HomeMy WebLinkAbout2025-08-18 3CCV-25-0000025 Findings of Fact, Conclusions of Law, and Order Vacating and Remanding to BOA (PL-BOA-2024-000104) Electronically Filed
THIRD CIRCUIT
3CCV-25-0000025
18-AUG-2025
09:56 AM
Dkt. 175 FOF
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAI'I
1250 OCEANSIDE, LLC, CIVIL NO. 3CCV-25-0000025
Appellant, AGENCY DOCKET NO. PL-BOA-
2024-000104
vs.
FINDINGS OF FACT,
BOARD OF APPEALS, COUNTY OF CONCLUSIONS OF LAW, AND
HAWAII; ET AL., ORDER VACATING AND
REMANDING THE BOARD OF
Appellees, APPEALS FINDINGS OF FACT,
CONCLUSIONS OF LAW AND
ORDER
Judge: Hon. Kauanoe A. D. Jackson
Oral Argument Date: June 10, 2025
Oral Argument Time: 2:30 p.m.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER VACATING AND
REMANDING THE BOARD OF APPEALS FINDINGS OF FACT, CONCLUSIONS OF
LAW, AND ORDER
This appeal is taken from the Findings of Fact, Conclusions of Law, and Decision
and Order ("Decision and Order" that the Appellee County of Hawai'i Board of Appeals
(the "BOA") entered on December 16, 2024, pursuant to Section 91-14, Hawai'i Revised
Statutes ("HRS"). This appeal came for oral argument on June 10, 2025, at 2:30 p.m.
before the Honorable Kauanoe A. D. Jackson, Judge of the above-entitled Court.
Michael Kaleihoku Vitousek, Manager of Land and Development of 1250 Oceanside
LLC, Patrick K. Wong, Esq., and Derek B. Simon, Esq. (via Zoom) appeared for
Appellant 1250 OCEANSIDE, LLC ("Oceanside"). Deputy Corporation Counsel Demetri
G. Lametti appeared for Appellee BOARD OF APPEALS OF THE COUNTY OF
HAWAI'I ("BOA") and Appellee-Appellee JEFFREY DARROW, PLANNING DIRECTOR,
COUNTY OF HAWAII ("Director", and collectively with the Board "County Appellees").
Kenneth R. Kupchak Esq., Mark M. Murakami, Esq., and Katie T. Pham, Esq. (via
Zoom) appeared for Appellee-Appellee C & J COUPE FAMILY LIMITED
PARTNERSHIP ("Coupe").
This Court has reviewed and considered the parties' briefs and filings, the
Record on Appeal ("ROA"), and the parties' oral arguments. Based on the foregoing, the
Court hereby enters the following Findings of Fact and Conclusions of Law VACATING
AND REMANDING the BOA's Decision and Order in PL-BOA-2024-000104 for
noncompliance with HRS § 91-12.
FINDINGS OF FACT
The Court makes the following findings of fact. To the extent that these findings
of fact contain conclusions of law, they shall be so considered.
Factual Background
1. Hokuli'a is a master-planned community located in Kealakekua, Hawai'i
("Project") originally developed by 1250 Oceanside Partners ("Original Developer"). See
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Dkt. 17, ROA at 0019 (Docket No. 24-0001 Declaratory Order by Zendo Kern, Planning
Director)
2. The Original Developer obtained County of Hawaii ("County") Ordinance
Nos. 96-7 and 96-8 (collectively, "Ordinances"), for the rezoning of 1550 acres to allow
for the Project's development, among other approvals. Id.; Dkts. 17-19, ROA at 0040-
0099.
3. Following enactment of the Ordinances, the Original Developer entered
into a Development Agreement with the County, dated April 20, 1998 . Dkt. 17, ROA at
0019-0020.
4. The Development Agreement included 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. The Development
Agreement, set forth, inter alia, that in lieu of actual construction of infrastructure and
roadway improvements, the Original Developer could make assurances under the
Development Agreement such construction would occur and the Original Developer
would post bonds in favor of the County ensuring such construction. Dkt. 17, ROA at
0019-0020; Dkts. 21-22, ROA at 0187-0231.
