HomeMy WebLinkAbout2024-12-03 1250 Oceanside LLC Objection to Proposed FOF, COL, D&O (PL-BOA-2024-000104) CARLSMITH BALL LLP
PATRICK K. WONG 5878
75-5722 Kuakini Highway, Suite 208
Kailua Kona, Hawai`i 96740
Tel. No. (808) 329-6464
Facsimile No. (808) 329-9450
pwong(a,carlsmith.com
DEREK B. SIMON 10612
1001 Bishop Street, Suite 2100
Honolulu, Hawai`i 96813
Tel. No. (808) 523-2500
Facsimile No. (808) 523-0842
dsimon@carlsmith.com
IAN R. WESLEY-SMITH 10626
121 Waianuenue Avenue
P.O. Box 686
Hilo, Hawai`i 96721-0686
Tel. No. (808) 969-8416
Facsimile No. (808) 935-7975
iwesley-smith@carlsmith.com
Attorneys for
1250 OCEANSIDE, LLC
BEFORE THE BOARD OF APPEALS
PLANNING DEPARTMENT
COUNTY OF HAWAII
In the Matter of Appeal Case No. PL-BOA-2024-000104
of 1250 OCEANSIDE, LLC'S
OBJECTIONS TO COUNTY OF
1250 OCEANSIDE, LLC HAWAII PLANNING DIRECTOR'S
PROPOSED FINDINGS OF FACT,
From the decision of the Planning Director, CONCLUSIONS OF LAW, DECISION
dated April 29, 2024 (Docket No. 24-0001) AND ORDER; CERTIFICATE OF
SERVICE
4860-2001-2538.2.051730-00058
1250 OCEANSIDE, LLC'S OBJECTIONS TO COUNTY OF HAWAII PLANNING
DIRECTOR'S PROPOSED FINDINGS OF FACT, CONCLUSIONS OF LAW,
DECISION AND ORDER
Pursuant to Rule 3-20 of the County of Hawai`i Board of Appeals ("BOA") Rules of
Practice and Procedures ("BOA Rules"), Appellant 1250 OCEANSIDE, LLC ("Oceanside"),by
and through its attorneys, Carlsmith Ball LLP, hereby respectfully submits its Objections to the
County of Hawai`i ("County") Planning Director's Proposed Findings of Fact, Conclusions of
Law, Decision and Order filed November 14, 2024 ("Proposed Order").
By submitting these Objections, as well as the supplemental findings of fact("FOF") and
conclusions of law ("COL")below, Oceanside does not waive any arguments that the Findings
of Fact, Conclusions of Law, Decision and Order ultimately adopted by the BOA fails to satisfy
any and all applicable legal requirements, including those under Haw. Rev. Stat. ("HRS") § 91-
12, or that the Planning Director and/or BOA otherwise erred in rendering their respective
decisions.
I. Oceanside's General Objections.
Oceanside objects to the Planning Director's Proposed Order in its entirety on the
grounds that it fails to satisfy the requirements of HRS § 91-12. HRS § 91-12 requires, in
pertinent part, that"[e]very decision and order adverse to a party to the proceeding, rendered by
an agency in a contested case, shall be in writing or stated in the record and shall be
accompanied by separate findings of fact and conclusions of law." (Emphasis added).
The Hawai`i Supreme Court has explained that"[t]he requirement that the [agency] set
out findings of fact and conclusions of law is no mere technical or perfunctory matter."
Application of Hawaii Elec. Light Co., Inc., 60 Haw. 625, 641, 594 P.2d 612, 623 (1979)
("HELCO") (emphasis added). Rather, "[t]he purpose of the statutory requirement that the
agency set forth separately its findings of fact and conclusions of law is to assure reasoned
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decision making by the agency and enable judicial review of agency decisions. Id. at 641-42,
594 P.2d at 623 (emphases added). In order for the parties and courts to "be informed of the
factual basis upon which the [agency] relies, the [agency]'s findings of Ultimate facts must be
supported by findings of Basic facts which in turn are required to be supported by the evidence
in the record." Id. at 642, 594 P.2d at 623 (emphasis added). Simply put, "[t]he parties and the
court should not be left to guess, with respect to any material question of fact, or to any group
of minor matters that may have cumulative significance, the precise finding of the agency."
