 128 Hawaii 183,
193-96, 284 P.3d 956, 966-969 (Haw. Ct. App. 2012) (explaining a variance cannot amend a
community plan); see also Earley v. Bd. of Adjustment of Cerro Gordo Cty., 955 N.W.2d 812,
817 (Iowa 2021) ("The board cannot amend or set aside the zoning ordinance under the guise
of a variance."); Ivancovich v. City of Tucson Bd. of Adjustment, 22 Ariz. App. 530, 535 (Ariz.
Ct.App. 1974)("The Board cannot amend or repeal any zoning ordinance [through a variance]
for this power belongs to the City Council."). Furthermore, a Chapter 23-variance cannot and
does not: (a) extinguish the authority of the DPW to set standards for or make determinations
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. While the Director
has the authority to issue variances from Chapter 23's requirements, those variances provide
relief only from Chapter 23's requirements: they do not relieve Petitioner from the Ordinance's
conditions. The DPW's Director has the authority to set standards for and make determinations
regarding street construction, See HCC § 2-40, and the Council has authority over dedication
of public infrastructure, including streets. See HCC§ 2-162.1(b).
Id. at 394.
This ruling by the Director does not constitute a sua sponte ruling. The Director has broad
discretion in responding to a request for a declaratory ruling. 1250 asked about the effect of a
properly granted variance on compliance with construction standards and dedication requirements
contained in Chapter 23. See HCC§23-86 Requirements for Dedicable Streets and 23-95 Right-
of-Way Improvement. The Director's explanation of the interplay between a properly granted
variance and the applicability of Chapter 23 includes both brief historical context of the
development of this Project and an evaluation of the effect a Chapter 23-variance may have on
compliance with the Ordinances' construction and dedication requirements of Project roads. To
the extent that this Board may determine that the Director's explanation was unnecessarily broad,
this constitutes harmless error because the Director's response remains consistent with prior
19
statements that the Project roads must be constructed to a standard approved by DPW and accepted
for dedication by the Council. As such, his ruling should be affirmed.
V. CONCLUSION
For the reasons stated herein, we respectfully request the Board of Appeals affirm the
Director's Declaratory Orders, Dockets 24-0001 and 24-0002. The Declaratory Rulings
contained in the Declaratory Orders do not violate the law, are not clearly erroneous, and do
not constitute an abuse of discretion.
Dated: Hilo, Hawai`i, October 4, 2024.
COUNTY OF HAWAI`I PLANNING DIRECTOR
By: /s/E. Britt Bailey
E. BRITT BAILEY
Deputy Corporation Counsel
20
BEFORE THE BOARD OF APPEALS
COUNTY OF HAWAI`I
STATE OF HAWAI`I
In the Matter of Appeal CASE NOS. PL-BOA-2024-000104 &
PL-BOA-2024-000105
of
CERTIFICATE OF SERVICE
1250 OCEANSIDE, LLC
From the decisions of the Planning Director,
dated April 29, 2024 (Docket Nos. 24-0001
& 24-0002)
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing document was served
upon the parties identified below by electronic mail service upon the following on October 4,
2024:
Delivered via Electronic Mail (E-Mail and/or EPIC)
DEREK B. SIMONS
PATRICK K. WONG
IAN R. WESLEY-SMITH
Carlsmith Ball LLP
1001 Bishop Street, Suite 2100
Honolulu, HI 96813
Attorneys for
1250 Oceanside, LLC
KENNETH R. KUPCHAK
MARK M. MURAKAMI
TOREN K. YAMAMOTO
Damon Key Leong Kupchak Hastert
1003 Bishop Street, Suite 1600
Honolulu, HI 96813
Attorneys for Interventors
C & J Coupe Family Limited Partnership
1
SYLVIA A. WAN
Deputy Corporation Counsel
Officer of the Corporation Counsel
101 Aupuni Street, Suite 325
Hilo, HI 96720
Attorney for the Board of Appeals
Dated: Hilo, Hawai`i, October 4, 2024.
/s/E. Britt Bailey
E. BRITT BAILEY
Deputy Corporation Counsel
2