5. In exchange, the Original Developer would receive final subdivision
approval prior to actual construction of such improvements. Id. The Development
Agreement has not expired as it has a term of thirty years from the date of the resolution
enacting it by the Hawai'i County Council. See Dkt. 22, ROA at 203.
6. On April 29, 2010, the County sent notice to the Original Developer
detailing the Original Developer's material breach of the Development Agreement and
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subdivision agreements due to its failure to timely construct the required improvements
and the invalidity of the bonds it provided to the County. Dkt. 17, ROA at 0033-0039.
7. On January 31, 2011, the County's Planning Department issued Variance
10-027 at the Original Developer's request, providing, inter alia, variances from Chapter
23 of the Hawaii County Code ("HCC") related to the construction of the Mauka Haleki'i
Extension, the Makai Haleki'i Extension, and the Connector Road (all defined below)
("Variance 10-027"). Dkt. 32, ROA at 0617-0624. Variance 10-027 has not been the
subject of an appeal or other subsequent legal challenge (except to the extent it is at
issue in the 2023 Lawsuit (defined below)).
8. In 2012, 1250 Oceanside, LLC ("Oceanside," or "Appellant") acquired the
Original Developer's outstanding loans and took over the Project. Dkt. 17, ROA at 0021.
Over the years, the Mamalahoa Bypass Road ("Bypass"), Haleki'i Street and portions of
subdivision improvements were constructed. The property underlying the Bypass was
conveyed to the County and the Hawaii County Council accepted the extension of
Haleki'i Street to the mauka side of the Bypass ("Mauka Haleki'i Extension") through
dedication pursuant to County Resolution No. 317-12, adopted November 9, 2012. Id.
9. To date, the extension of Haleki'i Street through the Project ("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," and
collectively with the Makai Haleki'i Extension, sometimes referred to herein as the
"Roadways") have not been dedicated to the County. Dkt. 17, ROA at 0030; Dkt. 146,
Appellant 1250 Oceanside, LLC's Opening Brief("OB"), at 7.
Coupe's Original Lawsuit
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10. On March 31, 2023, Coupe filed suit in the Circuit Court of the Third
Circuit, State of Hawai'i, entitled C & J Coupe Family Limited P'Ship v. County of
Hawaii, Civil No. 3CCV-23-0000123 ("2023 Lawsuit"), alleging Oceanside 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 to the County.
11. On September 15, 2023, the Circuit Court stayed the 2023 Lawsuit, and
required Coupe to seek a declaratory ruling from the County Planning Director
regarding Oceanside's compliance with the Ordinances and the Development
Agreement. Dkt. 49, ROA at 1266 (Order Granting in Part County Defendants' Motion to
Dismiss the Complaint for Declaratory and Injunctive Relief, filed March 31, 2023 [Dkt.l],
Filed March 25, 2023 [Dkt. 21], and Staying Proceedings Pending Referral to County of
Hawai'i Planning Department, filed January 19, 2024).
Coupe's Petition for a Declaratory Ruling
12. Coupe filed a Petition for a Declaratory Ruling ("Initial Petition") with the
Planning Department on February 7, 2024, and supplemented that petition by filing with
the Planning Department a Supplement to Petition for Declaratory Ruling, Submitted on
March 27, 2024 ("Supplemental Petition" and, collectively with the Initial Petition, the
"Petition"). Dkts. 19-20, ROA at 0101-0125; Dkts. 36-37, ROA at 0795-0806,
respectively.
13. In the Initial Petition, Coupe posed ten (10) requests to the Director. Dkts.
19-20, ROA at 0101-0125.
14. The requests in the Initial Petition were:
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• 1) Determine whether the Planning Director has the authority to determine
— under the HRS, Hawaii Charter, County Code, and the Development
Agreement—whether Oceanside is currently in compliance with the terms
of the Development Agreement.