Application of Hawaiian Tel. Co., 54 Haw. 663, 668, 513 P.2d 1376, 1379 (1973) (emphases
added).
Unfortunately, the Planning Director's Proposed Order would do just that, leaving the
parties— and eventually the Circuit Court— left guessing as to what actual factual findings were
made and what evidence such findings were based upon. The Planning Director's Proposed
Order does not identify any"Basic facts" supporting "Ultimate facts,"much less any supporting
evidence in the record. Helco, 60 Haw. at 642, 594 P.2d at 623. At bottom, the Planning
Director's Proposed Order lacks even the most minimal specificity necessary for Oceanside to
object to and later appeal the factual findings and legal conclusions purportedly supporting the
BOA's decision in this appeal.
II. Oceanside's Specific Objections.
a. Specific Objections to the Planning Director's Proposed Findings of Fact.
Oceanside submits the following specific objections to the Planning Director's Proposed
FOFs:
PLANNING DIRECTOR'S PROPOSED OCEANSIDE'S OBJECTION
FINDINGS OF FACT
1. On February 7, 2024, C&J Coupe Family n/a
Limited Partnership ("Intervenor") filed its
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Petition for Declaratory Ruling, and on March
27, 2024, filed its Supplement to Petition for
Declaratory Ruling, (collectively, "Petition")
requesting declaratory rulings from the Planning
Director.
2. On April 29, 2024, the Planning Director Oceanside objects to Proposed FOF 2 on the
issued Zendo Kern, Planning Director, County grounds that is does not reflect that the Planning
of Hawaii's Declaratory Order in the Matter of Director's Declaratory Order issued on April
C&J Coupe Family Limited Partnership, 29, 2024 ("Declaratory Order") included
Petitioner, Docket No. 24-0001 ("Order") in Exhibits A-C.
response to the Petitions.
3. On May 28, 2024, 1250 Oceanside LLC Oceanside objects to Proposed FOF 3 on the
("Appellant") filed its General Petition for grounds that it does not accurately reflect the
Appeal of Decisions by Planning Director or filing made by Oceanside on May 28, 2024,
Public Works Director("Appeal") with the which included Oceanside's Exhibits 1-11.
Board of Appeals, County of Hawai'i ("Board")
appealing the Planning Director's issuance of
the Order.
4. Appellant's Appeal sought to modify the n/a
Order or have the Order remanded to the
Planning Director to correct alleged errors.
5. On July 3, 2024, C&J Coupe Family Limited n/a
Partnership ("Intervenor") filed its
Petition to Intervene in General Petition for
Appeal of Decision by the Planning Director
("Petition to Intervene").
6. On July 15, 2024, Appellant filed its Position n/a
Statement on Petition to Intervene in General
Petition for Appeal of Decision by Planning
Director, dated July 3, 2024.
7. On July 17, 2024, the County filed its County n/a
of Hawaii Planning Director's Statement of No
Position to Petition to Intervene in General
Petition for Appeal of Decision of Planning
Director, dated July 3, 2024.
8. A hearing on the Petition to Intervene was n/a
held on August 9, 2024, at which the Board
approved the Petition to Intervene.
9. On October 11, 2024, the Board heard oral Oceanside objects to Proposed FOF 9 on the
arguments and presentation of evidence and grounds that it does not specify that the BOA's
testimony on the Appeal at the West Hawai`i hearing on October 11, 2024, was a contested
Civic Center with all Board Members present in case hearing pursuant to BOA Rule 8-11, Part 3
person. Michael Kaleihoku Vitousek, Manager of the BOA Rules, and HRS ch. 91.
of Land and Development of 1250 Oceanside
LLC, Derek B. Simon, Esq., and Ian R. Wesley- Oceanside further objects to Proposed FOF 9 on
Smith, Esq. appeared on behalf of Appellant. the grounds that it fails to reflect that Deputy
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Zendo Kern, Hawai'i County Planning Director Corporation Counsel Jean K. Campbell, Esq.
and E. Britt Bailey, Deputy Corporation also appeared on behalf of the Planning
Counsel, appeared on behalf of the Planning Director. Among other things, Ms. Campbell
Department. Charles Coupe of C&J Coupe sat at the counsel table with Ms. Bailey during
Family Limited Partnership, Kenneth R. the hearing.
