HomeMy WebLinkAbout2024-12-18 Findings of Fact, Conclusions of Law, Decision and Order (PL-BOA-2024-000104) ELIZABETH A. STRANCE 4715
Corporation Counsel
SYLVIA A. WAN 9586
Deputy 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: sylviaa.wan@hawaiicounty.gov
Attorneys for
BOARD OF APPEALS
BEFORE THE BOARD OF APPEALS
COUNTY OF HAWAII
STATE OF HAWAII
PL-BOA-2024-000104
In the Matter of Appeal
of FINDINGS OF FACT, CONCLUSIONS OF
LAW, DECISION AND ORDER;
1250 OCEANSIDE, LLC CERTIFICATE OF SERVICE
From the Decisions of the Planning Director,
dated April 29, 2024 (Docket No. 24-0001)
FINDINGS OF FACT, CONCLUSIONS OF LAW, DECISION AND ORDER
On December 13, 2024, the Hawai`i County Board of Appeals adopted the following
Findings of Fact, Conclusions of Law, Decision and Order.
FINDINGS OF FACT
1. On February 7, 2024, C&J Coupe Family Limited Partnership ("Intervenor") filed
its Petition for Declaratory Ruling, and on March 27, 2024, filed its Supplement to Petition for
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Declaratory Ruling, (collectively, "Petition")requesting declaratory rulings from the Planning
Director.
2. On April 29, 2024, the Planning Director issued Zendo Kern, Planning Director,
County ofHawai'i's Declaratory Order in the Matter of C&J Coupe Family Limited
Partnership, Petitioner, Docket No. 24-0001 ("Order") in response to the Petitions.
3. On May 28, 2024, 1250 Oceanside LLC ("Appellant") filed its General Petition
for Appeal of Decisions by Planning Director or Public Works Director("Appeal") with the
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 Order or have the Order remanded to the
Planning Director to correct alleged errors.
5. On July 3, 2024, C&J Coupe Family Limited 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 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 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 held on August 9, 2024, at which the
Board approved the Petition to Intervene.
9. On October 11, 2024, the Board heard oral arguments and presentation of
evidence, including exhibits, and testimony on the Appeal at the West Hawai`i Civic Center with
all Board Members present in person. Michael Kaleihoku Vitousek, Manager of Land and
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Development of 1250 Oceanside LLC, Derek B. Simon, Esq., and Ian R. Wesley-Smith, Esq.
appeared on behalf of Appellant. Zendo Kern, Hawai`i County Planning Director and E. Britt
Bailey, Deputy Corporation Counsel, appeared on behalf of the Planning Department. Charles
Coupe of C&J Coupe Family Limited Partnership, Kenneth R. Kupchak, Esq., and Mark M.
Murakami, Esq. appeared on behalf of Intervenor.
10. The Board found that the Order addressed the questions raised by the Appellant in
its appeal, even if the Director did not provide the level of clarity or specifics desired by the
Appellant.
CONCLUSIONS OF LAW
1. Hawai`i Revised Statues Section 91-8 allows 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 Planning Director the discretion to
"issue a declaratory order as to the applicability of any statutory provision, ordinance, or any rule
or order of the Director or the Department."
3. Hawaii County Code ("HCC") Section 25-2-23 [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 Procedures, Rule 8-4(4)requires that a
general petition for an appeal must include:
A statement explaining:
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(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 arbitrary and capricious, or characterized by
an abuse of discretion or clearly unwarranted exercise of discretion.
5. The Director acted within his jurisdiction when the Director addressed the posed
questions in the Order.
6. The Order correctly identified issues outside the Director's jurisdiction and
discretion.
7. The Order sufficiently addressed the questions raised by the Appellant even
though the Order did not reflect the specifics desired by the Appellant.
8. Appellant's argued lack of clarity and/or specifics in the Director's responses, but
that did not meet the burden required for modifying or remanding the Planning Director's
decision
9. Having considered the testimony and evidence provided, the Board unanimously
concluded that in issuing his Order, the Planning Director Zendo Kern did not clearly err, was
not arbitrary or capricious, nor did he abuse his discretion. Therefore, the Board affirmed Zendo
Kern, Planning Director, County of Hawaii's Declaratory Order in the Matter of C&J Coupe
Family Limited Partnership, Petitioner, Docket No. 24-0001.
DECISION AND ORDER
Based 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 Board hereby Orders as follows:
The Planning Director's April 29, 2024, Zendo Kern, Planning Director, County of
Hawaii's Declaratory Order In the Matter of C&J Coupe Family Limited Partnership, Petitioner,
Docket No. 24-0001 is AFFIRMED. The above-captioned Board of Appeals case is dismissed
with prejudice in its entirety.
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Dated: Hilo, Hawaii, December 16, 2024.
OF/ c9 C7Viel;)
By. 411
Cathy Lew , Chair
Board of Appeals, County of Hawai`i
State of Hawai`i
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BEFORE THE BOARD OF APPEALS
COUNTY OF HAWAI`I
STATE OF HAWAI'I
In the Matter of Appeal PL-BOA-2024-000104
of CERTIFICATE OF SERVICE
1250 OCEANSIDE, LLC
From the Decisions of the Planning Director,
dated April 29, 2024 (Docket No. 24-0001 )
BOARD OF APPEALS' 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 pursuant to Board of Appeals Rule
3-19 on December 18, 2024
Delivered via Electronic Mail (E-Mail and/or EPIC):
Derek B. Simon, Esq.
Patrick K. Wong, Esq.
Ian R. Wesley-Smith, Esq.
Attorneys for Appellant
Kenneth R. Kupchak, Esq.
Mark M. Murakami, Esq.
Toren K. Yamamoto, Esq.
Attorneys for Intervenor
Jean K. Campbell
E. Britt Bailey
Deputies Corporation Counsel
Office of the Corporation Counsel
Attorneys for Appellee
Dated: Hilo, Hawaii December 18, 2024
CifikiA9-DOW/
ASHLEY DEVERA
Staff to the Board of Appeals
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