• 2) Determine whether the Planning Director has the authority — under
HRS, Hawaii Charter, County Code, and Development Agreement—to
determine material breaches of the Development Agreement.
• 3) Determine which county official, if any, has the power to excuse a
breach of the Development Agreement.
• 4) Whether Oceanside has, within the timeframe allotted, completed the
following: a) designed and constructed/built the roads required under the
Development Agreement and Incorporated Ordinances; and b) dedicated
the roads required under the Development Agreement and Incorporated
Ordinances.
• 5) Whether Resolution No. 317-12 ("Resolution") and the Variance 10-027
("Variance") improperly amended the Development Agreement and
Incorporated Ordinances.
• 6) Whether Variance is unlawful, impermissible, and not authorized under
Hawaii law.
• 7) Whether Petitioner received notice of the Variance, as required under
the express dictate of County law.
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• 8) Whether obligations in a development agreement can be excused by
Variance under the Hawaii Constitution, HRS, Hawaii Charter, County
Code, and Development Agreement.
• 9) Determine whether the Resolution, as an improper attempt to amend
the Development Agreement and Incorporated Ordinances, required
notice to Petitioner which was not provided.
• 10) Determine whether the failures to provide notice of the Variance and
Resolution were violations of Petitioner's right to due process of law.
Id.
15. In the Supplemental Petition, Coupe posed nineteen (19) additional
requests to the Director. Dkts. 36-37, ROA at 0794-0806.
16. The requests in the Supplemental Petition were:
• 1) Petitioner requests that Planning determine and declare whether
Planning has primary jurisdiction to render decisions on the following
issues: interpretation of Development Agreement; interpretation,
administration, and enforcement of Ordinances and Conditions; (and)
validity/propriety of Variance No. VAR 10 027 ("Variance") and whether
final decision on Variance has been made.
• 2) If Planning determines that it has authority to render decisions on the
issues listed above, Petitioner requests that Planning identify the source of
its authority.
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• 3) Petitioner requests that Planning Director or Planning specifically
identify those elements "well understood" by Planning that determine
whether Oceanside is violating County law.
• 4) Petitioner requests that Planning identify the codes, rules, and
requirements of Hawaii law applicable to the issues in this matter, and
identify Planning's final decision regarding Oceanside's compliance with or
violation of the same.
• 5) Petitioner requests that Planning identify its final agency action on the
applicability of Ordinances and Conditions to Oceanside's property."
• 6) "Petitioner requests that Planning state its interpretation of Ordinances
and Conditions as applied to Oceanside's property.
• 7) Petitioner requests that Planning indicate its final agency action
determining Oceanside's obligations under and compliance with,
Ordinances and Conditions.
• 8) Petitioner requests that Planning identify its final agency action for
Oceanside's alleged violations of Conditions.
• 9) Petitioner requests that Planning determine whether the construction
standards and deadlines for the roadways are/were within the discretion of
the County.
• 10) Petitioner requests that Planning identify whether there is any
ambiguity regarding the applicability of the dedication requirements set
forth in the Ordinances and whether this allows County and Oceanside to
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present extrinsic evidence at the declaratory ruling hearing showing
County Council's intent regarding Ordinances.
• 11) Petitioner requests that Planning state whether Planning has rendered
a final decision on Variance.
• 12) If Planning determines that it has rendered a final decision on
Variance, Petitioner requests that Planning identify the date such decision
was rendered.
• 13) If Planning determines that it has not rendered a final decision on
Variance, Petitioner requests that Planning issue its final decision on
Variance.
• 14) Petitioner requests that Planning declare whether its approval of a
variance application is a "final agency action" that can be appealed.
Conversely, if Planning determines that such decisions are not ripe for
appeal, Petitioner requests that Planning provide an explanation and the
legal basis therefor.
• 15) Petitioner requests that Planning identify the appropriate appellate
tribunal to review Planning's decisions on variances.