Kupchak, Esq., and Mark M. Murakami, Esq.
appeared on behalf of Intervenor.
b. Specific Objections to the Planning Director's Proposed Conclusions of Law.
Oceanside submits the following specific objections to the Planning Director's Proposed
COLs:
PLANNING DIRECTOR'S PROPOSED OCEANSIDE'S OBJECTION
CONCLUSIONS OF LAW
1. Hawai`i Revised Statues Section 91-8 allows n/a
that:
Any 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. Each
agency shall adopt rules prescribing the
form of the petitions and the procedure for
their submission, consideration, and
prompt disposition. Orders disposing of
petitions in such cases shall have the same
status as other agency orders.
2. Planning Department Rule 3-1(a) gives the Oceanside objects to Proposed COL 2 on the
Planning Director the discretion to "issue a grounds that it mischaracterizes the nature and
declaratory order as to the applicability of any extent of the Planning Director's authority and
statutory provision, ordinance, or any rule or discretion when responding to petitions for
order of the Director or the Department." declaratory rulings pursuant to Rule 3-1 of the
County of Hawai`i Planning Department Rules
of Practice and Procedure ("PD Rules").
The Hawai`i Supreme Court has explained that,
"[b]y empowering agencies generally with the
authority to adopt rules regarding the manner
in which declaratory ruling petitions shall be
considered and disposed of, the legislature has
granted agencies discretion with regard to the
consideration of declaratory rulings. The
boundaries of that discretion, which normally
are defined by the legislature, may in such
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cases be established with reference to the
agency rules themselves, or by reading the
statute and the agency rules in tandem."
Citizens Against Reckless Dev. v. Zoning Bd. of
Appeals of City & Cnty. of Honolulu, 114 Haw.
184, 194-95, 159 P.3d 143, 153-54 (2007)
("CARD") (emphases added). In other words,
the Planning Director's discretion in
considering and disposing of petitions for
declaratory rulings is circumscribed by PD Rule
3, and when the Planning Director acts outside
of the boundaries of PD Rule 3, he commits
clear error and acts without discretion,
arbitrarily and capriciously, and in violation of
the law. See id. ("In this case, DPP Rule § 3-5
governs DPP refusals to issue a declaratory
ruling, making that decision discretionary with
the DPP Director, within the parameters of five
enumerated reasons.") (emphasis added).
3. Hawai`i County Code ("HCC") Section 25-2- n/a
23 [Standard of Review], provides that:
The board of appeals may affirm the decision of
the director, or it may reverse or modify the
decision or remand the decision with
appropriate instructions if based upon the
preponderance of evidence the board finds that:
(1) The director erred in its decision; or
(2) The decision violated this chapter 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.
4. Board of Appeals Rules of Practice and n/a
Procedures, Rule 8-4(4) requires that a general
petition for an appeal must include:
A statement explaining:
(A) How the decision appealed from
violates the law; or
(B) How the decision appealed from is
clearly erroneous; or
(C) How the decision appealed from was
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arbitrary and capricious, or characterized
by an abuse of discretion or clearly
unwarranted exercise of discretion.