• 16) Petitioner requests that Planning identify whether Oceanside was
required to "provide roadway stub-outs...to provide connections between
the [Hokuli'a Development Project] and its adjacent north and south
boundaries.
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• 17) Petitioner requests that Planning identify whether these roadway stub-
outs were required so that the future connections could provide access
between properties adjacent to the Hokuli'a Development Project.
• 18) Petitioner requests that Planning identify whether Oceanside's
requirement to build the "roadway stub-outs" is dependent on the
development of Petitioner's property.
• 19) Petitioner requests that Planning state whether it will bring a zoning
enforcement action against Oceanside.
Id.
17. Oceanside filed its own Petition for Declaratory Ruling on February 27,
2024 that is not the subject of this appeal but it a related case.
18. Rule 3-1(a) of the Planning Department's Rules of Practice and Procedure
("PRPP") provides: "[o]n the petition of an interested person, 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."
The Director's Declaratory Order
19. The Planning Director issued a Declaratory Order ("Declaratory Ruling")
on Coupe's Petition on April 29, 2024. Dkt. 17, ROA at 0019-0032.
20. The Declaratory Order responded to Coupe's requests in its initial petition
as follows:
• Request 1: The Director declined to answer this request because it did not
designate any specific provision, rule, or order of the Director or
Department as is required under PRPP Rule 3-1(b)(3). It also improperly
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sought an interpretation of the Development Agreement, which is not a
Department order. Id., at 0026.
• Request 2,: The Director declined to answer this request because it
improperly sought an interpretation of the Development Agreement, which
is not a Department order. Id., at 0027. It also sought review or affirmance
of a past Department action that the Director has no control over and/or is
no longer appealable. Id.
• Request 3: The Director declined to answer this request because it did not
designate any specific provision, rule, or order of the Director or
Department as is required under PRPP Rule 3-1(b)(3). Id., at 0026.
• Request 4: The Director agreed to respond to this request to the extent
that it requested an interpretation of the Ordinances' conditions as applied
to the Project. Id., at 0028.
• Request 5: The Director declined to answer this request because it
improperly sought an interpretation of the Development Agreement, which
is not a Department order and it also sought review or affirmance of a past
Department action that the Director has no control over and/or is no longer
appealable. Id.
• Request 6: The Director declined to answer this request because it sought
review of a past Department action which is no longer appealable. Id., at
0028.
• Request 7: The Director declined to answer this request because it sought
review of a past Department action which is no longer appealable. Id.
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• Request 8: The Director declined to answer this request because it did not
designate any specific provision, rule, or order of the Director or
Department as is required under PRPP Rule 3-1(b)(3). Id., at 0026.
• Request 9: The Director declined to answer this request because it sought
review or affirmance of Council action over which the Director has no
authority. Id., at 0028.
• Request 10: The Director declined to answer this request because it did
not designate any specific provision, rule, or order of the Director or
Department as is required under PRPP Rule 3-1(b)(3). Id., at 0026.
21. The Declaratory Order responded to Coupe's requests in its supplemental
petition as follows:
• The Director declined to answer requests 1, 5, 7, 8, 9, 11, 12, 13, 16, 17,
18, and 19 as they failed to designate any specific provision, rule, or order
of the Director or Department as is required under PRPP Rule 3-1(b)(3).
Id., at 0027.
• The Director declined to answer requests 2, 3, 4, 14, and 15 because they
also did not comply with PRPP Rule 3-1(b)(3) and the requests reversed
the roles of the Petitioner and Director as the Petitioner is the party that is
supposed to supply the law to be applied and interpreted. Id.
• The Director also declined to answer requests 11, 12, and 13 because
they sought review or affirmance of a past Department action (issuance of
Variance), which is no longer appealable. Id., at 0028.
1
• The Director agreed to respond to requests 6 and 10 of the supplemental
petition to the extent that the requests sought an interpretation of the
Ordinances' conditions as applied to the Project. Id.