5. Having considered the testimony and For the reasons set forth in Oceanside's General
evidence provided, the Board unanimously Petition for Appeal of Decisions by Planning
ruled that in issuing his Order, the Planning Director or Public Works Director filed on May
Director Zendo Kern did not clearly err, was not 28, 2024 and its Consolidated Hearing Brief
arbitrary or capricious, nor did he abuse his filed October 4, 2024, as well as the evidence,
discretion. Therefore, the Board denied testimony, and argument adduced at the
Appellant's appeal of Zendo Kern,Planning hearing, all of which is hereby incorporated by
Director, County of Hawai'i's Declaratory reference, Ocean objects to Proposed COL 5 on
Order in the Matter of C&J Coupe Family the grounds that the BOA's decision to affirm
Limited Partnership, Petitioner, Docket No. 24- the decision of the Planning Director goes
0001. against the weight of the evidence and
applicable law, and constitutes reversible error.
Oceanside further objects to Proposed COL 5
on the grounds that, although Proposed COL 5
states that the BOA "considered the testimony
and evidence provided," none of the Planning
Director's proposed FOFs make any actual
factual findings, much less identify the
evidence and testimony that such findings were
based on. See Helco, 60 Haw. at 642, 594 P.2d
at 623 (In order for courts to "be informed of
the factual basis upon which the [agency] relies,
the [agency]'s findings of Ultimate facts must
be supported by findings of Basic facts which in
turn are required to be supported by the
evidence in the record.").
Oceanside also objects to Proposed COL 5 on
the grounds that nothing in the BOA Rules
allows the BOA to "deny" an appeal. See BOA
Rule 8-13 ("[T]he Board shall render its
decision in an appeal proceeding, by either
affirming the decision appealed from, or
reversing or modifying the decision, or
remanding the case to the Director for further
proceedings and action); BOA Rule 8-15
("[T]he Board of Appeals may affirm the
decision of the director; or it may reverse or
modify the decision; or remand the decision
with appropriate instructions[.]"). In fact, Vice
Chair Daina"Noe" Saiki's motion at the
hearing was to "affirm the decision of the
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Planning Director." See Video of Hearing
starting at 3:08:00.1
Oceanside also objects to Proposed COL 5 on
the grounds that the BOA unanimously"voted"
and not"ruled" at the conclusion of the October
11, 2024 hearing.
c. Specific Objections to the Planning Director's Proposed Decision and Order.
Oceanside submits the following specific objections to the Planning Director's Proposed
Decision and Order:
PLANNING DIRECTOR'S PROPOSED OCEANSIDE'S OBJECTION
DECISION AND ORDER
Based on its consideration of the evidence and For the reasons set forth in Oceanside's
argument presented at hearing, including the General Petition for Appeal of
Record on Appeal, the documents on file herein, Decisions by Planning Director or
and applying the reliable probative evidence Public Works Director filed on May 28,
and law, the Board hereby Orders as follows: 2024 and its Consolidated Hearing Brief
filed October 4, 2024, as well as the
Appellant's appeal of the Planning Director's evidence, testimony, and argument
April 29, 2024, Zendo Kern, Planning Director, adduced at the hearing, all of which is
County of Hawai`i's Declaratory Order In the hereby incorporated by reference, Ocean
Matter of C&J Coupe Family Limited objects to the Planning Director's
Partnership, Petitioner, Docket No. 24-0001 is Proposed Decision and Order on the
DENIED. The above-captioned Board of grounds that the BOA's decision to
Appeals case is dismissed with prejudice in its affirm the decision of the Planning
entirety. Director goes against the weight of the
evidence and applicable law, and
constitutes reversible error.
The Planning Director' Proposed
Decision and Order also
mischaracterizes the action that the
BOA is authorized to take. Pursuant to
BOA Rule 8-13, the BOA "shall render
its decision in an appeal proceeding, by
either affirming the decision appealed
from, or reversing or modifying the
decision, or remanding the case to the
Director for further proceedings and
1 Available at https://www.youtube.com/watch?v=ihTR95thScE.
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action." BOA Rule 8-13 similarly
provides that the BOA"may affirm the
decision of the director; or it may
reverse or modify the decision; or
remand the decision with appropriate
instructions . . . ." Nothing in the BOA
Rules authorizes the BOA to "deny" an
appeal or"dismiss" an appeal"with
prejudice in its entirety." In fact, Vice
Chair Daina"Noe" Saiki's motion at the
hearing was to "affirm the decision of
the Planning Director." See Video of
Hearing starting at 3:08:00.