22. Overall, the Director ruled that he could issue declaratory rulings on
portions of three of Coupe's twenty-nine requested declaratory rulings. Dkt. 17, ROA at
0026-28.
23. In response to Coupe's initial petition request number 4, the Director found
that "taken in their entirety," Ordinances 96-7 and 96-8 require the dedication of the
Mauka Haleki'i Extension, the Makai Haleki'i Extension, and the Connector Road to the
County. Dkt. 17, ROA at 0029-0030.
24. In response to Coupe's supplemental request number 6, the Director
found that, "to the extent the Mauka Haleki'i Extension was effectively dedicated, such
dedication adequately satisfied the relevant portions of the Ordinances applicable to the
Mauka Haleki'i Extension." Id. at 0030.
25. The Mauka Haleki'i Extension dedication was accepted by the County
Council pursuant to Resolution 317-12. Id. The Director has never had any authority
over the Resolution. Id.
26. In response to Coupe's supplemental request number 10, the Director
found that Oceanside has not fully satisfied the Ordinances' roadway improvement and
dedication requirements because the Makai Haleki'i Extension and the Connector Road
have not yet been dedicated to the County. Id.
27. The Director further found that both roads must be constructed to a
condition approved by the Department of Public Works. Id.
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Oceanside's Appeal to the BOA
28. On May 28, 2024, Oceanside filed its General Petition for Appeal of
Decisions by Planning Director or Public Works Director ("Board Appeal") with the BOA
appealing the Director's Declaratory Ruling. Dkt. 17, ROA at 0001-0017.
29. In its appeal, Oceanside argued that the Declaratory Order should be
either modified by the BOA or reversed and remanded because:
a. The Director erred by ruling that Ordinance No. 96-7 requires the
dedication of three roadways because no such requirement is
contained within Ordinance No. 96-7;
b. The Director erred by seemingly qualifying the 2010 dedication of the
Mauka Haleki'i Extension and corresponding satisfaction of the
Ordinances' conditions related to the roadway; and
c. The Director erred by ruling that the Makai Haleki'i Extension and
Connector Road have not been constructed as required under the
Ordinances because (1) both roadways were constructed pursuant to
plans approved by DPW and are covered by the Variance, and (2) the
Director lacks authority to rule upon the sufficiency of the roadways for
dedication.
Dkt. 17, ROA at 0012-0016.
30. On July 3, 2024, Coupe filed a Petition to Intervene in Oceanside's
appeal, which the BOA granted after holding a hearing on August 9, 2024. Dkt. 109,
ROA at 3573-3575.
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31. The BOA held a hearing on Oceanside's appeal on October 11, 2024. Dkt.
137, ROA at 4656-4661 (minutes); Dkts. 137-138, ROA at 4665-4715 (transcript).
32. At the hearing, the BOA heard oral arguments by counsels, received
exhibits and heard testimony from witnesses. Dkt. 137, ROA at 4658-4660.
33. At the conclusion of the hearing, the BOA voted to affirm the Declaratory
Order and instructed the Director to prepare a proposed "order," which would be
considered for adoption at the BOA's meeting scheduled for December 13, 2024. Dkt.
137, ROA at 4660 (minutes); Dkt. 138, ROA at 4712-4715 (transcript).
34. On November 22, 2024, Oceanside informed the BOA of its belief that the
Director's Proposed Decision and Order did not comply with HRS § 91-12, and
requested a continuance to the BOA's next scheduled meeting so the parties could
have additional time to review the record and submit their own proposed decisions and
orders, supplemental findings of fact and conclusions of law, and objections. Dkt. 139,
ROA at 4749-4751.
35. The BOA denied Oceanside's request, but provided additional time to
submit objections to the Director's Proposed Decision and Order. Id., ROA at 4751.
36. On December 3, 2024, Oceanside filed its Objections to the Director's
Proposed Findings of Fact, Conclusions of Law, Decision and Order ("Objections to
Proposed Decision and Order"), which included 34 proposed findings of fact and 16
proposed conclusions of law. Dkt. 140, ROA at 4767-4786.