Oceanside further objects to the
Planning Director' Proposed Decision
and Order on the grounds that, although
the Proposed Decision and Order states
that the BOA took its action "[b]ased on
its consideration of the evidence and
argument presented at hearing,
including the Record on Appeal, the
documents on file herein, and applying
the reliable probative evidence and
law," the Proposed Order fails to specify
any of the "evidence and argument"
considered, or any of the "reliable
probative evidence" or"law"that the
BOA purportedly applied. This is a
violation of HRS § 91-12. See id. See
Helco, 60 Haw. at 642, 594 P.2d at 623
(In order for courts to "be informed of
the factual basis upon which the
[agency] relies, the [agency]'s findings
of Ultimate facts must be supported by
findings of Basic facts which in turn are
required to be supported by the evidence
in the record.").
III. Oceanside's Supplemental Findings of Fact and Conclusions of Law.
a. Oceanside's Supplemental Findings of Fact.
In addition to its objections to the Planning Director's Proposed FOFs set forth above,
Oceanside hereby submits the following Supplemental FOFs:
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PROCEDURAL HISTORY
1. On March 31, 2023, Intervenor C& J Coupe Family Limited Partnership
("Intervenor") filed a lawsuit against the County and Oceanside. Exhibit 7. Intervenor's
Complaint alleges that Oceanside has failed to comply with, and the County has failed to
enforce,rezoning Ordinance No. 96-7 ("Ordinance No. 96-7"), rezoning Ordinance No. 96-8
("Ordinance No. 96-8"; together, the "Ordinances"), and a Development Agreement dated
April 20, 1998,between the County and Oceanside's predecessor-in-interest(the "Development
Agreement"). Id.
2. On September 15, 2023, the Circuit Court ruled that Intervenor was required to
first seek a formal determination from the County on Oceanside's compliance with the
Ordinances and Development Agreement. Exhibits 8a-8b. As a result, the Circuit Court stayed
Intervenor's lawsuit and ordered Intervenor to complete the County's declaratory ruling process
and any subsequent appeal proceedings before the BOA. Id.
3. On February 13, 2024, Intervenor's counsel emailed a letter to the Planning
Director requesting that the Planning Director hold a public hearing on Intervenor's Petition for
Declaratory Ruling dated February 7, 2024.
4. On April 25, 2024, Intervenor's counsel emailed another letter to the Planning
Director, which again requested that the Planning Director hold a hearing on Intervenor's
Petition for Declaratory Ruling, as well as its Supplement to Petition for Declaratory Ruling
dated March 27, 2024.
5. On April 29, 2024, the Planning Director issued his Declaratory Order in Planning
Department Docket No. 24-0001.
6. On May 28, 2024, Oceanside filed its General Petition for Appeal of Decisions by
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4860-2001-2538.2.051730-00058
Planning Director or Public Works Director and Exhibits 1-11 with the BOA, which appealed
certain portions of the Declaratory Order.
7. On June 20, 2024, the Planning Director filed the Record on Appeal with the
BOA.
8. On August 6, 2024, a prehearing conference was held with counsel for Oceanside,
Counsel for the Planning Director, BOA Chair Cathy Lewis, and the BOA's counsel, which the
parties agreed to continue to a later date given Intervenor's then-pending Petition to Intervene in
General Petition for Appeal of Decision by the Planning Director.
9. On September 6, 2024, the BOA issued its Order Granting Intervenor's Petition to
Intervene in General Petition for Appeal of Decision by the Planning Director Filed on July 03,
2024.
10. On September 6, 2024, the continued prehearing conference was held with
counsel for Oceanside, Counsel for the Planning Director, Counsel for Intervenor, BOA Chair
Cathy Lewis, and the BOA's counsel.
11. On September 11, 2024, the BOA issued its Scheduling Order.
12. On September 18, 2024, Oceanside filed its Exhibit List and Exhibits 12-19, and
the Planning Director filed his Exhibit List and Exhibits A-E.