The BOAs' Decision and Order
37. On December 13, 2024, the BOA held a public meeting at which it voted
to adopt the Director's Proposed Decision and Order as its final decision, subject to
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certain amendments made at the meeting. Dkt. 141, ROA at 4807-4810 (minutes); id.,
ROA at 4815-4823 (transcript).
38. The BOA did not include or rule on any of the proposed findings of fact
and conclusions of law submitted in Oceanside's Objections to Proposed Decision and
Order. Id.
39. The BOA served Oceanside with the Decision and Order on December
18, 2024. Id., ROA at 4824-4829 (Findings of Fact, Conclusions of Law, Decision and
order on Coupe's Petition for Declaratory Order).
40. In the Decision and Order, the BOA made the following ten findings of fact
("FOF"):
• 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 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 of Hawai'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.
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• 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 Hawai'i 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
Hawaii Civic Center with all Board Members present in person. Michael
Kaleihoku Vitousek, Manager of Land and Development of 1250
Oceanside LLC, Derek B. Simon, Esq., and Ian R. Wesley-Smith, Esq.
appeared on behalf of Appellant. Zendo Kern, Hawaii 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.
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• 10) The BOA 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.
Id., ROA at 4824-4826.
41. The BOA also made the following nine conclusions of law ("COL"):
• 1) Hawaii 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
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(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:
(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 [sic] 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
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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.
Id., ROA at 4826-4827.
42. On January 17, 2025, Oceanside timely appealed the Decision and Order
to this Court pursuant to HRS § 91-14. Dkt. 1.
43. Oceanside's appeal contains two main arguments: 1) the Decision and
Order of the BOA did not comply with HRS § 91-12; and 2) the BOA erred when it
affirmed rulings by the Director. Id.
CONCLUSIONS OF LAW
This Court makes the following Conclusions of Law, and to the extent that any of
the following shall be determined to be Findings of Fact, they shall be deemed as such.
Jurisdiction
1. The Court has personal jurisdiction over the parties.
2. Appellant is an interested person pursuant to HRS § 91-8 and therefore
had standing to bring their Petitions before the Commission and to bring this appeal.
3. This Court has subject matter jurisdiction over this appeal and the appeal
is properly before the Court pursuant to HRS § 91-14.
4. Appellant's appeal is timely. HRS § 91-14(b). Dkt. 1.
5. Venue is proper in this Court.
Standard of Review
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6. The Court's review of the Decision and Order is governed by HRS § 91-
14(g), which provides that:
Upon review of the record, the court may affirm the decision of the agency
or remand the case with instructions for further proceedings; or it may
reverse or modify the decision and order if the substantial rights of the
petitioners may have been prejudiced because the administrative findings,
conclusions, decisions, or orders are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable, probative, and substantial
evidence on the whole record; or
(6) Arbitrary, or capricious, or characterized by abuse of discretion or
clearly unwarranted exercise of discretion.
HRS § 91-14(g).
7. "Under HRS § 91-14(g), conclusions of law are reviewable under
subsections (1), (2), and (4); questions regarding procedural defects are reviewable
under subsection (3); findings of fact are reviewable under subsection (5); and an
agency's exercise of discretion is reviewable under subsection (6)." Matter of
Conservation Dist. Use Application HA-3568, 143 Haw. 379, 389, 431 P.3d 752, 762
(2018) (citation omitted).
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8. A court's review of a final agency decision and order for compliance with
HRS § 91-12 is de novo. See Rife v. Akiba, 81 Haw. 84, 86, 912 P.2d 581, 583 (Ct.
App. 1996) ("We do not reach the HRS § 91-14(g)(5) issue. ("We vacate and remand
pursuant to HRS § 91-14(g)(1) because the BOA failed to satisfy HRS § 91-12.") in their
Decision and Order.