13. On September 25, 2024, Oceanside filed its Second Exhibit List and Exhibit 20,
and Intervenor filed its Exhibit List and Exhibits 1-5.
14. On October 1, 2024, Oceanside filed the parties' Stipulation Regarding
Consolidated Hearing Procedures.
15. On October 2, 2024, Oceanside and the Planning Director filed their respective
Witness Lists.
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16. On October 4, 2024, the following filings were made: (a) Oceanside filed its
Consolidated Hearing Brief; (b) Intervenor filed its Prehearing Brief; and(c) the Planning
Director filed his Pre-Hearing Brief.
17. On October 7, 2024, Oceanside filed its Third Exhibit List and Exhibits 21-22.
18. On October 11, 2024, the BOA held a contested case hearing on Oceanside's
General Petition for Appeal of Decisions by Planning Director.
RELEVANT PROJECT HISTORY
19. This appeal concerns the development of the master-planned community known
as Hokuli`a located on the Kona Coast in Kealakekua, Hawai`i.
20. Hokuli`a is being developed pursuant to a number entitlements issued by the
County, including the Ordinances and Development Agreement. Exhibits 4-6.
21. Among other things, the Ordinances required the construction of the following
roadways:
a. An extension of Ali`i Drive/the Mamalahoa By-Pass, increasing
connectivity between Kailua-Kona and Captain Cook;
b. An extension of Haleki`i Street to the mauka side of the Bypass Extension
("Mauka Haleki`i Extension");
c. A continuation of Haleki`i Street makai of the Bypass Extension ("Makai
Halekii Extension"); and
d. A "stub" road running north-south laterally from the Makai Haleki`i
Extension to the boundaries with the adjoining properties ("Connector
Road").
22. The Makai Haleki`i Extension and Connector Road were constructed in 1999,
pursuant to construction plans approved by the County, including the Planning Department and
Department of Public Works ("DPW"). Exhibit 11.
23. Construction of the Mauka Haleki`i Extension was completed in or around 2012,
pursuant to construction plans approved by the County, including the Planning Department and
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DPW.
24. In January 2011, the Planning Department approved Variance No. VAR 10-027
(the "Variance"), which covers, inter alia, the Mauka Haleki`i Extension, Makai Haleki`i
Extension, and Connector Road. Exhibit 9. The Variance was approved with input from DPW
and provided relief from Hawai`i County Code ("HCC") §§ 23-86 (requirements for dedicable
streets) and 23-95 (right-of-way improvements). Id.
25. The Mauka Haleki`i Extension was dedicated to the County in 2012 pursuant to
Hawai`i County Council Resolution No. 317-12. Exhibit 10.
THE PLANNING DIRECTOR'S TESTIMONY
26. At the hearing, Oceanside called Michael Kaleihoku Vitousek, Manager of Land
and Development for Oceanside, and Planning Director Zendo Kern to testify.
27. The Planning Director and Intervenor did not call any witnesses to testify at the
hearing.
DEDICATION REQUIREMENTS UNDER ORDINANCE NO. 96-7
28. When questioned at the hearing, the Planning Director refused to answer whether
Ordinance No. 96-7 requires the dedication of the Mauka Haleki`i Extension, Makai Haleki`i
Extension, and Connector Road, and instead would only testify as to his interpretation of
Ordinance No. 96-7 "taken together" with Ordinance No. 96-8. See Video of Hearing starting at
1:39:10.
DEDICATION OF MAUKA HALEKI`I EXTENSION
29. The Mauka Haleki`i Extension was dedicated to the County in 2012 pursuant to
Hawai`i County Council Resolution No. 317-12. Exhibit 10.
30. The Planning Director testified that the dedication of the Mauka Haleki`i
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Extension in 2012 satisfied the Ordinances as they relate to the Mauka Haleki`i Extension. See
Video of Hearing starting at 2:06:50 (testifying that"The dedication of that Mauka Halekii did
satisfy the dedication requirements for that section of the road for the Ordinances, yes.").
31. The Planning Director testified that the Declaratory Order does not qualify or
limit the effect and validity of either the 2012 dedication of the Mauka Haleki`i Extension to the
County, or Oceanside's satisfaction of the Ordinances as they relate to the Mauka Haleki`i
Extension. See Video of Hearing starting at 2:07:20 (testifying that his determination was not
qualified).
MAKAI HALEKI`I EXTENSION AND CONNECT ROAD
32. The Planning Director testified that DPW, and not the Planning Department,has
the jurisdiction to determine whether a roadway can be accepted for dedication. See Video of
Hearing at 2:09:25.
33. The Planning Director testified that the Declaratory Order does not make any
findings, conclusions, or determinations as to whether the Makai Haleki`i Extension and
Connector Road can be dedicated in their current condition. See Video of Hearing at 2:10:10.
34. The Planning Director testified that Ordinance No. 96-8 does not set a deadline,
date certain, or development milestone by which the Makai Haleki`i Extension and Connector
Road must be dedicated to the County. See Video of Hearing starting at 1:41:55 (direct
examination); id. starting at 2:12:55 (cross examination by Interveor's counsel).
b. Oceanside's Supplemental Conclusions of Law.
In addition to its objections to the Planning Director's Proposed COLs set forth above,
Oceanside hereby submits the following Supplemental COLs:
1. The above Findings of Fact, to the extent they constitute Conclusions of Law, are
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incorporated below by reference. The Conclusions of Law below, to the extent they constitute
Findings of Fact, are incorporated into the Findings of Fact above.
DECLARATORY RULINGS
2. HRS § 91-8 provides that: "Any 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. Each agency shall adopt rules prescribing the form of the petitions and the procedure for
their submission, consideration, and prompt disposition. Orders disposing of petitions in such
cases shall have the same status as other agency orders."
3. PD Rule 3-1(a) authorizes the Planning Director"to issue a declaratory order as
to the applicability of any statutory provision, ordinance, or of any rule or order of the Director
or the [Planning] Department."
4. "[T]he declaratory ruling procedure of HRS § 91-8 is meant to provide a means of
seeking a determination of whether and in what way some statute, agency rule, or order, applies
to the factual situation raised by an interested person." CARD, 114 Hawai`i at 196-97, 159 P.3d
at 155-56 (underline in original); see also Fasi v. State Public Ennp't Relations Bd., 60 Haw. 436,
444, 591 P.2d 113, 118 (1979) (HRS § 91-8 "is designed to provide a means for securing from
an agency its interpretation of relevant statutes, rules and orders.").
5. "By empowering agencies generally with the authority to adopt rules regarding
the manner in which declaratory ruling petitions shall be considered and disposed of, the
legislature has granted agencies discretion with regard to the consideration of declaratory rulings.
The boundaries of that discretion, which normally are defined by the legislature, may in such
cases be established with reference to the agency rules themselves, or by reading the statute and
the agency rules in tandem." CARD, 114 Hawai`i at 194-95, 159 P.3d at 153-54.
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6. The Planning Director's discretion in considering and disposing of petitions for
declaratory rulings is circumscribed by PD Rule 3, and when the Planning Director acts outside
of the parameters of PD Rule 3, he commits clear error and acts without discretion, arbitrarily
and capriciously, and in violation of the law. See id. ("In this case, DPP Rule § 3-5 governs DPP
refusals to issue a declaratory ruling,making that decision discretionary with the DPP Director,
within the parameters of five enumerated reasons.").
INTERPRETATION OF ORDINANCE NO. 96-7
7. "When interpreting county charters, municipal ordinances, and administrative
rules, the general principles of statutory construction apply." Robert D. Ferris Trust v. Planning
Comm'n of Cnty. of Kauai, 138 Hawai`i 307, 310, 378 P.3d 1023, 1026 (Ct. App. 2016); see also
Foster Vill. Cmty. Ass'n v. Hess, 4 Haw.App. 463, 469, 667 P.2d 850, 854 (1983).