9. Failure to comply with HRS § 91-12 results in the application of HRS §
91-14(g)(1). Id., 81 Haw. at 91, 912 P.2d at 588.
Oceanside's Appeal is a Contested Case
10. "A contested case hearing is one that is (1) required by law and (2)
determines the rights, duties, and privileges of specific parties." Matter of Hawaii'i Elec.
Liqht Co., Inc., 145 Haw. 1, 13, 445 P.3d 673, 685 (2019) ("HELCO").
11. "In order for an administrative agency hearing to be required by law, it may
be required by (1) agency rule, (2) statute, or (3) constitutional due process." Id.
12. Although the Director has discretion as to whether or not to respond to
requests for declaratory rulings under PRPP Rule 3-1, and a hearing was not required
at the declaratory ruling stage, one was required at the BOA pursuant to agency rule
and constitutional due process. BOA Rule 8-11(b) ("The Board shall hold a full hearing
on the appeal in accordance with Chapter 91, Hawaii Revised Statutes[]"); See Id.
13. The hearing before the BOA concerned Oceanside's "rights, duties, and
privileges" under the Ordinances in connection with the roadways at issue. See Id.
14. BOA Rules provide that its hearings are conducted as contested cases.
See BOA Rules, Part 3 (entitled "Contested Case Procedure"). They authorize appeals
of all BOA "appeal proceeding[s]" and "final decision[s]" pursuant to HRS § 91-14, which
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applies to appeals from contested case hearings. BOA Rule 3-22 ("Any party may
obtain judicial review of the Board's final decision with the Circuit Court pursuant to
Section 91-14 of the Hawaii Revised Statutes[.]"); BOA Rule 8-17 ("Any party to an
appeal proceeding may obtain judicial review by the Circuit Court of the proceeding
pursuant to Section 91- 14, Hawaii Revised Statutes, as amended.").
15. The proceeding at the BOA was a contested case and any decision and
order disposing of the matter was required to comply with HRS § 91-12.
Requirements of HRS § 91-12
16. HRS § 91-12 mandates that:
Every 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. If any party to the proceeding has filed proposed
findings of fact, the agency shall incorporate in its decision a ruling upon
each proposed finding so presented.
17. HRS § 91-12 requires that the Board's findings be reasonably clear. In re
Terminal Transp., Inc., 54 Haw. 134, 139, 504 P.2d 1214, 1217 (1972).
18. A separate ruling on each proposed finding of fact is not indispensable.
Mitchell v. BWK Joint Venture, 57 Haw. 535, 560 P.2d 1292 (1977); In re Terminal
Transportation, Inc., 54 Haw. 134, 504 P.2d 1214 (1972); Freitas v. Pacific Contractors
Co., 1 Haw.App. 77, 613 P.2d 927 (1980).
19. However, "[t]he requirement of findings is far from a technicality and is a
matter of substance. It has been said that it is a fundamental of fair play that an
administrative judgment express a reasoned conclusion. A conclusion requires
evidence to support it and findings of appropriate definiteness to express it. . .."
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Application of Kauai Elec. Div. of Citizens Utilities Co., 60 Haw. 166, 183-84, 590 P.2d
524, 537 (1978) (citation omitted) ("Kauai Elec.").
20. "The purpose of the statutory requirement that the agency set forth
separately its findings of fact and conclusions of law is to assure reasoned decision
making by the agency and enable judicial review of agency decisions." HELCO, 60
Haw. at 641, 594 P.2d at 623.
21. The parties should not be left to guess, with respect to any material
question of fact, or to any group of minor matters that have a cumulative significance,
the precise finding of the agency. Timothy Freitas v. Pacific Contractors, 1 Haw.App. 77,
84-85, 613 P.2d 927, 932 (1980).
22. "The purpose of the statutory requirement that the agency set forth
separately its findings of fact and conclusions of law is to assure reasoned decision
making by the agency and enable judicial review of agency decisions." HELCO, 60
Haw. at 641, 594 P.2d at 623.
23. 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."