8. "The fundamental starting point of statutory interpretation is the language of the
statute itself, and where the statutory language is unambiguous, our duty is to give effect to its
plain and obvious meaning. To effectuate a statute's plain language, its words must be taken in
their ordinary and familiar signification, and regard is to be had to their general and popular use."
Wells Fargo Bank, N.A. v. Omiya, 142 Hawai`i 439, 449, 420 P.3d 370, 380 (2018) (citations
and quotation marks omitted).
9. Ordinance No. 96-7 does not require the dedication of the Mauka Haleki`i
Extension, Makai Haleki`i Extension, or Connector Road. The Planning Director clearly erred,
abused his discretion, and acted arbitrarily, capriciously, and in violation of the law by ruling
otherwise in the Declaratory Order.
DEDICATION OF THE MAUKA HALEKI`I EXTENSION
10. The 2012 dedication of the Mauka Haleki`i Extension pursuant to County Council
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Resolution No. 317-12 fully and completely satisfied the Ordinances' requirements as they relate
to the Mauka Haleki`i Extension.
MAKAI HALEKI`I EXTENSION AND CONNECTOR ROAD
11. The Ordinances provide that"[r]oadway improvements . . . , including all plans
and construction, shall meet with the approval of the Department of Public Works." Exhibit 4 at
15-16; Exhibit 5 at 23-26.
12. The Makai Haleki`i Extension and Connector Road were constructed pursuant
plans reviewed and approved by the Planning Department and DPW. Exhibit 11.
13. DPW, and not the Planning Department, has the jurisdiction to determine whether
a roadway can be accepted for dedication.
14. The Declaratory Order does not make any findings, conclusions, or
determinations as to whether the Makai Haleki`i Extension and Connector Road can be dedicated
in their current condition.
15. Ordinance No. 96-8 does not set a deadline, date certain, or development
milestone by which the Makai Haleki`i Extension and Connector Road must be dedicated to the
County.
16. The Makai Haleki`i Extension and Connector Road are fully constructed pursuant
to plans DPW approved, and just like the Mauka Haleki`i Extension, both can be dedicated to the
County. The Planning Director clearly erred, abused his discretion, acted arbitrarily and
capriciously, and violated the law to the extent he ruled otherwise in the Declaratory Order.
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DATED: Honolulu, Hawai`i, December 3, 2024.
/s/Derek B. Simon
PATRICK K. WONG
DEREK B. SIMON
IAN R. WESLEY-SMITH
Attorneys for
1250 OCEANSIDE, LLC
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4860-2001-2538.2.051730-00058
BEFORE THE BOARD OF APPEALS
PLANNING DEPARTMENT
COUNTY OF HAWAII
In the Matter of Appeal Case No. PL-BOA-2024-000104
of CERTIFICATE OF SERVICE
1250 OCEANSIDE, LLC
From the decision of the Planning Director,
dated April 29, 2024 (Docket No. 24-0001)
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was duly served upon
the following parties by electronic mail (E-Mail) on December 3, 2024:
ELIZABETH A. STRANCE, ESQ.
ELIZABETH B. BAILEY, ESQ.
Corporation Counsel, County of Hawaii
101 Aupuni Street, Suite 325
Hilo, Hawaii 96720
Attorneys for Defendant
COUNTY OF HAWAII PLANNING DIRECTOR
KENNETH R. KUPCHAK
MARK M. MURAKAMI
TOREN K. YAMAMOTO
1003 Bishop Street, Suite 1600
Honolulu, Hawaii 96813
Attorneys for Intervenor
C & J COUPE FAMILY LIMITED PARTNERSHIP
SYLVIA A. WAN
Deputy Corporation Counsel
Office of the Corporation Counsel
101 Aupuni Street, Suite 325
Hilo, Hawaii 96720
Attorney for the BOARD OF APPEALS
4860-2001-2538.2.051730-00058
DATED: Honolulu, Hawai`i, December 3, 2024.
/s/Derek B. Simon
PATRICK K. WONG
DEREK B. SIMON
IAN R. WESLEY-SMITH
Attorneys for
1250 OCEANSIDE, LLC
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4860-2001-2538.2.051730-00058