Id., 60 Haw. at 642, 594 P.2d at 623 (citation omitted).
24. "[T]he agency must make its findings reasonably clear. The 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." Kauai Elec., 60 Haw. at 183, 590 P.2d at 537 (citation omitted).
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25. This Court must know what a decision means before the duty becomes
this Court's to say whether it was right or wrong. Rife, 81 Haw. at 87, 912 P.2d at 584.
The Decision and Order of the BOA does not Comply with HRS § 91-12
26. The Decision and Order of the BOA does not comply with HRS § 91-12
because the BOA did not make reasonably clear findings of fact sufficient to support its
decision to affirm the Declaratory Order. See Kauai Elec., 60 Haw. at 183, 590 P.2d at
537.
27. FOF 1-9 summarize the procedural history before the Director and BOA.
While these findings of fact are an important part of a decision and order, they do not
allow the Court to "track the steps by which the [BOA] reached its decision" to affirm the
Declaratory Order. Los Banos v. Hawai'i Lab. Rels. Bd., 145 Haw. 297, 452 P.3d 765
(Ct. App. 2019) ("[A] reviewing court should ensure that the agency's findings and
conclusions are sufficiently clear to allow the reviewing court to track the steps by which
the agency reached its decision.").
28. FOF 10, which is the only other finding of fact in the Decision and Order, is
a finding of"ultimate fact," but it is not supported by any "basic facts" or references to
evidence in the record. HELCO, 60 Haw. at 642, 594 P.2d at 623 ("[i]n order that
[courts] 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.").
29. FOF 10 is also vague, ambiguous, and not "reasonably clear" as to what
the BOA is actually finding in light of the specific issues Oceanside raised in its appeal
to the BOA, which did not only concern the Declaratory Order lacking "the level of clarity
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desired by" Oceanside. Kauai Elec., 60 Haw. at 183, 590 P.2d at 537 ("[T]he agency
must make its findings reasonably clear.").
30. None of the FOFs provide the Court with the necessary insight into how
the BOA reconciled the evidence received as part of the contested case hearing.
31. The Court "cannot fill the voids" in the Decision and Order because the
Court is "not the fact-finding body." HELCO at 643, 594 P.2d at 624.
32. The Decision and Order also does not comply with HRS § 91-12 because
the BOA did not make sufficient conclusions of law to support its decision to affirm the
Declaratory Order, including in that it does not set forth the authorities relied upon to
affirm the Declaratory Order other than simply quoting HRS § 91-8, PD Rule 3, and the
BOA's standard of review.
33. The Decision and Order also fails to comply with the requirement under
HRS § 91-12 that "[i]f any party to the proceeding has filed proposed findings of fact, the
agency shall incorporate in its decision a ruling upon each proposed finding so
presented." HRS § 91-12.
34. Because the Decision and Order violates HRS § 91-12, it is in violation of
a statutory provision. HRS § 91-14(g)(1).
Remand is Appropriate
35. "[R]emand is proper where an agency has made invalid, inadequate or
incomplete findings," Kauai Elec., 60 Haw. at 185, 590 P.2d at 538.
36. Because the Decision and Order did not comply with HRS § 91-12, the
Court is unable to determine whether Oceanside's arguments regarding whether the
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BOA erred in affirming the Director's rulings have merit. Remand is proper in this
instance. Id.
ORDER
Based on the foregoing Findings of fact and Conclusions of Law:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Appellant 1250
Oceanside LLC's appeal from the Findings of Fact, Conclusions of Law, and Decision
and Order; Certificate of Service, dated December 18, 2024, is VACATED AND
REMANDED.
This case shall be REMANDED to the Board of Appeals to adopt a Decision and
Order that complies with Section 91-12, HRS.
Pursuant to Rule 58 Hawaii Rules of Civil Procedure, a final judgment shall enter
consistent with this Order.
DATED: Kailua-Kona, Hawaii, A-14 /�i 202y
JUDG _ - - AeOVE- TITLED COURT
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